If you have been charged with a crime or believe that you are under investigation for a crime, get help right now. All too often, people believe that they can handle things on their own until it is too late. Police may lead you to believe they are trying to help you when in fact they are gathering evidence and building a case against you. Many cases involve multiple charges in multiple courts. There may be lesser charges in the magistrate court or municipal court, more serious charges in general sessions court, and license issues in the administrative court with separate court dates and instructions for each court.
Without the advice of a competent defense lawyer, you are likely to waive important rights that the police or courts are not going to tell you about. If you inadvertently miss a court date, you can be found guilty in your absence and a bench warrant may be issued for your arrest. If you have multiple charges and are found guilty on the lesser offenses, it may foreclose potential defenses that we would have had in the more serious case.
Magistrate and Municipal Court Offenses
If you are charged with a lesser offense in the magistrate or municipal court, you will be given a court date, usually written on a blue ticket, on which you must appear in court. If you do not request a jury trial prior to that court date, you may lose your right to a jury trial and the court may give you a bench trial instead. The police, prosecutor, and court are not likely to look for and provide exculpatory evidence to you that would help your case although they are required to by law. Once a jury trial has been requested, we can obtain the evidence in the case and conduct an independent investigation to obtain additional evidence that we need to defend you against the charges. Once we have your discovery materials and results from our own investigation, we then have the time to negotiate with the officer or prosecutor in your case to obtain either a dismissal or reduced charges. If there is no dismissal or we do not agree to reduced charges, we still have the option of trying your case to a jury and seeking an acquittal.
General Sessions Offenses
Most offenses that carry a potential penalty of more than 30 days will go to what is called general sessions court which is the criminal side of South Carolina's circuit courts. You will have two roll call dates at which you must appear unless you have been excused from them through your attorney. Your case will be handled by a prosecutor from the solicitor's office for the county in which you were charged. If you do not appear for the roll call dates, usually called the Initial Appearance and the Bond Returnable or Docket Appearance, the prosecutor will seek a bench warrant for your arrest.
Criminal Domestic Violence (CDV)
Criminal domestic violence (CDV) is undeniably an issue that needs to be addressed in South Carolina, Myrtle Beach, and nationwide. Law enforcement, courts, and prosecutors no longer look the other way when there are allegations of domestic violence. The pendulum has swung so far, in fact, that a large part of the CDV problem in our state now is that the net has been cast so wide that thousands of innocent persons are caught in it each year.
Over the years, CDV became a politically charged issue as publicity increased through victim's rights organizations. New funding earmarked for domestic violence arrests and prosecutions has resulted in new prosecution positions created expressly for CDV cases. Because funding is not justified without arrests and prosecutions, we have seen a dramatic increase in CDV arrests along with a reluctance to dismiss cases. At the Johnny Gardner Law Group, our attorneys regularly help people who have been caught in the CDV net. We understand the issues involved in domestic violence prosecutions and we know how to defend these cases.
Degrees of South Carolina CDV Charges
South Carolina CDV laws require that a person must be married to, live with, or have a child in common with the alleged victim. The most recent amendments to the CDV laws created four categories of domestic violence - CDV 3rd degree, CDV 2nd degree, CDV 1st degree, and CDV high and aggravated (CDVHAN or DVHAN). The penalties range from up to 90 days for the least serious charge of CDV 3rd degree to 20 years in prison for CDVHAN. The differences between each are defined by the degree of violence or other aggravating factors, and the common thread is that the aggressor injured or threatened to injure the alleged victim.
Important to Know . . .
What do you do if you or your significant other is charged with an unjustified CDV offense? If you go to court as the alleged victim and your intent is to get the prosecutor to drop the charges, you should know that instead you may be raked over the coals as the prosecutor tries to save their case. If you are an alleged victim who does not want your case to be prosecuted, contact an experienced CDV defense lawyer before the initial court date and before attempting to have law enforcement or prosecutors dismiss the case.
- Any person convicted of domestic violence is barred from possessing a gun or obtaining a concealed weapon permit (CWP) under federal and state law.
