Ryan Schwartz Gets a Not Guilty

A Berkeley County jury acquitted a man last week of most charges that stemmed from a woman’s claims she had been sexually assaulted on the side of a dark, rural road by two men who pretended to be law enforcement officers.

Darrien Jermain Walker, 23, of Otranto Road in North Charleston, was convicted of impersonating an officer but was found not guilty at trial of kidnapping, first-degree criminal sexual conduct and possession of a firearm during the commission of a violent crime, Berkeley County court records show. His co-defendant, Brandon Gibson, 24, also of Otranto Road, remained jailed Tuesday awaiting trial on the same charges.

“My major concern with this case was a serious lack of physical evidence linking my client or the co-defendant to the crime,” Walker’s attorney Ryan Schwartz said.

The alleged victim gave a statement to investigators saying two men had followed her from a bar in Goose Creek to Moncks Corner before assaulting her around 2 a.m. Sept. 14, 2013, Schwartz said. He questioned the woman’s credibility, saying the version of events she initially provided was inconsistent with testimony she gave while on the stand.

Brandon Gibson, 24, faces charges of impersonating an officer, kidnapping, first-degree criminal sexual conduct and possession of a firearm during the commission of a violent crime, Berkeley County court records show.
Enlarge Brandon Gibson, 24, faces charges of impersonating an officer, kidnapping, first-degree criminal sexual conduct and possession of a firearm during the commission of a violent crime, Berkeley County court records show. Provided
An incident report released by sheriff’s deputies alleged Walker and Gibson flashed red and blue lights on a cellphone to pull the woman over on Whitesville Road.

Both men claimed to be working undercover and accused the woman of appearing suspicious, she reported to investigators. One searched the woman’s car while another patted her down, “feeling every part of her body,” the report stated.

At one point, one leaned into the woman’s car, placed his hand on the seat between her legs and told her she was attractive, according to the report. He asked for the woman’s number, which she refused. He then grew angry, the report said, ordering her out of the vehicle and wrapping his arms around her so she couldn’t move.

“All she could do was scream,” the report said, prompting one man to place his hand over her mouth. He asked the other to retrieve a gun from their vehicle as he attempted to force her inside and take off her pants, the report said.

The woman fought back and the men eventually let her go, she reported.

Deputies pulled over a vehicle that matched a description provided by the woman shortly after the alleged assault. A gun was found in the car, deputies said, and the two men were placed under arrest after the woman identified them.

Walker had attended Brevard College on a football scholarship and transferred to Charleston Southern University shortly before his arrest. He was taken into custody a week before he was scheduled to begin classes there, Schwartz said. He remained jailed until his acquittal Thursday, he said.

Walker was sentenced to a year with credit for time served on the impersonation charge, court records show. He faced a maximum 30-year prison sentence if convicted of the kidnapping charge alone, Schwartz said.

“Thirty years is a significant, life-changing amount of time. … You never know what’s going to happen when you go to a jury, but I felt confident that we had exposed issues in the state’s case and that the jury would see through the smoke and mirrors,” Schwartz said.

Ninth Circuit Assistant Solicitor Matt Ozment, who prosecuted the case, declined to comment on the trial’s outcome.

All rights given to Christina Elmore and the Post and Courier.

Link to article: http://www.postandcourier.com/article/20150127/PC16/150129451

Criminal Defense Attorney Dorchester County DUI Lawyer

When you consider the possible outcome for non-representation, the benefits of having a Dorchester County criminal defense attorney become apparent. There are numerous advantages to employing the use of a criminal defense attorney or DUI lawyer in Dorchester county when you find yourself needing legal representation. In Dorchester County, there is no need to face the complicated judicial system unprepared and alone.

In South Carolina, DUI laws are meant to deter irresponsible drinking whenever there is a need to engage in driving activities. This encompasses the social drinker who makes the mistake of having a drink and winding up behind the wheel. Officers are allowed to initiate a drunk-driving arrest, simply on the basis of suspicion of being impaired.

If you are pulled over for suspicion of being under the influence, you may be instructed to take a breathalyzer test. This test will determine your blood alcohol concentration (BAC). Refusing to submit to the test could result in a civil action, and the state may seek to suspend your driver’s license. But taking the blood alcohol test and failing it will also have negative consequences. This is why you need a Dorchester County DUI lawyer to come to your defense. If your BAC is over .08, you will likely be on your way to the police station.

Criminal and Civil Charges

There is no doubt that there could possibly be severe consequences if you are charged with driving under the influence in the county of Dorchester. There could actually be criminal and civil penalties to pay, following the outcome of your legal case. Without a good DUI and criminal defense attorney, you could easily find yourself facing large fines, jail time, or both. However, the right Dorchester County dui lawyer can help you win your case, or at least receive less severe penalties. Mandatory substance abuse treatment or community service may not be the most desirable sentences, but they are much better than the alternatives.

