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State v. Cuccia3/10/2003
Submitted February 10, 2003
AFFIRMED
Curtis Cuccia was charged with driving under the influence (DUI), open container, possession of beer by a person under twenty-one years old, and speeding.á His driver's license was suspended due to registering a blood-alcohol level of two one-hundredths of one percent (.02%) or more and being under twenty-one years old.á He pled guilty to the open container charge, and the possession of beer and speeding charges were nolle prossed.á Cuccia was subsequently convicted of DUI.á Cuccia appeals his DUI conviction and sentence.á We affirm.
FACTS/PROCEDURAL BACKGROUND
Municipal Judge Modla's Return to Appeal details the testimony presented by the arresting officer, Officer Biggers.á Officer Biggers testified that he stopped Cuccia for speeding.á When Cuccia exited his vehicle, Officer Biggers smelled alcohol and noticed Cuccia was very unsteady on his feet.á Cuccia failed four field sobriety tests.á Officer Biggers averred that he observed an open beer bottle on the floorboard.á At the time of Cuccia's arrest, he was nineteen years old.áá
Officer Pruett performed a Breathalyzer test.á The test result indicated Cuccia's alcohol concentration was twenty-one one-hundredths of one percent (.21%), well above the two one-hundredths of one percent (.02%) limit for suspending his license under S.C. Code Ann. section 56-1-286(A) (Supp. 2002).á The level is also above ten one-hundredths of one percent (.10%) or more, where it may be inferred that the person was under the influence of alcohol under S.C. Code Ann. section 56-5-2950(b)(3) (Supp. 2002).
After the test was performed, a Notice of Suspension form was completed in which two boxes were checked as the reason for the suspension of Cuccia's license.á The first box was for registering an alcohol concentration of.02% or more while under the age of twenty-one, and the second checked box was for registering an alcohol concentration of.15% or more.á Officer Biggers elected to pursue the suspension as a result of Cuccia's alcohol concentration of.02% or greater and the fact he was under the age of twenty-one.
Cuccia pled guilty to the open container charge, and the possession of beer and speeding charges were nolle prossed.á At the trial on the DUI charge, Cuccia moved to dismiss the charge contending that it would be double jeopardy for him to have his license revoked and to face the charge of DUI.á The motion to dismiss was denied on the grounds that Cuccia was arrested for DUI, but his license was suspended under an administrative or civil sanction and was not a criminal penalty barring subsequent prosecution for DUI.á Cuccia was subsequently convicted of DUI and sentenced to thirty days incarceration or a fine of $559.00.
LAW/ANALYSIS
I.áááááá Civil Sanction
Cuccia maintains his protection from double jeopardy was violated when his license was suspended under S.C. Code Ann. section 56-1-286(A) (Supp. 1998) and he was subsequently tried under S.C. Code Ann. section 56-5-2930 (Supp. 1999) for DUI.á We disagree.
Section 56-1-286(A) (Supp. 2002) states:
In addition to any other penalty imposed by law unless otherwise prohibited in this section, including additional driver's license suspensions, the Department of Public Safety must suspend the driver's license, permit, or nonresident operating privilege of, or deny the issuance of a license or permit to a person under the age of twenty-one who drives a motor vehicle and has an alcohol concentration of two one-hundredths of one percent or more. The department shall not suspend a person's privilege to drive under this section if the
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