Refusing a breath test in South Carolina: what implied consent means

What implied consent means

South Carolina law says a person who drives a motor vehicle in the state is considered to have given consent to chemical tests of breath, blood, or urine if arrested for DUI. The test is given at the direction of the arresting officer, and the order is set by statute:

• Breath first. The officer must first offer a breath test.
• Blood may be requested if you are physically unable to give a breath sample, for example because of an injured mouth or because you are unconscious.
• Urine may be ordered if the officer has reasonable suspicion of drugs other than alcohol.

A breath sample must be collected within two hours of the arrest, and any other samples within three hours. The breath test must be run by someone trained and certified through the S.C. Criminal Justice Academy, and before each test a simulator check must read between 0.076 and 0.084.

A person who is unconscious, or otherwise unable to refuse, is treated as having been informed and as not having withdrawn consent.

The warnings you must be given

Before any test, and after the video recorder is switched on, the officer must give you a written copy of your rights and tell you out loud that:

1. you do not have to take the test, but your license will be suspended for at least six months if you refuse (with the option of ending the suspension through the ignition interlock program), and your refusal can be used against you in court
2. if you take the test and register 0.15 or more, your license will be suspended for at least one month, again with the interlock option
3. you can have a qualified person of your choosing run additional, independent tests at your own expense
4. you can request a contested case hearing within 30 days of the notice of suspension
5. if you do not request the hearing, or the suspension is upheld, you must enroll in the Alcohol and Drug Safety Action Program

Whether you were given those warnings, in writing and out loud, is one of the questions the DMV hearing officer decides.

What happens after a refusal

A refusal leads to an administrative suspension by the DMV that takes effect on the date of the arrest. Its length depends on your record over the last ten years:

You have 30 days to request a hearing and get a $100 temporary alcohol license; the DMV hearing guide covers that step. If you do not, or if the suspension is upheld, the law lets you end it early by enrolling in the ignition interlock program for the time remaining, with a three-month minimum.

In court, the law says a refusal may be used against you. A refusal also does not end the criminal case; the prosecutor can still try to prove DUI with other evidence, such as the officer's observations, field sobriety tests, and the video.

If you took the test: what the number means

The breath result does not decide guilt on its own. State law sets out what a result can and cannot suggest at trial:

• 0.05 or less: conclusively presumed not under the influence of alcohol
• More than 0.05 but less than 0.08: no inference either way; it can be considered with other evidence
• 0.08 or more: it may be inferred that the person was under the influence

A result of 0.08 or more also supports a separate charge, driving with an unlawful alcohol concentration (DUAC). A result of 0.15 or more triggers the one-month administrative suspension above. Penalties by BAC tier are in the penalties guide.

You must be given a written report of the time of arrest, the time of the test, and the result before any trial or hearing where the result is used.

Your right to your own test

You can ask for an independent blood or urine test by a qualified person of your choosing, at your own expense, and you must be told that in writing. The officer must give affirmative assistance, which at a minimum means transporting you to the nearest medical facility that does blood alcohol tests. If the officer fails to give that help when you ask for it, the law says the breath test result cannot be used in a court or administrative proceeding.

Whether or not you asked for additional tests cannot be used against you at trial.

The video rules

South Carolina requires DUI stops and breath tests to be video recorded. By statute:

• At the scene, recording must start no later than when the officer turns on the blue lights, and must include any field sobriety tests and the arrest, with the Miranda warning.
• At the breath test site, the video must show the entire test procedure, you being told you are being recorded and that you can refuse, the test or the refusal, and the 20-minute waiting period before the test, unless the officer swears it was physically impossible to record that period.

The recordings can be used by either side in a criminal, administrative, or civil proceeding.

Drivers under 21

Drivers under 21 can have their license suspended by the DMV at an alcohol concentration of 0.02 or more, under a separate law with its own implied consent rule (S.C. Code § 56-1-286). If you are under 21, ask an attorney which rules your notice falls under.