Depending on the circumstances of your case (and the level of BAC), it is actually possible to still lose your license, even though you win the DUI case. This fact alone is reason enough for you to seek out a good Dorchester county criminal defense attorney and dui lawyer. Notice the possible consequences that can result from a DUI charge or conviction.
Possible Consequences Include:

* Suspended driver’s license
* Revoked driver’s license
* Related violation and legal fines
* Increase in auto insurance premiums
* Loss of job
* Incarceration

Benefits of Representation

As you can see from the information previously discussed, there are many benefits of having legal representation, especially when dealing with a DUI case in Dorchester county.

They can help you when you are first arrested and continue fighting in your behalf, right until the end. You won’t have to be in the dark about the charges you are facing, and the possible outcomes, both favorable and not so favorable.

The DUI or criminal defense attorney on the case will help point out the best options for you, and work hard to plan the best strategic defense. After a thorough examination of the details of your case, you may be surprised to learn that your attorney can help you achieve a better outcome.

One strategy that your attorney might recommend after reviewing your case is to have the DUI charge challenged. This means going to court and having a jury trial. Your counsel will be there to use all the legal knowledge they have, to get you an acquittal. Clearly this is the most desired outcome.

Criminal Defense Attorney Berkeley County DUI Lawyer

Being an accused in a criminal prosecution does not necessarily mean your conviction. While it may cause both physical and emotional exhaustion on your part and on the part of your family, you should not give up and fight for your own rights. If you are in need of direction and support upon notification of criminal charges filed against you in Berkeley County, finding a good criminal defense attorney Berkeley County should be your first step.

Tips in Finding Criminal Defense Attorney Berkeley County

Here are some essential tips to help you find a good lawyer who can defend your case and help you obtain reasonable judgment:

1. Look for experts
Just as other professionals, lawyers are experts in their own chosen field of practice. While some lawyers are very effective in defending civil cases, they may not be as good in defending criminal cases. Hiring criminal law experts as your defense lawyer in Berkeley County is a major advantage in increasing your chances of obtaining a fair and good judgment.

Among the most common charges filed against citizens is driving under the influence or commonly known as DUI. By hiring an expert Berkeley County DUI Lawyer, your rights are better protected during prosecution and you can obtain better support with the issue regarding suspension of your license.

2. Know more about the lawyer
Upon visiting websites of Berkeley County criminal defense lawyers, you can find a portion for live chats. Opening the site and going for live chats can help you know more about your case, including charges, expenses and other essential matters. Live chats can also help you determine whether the lawyer can be someone you can work with for the settlement of your case or not.
Lawyer’s websites also provide pages for client testimonials. Taking some time to read these pages can help you know more about the lawyer and whether you should hire him or not.

Benefits of Hiring a Good Criminal Defense Attorney Berkeley County

Finding a good lawyer is a must for the following reasons:

1. Effective representation
A lawyer serves as a client’s spokesperson in court. This means that your lawyer speaks on your behalf when it comes to criminal prosecutions. It is very important for you to hire a criminal lawyer you trust for effective representation. By having a good relationship with your lawyer, your voice can be heard more effectively in court.

2. Protection of rights
As an accused in a criminal prosecution, you are afforded constitutional rights which must be protected at all times. With the help of a good criminal defense lawyer, you can be assured of a sufficient protection and support.

3. Long-term relationship
Working with a good Berkeley County criminal defense lawyer helps establish a relationship that can last for a very long time. With a good working relationship, you can always have an advocate in the halls of justice.

There’s no better person who can help you fight for your rights under the law than a good criminal defense attorney Berkeley County. Find one today.

No Fault Divorce In South Carolina

I frequently get asked "what are the grounds for divorce in South Carolina" and "do I really have to wait a year to get divorced?"  The answer, as always, is it depends.  In South Carolina there are two types of divorces- fault and no fault.  No fault divorces can be granted upon the separation of one year and I'll discuss that process in this post.  At fault divorces do not have a year long separation requirement and I will discuss the at fault grounds in another post.     

The only way one can obtain a no fault divorce in South Carolina is by "living separate and apart without cohabitation for a period of one year."  A divorce on this ground can be granted immediately once responsive pleadings are filed, or thirty days after the defendant is served if the defendant does not respond.  For a divorce under separation of one year both parties must be aware of the fact that they are separated before a divorce can be granted.  This is important for our military personnel because separations caused by military service cannot be used as a basis for divorce unless the parties separated before the forced separation for reasons other than military service.  

The term "separate and apart" for the purpose of a no fault divorce means that the spouses are not living together under one roof.  The South Carolina Supreme Court has found that even when the husband and wife testified that they lived in separate rooms and did not have sex for the year long period, that the spouses did not live separate and apart in the eyes of the law and therefore did not meet the requirement to obtain a divorce.  This means that the husband and the wife must live in separate houses, apartments, etc. during the year long separation.  

