DUI defense in South Carolina is a complex and specialized area of law which includes the defense of driving under the influence (DUI) charges, driving with an unlawful alcohol concentration (DUAC), and felony DUI with death or with great bodily injury. A DUI charge in South Carolina also may result in an administrative license suspension unless you act immediately following your arrest. Attorney Johnny Gardner is a member of the National College for DUI Defense which regularly provides advanced-level training to select DUI defense attorneys nationwide.
A successful DUI defense requires an understanding of a variety of scientific issues and how they intersect with the legal issues that may be found in each case. A DUI defense practitioner must be able to identify and challenge common legal issues such as Fourth Amendment search and seizure violations, probable cause, Miranda violations, and denial of counsel issues, as well as DUI-specific legal issues such as suppression of blood or breath test results, suppression or redaction of dash cam videos, and suppression of field sobriety test results. In DUI cases, these legal issues often intersect with and require expertise in scientific areas such as anatomy, physiology, biology, chemistry, and toxicology. A DUI defense lawyer must understand the operation of breath testing equipment and how blood samples are analyzed in a forensics lab.
By arguing motions pre-trial, a DUI defense attorney may be able to win a dismissal of your charges before trial begins or suppress key evidence that the prosecutor would use at trial. When pre-trial motions fail, your DUI lawyer must have the skill and knowledge required to present your case to jurors, attack the field sobriety tests, and challenge blood and breath test results. Your attorney must have the skill and knowledge to cross-examine police officers and the prosecution’s expert witnesses such as toxicologists. Your attorney must also know when to use defense expert witnesses and when to advise you to testify in your own defense.
Under South Carolina’s DUI laws, the officer’s dashcam video must begin no later than the activation of the officer’s blue lights and continue through the arrest. The video is critical to your case because it may be the state’s best evidence of intoxication or it may be your best evidence of sobriety. In some cases, the officer’s failure to record the complete field sobriety tests, Miranda warnings, or other details that are mandatory in the DUI laws will result in a dismissal of your case. In other cases, missing details in the video or the officer’s failure to follow SLED regulations can result in suppression of the video or breath test results.
A conviction for driving under the influence (DUI) or driving with an unlawful alcohol concentration (DUAC) can have severe and sometimes permanent consequences. DUI offenses in South Carolina are graduated which means that the potential penalties increase based on the number of prior offenses that you have and based on the blood alcohol content (BAC) level if you took the breathalyzer or if a blood sample was taken from you.
Depending on the BAC and whether it is your first or subsequent DUI offense, South Carolina’s penalties include mandatory minimum jail sentences. This is one of many reasons why no one should ever plead guilty to a DUI offense at their initial bond hearing. If you are charged with DUI first offense with a BAC greater than .15, for example, the magistrate must sentence you to jail time or a lengthy period of community service if you were to plead guilty at the initial hearing. On the other hand, if you plead not guilty and retain a DUI defense lawyer to obtain the evidence and review your case, your charge could be dismissed before it gets to trial. Even in the worst of cases, your charges could be reduced or rewritten to keep you out of jail or to avoid the DUI conviction.
A conviction for DUI or DUAC will also result in a license suspension separate from, and in addition to, the suspension you may receive under the implied consent laws. The length of time that your license is suspended, like the potential jail sentence, is graduated and will increase based on your BAC level and number of prior offenses. Following a DUI conviction, you cannot regain your license until you enroll in the alcohol and drug safety action program (ADSAP), and you may also be required to install an ignition interlock device on your vehicle for a period of time.
The financial consequences following a DUI or DUAC conviction can also be severe. In addition to the fines that are imposed following a conviction, the driver will have to carry SR-22 insurance for a period of at least three years, pay for the ADSAP program, pay for the ignition interlock device and its monitoring, and pay reinstatement fees to the DMV. It is less expensive to retain even a top-notch DUI defense attorney than it would be to pay the financial consequences that follow a conviction.
There are many more collateral consequences following a DUI-related conviction. A DUI conviction can never be expunged under South Carolina law. Although many misdemeanor offenses in the lower courts can be expunged after three years, DUI cannot because it is classified as a traffic offense. A DUI conviction will follow you for the rest of your life. It can severely limit your future job opportunities and it may even prevent travel to certain countries. At The Johnny Gardner Law Group, we understand how a DUI conviction can impact a person’s life and we are committed to providing the best defense possible. Our goal is always to have your charge dismissed or to win your case at trial, but we also understand the intricacies of DUI penalties and how to avoid the collateral and unexpected consequences that follow a DUI arrest.
