When could South Carolina police seize a car after a driving under suspension arrest?

Plain-English summary

A Georgetown police sergeant asked whether officers should take a vehicle when a driver had a third offense driving under suspension conviction and more DUS charges pending. The April 2001 informal opinion drew the line at three prior DUS convictions within five years and a new DUS arrest. It said the grade of those earlier convictions did not matter. Pending charges were not the threshold the AG identified.

The letter distinguished seizure at arrest from forfeiture after a fourth DUS conviction. It said the arresting officer and police chief had to follow Section 56-5-6240 when deciding whether the vehicle remained confiscated. The quoted statute addressed a vehicle driven by its registered owner or someone living in the owner's household; the letter did not resolve other ownership situations.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Police and traffic courts

The opinion treated an arrest following three qualifying convictions as the point for confiscation. It said forfeiture was a later civil action after conviction, and taking the vehicle at arrest was a prerequisite to that result.

Registered owners

The opinion quoted a notice provision requiring the police chief to notify the registered owner by certified mail within seventy-two hours. It also noted that the owner could seek a circuit court hearing on confiscation.

Common questions

Did pending DUS charges count as prior convictions for seizure?
A: The AG's test required at least three prior DUS convictions within the preceding five years. The question mentioned pending charges, but the answer used convictions.

Did the prior convictions all have to be third offenses?
A: No. The opinion's first footnote said the level of each prior DUS conviction was irrelevant to the seizure decision.

Was seizure the same thing as forfeiture?
A: No. The opinion described seizure as taking possession at arrest and forfeiture as a later civil transfer of title following conviction.

Background and statutory framework

Section 56-5-6240, as quoted in the 2001 letter, provided for confiscation at arrest in the fourth or later DUS case and forfeiture after conviction under its ownership conditions. The AG stressed that the officer and chief had to comply with the statute's rules on continued confiscation.

Citations and references

• The opinion said seizure was appropriate when the arrested driver had “three (3) (or more)” prior DUS convictions within five years.
• Its footnote said the level of those convictions was “irrelevant to the seizure determination.”

Official title

“regarding vehicle seizures for SC code section 56-5-6240.” Specifically addressing the “need to determine if police officers should seize a vehicle if the driver has been convicted of Driving Under Suspension 3rd offense and has one or more charge for DUS pending.”

Requester

Sergeant James B. Arnold, Jr.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-20-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01april-20-arnold.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATIORNEY GENERAL

April 20, 200 I

Sergeant James B. Arnold, Jr.
Georgetown Police Department
Organized Crime/Narcotics Division
1405 Prince Street
Georgetown, South Carolina 29440

Re: S.C. Code §56-5-6240
Dear Sergeant Arnold:
You have requested an opinion from this Office "regarding vehicle seizures for SC code section 56-5-6240." Specifically, you indicate that you "need to determine if police officers should seize a vehicle if the driver has been convicted of Driving Under Suspension 3rd offense and has one or more charges for DUS pending." Section 56-5-6240 provides in part as follows: In addition to the penalties for a person convicted of a fourth or subsequent violation within the last five years of operating a motor vehicle while his license is canceled, suspended, or revoked (DUS) ... the person must have the motor vehicle he drove during this offense forfeited ... if the person is the registered owner or a resident of the household of the registered owner ... [Further] ... The vehicle must be confiscated by the arresting officer or other law enforcement officer of that agency at the time of arrest.

When reading Section 56-5-6240, the distinction between seizure/confiscation and forfeiture must be kept in mind. Seizure or confiscation is the act of taking possession and control of the vehicle upon arrest of the driver. Forfeiture involves a civil action whereby passage of title or ownership of the vehicle to the State is accomplished following the driver's conviction. In order forthe vehicle to be forfeited at the time of conviction for a fourth DUS offense, the vehicle, as a prerequisite, must have been seized at the time of arrest. See A TTY. GEN. OP. No. 94-35 (Dated June 2, 1994). Accordingly, the proper procedure for law enforcement would be to seize/confiscate the vehicle at the time of arrest of any person arrested for DUS when that person has three (3) (or more)

REMBERT

c. DENNIS BUILDING

~~Y (~-7UA'~

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POST OFFJCE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

Sergeant Arnold
Page2
April20,2001

prior convictions for DUS within the last five (5) years.' Of course, the arresting officer and chief of police must comply with the provisions of §56-5-6240 ensuring the propriety of the continued seizure/confiscation of the vehicle. 2

!

This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General and not officially published in the manner of a formal opinion.

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Sincerely,

C24j1A-David K. Avant/
Assistant Attorney General

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1

The level of the prior DUS conviction (i.e. DUS 1si, DUS 2nd or DUS 3rd) is irrelevant to the seizure determination. It only matters that the driver has been convicted at least three (3) times of DUS within the five (5) year period. City Of Sumter Police Department v. One (1) 1992 Blue Mazda Truck (VIN#JM2UF1132N0294812, 330 S.C. 371, 498 S.E.2d 894 (S.C. App. 1998). 2

Section 56-5-6240 provides that the arresting officer must immediately deliver the vehicle to the chief of police who "shall by certified mail notify the registered owner of the confiscation within seventy-two hours." The Section further provides that the owner can request a hearing before the circuit court regarding the confiscation.