As with every state, South Carolina has its own statutory scheme of drug laws. The laws set forth the elements and penalties for attempting to possess, manufacturing, possession, intent to distribute, distribution, and trafficking of illegal drugs. Laws also address criminal violations for many offenses related to drug laws, such as paraphernalia, committing a drug violation in close proximity to a school or church, and counterfeit drugs.
Below is a simple overview of some common drug charges in South Carolina. Although it may seem simplistic and may look harrowing if charged, an experienced, knowledgeable, and skilled criminal defense attorney can build a solid defense and defend a drug case.
Below is an explanation of the more common drug offenses, as well as the corresponding penalties.
POSSESSION
An individual may be guilty of possession by actual or constructive possession.
Actual possession is physical possession “on the person” of the individual. For example, actual possession would cover the situation where an individual is determined to possess the drug in his pants pocket, sock, or perhaps a bag that the individual is carrying.
Constructive possession is possession as a result of the individual having dominion and control of the drug regardless of where the drug is discovered. For example, constructive possession would cover the situation where the drug is discovered in the individual’s storage unit, vehicle, or residence. The proof required would be evidence of the individual’s dominion and control of the storage unit, vehicle, or residence. Certainly, although too often overlooked and not challenged, as with any drug case, knowledge of the drug is an important factor as well.
MANUFACTURING, POSSESSION WITH INTENT TO DISTRIBUTE (PWID) AND DISTRIBUTION
Manufacturing, PWID, and Distribution move past possession to situations that involve drug activity that is focused more on more than just personal use and increase the penalty substantially.
An important observation is that the weight of the drug becomes important. The offense of PWID can be supported by an inference. That is, possession of a specific amount of the drug will permit a jury to infer that the individual possessing the drug intended to distribute the drug. Additional evidence, such as the possession of weight scales, the packaging of the drug, and the possession of plastic baggies would be further evidence of an intent to distribute. However, the additional evidence is not necessary to put the issue to the jury to decide.
Distribution is not dependent on the weight of the drug present in the case. The distribution of the smallest amount of marijuana is sufficient to support an offense of distribution.
TRAFFICKING
Although “Trafficking” sounds as if the word were taken from a movie about drug lords, it is actually a very simple definition. Trafficking is the possession of a specific amount of a drug that the legislature has deemed worthy of calling trafficking. For example, the first level of Trafficking Cocaine is at 10 grams to 28 grams. Therefore, an individual is guilty of Trafficking Cocaine if convicted of possession of cocaine, and the weight of the cocaine possessed is at least 10 grams. The different weight categories of trafficking have different sentences.
PRIOR OFFENSES
Whether a drug offense is a first, second, or a third or more offense depends on how many prior drug convictions an individual has obtained in the past. Some convictions based on the age of the conviction, may not apply. A prior conviction does not need to be for the same drug or even the same type of offense. The prior conviction only needs to be a conviction for a violation of the state drug laws.
SENTENCING
POSSESSION
Cocaine Base (Crack Cocaine)/Methamphetamine
1st Offense 0 – 3 years and up to a $5,000.00 fine
2nd Offense 0 – 5 years and up to a $7,500.00 fine
3rd or more Offense 0 – 10 years and up to a $12,500.00 fine
Cocaine
1st Offense 0 – 3 years and up to a $5,000.00 fine
2nd Offense 0 – 5 years and up to a $7,500.00 fine
3rd Offense 0 – 10 years and up to a $12,500.00 fine
Marijuana Less than 28 grams
1st Offense 0 – 30 days or a $100.00 – $200.00 fine
2nd Offense 0 – 1 year and/or $200.00 – $1,000.00 fine
Marijuana Greater than 28 grams
1st Offense 0 – 6 months and/or up to a $1,000.00 fine
2nd Offense 0 – 1 year and up to a $2,000.00 fine
LSD/Heroin/Schedule I(b) and (c) (If Narcotic) and Schedule II (If Narcotic)
