An ignition interlock device is a breath testing device that is installed in a vehicle. The device requires a person to provide a breath sample prior to starting the vehicle, and also requires a person to provide breath samples while they are driving (rolling re-tests). Generally, the cut of level is a breath alcohol content of .02.

Under current law, a person is only mandated to have an ignition interlock device installed if they are convicted of a DUI 2nd offense or greater.

Under the proposed legislation, an ignition interlock device will be required even on a first offense DUI.

Also, the ignition interlock will be required in implied consent situations. If a person refuses to provide a breath sample, or provides a breath sample of .08 or greater, that person will have to have an interlock device as a condition of any restricted driver’s license issued by the DMV. And if a person requests an administrative hearing, they will be required to have an ignition interlock as a condition of their Temporary Alcohol License.
We’ll have to wait and see if this legislation actually becomes law.

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.

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.

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.