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FREQUENTLY ASKED QUESTIONS

Here are general legal questions that we are commonly asked.

The “Castle Doctrine” allows a law-abiding citizen to protect themselves and others from intruders and attackers without the fear of facing a criminal trial or civil action.  This doctrine extends not only to a person’s home, but also their place of business and an occupied vehicle.  The South Carolina legislature codified the Castle Doctrine in 2006.  It is titled, “Protection of Persons and Property Act.”

This Act also includes what is commonly known as “Stand Your Ground” law.  (§16-11-440(C), a person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be, including, but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or another person or to prevent the commission of a violent crime as defined in Section 16‑1‑60.)

The South Carolina Supreme Court has emphasized that immunity under the Act “is predicated on an accused demonstrating the elements of self-defense to the satisfaction of the trial court by the preponderance of the evidence,” save the duty to retreat.  State v. Curry, 406 S.C. 371-72, 752 S.E.2d 266-67 (2013).  There are four elements required by law to establish a case of self-defense:

  1. The defendant must be without fault in bringing on the difficulty.
  1. The defendant must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger.
  1. If his defense is based upon his belief of imminent danger, a reasonably prudent man of ordinary firmness and courage would have entertained the same belief. If the defendant actually was in imminent danger, the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike the fatal blow in order to save himself from serious bodily harm of losing his own life.
  1. The defendant has no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance.

Again, the last element, the duty to retreat, need not be shown when seeking immunity under the Act.  Id. at 371, 752 S.E.2d at 266.  Below is the Protection of Persons and Property Act in its entirety.

Protection of Persons and Property

SECTION 16‑11‑410. Citation of article.

This article may be cited as the “Protection of Persons and Property Act”.

SECTION 16‑11‑420. Intent and findings of General Assembly.

(A) It is the intent of the General Assembly to codify the common law Castle Doctrine which recognizes that a person’s home is his castle and to extend the doctrine to include an occupied vehicle and the person’s place of business.

(B) The General Assembly finds that it is proper for law‑abiding citizens to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others.

(C) The General Assembly finds that Section 20, Article I of the South Carolina Constitution guarantees the right of the people to bear arms, and this right shall not be infringed.

(D) The General Assembly finds that persons residing in or visiting this State have a right to expect to remain unmolested and safe within their homes, businesses, and vehicles.

(E) The General Assembly finds that no person or victim of crime should be required to surrender his personal safety to a criminal, nor should a person or victim be required to needlessly retreat in the face of intrusion or attack.

SECTION 16‑11‑430. Definitions.

As used in this article, the term:

(1) “Dwelling” means a building or conveyance of any kind, including an attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging there at night.

(2) “Great bodily injury” means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of a bodily member or organ.

(3) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(4) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

SECTION 16‑11‑440. Presumption of reasonable fear of imminent peril when using deadly force against another unlawfully entering residence, occupied vehicle or place of business.

(A) A person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person:

(1) against whom the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if he removes or is attempting to remove another person against his will from the dwelling, residence, or occupied vehicle; and

(2) who uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred.

(B) The presumption provided in subsection (A) does not apply if the person:

(1) against whom the deadly force is used has the right to be in or is a lawful resident of the dwelling, residence, or occupied vehicle including, but not limited to, an owner, lessee, or titleholder; or

(2) sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship, of the person against whom the deadly force is used; or

(3) who uses deadly force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(4) against whom the deadly force is used is a law enforcement officer who enters or attempts to enter a dwelling, residence, or occupied vehicle in the performance of his official duties, and he identifies himself in accordance with applicable law or the person using force knows or reasonably should have known that the person entering or attempting to enter is a law enforcement officer.

(C) A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be, including, but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or another person or to prevent the commission of a violent crime as defined in Section 16‑1‑60.

(D) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or a violent crime as defined in Section 16‑1‑60.

(E) A person who by force enters or attempts to enter a dwelling, residence, or occupied vehicle in violation of an order of protection, restraining order, or condition of bond is presumed to be doing so with the intent to commit an unlawful act regardless of whether the person is a resident of the dwelling, residence, or occupied vehicle including, but not limited to, an owner, lessee, or titleholder.

SECTION 16‑11‑450. Immunity from criminal prosecution and civil actions; law enforcement officer exception; costs.

(A) A person who uses deadly force as permitted by the provisions of this article or another applicable provision of law is justified in using deadly force and is immune from criminal prosecution and civil action for the use of deadly force, unless the person against whom deadly force was used is a law enforcement officer acting in the performance of his official duties and he identifies himself in accordance with applicable law or the person using deadly force knows or reasonably should have known that the person is a law enforcement officer.

(B) A law enforcement agency may use standard procedures for investigating the use of deadly force as described in subsection (A), but the agency may not arrest the person for using deadly force unless probable cause exists that the deadly force used was unlawful.

