South Carolina DUI Guide – The Complete Guide to Driving Under the Influence Laws in SC

This is the South Carolina DUI guide – a complete guide to driving under the influence laws in SC.

This DUI practice manual includes explanations of SC’s DUI laws as well as practice pointers and information about what to expect at each stage of your case if you have been charged with DUI in Conway, SC, Myrtle Beach, SC, Horry County, SC, or anywhere in the State of South Carolina.

It’s a free, comprehensive DUI guide that includes detailed information about SC DUI law.

Curious about SC DUI law? Charged with DUI and want to understand the process and what you are facing?

Read through our SC DUI guide and let us know if you have any specific questions. The chapters below are organized so that you can read them “chronologically” – what happens in a DUI case from start to finish, or you can jump to the chapter that is most relevant to your questions using the links below.

Please remember that, if you are charged with DUI in South Carolina, you should immediately contact an experienced DUI defense lawyer who can get your case dismissed, negotiate a favorable outcome, or try your case to a jury.

Why contact a DUI attorney?

Nothing in this SC DUI Guide should be taken as legal advice. The information on this website is only general information about DUI defense in SC. It is not, nor is it intended to be, legal advice. Your visit to this website does not create an attorney-client relationship with Johnny Gardner Law, P.A. You should consult a licensed attorney for advice regarding your individual, unique situation.

Don’t attempt to handle DUI charges in South Carolina without consulting an experienced DUI attorney. The potential consequences are too severe to not take this seriously.

Why immediately?

You may have important deadlines coming up soon after your arrest that might include initial court dates in the magistrate or municipal court, jury trial requests, roll call dates, or an implied consent hearing request.

The State is already preparing its case for trial, and, in most jurisdictions, they will have a trained attorney prosecuting you to get a conviction. Shouldn’t you also have a trained DUI lawyer in your corner defending you?

Chapter 1: SC DUI Guide: What are the DUI charges and penalties in South Carolina?

If you or someone you know has been charged with driving under the influence, the first questions you probably have are “What does the law say about DUI,” and “What are the possible penalties if I am convicted?”

The most common DUI charges/ proceedings in SC’s DUI laws include:

• Driving under the influence (DUI), or “ordinary” DUI,
• Driving with an unlawful alcohol concentration (DUAC), or SC’s “per se” law,
• Felony DUI with great bodily injury or death, and
• Implied consent hearings/ DUI administrative hearings.

Driving Under the Influence (DUI) Charges in SC

South Carolina’s “basic” driving under the influence charge is DUI under SC Code Section 56-5-2930, which says it is unlawful for a person to:

1. Drive a motor vehicle,
2. Within this state,
3. While under the influence of alcohol or other drugs,
4. To the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired.

The State’s evidence usually involves some combination of:

• Breathalyzer or blood test results,
• The arresting officer’s testimony about field sobriety tests and other observations of the defendant,
• The dashcam from the patrol car,
• The officer’s bodycam footage,
• Video from the Datamaster room,
• Testimony of other witnesses, and
• Any incriminating statements that you made to law enforcement.

If the State alleges that you were intoxicated to the extent that your faculties to drive were materially and appreciably impaired by drugs or a combination of alcohol and drugs, they will most likely need an expert toxicologist to testify at trial regarding the levels of intoxicating drugs found in your system and their effect on your ability to drive.

That could make it difficult for the State to bring your case to trial, but if they do, you also have the right to call a toxicologist to testify in your defense regarding the levels of drugs found and their effect on your ability to drive.

What is the “legal limit” for DUI in South Carolina?

Technically, there is no legal limit for DUI. The State must prove that you were intoxicated to the extent that your faculties to drive were materially and appreciably impaired by drugs or a combination of alcohol and drugs – regardless of what your actual blood alcohol content (BAC) was.

Your breathalyzer results or blood test results can be used as evidence that creates an “inference of DUI,” but a blood or breath test result of .08 or greater is not conclusive evidence.

SC Code § 56-5-2950 says:

• If the blood alcohol concentration (BAC) was .05 or less, “it is conclusively presumed that the person was not under the influence of alcohol,”
• If the BAC was more than .05 but less than .08, there is no inference, and
• If the BAC was .08 or greater, it may be inferred that the person was under the influence of alcohol.

Driving with an Unlawful Alcohol Concentration (DUAC) Charges in SC

While SC’s DUI law does not have a “legal limit,” SC’s driving with an unlawful alcohol concentration (DUAC) law does have a “legal limit.”

With a DUI charge, the State must prove that a person’s faculties to drive were materially and appreciably impaired. When a person is charged with DUAC, the State only needs to prove that the person’s BAC was .08 or greater.

Of course, this is impossible if you refuse to take the breathalyzer or provide a blood sample – the State must have an alcohol test result to prosecute a DUAC charge, and, if the test results are excluded at trial, you will win your case.

If there is a test result, and it is not excluded before trial, you still have the right to bring an expert witness who can explain the workings of the Datamaster machine to the jurors and why the result was inaccurate in your case.

Penalties for DUI and DUAC Charges in SC

The potential penalties for a DUI or DUAC conviction in SC are the same. The chart below shows the potential fines, jail time, and license suspension period for DUI or DUAC based on the number of prior offenses and the breathalyzer result.

Note that there is a ten-year “lookback” period for prior offenses.

Felony DUI Charges in SC

When a person is accused of causing a traffic accident that seriously injures or kills another person, they are charged with felony DUI in SC.

SC Code Section 56-5-2945 says a person has committed felony DUI if they:

1. Caused great bodily injury or death to another person,
2. While committing “any act forbidden by law or neglect[ed] any duty imposed by law,” and
3. Driving a motor vehicle, and
4. Under the influence of alcohol or drugs.

It’s not enough that a person was intoxicated, and someone else was killed or injured in an accident. The person accused of felony DUI must have proximately caused the accident through their negligence.

If the person is accused of felony DUI resulting in great bodily injury, it’s not enough that someone else was injured. The State must prove that the injury was severe enough that it created “a substantial risk of death or … serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

If the injury does not meet this definition, the person can only be convicted of an ordinary DUI offense.

If a person is convicted of felony DUI with great bodily injury, the potential penalties include a $5100 – $10,100 fine and 30 days to 15 years in prison.

If a person is convicted of felony DUI resulting in death, the potential penalties include a $10,100 – $25,100 fine and one year to 25 years in prison.

Implied Consent Penalties – SC DUI Guide

Implied consent hearings are not criminal charges.

They are administrative proceedings to attempt to get a DMV hearing officer to reverse the arresting officer’s decision to suspend a person’s license.

