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