Is this My First, Second, or Third Drug Offense in SC?

What counts as a prior drug offense in SC?

It matters, because, depending on what the current drug charges are, whether it is a first, second, or third drug offense could make the difference between a fine or probation if convicted or a lengthy mandatory minimum sentence.

Although some police (and some prosecutors) think that, if there is a prior drug conviction on your rap sheet, you should be charged with a second or third drug offense this time, that’s not always what the law says.

Even though you may have a prior drug conviction, it does not count to make your current charge a second or third drug offense in SC unless it qualifies under the definition of “second or subsequent offense” under SC law.

Furthermore, if you did not have an attorney when you were convicted on the prior drug offense and if you were sentenced to jail time, that conviction will not count to make your current charges a second or third drug offense.

What Does SC Law Say About First, Second, and Third Drug Offenses?

SC law allows some prior drug offenses to be used for enhancement (to make a first offense a second or third drug offense).

Depending on whether the prior offense was a marijuana conviction and whether the current offense is a marijuana conviction, the prior conviction may count if it was within the past five years, within the past ten years, or, in some cases, at any time.

In general, marijuana convictions cannot be used to enhance other current drug charges, and other types of drug convictions cannot be used to enhance current marijuana charges unless the prior conviction is for trafficking marijuana.

Is it My First, Second, or Third Drug Offense if I’m Charged with Marijuana?

SC Code Section 44-53-470 defines what a “second or subsequent offense” is for purposes of determining whether your current charges are a first, second, or third drug offense.

If you are currently charged with a marijuana offense (possession, distribution, manufacturing, or trafficking in marijuana), a first offense prior conviction for marijuana counts if the conviction was within the last five years:

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

  • 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, any prior second or third offense marijuana conviction counts, with no time limit:

  • 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.

No other prior drug convictions will count for enhancement purposes if you are currently charged with a marijuana offense.

Is it My First, Second, or Third Drug Offense if I’m Charged with Cocaine, Heroin, or Other Drugs?

If you are currently charged with any drug offense other than a marijuana offense, any prior drug conviction, other than marijuana, within the past ten years, will count for enhancement purposes:

  • 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 any drug offense other than a marijuana offense, any prior drug conviction, other than marijuana, will count for enhancement purposes at any time if the prior conviction was a second or third offense:

  • 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.

Drug Trafficking Convictions Always Count for Enhancement Purposes

If you have a prior conviction for trafficking in any type of drug, including marijuana, it will always count for enhancement purposes with no time limits:

(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.

What if I Didn’t Have an Attorney for the Prior Drug Conviction?

Is this my first, second, or third drug offense if I have a prior conviction where I was not represented by an attorney?

Even if your prior drug conviction should count for enhancement purposes under SC law, it will not count if the prior conviction was in violation of your right to counsel.

If you did not have an attorney for the prior conviction, you did not waive your right to counsel, and you were sentenced to jail time, the prior conviction cannot be used to enhance current drug charges.

It’s Unconstitutional to be Sentenced to Jail on a Misdemeanor Offense if You do not Have an Attorney

In Scott v. Illinois, the US Supreme Court held that it is a violation of the right to counsel for a person to be sentenced to jail time without counsel:

We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.

An Uncounselled Prior Conviction Where You Received Jail Time Cannot be Used for Enhancement

In Nichols v. U.S., the US Supreme Court extended their holding in Scott v. Illinois to clarify that, if a person was sentenced to jail time without counsel, that prior conviction cannot be used to enhance current charges (and, conversely, if the person was not sentenced to jail time, it can be used for enhancement):

Accordingly we hold, consistent with the Sixth and Fourteenth Amendments of the Constitution, that an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.

The SC Supreme Court followed Nichols v. U.S. in Robinson v. State, holding that an uncounselled prior conviction where the defendant was sentenced to jail time cannot be used to enhance a current offense.

A Time-Served Sentence is Not the Same as Receiving Jail Time

What if you pled guilty to a simple possession of marijuana and you were denied the right to counsel, but the court sentenced you to time served? That’s jail time, right?

Per the SC Supreme Court in Glaze v. State, a time-served sentence does not count as “sentenced to jail time.” If you were sentenced to “time served” for the ten days you spent in jail before your plea hearing, that doesn’t count, and the prior conviction can be used to enhance your current offense.

On the other hand, if you were sentenced to any future jail time – including a prison sentence suspended to probation – the prior conviction cannot be used for enhancement.

Drug Crimes Defense Lawyer in Charleston, SC

Charleston, SC drug crimes defense attorney Grant B. Smaldone accepts criminal defense cases in the Charleston, Dorchester, Georgetown, and Myrtle Beach areas of SC. If you’ve been charged with any drug offense in South Carolina, including:

Call now at (843) 808-2100 or send us a message for a free consultation about your case.


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