We will discuss implied consent hearings in greater detail in a later chapter, but it is important to note here that they are not criminal proceedings – regardless of the outcome of your implied consent hearing in the administrative court, your criminal DUI charges will continue in the magistrate court, municipal court, or General Sessions Court.

Chapter 2: SC DUI Guide: DUI Traffic Stops and Standardized Field Sobriety Tests (SFSTs)

Now that we’ve covered the basic types of DUI charges in South Carolina, let’s talk about what happens in a DUI traffic stop, including the standardized field sobriety tests (SFSTs) and the probable cause for a DUI arrest.

DUI Traffic Stops

Most DUI cases begin with a traffic stop – either the officer pulls someone over because they suspect driving under the influence, or the officer pulls them over for speeding or another traffic violation and then develops a suspicion of DUI.

The officer needs to have a reason to pull the person over, though. If there is no probable cause for the initial traffic stop, the “fruit of the poisonous tree” doctrine requires the court to dismiss the DUI charges due to the constitutional violation.

Assuming the officer had probable cause to stop your vehicle for some traffic violation, what happens next?

The officer can ask you to step out of your vehicle (and does not need a warrant).

The officer can ask you to perform field sobriety tests, and you have the right to refuse.

The officer may ask you for consent to search your vehicle, and you have the right to refuse.

The officer might search your vehicle even if you refuse (and does not need a warrant under the “automobile exception” to the Fourth Amendment search warrant requirement).

The officer will most likely not give you a roadside “PBT,” or “preliminary breath test.” These are not approved for use in South Carolina and are not admissible in court.

The officer will most likely offer you a breath test on the Datamaster machine at the jail or the police department, and you have the right to refuse.

You will then be booked and processed at the jail (J. Reuben Long Detention Center if you were arrested for DUI in Horry County).

In most cases, you will have a bond hearing the next morning, where the judge might ask you to plead guilty (do not plead guilty to DUI at your bond hearing) or set a bond so you can be released.

DUI Guide – Standardized Field Sobriety Tests (SFSTs)

In most DUI traffic stops, the officer will ask the driver to perform a series of roadside field sobriety tests.

You have the right to refuse the field sobriety tests. If you refuse, the officer should not arrest you unless there is probable cause for a DUI arrest without performing the tests. If you take the tests, you should be aware that they are designed for you to fail.

Not too long ago, police were using a wide variety of sobriety “tests,” most of which even government agencies admit were unreliable indicators of intoxication.

The National Highway Traffic Safety Administration (NHTSA) has determined that only three of these tests show any correlation between the subject’s “score” and intoxication level – the HGN (horizontal gaze nystagmus), walk and turn, and one-legged stand tests.

Even these “standardized tests” are unreliable unless they are administered 1) together and 2) following NHTSA’s guidelines (you can download the full 2023 NHTSA SFST training manual and instructor’s guide for free on NHTSA’s website).

Horizontal Gaze Nystagmus (HGN)

The HGN or horizontal gaze nystagmus test is probably the least reliable of the three.

The test must be performed exactly as prescribed in the training manual. The officer moves a pen or small light back and forth 12-15 inches in front of your eyes at a steady speed and at the correct angle, as you follow it with your eyes.

The officer is looking for nystagmus – an involuntary jerking of the eye. It’s a medical condition that could be caused by intoxication or could be caused by over 40 other medical conditions. The “clues” the officer is looking for to “grade” you include:

• Equal pupil size,
• Resting nystagmus, and
• Equal tracking.

The SC Supreme Court held in State v. Sullivan that the HGN test can only be used in conjunction with the other standardized field sobriety tests – if the other tests were not given, the HGN is not admissible in court.

The Court held that:

• Evidence arising from HGN tests is not conclusive proof of DUI,
• A positive HGN test is “merely circumstantial evidence of DUI,”
• HGN tests cannot establish a specific BAC, and
• The “testimony relating to the HGN test was admissible in the present case because the HGN test was used in conjunction with other field sobriety tests to establish evidence of DUI.”

Walk and Turn

There are two parts to the “walk and turn test.”

First, you must stand, right foot in front of left foot, right heel touching left toe, arms at side, without swaying or losing your balance, as you listen to the officer give you the instructions.

Then, only when the officer says to begin, you take nine steps, heel-to-toe, down a line, turn exactly the way the officer showed you to turn, and take nine steps back the same way, counting your steps out loud, watching your feet, keeping your arms at your sides, and not stopping until you have completed the test.

Could most people complete this task without missing at least two of the following clues?

• Doesn’t keep balance during instructions,
• Begins too soon,
• Stops while walking,
• Does not touch heel to toe on every step,
• Steps off the line,
• Uses arms for balance,
• Doesn’t make the turn properly, or
• Takes the wrong number of steps.

One-Legged Stand

Like the walk and turn test, the one-legged stand test has two parts. First, you must stand with your feet together and arms at your sides, without swaying or losing your balance, as you listen to the officer give you the instructions.

Then, only when the officer says begin, you raise either foot six inches from the ground, parallel to the ground, keeping your legs straight and your arms at your side, and counting “one-one thousand, two-one thousand,” until the officer says stop.

The “clues” that the officer is looking for include:

• Swaying,
• Using your arms to balance,
• Hopping, or
• Putting your foot down.

If you miss too many clues (in the officer’s opinion), they will claim that you “failed” the test, creating probable cause to arrest you for DUI and evidence to use against you at your trial.

Non-Standardized Field Sobriety Tests

The NHTSA manual says an officer should not use non-standardized tests unless it is physically impossible for the subject to perform the standardized FSTs, and these tests should not be admissible in court in most cases.

Non-standardized “pseudo-science” sobriety tests include:

• Standing with feet together and touching your finger to your nose,
• Counting backward,
• Variations of the “alphabet test” – say your alphabet beginning with the letter C and ending with the letter T, for example,
• The “hand pat test” – patting one hand with the other from above and then beneath while counting one, two, one, two,
• The “finger count test” – touching each finger to the thumb, counting one, two, three, four, and then reversing, and
• The “Rhomberg balance test” – standing with your feet together, head tilted back, and eyes closed for 30 seconds.

What happens if you don’t take the field sobriety tests?

You have the right to refuse the field sobriety tests, but, if you refuse to take them, the officer will probably arrest you if they have any other probable cause for DUI charges.

On the other hand, if you refuse to take them, you are exercising your Fifth Amendment right against self-incrimination, and depriving the prosecutor of what is often their best evidence in a DUI trial.

Can you challenge the field sobriety test results?

