South Carolina Criminal Defense Blog

Last week in court I saw an attorney who was pleading his client to a DUI 2nd offense and was taken completely by surprise by the stack of forms that his client was required to sign before the Court would hear the guilty plea. Among them was the requirement that an ignition interlock device be installed on the defendant's car, following the suspension period. Even after the solicitor explained what it was to the defense attorney, the lawyer did not explain it to his client but just put the papers in front of him, said sign here, here, and here, and then continued with the plea.

Every attorney that handles DUI cases needs to be aware of these requirements, found in S.C. Code Sec. 56-5-2941 and 56-5-2942, which are complicated, draconian, and can easily result in further penalties down the road with limited due process. Following any conviction for DUI 2nd offense or greater, the person's driver's license is suspended, they must "immobilize" (surrender the tags and registration) all vehicles registered in their name for 30 days (during the suspension period), and after the suspension period has run they must install an ignition interlock device.

Even if a DUI 2nd is remanded to the magistrate court for a plea to DUI 1st, the ignition interlock requirement applies, because it is determined by what is on the driving record and not what is before the Court. After a 2nd offense DUI the ignition interlock must be complied with for 1 year, after a 3rd offense 3 years, and after 4th offense the law says a defendant must have an ignition interlock device for the rest of their life, although there is a separate provision to apply for relief after 10 years.

The person has to pay a monthly fee to the probation department who supervises the interlock device, and has to have it inspected every 60 days. There is then a point system, where the person receives points if the machine registers greater than a .02 BAC or if the person does not have the inspection done each 60 days. Points lead to a longer period of time with the device, a requirement of enrolling in counseling with DAODAS, or a further license suspension. The remedy for assessment of points by the probation department is to appeal the decision . . . to the probation department. You won't get a hearing or be permitted to present evidence before they make their decision.

If the person does not follow the requirements, further criminal charges and jail time could result. If the person drives without installing the device, they can be charged criminally and punished as if they were guilty of DUI. Tampering with the device, providing a car to someone who is required to use the device, asking another person to start the car, or starting the car if you are another person are misdemeanors that carry up to 30 days in jail.

Note that on SCDPPPS's FAQ on their website, it says that if another persons drives the vehicle, they will have to blow into the interlock device as well. The law, on the other hand, says that it is a misdemeanor punishable by 30 days for another person to use the car.

Ignition interlock devices are no more reliable than Datamaster machines, and probably less so. The machine will make mistakes, and this coupled with the stringent reporting requirements and lack of due process for violations is bound to land many people into an administrative nightmare. Maybe that was the drafter's intention?