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South Carolina
Judicial Department
South Carolina Bench Book for Summary Court Judges - Traffic Section

General Principles

1. Requirement to Elect

S.C. Code Ann. § 22-3-740 relates to the election of one of several offenses on which to try the accused in motor vehicle violations. This section of the Code relates to the committing of an act that can be interpreted to be the elements of the crime for more than one offense. Magistrates and municipal court judges sometime mistakenly construe S.C. Code Ann. § 22-3-740 to mean that more than one traffic offense cannot be committed at the same time. For example, the offense of speeding may be done in such a manner as to constitute the offense of reckless driving. Although the driver is guilty of both speeding and reckless driving, he may be charged with only one offense. In contrast however, when a person drives without a license and speeds at the same time, he may be charged with both offenses, even though they were committed at the same time. The offense of driving without a license is not within the purview of the statute as being "...susceptible of being designated...", as speeding, and the act of speeding should not be designated as driving without a license. The principle for magistrates and municipal court judges to understand is that if the criminal offenses alleged to be committed are unrelated offenses, S.C. Code Ann. § 22-3-740 does not apply to them. Examples of offenses where an election must be made and offenses where an election need not be made are as follows:

Election Must Be Made

Election Need Not Be Made

1. Speeding

1. Driving Without License

2. Reckless Driving

2. Drunk Driving


1. Drunk Driving

1. No Vehicle Registration

2. Reckless Driving

2. Speeding


1. Driving Left of Center

1. Reckless Driving

2. Reckless Driving

2. No Seat Belt


1. Passing School Bus

1. Passing School Bus

2. Reckless Driving

2. No Vehicle License

2. Prohibition of Reduction of Charges

Each traffic offense is a separate and distinct offense, and a defendant may not be tried for a traffic offense for which he has not been formally charged in an arrest warrant or a uniform traffic ticket. Therefore, a defendant may not be found guilty of a "reduced" charge for which he was not formally charged for the following reasons: (1) the defendant may not be tried for a traffic offense not charged in an arrest warrant or a Uniform Traffic Ticket (see TRAFFIC, JURISDICTION); (2) the magistrate or municipal judge is required to elect which charge to prefer if the act committed can be designated as any one of several different offenses (see TRAFFIC, GENERAL PRINCIPLES, REQUIREMENT TO ELECT); and (3) there are no "degrees" of traffic offenses. The magistrate or municipal judge may amend the warrant or ticket before trial (see CRIMINAL, WARRANTS, ARREST WARRANTS, THE WARRANT AT TRIAL), but the defendant must be given sufficient notice to adequately prepare his defense. As an example of this general principle prohibiting reduction of charges in traffic offense cases, if a defendant is charged with driving under the influence and the proof at trial does not support a finding of guilty, then the defendant cannot be convicted of reckless driving based on the evidence which failed to prove the DUI charge but would have succeeded in proving a charge of reckless driving.