Criminal Law

by Alex Kornfeld

South Carolina Simple Possession of Marijuana Laws: How Much?

by Alex Kornfeld

Spousal Immunity Law in South Carolina: Can my Husband or Wife be Forced to Testify Against Me?

CAN YOUR SPOUSE BE FORCED TO TESTIFY AGAINST YOU IN SOUTH CAROLINA?

With the recent plot of Breaking Bad, I’ve received some inquires about whether a person can be compelled to testify against their spouse during a trial (civil or criminal) in a South Carolina State Court.  In most cases, the answer is ‘no’ unless the communication was not vocal or if it concerned or was based on child abuse, neglect, the death or a child, or criminal sexual conduct involving a minor.  See SC Code 19-11-30.

In this season (season 5) of Breaking Bad it will be interesting to see whether Jesse Pinkman divulges any information about a child’s death that would make an otherwise valid spousal immunity privilege that may be invoked by Walter or Skyler invalid if they were charged with a crime in South Carolina.

In short, Skyler can choose to testify against Walter, but she can’t be forced to unless it involves the death of a child, or an exception like the one stated above.

Once can only presume the legislatures intent when drafting this law was to promote confidential communication amongst spouses.

The spousal immunity privilege is not as strong as an attorney-client privilege because this privilege can be enacted by a spouse but a spouse can also choose not to enact the privilege.  Further, the South Carolina Supreme Court held that the physical act of assault may not be considered as communication. In the case of State v. Govan, 320 S.C. 392 the Court held a spouse can be compelled to testify to what occurred between spouses if the occurrence is an action.  Essentially, acts are not considered communication that would be eligible for the spousal immunity privilege.

Alex Kornfeld is a Criminal Defense and Family Law Attorney in Greenville, SC. If you, or someone you know has been arrested, or is under suspicion of a crime, it may be in your best interest to consult with an attorney first. You may reach Atty. Kornfeld at his office 864-335-9990

by Alex Kornfeld

CAN I BE CHARGED WITH POSSESSION OF A SUBSTANCE THAT I DON’T POSSESS IN SOUTH CAROLINA

In South Carolina, is it really “The Hand of One Is the Hand of All?”

Don’t leave your common sense behind when you leave for college.

The scenario is all too common in the criminal defense field:  An officer pulls over a car, does a search and finds marijuana in the vehicle.  The marijuana is not physically possessed by anyone.  All the individuals in the vehicle state they don’t know who owns the marijuana but they do know it isn’t their marijuana. In this scenario, an officer will most likely charge all the passengers with possession of marijuana under a theory of what is legally referred to as constructive possession.  If you have been charged with possession under a constructive possession theory the state must prove that you had possession, or dominion and control in this case, and that you had knowledge of that possession.

If you are charged you will have the right to a jury trial and you or your lawyer can defend you by stating that you did not possess any drugs and that you could not be in possession of the drugs because the drugs were found in X and you were seated at Y so therefore there is no way you were in possession. Whether you are found guilty or not guilty will ultimately be decided by a jury that has to decide whether they believe you or not. This isn’t a situation you want to be in so be safe, and don’t ride in vehicles with people who may be carrying drugs or you might be calling me to defend you.

If you are a South Carolina Life Scholarship recipient you should know that if you are convicted of any felony or you have been convicted of a second subsequent alcohol or drug-related misdemeanor in any state within the past academic year you will be ineligible for the life scholarship.

Alex Kornfeld is a Greenville, SC Criminal Defense Attorney. If you, or someone you know has been arrested, or is under suspicion of a crime, it may be in your best interest to consult with an attorney first. You may reach Atty. Kornfeld at his office 864-335-9990

by Alex Kornfeld

CAN A POLICE OFFICER OPEN YOUR DOOR WITHOUT PROBABLE CAUSE?

A STORY ILLUSTRATING HOW OPENING THE DOOR WITHOUT PROBABLE CAUSE MAY NOT VIOLATE YOUR RIGHTS IN SOUTH CAROLINA

It is a rare occurrence when a criminal defense attorney has the opportunity to talk to someone before one is charged with a crime.  To quote, Lt. Colonel Frank Slade, “Are you listenin’ to me, son? I’m givin’ ya pearls here.”

On July 17, 2013 the South Carolina Supreme Court held that an officer can open the door of a car at a traffic stop if the cop feels threatened in the case of Gregory McHam v. State without violating the law.  Specifically, the court held that opening the door of a vehicle during a traffic stop constitutes a search under the fourth amendment but that if a cop is opening the door because he is worried about his safety a warrant is not needed.

