If a driver is convicted of a later DUI first, does an earlier pending DUI become a second offense?

Plain-English summary

A Greenwood municipal judge described a driver charged with DUI on January 1 and again on February 1. The driver pleaded guilty to the February charge while the January charge awaited a jury trial. The judge asked whether the earlier incident should still be tried as a first offense in municipal court.

The Attorney General answered in 2003 that the order of convictions controlled this enhancement question, rather than the order of the alleged conduct. It read Section 56-5-2940 and State v. Baucom as providing enhanced punishment for each subsequent DUI conviction. Because the driver would already have a DUI conviction when the remaining case was tried or sentenced, the AG said the enhanced penalty applied and the case should be disposed of in the Court of General Sessions.

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.

Common questions

Q: Could the earlier DUI incident count as a second offense if a later incident produced the first conviction? A: The 2003 AG said yes. It focused on the existing conviction at the time the pending charge was tried or sentenced.

Q: Did the date of the first arrest settle which charge was a first offense? A: No. The opinion said the statute emphasized a subsequent conviction, not necessarily the timing of the offense.

Q: Which court did the AG identify for the remaining charge? A: The Court of General Sessions, because the AG considered the charge subject to the enhanced penalty.

Background and statutory framework

Section 56-5-2940, as quoted in the opinion, treated a conviction, guilty or no-contest plea, or bail forfeiture for a qualifying impaired-driving violation as a prior offense for a subsequent prosecution. The AG relied on State v. Baucom for its reading of the statute's enhancement rule.

Citations and references

• Section 56-5-2940: the DUI penalty and prior-offense provision discussed in the opinion.
• State v. Baucom: South Carolina Supreme Court interpretation relied upon by the AG.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-19-2003-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/03/03march19miller.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
ATIDRNEY GENERAL

March 19, 2003

The Honorable B. Lee Miller
Municipal Court Judge
City of Greenwood
520 Monument Street
Post Office Box 40
Greenwood, South Carolina 29648-0040

Re:

Enhanced Penalty for Driving Under the Influence Convictions

Dear Judge Miller:
You have requested an opinion from this Office concerning the enhancement of punishment for second offense driving under the influence (DUI) convictions. By way of background, you have presented the following scenario: Person (X) is charged with DUI 151 on 1-1-03 This same person (X) is charged with DUI 1st on 2-1-03. Person (X) pleads guilty to the DUI 1st that occurred on 2-1-03 but had requested a jury trial on the DUI that occurred on 1-1-03 prior to the subsequent DUI arrest and conviction of the DUI that occurred on 2-1-03. Given this background, you ask "[i]n what court should the original DUI be tried ... General Sessions or Municipal Court." You have clarified your question by asking "should the first in time DUI be considered and dealt with as DUI first or DUI Second?" As you know, S.C. Code Ann. §56-5-2940 setsthepenaltyfora violations of the DUI statutes and provides for enhanced penalties for second and subsequent DUI convictions. In determining what constitutes a prior offense for purposes of enhancement, Section 56-5-2940 states: For the purposes of this chapter any conviction, entry of a plea of guilty or of no lo contendere, or forfeiture of bail for the violation of any law or ordinance of this or any other state or any municipality of this or any other state that prohibits any person from operating a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics shall constitute a prior offense for the purpose of any prosecution for any subsequent violation hereof.

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~/ERT C. DENNIS BUIWING

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POST 0mcE Box 11549

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COUJMBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

The Honorable B. Lee Miller

Page2
March 19, 2003

Our Supreme Court in State v. Baucom. 340 S.C. 339, 531 S.E.2d 922 (2000), interpreted the quoted portion of Section 56-5-2940 as" ... provid[ing] for enhanced punishment for each subsequent DUI conviction." As the Court's interpretation in Baucom indicates, the emphasis in Section 56-5-2940 is on the subsequent conviction, not necessarily the timing ofthe offense. Therefore, it is my opinion that regardless of the timing of the offense, if at the time of trial, sentencing, etc., a defendant has a prior conviction for DUI, that defendant would be subject to the enhanced penalties of Section 565-2940(2). Accordingly, the defendant's case should be disposed of in the Court of General Sessions.

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Sincerely,

Assistant Attorney General
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