Introduction to Conditional Discharge

Article by Vicki Koutsogiannis

Suppose that you or someone you know is faced with a first-offense simple possession of marijuana. Although this is a common charge, it is still a criminal offense, and a conviction will show up on your criminal record. For many reasons that include job searches or admission into a higher education program, your goal is to avoid a conviction altogether. Fortunately, the courts have provided an alternative option for resolving such first-time drug offenses that can result in having your case expunged after successful completion. The alternative is what is known as a "Conditional Discharge," see South Carolina Code § 44-53-450. Although this article is intended to provide some general information, it should not be relied on as legal advice. Seeking an attorney to help with your conditional discharge is critical to successful resolution of your case and it is strongly recommended that you do so.

First, in determining whether you qualify for a conditional discharge, you must not have any previous drug conviction on your record (this includes any other state charges or federal charges). Additionally, marijuana is not the only eligible drug for a conditional discharge.

Second, misdemeanor drug offenses are prosecuted by the arresting officer in magistrate's or municipal ("summary") court. A defendant's attorney will speak with the officer and recommend the defendant for a conditional discharge. Upon acceptance, the defendant will read the form provided and sign once they understand the nature of the conditional discharge. Afterwards, the defendant will go before the judge and enter a conditional guilty plea to the drug charge.

The reason you are pleading guilty before the judge at this time is because this is how conditional discharge works! The court accepts your "guilty" plea but does not enter an actual judgment of "guilty" at that time. Instead, the judge will determine the length of your probationary period, and during this time, your guilty plea is deferred until one of two things happens. First, you could successfully complete the conditions of your probation, which usually includes taking a drug test that shows negative results. If this happens, and you have done everything else the judge asked of you during your guilty plea, then you are "discharged" once your probationary period has ended and the guilty plea is eliminated from the court's record. The other possibility is that you fail to complete the conditions imposed by the court. If this happens, your previous guilty plea becomes an actual adjudication of "guilty," and the only matter left for the judge to decide is the sentence.

Third, and depending on the judge, you may be required to undergo a drug or substance abuse treatment program, a form of counseling, community service, or any combination of these conditions. A drug test is usually required as part of your probationary period following your guilty plea. So long as you complete all the requirements of your probation, and make a $150 payment to the summary court pursuant to § 44-53-450(C), your conditional plea of "guilty" will be discharged after the last date of your probation and your criminal charge will be dismissed.

Fourth, you may seek expungement of your arrest record in most circumstances. Pursuant to § 44-53-450(B), you may apply to the court for an expungement order that will erase all public records of you arrest and prosecution for the simple possession charge. The purpose of seeking an expungement is to restore the person to their status before the arrest or indictment. You may wish to obtain an expungement in addition to the dismissal of your criminal charges because it will wipe your record clean of the details following your arrest; this is especially important, as mentioned, for job searches or school admission. An expungement following your conditional discharge will also require a fine to be paid through the court.

Finally, keep in mind that although your simple possession charge is dismissed, a non-public record will be retained SLED's Department of Narcotic and Dangerous Drugs. The reason for this is for courts to determine, in the future, whether new drug charges will count as a subsequent drug offense. So, even though you may have successfully avoided the criminal record the first time, another drug charge in the future may count as a second offense (and not a first offense), which carries more serious penalties.