In the McHam case, McHam and and his passenger, Kobe Carter, were stopped at about10:50 p.m. at a safety checkpoint.  There were three officers at the checkpoint.  At the stop, the cop asked McHam to provide his driver’s license, registration, and proof of insurance.  McHam promptly provided his driver’s license but he and Carter were not able to find his registration or proof of insurance before the Cop walked to the other side of the vehicle to make sure neither party was attempting to access a weapon.  The cop stated once he got to the other side of the vehicle he could not see the passengers hands because it was dark and there wasn’t much light so for his safety he opened the door to see what they were doing.  As soon as he opened the door, he saw a bag of crack between the seat and the passenger door.

Here are your pearls.  When stopped at a checkpoint or otherwise lawfully pulled over it is in your best interest to have your license, registration, and proof of insurance readily accessible. If a cop convinces a court that he opened your door at a search because he was concerned about his safety the court may find that opening the door falls within an exception to the warrant requirement.

Some have commented on the veracity of the cop’s statement that he opened the door for his safety.  Some have stated the cop’s real intention was to violate McHam’s 4^th amendment rights.  It’s easy to speculate about what happened at the checkpoint but the South Carolina Supreme Court has spoken and stated this was a warrantless search but that the cop legally opened the car door under an exception to the rule.  The exception in this case hinged on whether the cops claim that he opened the door for safety reasons was reasonable in the particular case. Here, the Court held the cops safety was a legitimate concern and thus reasonable because McHam and Carter were looking for registration or insurance papers in places they would not normally be kept, the cop could not see either parties hands, the area was dimly-lit, there was more than one occupant in the vehicle, and the fact that only one cop approached the vehicle.

Keep your doors locked. Have your license, registration, and proof of insurance readily available and obviously don’t drive around with illegal substances in your car.

Alex Kornfeld is a Criminal Defense Lawyer in Greenville, SC. If you, or someone you know has been arrested, or is under suspicion of a crime, it may be in your best interest to consult with an attorney first. You may reach Atty. Kornfeld at his office 864-335-9990

by Alex Kornfeld

Probable Cause – South Carolina Laws

What constitutes probable cause in a criminal defense case in South Carolina?

Black’s Law Dictionary defines probable cause as a reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime.  In other words, an officer needs to show that it is more likely than not that the person being arrested violated the law for which they are being arrested for.

An officer needs probable cause to make an arrest.  An officer can acquire probable cause in a couple of different ways.  The officer can go before a detached magistrate and request a search warrant or arrest warrant or the officer can make a warrantless search of arrest if he has probable cause.

If an officer acquires evidence by breaking the law himself (i.e. In this case, violating a person’s 4^th amendment rights) the evidence that has been acquired may be suppressed.

Vehicle Stop:  If probable cause exists to stop a vehicle an officer may order the driver to get out of the vehicle and request a driver’s license, vehicle registration, run a computer check and issue a citation without violating a driver’s rights.  If the cop detains the driver and questions the driver about facts that are irrelevant to the stop it will most likely be deemed a violation of the driver’s constitutional rights UNLESS the cop has reasonable suspicion of a serious crime.  State v. Rivera, 682 S.E.2d 307, 384 S.C. 356 (S.C. App. 2009)

Sources:  US Constitution 4^th amendment, SC Constitution Art. 1, § 10.; State v. Dunbar, 603 S.E. 2d 615, 361 S.C. 240 (S.C. App. 2004), State v. Rivera, 682 S.E.2d 307, 384 S.C. 356 (S.C. App. 2009); Black’s Law Dictionary

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Alex Kornfeld is a criminal defense lawyer in Greenville, South Carolina. If you have been charged with, or are under suspicion of a crime, you may contact the office at 864-335-9990.

by Alex Kornfeld

Reasonable Suspicion of a Crime in South Carolina

Black’s Law Dictionary defines reasonable suspicion as a particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.  In laymen terms, reasonable suspicion can be created by characteristics of a location a person is found, the hour of the day, the actions witnessed, flight of a person, third party tipsters, and a cop’s experience and intuition.  Generally, one factor like the ones listed above will not be enough to create reasonable suspicion. For example, a tip from a person by itself is generally not enough to create a level of reasonable suspicion. 