1st Offense 0 – 2 years and/or up to a $5,000.00 fine
2nd Offense 0 – 5 years and up to a $5,000.00 fine
3rd Offense 0 – 5 years and up to a $10,000.00 fine
Schedule I – V (Ecstasy/GHB)
1st Offense 0 – 6 months and up to a $1,000.00 fine
2nd Offense 0 – 1 year and up to a $2,000.00 fine
DISTRIBUTION/PWID/MANUFACTURING
Cocaine Base (Crack Cocaine)/Methamphetamine
1st Offense 0 – 15 years and/or up to a $25,000.00 fine
2nd Offense 5 – 30 years and/or up to a $50,000.00 fine SER
3rd Offense 10 – 30 years and/or up to a $50,000.00 fine SER**
Cocaine/LSD/Heroin/Schedule I (b) and (c) and Schedule II
1st Offense 0 – 15 years and/or up to a $25,000.00 fine
2nd Offense 5 – 30 years and/or up to a $50,000.00 fine SER
3rd Offense 15 – 30 years and up to a $50,000.00 fine SER**
Schedule I – III (Marijuana, Ecstasy, GHB) & Flunitrazepam
1st Offense 0 – 5 years and/or not more than a $5,000.00 fine
2nd Offense 0 – 10 years and/or not more than a $10,000.00 fine
3rd Offense 5 – 20 years and/or not more than $20,000.00**
Schedule IV (Except Flunitrazepam)
1st Offense 0 – 3 years and/or not more than a $3,000.00 fine
2nd Offense 0 – 5 years and/or not more than a $6,000.00 fine
3rd Offense 0 – 5 years and/or not more than $6,000.00 fine**
Schedule V
1st Offense 0 – 1 years and/or not more than a $1,000.00 fine
2nd Offense 0 – 2 years and/or not more than a $2,000.00 fine
3rd Offense 0 – 2 years and/or not more than $2,000.00**
PWID/DISTRIBUTION/MANUFACTURING NEAR A SCHOOL
All Controlled Substances 0 – 10 years and/or $10,000.00 fine SER
TRAFFICKING
ALL TRAFFICKING OFFENSES ARE VIOLENT PURSUANT TO S.C. CODE 16-1-60 AND SERIOUS OFFENSES PURSUANT TO S.C. CODE 17-25-45
Cocaine Base (Crack Cocaine)/Methamphetamine/Cocaine
10 grams but less than 28 grams:
1st Offense 3 – 10 years and/or up to a $25,000.00*
2nd Offense 5 – 30 years and/or up to a $50,000.00 fine *
3rd Offense 25 – 30 years and/or up to a $50,000.00 fine*
28 grams but less than 100 grams:
1st Offense 7 – 25 years and/or up to a $50,000.00 fine*
2nd Offense 7 – 30 years and/or up to a $50,000.00 fine*
3rd Offense 25 – 30 years and/or up to a $50,000.00 fine*
100 grams but less than 200 grams:
25 years and $50,000.00 fine*
200 grams but less than 400 grams:
25 years and $100,000.00 fine*
400 grams or more:
25 – 30 years and $200,000.00 fine*
Ephedrine
9 grams but less than 28 grams:
1st Offense 0 – 10 years and/or up to a $25,000.00 fine*
2nd Offense 5 – 20 years and/or up to a $15,000.00 fine*
3rd Offense 25 years and/or up to a $25,000.00 fine*
28 grams but less than 100 grams:
1st Offense 7 – 25 years and/or up to a $50,000.00 fine*
2nd Offense 7 – 30 years and/or up to a $50,000.00 fine*
3rd Offense 25 – 30 years and/or up to a $50,000.00 fine*
100 grams but less than 200 grams:
25 years and $50,000.00 fine*
200 grams but less than 400 grams:
25 years and $100,000.00 fine*
400 grams or more:
25 – 30 years and $250,000.00 fine*
Marijuana
10 lbs but less than 100 lbs
1st Offense 1 – 10 years and/or up to a $10,000.00 fine*
2nd Offense 5 – 20 years and/or up to a $15,000.00 fine*
3rd Offense 25 years and a $25,000.00 fine*
100 lbs but less than 2000 lbs (or 100 but less than 1000 plants)
25 years and a $25,000.00 fine*
2000 lbs but less than 10,000 lbs (or 1000 plants but less than 10,000 plants)
25 years and a $50,000.00 fine*
More than 10,000 lbs (or more than 10,000 plants)
25 – 30 years and a 200,000.00 fine*
Heroin/Morphine/Opium
4 grams but less than 14 grams
1st Offense 7 – 25 years and a $50,000.00 fine*
2nd Offense 25 years and a $100,000.00 fine*
14 grams but less than 28 grams
25 years and a $200,000.00 fine*
28 grams or more
25 – 40 years and a $200,000.00 fine*
Ecstasy/LSD
100 units but less than 500 units
1st Offense 3 – 10 years and a $25,000.00 fine*
2nd Offense 5 – 30 years and a $40,000.00 fine*
3rd Offense 25 – 30 years and a $50,000.00 fin*e
500 units but less than 1000 units
1st Offense 7 – 25 years and a $50,000.00 fine*
2nd Offense 7 – 30 years and a $50,000.00 fine*
3rd Offense 25 – 30 years and a $50,000.00 fine*
1000 units or more
25 years and a $100,000.00 fine*
GHB
50 milliliter/milligrams or more
1st Offense 1 – 10 years and/or up to a $10,000.00 fine*
2nd Offense 25 years and a $25,000.00 fine*
* No suspended sentence or probation granted
** No suspended sentence unless prior convictions are for possession only
SER Serious Offense pursuant to S.C. Code 17-25-45