Do I Get a Jury Trial for DUI in SC?

If you are familiar with the court system in other states, you may not know that you get a jury trial for DUI in SC.

In some states, if you are charged with DUI, DUAC, DWI, OWI, or your state’s equivalent, your case is tried by a judge and you don’t have the right to a jury trial, despite the Sixth Amendment’s guarantee of an impartial jury “in all criminal prosecutions.”

Does it matter? Is a jury trial better than a bench trial in a DUI case?

Do I Get a Jury Trial for DUI in SC Courts?

You have the right to a jury trial for any criminal case in any court in the state of SC – including DUI offenses. Including the smallest two-point speeding ticket…


The US and SC Constitutions guarantee us the right to an impartial jury in any criminal prosecution. It’s found in the Sixth Amendment to the US Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

And it is found, with even broader language, in Article I Section 14 of the SC Constitution:

The right of trial by jury shall be preserved inviolate. Any person charged with an offense shall enjoy the right to a speedy and public trial by an impartial jury; to be fully informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to be fully heard in his defense by himself or by his counsel or by both.

Do I Get a Jury Trial for DUI in SC Magistrate Court?

Most DUI cases in SC are first-offense driving under the influence charges in the magistrate or municipal court.

You are entitled to a jury trial in the magistrate court, but the procedure and make-up of the jury is different than you will find in General Sessions Court. In the magistrate court, you get six jurors instead of 12, along with two alternate jurors.

In the magistrate and municipal courts in SC, you must request a jury trial in writing – it is not automatic. If you or your attorney do not request a jury trial, your case is automatically set for a bench trial (plea date) where you will most likely be found guilty without the benefit of discovery or a jury of your peers.

Whether it is magistrate, municipal, or general sessions court, the jurors’ verdict must be unanimous – even one holdout will result in a hung jury and a mistrial.

Do I Get a Jury Trial for DUI in SC Municipal Court?

The procedure and the number of jurors in SC municipal courts is the same as it is in the magistrate courts – you must request a jury trial in writing, you get six jurors and two alternates, and the verdict must be unanimous.

Do I Get a Jury Trial for DUI in SC General Sessions Court?

While first-offense DUIs are almost always in the magistrate or municipal courts, second-offense or greater DUIs, second-offense or greater DUACs, felony DUI charges, and most offenses that carry a potential sentence of greater than 30 days will be heard in General Sessions Court, which is the criminal half of SC’s Circuit Court.

You do not have to submit a written jury trial request in General Sessions Court. You also will not have an automatic bench trial/plea date. You will have at least two “roll calls” that are scheduled. Unless you are excused through your attorney, if you do not appear on those dates, the court will issue a bench warrant for your arrest.

When your case is finally called for trial, it is usually after your attorney has received all the evidence in your case, a plea offer is made and rejected, you have appeared for an “arraignment” where the prosecutor and court attempt to harass you into pleading guilty, and you have already appeared in court several times because your case was “on the trial roster” even though the prosecutor had no intention of calling your case for trial…

In General Sessions Court, you have the right to choose 12 jurors and two alternates – the jurors’ verdict still must be unanimous, or the court will declare a mistrial.

Would I Rather Have a Judge or a Jury Trial for DUI in SC?

This is a no-brainer for any trial lawyer. I’ve heard it said many times that a bench trial (a trial by judge) is a long, slow guilty plea…

If you are charged with DUI or any crime, you can look at it like this: there are “layers” of defense. Our goal, first and foremost, is to get the prosecutor to dismiss your charges. If they don’t dismiss your case or offer you an alternative that you can agree to, we can fall back on the judge.

We can ask a judge to dismiss your case because there is no probable cause shown at a preliminary hearing. We can ask a judge to dismiss your case in pretrial motions. We can ask a judge to direct a verdict (dismiss your case) at the halfway point of your trial if there is insufficient evidence to go the jury.

In pretrial motions, we can ask the judge to limit the evidence jurors will hear during the trial or to reduce the charges that are presented to the jurors. In a bench trial, we can ask the judge to limit the evidence that the same judge will hear during… wait, that doesn’t really work, does it?

If the judge does not dismiss your case, then we have a jury to fall back on. If the jurors do not acquit you and if there were errors made during the trial, we still have the appellate courts to fall back on and, if we win on appeal, we start the process over again with a prosecutor…

Reviewing this topic online, I see many webpages, articles, and blog posts debating whether a bench trial or jury trial is better – it’s crap. The articles that I looked at a moment ago were not written by attorneys. If they were, they were not written by lawyers who try criminal cases.

For example, in an article published on a fairly prominent marketing website for attorneys, they tell you that you need to consider factors like:

  • “When defendants elect jury trials, there’s a tendency for the state to send a more experienced prosecutor against you than if the case were in front of a judge.” What? In SC, you get the same DUI prosecutor regardless of whether your case is a bench trial or jury trial.
  • “The rules of evidence are technical and complicated and a judge, resenting the time and trouble caused by jury trials, may insist on a strict following of the rules.” Really? Most of the rules are there to protect you – a “strict following of the rules” + a defense lawyer who knows the rules = your best shot at winning a DUI trial.
  • “You’re dealing with a jury, 6 to 12 people (usually all drivers) who are probably unhappy to be in court and who may be impatient with a DUI or a reckless driving defendant with a tenuous claim.” Maybe jurors are impatient with a DUI defendant, but that hasn’t been my experience. You know who gets impatient? Judges.
  • “A jury trial tends to last longer than a non-jury trial, thus raising legal costs.” Again, this is the sort of thing that a non-lawyer would write in a lawyer marketing article. With few exceptions, if you are paying your DUI lawyer by the hour, you probably don’t have a DUI lawyer. Most criminal defense lawyers charge flat fees, while divorce lawyers and corporate lawyers charge hourly rates billed against a retainer…

There are some judges – magistrate, municipal, and circuit court judges – who are extremely fair-minded and go to great lengths to both protect defendants’ rights and remain impartial during the proceedings. There are many more who are former police officers or former prosecutors and who will go out of their way to help the government in every criminal trial – do you really want that judge to decide your fate?

Whether it’s six or 12, any verdict must be unanimous in SC. That means you only have to persuade one of the jurors to walk away with a mistrial. Besides that, you get the benefit of either six or 12 minds reviewing the evidence, hearing the arguments, and making a collective decision that is uninfluenced by their relationships with local police or solicitors…

DUI Defense Attorney in Charleston, SC

Charleston, SC DUI defense lawyer Grant B. Smaldone focuses his law practice on criminal defense and DUI defense in the Charleston, Georgetown, and Myrtle Beach areas of SC.

If you have been charged with DUI, DUAC, or felony DUI in the Charleston, SC area, call SC DUI defense attorney Grant B. Smaldone now at (843) 808-2100 or send an email to talk with a DUI lawyer today.