What can you argue at an implied consent hearing in South Carolina?
If you were charged with DUI and had an implied consent suspension because you either 1) refused the breathalyzer or 2) took the alcohol tests and the result was .15 or greater, you can request an implied consent hearing to ask a DMV hearing officer to “rescind the suspension” and return your license.
This is not a trial on your DUI charges, and it is completely separate from the criminal DUI case – it is even in a different courtroom (the administrative court, which is usually held in a conference room and not in an actual courtroom).
Your DUI case will not be dismissed, and you will not be found guilty or not guilty of DUI at your administrative hearing. There are only two possible outcomes:
- Your license suspension is upheld, and your DUI case will continue as it was, or
- Your suspension is “rescinded,” your license is returned, and your DUI case will continue as it was.
But, if you’re not arguing guilt or innocence, what can you argue at your implied consent hearing?
What Can You Argue at a DUI Administrative Hearing?
If your license has been suspended for an implied consent violation under SC Code Section 56-5-2950, you will have the opportunity to challenge the suspension and get your license back if you request a hearing within 30 days.
SC Code Section 56-5-2951 limits what you can argue at an implied consent hearing, though, specifying that the scope of the hearing is limited to whether the person:
- was lawfully arrested or detained;
- was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;
- refused to submit to a test pursuant to Section 56-5-2950; or
- consented to taking a test pursuant to Section 56-5-2950, and the:
(a) reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more;
(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and
(d) machine was working properly.
Let’s look at what each of these means in the context of an administrative hearing.
The probable cause for your arrest
You can challenge the probable cause for your arrest at your administrative hearing – including 1) the probable cause for the traffic stop that led to your arrest and 2) the probable cause for the DUI arrest itself.
If the hearing officer finds that there was no probable cause, 1) your suspension is rescinded, 2) your license is returned to you, and 3) although your DUI charge is not yet dismissed, you will have a record of a finding of no probable cause that you can use to your benefit in the criminal court proceedings.
Whether the officer read your implied consent rights to you and gave you a written copy of them
In the Datamaster room, the officer must read your implied consent rights to you and give you a written copy of your implied consent rights. Your implied consent rights will be on a notice form that may be the same form you mail in to request your hearing.
If the officer did not provide you with a copy of your implied consent rights, you should win your hearing and your suspension should be rescinded.
Whether you refused the breathalyzer or whether the result was greater than .15
If the officer says you refused the breathalyzer, but the video shows you blowing into the breathalyzer or a malfunction that was not your fault, the hearing officer may find that you did not actually refuse the breathalyzer and rescind your suspension.
In these situations, the officer may argue that you were “faking it” instead of making a good-faith effort to blow into the machine, and the hearing officer will have to decide who he or she believes based on the video evidence.
Whether the officer was qualified to give you the breathalyzer
If your attorney discovers that the Datamaster operator was not certified, the result is void and the hearing officer will rescind the suspension.
Whether the machine was working properly
Your attorney should pull the reports from your breathalyzer machine to determine whether there were any issues with the machine or operator and present the records to the hearing officer. If the results are not reliable due to a problem with the Datamaster machine, the hearing officer will rescind your suspension.
Potential issues that may be identified through SLED’s database include:
- Problems with the simulator solution – the machine uses this solution to calibrate itself before each breath test, and the solution has an expiration date. If the simulator solution is out-of-date, the test is not reliable, and the hearing officer should rescind your suspension.
- Calibration – periodically, the machine must be calibrated by a tech from SLED. If there is a problem with the machine’s calibration, it will be reflected in the records.
- Inspections – each machine must be inspected periodically. The results from each inspection – or the failure to inspect a machine – will be reflected in the records.
- The Datamaster operator – your attorney can pull a report on your Datamaster operator as well that shows each time he or she operated the machine, the subject, and the results.
- Error messages – the Datamaster machine’s records will also reflect each time an error message was recorded by the machine, including errors caused by radio frequency interference (RFI), low or high temperatures, calibration errors, pump errors, “ambient fails,” hardware errors, RAM errors, filter errors, and more.
Whether the officer followed SC law and SLED policy while giving you the test
The arresting officer and Datamaster operator must follow the requirements of §2950 and §2951, and they must follow SLED policy and procedure for the operation of the Datamaster machine.
If the officer fails to follow SC law or SLED policy while administering the breathalyzer test, it may invalidate the results, and the hearing officer may rescind your suspension and return your license.
Questions About What You Can Argue at an Implied Consent Hearing?
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.