The Courts, however, have been unclear whether spouses who have sexual relations during the one year separation or attempt to reconcile should be forced to restart the one year clock after the event before they are divorced.  No South Carolina courts have directly addressed this concern, however, family court judges will examine the intentions of the husband and wife and the facts surrounding the sexual intercourse.  As a practical matter I would advise all my clients that some family court judges will rule that an isolated act of sexual relations requires the one year period of separation to restart and I advise my clients against this.    

To obtain a no fault divorce in South Carolina, one does not have to file anything with the courts to start the one year clock.  One can file as soon as the year is over and the court may schedule the hearing on the no-fault immediately upon filing as long as the other spouse is served with the action and has either answered or allowed the thirty day time frame for an answer to elapse.  

If you or a loved one has any questions regarding your rights during a divorce please do not hesitate to contact Thrower & Schwartz.  

 

 

Grounds For An At Fault Divorce in South Carolina

As I discussed in an earlier blog post, the no fault ground for divorce in South Carolina is a one year separation.  In this post I’ll go over the four at fault grounds which will allow you to get divorced without the one year of separation.

The four at fault grounds for divorce in South Carolina are adultery, physical cruelty, habitual intoxication or narcotics use and desertion. 

Adultery- In order to obtain a divorce based on adultery, one doesn’t need to prove the spouse actually cheated.  The legal standard for adultery is that the spouse had the inclination and opportunity.  This means that there doesn’t need to be actual proof of sexual intercourse.  This means that if a spouse spends the night in a hotel with a paramour, they have the opportunity and inclination to cheat.  There doesn’t need to be actual video or picture evidence of the act.  The courts have also found that adultery doesn’t always mean sexual intercourse, it could be found with proof of mere “sexual intimacy.”  Often hiring a private investigator is useful in proving adultery. 

Physical cruelty- If there is actual physical injury it must be more than an isolated instance of abuse.  However, if there is no actual physical injury, a divorce based on physical cruelty can be granted if one spouse’s conduct created a substantial risk of death or serious bodily harm.  For example, firing a gun at a spouse but missing would be enough to rise to the level of physical cruelty needed for this at fault divorce. 

Habitual intoxication- To obtain a divorce on this ground one spouse needs to prove more than occasional drinking or drug use.  Rather, one must prove that this drinking or drug use has caused a breakdown in the marriage.  Proof can be medical records for rehab, criminal records with convictions related to alcohol or drug use, financial records proving frequent alcohol purchase or work and employment records that show problems with the spouse’s employer due to drugs or alcohol.

Desertion- Although this is formally a ground for separation, because the time frame for a divorce based on desertion is one year, the same time as a no fault divorce, the use as a ground for divorce in South Carolina is rarely if never used anymore. 

Although these four at fault grounds can be used to obtain a divorce, there is a common defense to all four- condonation.  Condonation is the conditional forgiveness of the behavior which would lay the ground work for an at fault divorce.  This means the innocent spouse is aware of the behavior but still decides to remain in the marriage with the at fault spouse.  If the adultery happened years prior and the innocent spouse didn’t know about it then it could still be grounds for an at fault divorce years later.  On the other hand, if the spouse knows of the adultery and remains with the cheating spouse and forgives him or her, then the fault ground for adultery no longer remains a ground for a divorce. 

A spouse can file for divorce on any of the at fault grounds without being separated from the other spouse.  However, at a temporary hearing the burden of proof will be on the innocent spouse to prove with solid evidence that fault ground in order to give the Judge the power to remove the spouse from the marital home.  In any at fault divorce action, the court cannot have the hearing on the divorce until 60 days after the filing for divorce and cannot grant a divorce until 90 days after the divorce action was filed. 

If one of the spouses needs help determining any issues stemming from a separation such as child custody, child support, alimony, division of assets or property, visitation but do not have a ground for a divorce, that spouse may file an action for “separate support and maintenance.”

If you, a friend or a loved one is seeking a divorce or defending a divorce and would like legal advice, contact Thrower & Schwartz.  Ryan and Bill will be glad to meet and discuss the situation.    

 

 

Adultery in South Carolina

When people are suspicious of their significant other cheating, or catch them cheating, they usually wonder how they will be able to prove the infidelity in family court.  Clearly, sexual intercourse is adultery but what about other forms of infidelity?  South Carolina courts have stated that South Carolina hasn’t determined exactly what other acts may constitute adultery.  For example, the South Carolina Supreme Court found that homosexual activity can constitute adultery, which gives the impression that oral sex is enough for a divorce based on the grounds on adultery.  However, because the actual sexual act is rarely proved it most likely won’t make a difference in most cases.

Proving Adultery in South Carolina

Because sexual conduct mostly, and should, occur behind closed doors, it is nearly impossible to find direct proof of the cheater in the act.  However, in South Carolina one only needs to show circumstantial evidence, that the spouse had an inclination to commit adultery and that he or she had the opportunity to do so.  These requirements are referred to by family lawyers as the “inclination and opportunity.”

What is inclination?

