ARRESTED IN SC – AM I GOING TO JAIL?

Axelrod & Associates, P.A.

Jan 28, 2019

For many people who get arrested and charged with a crime in SC, the burning question on their mind is: Am I going to jail?

It’s often the first question that our clients ask when we meet them. The answer will depend on a combination of many different things:

What you are charged with;
The facts of your case;
Your criminal history;
Whether there is a victim in your case;
The strength of the state’s case against you;
Whether we can get your case dismissed or win it at trial;
Who your prosecutor is;
Who your defense lawyer is; and
The strength of your mitigation.

In some cases, it is clear that our client will not go to jail. In other cases, it is equally clear that, if our client is convicted, they will go to jail. Most cases fall somewhere in between, however, and it is not possible to tell a client for sure how their case will end until we have reviewed all evidence, completed our own investigation, and discussed the case with your prosecutor.

Table of Contents

WILL I GO TO JAIL – DOES IT MATTER IF I’M CHARGED WITH A FELONY OR A MISDEMEANOR?

The distinction between felonies and misdemeanors in SC matters only because felonies tend to carry a longer potential sentence, they are more likely to have a mandatory minimum sentence, and they will be heard in General Sessions Court where a defendant is more likely to go to jail than in the lower magistrate or municipal courts.

What’s the Best Way to Avoid Jail in a SC Criminal Case?

The worst part of the SC criminal courts for many defendants is the uncertainty of it. You want your attorney to say this is going to happen. We are definitely going to win your case. Or, if we go to trial, we will definitely lose your case – therefore, we need to focus on mitigation.

In most cases, however, it’s just not possible to say how your case will end, and it is not ethical for an attorney to “promise” a result to a client. New evidence could come to light as your case is pending, existing evidence may be inadmissible, your prosecutor could change mid-case, and, in most cases, we cannot say for sure who the judge will be at your trial, motion hearing, or plea hearing.

How can we make sure that you don’t go to jail? By getting your case dismissed or winning it at trial. Except, that is never a certainty, either – in most cases, we cannot say, “we will definitely get this case dismissed.”

One thing is “certain” – your case is more likely to be dismissed, go to a diversion program, or result in an acquittal at trial when you have an experienced criminal defense lawyer on your side.

Will I Go to Jail if I’m Charged with a Misdemeanor in SC?

If you are charged with a misdemeanor offense in SC, you are less likely to go to jail if you are convicted.

In the magistrate courts and municipal courts, most offenses will result in a fine if you are convicted. Depending on the charges and the facts of your case, however, you could go to jail.

Most misdemeanor offenses, even in the lower courts, even most traffic offenses, carry a potential jail sentence that is in the judge’s discretion.
Some misdemeanor offenses, including some DUI-related charges or DUS (driving under suspension) charges, have mandatory minimum jail sentences.
Probation is not an option in the lower courts – you can only receive a probationary sentence if your case is in General Sessions Court.
You are less likely to get a public defender in SC’s lower courts – although the US Supreme Court has said you must be given an attorney if you are sentenced to jail, SC’s lower courts have been sued by the ACLU for ignoring this rule.

If you want to do everything possible to avoid going to jail, don’t plead guilty. Not unless you are doing so with an experienced criminal defense attorney who has exhausted all other options, reviewed the evidence with you, and who is advising you to enter a guilty plea.

Will I Go to Jail if I’m Charged with a Felony in SC?

If you are charged with a felony in SC, you are more likely to go to jail if you are convicted.

Whether it is a felony or misdemeanor, your defense lawyer on the Axelrod team will investigate your case and attempt to get your case dismissed or win your case at trial whenever possible.

If you enter a guilty plea or choose not to go to trial, there are more options in General Sessions Court to avoid a prison sentence, including:

Pre-trial diversion (resulting in dismissal);
Drug Court (if you qualify); or

Will your case result in pre-trial diversion or probation? It depends – it depends on the facts of your case and the factors that I listed at the beginning of this article. No attorney can advise you as to what will happen in your case until they have reviewed the evidence, your defenses, and the law as applied to the facts of your case.

CAN MITIGATION KEEP ME OUT OF JAIL?

Even when the state has a solid case against you and your defenses are limited, effective mitigation could make the difference between prison, probation, or pre-trial diversion.

Mitigation is anything that would tend to lessen the seriousness of the crime or the impact of your punishment:

If you admit to having committed a crime, a reasonable explanation for why you committed the crime;
Character references – letters from family, friends, employers, church members, or other people with some standing in the community who know you, stating how they know you, their experiences with you, and why you are a good person;
Character witnesses – if you are pleading guilty, live testimony from your employer, church members, or others who can speak to the judge about your good character;
Any history of charitable acts, volunteer work, or other things that you have done to help and support your community;
Your education level, work ethic, and other positive facts about your character; and
Reasons why prison or jail are not appropriate based on your unique circumstances.

Mitigation can be used to persuade a prosecutor to dismiss, send your case to pre-trial diversion, or offer a reduced charge or sentence. It can be used at a plea hearing to persuade the Court to give a lighter sentence or a probationary sentence. Or, it can be saved in case you lose your trial, to present to the court at the sentencing hearing which follows a guilty verdict.