Your DUI attorney might be able to get the test results excluded if the officer did not perform the tests properly, if the HGN test was performed without the walk and turn or one-legged stand tests, or if there was a constitutional violation.

If the results are not excluded, a “bad performance” on one or more SFSTs can often be explained by a medical condition or physical limitations which can be established by your testimony, your doctor’s testimony, or the testimony of an expert witness on standardized field sobriety tests and the effects of your condition on 1) the proper administration of the tests and 2) the interpretation of the test results.

In some cases, the person’s “performance” is not that bad, and the roadside video can refute the officer’s claims that the person “failed” the SFSTs.

In most cases, if the officer is asking you to get out of your vehicle and perform field sobriety tests on the roadside, they are taking you to jail. Most likely, they’ve already made their decision, and they are now just trying to develop evidence to use against you in court.

The next stage in this process will be an arrest, transport to jail or the police department, and an offer to take the breathalyzer test.

Chapter 3: SC DUI Guide: DUI Arrests – Breathalyzer Tests – Urinalysis – Blood Tests

Many people think that the way a DUI arrest works is: 1) a cop sees someone swerving across the highway, 2) the cop asks them to step out of the vehicle, and they stumble through their field sobriety tests, 3) the cop gives them breath test, and 4) if they “fail” the test, the cop takes them to jail.

That’s not how it works at all, though…

More often: 1) a police officer pulls someone over for speeding or some other traffic violation, 2) they suspect DUI, so they ask the person to do field sobriety tests, 3) the person performs objectively okay on the tests, but the cop finds enough “clues” to say they are intoxicated, and 4) the cop places them under arrest.

South Carolina law enforcement does not use PBTs, or preliminary breath tests, on the roadside. In every case, they have no idea what a person’s BAC (blood alcohol content) is until after they have arrested them.

After a person is arrested, then the officer takes them for a breathalyzer test. You have already been arrested, and the officer is not going to “unarrest” you, so why would you give them a breath sample when you have the right to refuse?

What happens if someone blows a 0.00 on the breathalyzer, you ask?

Then the officer will say that the person is intoxicated on drugs.

It will be a rare unicorn of a police officer who “unarrests” someone and admits that they were wrong when they’ve already got the subject at the jail, and they’re afraid they will get sued if they let the person go now…

DUI Guide – How Breathalyzer Tests Work – Breath Test Procedure – Datamaster Machines

After you have been arrested for driving under the influence (DUI), the police officer will probably offer you a breath test either at the police station or at the jail (J. Reuben Long Detention Center, Conway City Jail, Surfside Beach Jail, or Myrtle Beach City Jail are some of the locations in Horry County, SC).

The Machine Calibrates Itself

When you blow into the machine, first it calibrates itself, breaking open a vial of “simulator solution” that should have an alcohol content of .08. The solution has an expiration date, and it must be the right temperature.

Later, your DUI lawyer will be able to pull a report on the Datamaster machine used in your case that will provide these details as well as other data on the machine and the breath test operator.

What is the Breath/Blood Ratio?

When you blow into the machine, it is designed to test the air from the “alveolar sacks” – the deepest part of your lungs, where the oxygen that you breathe is transferred to your blood/ circulatory system.

The “breath alcohol content” is not what they are looking for, though. To get the “blood alcohol content,” the machine multiplies the breath alcohol content from the alveolar sacks by 2100, giving it the final BAC number.

This is just one reason the machine is unreliable and does not give an accurate result – the breath/blood alcohol ratio is not 1/2100 for every person. They needed a single, easy number to multiply every test result by, so they chose a 1/2100 ratio which should be average.

The actual ratio can vary from person to person and even in the same person at different times, based on:

• Their height and weight,
• Their muscle/fat content,
• What they ate or drank on a particular day,
• Their metabolic rate, and
• Whether they are male or female.

1/2100 is a huge ratio, and even a small mistake in the initial number can result in an unacceptable error in the final result.

For example, what happens when someone’s mouth piercings or dentures retain a small amount of pure ethanol (as opposed to the deep lung air from the alveolar sacks) which is then multiplied by 2100 as if it were a breath alcohol number?

The Datamaster/breathalyzer results can be dead wrong if:

• You do not blow into the machine correctly,
• The machine is not calibrated,
• The simulator solution is the wrong temperature, expired, or has the wrong alcohol content,
• You ate the wrong foods before the test (bread, for example, can increase the result),
• There are piercings or foreign objects in your mouth,
• You belch before blowing,
• There is RFI/ radio interference with the machine,
• The officer does not follow SLED procedure, or
• The officer tampers with the results.

Independent Tests and Affirmative Assistance

SC Code § 56-5-2950 says you have “the right to have a qualified person of the person’s own choosing conduct additional independent tests at the person’s expense.”

This would be meaningless unless there is also a requirement for the arresting officer to help you get the independent test – the law also requires the officer to “provide affirmative assistance” including transporting the person to the nearest medical facility that can perform a blood test.

If the officer does not provide affirmative assistance to get an independent test upon request, any breath test performed by the State should be excluded at trial and in any implied consent administrative proceedings.

Urinalysis in a DUI Case

Law enforcement is also authorized to ask you for a urine sample to determine your BAC or the presence of drugs.

Police will sometimes order a urinalysis if they suspect you are under the influence of drugs or a combination of alcohol and other drugs.

It’s rare for police to request a urine sample in South Carolina though. Even if the urinalysis indicates that a person has drugs in their system, does it tell them when the person used the drugs?

It’s not enough for a witness to tell jurors that you had marijuana in your system, for example. To prove driving under the influence, the State will need to show:

• The exact level of marijuana in your system at the time you were driving,
• What levels of marijuana cause a person to be intoxicated to the extent that their faculties to drive are materially and appreciably impaired, and
• When you used the marijuana.

If you use marijuana on Monday, and a police officer pulls you over on Tuesday, you may have marijuana in your system, but you are probably not DUI.

Blood Tests – Blood Samples – Felony DUI

Although most DUI alcohol tests in SC are done in the Datamaster room on the breathalyzer machine, blood tests are generally acknowledged to be more reliable.

Law enforcement will almost always request a blood sample in felony DUI cases, and, in most felony DUI cases, they will take the sample against your will even if you refuse.

Under the rule outlined in State v. German (SC Supreme Court) and Missouri v. McNeely (US Supreme Court), if you do not consent to give a blood sample, law enforcement must get a search warrant before drawing your blood unless there are “exigent circumstances” that would prevent the officer from seeking a warrant.

