The John D. Newkirk Law Blog

When a citizen is arrested and charged with a crime that will be tried in Magistrate Court, Municipal Court, or in the Court of General Sessions, that citizen is entitled to have a bond set so that he or she may be releases from jail pending the trial.  After an arrest, a person will be brought before a Magistrate who will set their bond.  Depending upon when the person is arrested, he or she will normally be brought before a Magistrate within twelve hours of being arrested.

The Magistrate will consider several factors in setting bond, such as the nature of the alleged crime, prior criminal record, flight risk, danger to the community, and victim input.  The Magistrate can either set a personal recognizance bond or a surety bond.  A personal recognizance bond is basically a promise to appear, and no money has to be posted.  In the alternative, the magistrate may set a surety bond, which will require money to be posted with the court, or will require the use of a bondsman.  For a bondsman to post bond, he will typically require that the accused pay him a percentage of the total bond amount to post the bond.  For example, if the Magistrate sets a $20,000 surety bond, a bondsman will require the accused to pay him a percentage of the $20,000 to post the bond with the court.

In some cases, a Magistrate will not set any bond.  There are several types of crimes in South Carolina for which a Magistrate cannot set bond, such as Burglary 1st Degree and Murder.  Furthermore, a Magistrate may refuse to set a bond because of the nature of the charge, perceived flight risk, or perceived danger to the community.

If a Magistrate refuses to, or cannot, set bond on a particular charge, a motion can be filed with a Circuit Court Judge for a bond hearing wherein the Circuit Court Judge may set bond.  Furthermore, if the Magistrate sets a bond so high that the accused cannot make it, a motion can be filed with a Circuit Court Judge for a bond reduction hearing.    

In most situations, a criminal defense lawyer does not become involved in a case until after a person is charged with a crime.  Many times, the accused has already posted bond it is out of jail awaiting trial.  But, if no bond has been set, or if the bond set is too high, a criminal defense lawyer can file the appropriate motions with the Circuit Court to request another bond hearing.

In some situations, an accused knows that they are going to be charged with a crime and contact a lawyer immediately.  In these situations a criminal defense lawyer may be able to arrange for the person to be turned into law enforcement and appear at the initial bond hearing before the Magistrate. 

A criminal defense lawyer can also help with more complicated bond issues, such as 10% cash option bonds and posting property to satisfy a bond.  The latter of which can become complicated and requires a title abstract to be completed on the property posted.

This summary applies to most scenarios that involve cases that will be tried in Magistrate Court, Municipal Court, or the Court of General Sessions.  Bond procedures in Federal Court and Family Court (juveniles) differ greatly.

This is one of the most common questions clients ask me. One spouse wants to file for divorce, but does not want to vacate the marital home. In some instances this is because the spouse desires to continue to live in the marital home and believes his/her spouse should have to leave. As the economy has taken a downturn, this has become more of a financial decision. One spouse wants to leave the marital home, but simply doesn’t have the financial resources to do so without financial support from the other spouse.

In South Carolina, there are several statutory grounds for divorce: adultery, habitual drunkenness, physical cruelty, and one year’s continuous separation – to name a few. There is less of a problem of remaining in the home when there is sufficient evidence to support one of the fault grounds for divorce (adultery, habitual drunkenness, etc.). It has always been a more difficult question when a fault ground does not exist, or there is insufficient evidence to allege a fault ground.

The question has now been clarified by the South Carolina Supreme Court. In the case of Theisen vs. Theisen, which was filed September 19, 2011, the Court ruled that the parties must be separated before they file a separate, support and maintenance action. If a spouse does not have sufficient evidence to allege a fault ground, the parties must separate before they can file an action in the Family Court. Someone has to move out of the marital residence.

The South Carolina Supreme Court recently rendered an opinion in the case of The Town of Mount Pleasant vs. Roberts. This is another case dealing with law enforcement’s failure to produce a video tape during a DUI arrest. According to South Carolina Code Section 56-2-2953, law enforcement is required to produce a video recording of a person’s conduct at the incident site of a DUI arrest. The video recording must begin no later than the activation of the officer’s blue lights and conclude after the arrest of an individual for DUI or DUAC. The video recording must include the person being apprised of their Miranda warnings and any field sobriety tests administered.

