DUI, DUAC, and Felony DUI Defense Lawyer in Charleston, SC

Most people understand that driving under the influence (DUI) means that you drive while you are drunk. Some people may also think that it means you drive after you’ve been drinking.

Is it that simple?

It’s really not – what are the elements of DUI in SC that a prosecutor must prove to get a conviction? And, what are the different types of DUI offenses in SC?

What is not DUI in SC

The SC Highway Patrol and other organizations like MADD spend huge amounts of money on advertisements including TV ads, radio spots, and billboards that are misleading and appear to be intended to taint potential juries in DUI cases by causing confusion about SC DUI laws.

Some of the statements that are made in these misleading advertisements include:

  • Zero tolerance is the law: This claim is misleading at best. Although SC does have a “zero tolerance” law, it applies only to minors – the billboards and other ads that make this claim are misleading because it appears that they are saying it applies to all drivers which is not true.
  • Buzzed driving is drunk driving: Also, not true, depending on your definition of “buzzed.” For most people, “buzzed” does not equal “drunk,” and SC does not have a “driving while buzzed” law. Drunk driving in SC is when a person drives while intoxicated to the extent that their faculties to drive were materially and appreciably impaired – for most people, that is not “buzzed,” it is drunk.
  • It is illegal to drink and drive: Not true, and every DUI defense attorney should make this clear to jurors in every DUI trial in SC. It is not illegal to drink and then drive in SC – it is illegal to drive while intoxicated to the extent that your faculties to drive are materially and appreciably impaired. This means that, for most people, you can have a drink or two without being DUI. How much you can drink depends on your tolerance level, gender, weight, and metabolism.

If these common misconceptions that are pushed by law enforcement and victim’s rights organizations are not true, then what is DUI in SC?

Driving Under the Influence in SC

The elements of DUI in SC that the prosecution must prove include:


SC’s DUI laws are different from some other states in that we require actual “driving” as an element that must be proven – the vehicle must be in motion as the defendant is operating it.

This is different than, for example, “operating under the influence” laws in other states where a person can be convicted for simply sitting in the car with the engine running or even turning on the radio as they sit in a car.

While Intoxicated

Intoxication includes alcohol or any other type of drug, whether illegal or prescription. You can be charged with DUI in SC based on intoxication from:

  • Alcohol;
  • Marijuana;
  • Cocaine;
  • Prescription pain medications;
  • Sleep medications; or even
  • Cough syrup.

It is not enough, however, for the prosecution to prove that you were intoxicated – they must also prove the extent to which you were intoxicated (buzzed driving is not drunk driving).

To the Extent That Your Faculties to Drive Were Materially and Appreciably Impaired

How can they prove the extent of intoxication? The evidence that is usually presented at a DUI trial in SC includes:

  • The officer’s testimony as to observations of your condition on the night of the arrest;
  • Officer testimony about your performance on standardized field sobriety tests (SFSTs);
  • Breathalyzer results;
  • Blood test or urinalysis results;
  • Witness testimony about your condition;
  • DRE or drug recognition expert testimony that attempts to establish intoxication by drug use; or
  • Testimony by a toxicologist that attempts to establish the effect that certain levels of drugs found in your system would have on your ability to drive.

Although a result of .08 or higher on a breathalyzer or blood test creates an “inference” that you were DUI, it is a “rebuttable” inference. It is evidence that your faculties to drive were materially and appreciably impaired, but it is not conclusive.

DUAC – Driving with an Unlawful Alcohol Concentration in SC

SC also has a “per-se” DUI law. To be convicted of DUAC in SC, the prosecution only needs to prove that you were driving and that your blood alcohol content (BAC) was .08 or greater.

To be charged with DUAC in SC, you must have given a breath or blood sample. Even if your breath or blood sample result was greater than .08, that still does not prevent you from introducing evidence that you were not intoxicated or that the test results were flawed.

Felony DUI in SC

Felony DUI is when a person is driving while under the influence of alcohol or drugs and:

  • They violate a traffic law or a duty of care to other motorists; and
  • That violation “proximately causes great bodily injury or death.”

For example, if a driver is DUI but the accident was caused by another motorist, they could be convicted of DUI but not felony DUI.

On the other hand, if a defendant’s negligence caused the other person’s death but DUI cannot be proven, the defendant could still be convicted of reckless homicide based on their actions while driving.

Whether the result was great bodily injury or death, felony DUIs are aggressively prosecuted in SC – you can expect substantial prison time in most cases if convicted, and you will need an experienced DUI defense attorney who knows how to handle negative press, angry and hurt victims’ families, and a prosecutor and judge who feel an obligation to convict you and put you in prison.

SC Felony DUI Defense Attorney in Charleston

If you have been charged with driving under the influence (DUI), driving with an unlawful alcohol concentration (DUAC) or felony DUI in the Charleston, Georgetown, or Myrtle Beach areas of Eastern SC, call Charleston, SC DUI defense lawyer Grant B. Smaldone now at (843) 808-2100 or fill out our online contact form to schedule a free consultation.