Implied Consent Proceedings
If you refuse to take the breathalyzer following a DUI arrest, your license will be automatically suspended. If you do take the breathalyzer and the result is .15 or greater, your license will still be automatically suspended although it will be for a shorter length of time. In either case, you must request an administrative hearing through the DMV within 30 days of your arrest. Once you request the hearing, you can get a temporary license and continue driving until the date of the implied consent hearing. If you do not request a hearing within 30 days or if the hearing officer upholds the officer’s decision to suspend your license, you are required to enroll in the alcohol and drug safety action program (ADSAP) before you can regain your driving privileges.
This is one reason why it is critical to call a DUI defense lawyer as soon as you have been arrested and charged with a DUI offense. If you call us after the 30-day deadline has expired and you did not request the administrative hearing on your own, we cannot help you to get your license back, and the administrative suspension will stand.
This administrative process is separate from the criminal charge of DUI. The implied consent proceedings are considered administrative and not criminal, and they are in a different court. If you win the implied consent hearing, you must still fight the DUI in the criminal court, and you are still subject to another license suspension if you are convicted. If you win the DUI case but did not request an implied consent hearing, the administrative suspension will still be in effect even if you are acquitted of the DUI charge or the DUI charge is dismissed.
There are a number of issues that we can challenge at your administrative implied consent hearing, including probable cause for the arrest. The officer will have to testify at the implied consent hearing as to what his probable cause was, and your attorney will have the opportunity to cross-examine the officer. You can also challenge whether the breath test was properly offered to you, whether the result was accurate, or whether you actually refused the test. The answers to these questions will be determined not only by the facts as testified to by the officer, but also by South Carolina appellate court opinions, South Carolina’s implied consent statute, and whether the arresting officer and Datamaster operator followed SLED’s policy and procedure when offering and conducting the test. If the hearing officer rules against the officer or if the officer does not appear at the hearing, your license will be reinstated.
Types of DUI Offenses in South Carolina
The most common impaired driving offense in South Carolina courts is driving under the influence (DUI). In a traditional DUI case, the state must first prove that you were driving and that your ability to drive was materially and substantially impaired by the use of alcohol or drugs. Despite what you see in television ads or billboards paid for by the state and by special interest groups, it is not illegal in South Carolina to drink and drive. If you have been charged with DUI, the state must prove beyond a reasonable doubt that, while driving, you were intoxicated to the point that your ability to drive was materially and substantially impaired.
How Does the State Prove a DUI Offense?
The state will typically attempt to prove a DUI offense with breathalyzer or blood test results, the arresting officer’s testimony about any field sobriety tests that were conducted on the roadside, the officer’s testimony as to their observations, the officer’s dashcam video and bodycam videos, eyewitness testimony, and any incriminating statements that you made. In drug cases, the state will ordinarily have to bring a toxicologist to testify as to the levels of drugs that were found in the blood sample and what their effects on the body would be at those levels.
How is DUAC Different?
Driving with an unlawful alcohol concentration (DUAC) is South Carolina’s per se statute. Although other evidence of intoxication is still admissible in a DUAC case, the state only needs to prove that your blood alcohol content (BAC) is .08 or greater. If you refuse the breathalyzer or blood tests, obviously you won’t be charged with DUAC. If you are charged with DUAC, all of the same defenses that apply to a traditional DUI are still available to you. You can still challenge the admissibility and the accuracy of the breath or blood test results, you can introduce evidence of sobriety, and the videotaping requirements still apply.
You have the right to refuse the breathalyzer and, in most cases, it is in your best interest to refuse. You will probably be arrested and the refusal itself may have consequences such as an immediate license suspension. Despite this, you will most likely have a better case when it is time to appear in court.
When great bodily injury or death results from an accident involving a person, who is under the influence of alcohol or drugs, will be charged with felony DUI resulting in great bodily injury or felony DUI resulting in death. In either case, these are emotionally charged cases that can often result in lengthy prison sentences. A felony DUI defense lawyer must understand the dynamics of a case where there are angry and often grieving victims or victims’ families – a dynamic that often will determine the prosecutor’s approach to the case. The attorney must be prepared to deal with potential media coverage which will almost always be negative for the defense, and there will usually be the added dynamic of an injury or wrongful death suit that will be filed in civil court.