Should I Take a Breathalyzer Test in South Carolina?

A common question that a criminal defense attorney gets on a regular basis is “Should I blow the breathalyzer or not?” Not surprisingly, the answer is usually, “IT DEPENDS.”

In South Carolina, all persons who drive a vehicle in this state (whether licensed in South Carolina or in another state) give their consent (known as implied consent) to provide a breath sample to a police officer upon request.  A person arrested for Driving Under the Influence (DUI) or Driving with an Unlawful Alcohol Concentration (DUAC) is typically requested to provide a breath sample to measure their blood alcohol content (BAC) through the “breathalyzer” known as the Datamaster. 

Consequences for Refusing a Breath Test in South Carolina

There are different consequences for a person that refuses to submit to a breath sample that has a regular driver’s license and a person who has a commercial driver’s license (CDL).  A person with a CDL that refuses to submit to a breath test could have their CDL suspended for at least one (1) year.  There are also different possible consequences for those persons under the age of twenty-one (21).  Finally, there are different consequences for those persons who have previously been convicted of a DUI or DUAC.  For purposes of answering this question today, I will answer it for those persons who are at least twenty-one (21) years of age, have a regular driver’s license, and are charged with a first offense DUI or DUAC. 

For a person with a regular driver’s license that is charged with a first offense DUI or DUAC, a refusal means that the person’s driving privileges may be suspended for six (6) months and the person may be required to enroll in the Alcohol and Drug Safety Action Program (ADSAP) prior to being issued a driver’s license.  If the person has a South Carolina driver’s license, the officer usually confiscates the license at the time of the refusal.

However, the person may challenge this initial six-month suspension by requesting an administrative hearing.  The administrative hearing request costs $200.00 to submit and must be received by the South Carolina Department of Motor Vehicles (DMV) within thirty (30) days of the date of arrest.  Once this hearing is scheduled by the DMV, the person is eligible to be issued a Temporary Alcohol Restricted License for a $100.00 fee, which allows the person to drive in the State of South Carolina without restriction until a decision is rendered by the hearing officer following the administrative hearing.   

Even if the person loses the administrative hearing and the six-month suspension is upheld, the person may be eligible for a Route-Restricted Driver’s License which allows the person to drive to and from work or school as well as to and from ADSAP classes or a court-ordered drug program.

Penalties for DUI or DUAC in South Carolina

Penalties for a first offense DUI or DUAC are specifically tied to whether or not a person “blows.” 

Therefore, in terms of sheer penalties, both fines and jail time, the higher you “blow,” or in other words the higher your BAC, the higher the potential jail time and the potential fine.

If a person is CONVICTED of a DUI or DUAC, South Carolina’s relatively new “Emma’s Law” requires that certain persons install an ignition interlock restricted device on their vehicle pursuant to the Ignition Interlock Device Program (IIDP).  This device requires the person to blow each time they attempt to start their vehicle and, in certain situations, prevents the vehicle from starting depending on their BAC at the time. 

Under Emma’s law, if a person refuses the breath test and is convicted of first offense DUI or DUAC, the person’s license is suspended for six (6) months.  The person MAY enroll in the IIDP in lieu of serving the six-month suspension and obtain an ignition interlock restricted license. 

If a person is convicted of first offense DUI or DUAC with a BAC of less than .15, the person’s license is suspended for six (6) months.  The person MAY enroll in the IIDP in lieu of serving the six-month suspension and obtain an ignition interlock restricted license. 

If a person is convicted of first offense DUI or DUAC with a BAC of .15 or more, the person’s license is suspended for six (6) months.  The person MUST enroll in the IIDP in lieu of serving the six-month suspension and obtain an ignition interlock restricted license.

Thus, Emma’s Law ultimately places more restrictions on a person that “blows” a high BAC than a person that refuses to “blow” at all.

The refusal to submit to a breath test may be used against the person at trial in a prosecution for a first offense DUI or DUAC.  Likewise, the BAC level of a person that does submit to a breath test may be used against that person at trial, provided that the State is able to have said BAC level admitted into evidence. 

Given the fact that the penalties for a first offense DUI or DUAC increase with the increase in the person’s BAC level, including those collateral consequences associated with Emma’s Law, the most common answer most people hear to the instant question is “DON’T BLOW!”  But, as indicated earlier, the most sound answer is, as with nearly any legal question, “IT DEPENDS.”    

DUI Lawyer in North Charleston, South Carolina

South Carolina’s DUI and DUAC laws are extremely complicated even for DUI lawyers.  As indicated previously, whether or not to “blow,” often depends on what type of driver’s license a person has, their age, and sometimes their prior criminal record.  Rad S. Deaton and the Deaton Law Firm, LLC, fully recommend that anyone seeking legal advice concerning a DUI or DUAC, regardless of whether or not they have been charged or convicted, have a consultation with an experienced DUAC and DUI attorney before making any decisions regarding a DUI or DUAC.