The Complete Guide To DUI Laws in South Carolina

So you had a few drinks with your friends at the bar or perhaps you enjoyed a glass or two of wine with your newly wed over dinner. Or maybe you didn’t drink at all and a rogue law enforcement officer wants to try out his newly learned DUI detection skills which have not yet been honed – it does happen. No matter how you got here, you are now unfortunately facing an arrest for driving under the influence.

The incident generally begins by either being pulled over or stopped at a checkpoint. In either case, the officer may claim to smell alcohol, ask where you’re coming from or notice some indication of possible impairment. At that point, he or she is going to focus on investigating whether you were impaired while driving a vehicle.

THERE ARE THREE MAIN WAYS THIS WILL HAPPEN:

1. Questioning
2. Field sobriety tests
3. Testing of your breath, blood, or urine.

First the officer will usually begin by simply asking, “have you had anything to drink tonight?”. Regardless of the answer, the next question is usually, “Do you mind doing some tests for me so that I can make sure you’re ok to drive home?” And my favorite question of all time is, “on a scale of 1 to 10 with 10 being the most drunk you’ve ever been, where would you rate yourself? Please don’t answer this question. Almost everyone answers with a “4”!!! – You may as well say, hey officer, I’m only half lit!

Standardized Field Sobriety Tests

You will be asked if you will consent to field sobriety tests in South Carolina. This means that you can choose to accept or refuse the test. Realistically, if you refuse to do the test, you are getting arrested for DUI. But guess what, if you do the tests, you better nail them because you’re likely going to jail for DUI anyway.

If you agree to the tests, you will likely be asked to perform the three tests below:

1. Horizontal Gaze Nystagmus
2. Walk and Turn
3. One Leg Stand

These tests come from the National Highway Traffic Safety Administration (NHTSA) and are what are considered the “Standardized Field Sobriety Tests” or SFSTs. If you choose to perform the tests, remember they are “divided” attention tests. This means that part of the tests is to follow the instructions as well as perform the tasks.

You generally get one shot at the instructions and will ever only get one shot at the test. I say this because if you mess up and try it again, you can rest assured that the prosecutor will use both “performances” of the test against you. If you do well the second time, they will say you practiced and that the tests lose effectiveness after multiple attempts.

The tests are difficult to perform for almost anyone except maybe a middle school ballerina, and it’s doubtful the middle schooler would be able to follow the instructions. Try them at home when you’re perfectly sober.

HORIZONTAL GAZE NYSTAGMUS

 

The HGN test is commonly known as the “eye test” or “pen test.” You’ve probably seen this one where the officer holds up a pen and asks you to follow it with your eyes as he moves the pen from side to side. There is actually a lot more to it, but basically the officer is looking for signs that the eyes are moving involuntarily which indicate the person may be too imparied to drive.

More specifically, the officer will ask the person to “turn and face me, put your feet together with your hands down by your side. Follow the pen with your eyes only and don’t move your head.” The officer will then do several quicker passes with the pen looking for “equal tracking” of each eye. The officer should then slow down and check each eye for the three clues in each eye.

The NHTSA claims this is “the most reliable field sobriety test” however, the accuracy is disputed by their own documentation. On Session 7, page 9 of 39, they discuss the test as being “88% accurate at detecting subjects at or above 0.08 BAC.” However, on Session 8, page 8 of 95, the test diminishes to be “77% accurate”. In other words, the test gets a C+ or possibly a B+ depending on the grading curve.

Regardless, there are 6 clues that law enforcement looks for; three clues in each eye. The three clues used for each eye are as follows:

1. “smooth pursuit”, meaning no jerking as the eyes move from side to side;
2. “distinct and sustained nystagmus [jerking] at maximum deviation”, meaning that as the eye moves out as far as it will go and is held for at least 4 seconds, is there involuntary jerking of the eye.
3. “Onset of nystagmus prior to 45 degrees”, meaning that as the eye is brought to the far left or right, does the eye start jerking prior to reaching 45 degrees?

WALK AND TURN

 

This test seems pretty simple, but there’s actually a lot to it. The officer begins with some instructions that include something like this.

“Place your left foot on the line. Place your right foot on the line ahead of the left foot, with the heel of your right foot against the toe of the left foot. Place your arms down at your sides. Maintain this position until I have completed the instructions. Do not start to walk until told to do so. Do you understand the instructions so far?

When I tell you to start, take nine heel‐to‐toe steps on the line, turn, and take nine heel‐to‐toe steps down the line. When you turn, keep the front (lead) foot on the line, and turn by taking a series of small steps with the other foot, like this. While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud. Once you start walking, don’t stop until you have completed the test. Do you understand the instructions?” NHTSA 2018 sfst manual, session 8, pg 64-65

It sounds pretty easy, but what is never told to the person is that it’s something called a “divided attention” test. This means that part of the test is not really the performance, but also following the directions to the letter.

