South Carolina Criminal Attorney Blog

Search warrants are no longer required for the police to search people who are on probation and parole in South Carolina. What that means is this. Probation and Parole Officers have always had the right to search those who are on probation and parole. Now with the new law, the same authority that they have is now extended to police officers and sheriff's deputies. They now no longer need to go to a judge for a search warrant. This means that they can exercise this authority with someone on the street who is on probation or parole and they are allow to search them just like a probation or parole officer can.

Opponents are up in arms over this new law, argue an erosion of our constitution. Those who support it, say that this is an additional measure of safety and will greatly help against repeat offenders.

The police are not just restricted to those they see on the street. They can pull people over and search their cars. They can even search their personal possessions, for example purses. The new law does not allow the police to search their homes without a valid search warrant. One other catch is that inmates serving time must agree to this before they are let out on parole. If they don't, then they will be required to serve their full prison term.

One restriction on the police, is that they must have reasonable suspicion of some sort of wrongdoing before conducting such a search. The officer must first verify that the person is in fact on probation or parole. Violations of this procedure would subject the officer to discipline policies. That provision has been criticized for being too vague. Further arguments and more significant, are concerns of the law being susceptible to racial profiling and other abuse.

One of the arguments that are in favor of the new law, is that it will help in controlling those on probation and parole. South Carolina has approximately 16,000 police officers and sherrif's 's deputies. However, it only has 342 probation and parole agents throughout SC. That means that 342 agents are required to supervise about 44,000 people on probation and parole. There are even some counties with just a single agent. Here in Horry County and Myrtle Beach, we have a large number of police and sheriff deputies compared to the rest of the state. Nevertheless, there are still thousands of people in Horry County and Myrtle Beach that are on probation and parole.

Written by Attorney Robert J. Johnston. Free Consultation. 843-828-1137.

This isn't just someone who happened to be a drunk driver and also murdered someone. But rather a drunk driver that was convicted of murder as a result of driving drunk.

That is how bad these cases can get when things become extreme. In June of 2009, Jason Pappas of Cathedral City, California, crashed the car he was driving after an intense police chase. The passenger, Gregory Fisher, died of blunt force trauma.

Just two years earlier, Pappas pleaded guilty to a DUI and therefore knew only too well the dangers of driving under the influence, argued the Deputy District Attorney, Grant Kim. He was also convicted of a California law called, Driving with a Blood-alcohol Level Greater than 0.08. That is a law that is designed to create enhanced penalties for the more severe DUI cases. South Carolina doesn't do that. Here in SC we have one DUI statute with varying penalties depending on the blood alcohol content and whether it's a first, second, third, etc., offense.

In the case at hand, Pappas testimony showed he had 13 drinks before he got in the car and drove, said the prosecutor. When tested following the crash, his blood-alcohol level was 0.25 percent. That is more than three times the legal limit.

After police observed Pappas speeding, they attempted to pull him over. Rather than stop, he took off and a chase began. Pappas was seen weaving in and out of traffic lanes for a number of miles. Testimony given at trial said he was going over 90 miles per hour. It was when the defendant attempted to make a left hand turn when he lost control of his vehicle and crashed into a tree. The passenger, Gregory Fisher was pronounced dead at the hospital.

The lawyer for the defense, argued that his client was guilty of manslaughter and wasn't guilty of second-degree murder. He supported his argument by trying to show that the defendant did not have any intentions to hurt anyone. It turned out he was driving the victim's car after the victim had asked him to drive. The lawyer argued that he truly believed that he had the faculties to operate the vehicle safely. The defense attorney also tried to show that Pappas didn't have as much to drink as the prosecution said and that he actually only drank five to six rinks and had two shots of Jack Daniels whiskey over a 12 hour period. In the defense attorney's closing argument, he stated that his client felt that night that it was safer for him to driver, than the victim, Fisher.

Pappas has not yet been sentenced, which will be a separate proceeding. He could be sentenced to 15 years to life in state prison for this conviction, of second degree murder.

These cases involve different laws in different states. This shows some of the possible laws involved in California when a DUI case becomes extremely serious. Other states also have manslaughter, reckless homicide and others that can come into play. Here in Myrtle Beach, we certainly are not immune to these sort of cases either.

In February 2009, South Carolina enacted a new DUI law that increased the stakes for people convicted of Driving Under the Influence. As previously stated, the new DUI law has increased penalties based on how high the defendant blew on the Breathalyzer and how many DUI convictions the individual has had in the past. At sentencing, the judge is allowed to and will consider other things about the case and the defendant and those circumstances can greatly affect whether the defendant goes to jail and if so, for how long. The new law in SC broke the Breathalyzer results into three categories. First, for anyone who blew 0.10 or less; two, for those who blew 0.10 to 0.16; and three, for those who blew in excess of 0.16. To illustrate how severe these can be, someone convicted of Driving Under the Influence Third Offense could be fined up to $10,000 and go to prison for up to five years.

South Carolina still has its Felony DUI statute, which is for cases in which someone incurred great bodily injury or death. A conviction for great bodily injury, the sentence carries up to 15 years in prison and a $10,000 fine. For a death, they face up to $25,000 fine and up to 25 years in prison.

Yes, its not talked about a lot, but a defendant in a criminal case can in fact receive restitution in certain cases, under certain circumstances, and of course, in certain states.