In South Carolina an officer of the law can briefly detain one if that officer has reasonable suspicion to conclude that criminal activity is occurring.  Reasonable suspicion is a lower standard than probable cause.  Reasonable suspicion can be created through articulable facts such as timing, a person’s behavior, an objective manifestation of criminal activity, or a totality of all the circumstances.

If an officer has reasonable suspicion and his initial stop does not rid him of fear for himself or others he has the right to do a terry frisk. A terry frisk is a pat down limited to one’s outer clothing for the purpose of discovering weapons.  If a weapon is discovered during a lawful terry frisk it will be admitted into evidence.

If you believe an officer lacked reasonable suspicion to stop you there is a possibility you are right.  The facts or each case are highly relevant and will be material to the Court when it decides whether evidence should be allowed or suppressed.

Alex Kornfeld is a Criminal Defense Attorney in Greenville, SC. If you, or someone you know has been arrested, or is under suspicion of a crime, it may be in your best interest to consult with an attorney first. You may reach Atty. Kornfeld at his office 864-335-9990

Sources:  Black’s Law Dictionary; State v. Taylor, 694 S.E.2d 60, 388 S.C. 101(S.C. App. 2010)

by Alex Kornfeld

Speeding and Traffic Tickets

Should I Hire a Greenville, SC Traffic Court Lawyer?

If you have received a citation for a traffic violation it may be in your best interest to hire a traffic ticket lawyer to represent you.

If you feel you are not guilty of the offense in which you have been charged then analyzing the facts, procedure, penalties, cost, and the overall circumstances concerning the case is important.

If this represents you, hiring a Greenville, SC Traffic Ticket Attorney may be in your best interest.

Are you curious how many points you have against your South Carolina Driver’s license?  If so go to https://www.scdmvonline.com/dmvpublic/trans/drecpoints.aspx and enter the required information to find out.

If you have 12 points or more against your license then your license will be suspended.

Points against your driving record will be cut in half after one year.  For example, if you were found guilty of Reckless Driving which is a 6 point ticket on January 1, 2013 then on January 1, 2014 you would only have 3 points against your license.

Points against your license could result in a higher insurance premium. The amount of points posted against your driver records depends on the infraction but some of the most common infractions are speeding not more than 10 m.p.h. which carries 2 points, more than 10 mph. about the posted speed limit which carries 4 points, failing to yield the right of way which carries 4 points, and following too closely which carries 4 points.

If you are guilty of the infraction you may benefit by taking a defensive driving course which could reduce the amount of points you have against your license.

Alex Kornfeld is a Criminal Defense lawyer in Greenville, South Carolina.  He primarily practices law in the area of criminal defense, family law, and small business law. You can contact him at 864-335-9990 or alex@alexkornfeld.com   This article is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of an attorney/client relationship.

Sources: http://www.scdmvonline.com/DMVNew/default.aspx?n=point_system

by Alex Kornfeld

Bond Hearings in South Carolina

Greenville, South Carolina Bond Hearing Lawyer

If a person has been charged with a crime and is currently in jail, that person most likely appeared before a Judge and that Judge either set bond or denied bond entirely.  In either case, that person is entitled to one bond hearing.

You can be represented by a Criminal Defense Attorney when appearing in South Carolina Bond Court. At the hearing, the Court must make a decision whether bond is appropriate, whether to decrease the bond, or, in some rare instances, whether the bond should be increased.

The Court will consider two issues;

(1)      the Defendant’s flight risk and;

(2)      the Defendant’s threat to the community.

(1) When determining flight risk the Court will generally consider the ties the accused has to the community, ties the accused may have outside of the community, resources, and any factor that may affect the accused’s ability to appear should the bond be reduced.

(2) The Court generally reviews the allegations against the accused, whether the crime is violent, whether there is a strong possibility that a victim will be harmed should the accused be released, and the accused’s prior record.

A bond hearing is a serious proceeding in which an attorney must take the appropriate time to prepare.  You should know that bond hearings do not happen every day, and if you or the accused is faced with a bond that is not attainable, the time to hire an attorney is sooner rather than later.  In Greenville County, South Carolina the Defendant’s lawyer must request, receive, and review initial discovery prior to filing a motion for bond reduction unless the Defendant is being held without bond.

Motion for Bond Reconsideration

If the accused has already had a bond hearing in connection with the accused charges, the accused can request a reconsideration if there is a considerable change in circumstances.  In most cases, there is not a considerable change in circumstances.