During the first part of the test, the officer tells the person to stand with one foot in front of the other, heel touching toe, and hands down by their side. Remain in that position until I have completed the instructions. If at any point, the person breaks away, or moves out the way when the officer is demonstrating the test or does anything other than stand there with one foot in front of the other, that is considered a clue of impairment – no matter how well the test is performed.

They are looking for a series of clues that include:

1. Fails to hold position or maintain balance during instructions.
2. Starts the test too soon.
3. Stops while walking.
4. Does not touch heel to toe.
5. Steps off line.
6. Uses arms for balance.
7. Improper turn.
8. Incorrect number of steps.

Sound nerve-racking? Don’t mess up, if you do, you’re going to jail. I don’t know anyone who routinely walks around heel to toe. Certainly no one drives this way. Nonetheless, it is one of the tests that is used to determine if a person is competent to drive.

ONE LEG STAND

 

This test is also a “divided attention” test but is much simpler in instruction than the walk and turn. The officer begins with some instruction that may sound something like this:

“Please stand with your feet together and your arms down at the sides, like this. Do not start to perform the test until I tell you to do so. Do you understand the instructions so far?

When I tell you to start, raise either leg with the foot approximately six inches off the ground, keeping your foot parallel to the ground. Keep both legs straight and your arms at your side. While holding that position, count out loud in the following manner: ‘one thousand one, one thousand two, one thousand three,’ and so on until told to stop. Keep your arms at your sides at all times and keep watching the raised foot. Do you understand?” NHTSA 2018 sfst manual, session 8, pg 75-76

For some reason it is not protocol to tell the person how long this test is to be performed. However, the manual states that the person should perform the test for 30 seconds.

The officer is looking for the following clues:

1. Sways while balancing
2. Uses arms for balance
3. Hopping
4. Puts foot down (even one time)

According to NHTSA, the officer “will accurately classify 83% of the people [tested] as to whether their BAC’s are at or above 0.08.” As an aside, I’d encourage you as a reader of this article to get 10 people together who have had absolutely nothing to drink. See if 8 of the 10 can perform this test without exhibiting 2 or more clues. Remember, no practicing ahead of the test and you only get one shot at it.

Breath Tests

The other sobriety test that will happen in almost all DUI cases, is that the officer will offer a “Breath” test. The person is taken to the police station or jail where the Datamaster DMT is located. At that point, the person should be informed that they are being video recorded and read the implied consent advisement. The person can then refuse or agree to provide a sample. The machine takes the breath sample and renders a number indicating the amount of alcohol in the blood. For a more thorough discussion on breath tests and the administrative case, see Chapter 4.

Blood and Urine Tests

You will not be asked to submit to a blood test for alcohol in your system during most DUI arrests unless the officer suspects that the impairment is caused by a drug, or possibly if you are charged with Felony DUI. You do have the right to request one independently and the officer must facilitate that request. In order to get a blood test though, you have to provide a breath sample to the state.

If the police officer suspects you are under the influence of something other than alcohol, like drugs, you can be asked to submit to a blood test. Just as with breath test results, your blood or urine test can be used against you in criminal court.

The administrative case is the portion of a DUI case that challenges the license suspension for either the refusal to provide a breath sample or providing a breath sample of .15% or greater.

If your license is suspended, requesting an administrative case gives you the right to get a “Temporary Alcohol License” until the case can be resolved, but should you? That question, believe it or not, deserves and has an article to itself linked below.

SHOULD I REQUEST AN ADMINISTRATIVE HEARING?

The administrative case deserves a separate chapter and likewise could have a place as a separate “complete guide.” As mentioned in Chapter 1, the administrative case is completely separate from the criminal case. You received many pieces of paper but two of them are very important. 1.) The ticket or warrant, which is the charging document for the criminal case, and 2.) the Notice of Suspension (shown below), which is the document that initiates the right to an administrative case.

Notice of Suspension

 

Ticket

The two cases are connected only in fact, meaning that they are based on the same incident. However, the outcomes of the two cases are completely unrelated. You could win the administrative case and be convicted of DUI; you could be found not guilty of the DUI and still lose the administrative case; or win or lose both!

Breath Testing and the Implied Consent Statute

South Carolina uses the “Datamaster DMT” as its breath testing device of choice. There is no roadside breath testing (despite the pictures on the road signs). The Datamaster is a very technical machine that takes “alveolar” or “deep lung” air and measures the alcohol in that air. It then performs a calculation to convert the “Breath alcohol” into “blood alcohol concentration (or content)” or “BAC”. Because it’s quite complicated, it is subject to interference and error.

For the most part, the breath test is at the heart of the administrative case because either a refusal or a high BAC is usually the basis for an administrative suspension.