When does spending time with a member of the opposite sex constitute more than friends?  People are allowed to have friends of the opposite sex which means that just because they are behind closed doors together doesn’t mean there is infidelity.  Because of this reason the courts require proof that the spouse had the “inclination” or the character or to cheat.  Proving inclination can be done several ways: love letters, texting, emails, or other written material may give rise to evidence of infidelity.  Joining online dating sites or dating applications on one’s phone may also be used as evidence.  Other examples would be a private investigator having photographs of the cheating party holding hands with a paramour or kissing and occasionally there is evidence of over night stays which would prove the individuals are more than friends.

What is Opportunity?

To prove “opportunity,” you must prove that the cheating spouse and his lover were behind closed doors long enough for there to be time to commit a sexual act.  There are no black and white rules for exactly what needs to be proven.  The most concrete evidence of an opportunity to commit adultery comes through a private investigator who obtains footage or pictures of the cheaters being in the same home or a hotel room.   Other forms of evidence can come from neighbors or friends; however their testimony could be biased and won’t give us the documentation and hard proof we can obtain from a private investigator.  Other forms of evidence of opportunity are text messages, Facebook posts or pictures, credit card statements. 

Is there A Defense to Adultery?

Yes, it is called condonation and can be a defense against a divorce.  Condonation is when one party, who has been cheated on, takes actions that imply that he condoned the adulterous behavior and that the parties are reconciling.  If the infidelity was discovered, you could forfeit any claim of adultery if you reconcile with the cheating spouse.  Condonation can occur by having sexual relations with the spouse, letters or emails forgiving the infidelity, or moving back in together.  Again, there are no clear, black and white rules on condonation either and it will but up to the Judge to determine the facts and decide whether adultery was forgiven.

Advice If You Think Your Spouse Is Cheating

The Attorneys at Thrower & Schwartz strongly recommend consulting with them.  Every case has different facts and circumstances, and we need to learn specific facts of your situation to advise you how to proceed.  We may recommend hiring a private investigator, having a home computer looked at by a computer expert for evidence of infidelity or tracking down witnesses.  Depending on the facts of your specific case there could be numerous ways to discover what you are looking for and to gather evidence of it for court.  Please at least consult with an attorney before you go searching alone. 

If you have a family law issue please do not hesitate to contact the lawyers at Thrower & Schwartz.   

  

Gun Laws In South Carolina

Gun laws in South Carolina can be confusing.  I get frequent questions from friends and family about them so I’m going to explain them as best as I can in this blog.  Violations of gun laws, even innocent ones, can bring hefty fines, confiscation of the gun, jail time and a blemish on you record.  Because each state has different gun laws, when you travel between states, it is hard to know what is legal and what is not.  It should be noted that no other states recognize the South Carolina Concealed Weapons Permit (CWP) so when traveling to other states you need to be aware of the local rules.  The purpose of this post is to assist South Carolina Residents or people who are passing through our beautiful state in better understanding the laws so that they don’t fall on the wrong side of the law unintentionally.  Ignorance is not a defense!  It should be noted that there are many exceptions for law enforcement officers, constables, gun dealers, off duty and reserve police officers and various others.

 

Who Is Prohibited From Possesing A Firearm In South Carolina?

  • People who felons, a violent crime, criminal domestic violence, or under a domestic order of protection, also known as a restraining order, by Family Court, are all forbidden from possessing a firearm or ammunition at any time. 
  • Drug addicts or users, illegal aliens, a veteran who has a dishonorable discharge, an alien under a non-immigrant visa, or a fugitive from justice may not possess a firearm or ammunition at any time. 
  • Even if you have not been convicted of a felony but are awaiting trial for felony charges you may not possess a firearm.
  • If you have a domestic order of protection and it expires, you may be able to get your gun rights back.  If you are convicted of criminal domestic violence but it has been expunged, you may be able to get your gun rights back. 

I Don’t Have A CWP, Where Can I Carry My Handgun In My Car?

This is a question that we get asked frequently so I will try to lay out the rules in a clear manner.  You may carry a handgun in your vehicle if it is secured in a closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and being transported in the luggage compartment of the vehicle.  The exception to this is that you cannot bring the gun to a school or college.

The term internal fastener creates some ambiguity and it is somewhat unclear what the South Carolina legislature meant when they used that term.  To be safe, we suggest that if you are using a container to transport a handgun that it is something lockable with either a snap or latch.  This means a shoebox or a backpack won’t qualify. 

“Luggage compartment” also causes some ambiguity, but the law provides a definition.  It means that the trunk if the car has a trunk.  If the car doesn’t have a trunk, like a station wagon or a sports car with a hatch, it means “the area of the motor vehicle in which the manufacturer designed that luggage be carried or to the area of the motor vehicle in which luggage is customarily carried.”  In a station wagon, van, or SUV the term “luggage compartment” would be the area behind, but not under, the rearmost seat.  In a truck, the luggage compartment would be the area behind the rearmost seat but not under the front seat. 

Motorcycle riders must secure the handgun in a closed saddlebag or another similar closed accessory container. 