A police officer by the name of Troy Meade was tried on a murder charge and was found not-guilty this week. He was accused of shooting a man that was in a car drunk. Now that he was acquitted of the murder charge, it will now be decided if he should received restitution to pay for his legal fees. Under Washington State's law, the only situation where a jury can give compensation to a murder defendant is where they make a finding during the criminal trial that the defendant acted in self-defense, which they did in Meade's case. In these situations, the accused the jury also considers court expenses and the time that he/she lost in fighting the criminal charge. Its interesting to note that its the same jury that decides the criminal case that then decided the compensation, in a separate proceeding. If you think about it, that only makes sense as the same jury would have been in a position to see and hear what the defendant went through.

In what will turn out to be yet another proceeding, the family of the victim, the deceased that is, has filed a $15 million law suit for wrongful death against the city of Everett. The law suit accuses Meade of using excessive force. It sounds strange to sue for wrongful death after a person has been found not-guilty in the criminal trial. Maybe this reminds you of a case from a few years ago in California? Yep. That is exactly what happened to O.J. Simpson. After Simpson was acquitted at his double murder trial, he was sued by the families and this time he was found liable for the death of the two victims, which resulted a verdict of millions of dollars, most of which has never been collected. The most significant reason for the success of these civil suits is the difference in what is called, the Burden of Proof. In a criminal case the burden of proof is Beyond a Reasonable Doubt. Yet in a civil suit, the burden of proof is called Clear and Convincing, which is a easier burden to overcome.

A very long time ago here in Myrtle Beach a very similar situation occurred. The case was tried in Conway and the defendant was found not guilty. The victim's family alleging that the victim's rights were severely violated brought a lawsuit against Horry County, Myrtle Beach and the State of South Carolina seeking compensation for the victim's families. The victim was allegedly shot after a car accident. Attorneys for the defendant at the trial for the crime were successful in defending the case and he was not found guilty. Lawyers in the law suit argued excessive force and wrongful death in the shooting. Often police are in situations where no one is around and they have no choice but to shoot in order to defend themselves, which is what the jury found to be the case in this action. There was eventually compensation for the victim's family, as a suit was filed by an attorney in Conway from the Myrtle Beach accident for Personal Injury and again Wrongful Death seeking damages. All of these suits are based on negligence and also has a lower standard of proof. Since the man died so quickly after the accident there was not a huge claim for pain and suffering, but a claim nevertheless. A jury will usually feel sympathy whenever someone dies for obvious reasons.

The South Carolina legislature is back discussing a law against texting on cell phones while driving. A subcommittee was scheduled to discuss it again this past week, but that was canceled as they were still debating some issues on the amount of court fees, which they are considering changing.

More and more states are addressing this issue and passing laws due to the tremendous amount of accidents that are directly attributed to drivers texting. I personally know that here in Horry and Georgetown Counties are no exception as you see it almost daily. Last fall I was in the right-hand lane and watched a lady in Myrtle Beach run right into the back of someone because she was more interested in texting than driving her car.

So far on the law, they've decided that it will be a misdemeanor and drivers will receive a fine in the amount of $25.00. Compared to all of the other traffic violations, fines, assessments, court costs and so forth, that is an extremely cheap penalty. Under the law, the police would not be allowed to confiscate anyone's cell phone. Nor would they be allowed to read messages whether text messages or emails. After the law is passed, there will be a waiting period of six months before the police would be able to pull someone over solely for the texting phone violation.

A couple of interesting things come to mind with this new law. Anytime that the police have a new and additional reason to pull someone over, it tends to open the door for more arrests and traffic tickets for other things. For example, if a person is pulled over for just texting and then the office smells marijuana or alcohol, they would be allowed to continue the investigation on those grounds as they would amount to what is called "reasonable suspicion." Once drivers are pulled over there are all kinds of other possibilities, including but not limited to license, registration and insurance violations, contraband, drug paraphernalia, DUS (Driving Under Suspension) possible safety violations, and so on, with Driving Under the Influence being the most significant.

I would also imagine that from a prosecutor stand point this would be a bear to deal with. Since in so many of our small courts here in SC, where the police officers take on the role of solicitor, I'm sure they would enjoy dealing with it either. I say this because of the difficulty in proving exactly what a person was doing with the phone. I just can't imagine how a police officer can testify that he/she knew beyond a reasonable doubt that the person was texting, and not dialing a number. But I suppose the good side of this as far as prosecution is concerned, that it only having a $25.00 fine will cause the vast majority of people to just pay the fine and be done with it. I certainly couldn't conceive anyone retaining a criminal defense attorney for such a thing.

Another thing that you can't help but wonder about, is how in the world will the police be able to be certain that someone was texting and not just dialing the phone. Or for that matter, doing any other function on the phone. If you look at someone through your car window and then through their car window, it is nearly impossible, if not totally impossible to tell exactly what they are doing with the phone. Its certainly impossible to read the little screen and see if its text or numbers. Nor could someone follow the pattern of button pushing to determine exactly what they are doing. Remember, it will still be legal to make and receive phone calls. I can certainly understand why they want such a law, but from a practical matter is sounds like a loser. The only way that the state will ever be able to put a real dent in this problem would be to ban the use of cell phones entirely while driving. Obviously, that would have to be an entirely different article. For the time being, suffice it to say that it appears we are on the verge of another nearly useless law.