SC has passed the “South Carolina Hands Free and Distracted Driving Act,” which will make “distracted driving” a crime beginning September 1, 2025. It was already a crime to text while driving, but, until now, SC has stopped short of prohibiting all cellphone use while driving.
The 2025 SC hands-free law 1) bans most cellphone use while driving (allowing police to pull you over if they see you using the phone) unless it is hands-free, and 2) adds “distracted driving” to the SC points system as a two-point violation for a second offense.
How Do Police Create Probable Cause for DUI Traffic Stops?
The new cell phone ban in SC is also a perfect example of how police manufacture probable cause for DUI stops.
You can’t go to jail for using your cellphone, but you can go to jail for many other things that the officer may “discover” as a result of pulling you over for a distracted driving violation.
What is Probable Cause?
“Probable cause” is a legal standard that means there is a “reasonable basis” for believing a crime has been committed or there is evidence of a crime present in a vehicle or residence. It’s somewhere in between a reasonable suspicion and a preponderance of the evidence, or 50/50.
In a DUI prosecution, the state must have probable cause to 1) stop your vehicle and detain you on the side of the road, 2) arrest you for driving under the influence, and 3) revoke your license for driving under the influence (implied consent).
The probable cause to stop your vehicle is usually a traffic violation of some type – speeding, running a red light, failure to maintain lane, swerving, or driving down the wrong side of the road, for example.
Once an officer has stopped your vehicle, they can write a ticket for the violation they observed, but then they must let you go unless there is probable cause of some other crime that would justify holding you on the side of the road to investigate – for example, DUI or drug trafficking.
If the officer pulls you over for any traffic violation and smells the odor of alcohol, they are going to ask you to complete roadside field sobriety tests (SFSTs), and there is a good chance they are taking you to jail.
How do police create probable cause for a DUI arrest?
- Pull you over for a traffic violation.
- Engage you in conversation.
- Ask how much you’ve had to drink.
- Ask you to step out of the vehicle to take field sobriety tests.
- Say that they smell the overwhelming odor of alcohol on your person or in your vehicle.
- Use the video and the officer’s testimony of your driving, your behavior, your SFSTs, and your statements for probable cause to make a DUI arrest.
The “South Carolina Hands Free and Distracted Driving Act”
SC’s new 2025 hands-free and distracted driving law provides another opportunity for law enforcement to pull over vehicles and potentially manufacture probable cause for a DUI arrest.
The law has built-in “protections” against abuse by law enforcement officers. For example, police cannot:
(1) stop a person for a violation of this section except when the officer has reasonable suspicion that a violation has occurred based on the officer’s clear and unobstructed view of a person who is unlawfully using a wireless electronic communication device while operating a motor vehicle on the public streets and highways of this State;
The officer, of course, will always say that they had a clear and unobstructed view of the person.
(2) seize, search, view, or require the forfeiture of a mobile electronic device because of a violation of this section;
But, the officer can seize the mobile electronic device based on other evidence found solely because the officer pulled the person over based on a distracted driving violation.
(3) search or request to search a motor vehicle, operator, or passenger in a motor vehicle, solely because of a violation of this section; or
But, the officer can search or request to search a motor vehicle, operator, or passenger in a motor vehicle based on the odor of marijuana, contraband in plain view, or other evidence found solely because the officer pulled the person over based on a distracted driving violation.
(4) make a custodial arrest solely because of a violation of this section, except upon a warrant issued for failure to appear in court when summoned or for failure to pay an imposed fine.
But, the officer can make custodial arrests based upon other evidence found solely as a result of a distracted driving violation.
The distracted driving law goes into effect on September 1, 2025, and there is a six-month “warning” period where police are allowed to pull you over but can only write a warning ticket for the hands-free offense.
Questions About Probable Cause for DUI in SC?
If you have been charged with DUI, DUAC, or another DUI-related offense 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…
Contact Conway, SC, DUI Lawyer Johnny Gardner now at (843) 248-7135 for a free consultation to find out how we can help.