Under NO CIRCUMSTANCES are you allowed to carry the gun under your seat, in your pocket, on the floor, or anywhere not specifically mentioned above. 

I Have a CWP, Where Can I Carry In My Car?

All the above mentioned places in the previous answer as well as “on your person.”  This term is vague.  To be safe, we recommend that that you carry it holstered and concealed on your person.  While we would argue that under the driver’s seat or between the seat and console would suffice if you had a CWP, this falls into a gray area of the law which may be construed by the police as a violation of the law.   

Where Can A Concealed Weapons Holder Walk Around With A Gun In South Carolina?

It is actually easier to explain where the CWP holder cannot carry a handgun in South Carolina.  Everywhere else is okay, as long as it is CONCEALED.  Unlike some states, South Carolina is not an “open carry” state.  The gun must be concealed and the holder must have a CWP.  The CWP holder can carry the gun everywhere except the following places:

  • Police stations, Sheriff’s departments, jails or prisons or other law enforcement facilities.
  • Restaurants that serve alcohol by the glass UNLESS you are not drinking
  • Courthouses and courtrooms
  • Polling places on election days
  • School or college athletic events not related to firearms
  • Offices or meeting places of government entities
  • Daycares and preschools
  • Places where firearms are prohibited by federal laws
  • Churches or religious sanctuaries unless permission is given by the head of the facility
  • Hospitals, medical clinics, doctor’s offices or other places where medical services are rendered unless given permission by the head of the facility
  • Homes, apartments, or other dwellings unless you have the express permission of the person living at the residence
  • Business or other establishments that post “No Concealed Weapons Allowed” signs or that otherwise express that they do not want concealed weapons on their premises 
  • If you do bring a gun to a school or a college of any kind, don’t carry the gun on you.  It must be in the closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and transported in the luggage compartment of the vehicle
  • Homes, apartments, or other dwellings unless you have the express permission of the person living at the residence
  • Any person may carry a concealed weapon from their automobile to a hotel room that he has rented

What about my business?

If you are a business owner or the person who is in control of the business, you may carry a handgun at your business.  If you are an employee, you may ONLY do so if you have a concealed weapons permit AND you have permission of the owner. 

How to keep concealed weapons out of my business?

To keep out concealed weapons you must post a sign that is clearly visible from the outside of the building.  It must be at least eight inches wide and at least twelve inches tall.  It must state “NO CONCEALED WEAPONS ALLOWED” in black, one-inch tall all capital letters at the bottom of the sign and centered between the lateral edges of the sign.  It also must have a black silhouette of a handgun inside a circle seven inches in diameter with a diagonal line that runs from the lower left to the upper right at a forty-five degree angle.  It must be placed between forty and sixty inches from the bottom of the building’s entrance door.  If the place does not have the doors, then check with a lawyer to make sure the size and other requirements are met. 

Hunting in South Carolina

Hunters and fisherman who are hunting or fishing or going to or from their places of hunting or fishing, while in a vehicle or on foot, are allowed to carry a handgun. 

Selling a handgun in South Carolina

You cannot sell, offer to sell, deliver, lease, barter, rent, exchange, or transport for sale into this State any handgun to people convicted of violent crimes, fugitives from justice, habitual drunkards, drug addicts, or people who have been adjudicated incompetent, a person who is a member of a subversive organization, people under the age of eighteen (with certain exceptions including members of the Armed Forces or R.O.T.C.), people who have been adjudicated unfit to possess or carry a firearm by order of a circuit judge or county court judge, and illegal aliens.  It is also illegal for those mentioned above to carry or possess a hand gun. 

Finally, if the serial number has been removed or obliterated, you can’t buy, sell, own, or carry the handgun, and you should probably contact an attorney to decide on how to dispose of it. 

If you are selling a handgun, it is recommended to hire an attorney to draft a bill of sale so that the transfer is documented.  This protects you as the seller if the gun is used in a crime down the road.  This allows you to show that the gun legally left your possession and went to someone else. 

Other Weapon Crimes in South Carolina   

There are numerous weapons laws in South Carolina, and if you have any specific questions, you should always consult with an attorney.  Some of the more common offenses dealing with weapons are: You can’t own or possess an automatic weapon, sawed off shot gun, short barreled rifle with out a Class III weapons permit from the ATF.  You can’t bring to school any weapons which include knives with more than a two inch blade, a black jack, a metal pipe or pole, firearms, or any other type of weapon, device, or object which may be used to inflict bodily injury or death.  The exception is that a concealed weapons permit holder may carry the weapons inside an attended or locked vehicle and is secured in a closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and transported in the luggage compartment of the vehicle. 

Also, you cannot point a firearm at another person, fire into a building or any structure that could be occupied by people, or at a car, boat, or aircraft. 

Do Other States Recognize South Carolina CWP’s and Vice Versa?

