Saturday, June 12, 2010

The Unexpected Consequences of Minor Offenses

I often get phone calls from people who have been arrested or ticketed for relatively minor crimes like underage possession of alcohol, public urination, open container, and false ID.  Many of them are quick to tell me they probably won’t hire a criminal defense attorney, but they want to pick my brain anyway.   I’m not one to waste my time giving out free advice over the phone to someone who probably doesn’t have any intention of actually retaining me, but there is something I always point out to these people before I give them the come-in-for-a-consultation-or-get-off-the-phone-and-stop-wasting-my-time ultimatum: there are going to be unexpected consequences of your guilty plea.

What most people don’t understand about these magistrate-level offenses is that they have collateral consequences outside the fines and/or jail time contemplated by the statute defining the crime.  For example, the statutory penalty for underage possession of alcohol, S.C. Code Ann. § 63-19-2440(A), is a $100-$200 fine, or up to 30 days in jail, or both.  Not so bad, right (you're probably not going to get jail time, and if you do, the judge will probably make it a suspended sentence)?  However, the following subsection (B) notes that anyone convicted under that statute must also attend a DAODAS-approved alcohol and drug class, the cost of which shall not exceed $150.  Maybe a little bit of a hassle, but not too terrible.  But if you dig deeper and look at S.C. Code Ann. § 56-1-746, you’ll find that a person convicted of underage possession of alcohol will also have his driver’s license suspended for 120 days for a first offense, and for 1 year for a second or subsequent offense.  Those suspensions aren’t negotiable – they’re administrative procedures through the DMV, and the judge has no say in the matter.

When I explain these consequences to the potential client, I can usually hear the surprise through the phone.  Most have no clue they stand to lose their driver’s license for 4 months, or would be required to take and pay for a alcohol and drug class.  And with good reason they shouldn’t.  The question I’ve always had is why does the State suspend the driver’s licenses of people who are convicted of offenses which have nothing to do with driving?  I agree that it makes logical sense for the State to suspend the license of someone convicted of DUI in South Carolina.  But crimes like underage possession of alcohol, false ID, and controlled substance possession have no logical connection or nexus to driving.

Interestingly, because the license suspension provisions are considered administrative rather than criminal, there are few meaningful challenges that South Carolina criminal defense attorneys can make against them.  That’s why I counsel potential clients to look beyond the “direct” consequences and penalties of their magistrate-level offenses and make sure to fully understand the “indirect” or collateral consequences they’ll face upon conviction.  Often, the potential loss of a driver’s license is enough for a defendant to decide to hire an attorney to explore not only the merits of the charge, but also alternative programs such as PTI, AEP, or deferred prosecution.


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  3. what if the minor does not have a driver license