(C) The court shall award reasonable attorneys’ fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of a civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (A).

South Carolina’s penalties for Minor in Possession of Alcohol are actually quite severe. In 2011, the legislature updated this law from a 16 Title to a 63 Title, so SC Code of Laws 63-19-2440 governs it now. The penalties listed in that section include: fines anywhere from $100 to $2,450 (!) and 30 days in jail and mandatory “alcohol and drug classes” which amount to hundreds of dollars and a mandatory 120 day driver’s license suspension (required by SC Code of Laws 56-1-746). Of course, the fine and jail time are at the judge’s discretion, but there is no discretion when it comes to either the classes or the driver’s license suspension. And that’s just for a first offense. A second offense will increase the minimum fine greatly and the suspension will become a mandatory year. So, if you’re found guilty of MiPoA you’ll pay a lot of money and either bum a ride for months or risk going to jail and being charged with Driving Under Suspension (which will add yet another mandatory suspension period to your license). In addition, even after all of the suspensions are over, they remain on your driving record for up to 10 years which means any future employer will easily be able to find them during a background check. That said, you should call and ask what can be done to prevent all of this.

That’s depends on the specific circumstances. The law requires that your vehicle must be in motion in order to be found guilty of DUI. But it’s important to understand that the police can arrest you for a crime even if they don’t have enough evidence to convince a judge or jury that you’re guilty. This is because the police only need “probable cause” in order to make an arrest. Probable cause is not the same as “proof beyond a reasonable doubt.” With that in mind, if a cop has “probable cause” to believe that you drove your car while under the influence, then you can be arrested for DUI even if you’re just sitting in your car. Remember, however, that before you can be found guilty, the cop will have to prove – beyond a reasonable doubt – that you actually drove your vehicle while you were under the influence. So you can be arrested for DUI – even if your car is parked – but the cop will most likely have a much harder time in court, especially if you hire an experienced defense attorney who can pick apart the cop’s probable cause.

The penalties and fines are the same for DUI as they are for DUAC. The difference is in how a cop plans to testify against you in court. If a cop charges you with DUI, they have to testify that your ability to drive was “materially and appreciably impaired” in order to prove you guilty. If a cop charges you with DUAC, they only have to testify that your alcohol content was “over the limit” of 0.08% in order to prove you guilty. In theory, it’s easier for you to be found guilty of DUAC than it is to be found guilty of DUI… in theory. The only people who are charged with DUAC are those who actually submit a breath or blood sample to the cop for testing purposes. If you don’t submit a sample, you cannot be charged with DUAC.

The penalties for DUAC are exactly the same as those for DUI (see above). Your driving record will show a DUAC charge for 10 years, just as if you were charged with DUI. Most insurance companies and employers look at them the same way. The only real difference is that – currently – a DUAC charge will not show up on your criminal history (aka “rap sheet”) whereas a DUI charge will. However, this is expected to change in the near future. Also, because either charge stays on your driving record for 10 years, it doesn’t matter that your criminal history won’t show it… it will still be easy to find.

The short answer is: DUI penalties in SC are numerous and severe and, to make matters worse, they vary depending on the jurisdiction in which you were charged. This is because court fines and assessments vary. You should call Attorney Joyner at 843.253.5316 with the specifics of your case for a more accurate consultation. The long answer is: Generally speaking, in this area of SC, your minimum fine for a 1st offense DUI will be between $997 and $2,267, depending on your Datamaster BAC results. Worse still, if you’re found guilty, the law requires a minimum 48 hours of either jail time or community service. You could face up to a whole 30 days in jail! On top of all that, you will lose your driver’s license for at least one month, possibly 6 months. There are ways you can fight to keep your license or to get a temporary alcohol license, but you’ll face state-imposed fees amounting to hundreds of dollars just to have the opportunity, and you might be denied a license anyway! On top of that, you face mandated “alcohol and drug” classes that also amount to hundreds of dollars. And it keeps getting worse because most insurance companies – if they don’t completely cancel your coverage altogether – will probably increase your rates for up to 3 years. Finally, and perhaps worst of all, because a DUI conviction stays on your driving record for no less than 10 years, future potential employers and insurance companies will easily be able to find out about the one time you were accused of this crime. If you’ve been charged with DUI, you need to fight it, but because the issues are so complex, you should not fight it alone!

If you tell your boss that you got a moving violation ticket behind the wheel of a company vehicle, many companies will immediately fire you. They won’t even wait for the court to render a “guilty” or “not guilty” verdict. That’s bad enough, but it gets worse. You still have a ticket to deal with. If you’re found guilty in court, that ticket will go on your CDL driving record. So when you apply to another company, they’ll pull your driving record and see it. Most likely, they won’t hire you because of it. This means you need to fight the ticket in court. That means you have to go to court. Do not try to navigate the complexities of the legal system alone. We are experienced in fighting traffic tickets. We’ll do everything possible to get your ticket dismissed completely. If that’s not possible, we’ll fight to lessen the impact the ticket will have on your driving record.