Reciprocity means there is an agreement between states to recognize each other’s laws.  South Carolina has reciprocity with certain states regarding concealed weapons permits.  This means that if you hold a CWP in South Carolina, various other states will recognize it, but you still must comply with the state’s laws while you are in that state.  The South Carolina Law Enforcement Division has a list of states that have reciprocity with South Carolina.  The states include: Alaska, Arizona, Arkansas, Florida, Idaho (Enhanced only), Kansas, Kentucky, Louisiana, Michigan, Missouri, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Texas, Tennessee, Virginia, West Virginia, and Wyoming.

General Thoughts On Handgun Laws in South Carolina

Many South Carolinians own guns and use them for recreation, hunting, self defense and many other fun and lawful purposes.  If you are a gun owner or you are thinking about buying your first gun, you should familiarize yourself with the laws in South Carolina so that you don’t get caught unknowingly violation a law.  Concealed weapons permit classes required to obtain a CWP in South Carolina give a brief overview of the laws in our state and we encourage everybody to take the class and obtain his CWP.  Practice common sense when dealing with any firearms and as always, if you have any questions don’t hesitate to contact Thrower & Schwartz. 

This article is written as a brief overview of gun laws in South Carolina.  It doesn’t address every law nor does it address any specific legal situation or crime.  If you have specific questions regarding guns, carrying a gun, CWP, selling a gun or you have been charged with a gun crime, call the attorneys at Thrower & Schwartz to discuss your rights and options. 

 

 

 

   

What To Do If The Police Stop Me To Talk

What to Do If the Police Stop Me to Talk To Me?

Recently I had a client who was stopped coming out of his vehicle at night by a police officer.  The officer just stopped to talk to the client and “fish” for more information because, as the officer put it “he was in a bad area at a suspicious time” and “I suspected he was up to no good.”  The client, although lawfully stopped, should have followed a few simple rules.  He was ultimately arrested, arguably illegally, and has been charged with some serious crimes.  In order to better protect yourself, you should follow some simple advice.

1.         Stay calm.  Don’t run, don’t argue, resist, or obstruct a police officer.  You get more bees with honey!  Even if you are innocent or the police are violating your rights or profiling you, make sure you don’t give them a reason to arrest you.  Keep your hands where they can see them and speak slowly and calmly. 

2.         The first question out of your mouth should be “am I free to leave.”  If the officer says yes, calmly and silently walk away.  If you are placed under arrest, you have a right to know why.  If you are under arrest, keep your mouth shut!  The Fifth Amendment gives you the right to remain silent; we suggest you invoke that right.  Remember, a fish only gets caught when he opens his mouth!

3.  You have the right to remain silent.  You cannot be punished for refusing to answer questions.  If you wish to remain silent, tell the officer out loud that “you will not answer any questions with an attorney present.”

4.         You don’t have to consent to a search of yourself or your belongings, but police may “pat you down” over your clothing if they suspect a weapon.  You should not physically resist, but you have the right to refuse consent for any further search.  If you do consent it could affect you later in court. 

What If You Are Stopped In Your Car?

1.         Stop the car in a safe place as quickly as possible.  Turn off the car, turn off the inside lights, open the window half way and place your hands on the steering wheel.  Upon request, show police your driver’s license, registration and proof of insurance.

2.         Remember! Be polite!  Asking the officer “why the ***** are you stopping me” can guarantee you more hassle than necessary.  Come court time, the officer will remember your attitude and be less willing to work with you.  They also may be more suspicious of you and attempt to search your car.

3.         If you have a gun in your car, keep your hands on the steering wheel.  As long as it is in the glove box, consol, trunk or locked in a lockable container then you should be fine.  Simply notify the officer that you have a firearm in the car while your hands are on the steering wheel.  The police officer will tell you what to do from that point on.  Giving them a heads up on the firearm makes them feel at ease and keeps you in their good graces.   

4.         If you are questioned about your immigration status- you have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents or any other officials.  You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country.  These rules do not apply to international boarders, airports, and are for individuals on certain nonimmigrant visas, including tourists and business travelers.  If you are not a U.S. Citizen and an immigration agent requests your papers, you must show them if you have them with you.  If you are over eighteen years old, carry your papers with you at all times.  If you do not have immigration papers, remain silent!

If the Police or Immigration Come to Your Home

1.         You do not have to let them in unless they have certain types of warrants.  Ask the police officer to slip the warrant under the door or to hold it up to a window so that you can inspect it.  A search warrant allows police to enter the address listed on the warrant, but they can only search the areas and for the items specifically listed on the warrant.   An arrest warrant allows police to enter the home of the person listed on the warrant if they believe the person to be inside.  A warrant of removal or deportation (ICE WARRANT) does not allow officers to enter a home without consent. 

2.         Even if officers have a warrant, remember, you have the right to remain silent.  If you choose to speak to the officers, step outside and close the door. 

What If I Have A Roommate And He Consents to A Search?

According to well- established Supreme Court rulings, the police may enter and search a home if one of its occupants consents.  The Court has ruled that a person with “common authority over the premises” justifies police entry if other occupants aren’t present to consent or object to the search.  However, the outcome is different if another occupant is home and objects to the search.  If two roommates are present and one gives consent and the other does not, then the police usually cannot search the residence.  Physically being present is key, simply telling the police over the phone is not enough.  You must be present at the residence to object. 