Bond Defined and Types of Bond

Bond is a restraint the Courts put on a Defendant to insure the Defendant will make all required appearances.  There are three common bonds.  They are the personal recognizance bond, the surety bond, and the property bond.

The personal recognizance bond, or PR bond, is a bond in which nothing is held by the Court or a bondsman.  The Defendant’s word and signature stating that the Defendant will make all appearances is all that is required.

The surety bond is the bond in which a monetary bond is required.  A Defendant, or someone on Defendant’s behalf, can tender an amount to the Court for bond or hire a bondsman.  A bondsman will require significantly less to bond the Defendant out of jail than the actual bond.

A surety bond in which property is put up as collateral will hold the bond when a party who has property in the County (or jurisdiction) in which the Defendant is charged puts the property up as a surety against the Defendant’s flight risk.

A cash bond is an amount the Defendant puts up for collateral and is held to insure that the Defendant makes all required Court appearances.  If the Defendant fails to appear, his bond may be terminated and the bond may be forfeited.

Alex Kornfeld is a Criminal Defense lawyer in Greenville, South Carolina.  He primarily practices law in the area of criminal defense, family law, and small business law. You can contact him at 864-335-9990 or alex@alexkornfeld.com   This article is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of an attorney/client relationship.

by Alex Kornfeld

EXPUNGEMENT OF CRIMINAL RECORDS AND PARDONS IN SOUTH CAROLINA

An expungement removes a prior charge from one’s record.  In certain situations, the law of South Carolina affords you the right to have a prior charge removed or expunged.  This article attempts to explain what charges may qualify to be expunged as well as which charges do not qualify.

Criminal Charges In Which The Defendant Was Found Not Guilty Or In Which The Charges Were Dismissed

If you were charged with a crime that you were found not guilty of or if the charge was dismissed, you are eligible for an expungment at no cost.  If your case was in a Magistrate or Municipal Court, which generally means it is not a felony, after June 2, 2009 the Court will expunge your case automatically.  If you were charged prior to June 2, 2009 and the charge was dismissed or you were found not guilty, you or your lawyer can apply directly to the Court for an expungement.

Exception To The Rule

If you were charged with a crime under title 50 (the South Carolina Code which concerns Fish, Game, and Watercraft, or with a traffic violation, or for violating a county or municipal ordinance) and you were not fingerprinted at the time of arrest, the Court has the discretion as to whether they will expunge the charge.

Charges That Can Qualify For Expungements

If you successfully complete one of the following programs in connection with the relevant crime or you were charged with a crime as stated below, you may be eligible for an expungement.

PTI (pre-trial intervention);

An Alcohol Education Program;

Traffic Education Program;

Non-violent Juvenile Offenses;

1^st Offense Misdemeanor Fraudulent Check;

Conditional discharge for simple possession of marijuana or hashish;

1^st Offense Conviction in Magistrate Court;

Youthful Offender Act (1^st Offense for Defendants between 17-24, no other conviction for 5 years after completion of sentence, the original offense was non-violent misdemeanor, Class D, E, F felony or a Felony with a maximum term of 15 years imprisonment);

1^st Offense Failure to Stop when signaled by a law enforcement vehicle;

and soon one with a possession with intent to distribute a controlled substance may apply for an expungement twenty years from the date of the completion of any sentence, including probation and parole, for a drug conviction or any felony conviction may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction and any associated bench warrant.

Some Criminal Records Destruction;

Any other statutory authorization;

your charge can be expunged.

If You Qualify For An Expungement

I recommend you seek the advice of a criminal defense lawyer in the County in which you are seeking an expungement.  If the charge is not a magistrate or municipal charge as outlined above then you and your lawyer should fill out the application for expungement for that specific County.

Expungement Fees

The administrative fee paid to the Solicitor’s Office is $250, a $25 fee is paid to SLED, and a $35 filing fee is paid to the Clerk of Court.  The fees must be paid by separate money orders and refunds are not granted.  SLED, the Solicitor’s Office and a Circuit Court Judge must all approve the expungement.

Pardon

If you are not eligible for an expungement you may qualify for a pardon.  A pardon, in short, reinstates your rights as a citizen so you can vote, resume a licensed profession, carry a gun, hold public office, etc. and the pardon ends your penalty.  To learn more about pardons go to the South Carolina Bar website or click  http://www.dppps.sc.gov/apply_for_a_pardon.html to download the pardon application.

