Implied Consent – DUI Administrative Hearings in SC

“Implied consent” means that, under SC law, you have legally consented to provide a breath, blood, or urine sample if you are suspected of DUI.

Of course, you didn’t consent to provide a breath or blood sample to the police. Neither did I. It’s a “legal fiction” – SC law pretends that you gave consent so as to help law enforcement get convictions for driving under the influence charges…

You can “revoke” that consent, but, if you refuse to take the breathalyzer following a DUI arrest, your license will be automatically suspended. If you take the breathalyzer and the result is .15 or greater, your license will still be automatically suspended although it will be for a shorter 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.

What is an Implied Consent Hearing?

At your implied consent hearing, a DMV hearing officer will hear testimony from the arresting officer (and the Datamaster operator if they are not the same person) regarding why they believed there was probable cause to charge you with DUI and why they suspended your driver’s license.

Your attorney will have the opportunity to cross-examine the officer, and, in some cases, to present evidence on your behalf.

If the hearing officer finds that there was no probable cause for your DUI charges, that the breath test was not properly offered, that the results were not accurate, or that you did not actually refuse the test, your license will be reinstated.

DUI Administrative Hearings

The administrative case for your implied consent suspension is separate from the criminal charge of driving under the influence. 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.

What Can You Argue at an Implied Consent Hearing?

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.

Can You Appeal from an Implied Consent Hearing?

You can appeal legal errors made by the hearing officer at an implied consent hearing in SC to the Administrative Law Court (and ultimately the SC Court of Appeals and SC Supreme Court), and your suspension should be “stayed” while your case is pending on appeal.

Remember that this is a separate proceeding from the DUI charges, however – your DUI case will continue in the magistrate court, municipal court, or General Sessions Court.