Can I Get Electronic Monitoring Removed in SC?
Is there a way to get electronic monitoring removed in SC?
Some sex offenses in SC require electronic monitoring in addition to the sex offender registry, while the court may require electronic monitoring for other offenses. Some events, like a violation of probation or conviction for failure to register, may also trigger a requirement of electronic monitoring.
Since 2012, the SC Supreme Court has held that lifetime electronic monitoring for sex offenders is unconstitutional, which means that a person who has been ordered to wear an electronic monitor must have some opportunity to get it removed. But, how?
When is electronic monitoring mandatory after a conviction for a sex offense and when is it in the court’s discretion? Once it has been ordered, how can you get electronic monitoring removed in SC?
Lifetime Electronic Monitoring is Unconstitutional
The SC Supreme Court held in 2012, in State v. Dykes, that the requirement of lifetime electronic monitoring was unconstitutional (and then they re-issued a new opinion in the same case in 2013 that still held it was unconstitutional). Last year, in State v. Ross, they went on to hold that trial courts must have a hearing before ordering electronic monitoring to determine whether it is reasonable under the Fourth Amendment.
State v. Dykes
In State v. Dykes, the SC Supreme Court held that lifetime electronic monitoring is unconstitutional unless there is an opportunity for judicial review and an opportunity for the defendant to show that he or she is not likely to re-offend.
The purpose of electronic monitoring is to protect the public from sex offenders who are likely to re-offend and to assist law enforcement if they do re-offend, see State v. Walls, therefore it makes no sense to allow courts to order electronic monitoring when a defendant is not likely to re-offend.
After State v. Dykes, defendants are entitled to a hearing after ten years and then every five years thereafter to determine whether they are likely to re-offend, whether their offense required mandatory electronic monitoring under SC law or whether it was ordered in the court’s discretion.
State v. Ross
When a convicted sex offender is later convicted for failure to register, the court can then order electronic monitoring even if it was not ordered after the initial conviction for the sex offense.
Again, the SC Supreme Court found that this is unconstitutional unless the trial court makes an initial determination as to whether it is reasonable to impose electronic monitoring – otherwise, the requirement of electronic monitoring is an unreasonable (and ongoing 24/7) search that violates the Fourth Amendment.
Electronic monitoring for sex offenses in SC is unconstitutional unless the courts:
- Have an initial hearing to determine whether the monitoring is an unreasonable search under the Fourth Amendment; and
- The defendant is given the opportunity to show that he or she is not likely to re-offend and therefore the monitoring is unnecessary.
So, when is electronic monitoring mandatory, when is it in the court’s discretion (meaning the court may be persuaded to not order monitoring), and how do you get electronic monitoring removed in SC?
How can I Get Electronic Monitoring Removed in SC?
In some cases, electronic monitoring is mandatory. In other cases, the court does not have to impose electronic monitoring, but they can if they feel it is necessary. In either case, you must be given the opportunity to have the electronic monitoring removed if at least ten years has passed since your conviction.
When is Electronic Monitoring Mandatory in SC?
Pursuant to SC Code Section 23-3-540, courts must order electronic monitoring when a person is convicted of criminal sexual conduct (CSC) with a minor first or third degree.
Courts also have the option to order electronic monitoring for persons who have been convicted of CSC with a minor in the second degree, “engaging a child for sexual performance,” “producing, directing, or promoting sexual performance by a child,” attempt to commit CSC on a child, kidnapping of a child, or trafficking of children.
The same mandatory and discretionary provisions apply when a person who has been convicted of a sex offense either violates their probation, parole, or community supervision or is later convicted for failure to register.
When Can Electronic Monitoring be Removed in SC?
SC Code Section 23-3-540(H) also gives the person the right to request a hearing, ten years after they have been placed on electronic monitoring, to determine whether it is reasonable to keep them on the electronic monitoring:
The person shall be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device for the duration of the time the person is required to remain on the sex offender registry pursuant to the provisions of this article, unless the person is committed to the custody of the State. Ten years from the date the person begins to be electronically monitored, the person may petition the chief administrative judge of the general sessions court for the county in which the person was ordered to be electronically monitored for an order to be released from the electronic monitoring requirements of this section.
The statute requires clear and convincing evidence (a high burden of proof – less than beyond a reasonable doubt but more than preponderance of the evidence) that the person has complied with the conditions of the electronic monitoring and that there is no longer a need for monitoring:
If the court finds that there is clear and convincing evidence that the person has complied with the terms and conditions of the electronic monitoring and that there is no longer a need to electronically monitor the person, then the court may order the person to be released from the electronic monitoring requirements of this section.
If the Court denies the request, the person has the right to re-file and request a new hearing every five years:
If the court denies the petition or refuses to grant the order, then the person may refile a new petition every five years from the date the court denies the petition or refuses to grant the order.
Although the statute also says that a person may not petition the court if they were required to register under the mandatory provisions related to CSC with a minor in the first or third degree, this is unconstitutional per the SC Supreme Court’s opinions in Dykes and Ross.
There must be an initial determination as to whether electronic monitoring is reasonable under the Fourth Amendment, and there must be an opportunity to petition the Court to have electronic monitoring removed in SC.
Sex Offenses Criminal Defense Lawyer in Charleston, SC
If you are charged with a sex offense in Charleston, SC, call Charleston criminal defense lawyer Grant B. Smaldone now to find out how we can help.
On the other hand, if you have already been convicted of a sex offense and you are required to wear an electronic monitor, we may be able to help you get the electronic monitoring removed if at least ten years has passed since the monitoring began.
Call now at (843) 808-2100 or contact us online to find out how we can help.