- When the alleged victim does not appear in court, they do not automatically dismiss the case.
- If the arresting officer does not appear in court, they do not automatically dismiss the case.
- Unless your attorney advises you otherwise, you must request a jury trial prior to the court date or risk being found guilty at a bench trial with no jury.
- South Carolina CDV law does not require physical injury for a person to be arrested and prosecuted. It is enough to simply threaten the alleged victim.
A murder conviction in South Carolina will result in a mandatory minimum sentence of 30 years up to life in prison or even the death penalty in some cases. Law enforcement is under incredible pressure and scrutiny from the media and victim's relatives to solve these cases and to get convictions. If prosecutors do not get a conviction, the elected solicitor will face hard questions when it is time for re-election. The police and prosecution feel that the public must be protected, the victim's family wants justice, and a dangerous criminal must be captured and put away.
This means that resources will immediately be devoted to the case to find, arrest, and build a case against a suspect. Investigators immediately begin to question eyewitnesses and collect forensic evidence from the crime scene. Often a representative of the solicitor's office and a forensics team will be present at the incident site along with police and investigators.
Potential Defenses and Expert Witnesses
There are many potential defenses that are available to a person who has been charged with murder in South Carolina. Accident, self-defense, and defense of others are all absolute defenses to the crime of murder. You have the right to defend yourself if you are attacked, and, in most cases, there is no duty to retreat under South Carolina law if you are acting lawfully at the time of the offense. Even in cases where there is no argument for justifiable homicide, the facts of the case may call for a reduced offense just as voluntary or involuntary manslaughter.
The state will collect any forensic evidence that they find such as weapons, shell casings, footprints, fingerprints, and DNA evidence. When your case is called for trial, the state will call expert witnesses from the state's crime lab to testify. It is critical that you have a defense team on your side who will conduct an independent investigation of the facts and the evidence. The attorneys at the Johnny Gardner Law Group know how to get the defense evidence that will be needed in a murder prosecution, and they know which experts to call to reexamine the forensic evidence collected in your case.
Murder or Manslaughter?
To obtain a murder conviction, the prosecution must prove malice aforethought beyond a reasonable doubt. Malice aforethought can be express or implied and may be proven by the defendant's intent to kill, their intent to inflict grievous bodily harm, a reckless indifference to human life, or even just the intent to commit a felony. If the prosecution does not prove malice, the jurors may find the defendant guilty of the lesser included offense of voluntary or involuntary manslaughter.
Voluntary manslaughter is an unlawful killing in the sudden heat of passion upon sufficient legal provocation, and it carries a sentence of no less than two but up to thirty years in prison. Involuntary manslaughter is: 1) An unintentional killing while engaged in an unlawful activity which doesn't naturally tend to cause death or great bodily harm; or 2) An unintentional killing while engaged in a lawful activity but with reckless disregard for the safety of others. Involuntary manslaughter currently carries a penalty of no more than five years in prison.
Traffic violations such as speeding tickets can have long lasting consequences if they are not taken seriously and handled promptly. Traffic tickets can result in fines, a loss of points, higher insurance premiums, license suspension or revocation, the loss of a job, and in some cases incarceration. In many cases, a Myrtle Beach traffic ticket attorney can help you to avoid these consequences completely or to mitigate the costs and damage done to your driving record.
Speeding Ticket Lawyer
In most cases, we can help you to get your ticket dismissed, reduce the points and fines, or re-write your ticket to a non-moving violation that does not take points away from your license. Most of these tickets do not require your appearance in court so long as you have an attorney handling the case for you and unless the case is going to be a trial. It is important that you retain an attorney before your court date and that your attorney is familiar with the courts, the agencies involved, and the impact that a conviction could have on your license.
Out of State Drivers
If you are an out-of-state driver, your attorney will also have to consider the potential impact that a conviction could have on your license in your home state. South Carolina is a member of the Interstate Drivers Compact, and most convictions that you receive in a South Carolina court will follow you to your home state. In some cases, a conviction in South Carolina that does not carry points will in fact cause you to lose points or could even result in a license suspension in your home state.
