Driving in South Carolina is a privilege, not a right. By driving on the roads of South Carolina, a person has implicitly 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 there is probable cause to believe the person committed felony DUI, which means the impaired driving allegedly caused death or great bodily injury to someone else, South Carolina law requires the person to submit to chemical testing. This does not mean officers can automatically force a blood draw whenever the person refuses a breath test; a blood draw must comply with applicable constitutional requirements. So what happens if you refuse a breath test in South Carolina?
Quick Answer: If you refuse a breath test in South Carolina after a DUI arrest, the SCDMV will suspend your license for at least six months, longer with qualifying prior offenses, and you must enroll in the Alcohol & Drug Safety Action Program (ADSAP). Your refusal can also be used against you in court. You have 30 days from the suspension notice to request an implied consent hearing.
Table of Contents
- What Happens If You Refuse a Breath (or Blood) Test in South Carolina?
- What Happens If I Take the Breath Test in South Carolina?
- What Happens If I Couldn’t Take the Breath Test?
- Can I Challenge My Driver’s License Suspension in South Carolina?
- What Happens at an Implied Consent Hearing in South Carolina?
- Can I Drive in South Carolina While I Wait For My Implied Consent Hearing?
- How Does a Urine Sample Come into Play?
- Can I Get My Own Blood Alcohol Test in South Carolina?
- How Can a Charleston DUI Lawyer Help?
What Happens If You Refuse a Breath (or Blood) Test in South Carolina?
Under South Carolina’s implied consent law, S.C. Code Section 56-5-2950, a person who drives a motor vehicle in South Carolina is considered to have consented to chemical testing of his or her breath, blood, or urine if arrested for an offense arising from driving under the influence. If you refuse the breath test, your license will be suspended immediately for at least 6 months. You will also have to enroll in the Alcohol & Drug Safety Action Program (ADSAP).
You may enroll in the Ignition Interlock Device (IID) Program, end the remaining suspension, and drive with an ignition interlock restricted license. If you do, the device must stay in your vehicle for the remainder of the suspension period, with a minimum of three months. Your refusal may be used against you in court. South Carolina law generally requires officers to video record the breath test site, including a refusal, and that recording can be important evidence in your case.
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 qualifying prior offense within the past 10 years, the suspension period will be even longer. You will receive a Notice of Suspension form from the officer, and the arresting officer will probably take your driver’s license.
The following table shows the implied consent suspension periods under S.C. Code Section 56-5-2951. The longer periods apply if you have a prior DUI, DUAC, or felony DUI conviction, or a prior implied consent or DUI-related suspension, within the past ten years.
| Offense | Refusal to Submit | Breath Test of 0.15% or Higher |
|---|---|---|
| First offense | 6 months | 1 month |
| Second offense (within 10 years) | 9 months | 2 months |
| Third offense (within 10 years) | 12 months | 3 months |
| Fourth or later offense (within 10 years) | 15 months | 4 months |
What Happens If I Take the Breath Test in South Carolina?
If you take the test, you must be provided with a written report showing the test results before any proceeding in which they are used as evidence. The reading may be admitted as evidence at your DUI or DUAC trial, subject to applicable rules and challenges.
If your blood alcohol content is less than 0.15%, your driver’s license will not be suspended immediately under the 0.15% implied consent provision. If your BAC is 0.15% or higher, your license will be suspended immediately for at least one month. If you do not request a hearing, or if the hearing upholds your suspension, you must enroll in 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.
The following table summarizes what each breath test result means in South Carolina:
| Breath Test Result | What It Means |
|---|---|
| 0.05% or less | Conclusively presumed not under the influence of alcohol |
| More than 0.05% but less than 0.08% | No presumption either way; the result may be considered with other evidence |
| 0.08% or more | The judge or jury may infer you were under the influence of alcohol, and you may be charged with DUAC |
| 0.15% or more | Immediate license suspension of at least one month; ADSAP enrollment if you do not request a hearing or if the suspension is upheld, in addition to the criminal charge |
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 properly requested blood sample can have the same license-suspension consequences as refusing a breath test.
If none of these circumstances apply and you attempted the breath test but didn’t blow enough air into the machine for it to make a reading, that does not automatically mean you refused the test. Whether an inadequate sample amounts to a refusal depends on the circumstances, including whether you deliberately failed to cooperate or tried to thwart 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 of the issuance of the Notice of Suspension. If you miss the 30-day deadline, you lose the right to challenge your suspension at that hearing. A $200 filing fee applies to requesting a hearing, unless the rules of procedure for the Office of Motor Vehicle Hearings provide otherwise.
This hearing is separate from your DUI or DUAC charge. Winning the hearing overturns the implied consent suspension, but does not determine whether you will be 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?
An Administrative Hearing Officer, not a judge, presides over the hearing. The arresting officer or a DMV representative must appear; if neither appears, the Hearing Officer must rescind the suspension. If a different officer administered the breath test, that officer’s agency is also a party to the hearing, but the officer’s personal attendance is not invariably required.
The officers who appear may testify and present evidence, and your DUI lawyer can cross-examine them. Depending on the unique facts of your case, you may also testify at the hearing. Regardless, the DMV and the arresting officer must prove 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 or detention was lawful. This may include arguing that the arresting officer didn’t have lawful grounds to make the arrest. You can also challenge whether you were given a written copy of, and verbally informed of, your implied consent rights.
Although officers generally read your implied consent rights from an advisement form, they sometimes make mistakes or make other comments that affect the advisement’s adequacy. If you allegedly refused, you can challenge whether you actually refused. Finally, if your BAC reading was 0.15% or greater, you can challenge whether the DMT DataMaster machine was working properly, whether the testing was properly conducted, and whether the result was accurate.
Can I Drive in South Carolina While I Wait For My Implied Consent Hearing?
If you request a hearing within 30 days of the Notice of Suspension, you may obtain a Temporary Alcohol License from the DMV. This license costs $100 and allows you to drive in South Carolina without restrictions while the contested case is pending, subject to the statutory rules governing when the license ends. It does not automatically expire after six months.
You may elect to enroll in the Ignition Interlock Device (IID) Program instead of getting a TAL while you wait on an administrative hearing. We rarely find it advisable to get an IID. 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).
Can I Get My Own Blood Alcohol Test in South Carolina?
If you submit to a test, you have the right to have a qualified person of your choosing conduct additional tests at your expense. 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 that performs blood tests to determine a person’s alcohol concentration. If you requested your own test and the police didn’t provide affirmative assistance, your breath test result is inadmissible in a judicial or administrative proceeding.
How Can a Charleston DUI Lawyer Help?
The 30-day deadline to request an implied consent hearing starts running when the Notice of Suspension is issued, so it is important to act quickly. At the hearing, we can cross-examine the arresting officer, challenge whether the arrest was lawful and whether you were properly advised of your implied consent rights, and, if you took the test, challenge whether the breath testing machine was working properly. We also review the video of the breath test site and your arrest for mistakes that can help your DUI case.
For a deeper look at implied consent, breath tests, license suspensions, and the rest of South Carolina DUI law, download our free book on DUI in South Carolina. It is available as a PDF or on Apple Books at no cost.
Contact (843-284-5500) our Charleston DUI defense lawyers at Futeral & Nelson, LLC today to discuss your case.