You Can Refuse the Breath Test and You Can Refuse to Provide a Blood Sample

You have the right to refuse any of these alcohol tests – the breath test, a urine sample, or a blood sample. If an officer insists on taking a blood sample, do not interfere, but be clear that you do not consent.

Once you have been arrested and booked at the jail, you must wait for a bond hearing. In most cases, the bond hearing will be the next morning at the location where you were booked (J. Reuben Long Detention Center or a city/ municipal courtroom).

Chapter 4: SC DUI Guide: DUI Court Dates and Hearing Locations – DUI Bond Hearings

After a DUI arrest and possibly a night in jail, what’s next?

You will have a bond hearing quickly – the next morning in most cases – where a bond judge will determine the conditions of your release, and then you will have some court dates that you must keep remember and keep track of that might include:

• Your initial court date,
• Roster meetings or pretrial conferences,
• Roll call or docket appearances,
• Implied consent or DUI administrative hearings,
• Preliminary hearings, and
• Other court dates or hearings including motion hearings and your trial.

DUI Guide – Bond Hearings – Getting Out of Jail

You can have a DUI lawyer represent you at your bond hearing, and you should, if you or your family can contact an attorney in time.

At your hearing, the court or prosecutor may attempt to get you to plead guilty – DO NOT PLEAD GUILTY AT YOUR BOND HEARING.

Because of the harsh consequences of a DUI conviction – consequences that the court and prosecutor have no duty to inform you of, no one should ever plead guilty to a DUI offense at their bond hearing.

Depending on your circumstances, the judge may order:

• A PR (personal recognizance) bond – you pay nothing and are released pending your trial,
• A cash-only bond – on a DUI or DUAC in magistrate or municipal court, the amount of the bond cannot be greater than the amount of the maximum possible fine,
• A 10% bond – you pay 10% of the bond amount to the clerk, or
• A surety bond – you must retain a bondsman before you can be released.

Contact your DUI attorney immediately after your bond hearing if you have not already retained a lawyer, because there are important deadlines that you do not want to miss like jury trial requests, preliminary hearing requests, implied consent hearing requests, and initial court dates in the lower courts.

Your attorney should then begin investigating your charges, request formal discovery from the State, and begin preparing your case for a possible trial.

Initial Court Dates – Magistrate and Municipal Court Offenses

If you are charged with DUI or DUAC first offense in the magistrate court (county/ outside city limits) or municipal court (within city limits), you will be given an “initial court date” that can be found on your blue uniform traffic ticket.

If you appear at the initial court date without your DUI attorney, the court will want you to either plead guilty or have a “bench trial” with no jury (where the judge might just ask the cop what happened, ask you what happened, and then find you guilty).

You should contact your DUI lawyer immediately after your arrest – let them decide whether it is in your best interest to attend your initial court date or request a jury trial in writing before the initial court date.

If you don’t show up at the initial court date, and you or your attorney has not requested a jury trial or confirmed that your case has been continued, you may be found guilty in your absence and sentenced, and a bench warrant may be issued for your arrest.

Once your attorney has requested a jury trial in the magistrate or municipal court, you will most likely not have any more court appearances until your case is scheduled for a roster meeting or pretrial conference (you may have an implied consent hearing, which is in the administrative court).

Roster Meetings – Pretrial Conferences

In the lower courts, your case will be scheduled for a roster meeting (the magistrate courts and some city courts) or a pretrial conference (Myrtle Beach and some other city courts) where the officer or prosecutor will attempt to “settle” the case, make a plea offer, negotiate, and, if the case is not resolved, either schedule a trial date or continue the case until the next term of court.

Roll Call/ Docket Appearances – General Sessions Court Offenses

If you are charged with DUI or DUAC 2^nd offense or greater or felony DUI with great bodily injury or death, your case will be in “General Sessions Court” – the “criminal side” of South Carolina’s “Circuit Court.”

If your case is in General Sessions Court, you will not have an initial “bench trial date,” but you will have two initial “roll calls” where you must appear in court along with a hundred or so other defendants (we call this “cattle call”).

The dates for your roll call/ docket appearances will be found on the paperwork you were given at your bond hearing.

If you have not been excused from your roll call appearances, you must attend. If you do not appear at roll call, and your attorney has not confirmed that you are excused, they will issue a bench warrant, usually on the same day, for your arrest.

After the first two “roll calls,” your prosecutor may schedule you for more “roll calls” where they will attempt to get you to agree to a guilty plea. If you do not accept the plea agreement offered (if any), you may be scheduled for an “arraignment” (see below), or your case will appear on the jury trial roster.

Once your case is on the trial roster, it may be called for trial that week or it may “roll over” to another term of court – you must stay in close contact with your attorney so you know when you must appear, when you are excused, and when your case will be called for trial.

Implied Consent Hearings – DUI Administrative Hearings

Whether your DUI charges are in the magistrate court, municipal court, or General Sessions Court, you have the right to an implied consent hearing if your license was suspended by the arresting officer.

The DMV must receive your implied consent hearing in writing within 30 days of your arrest.

Preliminary Hearings – General Sessions Court Offenses

If your DUI charges are in General Sessions Court – DUI or DUAC 2^nd offense or greater or felony DUI with great bodily injury or death, you also have the right to a preliminary hearing where a magistrate will determine whether there was probable cause for your arrest.

What is an Arraignment in South Carolina?

An “arraignment” in South Carolina is not a formal process like it is in some other states. What we call an “arraignment” in Horry County is when the prosecutor notices a defendant to come to court so they can make a plea offer to the defendant on the record and ask the defendant if they accept or reject the plea offer.

If the defendant rejects the plea offer, the prosecutor and the court will usually lie to them about how their case will be called for trial at the very next term of court, and all parties (sometimes including the defendant’s attorney) will attempt to frighten the defendant into pleading guilty.

What really happens after an arraignment?

After you tell the court that you would like to exercise your right to a trial by jury, regardless of the consequences, “damn the torpedoes, full speed ahead,” you might be tried at the next term of court. You and your attorney must be ready for trial at the very next term of court.

Or your case might be put off for several months or even years. They might even force you to come back in after a year and do another arraignment because they didn’t believe you the first time…

Next, let’s take a closer look at one of the many hearings you may have if you are charged with driving under the influence in SC – implied consent or DUI administrative hearings.

Chapter 5: SC DUI Guide: Implied Consent – DUI Administrative Hearings

What is implied consent in South Carolina?

According to SC Code § 56-5-2950, “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.”

If you choose to drive in South Carolina, the law says you have consented to take a breathalyzer…

You didn’t, though. I didn’t consent to take a breathalyzer either. No one did. The SC legislature, however, pretends that you did because they want to help police and prosecutors get DUI convictions.