Alex Kornfeld is a criminal defense lawyer in Greenville, South Carolina.  He primarily practices law in the area of criminal defense, family law, and small business law. You can contact him at 864-335-9990 or alex@alexkornfeld.com   This article is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of an attorney/client relationship.

Sources Used:

http://www.judicial.state.sc.us/expungementInfo/expAppProcessGS.cfm

http://www.scbar.org/PublicServices/ExpungementandPardons.aspx

http://www.greenvillecounty.org/solicitor/expungements.asp

http://www.dppps.sc.gov/apply_for_a_pardon.html

South Carolina Code Section 22-5-910; 17-22-910

http://www.greenvillecounty.org/solicitor/pdf/expungement_greenville.pdf

https://www.scstatehouse.gov/sess122_2017-2018/bills/3209.htm

by Alex Kornfeld

Am I Eligible For PTI?

Pre-Trial Intervention (PTI) in South Carolina

PTI, or pre-trial intervention, is a statutorily enacted pre-trial program that allows those charged with a crime in the state of South Carolina to escape the stresses of trial preparation, a lengthy trial, and a possible guilty plea or finding by a jury that one is guilty.

PTI has many advantages that traditional cases are not afforded.  For example, there is certainty in the outcome.  If a Defendant is eligible for PTI, it is entirely in that Defendant’s hands to enter the program, complete the program, and pay restitution if any is ordered.  This should give a Defendant the peace of mind that he controls his own destiny.  After the Defendant completes the program, the charges will be dropped.  At that time, a Defendant has the opportunity to have his record expunged.  Unfortunately, there are varying Court costs involved.  There is no flat line fee, but a Defendant can expect to pay approximately $300.00 in Court costs.

Several counties have a program similar to PTI for juveniles charged with a crime.  For example, Greenville County offers juvenile diversion services; the cost is currently $200.  Pickens County offers a similar program called the juvenile arbitration program.  It is important to note that while the programs in place for a juvenile charged with a crime are similar to PTI,  they are not the same, and there is no rule that states one that was enrolled in a program as a juvenile must be denied PTI as an adult.

Who Is Eligible For PTI?

The State has prosecutorial discretion when deciding whether a criminal defendant is eligible for PTI.  A solicitor will consider whether they will offer PTI on a case by case basis.  In laymen’s terms, a solicitor has the power to do what he or she wants to do.  That means a Defendant can be denied PTI for a crime that would otherwise be statutorily eligible for PTI.

Who Isn’t Eligbile For PTI?

Pursuant to the South Carolina Code of Laws, the following are NOT eligible for PTI:

• Persons previously considered for PTI;
• If the person is charged with:
  • Blackmail
  • DUI or DUAC
  • A traffic-related offense which is punishable only by fine or loss of points like a speeding ticket
  • The following fish, game, wildlife, or commercial fishery-related offenses:
  • resisting arrest by the use of force, violence, or weapons against an employee of the department while engaged in his duties, a law enforcement officer aiding in the work of the department, or a federally commissioned employee engaged in like or similar employment
  • night hunting deer or bear
  • killing or possessing a wild turkey during the closed season
  • roost shooting wild turkeys between official sunset and official sunrise
  • shooting wild turkeys over bait
  • trespassing to hunt waterfowl
• a crime of violence as defined in Section 16-1-60[i]
•  an offense contained in Chapter 25 of Title 16 (like CDV) if the offender has been convicted previously of a violation of that chapter or a similar offense in another jurisdiction.

If you are still reading this article, I assume that you or your loved one may still be a candidate for PTI.  Talk with your lawyer and be proactive in your case.  There is only a certain window of time in which a Defendant is allowed to enter PTI. If you or your loved one fails to show initiative, a Solicitor has little reason to offer PTI and your lawyer may fail to mention it to you because he may not have the confidence that you will be able to complete the program.

Make sure that you or your loved ones take the process seriously; you should make sure you are an active participant in your case.

What You Need To Bring With You When You Apply For PTI

In most jurisdictions, when you apply for PTI you must have:

1. A $100.00 money order (That Means No Cash/No Check)
2. Your picture ID
3. Your Social Security Card
4. A copy of your warrant(s) or ticket(s).

Alex Kornfeld is a criminal defense lawyer in Greenville, South Carolina.  He primarily practices law in the area of criminal defense, family law, and small business law.