Breathalyzer
While you may be required to submit to testing for drugs and alcohol through a screening of your blood or urine in South Carolina when charged with driving while impaired (DWI) or driving under the influence (DUI), the most likely scenario will be a test of your breath.
The results of these tests may be challenged, and if successful, suppressed from admission into evidence. Successful challenges to these tests could be the circumstances surrounding the administration of the test such as certain time deadlines being met, a question of the chain of custody of the test results (are the test results really yours), as well as questioning the qualifications of the officer who administered the test.
In order for the state to rightfully submit these results at your trial for driving while impaired or driving under the influence requires: 1) that evidence is submitted showing that the test equipment was properly calibrated, 2) that the correct chemicals were used in the test equipment, 3) that the suspect was not allowed to place anything in his mouth for at least 20 minutes prior to the administration of the test.
If the test results in a .05 or less, you will not be able to be prosecuted for the crime of driving under the influence of alcohol or driving while impaired due to alcohol consumption. If the results of the test are between .05 and .08, then there is no presumption of intoxication or sobriety but may be properly weighed with other evidence that is presented. However, if the test results in a blood-alcohol concentration of .08 or greater, the court will presume that you were under the influence of alcohol.
Implied Consent to a Test of the Breath
If you operate a motor vehicle on the road in South Carolina, you are giving “implied consent” to a test of your breath, blood, or urine in order to determine your sobriety or lack thereof. Implied consent is defined by Black’s Law Dictionary as “consent inferred from one's conduct rather than from one's direct expression.” In other words, it is irrelevant whether you believe that you have consented to a test of your breath, by operating a vehicle on the public roadways in South Carolina, you have impliedly consented.
Your Rights and Consent Prior to the Test
South Carolina Code § 56-5-2950, “Implied consent to testing for alcohol or drugs,” states that:
“No tests may be administered or samples obtained unless, upon activation of the video recording equipment and prior to the commencement of the testing procedure, the person has been given a written copy of and verbally informed that:
(1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least six months if he refuses to submit to the test and that his refusal may be used against him in court;
(2) his privilege to drive must be suspended for at least one month if he takes the test or gives the samples and has an alcohol concentration of fifteen one-hundredths of one percent or more;
(3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense;
(4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and
(5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.”
If you are unable to provide a test of your breath due to unconsciousness or physical injury, your blood may be drawn for testing. The determination that you are unable to provide a test of the breath may be made by a licensed medical professional. The decision to take a blood sample instead of a test of the breath may not be determined by the police.
If an officer has reasonable suspicion that a person was operating a vehicle under the influence of drugs other than alcohol, the officer may order a urine sample be taken.
A DUI conviction can have serious and long-lasting consequences. If you are facing a drunk driving charge, it is important that you contact an experienced DUI attorney to protect your rights. Contact South Carolina DUI lawyers at Everett Law Firm at 800-942-8048 for a free consultation if you have been arrested or charged with any type of drunk driving offense.