Here are some examples:

1.         Bill and Ryan share a house and are roommates.  The police, responding to a neighbor’s noise complaint, knock on the door.  Only Bill is home.  When he answers the door, the officers ask to come and “check out the place.”  Bill says “yes.”  Because Ryan was not home to object, the officers have consent to search the house. 

2.         The police knock at the door and Bill answers.  This time, however, Ryan is home.  He hears Bill agree to let the officers in.  Ryan runs to the door and tells the officers they are “not allowed in the house.”  The officers are not allowed to come into the house.

3.         After speaking with Bill and Ryan and learning that they cannot search their home, the officers leave.  Three hours later, they come back and knock again.  Ryan has left the house to go to work, so only Bill is home.  Bill consents to the officers coming in and taking a look.  Even though Ryan was present recently and objected to the police search, the officers now have consent to look around.  

 

 

 

 

 

 

Legal Words You Are Likely To Hear

This post is just simply listing out words that non-lawyers may hear or not have heard before.  

Acquittal- a verdict of "not guilty" in a criminal trial.

Advocate- one who speaks for and helps someone else.  A victim advocate or a victim assistant is someone trained and dedicated to serve those who are victims of crime, family members of victims of crime, and witnesses to crime.  An advocate may be a paid professional of a government or a private agency or a volunteer.

Appeal- The transfer of a case from a lower court to a higher court for a near hearing on a case. 

Arraignment- The time when a suspect appears before a judge and is charged with a crime.  It usually happens shortly after the suspect has been arrested and served a warrant or after a preliminary hearing. 

Bail or Bond- Money or property that a defendant puts up as a guarantee that he will appear in court.  Not all defendants are required to put up bail.  Some are given personal recognizance (PR) bonds. 

Clemency- Mercy or leniency.  Often refers to a judge's giving a lighter sentence to a defendant because of particular circumstances. 

Competent to stand trial- A decision by the court that a defendant is able to stand trial (usually determined by a doctor to find out his mental condition).

Disposition- Final result of the case. 

Defendant- A person arraigned and charged with a crime. 

Defense attorney- The Lawyer who speaks for the defendant and represents his interest in court. 

Discovery- The right of the defendant to know what evidence the State has against him. 

Family Court- A county court that handles cases involving families and juveniles. 

General Sessions (Circuit) Court- The higher level of county court, where serious crimes are tried. 

Grand Jury- A jury of eighteen people who listen to the evidence and decide whether or not a case should go on to General Sessions Court.  Their meetings are conducted in secret.  The Grand Jury may give a "true bill" (indictment) or a "no bill."

No Bill- A conclusion by a Grand Jury that a case should not be tried. 

True Bill- A conclusion by a Grand Jury that a case should be heard. 

Habeas Corpus- One of a variety of writs that may be issued to bring a person before a court or judge.  Its purpose is to release someone from unlawful restraint or imprisonment. 

Hung Jury- The situation where a jury cannot all agree on a verdict.  When this happens, the case may be tried all over again. 

Incident Report- A police report about something that happened.  Additional reports about the same happening are called Supplemental Reports. 

Indictment- See Grand Jury, True Bill. 

Jury- A grouped of twelve people who must listen to and watch the trial and decide whether or not the defendant is guilty. 

Jury Pool- A group of randomly chosen citizens from which jurors are selected. 

Juvenile- Usually an offender under the age of 17. 

Judge- The person in charge of the courtroom and the trial. 

Magistrate- The judge in the first level of county court. 

Nol Pros- The voluntary withdrawal of criminal charges by the prosecuting attorney. 

Objection- An attorney's telling the court that he believes someone has broke a rule of the court. 

Pardon- An act by a judge, court, governor, or other authoirty that releases the person pardoned from punishment for the crime he committed.  Often pardon provides for expungement (wiping clean) of the offender's criminal record on that particular crime. 

Parole- The conditional early release of a prisoner.  If a prisoner obeys the conditions of his release, he won't have to serve the remainder of his sentence in prison.  If he does not, he may be sent back to prison. 

Petition- A formal, written request for a court or judge to do something, for example, a petition for an appeal. 

Plea- The Defendant's answer to the charge against him.  If he pleads "guilty," a trial is not necessary.  He may plead guilty to a less serious charge than the one for which he was indicted.  If he pleads "not guilty", the case will probably be tried in court. 

Preliminary Hearing- A hearing before a judge to determine if a case has probable cause and should be sent to General Sessions Court.  The defense attorney uses this hearing to find out what evidence the State has against the defendant. 

Pre-Trial Conference- A meeting among you, other witnesses, and the solicitor prior to trial.  You will be able to discuss the case and ask questions.  

Probable Cause- Evidence that would lead a reasonable person to believe that a crime was committed by the person accused. 