Pursuant to 56-2-2953, the failure to produce an incident site video recording may be excused under certain circumstances, so long as an officer provides a sworn affidavit. Most recent cases, both at the appellate level and at the trial level, deal with the state failing to produce an affidavit and/or the state producing a video that does not capture all that is required under 56-2-2953.

Mount Pleasant vs. Roberts is interesting because it deals with the scenario in which the officer’s cruiser has not yet been equipped with a video camera. The City made the argument that because the officer’s vehicle had not yet been equipped with a video camera, they were excused from complying with the statute. It is important to note that the law requiring in-car, or incident site video recordings, was enacted in 1998; so the City has had over ten years to comply with this legislative requirement. It is also important to note that the South Carolina Department of Public Safety is required to provide the cameras to local law enforcement agencies.

The Supreme Court ruled that the City was not excused from compliance with the statute because ten years had passed and they had not requested video cameras from the Department of Public Safety, even though they had a very high rate of DUI arrests. The Court noted that smaller municipalities, with fewer overall DUI arrests, had complied with the statute and equipped their vehicles with in-car video cameras.

The Court noted that if they were to following the City’s logic, the City could forever fail to comply with the statute without recourse, by simply failing to request in-car cameras from DPS. Because the City failed to comply with the videotaping requirements of 56-2-2953, the appropriate remedy was dismissal of the case.

On a personal level, this case is welcome news. There are several municipalities in the Upstate that refuse to equip their cars with in-car video cameras, and these are not small municipalities. These are large municipalities with lots of revenue. These municipalities have taken the identical position to justify their failure to produce the statutorily required video recordings.

One of the more frequent calls I receive is from a parent wanting to change their child’s name. In the majority of cases a parent wants to change a child’s last name. By the time the potential client calls me, she is usually confused as to why she has been referred to lawyer to deal with a name change.
There is a misconception that a child, or an adult for that matter, can have their name changed by simply filling out a form. For better or worse, in South Carolina an individual who seeks a name change, whether that is an adult who wants to change their name or a parent or guardian who wants to change their child’s name, must file an action in the Family Court.
In the case of a parent or guardian who wants to change a child’s name, a Guardian ad Litem must be appointed to investigate the potential name change and report to the Family Court whether or not the Guardian ad Litem believes the name change is in the best interest of the child.
According to South Carolina Code Section 15-49-10(B) a parent may petition the Family Court to have their child’s name changed. If the Family Court finds that the name change is in the best interest of the minor child, the court must grant the petition. S.C. Code Section 15-49-10(B).
The Court primarily looks at nine different factors to determine whether the name change is in the best interest of the child: (1) the length of time that the child has used the present surname; (2) the effect of the change on the preservation and development of the child’s relationship with each parent; (3) the identification of the child as part of a family unit; (4) the wishes of the parents; (5) the stated reason for the proposed change; (6) the motive of the parents and the possibility that the use of a different name will cause insecurity or a lack of identity; (7) the difficulty, harassment, or embarrassment that the child may experience when the child bears a surname different from the custodial parent; (8) the preference of the child if the child is of an age and maturity to express a meaningful preference; and (9) the degree of community respect associated with the present and proposed surname. Mazzone v. Miles, 341 S.C. 203, 210, 532 S.E.2d 890, 893 (Ct. App. 2000).

May 16th – May 20th is amnesty week at the South Carolina Department of Motor Vehicles. During this week, individuals who have a suspended driver’s license can petition the DMV to have their current suspension terminated. Those eligible for amnesty include individuals whose license has been suspended for:
1. Driver’s under the age of 18 whose privileges have been suspended for excessive points.
2. Driver’s whose privileges have been suspended for operating an unlicensed taxi or unlicensed vehicle.
3. Driver’s whose privileges have been suspended for operating an uninsured vehicle that they did not own.
4. Driver’s whose privileges have been suspended for a Driving Under Suspension conviction, excluding alcohol and drug related convictions.
An individual seeking amnesty will still be required to satisfy the normal conditions associated with having their license reinstated, such as acquiring SR-22 insurance if required, completing ADSAP if required, and paying the required reinstatement fees.

Effective April 12, 2011, a controlled substance conviction will no longer result in a suspended driver’s license. The legislature repealed South Carolina Code Section 56-1-745, which required the DMV to suspend the driver’s license of any person convicted of a drug offense for a period of six months.