When the police pull someone over on suspicion of driving under the influence (DUI) in South Carolina, almost without exception, they will ask the driver to submit to a breath test. This test, commonly known as the “breathalyzer,” determines the driver’s blood alcohol concentration (BAC), and driving with a BAC above 0.08 is the surest way to get charged with DUI under South Carolina law.
If taking the breathalyzer can mean giving the police the evidence they need to charge you with DUI, should you give a breath sample if you get pulled over? What are the risks of refusing the breath test? Is it possible to dispute a BAC reading; and, if so, on what grounds? Here are some of the key facts you need to know:
1. South Carolina has an Implied Consent Law
First, and most importantly, South Carolina has an implied consent law. Under Section 56-5-2950(A) of the South Carolina Code of Laws:
“A person who drives a motor vehicle in [South Carolina] is considered to have given consent to chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs or the combination of alcohol and drugs if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs.”
In other words, simply by the act of driving in the state, you give your “implied consent” to submit to chemical testing (breath, blood, or urine) if you get pulled over on suspicion of DUI.
2. Violating South Carolina’s Implied Consent Law has Immediate Consequences
If you unlawfully refuse to give a breath sample during a DUI traffic stop, your refusal can have immediate consequences – even if you were not actually driving under the influence of alcohol. Regardless of your actual level of impairment, violating South Carolina’s implied consent law can result in:
- An immediate six-month driver’s license suspension for a first-time offense (repeat offenders’ licenses can be suspended for even longer);
- Mandatory enrollment in South Carolina’s Alcohol and Drug Safety Action Program (ADSAP); and,
- Your refusal being used as evidence that you were aware that you were driving under the influence of alcohol.
3. There are Conditions on Your Obligation to Submit to a Breath Test
Importantly, there are conditions on your obligation to submit to the breathalyzer under South Carolina’s implied consent law. In order for the implied consent law to apply, the arresting officer must give you verbal and written notice recorded on video that:
- You do not have to give a breath sample, but if you refuse to do so your license will be suspended for at least six months (unless you opt to install an ignition interlock device (IID)) and your refusal will be used against you in court;
- Your license will be suspended for at least one month (unless you install an IID) if you take the test and blow a BAC of 0.15 or above;
- You have the right to have the test conducted by a qualified person of your choosing at your expense;
- You have the right to request a contested hearing within 30 days of your license being suspended; and,
- If you do not request a contested hearing or if your license suspension is upheld at the hearing, then you will be required to enroll in the ADSAP.
4. There are a Number of Potential Defenses to a High BAC
If you consent to a breath test and you blow 0.08 or above, this does not necessarily mean that you are going to be fined and face possible jail time for DUI. While the circumstances of individual cases vary, some potential grounds for challenging a high BAC reading in South Carolina include:
- Failure to provide adequate notice of the consequences of refusing or consenting to a breath test on video;
- Faulty breathalyzer calibration or faulty administration of the breath test;
- Administration of the breath test by a person who is not, “trained and certified by the South Carolina Criminal Justice Academy, pursuant to SLED policies;”
- An unlawful traffic stop or another violation of your constitutional rights prior to administration of the breath test;
- Delayed administration of the breath test, resulting in an increase in your blood alcohol concentration from your BAC level of at the time you were driving; and,
- An alternate explanation for a high BAC other than alcohol intoxication.
5. Higher BACs Carry Higher Potential Penalties
In South Carolina, DUIs involving higher BACs generally carry higher potential penalties. For example, if you blow 0.16 or above, you can face up to 90 days in jail compared to a maximum jail sentence of 30 days for a standard DUI with a BAC of 0.15 or below. Of course, you are unlikely to know your BAC when you get pulled over, and refusing the breath test will still subject you to the immediate consequences discussed above.
6. You Can Be Convicted of DUI Without Evidence of Your BAC
Finally, even if you refuse a breath test, you can still be convicted of DUI in South Carolina. While a BAC reading is one form of evidence, there are various other forms of evidence that state prosecutors can use to show you were legally-impaired behind the wheel. From officer testimony regarding your driving patterns (such as weaving and failing to maintain a constant speed) to your performance on the field sobriety tests (which are not mandatory under South Carolina’s implied consent law), in order to avoid a DUI conviction, you need to be prepared to defend against all forms of evidence prosecutors have against you.
Contact North Charleston DUI Lawyer Rad S. Deaton
If you are facing a DUI charge in South Carolina, it is important that you speak with a lawyer as soon as possible. For a free and confidential consultation with North Charleston DUI lawyer Rad S. Deaton, call 843-225-5723 or inquire online now.