How are prior drug convictions counted for purposes of sentencing in sc?

How are prior drug convictions counted in SC? If you are charged with a drug crime, how do you know if it is your first, second, third, or subsequent offense?

Looking at some other SC attorney websites, I see several that say any drug crime can be enhanced by any prior drug conviction in SC – this is wrong. SC law on prior drug convictions is much more complex than that, and some prior drug convictions should not count as a prior offense for purposes of sentencing…

Below, we will discuss SC law on prior drug convictions and sentencing enhancements, including:

• The types of prior drug convictions that count if you are currently charged with a marijuana offense,
• The types of prior drug convictions that count if you are currently charged with cocaine, meth, or controlled substance violations other than marijuana,
• The “look-back” period (how far back they can go to use a prior drug conviction for sentencing enhancement), and
• When prior convictions for drug trafficking count for enhancement.

HOW ARE PRIOR DRUG CONVICTIONS COUNTED IN SC?

If you have been charged with a second, third, or subsequent drug offense, your attorney will get a copy of your criminal history and review it to be sure that your current charges really are a second, third, or subsequent offense – although some police officers didn’t get the memo, every prior drug conviction does not count for enhancement.

Why does it matter? Take a look at the potential sentences based on prior convictions for drug offenses in SC Code § 44-53-370:

• Simple possession of marijuana first offense carries a maximum penalty of 30 days, but the punishment is typically a fine if you are convicted. Second offense simple possession of one ounce or less carries up to a year in prison.
• Possession with intent to distribute cocaine first offense carries a maximum penalty of up to 15 years but could also be a probationary sentence. Third offense PWID cocaine is a mandatory ten years – no probation – and as much as 30 years in prison.
• Trafficking in heroin first offense 4-14 grams carries a severe penalty of 7-25 years, but a second offense carries an even more severe mandatory 25-year sentence which cannot be suspended.

Despite what some police officers and apparently some defense lawyers believe, every prior drug conviction does not count for enhancement purposes – whether a prior conviction counts depends on the type of drug you are currently charged with, the type of drug you were previously convicted of, and how long ago the conviction was.

How are Prior Drug Convictions Counted if I am Charged with a Marijuana Offense?

SC Code Section 44-53-470 says that, if you are currently charged with a marijuana offense (any offense – possession, PWID, distribution, or trafficking), prior first-offense convictions for marijuana offenses within the past five years count for enhancement purposes:

(A) An offense is considered a second or subsequent offense if:

(1) for an offense involving marijuana pursuant to the provisions of this article, the offender has been convicted within the previous five years of a first violation of a marijuana possession provision of this article or of another state or federal statute relating to marijuana possession

if you are currently charged with a marijuana offense, prior second offense or subsequent convictions for marijuana offenses at any time count for enhancement purposes:

(2) for an offense involving marijuana pursuant to the provisions of this article, the offender has at any time been convicted of a first, second, or subsequent violation of a marijuana offense provision of this article or of another state or federal statute relating to marijuana offenses, except a first violation of a marijuana possession provision of this article or of another state or federal statute relating to marijuana offenses

Prior convictions for non-marijuana offenses do not count if you are currently charged with a marijuana offense.

HOW ARE PRIOR DRUG CONVICTIONS COUNTED IF I AM CHARGED WITH A COCAINE, METH, OR HEROIN OFFENSE?

If you are currently charged with cocaine, meth, heroin, or any drug offense other than a marijuana offense, any first-offense prior convictions for any type of drugs other than marijuana convictions will count for enhancement purposes if they were within the past ten years:

(3) for an offense involving a controlled substance other than marijuana pursuant to this article, the offender has been convicted within the previous ten years of a first violation of a controlled substance offense provision, other than a marijuana offense provision, of this article or of another state or federal statute relating to narcotic drugs, depressants, stimulants, or hallucinogenic drugs

If you are currently charged with cocaine, meth, heroin, or any drug offense other than a marijuana offense, any second-offense or subsequent prior convictions for any type of drugs other than marijuana convictions will count for enhancement purposes with no time limit:

(4) for an offense involving a controlled substance other than marijuana pursuant to this article, the offender has at any time been convicted of a second or subsequent violation of a controlled substance offense provision, other than a marijuana offense provision, of this article or of another state or federal statute relating to narcotic drugs, depressants, stimulants, or hallucinogenic drugs.

Prior convictions for marijuana offenses do not count if you are currently charged with a non-marijuana offense.

But… Prior Convictions for Drug Trafficking Always Count

If the prior offense is for drug trafficking, the rules above do not apply. Prior convictions for drug trafficking of any type of drug will count for sentencing enhancement purposes with no time limit:

(B) In addition to the above provisions, a conviction of trafficking in marijuana or trafficking in any other controlled substance in violation of this article or of another state or federal statute relating to trafficking in controlled substances must be considered a prior offense for purposes of any prosecution pursuant to this article.

Prior convictions for drug trafficking count regardless of the type of controlled substance.

What is the “Lookback period” for Prior Drug Offenses?

The lookback period varies depending on the drug type and type charges:

• Five years if you are currently charged with a marijuana offense and the prior conviction is a first-offense marijuana conviction,
• No time limit if you are currently charged with a marijuana offense and the prior conviction is a second-offense or subsequent marijuana conviction,
• Ten years if you are currently charged with a non-marijuana offense and the prior conviction is a first-offense non-marijuana conviction,
• No time limit if you are currently charged with a non-marijuana offense and the prior conviction is a second-offense or subsequent non-marijuana conviction, and
• No time limit for any prior drug trafficking convictions.

When Does the Clock Start?

For purposes of calculating time, the time period begins on 1) the date of conviction for the prior offense or 2) the date the person was released from prison, whichever is later.

GOT AXELROD?

If you have been charged with a drug crime in SC, you need an experienced drug crimes criminal defense lawyer on your side immediately – call Axelrod & Associates now at 843-916-9300 or email us online to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.