Is this my First, Second, or Third Drug Offense?
Joe Client got arrested last night for possession of marijuana. Back in 2001 he had a previous conviction for possession of cocaine base. Now he's worried that this will be a "second offense" marijuana charge which will cause him to face potentially more fines and jail time. First offense? Second offense? Or something else? Previously under South Carolina law, any prior drug offense would enhance a subsequent drug offense. In June of 2010, and again in April 2016, the state legislature changed the statute that defines "second or subsequent offenses". While the statute does provide some relief for individuals who were previously charged with drug offenses, they didn't do anything to make the statute easier to understand.
I will attempt to explain this but remember, each circumstance is different and with anyone charged with any offense, I encourage them to talk with an attorney that handles drug offenses.
Section 44-53-470 defines what is considered to be a second or subsequent offense. For starters, the text of the statute is set out below.
SECTION 44-53-470. "Second or subsequent offense"defined.
(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;
(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;
(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; and
(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.
(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
(C) If a person is sentenced to confinement as the result of a conviction pursuant to this article, the time period specified in this section begins on the date of the conviction or on the date the person is released from confinement imposed for the conviction, whichever is later. For purposes of this section, confinement includes incarceration and supervised release, including, but not limited to, probation, parole, house arrest, community supervision, work release, and supervised furlough.
For Marijuana Charges
The statute is broken down into essentially 5 sections. The first, subsection (A)(1) deals with current marijuana charges. This would be any marijuana charge, whether it be simple possession or trafficking. If the offender currently has a pending charge, look back to the prior record. Was the prior conviction for a first offense marijuana possession charge within 5 years? If so, then the new marijuana charge would be a “second” offense.
Section (A)(2) also deals with marijuana. Here, you look at the entire past criminal record. Has the person ever been charged with anymarijuana offense except first offense “possession” of marijuana? If so, the current charge is a “second” offense.
To take an example, if someone is charged with Possession with Intent to Distribute Marijuana currently and in 2004, they had a Simple Possession of Marijuana, their current charge would be a “First” offense (now in 2016) because of the 5 year limitation. However, if the Simple Possession was in 2014, the offense would be a “Second” offense.
In 2016, the statute was amended to include enhancement for any prior trafficking charge. Where the prior rule was that, marijuana would only enhance marijuana, this is no longer the case. Now a trafficking Marijuana from anytime would enhance a subsequent drug charge. Likewise, a trafficking cocaine from 20 years past would enhance a simple possession of marijuana charge under the present version of the statute. See Section (B).
For all other Drug Charges
Sections (A)(3) & (4) address all other offenses that are not Marijuana related. So, if you have a marijuana charge, you are only going to be concerned with sections (A)(1) and(A)(2). For charges that do not involve marijuana, look back 10 years on the current record. If there was a charge within 10 years of a drug offense that was not marijuana, then it would be a “second” offense. Finally, section (A)(4) says if at any time there was a conviction for a “second” non-marijuana drug offense, then the offense would be a “subsequent” offense. Again, the 2016 change also requires us to look for prior trafficking charges of any type in determining the number of offense. Therefore possession of a controlled substance would be a second offense if the person charged had a prior trafficking marijuana at any time previously.
Calculation of Time
Time for calculation is the date of conviction, unless the person is sentenced to jail time. In that case,one would look back to the date that the offender was released on the prior offense.
If you or someone you know has been charged with a drug offense, contact me today.