You can be found guilty of DUI in SC if the state proves that you were driving while under the influence “to the extent that [your] faculties to drive a motor vehicle [were] materially and appreciably impaired.”

It seems basic, but, to be convicted of DUI in SC, you must have been driving the vehicle. It’s an important distinction because other states allow convictions for DUI when the person was operating the vehicle – a broader standard that includes more conduct than just driving.

What is the definition of “drive” for purposes of DUI in SC, and how can it help to get your DUI charges dismissed?

What Does “Drive” Mean for Purposes of DUI in SC?

In State v. Graves, the SC Supreme Court reversed a DUI conviction because the state did not prove that the defendant was driving, although the officer found the defendant asleep in his car:

At trial, Patrolman Strickland testified that at approximately 5:00 A.M., November 1, 1975, he was called to go to the Pink House on Highway 76 about one-half mile east of the City of Marion, South Carolina. There, across the highway from the Pink House, he saw a 1972 Pontiac, with the engine running and the transmission in gear, occupied by respondent who was leaning over the steering wheel asleep. Respondent was asked by Patrolman Strickland to get out of his car, at which time the car started moving and had to be stopped by Patrolman F.O. Buffkin who was also in attendance at the scene. Patrolman Strickland observed a strong odor of alcohol about the respondent as well as some physical impairment and placed him under arrest.

SC Code § 56-5-2930 requires proof that a person was 1) driving a motor vehicle 2) in this state 3) while under the influence of alcohol or other drugs 4) to the extent that the person’s faculties to drive a motor vehicle were materially and appreciably impaired.

The Court found that the defendant was not driving, even though:

• He was in the driver’s seat;
• He was asleep (probably passed out) over the steering wheel;
• The engine was running;
• The transmission was in gear; and
• The car started moving when the officer asked the defendant to get out.

Why wasn’t this considered “driving?” What is the definition of driving for a DUI in SC?

What is the Difference Between Drive and Operate for Purposes of DUI in SC?

Driving means driving.

Driving implies movement – the vehicle is 1) moving, 2) at the direction of the person sitting in the driver’s seat. If the vehicle is not moving, you’re not driving.

It helps to compare the terms “driving” and “operating.” Some states have the offense of “operating under the influence,” and a person can be convicted of OUI simply by sitting in their car and turning the radio or heater on…

Although South Carolina adopted the phrase “drive any vehicle within this state” from the approved Uniform Act as revised in 1930, several states adopted this provision with amendments that also prohibit the “operation” of an automobile while in an intoxicated condition. While choosing to define both “driver” and “operator”, the 1949 General Assembly by Act 281 of 1949, 1949(46) 466, proscribed only driving a motor vehicle while intoxicated, and did not proscribe operating.

You cannot get a DUI in SC for “operating” a vehicle. You can sit in the driver’s seat, turn the key, start the engine, turn on the radio, or turn on the heater in your car and, no matter how much you’ve had to drink, you are not driving and cannot be convicted of DUI in SC.

The distinction between these terms is material, for it is generally held that the word “drive”, as used in statutes of this kind, usually denotes movement of the vehicle in some direction, whereas the word “operate” has a broader meaning so as to include not only the motion of the vehicle, but also acts which engage the machinery of the vehicle that, alone or in sequence, will set in motion the motive power of the vehicle. Flournoy v. State, 106 Ga. App. 756, 128 S.E. (2d) 528 (1962), Gallagher v. Commonwealth, 205 Va. 666, 139 S.E. (2d) 37 (1964).

Although “operating” may include driving, it also includes conduct that is not prohibited under SC’s DUI law:

Of the two terms, “driving” is given the stricter construction, and in numerous cases it has been held that to be guilty of driving a vehicle while intoxicated, the defendant must have had the vehicle in motion at the time in question. While in a few cases the term “operating” has been given a similar limited construction, “operating” has been more liberally construed in other cases to include starting the engine or manipulating the mechanical or electrical agencies of a vehicle (footnotes omitted)…

[T]he word “drive” usually denotes movement of the vehicle in some direction, and the word “operate” may also import motion of the automobile; but the word “operate” may have a somewhat broader meaning, and may not necessarily be limited in meaning to the movement of the vehicle itself, that is, it may not be limited to a state of motion produced by the mechanism of the car. It may include not only the motion of the vehicle, but also acts which engage the machinery of the vehicle which, alone or in sequence, will set in motion the motive power of the vehicle. Thus, a person is considered to operate a vehicle when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle (footnotes omitted).

So, although Graves was “operating his vehicle” – the engine was running and the transmission was in gear, he was not driving because the car was not in motion.

It’s an important distinction because we don’t want to penalize people for not driving when they are intoxicated.

If someone gets into their car on a cold night in January, turns the heater and radio on, but doesn’t drive, we don’t want to punish them for doing the right thing…

Driving while intoxicated is dangerous. Sitting in your car while intoxicated is not.

What if the Vehicle Moves but It’s Not the Driver’s Fault?

When the officer asked Graves to step out of his car, the car started moving and the officer had to jump in and stop it – so, the car was in motion, right?

Although the car was moving, it was not moving because Graves intentionally made it move. It was moving because the officer told Graves to get out of his car. Even if the car moves, you cannot be convicted of DUI in SC when the officer told you to move the car or when the car moved inadvertently:

The record indicates that respondent’s vehicle began to move after respondent was asked by the arresting officer to get out of his car, but this movement was incidental to the officer’s instructions and is not the type of movement proscribed by the statute:

A mere movement of the vehicle might occur without any affirmative act by a driver, or, in fact by any person. If a vehicle is moved by some power beyond control of the driver, or by accident, it is not such an affirmative or positive action on the part of the driver as will constitute a driving of a vehicle within the meaning of the statute. State v. Taft, 143 W. Va. 365, 367, 102 S.E. (2d) 152, 154 (1958).

In another local case in Myrtle Beach that the prosecutor probably thought was a slam dunk, a defendant was passed out at the wheel in a parking garage. The car was in reverse and had crashed into the wall of the parking garage, which is where a police officer found the defendant sleeping, car still running and still in reverse.

The defendant did not make any statements to law enforcement and there were no independent eyewitnesses who saw the defendant driving (or crashing) the car. As in Graves, the DUI charges were dismissed, and the defendant’s implied consent suspension based on his refusal to take the breathalyzer was reversed.

SC DUI Defense Lawyer in Myrtle Beach

Attorney Daniel A. Selwa is a DUI defense attorney who accepts cases in Myrtle Beach, Conway, Georgetown, and Horry County, SC.

If you have been arrested and charged with DUI in SC, call now at (843) 492-5449 or fill out our email contact form to speak with a Myrtle Beach DUI defense attorney today.