It happens to a lot of my DUI clients. They are pulled over by the police
for some sort of traffic violation. Usually it’s something like
speeding or not using a turn signal. The officer then goes into DUI arrest
mode as soon as the driver reports having something to drink (most common
admission is two drinks). An arrest is made, but only for DUI. Our clients
want to know if it looks good for their case that they weren’t also
charged with the other offense.
There is actually no legal requirement that the police officer only charge
you with the DUI. They are actually allowed to charge you with as many
other traffic violations as they can articulate a basis for. So you can
actually be charged with the speeding, turn signal, failure to dim headlamps,
reckless driving, or whatever else the officer observed or initiated the
traffic stop over.
But, even though its allowed, almost all police agencies frown upon adding
additional charges in with a DUI. Although it does happen sometimes, it
is still very rare for there to be other moving violations with the DUI.
Here is one reason for this phenomenon:
Many DUI cases are based solely on the opinion of the police officer. There
can be evidence pointing both ways, towards guilt and innocence. If other
driving charges are made at the same time they would have to go to court
with the DUI. That means at a trial the jury would not only have the option
of finding someone guilty or not-guilty of DUI, but could perhaps find
a “middle ground” by guilty for the other traffic offense.
This idea is used in other criminal trial contexts when a judge charges
a jury on a “lesser included” offense. For example, a lesser
included offense of murder is manslaughter. So if a jury believed it was
an unlawful homicide, but not premeditated, then they could return a conviction
on the less-serious offense of manslaughter.
DUI in South Carolina doesn’t have a lesser included offense. So
at trial the jury’s only options are guilty or not-guilty. But given
another traffic violation could create a situation where it becomes a
de-factor lesser included, thus reducing the overall odds of a DUI conviction.
But just like anything else, it could go both ways and the jury could
convict the defendant of ALL the charges, resulting in an even more outrageously
high fine and insurance rate increase.
Now the policy of not charging a moving violation with DUI doesn’t
extend to non-moving offenses. We still see plenty of people charged with
other offenses like:
- Driving Under Suspension
- Open Container
- Simple Possession of Marijuana
- Minor in Possession of Alcohol
- Seatbelt Violations