If you are charged with a drug crime, and if you have prior convictions for drug offenses, there may be consequences including stiffer penalties – even the possibility of life without parole (LWOP) for some offenses.
Below, we will discuss the effect of prior convictions in drug cases, including:
- What a prior conviction means,
- How to get a copy of your criminal record,
- How to determine when prior drug convictions count,
- When you can get life without parole for a drug charge, and
- The effect of prior convictions on expungements in South Carolina.
What is a Prior Conviction?
A “prior conviction” means an offense that you have been convicted of in the past. In general, when you have prior convictions, you can expect stiffer penalties and less sympathy from the prosecutor and the court.
In many cases, prior convictions will “enhance” your potential sentence on a new charge – this is especially true when you are charged with a drug offense. Prior convictions can:
- Result in mandatory minimum sentences,
- Prevent you from getting a probationary sentence,
- Result in a sentence of life without parole (LWOP) under South Carolina’s three-strike law, and
- Prevent you from getting an expungement.
Where Do You Get a Copy of Your Criminal Record?
You can get a copy of your SC criminal record on SLED’s website by paying a $25 fee. The prosecutor and the courts, however, will rely on your criminal record contained in the NCIC database – this is your official criminal record nationwide that is usually accessible only by government agents (police officers, prosecutors, probation officers, or court officials, for example).
Unless a charge has been expunged, NCIC will reflect 1) arrests and charges, 2) dismissals or acquittals, and 3) convictions.
Only the convictions count, but, unless your record has been expunged, prosecutors and court officials will also see what a person was originally charged with, even if the charges were dismissed.
How Do You Determine Prior Convictions for Drug Charges?
SC Code § 44-53-470 explains when prior convictions for drug charges count and when they do not count:
- If you are charged with a marijuana offense, a prior first-offense conviction for marijuana counts if it was within the last five years (except trafficking),
- If you are charged with a marijuana offense, a prior second or third offense conviction for marijuana counts, and there is no time limit,
- If you are charged with a marijuana offense, prior convictions for other types of drugs do not count (except trafficking),
- If you are charged with any other drug offense (not marijuana), prior convictions for marijuana do not count (except trafficking),
- If you are charged with any other drug offense (not marijuana), prior convictions for any other first-offense drug charges (not marijuana) count if they were within the last ten years (except trafficking),
- If you are charged with any other drug offense (not marijuana), prior convictions for any other second- or third-offense drug charges (not marijuana) count, and there is no time limit, and
- Prior convictions for trafficking in any type of drug (including marijuana) always count, and there is no time limit.
What Effect Does a Prior Conviction Have on Sentencing?
When it comes to sentencing, prior convictions can make the difference between pretrial diversion, a fine, or even a life sentence:
- If your prior drug convictions count (see 44-53-470 above), you may be looking at 1) increased potential sentences and 2) mandatory minimum sentences if you are convicted,
- If you have prior convictions for drug trafficking, distribution, manufacturing, or possession with intent to distribute in proximity to a school you may be facing South Carolina’s three-strikes law and the possibility of a life without parole (LWOP) sentence, and
- Prior convictions can prevent you from getting an expungement for drug charges.
SC’s Three Strikes Law: Can You Get Life Without Parole for a Drug Charge?
Under SC Code § 17-25-45, you can be sentenced to life in prison without the possibility of parole if you have 1) one or more prior convictions for a “most serious offense” or 2) two or more prior convictions for a “serious” offense.
“Most serious offenses” do not include drug crimes, but you can get a sentence of life without parole under South Carolina’s “two-strikes law” if you are charged with and have at least one prior conviction for:
- Attempted murder,
- Voluntary manslaughter,
- Homicide by child abuse or aiding and abetting homicide by child abuse,
- Lynching first degree,
- Assault and battery by mob first degree,
- Criminal sexual conduct (CSC) first or second degree,
- CSC with a minor (with some exceptions),
- Assault with intent to commit CSC first or second degree,
- Kidnapping and conspiracy to commit kidnapping,
- Human trafficking,
- Arson first degree,
- Burglary first degree,
- Armed robbery and attempted armed robbery,
- Use of an explosive incendiary device where death results,
- Taking of a hostage by an inmate,
- Gathering information for or giving certain information to an enemy during wartime,
- Abuse or neglect of a vulnerable adult resulting in death,
- Removing or damaging airport equipment where death results,
- Interfering with traffic control devices when death results,
- Obstruction of a railroad where death results, or
- Accessory or attempt for any charges listed as a “most serious” offense.
“Serious” Offenses Include Drug Trafficking, Distribution, Manufacturing, or Proximity Convictions
If you are charged with and have two or more prior convictions for a “serious” offense, you can be sentenced to life without parole.
Serious offenses include drug trafficking, drug manufacturing, drug distribution, or possession with intent to distribute within proximity of a school.
Other serious offenses that can result in life without parole under South Carolina’s three-strike law include:
- Lynching second degree,
- Assault and battery by a mob second degree,
- Engaging a child for sexual performance,
- Accepting a bribe by an officer,
- Accepting a bribe for purposes of gaining public office,
- Arson second degree,
- Burglary second degree,
- Theft using an ATM,
- Embezzlement of public funds,
- Breach of trust with fraudulent intent,
- Obtaining signature or goods by false pretenses,
- Domestic violence first degree or domestic violence high and aggravated,
- Insurance fraud,
- Felony DUI resulting in death,
- Abuse of a vulnerable adult resulting in great bodily injury, or
- Accessory before the fact or attempt to commit any of the above offenses.
How do Prior Convictions Affect Expungements for Drug Charges?
SC Code § 22-5-930 says that you can get some first-offense drug convictions expunged – 1) it must be your first offense drug conviction (other types of convictions are not prohibited), and 2) you must have no other convictions of any type during the “waiting period” between conviction and expungement:
- First-offense convictions for simple possession of any type of drug can be expunged after three years, and
- First-offense convictions for possession with intent to distribute (PWID) any type of drug can be expunged after 20 years.
For example, if you had a prior conviction for simple possession of marijuana, and now you have been convicted for simple possession of cocaine, you cannot get the cocaine conviction expunged.
On the other hand, if you had a prior conviction for grand larceny, and now you have been convicted for simple possession of heroin, you can get the heroin conviction expunged after three years if you have no other convictions during those three years.
Questions About Prior Convictions?
If you have drug charges in South Carolina, get an experienced drug crimes defense lawyer on your side immediately who can begin preparing your defense, work to get your case dismissed, negotiate on your behalf, and try your case to a jury when necessary.
Call 843-761-3840 or use this form to contact us today to discuss your case and start working towards the best possible outcome for you.
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