Driving Under Suspension (DUS)
Driving under suspension (DUS) is a graduated offense with stricter penalties for each subsequent conviction, eventually resulting in mandatory jail time and a license revocation. It also results in an additional license suspension for an amount of time equal to the original suspension, which means that you must fight the very first DUS charge to avoid this license suspension trap. Too many people get caught in a cycle where they plead guilty to DUS, get caught driving because they had no other transportation to work or the grocery store, then accumulate more fines and longer periods of license suspension. After just a few convictions for DUS or an accumulation of other traffic violations, your license will be revoked and then you may be subject to a habitual traffic offender (HTO) charge which carries up to five years in prison.
There are ways to fight a DUS charge even if you think you were caught "red-handed." At trial, the prosecution must prove not only that you were driving but also that you were properly served with the notice of suspension which can be a difficult or even impossible challenge in some cases. Even in the worst of cases, there may be options for a plea that does not carry an additional license suspension or points depending on the court you are in and the strength of the state's case.
South Carolina's drug crimes include minor offenses such as simple possession of marijuana and more serious offenses such as possession, distribution, possession with intent to distribute, manufacturing, and trafficking of cocaine, heroin, methamphetamine, or psychedelics. The penalties are graduated based on how many prior offenses the person has and can range from a fine only for possession of paraphernalia up to 40 years for trafficking heroin. Distribution and trafficking may also have mandatory minimum sentences that can be as high as 25 years for some trafficking offenses.
Defending drug charges requires knowledge and a skill set that you don't necessarily get while defending other types of cases. Drug arrests are often made following a traffic stop or at a person's home which means that there are usually Fourth Amendment search and seizure issues involved in your case. When an arrest is made following a controlled buy or a series of controlled buys, it is critical that your attorney understand the procedures that narcotics officers follow during their investigation. Your attorney must understand how surveillance is conducted, how confidential informants (CI's) are used by narcotics officers, what evidence such as video or audio recordings will be produced in your case, and when evidence can be suppressed in pre-trial motions.
Possession is an essential element of most drug crimes. In many cases, clients have been charged with a drug offense even though the drugs were not in their actual possession. There is a legal theory called constructive possession which allows police to charge you with drug possession even though the drugs are not on your person. This happens most often when the drugs are found in a car, in a home, or after someone has thrown them down on the ground. If you were not in actual possession of the drugs, the prosecution will have to prove two things:
- You had dominion and control over the area where the drugs were found. For example, this can be proven by showing that you are the owner of the car you were driving, that you were the driver of the car regardless of ownership, or that the drugs were close enough to you that you could have picked them up.
- Knowledge. Even if drugs are found in your car, the prosecution must prove that you knew the drugs were there. If your friend's house just got raided by the police and you were present when it happened, you cannot be convicted for the drugs they found in your friend's bedroom unless you knew that they were there and had control over them.
Drug Trafficking and Distribution
Distribution and trafficking charges have the most severe penalties under South Carolina drug laws. Although many of the potential defenses and legal issues are the same, law enforcement tends to put more investigation into these cases and, considering that some offenses carry mandatory minimums as high as 25 years with no parole and others can carry potential sentences up to 40 years in prison with no parole, the client has a lot at stake and could lose everything. Although a person can be prosecuted for conspiracy to traffic drugs, these cases are often based solely on the drug weights. The threshold weight for a trafficking charge is 10 grams of cocaine or crack cocaine, 4 grams of heroin, or 10 pounds of marijuana.
Property crimes cover those offenses where a person's property has been stolen, vandalized, or damaged and include burglary, shoplifting, larceny, forgery, financial identity crimes, arson, breach of trust with fraudulent intent, and possession of a stolen vehicle. Most property crimes, excepting burglary and some others, are classified based on the dollar value of the theft or damage and are usually split into three groups:
- Amounts less than $2000 will usually be a misdemeanor offense in the magistrate or municipal court.
