Who decides whether a police recruit has a valid South Carolina driver's license, and does part-time living in another state break residency?

Official title

Opinion addressing the state driver's license requirement under Section 23-23-60(B)(5)(b) of the South Carolina Code.

Requester

Requested by Mr. Lewis J. Swindler, Jr., Director, South Carolina Criminal Justice Academy.

Plain-English summary

The director of the South Carolina Criminal Justice Academy asked the Attorney General about S.C. Code § 23-23-60(B)(5)(b), which requires a candidate for law enforcement certification to hold a valid current state driver's license. The director laid out a specific situation: an officer who splits time between South Carolina and Georgia, whose wife lives in Georgia, who stays several nights a week with her and other nights at a friend's place in South Carolina, who is not on any lease, but who holds a valid South Carolina driver's license, registers and pays taxes on his vehicle in South Carolina, and uses a South Carolina address for his bank account and tax returns. The question was whether that establishes South Carolina residency sufficient to get a South Carolina license and be certified as an officer.

The Attorney General split the question. It would not decide whether this particular set of facts establishes residency, because, as it put it, residency is "a mixed question of law and fact," and the office "does not have the authority of a court or other fact-finding body" to adjudicate facts. The opinion noted, citing the 1917 case Clarke v. McCown, that intent is the controlling element of residency and that living, sleeping, or working elsewhere is not necessarily inconsistent with keeping an established residence. But applying that standard to a specific person is a factual determination the AG declined to make. It suggested the director consult the Department of Motor Vehicles, which decides who meets the residency requirement for a license.

What the office could answer was the legal question about who decides the evidence. Section 23-23-60(B)(5)(b) says the proof of a valid driver's license must be "satisfactory" to the director but does not spell out what specific documents are required. Reading the statute under the ordinary rules of construction, the AG concluded a court would find the section is silent on specific evidence and therefore grants the director discretionary authority to determine what evidence establishes that a candidate holds a valid South Carolina driver's license.

What this means for you

The Criminal Justice Academy director: Based on this opinion, you have discretion to decide what documentation satisfies you that a certification candidate holds a valid South Carolina driver's license, because the statute leaves the specifics to your judgment. The AG did not, however, tell you how to resolve any particular residency dispute.

Law enforcement agencies and recruits: The opinion does not set a bright-line residency test. Whether a given living arrangement supports a South Carolina license is a fact question, and the AG pointed to the DMV as the body that determines residency for licensing purposes.

Anyone weighing a residency question: The opinion is a reminder that under Clarke v. McCown, intent governs residency, and the absence of a lease or a spouse living out of state is not by itself disqualifying. But the AG stopped at stating the standard; it did not apply it to the facts.

Common questions

Did the AG decide whether this officer is a South Carolina resident?
No. It declined, explaining that residency is a mixed question of law and fact and that the office cannot adjudicate factual questions. It suggested consulting the DMV.

Who decides what proof a police candidate needs for the driver's license requirement?
The director of the South Carolina Criminal Justice Academy. The AG concluded § 23-23-60(B)(5)(b) is silent on the specific evidence, so it grants the director discretion to decide what is satisfactory.

Does living part-time in another state automatically break South Carolina residency?
Not necessarily. Citing Clarke v. McCown, the AG noted intent is the controlling element, and facts like sleeping elsewhere or a spouse living out of state are not necessarily inconsistent with keeping an established South Carolina residence. Whether residency exists in a given case is still a factual call.

Where can an agency get a residency determination for a specific person?
The opinion points to the South Carolina Department of Motor Vehicles, which determines whether a candidate meets the residency requirements to obtain a South Carolina driver's license.

Background and statutory framework

Under S.C. Code Ann. § 23-23-40(A), no law enforcement officer appointed on or after July 1, 2022, may enforce the laws or ordinances of the state without certification by the South Carolina Law Enforcement Training Council. Among the certification prerequisites, § 23-23-60(B)(5)(b) requires evidence satisfactory to the director that the candidate holds a valid current state driver's license with no disqualifying suspensions in the previous five years. A prior 2006 opinion concluded such candidates, other than correctional officers, must hold a South Carolina license.

Two DMV statutes frame the residency piece. S.C. Code Ann. § 56-1-40(7) bars the DMV from issuing or renewing a license for a non-resident (with a detailed provision for certain federally authorized temporary residents), and § 56-1-90(A)(5) lets the DMV require applicants to prove their principal residential address, with acceptable documents listed on DMV form MV-93.

On the residency standard, Clarke v. McCown, 107 S.C. 209, 92 S.E. 479 (1917), holds that residency is a mixed question of law and fact controlled by intent. On the statutory-discretion question, the AG applied the standard construction cases: Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000), Sloan v. Hardee, 371 S.C. 495, 640 S.E.2d 457 (2007), and Allen v. S.C. Pub. Emp. Ben. Auth., 411 S.C. 611, 769 S.E.2d 666 (2015), reading the statute as a whole and according to its purpose to conclude the silence on specific evidence leaves the matter to the director's discretion.

