Every time a law enforcement officer makes an arrest for DUI in South Carolina he is required to take the driver to a certified breath-test facility and offer the opportunity to provide a breath sample. The arrest for DUI triggers a separate and distinct law; the Implied Consent law. The Implied Consent law stands for the proposition that anyone arrested for DUI impliedly consents to providing a breath sample or a blood sample, if medically unable to provide a breath sample, just by driving in the state. Since the breath-test operator is effectively asking the accused to provide evidence to be used against him, our law requires that the accused be informed, in writing, of certain “Implied Consent rights” as well as the potential consequences for exercising either statutory right. The question then becomes whether the accused should provide a sample for BAC testing or refuse to provide a sample for testing.
The accused is informed that a test result of .15 or greater or a refusal will result in an immediate license or driving privilege suspension. The suspension is for one month in the case of a first implied consent violation, if the accused submits a sample and the test result is .15 or greater, and six months for a first time refusal. Refer to the administrative suspension chart for specific information regarding the length of a suspension period for second or subsequent implied consent violations.
At the time of the test, the law presumes that the arresting officer and the breath-test operator both met the requirements of the law while performing their respective roles in the investigation. As a result of this presumption, a drive alleged to have refused or reported to have a BAC of .15 or more will have their driving privilege suspended immediately. However, the Implied Consent Law affords a suspended driver the right to challenge the suspension. The right to raise this challenge is time sensitive. A driver suspended under the implied consent law has 30 days to request an administrative hearing to challenge the suspension, or the suspension will stand and the driver must enroll in the Alcohol Drug Safety Action Program (ADSAP) in order to ever be licensed again. A driver who fails to request a hearing and challenge the suspension may be eligible for a route restricted drivers license during the period of suspension.
It is important to know that a “refusal” is a question of law not a question of fact. To know whether a given situation constitutes a legal refusal would require a complete review of the events leading up to the arrest and that events that took place or did not take place in the breath-test room.
A driver who requests a hearing within thirty days may be eligible for a Temporary Alcohol License for the time period necessary to resolve the validity of the presumptive administrative suspension. The DUI Defense team at the Carroll Law Firm has the knowledge, experience and ability to assist you in preserving your rights and in obtaining any driving privilege you are entitled to under the implied consent law. DO NOT DELAY IN ACTING TO PROTECT YOURSELF! Call the Carroll Law Firm at 843-737-4245 or email us at [email protected] .