There’s bad news and good news when it comes to points. Here’s the bad news. Every driver who has a South Carolina license starts their driving career with 12 points. Points are a way for the SCDMV to keep track of 1) the quantity and, 2) the severity of a driver’s traffic tickets. Just about every moving violation ticket will take points away from your license. The minor tickets will only take 2 points. More serious tickets will take 4 points. There are a few tickets that take 6 points. So, if you get a 4 point speeding ticket, you end up having only 8 points left on your license. If you then get a 2 point “too fast for conditions” ticket, you are left with 6 points on your license. The DMV keeps track of how many points you have on your license. Once you reach a certain number – generally 4 – the DMV will send you a letter indicating that you are in danger of losing your driving privileges. Once you reach 0 points, your driving privileges are suspended and you’re in danger of going to jail if you continue to drive. That’s the bad news. The good news is this: the DMV gives points back to you every year, but the way they do it is weird. It works like this: if you get a 4 point ticket this year, you’ll have 8 points on your license. On the one-year anniversary of that ticket, the DMV will give you back half of those 4 points… so you’ll have 10 points on your license. On the two-year anniversary of that ticket, the DMV will give you back the other half of those 4 points… so you’ll have your full 12 points again.

There are several. Below is an excerpt from South Carolina Code of Laws Section 56-1-720 which lists point-assessable violations:

  • RECKLESS DRIVING – 6
  • PASSING STOPPED SCHOOL BUS – 6
  • HIT-AND-RUN, PROPERTY DAMAGES ONLY – 6
  • DRIVING TOO FAST FOR CONDITIONS, OR SPEEDING:
    1. NO MORE THAN 10 M.P.H. ABOVE THE POSTED LIMITS – 2
    2. MORE THAN 10 M.P.H. BUT LESS THAN 25 M.P.H. ABOVE THE POSTED LIMITS – 4
    3. 25 M.P.H. OR ABOVE THE POSTED LIMITS – 6
  • DISOBEDIENCE OF ANY OFFICIAL TRAFFIC CONTROL DEVICE – 4
  • DISOBEDIENCE TO OFFICER DIRECTING TRAFFIC – 4
  • FAILING TO YIELD RIGHT OF WAY – 4
  • DRIVING ON WRONG SIDE OF ROAD – 4
  • PASSING UNLAWFULLY – 4
  • TURNING UNLAWFULLY – 4
  • DRIVING THROUGH OR WITHIN SAFETY ZONE – 4
  • FAILING TO GIVE SIGNAL OR GIVING IMPROPER SIGNAL FOR STOPPING, TURNING, OR SUDDENLY DECREASED SPEED – 4
  • SHIFTING LANES WITHOUT SAFETY PRECAUTION – 2
  • IMPROPER DANGEROUS PARKING – 2
  • FOLLOWING TOO CLOSELY – 4
  • FAILING TO DIM LIGHTS – 2
  • OPERATING WITH IMPROPER LIGHTS – 2
  • OPERATING WITH IMPROPER BRAKES – 4
  • OPERATING A VEHICLE IN UNSAFE CONDITION – 2
  • DRIVING IN IMPROPER LANE – 2
  • IMPROPER BACKING – 2

That depends on the speed at which you are accused of traveling. Here is a breakdown of points-to-speed for the state of South Carolina: 1-10 mph over will assess 2 points; 11-24 mph over will assess 4 points; 25 mph and over will assess 6 points. There are other moving violations which assess points, too. View the next question for a complete list.

No. Under no circumstances is it ever a wise decision for an accused to talk to the police. In fact, you have a constitutional right under the 5th Amendment to not talk to the police. Below is a great video (27 minutes) by James Duane, one of my law school professors, extolling the virtues of the right to remain silent.

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WE ARE READY TO HELP

Our job is simple: do everything we can to help you. If you’ve been stopped, arrested, or need a criminal defense attorney. Don’t speak to the cops call Attorney Franklin Joyner.

1(843) 253-5316

ABOUT US

    Attorney Franklin B. Joyner, Jr., is an experienced criminal trial lawyer based in Chesterfield County, SC. He has personally tried cases – from speeding and DUI all the way to rape and murder – all over South Carolina. Joyner Law Firm has gained a reputation of being an experienced, professional, and aggressive firm that fights to win!

PRACTICE AREAS

  • DUI / TRAFFIC
  • MURDER
  • DRUGS
  • ASSAULT & BATTERY
  • CRIMINAL SEXUAL CONDUCT
  • FIREARM OFFENSES

CONTACT INFO

Joyner Law Firm, P.C.
Attorney in Chesterfield County SC

170 Second Street
Cheraw, SC 29520

1 (843) 253-5316
jr@chesterfieldcountytrafficlawyer.com