Citations

• S.C. Code Ann. § 23-23-60(B)(5)(b) (valid state driver's license requirement for officer certification)
• S.C. Code Ann. § 23-23-40(A) (certification required to enforce laws as a law enforcement officer)
• S.C. Code Ann. § 56-1-40(7) (DMV may not license non-residents)
• S.C. Code Ann. § 56-1-90(A)(5) (proof of principal residential address)
• Clarke v. McCown, 107 S.C. 209, 92 S.E. 479 (1917)
• Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000)
• Sloan v. Hardee, 371 S.C. 495, 640 S.E.2d 457 (2007)
• Allen v. S.C. Pub. Emp. Ben. Auth., 411 S.C. 611, 769 S.E.2d 666 (2015)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-the-state-driver-s-license-requirement-under-section-23-23-60-b-5-b-of-the-south-carolina-code/
• Original PDF: https://www.scag.gov/media/zktd5g51/03521226.pdf

Original opinion text

Alan Wilson
Attorney General

March 1, 2024

Lewis J. Swindler, Jr.
Director

South Carolina Criminal Justice Academy
5400 Broad River Road
Columbia, SC 29212

Dear Director Swindler:
We received your letter requesting an Attorney General’s opinion regarding section 23-23-

60(B)(5)(b) of the South Carolina Code (Supp. 2023). Specifically, you ask whether the factual
scenario set forth in your letter would establish South Carolina residency sufficient to obtain a
South Carolina driver’s license and be certified as a law enforcement officer. You presented the
following factual scenario:
The officer admitted he split time living in South Carolina and Georgia; his wife
lives in Georgia, and he spends several nights a week/weekend with her; the other
nights he spends at a friend’s residence in South Carolina; he does not have a record
of lease payments and is not on the lease; the officer possesses a valid South
Carolina driver’s license; his personal vehicle is registered in South Carolina; he
pays property taxes on his personal vehicle in the appropriate county; his bank

account uses the same South Carolina address; and his federal and state tax returns
use the South Carolina address.
Law/Analysis

With limited exception, “No law enforcement officer employed or appointed on or after July 1,
2022, by any public law enforcement agency in this State is authorized to enforce the laws or
ordinances of this State or any political subdivision thereof unless he has been certified as qualified

by the [South Carolina Law Enforcement Training Council], . .

S.C. Code Ann. § 23-23-40(A)

(Supp. 2023).

All city and county police departments, sheriffs' offices, state agencies, or other
employers of law enforcement officers having such officers as candidates for
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Lewis J. Swindler, Jr.
Page 2
March 1 , 2024

certification shall submit to the director [of the South Carolina Criminal Justice
Academy], for his confidential information and subsequent safekeeping, the
following . . . evidence satisfactory to the director that the candidate is a person of

good character.

This evidence must include, but is not limited to . . . evidence

satisfactory to the director that the candidate holds a valid current state driver's
license with no record during the previous five years for suspension of driver's
license as a result of driving under the influence of alcoholic beverages or
dangerous drugs, driving while impaired (or the equivalent), reckless homicide,
involuntary manslaughter, or leaving the scene of an accident.

S.C. Code Ann. § 23-23 -60(B)(5)(b) (Supp. 2023).

This Office has previously opined that a

candidate for certification as a law enforcement officer under this section, except for correctional
officers, must have a valid South Carolina driver’s license.

Op. S.C, Att’y Gen., 2006 WL

3199990 (S.C.A.G. October 19, 2006).

The South Carolina Department of Motor Vehicles (SCDMV) may only issue a state driver’s

license to South Carolina residents. 1 S.C. Code Ann. § 56-1-40(7) (“The Department of Motor
Vehicles may not issue a motor vehicle driver's license to or renew the driver's license of a person
. . . who is not a resident of South Carolina.”). “The Department of Motor Vehicles may require
every applicant to submit acceptable evidence when applying for or renewing a driver's license,
beginner's permit, or identification card that proves the applicants . . . principal residential address;
. . .” S.C. Code Ann. § 56-l-90(A)(5) (Supp. 2023). SCDMV form MV-93 sets forth the
documents that can be used to show proof of a South Carolina address; these include, but are not
limited to, state or federal tax records, a current letter of employment or payroll stub/statement,

and vehicle registration.

