I will give you information on a possible lawsuit. However, you need to do some research. Your son took a plea to improper lane change. You were there in court when this happened. He was there when this happened. You are entitled to the transcript of his plea in court. There must be court stenographic record of this. Here is the link to the court website explaining how to get the court reporter record:
There is also a document that your son signed stating the lane change is his only conviction. Your son is entitled the document he signed. This document should be in the court record, which your son is entitled to. Contact the Clerk of the Court handling your son’s case to ask how to get this record. You can find the contact number on the court website.
If these documents state he pleaded guilty only to the lane change, this is proof that the SLED report is inaccurate. You need to find out why. Did the solicitor report the wrong information to SLED? Did SLED record the wrong information?
There is a process for correcting inaccurate records.
After your son took the plea to the lane change, the only conviction that should show on his SLED record is the lane change. The “arrest” for DUI will show, unless the Solicitor agreed to expunge the DUI charge. Here is what the law says about this:
SECTION 17-1-40. Expungement; retention of certain information by law enforcement or prosecution agencies.
A) For purposes of this section, "under seal" means not subject to disclosure other than to a law enforcement or prosecution agency, and attorneys representing a law enforcement or prosecution agency, unless disclosure is allowed by court order.
(4) If a person pleads guilty to a lesser included offense and the solicitor deems it appropriate, the solicitor shall notify the State Law Enforcement Division (SLED) and SLED shall request that the person's record contained in the National Crime Information Center (NCIC) database or other similar database reflects the lesser included offense rather than the offense originally charged.
If this was part of the court record or agreement, then the Solicitor should correct this information in your son’s SLED and NCIC.
We have to find out what the SLED report actually says so it can be corrected. If you have not already done this, here is how you go about it.
Correcting a mistake on SLED report - SC law provides a method for individuals to challenge the information on their criminal records if there is a mistake on a SLED report.
- Contact SLED at(###) ###-####and request a “Challenge of Criminal History Record” packet.
- Complete the application, provide picture ID, and submit a copy of the criminal record in question or a $25 money order to obtain a copy of the criminal record.
- Get fingerprinted by a law enforcement agency and submit fingerprints to SLED.
- SLED will accept or deny the challenge through an administrative review.
- If SLED find errors, omissions, or cannot verify the accuracy of the record, SLED must accept the challenge and modify the record.
- The individual challenging a record may seek an appeal of the decision of the administrative review by requesting one within 30 days of the denial of the finding by petitioning the Criminal History Administrative Appeal Board. A hearing will be conducted within 60 days and the individual seeking review may present evidence concerning the record. If the appeal is denied, the individual seeking review must be notified in writing of the reason for the denial.
You may also have to correct the national record, which is called NCIC.
The National Crime Information Center (NCIC) is the FBI record. This is called the Rap Sheet. SLED probably reported your son’s arrest to NCIC.
If there is a mistake in the SLED report, there will be a mistake in NCIC. You may request a copy of your RAP sheet by submitting a written request which includes the following information:
- Proof of Identify: name, date of birth, and a set of rolled fingerprints obtained by a law enforcement agency.
- Certified check or money order for $18 made out to the Treasury of the United States. I
Requests should be mailed to the following address:
FBI, Criminal Justice Information Services Division
ATTN: SCU, MOD. D-2
1000 Custer Hollow Road Clarksburg,
Your son has run out of time to challenge the conviction through the normal Appeals process. After a guilty plea, a defendant has 10 days after sentencing to appeal to the South Carolina Court of Appeals.
Under the SC Uniform Post-Conviction Procedure Act SECTION 17-27-10. , there is a possible Post Conviction Relief process you can use. Usually you have to file for this relief to the court that handled the case within one year of sentencing. However, there may be an extension in your case (C) If the applicant contends that there is evidence of material facts not previously presented and heard that requires vacation of the conviction or sentence, the application must be filed under this chapter within one year after the date of actual discovery of the facts by the applicant or after the date when the facts could have been ascertained by the exercise of reasonable diligence. I am not sure if you fit into this exception with the toxicologist information. The sentencing date usually occurs after the plea date.
There is a process in place to file a complaint against the solicitor for failing to follow-up with the SLED correction. You notified the solicitor a year ago and nothing has happened. You can file a complaint with the South Carolina Judicial Department, Office of Disciplinary Counsel. This office is obligated to follow-up on complaints against attorney in the state of South Carolina. You need to write a detailed letter explaining your complaint. Here is the address and contact information:
Lesley M. Coggiola
Disciplinary Counsel Office Location:*****br />Suite 309
Columbia, South Carolina 29201
As for a lawsuit. There is a possible action for defamation. You need to find a defamation tort lawyer willing to take this on. Basically, if The Citadel relied on the SLED record (which was supposed to show only the conviction for changing lanes???), there is a possible claim for defamation of character. Here is a link to the South Carolina Bar Association Lawyer Referral program: http://www.scbar.org/Public-Information/Find-a-Lawyer. They pre-screen lawyers to make sure they are qualified. They will find an expert in this area and you can consult with the lawyer for $50 for the first half hour. If you don’t like the first referral, ask for another.
Please let me know if you have more questions. I will be happy to help more.
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