You have the right to refuse the breathalyzer – or urinalysis or blood test. If you refuse, however, your license is immediately suspended. But if you take the test, and the result is .15 or higher, your license is still suspended…

What is a DUI Administrative Hearing?

Whether you refuse the breath test or take the breathalyzer and the result is .15 or greater, your license is suspended under SC’s implied consent laws.

You can then request an implied consent hearing, but the DMV must receive your hearing request – on the original implied consent notice of rights form – within 30 days of your arrest.

This means you should 1) retain your DUI attorney immediately so they can request the hearing on your behalf or 2) if you cannot retain your DUI lawyer immediately, fill out and send in your hearing request along with the fee to the address on the back of your notice of implied consent rights form.

At your hearing, a DMV hearing officer will hear testimony from the arresting officer or Datamaster operator, and your attorney can then cross-examine them. The DMV officer will “rescind the suspension” and restore your driver’s license if they find that:

• There was no probable cause for your arrest,
• The breath test was not properly offered,
• The results of the test were not accurate, or
• You did not actually refuse the test.

Implied Consent/ Administrative Court is Separate from Criminal Court

Implied consent hearings are in the administrative court, not the criminal court where your DUI charges are heard.

The proceedings are considered “civil” in nature and not “criminal” or “punitive;” therefore, the courts have found that it is not double jeopardy for the administrative court to take your license away and “punish” you twice, once with an administrative suspension and then again in criminal court.

If You Win Your Implied Consent Hearing

Because your implied consent proceedings are in a different, administrative court, the outcome of your implied consent hearing will have no impact on your criminal DUI charges.

If you win your implied consent hearing, the “suspension is rescinded” and your license is restored – you can go to the DMV, and they will replace your license at no cost.

If you are later convicted of the DUI, however, you will still face a license suspension, ADSAP requirements, SR-22 requirements, and a possible habitual traffic offender designation.

If You Lose Your Implied Consent Hearing

If you lose your implied consent hearing, you will need to enroll in ADSAP (the Alcohol and Drug Safety Action Program) before you can drive again, and you will need to either serve out the suspension, get a provisional license, or enroll in the ignition interlock device (IID) program.

Because the implied consent proceedings are not criminal and are separate from your DUI case, if you are later convicted of the DUI charges, your license can be suspended again along with the ignition interlock device requirements based on the number of prior convictions and the BAC result.

Once you request an implied consent hearing, you should be able to get a “temporary alcohol license” – the TAL and other “DUI licenses” are the subject of our next chapter.

Chapter 6: SC DUI Guide: DUI Licenses – Temporary Alcohol License (TAL) – Provisional License – Route Restricted License

If you have been charged with driving under the influence and your driver’s license is suspended, you may be able to get a “DUI license” that allows you to drive with or without restrictions, depending on your circumstances.

Possible “DUI licenses” in SC include:

• Temporary alcohol licenses (TAL),
• Provisional licenses, and
• Route restricted licenses.

What About the Ignition Interlock Device (IID) Program?

Depending on your circumstances, a “DUI license” may not be an option after an implied consent suspension or DUI conviction suspension, because you are required to enroll in the Ignition Interlock Device (IID) program.

In other cases, you might have the choice – IID or “DUI license.” And, if you are not eligible for a DUI license, you might still have the option of installing an ignition interlock device.

When are you eligible for a special “DUI license?”

Temporary Alcohol License (TAL)

The “temporary alcohol license” or TAL (formerly known as the temporary alcohol restricted license or TARL), allows a person to drive – without restrictions other than no alcohol – once they have requested an implied consent hearing.

You will need to:

• Request your implied consent hearing in writing within 30 days of the arrest,
• Pay a $100 fee at the DMV, and
• Pick up your TAL from the DMV.

The TAL is good until your implied consent hearing date.

After the hearing, you can go back to the DMV and get your regular license if you win, or, if you lose, enroll in ADSAP, get a route restricted license, or install an ignition interlock device, depending on your circumstances.

Provisional License

If your driver’s license is suspended for a first-offense DUI or DUAC conviction, you may be eligible for a six-month provisional license.

According to the DMV, the requirements for a provisional license after a DUI conviction include all the following:

• You must have or have had a valid SC driver’s license.
• You must have met all requirements for prior suspensions, revocations, and cancellations.
• If the DUI or DUAC violation was on October 1, 2014 or later, you must have a BAC of .14 or less.
• You must have no other suspensions after the DUI or DUAC suspension exceptfor these, as long as they are from the same DUI or DUAC violation: implied consent, implied consent under 21, BAC of .02 or greater, BAC of .15 or greater, or alcohol violation.
• You must be enrolled in the Alcohol and Drug Safety Action Program (ADSAP).
• You must pay $100 for a provisional license.

Route Restricted License

You can also get a “route restricted license” (once in your lifetime) after a DUI or DUAC 2^nd offense or greater conviction, or a DUI or DUAC 1^st offense conviction where the BAC result was .15 or greater if you are not required to enroll in the Ignition Interlock Program.

Route restricted licenses are available for more than just DUI license suspensions – according to the DMV, you can get a route restricted license for:

• Accident Judgements,
• Alcohol Violations,
• Blood Alcohol Concentration (BAC) of .15,
• Failure to Stop for a Blue Light,
• False Insurance Certifications,
• Implied Consent violations,
• Misrepresentation of Identity, or
• Accumulation of Points.

When you apply for the route restricted license, you will need to specify the routes you will be driving, because you are only permitted to drive:

• To and from work or school,
• During work or school,
• To and from an Alcohol and Drug Safety Action Program (ADSAP), or
• To and from a court-ordered drug program.

The route restricted license costs $100, and you can either apply in person at the DMV or by completing an Application for a Route Restricted Driver’s License (SCDMV Form DL-127) and mailing it to the address below:

SCDMV
Driver Records
PO Box 1498
Blythewood, SC 29016-0028

Chapter 7: SC DUI Guide: Motions Practice in DUI Cases in South Carolina – The Statute Formerly Known as the Mandatory Videotape Law

Can you get my DUI charges dismissed because the officer didn’t read my Miranda rights to me?

Probably not…

In general, the remedy for a Miranda violation is not dismissal of the person’s criminal charges. The remedy is the exclusion of any statements made in violation of Miranda from the trial of the case. They don’t get to question someone in violation of Miranda and then use the statements against the person at trial, but exclusion is the only remedy.

