If someone is caught driving in South Carolina without a driver's license and they have a prior conviction that would have suspended a license they never had, what should they be charged with?

Plain-English summary

Abbeville County Chief Magistrate Tiffani Tyner Mitchum asked which charge applies when someone drives without a license after a conviction that would have required suspension or revocation of a license or driving privilege, had the person possessed one.

The AG says § 56-1-450 is the proper charge for that situation. Section 56-1-460 concerns driving after a license was actually canceled, suspended, or revoked. The AG reasons that a license never issued cannot be suspended. Section 56-1-440 addresses driving without a license when the driver has no prior conviction triggering mandatory suspension or revocation.

The office agrees with its May 1972 opinion on this statutory distinction. It also summarizes two 1971 opinions involving a different sequence: a never-licensed person convicted of an offense triggering the bar, then caught driving again while barred. Those opinions said § 56-1-460 applies to subsequent offenses in that scenario. The current opinion says its answer is advisory and makes no finding about what a magistrate may do if a different charge is filed.

What this means for you

If you handle a driving-without-license case

The AG's analysis turns on whether the person ever had a license and whether an earlier conviction made suspension or revocation mandatory. It identifies § 56-1-450 for a never-licensed driver with the qualifying prior conviction described in the request. The opinion does not decide the facts or procedural options in a particular case.

If you have been charged

The statutes distinguish ordinary unlicensed driving, driving after an actual license suspension or revocation, and unlicensed driving after a conviction that would have required suspension or revocation. The AG's opinion explains which provision it reads to govern the requested scenario. It does not decide your individual charge or a court's jurisdiction over it.

Common questions

Why does the AG reject § 56-1-460 for the requested scenario?

The opinion says subsections (A)(1) and (A)(2) concern a license that was issued and later canceled, suspended, or revoked. A never-issued license cannot be suspended.

What does § 56-1-450 do?

It addresses a driver without a license who previously committed an offense requiring suspension or revocation of a license or driving privilege. The opinion quotes its rule delaying when a license may be issued as though the person had been licensed at the time of that earlier offense.

Did the AG reconsider its 1972 answer after reviewing amendments?

It agrees with the 1972 opinion on textual grounds. This opinion does not review a history of amendments or determine that statutory wording has remained unchanged since a particular year.

What about someone caught driving again during the statutory bar?

The AG describes two 1971 opinions that treated later offenses during the period of ineligibility under § 56-1-460. It says those opinions address a different factual sequence from the current request.

Is this binding on a magistrate?

No. The AG expressly calls the opinion advisory and declines to address the magistrate's authority when a different charge is filed.

Background and statutory framework

Section 56-1-20 requires a valid driver's license to drive on a South Carolina public highway, with penalties in § 56-1-440. Section 56-1-460 addresses driving after a license is canceled, suspended, or revoked. Section 56-1-450 addresses a person driving without a license after a prior offense that would require suspension or revocation of a license or driving privilege.

The AG also quotes State v. Collins to explain that driving is a statutory privilege and that some permits can grant a limited privilege without a regular license. That distinction supports its reading of the three charging provisions.

Citations and references

• S.C. Code Ann. §§ 56-1-20, 56-1-440, 56-1-450, 56-1-460: driving and charging provisions discussed by the AG.
• State v. Collins, 253 S.C. 358, 170 S.E.2d 667 (1969): statutory driving privilege.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-regarding-the-proper-charge-for-an-individual-who-drives-in-south-carolina-without-a-license-and-has-a-prior-conviction-requiring-the-suspension-of-his-license/
• Original PDF: https://www.scag.gov/media/c4gbnp3e/t-mitchum-final.pdf

Original opinion text

ALAN WILSON
ATTORNEY GENERAL

December 18, 2025

The Honorable Tiffani Tyner Mitchum
Chief Magistrate
Abbeville County Magistrate Court
PO Box 1156
Abbeville, SC 29620

Dear Chief Magistrate Mitchum:

Attorney General Alan Wilson referred your letter to the Opinions section for a response. You ask what the appropriate charge is for a person who drives a motor vehicle on a public road in South Carolina without a valid driver's license and who has been previously convicted of an offence that would have resulted in the suspension of their license, if they possessed one at the time of the conviction. Additionally, you request clarity regarding the distinction between a person's driver's license and the privilege to operate a vehicle.