- Amounts greater than $2000 but less than $10,000 in the court of general sessions.
- Amounts greater than $10,000 in the court of general sessions.
There is also a catch-all enhancement statute that allows prosecutors to seek a penalty of up to 10 years in prison when a person is charged with their third or subsequent offense even if the offense would otherwise have been a 30-day misdemeanor.
A South Carolina burglary charge can be first, second, or third degree depending on the circumstances and whether certain aggravating factors are present. Aggravating factors include whether the crime occurred in the nighttime, whether the suspect had a gun during the commission of a crime, and how many prior convictions the suspect has. The prosecution must prove that the defendant entered a building or dwelling without consent and with the intent to commit a crime at the time that they entered.
- Burglary third degree carries up to five years in prison, and it covers when a person enters an unoccupied building such as a storage shed. If there are aggravating factors present, burglary third degree is upgraded to a burglary second degree.
- Burglary second degree can carry up to 15 years when it is based on entering an unoccupied building with aggravating factors, or it can carry up to 10 years when it is based on entering a dwelling with no aggravating factors.
- Burglary first degree carries a mandatory minimum sentence of 15 years with no parole up to life in prison. The prosecution must prove that the person entered a dwelling without consent and with the intent to commit a crime, and they must prove an aggravating factor such as possession of a firearm or that the offense occurred in the nighttime.
Get Your Attorney Involved ASAP
In any case involving property crimes, it is important to get your attorney involved as early as possible and before you speak to law enforcement. An independent defense investigation can turn up critical impeachment evidence to use against an alleged victim or other witnesses. In some cases, an arrest can be avoided when an attorney gets involved early enough to negotiate with law enforcement before they begin building a case. Many property crimes turn out to be a civil matter where the alleged victim was angry, did not want to wait for the outcome of a civil lawsuit, or was given bad advice by their own attorney or law enforcement.
The best time to get a criminal defense lawyer involved in your case is before you are charged with a crime. All too often people think that they can handle encounters with law enforcement on their own, and then come to us after they have unwittingly given incriminating information to law enforcement. If you do not think that you should be a suspect and you know that you have nothing to hide, do not expect law enforcement to share your point of view.
Why you Should Not Talk to the Police Before Consulting an Attorney
Law enforcement investigators will tell you that you should come in and talk to them because they are just trying to clear their name. They may tell you that they just need to speak to you because you may be a witness. The truth is if law enforcement is asking to speak to you, they are most likely not trying to clear your name. In most cases, they are looking for evidence that they can use to charge you. When you show up to speak to them without first retaining a criminal defense lawyer, you are subjecting yourself to an interrogation by a trained professional. If law enforcement wants to question you, one of two things is most likely true:
- They have probable cause to charge you with a crime, they intend to get additional evidence from you to shore up their case, and you may leave the interview in handcuffs even if you do not make incriminating statements.
- They do not have probable cause to charge you with a crime, and they intend to get the evidence that they need from you during the course of the interrogation.
Police can lie to you during an investigation. They do not have to tell you what they have or what they know. They know that you may not make an incriminating statement, and instead they will settle for inconsistent statements. If anything that you say differs in even small details from something you have said in the past, something that someone else has told the police, or something that they observed at a crime scene, they will take your statement as evidence of guilt and they will use it as their probable cause to charge you with a crime.
How Can We Help?
If you have already talked to law enforcement, stop now and call us. There are some situations where it is in your best interest to talk to police, but, even in those rare situations, you should never talk to police without an attorney present. In many cases, we will advise you not to speak with law enforcement because it cannot help in your current situation. In other cases, we can prepare you for what to expect, gather evidence, and speak to law enforcement on your behalf. The best case scenario is you do not get charged with a crime and you dodge a bullet. The worst case scenario is you do get charged with a crime, but you did not hand evidence to the police in the process, your attorney has been involved in gathering evidence and communicating with law enforcement from the beginning, and you have much better odds of getting a dismissal or acquittal down the road.