What Happens If You Refuse a Breath Test in South Carolina?

Driving in South Carolina is a privilege, not a right. By driving on the roads of South Carolina, a person has impliedly given consent to submit to breath, blood, or urine testing for the purpose of determining the presence of alcohol, drugs, or both if the person is arrested for DUI or DUAC. The person has the right to refuse this test. However, if the person is charged with felony DUI, which means the impaired driving allegedly caused death or great bodily injury to someone else, the person may not refuse the tests, and the police officers can force the person to give a blood sample if they don’t blow into the breathalyzer.

What Happens If You Refuse a Breath (or Blood) Test in South Carolina?

If you refuse the breath test, your license will be immediately suspended for a period of at least 6 months. You will also have to enroll in and complete the Alcohol & Drug Safety Action Program (ADSAP). You may enroll in the Interlock Ignition Program and be able to drive during this 6-month period. Your refusal may be used against you in court. If you’ve had a previous conviction for DUI or DUAC within the past 10 years, the suspension period will be 9 months. If you’ve had more than one conviction within the past 10 years, the suspension period will be even longer. You will receive from the officer a Notice of Suspension form, and the arresting officer probably will take your driver’s license.

What Happens If I Take the Breath Test in South Carolina?

If you take the test, the breathalyzer machine will give you a written report showing your blood alcohol content (BAC). The reading is admissible as evidence at your DUI or DUAC trial. If your blood alcohol content is less than 0.15%, then there is no immediate suspension of your driver’s license. If your BAC is 0.15% or greater, then you will be immediately suspended for a period of at least 30 days, and you will have to enroll in and complete ADSAP.

If your reading is 0.05% or less, then for purposes of a criminal trial, it is conclusively presumed that you weren’t under the influence of alcohol. If your reading is 0.08% or higher, then it may be inferred by the judge or jury that you were under the influence of alcohol, but the judge or jury may consider other evidence when making a final verdict.

What Happens If I Couldn’t Take the Breath Test?

If you are physically unable to provide a breath sample because you had an injured mouth, you were unconscious, or for any other reason considered acceptable by licensed medical personnel, the police officer may request that you provide a blood sample. Refusing a blood sample has the same consequences as refusing a breath test. If none of these circumstances apply, and you attempted to take the breath test but don’t blow enough air into the machine for it to make a reading, then you will be considered to have refused the test.

Can I Challenge My Driver’s License Suspension in South Carolina?

Yes. If your license is suspended because you refused a test or because your reading was 0.15% BAC or greater, you may request an Implied Consent Hearing (sometimes referred to as an Administrative Hearing) within 30 days. If you miss the 30-day deadline, you lose the right to challenge your suspension. There is a $200 filing fee for requesting a hearing.

This hearing is completely independent of your DUI or DUAC charge. In other words, whether you win this hearing will have no bearing on whether you get convicted of DUI or DUAC. Ultimately, you could have to serve the 6-month suspension for the refusal and have to deal with the driving consequences if later convicted of DUI or DUAC.

What Happens at an Implied Consent Hearing in South Carolina?

The hearing is held before an Administrative Hearing Officer who isn’t a judge but still presides over the hearing in the same manner as a judge would. The police officer who made the arrest must be present. If a different officer administered the breath test, that officer must also be present. The officers give testimony and present evidence, and your DUI lawyer has the opportunity to cross-examine the officers. Depending on the unique facts of your case, you may also testify at the hearing. Regardless, the burden of proof is on the police to show that your license should be suspended. At the implied consent hearing, the Administrative Hearing Officer doesn’t decide whether you are guilty of DUI. Instead, the Hearing Officer only decides whether your license should be suspended.

At the administrative hearing, you can challenge whether the arrest was lawful. This is usually done by arguing that the arresting officer didn’t have probable cause to make the arrest or was not within his jurisdiction at the time of the arrest. You can also challenge whether you were adequately warned of the consequences of taking or refusing the breath test. Although officers generally read your implied consent rights from an advisement form, they sometimes make mistakes in doing so or they make other comments that invalidate the advisement. Finally, if your BAC reading was 0.15% or greater, you can challenge whether the DMT Datamaster machine was working properly.

Can I Drive in South Carolina While I Wait For My Implied Consent Hearing?

Usually, within a week or so of requesting a hearing, you will receive from the DMV paperwork permitting you to obtain a Temporary Alcohol License. This license costs $100 and will allow you to drive in South Carolina without restrictions for six months. After six months, the Temporary Alcohol License expires.

If you are arrested on or after May 19, 2024, you may elect to place an Ignition Interlock Device (IID) in your car instead of getting a TAL while you wait on an administrative hearing. There are very few situations where we find getting an IID is advisable. Typically, we recommend getting a TAL instead.

How Does a Urine Sample Come into Play?

If the police officer has reasonable suspicion that you are under the influence of drugs other than alcohol or under the influence of drugs and alcohol, the officer may order that a urine sample be taken. When we handle cases involving urine samples, we review whether the officer performed a Drug Recognition Exam (DRE). Click here for a description of DRE’s.

Can I Get My Own Blood Alcohol Test in South Carolina?

If you submit to a test, you had the right to have a qualified person of your choosing conduct additional tests at your expense on the night of the arrest. The arresting officer must provide you with affirmative assistance if you request additional tests. “Affirmative assistance” at least requires the officer to drive you to the nearest medical facility which performs blood tests to determine a person’s alcohol concentration. If you requested your own test, and the police didn’t provide you affirmative assistance, then your BAC reading may be excluded from evidence at the DUI trial.

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