Could South Carolina apply a higher DUI education fee to someone convicted before the fee changed?

Plain-English summary

A South Carolina drug and alcohol agency asked about a driver convicted of DUI a decade earlier who sought to regain driving privileges in 2001. When convicted, the education program fee had been $300; the agency now quoted $500 or fifty hours of community service. The driver argued that the change retroactively increased punishment.

The June 2001 informal opinion disagreed. It read the Alcohol and Drug Safety Action Program charge as payment for education or treatment services, with community service available for a person unable to pay. Because the provision was remedial rather than criminal punishment, the AG concluded that applying the then-current fee or alternative to this driver did not violate the state or federal bans on ex post facto laws.

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

Program administrators

The letter treated the increased service charge as cost recovery, pointing to the statute’s link between fees and services, its inability-to-pay provision, and required reporting of collections and expenses.

Drivers with older DUI convictions

For the described person seeking reinstatement years after conviction, the AG said the current fee or community-service alternative was not an unconstitutional increase in punishment. The letter did not set a general current fee.

Common questions

Did the new fee count as extra punishment for the old DUI? A: The AG said no. It characterized the charge as funding a remedial program rather than a criminal penalty.

Did the community-service alternative change that result? A: No. The letter expressly concluded that the then-current fee or the alternative could apply to the described person.

What did the statute say about someone unable to pay?
A: The version quoted by the AG said inability to pay could not itself deny services, and provided for community service arranged by the program.

Background and statutory framework

The opinion discussed S.C. Code Ann. §56-5-2990 and the constitutional rule that retroactive changes to criminal punishment can violate ex post facto clauses. It cited Collins v. Youngblood and State v. Huiett, then applied factors for distinguishing penal measures from remedial ones.

Citations and references

• S.C. Code Ann. §56-5-2990: the program-cost provision considered in the letter.
• Collins v. Youngblood and State v. Huiett: ex post facto standards discussed by the AG.

Official title

Regarding the application of the ex post facto clauses of the South Carolina and U.S. Constitutions to the recent increase in the fee for the Alcohol and Drug Safety Awareness Program (ADSAP) pursuant to amendments to S.C. Code Ann. § 56-5-2990.

Requester

Karl G. Rouse, Law Clerk, South Carolina Department of Alcohol and Other Drug Abuse Services

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-27-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01june-27-rouse.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

June 27, 2001

Mr. Karl G. Rouse, Law Clerk
South Carolina Department of Alcohol
and Other Drug Abuse Services
101 Business Park Boulevard
Columbia, South Carolina 29203-9498

Re: Your Letter of May 7, 2001
S.C. Code Ann. 56-5-2990
Dear Mr. Rouse:

In your above referenced letter, you request an opinion from this Office regarding the application of the ex post facto clauses of the South Carolina and U.S. Constitutions to the recent increase in the fee for the Alcohol and Drug Safety Awareness Program (ADSAP) pursuant to amendments to S.C. Code Ann. §56-5-2990. By way of background, you present the following:
... [A]n individual ... who was convicted of Driving Under the Influence (hereinafter, DUI) ten years ago, now wishes to regain the privilege to drive in South Carolina. The local office that (runs) ADSAP advised the individual that lie must pay a fee of five hundred dollars ($500.00) or perform fifty (50) hours of community service, as currently mandated by the statute. On the date of [the individuals] conviction (10/28/91 ), the statute required a fee of only three hundred dollars ($300.00) and there was no community service option. [The individual] feels that requiring him to pay the $500.00 fee or alternatively perform the community service violates the ex post facto clause of the U.S. and State Constitutions. You further indicate that your Office [DAODAS] advised the individual that requiring him to comply with the current ADSAP provision would not violate the ex post facto clause. This advice being based on the holding of Collins v. Youngblood, 497 U.S. 37 (1990) (ex post facto laws are those which "retroactively alter the definition of crimes or increase the punishment for criminal acts"). Obviously, the fee payable to the ADSAP program does not alter the definition of DUI in South Carolina. We must therefore examine the change in the fee in terms of a potential increase in the punishment for the crime. In South Carolina, our Supreme Court has held that, while a

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POST OFHCE 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

Mr. Rouse
Page 2
June 27, 2001

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change in the law may have some detrimental impact on those affected, "in order for the ex post facto clause to be applicable, the statute or the provision in question must be criminal and penal in purpose and nature." State v. Huiett, 302 S.C. 169, 394 S.E.2d 486 (1990). The United States Supreme Court has listed the following seven factors as "guideposts" in determining whether a statute is criminal or penal in nature: (1) whether the sanction involves an affirmative disability or restraint, (2) whether it has historically been regarded as a punishment, (3) whether it comes into play only on a finding of scienter, (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence, (5) whether the behavior to which it applies is already a crime, (6) whether an alternative purpose to which it may rationally be connected is assignable for it, and (7) whether it appears excessive in relation to alternative purpose assigned. Hudson v. United States, 522 U.S. 93 (1997). In applying the above seven-factor test to an ex post facto challenge to a statute allowing the recovery of incarceration costs from inmates, a Florida Appellate Court held that "[i]t follows then that the prohibition against ex post facto legislation cannot be applied to a civil statute that is entirely remedial ... [and] ... a law is not punitive merely because it can be applied in the context of a criminal case." State Department of Corrections v. Goad, 754 So.2d 95 (Fla.App. 2000). Similarly, other courts have held that statutes which are designed to "reimburse" the state for costs associated with providing services for offenders or to impose a "user fee" to offset the costs of services provided are not penal in character and can be applied retroactively. See Taylor v. State of Rhode Island, 101 F.3d 780 (I st Cir. 1996); and People v. Riverg, 65 Cal.App.4th 705; 76 Cal.Rptr.2d 703 (Calif.App. 1998). S.C. Code Ann. §56-5-2990 is clearly remedial in purpose and nature. Subsection (C) of 56-5-2990 provides as follows: The Department of Alcohol and Other Drug Abuse Services shall determine the cost of services provided by each certified Alcohol and Drug Safety Action Program. Each applicant shall bear the cost of services recommended in the applicant's plan of education or treatment. The cost may not exceed five hundred dollars for education services, two thousand dollars for treatment services, and two thousand five hundred dollars in total for all services. No applicant may be denied services due to an inability to pay. Inability to pay for services may not be used as a factor in determining if the applicant has successfully completed services. An applicant who is unable to pay for services shall perform fifty hours of community service as arranged by the Alcohol and Drug Safety Action Program, which may use the completion of this community service as a factor in determining if the applicant has successfully completed services. The Department of Alcohol and Other Drug Abuse Services will report annually to the House Ways and Means Committee and Senate Finance Committee on the number of first and multiple offenders completing the Alcohol and Drug Safety Action Program, the amount of fees collected and expenses

Mr. Rouse
Page 3
June 27, 2001

incurred by each Alcohol and Drug Safety Action Program, and the number of community service hours performed in lieu of payment. The fees are specifically tied to the services provided and the intent is for the "applicant to bear the cost of services." Further, DAODAS is to report their collections and expenses to the appropriate financial committees of the General Assembly for evaluation. This is another clear indication that the fees are in place to offset the substantial cost of providing the ADSAP service. Moreover, it is implicit in the provisions in question that the underlying goal of the General Assembly is the safety of the State's highways, not additional punishment of offenders.

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Based on the foregoing, it is my opinion that applying the current fee or community service alternative for ADSAP to the individual in question is not a violation of this State's nor the United State's constitutional provisions against ex post facto laws. 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.

Assistant Attorney General
DK.Alan