If the person is charged with DUI in SC, however, the officer’s failure to read Miranda rights to the person on the roadside video, before State v. Taylor in 2022, did result in the dismissal of the DUI charges because SC’s mandatory videotape law, found in SC Code Section 56-5-2953, requires that any person charged with DUI, DUAC, or felony DUI must have their conduct at the incident site and the breath testing site recorded – and it must show the reading of Miranda rights.

The SC Supreme Court, in recent years, has said that it will no longer enforce the mandatory language of § 2953, however. After State v. Taylor in 2022, violations of § 2953 may result in suppression of any evidence obtained in violation of the Constitution, but not dismissal of the DUI charges.

SC DUI Guide – City of Rock Hill v. Suchenski

In City of Rock Hill v. Suchenski in 2007, the SC Supreme Court held that, because § 2953(A) uses mandatory language (it says, “shall,” not “may” or other permissive language), the remedy for an officer’s violation of the statute is dismissal.

2953(A) says that any person charged with DUI, DUAC, or felony DUI must have their conduct at both the incident site and the breath testing site recorded, and:

(1)(a) The video recording at the incident site must:

(i) not begin later than the activation of the officer’s blue lights;

(ii) include any field sobriety tests administered; and

(iii) include the arrest of a person for a violation of Section 56-5-2930 or Section 56-5-2933, or a probable cause determination in that the person violated Section 56-5-2945, and show the person being advised of his Miranda rights…

(2) The video recording at the breath test site must:

(a) include the entire breath test procedure, the person being informed that he is being video recorded, and that he has the right to refuse the test;

(b) include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test; and

(c) also include the person’s conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to video record this waiting period.

2953(A) requires the video to contain:

• Footage beginning no later than the activation of the blue lights,
• Any field sobriety tests given,
• The arrest, and
• The person being advised of their Miranda rights.
  

The requirement that all field sobriety tests be included requires that the entire test be shown.

For example, if the officer administers the one-legged-stand test and the walk-and-turn test, but the subject’s feet are cut out of the video, the jurors, attorneys, and court cannot evaluate how the subject performed on the test, and the officer has not complied with the statute.

In the Datamaster room, the video must contain:

• The entire breath test procedure,
• The person being informed that they are being video recorded,
• The person being informed that they have the right to refuse the test,
• The person taking or refusing the test,
• The actions of the breath test operator while conducting the test, and
• The person’s conduct during the 20-minute waiting period.

2953(B) Exceptions

2953(B) contains a number of exceptions to § 2953(A)’s requirements.

For example, the officer’s failure to comply with the statute is excused if the officer submits a sworn affidavit certifying:

• That the video recording equipment at the time of the arrest was in an inoperable condition,
• What reasonable efforts have been made to maintain the equipment in an operable condition, and
• That there was no other operable breath test facility available in the county, or
• That it was physically impossible to produce the video recording because the person needed emergency medical treatment or exigent circumstances existed.

In circumstances like a roadblock, traffic accident investigation, or citizen’s arrest, the officer’s failure to produce the video recordings required by §2953(A) is not alone a ground for dismissal. However, as soon as video recording is practicable under the circumstances, video recording must begin and comply with § 2953(A).

Finally, there is a “catch-all provision” that says the Court can consider “any other valid reason for the failure to produce the video recording based upon the totality of the circumstances.”

The Statute Formerly Known as the SC Mandatory Videotape Law

More recently, the SC Supreme Court has held that dismissal is no longer the remedy for violations of § 2953(A), and the remedy should instead be the suppression of any evidence obtained in violation of the Constitution…

In State v. Taylor in 2022, the SC Supreme Court held that:

1. The word “show” in 2953(A) means that, “in order for a DUI recording to “show” a defendant being advised of his Miranda rights, the defendant and arresting officer must be visually seen and audibly heard,” and
2. The officer’s failure to “show” Miranda rights being read to the suspect will no longer result in per se dismissal. Instead, “suppression of tainted evidence flowing from the failure to administer Miranda warnings in accordance with subsection 56-5-2953(A) – not per se dismissal of the DUI charge – is the proper remedy.”

Of course, suppression of evidence taken in violation of the Constitution is already the remedy any time evidence is taken in violation of the Constitution, so what the Court is really saying is that, from now on, there will be no remedy for an officer’s violation of the mandatory videotape law.

If the SC Supreme Court will no longer enforce the mandatory provisions of the videotape law, the videotape law isn’t mandatory anymore, because no one else is going to enforce it.

Make All Possible Motions and Objections Because…

The only thing that is certain in the practice of law… is that nothing is certain.

Because of this, no matter how many acquittals and dismissals an attorney has gotten, no attorney can ethically guarantee a result for someone.

Every trial could be a conviction and an appeal. Some otherwise “hopeless” cases might be tried with the expectation of a conviction and appeal and a second trial.

You have the right to a complete defense and trial by jury, and an appeal, and a complete defense and a trial by jury again if your appeal is successful, and a post-conviction relief (PCR) action if your appeal was unsuccessful, and a complete defense and trial by jury again if your PCR is successful, and an appeal if your PCR is unsuccessful….

Suppose you are charged with DUI, and your prosecutor has made a plea offer to you to plead guilty to… DUI. Even worse, with a recommendation of jail time, and that is unacceptable to you.

It’s a relatively easy decision under these facts, because, if you plead guilty, you go to jail.

If you go to trial, it’s not likely to get much worse. If you go to trial on a DUI 1^st offense and lose, and you have grounds for an appeal at the end of the trial, you can immediately file your notice of appeal and, if the magistrate sentences you to jail, he or she must set a reasonable bond and release you pending the outcome of your appeal.

SC Code § 18-3-50 says:

Upon service of the notice the magistrate shall, on demand of the defendant, admit him to bail in such reasonable sum, and with good sureties, as the magistrate may require, with conditions:

(1) to appear at the court appealed to and at any subsequent term to which the case may be continued, if not previously surrendered, and so from term to term until the final decree, sentence or order of the court thereon;

(2) to abide such final sentence, order or decree and not depart without leave; and

(3) in the meantime to keep the peace and be of good behavior.

Part of a DUI lawyer’s job at trial is to make a complete record for a possible appeal, by making all appropriate objections and motions, including:

• Motions in limine (before trial) and motions when appropriate during trial,
• Motions to suppress evidence based on constitutional violations,
• Motions to dismiss based on statutory violations when appropriate,
• Motions to suppress statements made by the defendant involuntarily or in violation of Miranda,
• Objections to inadmissible evidence, testimony, or statements by the prosecutor as needed, and
• Any other valid motion or objection based on the facts of the case.

The appropriate motions to make to preserve the record for appeal in each case will depend on the unique facts of each case and what happens in the courtroom.