You advise that you have had numerous discussions with law enforcement regarding this matter, and you included two email exchanges with Court Administration regarding this question.

Law/Analysis

We begin by noting that this opinion is purely advisory. "Because 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'y Gen., 2003 WL 21040130 at 1 (Feb. 19, 2003) (quoting Op. S.C. Att'y Gen., Oct. 10, 1985, at 2 and Sept. 3, 1999, at *2). Our advice is not binding on you, or any other entity.

As you describe in your letter, there are three sections which provide penalties for driving on a public road in South Carolina without a current license. Section 56-1-20 makes it unlawful to "drive any motor vehicle upon a highway in this State unless such person has a valid motor vehicle driver's license issued to him under the provisions of this article." S.C. Code Ann. § 56-1-20 (Supp. 2025). The penalties for violating Section 56-1-20 are found in Section 56-1-440(A), which provides:

> A person who drives a motor vehicle on a public highway of this State without a driver's license in violation of Section 56-1-20 is guilty of a misdemeanor and, upon conviction of a first offense, must be fined not less than fifty dollars nor more than one hundred dollars or imprisoned for thirty days and, upon conviction of a second offense, be fined five hundred dollars or imprisoned for forty-five days, or both, and for a third and subsequent offense must be imprisoned for not less than forty-five days nor more than six months.

S.C. Code Ann. § 56-1-440(A) (2018). Section 56-1-460 establishes the penalties for driving a motor vehicle on a public highway of this State while a person's license to drive is canceled, suspended, or revoked. Id. § 56-1-460(A) (2018). Among those penalties is the automatic extension of the suspension of the individual's driver's license. Id. § 56-1-460(B). Finally, Section 56-1-450 provides penalties for an individual driving a motor vehicle on a public highway of this State without a license who has previously been convicted of a violation for which suspension or revocation of a "driver's license or privilege to operate is made mandatory." Id. § 56-1-450 (2018). Under Section 56-1-450, these penalties include a fine or imprisonment, and:

> [T]he period of time during which the Department may not issue to him a driver's license or find that he is properly qualified to operate as a nonresident shall be extended as provided in Section 56-1-460. Such license shall not be issued nor shall such findings be made until the lapse of the period of time counting from the date of conviction during which such person's license would have been subject to suspension or revocation had he been properly licensed at the time of such offense.

S.C. Code Ann. § 56-1-450. Put differently, Section 56-1-450 prospectively bars an individual from obtaining a driver's license for an amount of time equal to the time for mandatory license suspension so that an individual cannot avoid the period of mandatory suspension found in Section 56-1-460 by not having a license which may be suspended.

It is the opinion of this Office that an individual who drives on a public highway while their driver's license has been cancelled, suspended, or revoked, should be charged and prosecuted pursuant to Section 56-1-460. In contrast, an individual who drives on a public highway and does not have a driver's license and has not been previously convicted of a violation for which suspension or revocation of a "driver's license or privilege to operate is made mandatory" should be charged and prosecuted pursuant to Section 56-1-440.

We turn then to an individual who does not have a driver's license and who has been convicted of a violation for which suspension or revocation of a "driver's license or privilege to operate is made mandatory." We agree with the analysis of Court Administration that such an individual should not be prosecuted under Section 56-1-460. As previously stated by this Office, the correct charge in this instance is under Section 56-1-450. Op. S.C. Att'y Gen., 1972 WL 20454 (May 18, 1972). Our prior opinion reads:

> It would be improper to charge the unlicensed driver with [violating Section 56-1-460], as this section applies to persons whose license to drive or privilege to drive is cancelled. A driver who has never been licensed by any state has neither a license nor a privilege to drive, as no privilege has ever been accorded him. It follows, therefore, if no privilege has ever been granted, then it cannot be cancelled.

