If a drunk driver causes the death of a parent, should the defendant be required to pay child support to the surviving parent or guardian?
That’s what SC legislators say a proposed bill would require, except the legislation as it is written doesn’t make sense, won’t prevent drunk driving deaths, and, in all but a few cases, won’t result in drunk drivers paying child support to the surviving children of drunk driving victims.
What is the pending legislation, what inspired it, and why wouldn’t it work?
Pending Legislation in SC that Would Require Drunk Drivers to Pay Child Support
House Bill 5299 is currently pending in the SC House, and a similar bill has been proposed in the SC Senate, although neither will be passed into law this legislative session.
The bill would make defendants financially responsible for a surviving child if the defendant is convicted of reckless vehicular homicide (vehicular manslaughter) while under the influence:
H 5299 General Bill, By W. Cox, Jones, White, West, Collins, B. Cox, Wooten, Caskey, T. Moore and Hyde
Similar (S 1301)
Summary: Driving or boating under the influence
A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 56-5-2937 SO AS TO PROVIDE PERSONS CONVICTED OF RECKLESS VEHICULAR HOMICIDE WHILE UNDER THE INFLUENCE OF ALCOHOL OR ANY OTHER DRUG OR COMBINATION OF DRUGS, OR CONVICTED OF RECKLESS VEHICULAR HOMICIDE AND HAD AT LEAST ONE PRIOR CONVICTION FOR DRIVING MOTOR VEHICLES UNDER THE INFLUENCE OF ALCOHOL, ANY OTHER DRUG, OR A COMBINATION OF OTHER DRUGS OR SUBSTANCES, OR DRIVING MOTOR VEHICLES WITH AN UNLAWFUL ALCOHOL CONCENTRATION AND WHOSE VICTIMS WERE PARENTS OF MINOR CHILDREN, MUST PAY RESTITUTION IN THE FORM OF CHILD MAINTENANCE TO EACH OF THE VICTIMS’ CHILDREN UNTIL EACH CHILD REACHES EIGHTEEN YEARS OF AGE AND HAS GRADUATED FROM HIGH SCHOOL; AND BY ADDING SECTION 50-21-118 SO AS TO PROVIDE PERSONS CONVICTED OF OPERATING MOVING WATER DEVICES WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS WHEN DEATH RESULTS, OR RECKLESS HOMICIDE WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS AND WHOSE VICTIMS WERE PARENTS OF MINOR CHILDREN, MUST PAY RESTITUTION IN THE FORM OF CHILD MAINTENANCE TO EACH OF THE VICTIMS’ CHILDREN UNTIL EACH CHILD REACHES EIGHTEEN YEARS OF AGE AND HAS GRADUATED FROM HIGH SCHOOL.
What prompted this legislation? Will it work to prevent drunk driving deaths? If it doesn’t prevent drunk driving deaths, will it actually result in compensation to surviving parents or guardians?
The proposed law is modeled after “Bentley’s Law” in Missouri which is named after a child who lost both parents in a drunk driving accident.
What are the problems with the law?
First of all, proposed legislation that is named after a crime victim (see also Emma’s Law) is often a knee-jerk response by legislators who 1) want to appear as if they are doing something to address the problem and 2) don’t mind using deceased crime victims to promote their legislative agendas.
It sounds like a good idea at first glance – it’s tough on DUIs, and it compensates for the loss of a parent. What’s the problem?
First, the legislation’s sponsor himself says that it’s not going to fix the problem of drunk driving deaths and won’t even deter drunk drivers:
“DUI is a problem, no matter what, in any community,” he explained to WCNC Charlotte during a Zoom interview on Thursday, May 5. “This certainly won’t fix that, it won’t necessarily deter it, but maybe this will help take care of those children that are left behind in these types of situations.”
But it will take care of the children who have lost their parents, right? Think of the children…
Except, no, it probably won’t.
The Proposed Legislation in Most Cases will not Result in Drunk Drivers Paying Child Support
Most people in SC who are convicted of felony DUI resulting in death – the most common charge when a person is killed by a drunk driver – go to prison. Some go to prison for a very long time…
Convicted Drunk Drivers Cannot Pay Child Support if They are in Prison
Unless the defendant happens to be independently wealthy and has significant financial assets, they are not going to be paying child support while they are in prison.
When they are released from prison, 1) there is a good chance any children that were survivors of the crash will be adults, and 2) the former inmate is going to have a difficult time finding meaningful employment anyway.
Assuming they amend the legislation to include felony DUI resulting in death – which I assume is the offense they were attempting to target, 1) are we going to wait 20-30 years for them to begin paying child support, and 2) how are we going to enforce the payment of child support when the person is released from prison?
The Proposed Law Doesn’t Include Felony DUI Offenses
In most cases, when a drunk driver causes a death, the drunk driver is charged with the offense of felony DUI resulting in death, not reckless homicide…
The proposed legislation doesn’t include felony DUI – you must be convicted of reckless vehicular homicide or felony BUI (boating under the influence) before the proposed law would apply. So, if a person is convicted of reckless vehicular homicide, they must pay child support, but, if they are convicted of felony DUI resulting in death, they are exempt?
When you look at the language of the proposed legislation, it doesn’t accomplish what it claims, and very few people would be affected by it.
To qualify under this proposed legislation, the following must be present:
- A conviction for 1) reckless vehicular homicide while intoxicated (but not felony DUI), 2) a conviction for reckless vehicular homicide (even if you were not intoxicated) when you have a prior conviction for DUI, or 3) a conviction for felony BUI resulting in death, and
- One of the deceased victims must have been the parent of a minor child.
Inexplicably, the author of the bill also included felony BUI as a triggering event (“convicted of operating moving water devices while under the influence of alcohol or drugs when death results”) but not felony DUI (only reckless vehicular homicide – in some cases, when alcohol was not even a contributing factor).
The Proposed Legislation Punishes the Lesser Offense
In some cases, people charged with felony DUI resulting in death will instead plead guilty to reckless vehicular homicide – for example, if the state cannot prove intoxication but there is clear evidence of criminal negligence while operating a motor vehicle.
The proposed statute would require payment of child support only when a person is convicted of reckless vehicular homicide (the lesser offense) but not when a person is convicted of felony DUI resulting in death…
In the rare case where a defendant would qualify under this proposed law, they are only required to pay child support until the surviving child has reached age 18 and graduated from high school, and, in many cases, the defendant will not be released from prison until after this date.
The proposed legislation as it is written does not accomplish what the bill’s sponsors claim, although it may “look good” for some of their constituents – the ones who don’t actually read the bill or who, like the bill’s authors, don’t understand SC DUI laws.
If you have been charged with DUI, DUAC, felony DUI, or a DUI-related offense in SC, contact a DUI defense lawyer on the Axelrod team immediately – we may be able to get your case dismissed, you may be able to avoid a license suspension, and you may have defenses that you are not aware of.