It can – but not in the way that you might think. Your own use of an alcohol-based hand sanitizer is extremely unlikely to affect the breathalyzer/ Datamaster result in a SC DUI case. But, the officer’s use of an alcohol-based hand sanitizer prior to administering the breathalyzer can cause false positives or error messages from the machine. How does this work and why?

Your Own Use of Hand Sanitizer is Not Likely to Affect the Breathalyzer Result

An Australian study in 2006 demonstrated that use of a 70% alcohol hand sanitizer 30 times over a one-hour period caused only a slight elevation in breath alcohol levels – between 0.001 percent and 0.0025 percent. These results are from tests that were performed one to two minutes after the final hand sanitizer use. Ten to 13 minutes later, all subjects’ breath alcohol levels had returned to zero. A New York state representative was convicted of drunk driving in a Virginia court in 2008. At his trial, a defense expert testified that he had used hand sanitizer earlier in the day and that this affected his blood alcohol content (BAC). The defense was unsuccessful, and he was convicted of DUI. It is extremely unlikely that a person could absorb enough alcohol through their skin to affect a breathalyzer reading. But, what if the person is handling the mouthpiece for the breath test after using hand sanitizer?

The Officer’s Use of Hand Sanitizer Can Affect the Breath Test

Another recent study showed that when breath-test operators used hand sanitizer, rubbed their hands until dry, unwrapped a disposable mouthpiece, and then held it for the test subject as they blew into the machine, 10% of the test subjects gave a positive test result despite being completely sober. Another 31.5% of the tests resulted in error codes on the machine. Why? The breath test is designed to detect alcohol from the deepest part of the lungs. The breath-alcohol result is then multiplied by an arbitrary, one-size-fits-all number that is supposed to provide the blood alcohol content (BAC). If the alcohol that is causing the positive result is located in or near the mouthpiece, as opposed to in the deepest part of the lung, that final number is going to be inflated every time. The source of contaminating alcohol could be hand sanitizer on the officer’s hands. It could also be alcohol that remained in the mouth trapped by a tongue ring or dentures. It doesn’t matter – the final number will be hopelessly skewed. It could result in a ridiculously inflated BAC result, or it could result in a false positive when the person has no alcohol in their system.

Can I Get My DUI Dismissed if the Officer Used Hand Sanitizer in the Breathalyzer Room?

To determine whether the police made mistakes in your DUI case, we first need to obtain the videos and other evidence in your case. There are many common mistakes that officers make that may result in your case being dismissed when we find them and bring them to the prosecutor’s attention, including failure to read Miranda rights at the scene of the arrest, failure to videotape the arrest and field sobriety tests, and others. Use of alcohol-based hand sanitizer by the officer does not legally require dismissal of your case, but it should result in suppression of the breathalyzer result, which in turn may result in dismissal, an offer of reduced charges, or an easier acquittal at the trial of your case. You can schedule a free consultation to discuss the facts of your case with a Myrtle Beach DUI lawyer by calling (843) 488-5000 or filling out our online form.

Marijuana is not legal in South Carolina for recreational or medical purposes. What about CBD oil or other CBD products? CBD stands for cannabidiol, which is an active ingredient in marijuana and hemp plants that: 1) does not get you high, and 2) is proven to be an effective treatment for epilepsy and other debilitating illnesses. So, are CBD products legal in South Carolina? Below I will explain why CBD oil appears to be legal under SC law, with the caveat that this is a developing area of the law that is, without a doubt, controversial. There are no appellate opinions on the issue, and if you choose to use CBD oil in South Carolina, you could become the “test case.”

CBD Oil is Not Marijuana

South Carolina’s marijuana laws specifically exclude CBD oil that is made from marijuana seeds or mature stalks of marijuana plants. S.C. Code § 44-53-110 contains the definitions for terms used in SC’s drug laws. 44-53-110 (27) defines what marijuana is and what marijuana is not for purposes of possession and other drug crimes.

What is Marijuana in SC?

Marijuana is defined in 44-53-110 (27)(a) as every part of the marijuana plant and every product that is derived from the marijuana plant: (i) all species or variety of the marijuana plant and all parts thereof whether growing or not; (ii) the seeds of the marijuana plant; (iii) the resin extracted from any part of the marijuana plant; or (iv) every compound, manufacture, salt, derivative, mixture, or preparation of the marijuana plant, marijuana seeds, or marijuana resin. Because CBD is derived from the marijuana (or hemp) plant, it is covered by this definition as a compound, derivative, or preparation of the plant or its seeds. But, let’s keep reading…

What is Not Marijuana in SC?

44-53-110 (27)(b) goes on to list what is not defined as marijuana under SC law including:

• Oil or cake made from the seeds of the marijuana plant, including cannabidiol derived from the seeds of the marijuana plant; and
• any other compound, manufacture, salt, derivatives, mixture, or preparation of the mature stalks (except the resin extracted therefrom), including cannabidiol derived from mature stalks.

These two definitions make clear that CBD products derived from the seeds or mature stalks of marijuana plants are not marijuana for purposes of prosecution under SC’s drug laws. It goes on to separately list CBD products that are prescribed for epilepsy or other illnesses as authorized under a separate SC law, separately excluding them from the definition of marijuana.

Do I Need a Prescription for CBD Oil in SC?

Julian’s Law (S.C. Code § 44-53-1810) establishes a framework for clinical trials to treat epilepsy patients with CBD from sources that are approved by the FDA. The CBD compound used must be at least 98% cannabidiol and no more than .9% tetrahydrocannabinol (THC). If Julian’s Law prohibits possession or use of CBD oil, it does so by implication only. There is no express prohibition of CBD in Julian’s Law or anywhere in SC law that I have found. So what is the answer? Julian’s Law authorizes the use CBD oil from certain sources with a prescription. But, if there is no prohibition on CBD in SC in the first place, isn’t it already legal under state law and a prescription is not necessary? By the way, a local company here in Conway, SC, Palmetto Harmony, is now the first CBD oil company in the country to air cannabis-based product ads on national television: https://www.youtube.com/watch?v=YeMBMQ1OuDQ

Myrtle Beach SC Marijuana Defense Lawyers

I have not yet seen a case where a person was prosecuted for possession or use of CBD oil in South Carolina, and, based on my reading of the statutes, it is doubtful that a medical patient would be arrested or prosecuted by state authorities for using CBDs. Marijuana, or compounds containing high levels of THC, are definitely illegal in SC, however. Police in most locations will take you to jail for even small amounts of marijuana. If you have been charged with drug possession, drug distribution, or drug trafficking in SC, we want to help you. You can schedule a free consultation to discuss the facts of your case with a Myrtle Beach drug defense lawyer at Coastal Law, LLC, by calling (843) 488-5000 or filling out our online form.

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