What is implied consent in SC?
When you went to the DMV, took the driver’s test, and got your SC driver’s license, you did not agree to take a breathalyzer test whenever a police officer asks.
According to SC law, you did. Whenever you get behind the wheel and drive, SC law says you are “impliedly consenting” to take a breath test or blood test when requested. If you refuse, and you should almost always refuse to take a breathalyzer, your license is suspended.
Even if you take the test, your license will still be suspended if the result is .15 or higher. What are the consequences of refusing a breathalyzer, and is there a way to fight an implied consent suspension in SC?
What is Implied Consent in SC?
SC Code Section 56-5-2950 says that, if you drive in SC, you have consented to take a breath, blood, or urine test:
(A) A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of the person’s breath, blood, or urine for the purpose of determining the presence of alcohol, drugs, or the combination of alcohol and drugs, if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of alcohol and drugs.
You can (and should) refuse to take the breathalyzer, but it may result in an implied consent license suspension. The officer is required to inform you of your “implied consent rights,” both verbally and in writing, including that:
- You do not have to take the test;
- If you refuse, your license may be suspended, or you may be required to install an ignition interlock device (IID);
- You have the right to get an additional independent test (FYI, the officer must assist you in getting an independent test if you request it);
- You have the right to request a hearing to contest your license suspension; and
- If you do not request the hearing or if you lose the hearing, you must enroll in the alcohol and drug safety action program (ADSAP).
Implied Consent Suspensions are Separate from Your DUI Charges
An implied consent license suspension is separate from your DUI case in criminal court – if you win your implied consent hearing and your license is reinstated, it can still be suspended again if you are convicted of the DUI.
If you lose your implied consent hearing and you must finish the suspension period or install an ignition interlock device, you may be subject to another license suspension if you are convicted of the DUI in criminal court.
Because the courts have said that the implied consent proceedings are administrative (civil) in nature, it is not double jeopardy if you are punished a second time in the criminal court…
What is an Implied Consent Administrative Hearing?
If you refuse the breathalyzer, or if you take it and the result is .15 or higher, your license will be immediately suspended.
What should you do?
First, talk to a DUI defense lawyer who can help you. Your attorney will request an administrative hearing, but the hearing request must be received by the DMV within 30 days – if you do not request the hearing in time, you will lose your right to contest the suspension.
Once you or your attorney has requested the administrative hearing, you can get a temporary “alcohol license” that allows you to drive without restrictions other than no alcohol.
At the hearing, the officer will tell the judge (an administrative hearing officer) what their probable cause was for the DUI arrest and why they suspended your license. Your attorney can then cross-examine the officer and make arguments to the hearing officer to contest:
- The probable cause for your arrest;
- Whether the officer read your implied consent rights to you and gave you a written copy of them;
- Whether you refused the breathalyzer or whether the result was greater than .15;
- Whether the officer was qualified to give you the breathalyzer;
- Whether the machine was working properly; and
- Whether the officer followed SC law and SLED policy while giving you the test.
You can win the hearing if your attorney proves that there was no probable cause for the DUI arrest or that the officer did not follow the requirements for an implied consent suspension under SC law. You can also win the hearing if the officer does not show up or if the officer decides not to enter testimony (which does happen from time to time).
What Happens When You Win?
If you win your implied consent hearing, your license is restored. Keep in mind that you will still have the criminal case pending for the DUI charges – your case is not over, and you must stay in contact with your attorney.
What Happens if You Lose?
If you lose the implied consent hearing (or don’t request one in time), you will need to finish the license suspension (or enroll in the ignition interlock device program) and enroll in ADSAP before you can reinstate your license. You may be eligible for a temporary or route-restricted license.
Whether you win or lose, your DUI charges will still be pending, and your case is not over until the charges are resolved in the criminal court.
DUI Defense Lawyer and Implied Consent Hearings in Conway, SC
If you have been charged with DUI or DUAC in Myrtle Beach, Conway, or anywhere in the Horry County area, you may have valid defenses to the charge or there may be grounds to get your case dismissed. You may also have strict deadlines to request an administrative hearing if you have an implied consent suspension because of a DUI arrest…
Contact DUI Defense Lawyer Johnny Gardner now at (843) 248-7135 for a free consultation to find out how we can help.