What is a DUI Per Se in SC?

by | Oct 24, 2019 | DUI |

What is a DUI Per Se in SC? 

Another name for DUI per se in SC is “driving under an unlawful alcohol concentration,” or DUAC. DUI per se means that, if your blood alcohol content is greater than .08, you can be found guilty of DUAC. 

The penalties are the same as those for a “traditional” DUI, although the elements that must be proven by the state are slightly different. What is the difference between DUI per se and driving under the influence charges in SC? 

If you have been charged with DUI per se (DUAC) or any DUI related offense in Myrtle Beach, SC, call the SC DUI defense lawyers at Coastal Law now to schedule a free case consultation by calling (843) 488-5000 or by contacting us through our website.

What is DUI Per Se in SC? 

DUI per se in SC, or DUAC, isn’t exactly the same as driving under the influence, or DUI, charges. Police must choose which offense to charge – they cannot charge both – and the evidence required for a conviction is slightly different than it would be for a DUI charge. 

SC Code Section 56-5-2933(A) says that “[i]t is unlawful for a person to drive a motor vehicle within this State while his alcohol concentration is eight one-hundredths of one percent or more.”

For a conviction, the prosecution only needs to prove that your blood alcohol concentration (BAC) was .08 or higher, which they must do by presenting evidence of the results of a breathalyzer, urinalysis, or blood test. 

What are the Penalties for DUI Per Se in SC? 

The penalties for DUI per se in SC are the same as the penalties for DUI:

First Offense

  • 48 hours to 30 days in jail, or 48 hours of community service;
  • If BAC is .10 to .16, 72 hours to 30 days in jail, or 72 hours of community service;
  • If BAC is .16 or greater, 30 days to 90 days in jail, or 30 days of community service. 

Second Offense

  • Five days to one year in prison;
  • If BAC is .10 to .16, 30 days to one year in prison;
  • If BAC is .16 or greater, 90 days to three years in prison. 

Third Offense

  • 60 days to three years in prison;
  • If BAC is .10 to .16, 90 days to four years in prison;
  • If BAC is .16 or greater, six months to five years in prison. 

Fourth Offense

  • One year to five years in prison;
  • If BAC is .10 to .16, two years to six years in prison;
  • If BAC is .16 or greater, three years to seven years in prison. 

There are substantial fines in addition to the mandatory minimum sentences, and, if you are convicted of DUI per se in SC, your license will be suspended. 

What is the Difference Between DUI and DUI per se in SC?

The main difference between DUI and DUI per se in SC is the type of evidence that the prosecutor must show in order to get a conviction. 

Proof Required for a DUI Conviction in SC

For a DUI conviction, the prosecution must prove that you were 1) driving, 2) while under the influence of alcohol or drugs, 3) to the extent that your ability to drive was materially and appreciably impaired. 

This means that you can be 1) driving, 2) while under the influence, but not guilty of DUI unless your faculties to drive were materially and appreciably impaired. Although a breathalyzer or blood test result may be evidence of impairment, a result greater than .08 does not automatically make you guilty. 

SC Code Section 56-5-2950(G) says that if a person’s BAC is less than .05, “it is conclusively presumed that the person was not under the influence of alcohol.” On the other hand, if a person’s BAC is .08 or greater, there is an inference that the person was under the influence:

(G) In the criminal prosecution for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 the alcohol concentration at the time of the test, as shown by chemical analysis of the person’s breath or other body fluids, gives rise to the following:

(1) if the alcohol concentration was at that time five one-hundredths of one percent or less, it is conclusively presumed that the person was not under the influence of alcohol;

(2) if the alcohol concentration was at that time in excess of five one-hundredths of one percent but less than eight one-hundredths of one percent, this fact does not give rise to any inference that the person was or was not under the influence of alcohol, but this fact may be considered with other evidence in determining the guilt or innocence of the person; or

(3) if the alcohol concentration was at that time eight one-hundredths of one percent or more, it may be inferred that the person was under the influence of alcohol.

An ”inference” means that you can present evidence to show why you were not under the influence, even though the BAC test result said .08 or higher. For example, many people can have a BAC of .08 or greater and their ability to drive is not materially and appreciably impaired due to their gender, size, metabolism, and tolerance to alcohol. 

Proof Required for a DUI Per Se in SC

SC Code Section 56-5-2930(I) says that, if you consented to a breathalyzer or blood test and the test was performed within two hours of your arrest, you can be charged with DUI per se in SC:

(I) A person charged for a violation of this section may be prosecuted pursuant to Section 56-5-2933 if the original testing of the person’s breath or collection of other bodily fluids was performed within two hours of the time of arrest and reasonable suspicion existed to justify the traffic stop. A person may not be prosecuted for both a violation of this section and a violation of Section 56-5-2933 for the same incident.

In a DUI per se prosecution, the state only has to prove that you 1) drove a motor vehicle within this State, 2) while your alcohol concentration was .08 or higher. 

There is no requirement that you were actually under the influence, or that your ability to drive was materially and appreciably impaired

You could be a large man with a high metabolism rate and a high tolerance for alcohol who is driving with no impairment, and still be found guilty of DUI per se if the breathalyzer says that your BAC is .08 or greater…

If you are charged with DUI per se, however, the state must have a breathalyzer, urinalysis, or blood test result to prove that your BAC was higher than .08. 

You can challenge the test results, you can retain experts to review the evidence in your case and testify at trial when necessary, and, if you do, the state will be forced to bring their own expert witnesses from SLED to establish that the test was performed properly and that the results were accurate.  

DUI Per Se, DUAC, and DUI Defense Lawyers in Myrtle Beach, SC

Your DUI per se defense attorney at Coastal Law can request a jury trial in your case, get the state’s evidence from the prosecutor, subpoena evidence from government agencies or the Datamaster’s manufacturer, review the videos, breath test results, and records for the machine that you were tested on, and retain breathalyzer or other experts when needed.

Call Coastal Law now to schedule a free case consultation by calling (843) 488-5000 or by contacting us through our website.

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