SC’s implied consent laws will result in a license suspension (and ADSAP requirements) if you:
- Refuse the breathalyzer test (or a blood test), or
- Take the breathalyzer test and the result is .15 or greater.
What does implied consent mean, though? And what should you do if you are charged with DUI and you have an implied consent violation?
In this article, we will discuss SC’s implied consent laws, including:
- What implied consent means,
- How to request a DUI administrative/ implied consent hearing, and
- The procedure for implied consent hearings in SC.
What is Implied Consent?
SC Code § 56-5-2950 says that, if you drive a motor vehicle, “you have given consent to chemical tests” of your breath, blood, or urine if you are arrested for a DUI-related offense.
Did you give consent to a breath test?
Of course not.
Nor did I, or anyone who has a SC driver’s license. It’s a “legal fiction,” designed to pressure you into providing evidence against yourself if you are ever charged with DUI. Yes, the Fifth Amendment says you cannot be forced to give evidence against yourself, but the courts have held that forcing a person to take a breathalyzer does not violate the Fifth Amendment…
You have the right to refuse to take the test, whether it is a breathalyzer test, urinalysis, or blood test. But your license will be suspended if you refuse, and you may be required to enroll in ADSAP and possibly install an ignition interlock device on your vehicle.
On the other hand, if you take the test, and the result is .15 or greater, your license will still be suspended.
What Should You Do if You Have an Implied Consent Violation?
If you are charged with driving under the influence, you should immediately contact a DUI defense lawyer in Myrtle Beach – your DUI attorney at Coastal Law will help you to prepare your defense, request a jury trial when appropriate, and challenge your implied consent suspension.
Because there are strict deadlines both for jury trial requests in the DUI criminal case and implied consent hearing requests in the administrative case, you should not delay.
If you do not request your implied consent hearing within 30 days after your arrest, you will lose your right to a hearing, the suspension will stand, you must enroll in ADSAP, and you may be required to install an ignition interlock device on your vehicle.
How Do You Request a DUI Administrative Hearing/ Implied Consent Hearing?
The hearing request must be sent to the DMV at the address on the back of your implied consent rights notice form, it must be on the original notice form, you must send the implied consent hearing request fees along with the form, and it must be received within 30 days after your arrest.
Call your DUI lawyer immediately after your arrest and provide all paperwork to them so they can request the hearing on your behalf.
If you have not yet retained an attorney, mail in your hearing request on the original form following the instructions on the back of the form, and then provide the documentation to your attorney as soon as possible.
Temporary Alcohol Licenses (TALs)
Once you have requested the implied consent hearing, you can go to any DMV office and get a temporary alcohol license (TAL) that allows you to drive – without restrictions other than no alcohol – until your hearing date.
What Happens at the Implied Consent Hearing?
Implied consent hearings are relatively informal – they are often held in a conference room instead of a courtroom, and the presiding judge is a DMV hearing officer instead of a magistrate.
When your case is called, the officer will usually testify as to their qualifications, their probable cause for the DUI arrest, and the procedures they followed during the breath test. The officer is usually the only witness unless the Datamaster operator and arresting officer were two different people.
SC Code § 56-5-2951 says that the scope of the hearing is limited to:
- Whether you were lawfully arrested or detained,
- Whether you were given a written copy of and verbally informed of your implied consent rights,
- Whether you refused to take the test,
- Whether the test result was accurate,
- Whether the Datamaster operator was qualified,
- Whether the Datamaster operator followed the proper procedure when administering the test, and
- Whether the machine was working properly.
Your attorney will cross-examine the officer or officers, each side might make a brief argument to the hearing officer, and then the hearing officer will decide whether to uphold the suspension or “rescind” the suspension.
What Happens if You Win?
There are three ways you could win your implied consent hearing:
- The officer testifies and the hearing officer agrees that the implied consent suspension was improper,
- The officer does not appear and therefore does not testify, or
- The officer appears and declines to enter testimony.
If you win, the hearing officer will rescind the suspension, and, once the DMV receives a copy of the order, you can go to any DMV office and get your license back.
DUI Criminal Charges are Separate From Implied Consent Administrative Hearings
Remember that the criminal case for DUI and the administrative implied consent hearing are two different cases in two different courtrooms – even if you win your implied consent hearing, your DUI criminal charges are still pending and you are still subject to a conviction and license suspension in the criminal court.
What Happens if You Lose?
If you lose the hearing, or if you did not request an administrative hearing, you must serve out your suspension and enroll in ADSAP.
Depending on the facts of your case, you may be required to install an ignition interlock device (IID) or you may have the option of installing an IID for the duration of your suspension period.
Questions About Implied Consent in SC?
If you have been charged with DUI in Myrtle Beach, SC, call your SC DUI lawyer at Coastal Law immediately. If you have an implied consent suspension, we will immediately request a DUI administrative hearing and help you to get back on the road if possible.
Call Coastal Law now at (843) 488-5000 or send us an email message to speak with a SC DUI lawyer today.