For example, in State v. Henderson, the SC Court of Appeals held that where a DUI defendant offers to stipulate that “the [Datamaster] test was performed pursuant to SLED procedures and that he was advised of his implied consent rights,” the court should, on the defendant’s request, redact the language in the implied consent rights form regarding the right to additional tests and reasonable assistance by the police officer to obtain the additional tests.

If the defendant offers to stipulate, the state does not need to lay a foundation for the admission of the test results, and the information about the defendant’s right to additional tests is no longer relevant or admissible.

Suppose your attorney sees no basis for suppressing the Datamaster results or Datamaster room video; therefore, there is no reason not to 1) stipulate that “the test was performed pursuant to SLED procedures and [you were] advised of [your] implied consent rights” and 2) request that the trial court suppress any mention of your right to obtain additional tests with the officer’s assistance.

Why would you? Because:

1. It is no longer relevant, and it is unfairly prejudicial under Rule 403 because jurors will ask, “Why didn’t he get his own test done?” and
2. If the magistrate denies your motion and allows the State to present testimony about the right to additional tests or admits the unredacted implied consent rights form, it may be reversible on appeal (unless the appellate court finds that it was “harmless error”).

Each issue like this that can be preserved during trial for a possible appeal increases the defendant’s odds of successfully appealing a conviction.

Although motions can be heard at any time, most pretrial motions will be heard at the start of trial in the magistrate or municipal court, which means that, unless your case is dismissed as a result of the motions, your trial will most likely start immediately after the motions are heard.

Chapter 8: SC DUI Guide: Guilty Plea or Trial?

Most DUI cases do not go to trial, although every case must be prepared for the possibility of a trial.

Many DUI charges are dismissed before trial based on our investigation and the law, others become guilty pleas to traffic offenses other than DUI, and only some are tried to juries in the end.

What does a plea agreement in a DUI case look like? If your case goes to trial, should you ask for a bench trial or a jury trial? What does a DUI trial look like?

Plea Negotiations in a DUI Case

What does a plea agreement in a DUI case look like?

It depends on the facts of the case, the person’s charges, their prior criminal record, whether they are eligible for pretrial diversion programs, the results of their attorney’s investigation, the mitigation materials that are available to the defense attorney, the likelihood of a conviction at trial, who their defense lawyer is, who their prosecutor is, whether there is an alleged victim in their case and what they have to say about it, and more…

For example:

• A DUI or DUAC charge could be dismissed if the defendant completes pretrial diversion on a different charge (there is no pretrial diversion for a DUI in SC),
• A DUI or DUAC charge may be dismissed if the defendant pleads guilty to an associated traffic offense or pleads guilty to a rewritten ticket for reckless driving,
• A DUI or DUAC charge might be dismissed completely by the prosecutor if it is likely the court will dismiss the case based on the law, if the breathalyzer results are likely to be suppressed, or if there is insufficient evidence to get a conviction, or
• A DUI 2^nd, 3^rd, or 4^th offense could be remanded to the magistrate court for a plea to DUI 1^st offense – or a trial on DUI 1^st

There are countless possibilities – like when the prosecutor refuses to make a reasonable plea offer or the defense refuses to accept any plea offer. What then?

Bench Trial or Jury Trial?

A bench trial is when the defendant agrees to waive their right to a jury trial and let a single judge decide their case.

It’s almost always a bad idea. Really, waiving your right to anything is usually a bad idea in criminal court.

For example:

• Some magistrates are State-friendly and see themselves as “law enforcement” rather than a “neutral and detached magistrate,”
• 12 jurors are better than one, and you can’t get a “hung jury” with only one juror,
• When the judge makes a ruling that the jury (himself) cannot see a piece of evidence like the breathalyzer result that was three times the legal limit, how does the judge “unsee” the evidence?

Attorneys often refer to a bench trial as a “long, slow guilty plea.” Because that’s usually what it is…

Jury Qualification and Jury Selection

Jury qualification is when the entire jury pool is “qualified” per the statutory requirements, and potential jurors may be excluded or excused for reasons like:

• A prior criminal record,
• Work obligations,
• Childcare obligations, or
• Other statutory qualifications.

Jury selection happens at the start of your trial.

The Clerk will select jurors at random, and you and the State have a certain number of “strikes” that you can use to excuse jurors.

You must have a race-neutral or gender-neutral reason to exclude jurors. For example, the defendant or the State cannot simply excuse all Hispanic jurors, or all female jurors, because they are Hispanic or female. You can, however, excuse Hispanic jurors for reasons that are unrelated to their race or gender.

If the other side appears to be using their strikes based on race or gender, you can make a “Batson motion,” following the procedure outlined by the Supreme Court in Batson v. Kentucky, to determine whether 1) there is a race-neutral reason for the strike and 2) whether any race-neutral reason is a pretext.

Opening Statements

Once a jury has been selected, the prosecutor gives their opening statement followed by the defense’s opening statement.

Opening statements are each side’s opportunity to:

• Provide jurors with a framework through which to view the case,
• Begin to tell their client’s story, and
• Show jurors why they are going to find the defendant not guilty.

Many attorneys will say that trials are won and lost in the opening statements – the defense must tell their client’s story, they must immediately win the jurors’ trust, and they must take control of the narrative all at the outset of the trial.

State’s Case

After opening statements, the prosecutor’s case begins.

In a “typical” DUI case, the State’s case consists of a few witnesses that could include:

• The arresting officer who will testify as to their observations of the defendant, the arrest, and introduce any video or audio footage into evidence,
• The Datamaster operator if they are not the same as the arresting officer, who will testify as to their observations during the test and the test results if they are admissible,
• A drug recognition officer in a drug-DUI case,
• A toxicologist who can testify as to the drug levels and what they mean in a drug-DUI case,
• Hospital techs, SLED employees, police department employees, and any other person who handled a blood or urine sample to establish the chain of custody,
• The person who tested a blood or urine sample to establish the test results if admissible,
• Any other witnesses who can testify as to the defendant’s intoxication or the events that led to their arrest.

The prosecutor calls their witnesses, the defense has the opportunity to cross-examine the witnesses, and, in some cases, there may be a re-direct and a re-cross.

Defense’s Case

Ideally, your trial lawyer will prove your case through their cross-examination of the State’s witnesses, you will not put up a defense, and your attorney will get the final closing argument.

If you put in any evidence or put up any witnesses, the State will get the final closing argument.

In some cases, however, it is necessary and appropriate for the defendant to testify, and the jurors may need to hear from the defendant before they will acquit him. Nevertheless, you can’t be forced to testify, and the jurors are instructed not to consider your failure to testify in their deliberations.