1 We note section 56-1-40(7) of the South Carolina Code (2018 & Supp. 2023) provides the term
“resident of South Carolina” includes, “all persons authorized by the United States Department of
Justice, the United States Immigration and Naturalization Service, or the United States Department

of State to live, work, or study in the United States on a temporary or permanent basis who present
documents indicating their intent to live, work, or study in South Carolina. These persons and
their dependents are eligible to obtain a motor vehicle driver's license or have one renewed
pursuant to this provision. A driver's license issued pursuant to this item to a person who is not a

lawful permanent resident of the United States shall expire on the later of: (1) the expiration date
of the driver's license applicant's authorized period of stay in the United States; or (2) the expiration
date of the driver's license applicant's employment authorization document. However, a driver's
license issued pursuant to this item is valid for at least one year but not more than eight years from
the date of its issue. Under this provision, a driver's license valid for not more than four years must
be issued upon payment of a fee of twelve dollars and fifty cents. A driver's license that is valid
for more than four years must be issued upon payment of a fee of twenty-five dollars. In addition,
a person pending adjustment of status who presents appropriate documentation to the Department
of Motor Vehicles shall be granted a one-year extension of his driver's license which is renewable
annually; ...”

Lewis J. Swindler, Jr.
Page 3

March 1, 2024

However, the question of residency is a mixed question of law and fact. Op. S.C, Att’y Gen., 1995
WL 803330 (S.C.A.G. March 8, 1995) (citing Clarke v. McCown, 107 S.C. 209, 92 S.E. 479

(1917)). In Clarke v. McCown, the Supreme Court of South Carolina held the intent of a person
is the controlling element in determining residency.
The residence of a person is a mixed question of law and fact; and the intention of
that person with regard to the matter is deemed the controlling element of decision.
His intention may be proved by his acts and declarations, and perhaps other
circumstances; but when these, taken all together, are not inconsistent with the

intention to retain an established residence, they are not sufficient in law to deprive
him of his rights thereunder, for it will be presumed that he intends to continue a
residence gained until the contrary is made to appear, because inestimable political
and valuable personal rights depend upon it. . . . That a man does not live or sleep
or have his washing done at the place where he has gained a residence, or that his
family lives elsewhere, or that he engages in employment elsewhere are facts not
necessarily inconsistent with his intention to continue his residence at that place

and when they are opposed by his oath, and that is corroborated by indisputable
circumstances, as in this case, showing that it was not his intention to change his
residence, the facts and circumstances stated become legally insufficient as
evidence upon which he may be deprived of the rights to which he is entitled by
reason of the residence gained.

Clarke, 107 S.C. at 213-14, 92 S.E. at 480-81. This Office is unable to issue an advisory opinion
to determine facts. As we have stated in prior opinions, “[b]ecause this Office does not have the

authority of a court or other fact-finding body, we are not able to adjudicate or investigate factual
questions.”

Op. S.C. Att'v Gen., 2006 WL 1207271 (S.C.A.G. April 4, 2006) (alteration in

original) (quoting Op. S.C. Att'y Gen., 1989 WL 406130 (April 3, 1989)). Therefore, because it
would involve a determination of facts, we cannot render an opinion as to whether the factual

scenario set forth in your letter would establish South Carolina residency sufficient to obtain a
South Carolina driver’s license and be certified as a law enforcement officer.

As to the sufficiency of the evidence required to establish that a candidate holds a valid South
Carolina driver’s license, section 23-23-60(B)(5)(b) provides it must be “satisfactory” to the
director of the South Carolina Criminal Justice Academy. When interpreting a statute, the primary

goal is to determine the General Assembly’s intent. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d
578, 581 (2000) (“The cardinal rule of statutory construction is to ascertain and effectuate the
intent of the legislature.”). “[I]n ascertaining the intent of the [L]egislature, a court should not
focus on any single section or provision but should consider the language of the statute as a whole.”
In re Hosp. Pricing Litig.. King v. AnMed Health, 377. S.C. 48, 59, 659 S.E.2d 131, 137 (2008).

“When a statute's terms are clear and unambiguous on their face, there is no room for statutory
construction and a court must apply the statute according to its literal meaning.” Sloan v. Hardee,

Lewis J. Swindler, Jr.
Page 4
March 1,2024

371 S.C. 495, 498, 640 S.E.2d 457, 459 (2007). “When interpreting a statute, the Court must read
the language in a sense which harmonizes with its subject matter and accords with its general

purpose." Allen v. S.C. Pub. Emp, Ben. Auth., 41 1 S.C. 611,616, 769 S.E.2d 666, 669 (2015).
Section 23-23-60(B)(5)(b) is silent as to what specific evidence should be presented to the director
and therefore, we believe a court would find the language of this section grants the director
discretionary authority to determine what evidence establishes a candidate holds a valid South
Carolina driver’s license.

Conclusion

We believe a court would find section 23-23-60(B)(5)(b) grants the director of the South Carolina
Criminal Justice Academy discretionary authority to determine what evidence establishes a
candidate holds a valid South Carolina driver’s license.

However, because it would involve a

determination of facts, we cannot render an opinion as to whether the factual scenario set forth in
your letter would establish South Carolina residency sufficient to obtain a South Carolina driver’s

license and be certified as a law enforcement officer.

You may wish to consult with the South

Carolina Department of Motor Vehicles to determine whether a specific candidate meets the

residency requirements to obtain a South Carolina driver's license.

Sincerely,

Elizabeth McCann

Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General