Could a DUI charge simply be reduced to reckless driving, and must a judge explain a dismissal on the citation?

Plain-English summary

The Attorney General said a DUI charge could not simply be reduced to reckless driving because reckless driving was a separate offense, not a lesser included DUI offense. A prosecutor could dismiss or nolle prosequi a DUI charge when the evidence did not justify prosecution and issue a separate traffic ticket or warrant for reckless driving if supported by probable cause. The office knew of no statute requiring the judge to explain the dismissal on the citation, but cited an AG directive requiring a prosecuting officer who nolle prossed a DUI charge to announce it in court and write the reasons on the ticket or warrant.

Currency note

This opinion was issued in 2003. 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

Prosecutors and courts

The opinion said a magistrate or municipal court needed a separate reckless-driving charge before accepting a plea to that offense. It also described the AG's then-operative policy against changing a supported DUI charge merely to obtain a plea and avoid trial.

Officers and defendants

The office distinguished a judge's statutory duties from a prosecutor's duties under its directive. It said the new reckless-driving charge needed probable cause.

Common questions

Is reckless driving a lesser included DUI offense?
No, according to the cited South Carolina Supreme Court decision.

Did the AG identify a statute requiring a judge to explain a DUI dismissal on the ticket?
No. It identified a separate directive for the prosecuting officer when the charge was nolle prossed.

Background and statutory framework

A police captain asked about reducing a DUI charge and recording reasons when it was dismissed. The AG relied on State v. Fennell, prior opinions, and its 1990 and 1995 prosecution directives.

Citations and references

The opinion cited State v. Fennell and earlier South Carolina AG opinions and directives.

Official title

On the legality of the reduction of a driving under the influence charge to a reckless driving charge.

Requester

Captain John M. Hall, Travelers Rest Police Department.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-5-2003/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/01/Hall-J.-8-5-2003-01204746xD2C78.pdf

Original opinion text

Captain John M. Hail, 2003 WL 21998994(2003)

2003 WL 21998994(S.C.A.G.)

Office of the Attorney General
State of South Carolina

August 5,2003

Re: Driving Under the Influence/Reckless Driving

*1 Captain John M. Hall
Travelers Rest Police Department
6711 State Park Road

Travelers Rest, South Carolina 29690

Dear Captain Hall:

You have requested an advisory opinion from this Office regarding the legality of the reduction of a driving under the influence charge to a reckless driving charge. You have also asked if the presiding judge is required to explain all of the relevant details on the back of the citation when a DUI charge is either dismissed or nol prossed.

This Office has opined on several occasions that a DUI charge cannot be reduced to reckless driving. Ops. S.C. Attn. Gen., dated January 12,1982; March 10,1972. The South Carolina Supreme Court has recognized that reckless driving is not a lesser included offense ofdriving imder the influence, and that DUI and reckless driving are separate and distinct offenses. State v. Fennell. 263 S.C. 216, 209 S.E.2d 433(1974). A magistrate or a municipal court would not therefore have jurisdiction to accept a guilty plea for reckless driving when the accused has been charged with driving under the influence unless a separate uniform traffic ticket or warrant charging reckless driving has been issued. State v. Fennell. supra. Moreover,a Judge does not have the authority to dismiss the driving under the influence charge on his own motion except at the instance of the prosecuting official. Id. Along those lines, this Office has previously opined that"... once a ticket for DUI is issued, the charge can only be changed by nol prossing the original ticket and issuing a new one on the alternative charge." See Op. S.C. Attv. Gen., dated November 7,1996(copy enclosed). In the January 12, 1982 opinion, we opined as to the proper procedure for charging an individual with reckless driving who is currently being charged with driving under the influence: A driving under the influence charge may be [nol] prossed or dismissed by the proper prosecuting officials, as any other criminal case,where the evidence does notjustify the prosecution.The defendant may be charged with another offense on a separate warrant or traffic summons ifevidence is available to support the charge.

Ofcourse in order to issue a separate warrant or summons for reckless driving,the charge must be supported by probable cause.

It should also be noted that, as a matter of policy and based on the Attorney General's Constitutional authority as this State's chief prosecuting officer, this Office has issued directives regarding the prosecution of driving under the influence cases in magistrates' and municipal courts. The latest directive, issued in December of 1995(copy attached) which reaffirms similar directives issued in 1977 and 1990, generally provides that "[i]f the evidence available to the prosecution is sufficient to justify the arrest of the defendant, subsequent prosecution shall be for the DUI charge made originally by the traffic officer. No such charge shall be changed to another offense for the purpose of obtaining a plea and avoiding trial." The 1990 directive also provides that "[n]o charge ofDUI will be nol prossed by the person in charge

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Captain John M. Hall, 2003 WL 21998994 (2003)

of the prosecution unless it shall appear that the evidence to support the charge is not available or is of such nature that there is not a reasonable chance of conviction."

*2 Regarding your second question, this Office is aware of no statute that would require a presiding judge to give a

detailed explanation of the facts surrounding the dismissal on the back of a traffic summons where a DUI charge is either dismissed or nolle prossed. Our 1990 directive referenced above, however, does state that if a prosecuting officer nol prossess a DUI charge, that officer shall announce the action in open court and "... shall set forth the reasons for the

nol pros in writing on the arrest warrant or on the back of the ... uniform traffic ticket, and shall sign his name thereto." I trust that the above sufficiently addresses your questions.

Sincerely,
David K. Avant
Assistant Attorney General

2003 WL 21998994 (S.CLA.G.)

F.ud of Document

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<1 2016 Thomson Reuters. No claim to original U.S. Government Works.

'ft 2016 Thomson Reuters. No claim to original U.S. Government Works.

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