Whether or not you testify is always your decision based on your attorney’s advice.

The defense calls their witnesses, the prosecutor has the opportunity to cross-examine the witnesses, and, in some cases, there may be a re-direct and re-cross.

Closing Arguments

After the defense puts up its case (or after the State rests if the defense is not putting on a case), both sides will give closing arguments.

Closing arguments are a summary of the evidence at trial, the theories of the case, and an explanation of why the jurors must acquit the defendant. As with opening statements, cross-examination, and direct examination, the defense must continue telling their client’s story through their closing arguments.

Jury Instructions

Before the jurors are instructed to retire to their jury room and deliberate, the judge will read a set of “jury instructions” to them which explains the law that the jurors must apply to the facts of the case.

Jury instructions may be suggested by the defense or the prosecutor, and the court’s failure to give a requested jury instruction (or the court giving an objectionable instruction) may be grounds for reversal on appeal (see, State v. Logan’s circumstantial evidence jury instruction).

Deliberations and Verdict

After the court reads the jury instructions, the jurors are told to retire to their jury room and, once they are all present and all evidence has been brought into the jury room, begin their deliberations.

Deliberations can last days or they can last minutes, but magistrate court juries (a DUI first-offense trial, for example) usually take less time than General Sessions juries.

The jurors can find the defendant not guilty on all charges, guilty on some but not others, or guilty of a lesser-included offense. For example, possible verdicts in a DUI trial for a DUI first offense BAC .15 or greater and open container include:

• Guilty of DUI with a BAC of .15 or greater and guilty of open container,
• Guilty of the lesser included offense of DUI with a BAC of .08 or greater and acquittal on the open container charge,
• Guilty of open container and acquittal on the DUI charge, or
• Not guilty of both charges.

What happens after trial?

Even if you are acquitted, you may have more to do to get the record of your arrest expunged from your record.

Chapter 9: SC DUI Guide: After Trial – DUI Expungements – DUI Appeals – DUI PCRs

What happens after a DUI trial?

If you were acquitted or if your case was dismissed, you will want to make sure the record of your arrest and prosecution is expunged from your record.

If you were convicted, it’s not necessarily the end of the road – you may have options including a direct appeal or a post-conviction relief (PCR) action.

DUI Expungements – Can You Get a DUI Expunged in SC?

You cannot get a DUI conviction expunged in South Carolina.

SC does not permit the expungement of any traffic offenses and driving under the influence/ DUI charges are both criminal charges and traffic offenses. If you are convicted of DUI in SC, and you do not file an appeal or PCR action, it will stay on your record forever.

If you are acquitted of DUI, or if your case is dismissed or nolle-prossed, however, you can get the record of your arrest and prosecution expunged. If you are in the magistrate or municipal court, this should be done automatically, but it often is not.

After an acquittal or dismissal in the lower courts, you should follow up with your attorney to see if the court has expunged your record.

After an acquittal or dismissal in General Sessions Court, you will need to apply for an expungement of your arrest record through the solicitor’s office.

DUI Appeals – How Do You Appeal a DUI Conviction?

If you are convicted of DUI in the magistrate or municipal court, you should immediately provide your Notice of Appeal to the court and request a bond if the Court sentences you to jail time (see, SC Code § 18-3-50).

You can appeal any wrong decision made by the trial judge, like:

• Denial of defense motions,
• Denial of defense objections,
• Inclusion or exclusion of jury instructions,
• Failure to dismiss the case based on the law, or
• Failure to suppress evidence obtained through constitutional violations.

If you are convicted in the magistrate or municipal court, you file your appeal in the Court of Common Pleas (the civil side of the circuit court). You can then appeal that result to the SC Court of Appeals, the SC Supreme Court, and the US Supreme Court in rare cases if there is a federal issue.

If you are convicted in General Sessions Court (the criminal side of the circuit court), you appeal to the SC Court of Appeals, the SC Supreme Court, and the US Supreme Court in rare cases if there is a federal issue.

If you win your appeal, the remedy depends on the grounds for appeal. The possibilities may include:

• Reversal and remand for a new trial,
• Reversal and remand for a directed verdict of acquittal,
• Partial reversal and remand with instructions to the lower court, or
• Partial reversal and remand for resentencing.

DUI – Driving Under the Influence PCR (Post-Conviction Relief)

If you lose your direct appeal, you may still have grounds for post-conviction relief (PCR).

A direct appeal is based on mistakes of law made by the trial judge, but a PCR action is usually based on mistakes made by the trial lawyer (there are other grounds for PCR, like prosecutorial misconduct or newly discovered evidence).

For example, if the defense lawyer makes a motion to exclude the breathalyzer result, the trial judge denies that motion, and the trial judge is wrong on the law, the defendant can file a direct appeal and the appellate court may reverse the conviction and remand the case for a new trial (without the breathalyzer result).

If the defense lawyer doesn’t make the motion to exclude the breathalyzer result, however, there is no record from which to appeal. The motion was not argued, and the trial court did not rule on it, so there is nothing for the appellate court to consider or reverse.

The defendant has up to one year from the conviction, the appellate court’s decision, or the discovery of new evidence to file a PCR action. In the above example, the applicant would need to prove that:

1. Their trial lawyer provided “ineffective assistance of counsel” by failing to move for suppression of the breath test results – if the motion should have been granted based on the law, that’s ineffective assistance, and
2. They were “prejudiced” by their lawyer’s ineffective assistance – in this case, that’s easy. If the breathalyzer results had been suppressed, there is a reasonable probability that it would have affected the outcome.

If a PCR is granted, the remedy is usually a new trial (although it depends on the nature of the PCR claim – resentencing could be the result, for example). Note that, unlike with a defendant’s acquittal at trial, the State can appeal a PCR win or, if the PCR is denied, the applicant can appeal the result directly to the SC Supreme Court.

At what point do you retain a DUI lawyer in this process?

You could get an attorney to step in at any point from your bond hearing to your appeal after a conviction, but you should immediately call your DUI lawyer after your arrest because:

• There are important deadlines you don’t want to miss like your implied consent hearing request, initial court dates, preliminary hearing requests, and jury trial requests,
• The state is preparing its case against you from the moment the cop pulled you over – with a trained prosecutor, paralegals, investigators, SLED, and an entire police department at their disposal,
• You should have a trained DUI attorney on your side as well from day one, and
• The potential consequences are too severe to take chances with a DUI charge.

Call an experienced DUI attorney now to help you get your DUI charges dismissed, negotiate a resolution, or try your case to a jury.