If a police officer arrests you for suspected driving under the influence (DUI), the officer will ask you to take a breathalyzer test. Technically, you can refuse the test. However, if you do, be prepared to immediately and automatically lose your driving privileges under South Carolina’s implied consent law.
In this article, we will discuss the implied consent law in more detail, including the consequences that a driver faces if he or she refuses to submit a breath, blood or urine sample after a DUI arrest. We hope this information helps you to understand the law better.
If you have been arrested for a DUI in Rock Hill or a nearby community, you should speak with an experienced DUI defense lawyer as soon as possible in order to learn about your rights and legal options. At McKinney, Tucker & Lemel, LLC, we have an extensive background in handling these cases. We can meet with you right away to discuss a legal game plan that will work best for you. Contact us today to get started with your defense.
How Does South Carolina’s Implied Consent Law Work?
If you drive a motor vehicle in the state of South Carolina, then under S.C. Code § 56-5-2950, you are considered to have given consent to a chemical test of your breath, blood or urine for the purpose of determining the presence of alcohol or drugs if you should ever be arrested for suspected driving under the influence. This is what commonly called South Carolina’s implied consent law. Almost every other state has a similar law, including neighboring North Carolina and Georgia.
The officer must offer you a breath test. To administer the test, the officer must be trained and certified by the South Carolina Criminal Justice Academy to administer the test using a Datamaster DMT device. The officer would need to collect the breath sample within two hours of your arrest.
If you are physically unable to give a breath sample, then the officer may request a blood sample. If the officer has reasonable suspicion that you are under the influence of drugs other than alcohol, the officer can request a urine sample. Only a licensed doctor, registered nurse or trained medical personnel can collect the blood or urine sample. The sample would need to be collected within three hours of your arrest.
Before the officer administers any tests, the officer must advise you of your rights and inform you of the consequences of a refusal, both verbally and in writing. The officer’s advisement and your response must be videotaped.
What Happens If You Refuse to Submit to a Breath Test?
As the officer should advise you at the time of a DUI arrest, your driver’s license will automatically be suspended for six months if you refuse to submit to a chemical test. If it is your second refusal, it will be suspended for nine months, and if it is your third, it will be for 12 months. Keep in mind: This is an administrative driver’s license suspension. It would be added to any driver’s license suspension that you would face if you are ultimately convicted for DUI.
Additionally, if you refuse a test, you will need to complete the Alcohol and Drug Safety Action Program (ADSAP). The program involves being assessed for alcohol and/or drug dependency and undergoing any required treatment. The program can cost anywhere from $500 to $2,500 to complete, and it could last as long as 12 months depending on your treatment needs.
If you refuse to submit to a test, the police and prosecution will lack test results showing your blood alcohol concentration (BAC). However, they can use other evidence to try to obtain a DUI conviction, including your refusal to submit to a test.
Can You Challenge the Suspension of Your Driver’s License?
If your driver’s license is suspended due to a refusal to submit to a test – technically, it is called an administrative license revocation (ALR) – then you will have 30 days from the suspension date to request an administrative hearing before the Administrative Law Court’s Office of Motor Vehicle Hearings (OMVH). You can also apply for a temporary license that will allow you to drive until your hearing is held, and OMVH decides your case.
If you have any questions about how to request a hearing and want to have legal representation for the hearing, then you should contact an attorney immediately after your license is suspended. During the hearing, in particular, the attorney can help you to challenge issues such as whether:
- The police lawfully arrested or detained you
- The police gave you a written copy of and verbally informed of your rights
- You actually refused to submit to a test
- The person who administered the test or took samples was qualified to do so
- The testing device was working properly at the time of your test.
If the hearing results in your driver’s license suspension being reversed, then your full driving privileges will be restored. However, you may still face the possibility of losing your license, again, if you are ultimately convicted of a DUI.
If the hearing results in your driver’s license suspension being upheld, then you will continue to serve out the rest of your suspension. However, an attorney can help you to explore options to get a temporary restricted license, which will allow you to drive with an ignition interlock device installed in your vehicle.
Our Rock Hill DUI Defense Attorneys Are Ready to Serve You
The attorneys at McKinney, Tucker & Lemel, LLC, have deep ties to the communities we serve, including Rock Hill and areas throughout York County. We have dedicated our legal careers to making sure clients like you get a fair result if you are charged with a DUI and/or a violation of the South Carolina implied consent law. Contact us now to discuss your case. We can put our knowledge and experience to work for you right away.
Gary C. Lemel is a graduate of Vanderbilt University and Wake Forest University School of Law who has deep background as a criminal defense attorney in Rock Hill. Over the course of his career, he has handled everything from traffic violations to death penalty litigation. His current practice spans multiple counties and focuses on cases involving driving under the influence, drug charges and high-level felonies. He also serves on the board of the South Carolina Association of Criminal Defense Attorneys and as a member of the South Carolina Bar’s Judicial Qualifications Committee and Public Defender Standards Committee.