Driving under the influence (DUI) or driving with an unlawful alcohol concentration (DUAC) may be classified as a misdemeanor or felony offense depending on how many prior convictions the person has for DUI within the last ten years.
Felony DUI is a different criminal offense than DUI or DUAC, is classified as a felony, and has much more severe penalties.
Below, I’ll go over the basics of when DUI is a felony in SC, including:
- The difference between a misdemeanor and felony DUI in SC,
- Why felony DUI is not the same as a DUI that is a felony,
- The potential penalties for felony DUI.
The Difference Between Misdemeanor and Felony DUI in SC
Is DUI a felony offense in SC?
It could be, depending on how many prior convictions you have – if you are charged with your 4th or greater DUI or DUAC within ten years, then you are charged with a “DUI that is a felony.” That’s not to be confused with “felony DUI,” however, which is a separate criminal offense charged when there are serious injuries or death in a DUI-related traffic accident.
DUI 1st Offense is a Misdemeanor
Most criminal laws in SC specify whether the offense is a misdemeanor or felony as well as the potential penalties a defendant will face if convicted. SC Code § 56-5-2930, however, does not say whether DUI or DUAC is a felony or a misdemeanor.
DUI 1st offense is a misdemeanor, however:
- SC Code Section 56-5-6190 says that any violation of SC traffic laws found in Chapter 5 of Title 56 is a misdemeanor unless it is specifically stated that it is a felony, and
- SC Code § 16-1-10(C) says that all offenses with a potential penalty of less than one year are misdemeanors (DUI 1st offense has a maximum potential penalty of 90 days in jail).
DUI 2nd Offense is a Misdemeanor
DUI second offense is also a misdemeanor offense because it is listed as a Class C misdemeanor in SC Code § 16-1-100(C):
(C) The following offenses are Class C misdemeanors and the maximum terms established for a Class C misdemeanor, not more than one year, as set forth in Section 16-1-20(A), apply:
… Unlawful for narcotic users or persons under influence of liquor, drugs or like substances to drive (See Section 56-5-2940(2))-Second offense 56-5-2933 Driving with an unlawful alcohol concentration, second offense..
DUI 3rd Offense is a Misdemeanor
DUI third offense is a Class A misdemeanor because it is listed in SC Code § 16-1-100(A):
(A) The following offenses are Class A misdemeanors and the maximum terms established for a Class A misdemeanor, not more than three years, as set forth in Section 16-1-20(A), apply:
…56-5-2930 Unlawful for persons to drive under influence of liquor, drugs, or like substances (See Section 56-5-2940(3))-Third offense 56-5-2933 Driving with an unlawful alcohol concentration, third offense…
DUI 4th or Subsequent Offense is a Felony
If you have three or more DUI or DUAC convictions in the last ten years, and you are charged with DUI again, you are now facing a felony charge for driving under the influence – it’s not “felony DUI,” but it is “a DUI that is a felony.”
SC Code § 16-1-90(F) says that DUI or DUAC 4th or subsequent is a Class F felony:
…(F) The following offenses are Class F felonies and the maximum terms established for a Class F felony, not more than five years, as set forth in Section 16-1-20(A), apply:
… results 56-5-2930 Driving under influence of liquor, drugs, or like substances unlawful (See Section 56-5-2940(4)) 56-5-2933 Driving with an unlawful alcohol concentration, fourth or subsequent offense 56-5-4975(B)…
What’s the maximum potential sentence for a DUI 4th or subsequent in SC?
SC Code § 56-5-2930 says that the maximum penalty for a DUI 4th or subsequent offense is seven years in prison, but SC Code § 16-1-90(F) says that the maximum term of imprisonment for a Class F felony applies – which is five years.
In any case where a person is being sentenced for DUI 4th or subsequent offense, their attorney should argue that the maximum possible sentence for the violation is five years and not seven – when a criminal statute is ambiguous, the conflict should always be resolved in favor of the defendant as a matter of Due Process.
Felony DUI is a Separate Offense
“Felony DUI” is a separate criminal offense from “ordinary” DUI or DUAC charges – it requires proof of different elements for a conviction, and the potential penalties are much more severe because a felony DUI involves either great bodily injury or someone’s death that resulted from driving while intoxicated.
What is Felony DUI?
SC Code § 56-5-2945 defines felony DUI in SC – to get a conviction for felony DUI, the state must prove beyond any reasonable doubt that:
- You were driving a motor vehicle,
- You were under the influence while driving, and
- Your negligence resulted in great bodily injury to another person or someone’s death.
“Great bodily injury” is defined as:
…bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
What are the Penalties for Felony DUI in SC?
Felony DUI resulting in great bodily injury carries a mandatory minimum sentence of no less than 30 days and up to 15 years in prison.
Felony DUI resulting in death carries a mandatory minimum sentence of no less than one year and up to 25 years in prison.
DUI Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The Myrtle Beach and Columbia, SC criminal defense lawyers at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC, including driving under the influence charges and implied consent hearings.
We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.