REFUSAL

You can either consent to providing a breath test or you can refuse. A refusal can also come in the form of a passive failure to provide a sample. If you refuse to provide a breath sample, the officer by statute, should issue you a notice of suspension right then and there. That is the blue piece of paper, pictured above, that notifies you that your license has been suspended. The suspension could last anywhere from 6 months to indefinitely depending on any prior DUI or DUAC convictions in the last 10 years. (See Chart below)

Also, if you refuse to provide a breath sample, the prosecutor will use that against you in your DUI trial. This practice is constitutionally questionable and has successfully been challenged in Georgia.

The reason a suspension can be imposed for refusing to provide incriminating evidence, is because of the “implied consent” law that exists here in South Carolina, and almost all states if not all of them. When you drive a motor vehicle in this state, you agree that if you are requested to provide a breath or blood test, you will do it. If not, your license will be suspended.

PROVIDING A SAMPLE

If you consent to providing a breath sample, and your BAC reads less than .15%, your license will not be suspended at all as it relates to the administrative case. It would get suspended later and mandatory ignition interlock would be required if you were ultimately convicted of DUI or DUAC. If, however, it reads .15% or more your license will be suspended for at least 1 month or ignition interlock could be imposed for at least 3 months if you lose at administrative hearing. Additionally, if the reading is .08% or more, the reading will likely be used against you as evidence during your criminal prosecution for DUI – If it’s less than .08%, I’m willing to bet the prosecutor won’t use it!

As a summary, a breath test of:

• More than or equal to .15% = at least 1 month suspension or 3 months IID
• Less than .15% = no suspension
• Refusal = at least 6 month suspension or IID

Suspension Periods for Implied Consent Violation

Here is a chart that sets out the possible suspension period you will be facing:

Prior Convictions During Past 10 Years	License Suspension Period for BAC of .15% or higher	License Suspension Period for Refusing the Breathalyzer
0	1 month or 3 months IID	6 months or IID
1	2 months or IID	9 months or IID
2	3 months or IID	12 months or IID
3	4 months or IID	15 months or IID

How do you get a license back?

REQUEST AN ADMINISTRATIVE HEARING AND GET A TEMPORARY ALCOHOL LICENSE (TAL)

If you refused to blow or blew a .15% or higher there are steps you can take to get back on the road at least temporarily while your case is pending. Unless you have an out of state license, the officer should have taken it at the time of your suspension. On the back of the blue Notice of Suspension that would have been provided to you, is the way to request an administrative hearing. You only have 30 days to return it to the SC Office of Motor Vehicle Hearings. If you wait longer than 30 days from the date of suspension, you will lose the opportunity to challenge the suspension.

The hearing request requires a $200 fee, but it gives you the ability to get a Temporary Alcohol License and drive until the hearing officer can make a determination as to whether the license was appropriately suspended or not. If you are successful at the administrative hearing, you get your regular license back. If you are not, the suspension will be upheld and will go back into effect at that time.  Know that under the new (2019) DUI laws, if you request an administrative hearing and lose or withdraw, you will be required to do ignition interlock.  The constitutionality of this provision is questionable, but for not, that’s the way it is. 

Once the administrative hearing is scheduled, you have the option to get a Temporary Alcohol License (TAL). It will cost you an additional $100 at the SCDMV and is valid from the time you get it until shortly after the time a decision is rendered by the Administrative Hearing Officer. It is unrestricted, meaning you can drive whenever you like. (See also Chapter 6, Alternative License Types).

THE ADMINISTRATIVE HEARING

In South Carolina, the administrative hearing is also sometimes called a “contested case hearing”.  The hearing is conducted by a DMV hearing officer.  That person hears from the witnesses in the case which generally is the arresting officer and the Datamaster operator if that is not the same person.  The officer will present the case to the hearing officer as to probable cause for the arrest, and the providing or refusing to provide a breath sample.  The officer is subject to cross examination during those hearings by your attorney or you, if you are representing yourself.

The hearing is limited by section 56-5-2951 to whether the arrested person:

1. was lawfully arrested or detained;
2. was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;
3. refused to submit to a test pursuant to Section 56-5-2950; or
4. consented to taking a test pursuant to Section 56-5-2950, and the:

1. reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more;
2. individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
3. tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and
4. [the] machine was working properly.

 

The officer or someone capable of testifying within the rules must be present to testify in order to uphold the administrative suspension.  It is the state’s burden of proof (responsibility) to show that the license suspension was appropriate and if they cannot demonstrate that, then the suspension will be set aside and the person’s license would be reinstated.

WHAT IF YOU LOSE THE ADMINISTRATIVE HEARING

If a hearing is not requested or if a hearing is requested and the suspension is upheld, you will have to:

1. Enroll in ADSAP and;
2. Get an IID License or other available alternative license type, if any. (See Chapter 6)