Id. at *1. Section 56-1-460(A)(1) only applies to individuals whose "license to drive is canceled, suspended, or revoked." Section 56-1-460(A)(2) only applies to a person whose "license has been suspended or revoked." Both of these subsections require a license to have been issued and then suspended, revoked, or — in the case of 460(A)(1) — canceled. Something which has never been issued cannot be suspended; therefore, an individual who has never had a license cannot be convicted under Section 56-1-460. Instead, it appears that the proper charge for an individual who does not have a driver's license and who has been convicted of a violation for which suspension or revocation of a "driver's license or privilege to operate is made mandatory" is a violation of Section 56-1-450.

Your letter also references our January 28, 1971, and February 1, 1971, opinions. Op. S.C. Att'y Gen., 1971 WL 17455 (Jan. 28, 1971); Op. S.C. Att'y Gen., 1971 WL 17456 (Feb. 1, 1971). These opinions address a slightly different factual scenario. Id. They address an individual who is convicted of driving without a driver's license after having been convicted of a violation for which suspension or revocation of a driver's license or privilege to operate is made mandatory and then is subsequently caught driving without a license again. Id. Both opinions state that in the instance of a repeat offender who has never been licensed, has been convicted of a violation for which suspension or revocation of a driver's license or privilege is mandatory, and is caught driving without a license again during the time when he is barred from obtaining a license, he should be subject to the provisions of Section 56-1-460 for his subsequent offenses. Id.

Regarding your final question of the "privilege" to drive. As discussed in State v. Collins:

> No one has an absolute right to operate a motor vehicle upon a public highway. The operation of such is a privilege which may be and has been extended to individuals under various circumstances, by sundry statutory provisions of this State. See generally 7 Am. Jur. (2d) 668, Automobiles and Highway Traffic, Sec. 97; S.C. State Highway Dept. v. Harbin, 226 S.C. 585, 86 S.E.2d 466 (1955). Code Sec. 46-153 exempts various persons from the statutory requirement of a license to drive a motor vehicle and, hence, accords them the privilege of operating a vehicle without a license. Sec. 46-157 provides for a temporary driver's permit and thus grants, within the purview of that section, the privilege to operate a motor vehicle without a regular driver's license. Sec. 46-156 authorizes a student's instruction permit extending, within the limitations of that section, the privilege to drive a motor vehicle without a driver's license. Likewise, Sec. 46-155 provides for the issuance of a beginner's permit which grants, within the limitations of that section, the privilege to drive a motor vehicle without a driver's license.

253 S.C. 358, 361, 170 S.E.2d 667, 668 (1969). While Collins discusses sections from the 1962 Code of Laws of South Carolina, those sections are still in effect. See S.C. Code Ann. § 56-1-30 (codifying Section 46-157); § 56-1-140 (codifying Section 46-156); § 56-1-50 (codifying 46-155). Thus, while the overwhelming majority of drivers must obtain a driver's license from the Department of Motor Vehicles in order to lawfully drive on a public highway in South Carolina, there are certain exceptions which allow an individual to exercise this privilege without first obtaining a driver's license.

Conclusion

It is this Office's opinion, as it was in our prior opinion of May 18, 1972, that the proper charge for an individual who does not have a driver's license and who has been convicted of a violation for which suspension or revocation of a "driver's license or privilege to operate is made mandatory" is a violation of Section 56-1-450.

We remind you that this opinion is purely advisory, and we make no commentary on what actions are within your jurisdiction as a magistrate should you encounter a case in which an individual falling into this factual scenario is charged differently.

Sincerely,

David Leggett
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General Emeritus