Probation- Releasing a convicted offender instead of sending him to prison.  An offender on probation must agree to follow certain guidelines and limits.  If he "violates probation," that is, fails to keep the agreement, he may be sent to prison. 

Reasonable Doubt- Doubt based on a good reason.  If a jury has reasonable doubt that the defendant committed the crime, the jury must find him not guilty. 

Recess- "Time Out' in a trial.  It could be brief or last overnight or over a weekend. 

Revocation- The withdrawing of a bond or probation when the defendant fails to obey the requirements of bond or probation.  For example, a defendant released on bond or probation may be required to stay within the state.  If he leaves the state, his bond or probation may be revoked, and he may be locked up in jail or prison.  

Sentence- The punishment or legal consequences given to a convicted defendant. 

Solicitor- An attorney who prosecutes crimes.  In other states they are usually called District Attorneys. 

Subpoena- A court order for someone to appear in court. 

Testimony- the facts as stated by a witness in court. 

Trial- The presentation of the facts of a case in court before a judge (bench trial) or a judge and jury, ending with a decision about the defendant's guilt. 

Verdict- The decision by a judge or jury.

Victim Impact Statement- A victim's form, letter, or oral statement that tells the judge the ways in which the crime has affected him or her, for example, money lost, emotional difficulties, physical problems, jobs problems, etc. 

Voir Dire-The jury selection process.  Both the defense attorney and the solicitor may "strike" (reject) a limited number of people in the jury pool. 

Witness- In court, a witness is a person who testifies in court.  A witness to a crime is a person who sees, hears, or notices something that has to do with the crime. 

Writ- A written order issued by a court commanding someone to do or stop doing a particular act. 

 

 

Difference Between DUI and DUAC In South Carolina

South Carolina's DUI statute provides:

"It is unlawful for a person to drive a motor vehicle within this State while:

(1) under the influence of alcohol to the extent that the person's faculties to drive are materially and appreciably impaired;

(2) under the influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that person's faculties to drive are materially and appreciably impaired; or

(3) under the combined influence of alcohol and any other drug or drugs or substances which cause impairment to the extent that the person's faculties to drive are materially and appreciably impaired."

Under South Carolina law, the legal blood alcohol (BAC) limits are:

(1) Less than .05- It is conclusively presumed that the person was not under the influence of alcohol

(2) Greater than .05 but less than .08- No inference whether the person was under the influence of alcohol, but that fact may be considered with other evidence in determining the guilt or innocence of the person

(3) Greater than .08- It may be inferred that the person was under the influence of alcohol.

Proving The Driver Was Impaired

Most of the time, solicitors prove a driver was impaired and guilty of DUI by showing, among other things: (1)  The driver was showing signs of intoxication such as slurred speech, strong odor of alcohol on the breath, red, blood-shot eyes, staggering, or swaying; (2) The driver failed a field sobriety test- Reciting ABC's, standing on one leg, walking toe-to-toe; or (3) the driver could not maintain control of the vehicle (weaving, crossing lines, driving off the shoulder).  Additionally, solicitors may provide evidence that the driver had a blood alcohol concentration (BAC) level above the legal limit using either a data master breath test or in more serious cases, a blood test.

Driving With Unlawful Alcohol Concentration- (DUAC)

Similar to DUI, South Carolina has a statue that makes it illegal to drive a motor vehicle in this state "while [a person’s] alcohol concentration is .08 percent or more."  Unlike a DUI, being "impaired" is not an element of DUAC which means that although you may be perfectly capable of driving at a BAC of .08 or more, you are guilty of DUAC if your blood level is .08 or more.  

The Solicitor has the choice of convicting a driver for a DUI (proof of impairment which may include proof of BAC) or a DUAC (proof of BAC .08 or greater and the driver is guilty.)  A driver can only be prosecuted for a DUAC if the breath (or blood) test is performed within two hours of the time of arrest and probable cause (a reasonable belief that a person has committed a crime) existed to justify the traffic stop.  A driver in South Carolina cannot be prosecuted for a DUAC if the driver was stopped at a traffic road block or driver's license check point.  Furthermore, a driver cannot be prosecuted for both a DUI and a DUAC arising from the same traffic stop.  

 

DUI vs. DUAC

The main difference between DUI and DUAC is that to be convicted for a DUAC, the prosecution must prove a driver was operating a vehicle with a BAC of .08 or higher.  However, to convict a driver of DUI, the prosecution must prove that the driver's faculties to operate a vehicle were materially and appreciably impaired by alcohol, drugs, or a combination of the two.  The penalties for a DUI and DUAC are nearly identical.  Examples:

– Neither charge can be expunged from your record

– The fines and jail time are identical

–  Both offenses require the offender to complete ADSAP (Alcohol and Drug Safety Action Program)

–  Both offenses require a driver to have the expensive SR-22 insurance for three yeas

–  Both charges can enhance a subsequent arrest for either DUAC or DUI to a second offense, causing it to be prosecuted in General Sessions Court.