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Refusing a breathalyzer test in South Carolina for the first time results in a six-month driver’s license suspension along with administrative fees. For drivers with a prior refusal or a drunk-driving-related offense within 10 years, the penalty increases to a nine-month suspension.
The driver has the right to a hearing and may pay a $100 fee for a temporary alcohol license until the hearing outcome. If the suspension is uncontested or upheld, the person must enroll in the Alcohol and Drug Safety Action Program.
Note: A third offense within 10 years results in a 12-month suspension. A fourth or subsequent offense within 10 years results in a 15-month suspension.
If you have been charged with a DUI for refusing to take a breathalyzer test, reach out to our experienced Columbia criminal defense lawyers right away for assistance with your case.
South Carolina’s Implied Consent Law Explained
South Carolina’s implied consent law says that, by driving a motor vehicle in South Carolina, the driver consents to give their breath, blood, or urine if requested by a law enforcement officer. Law enforcement must have reasonable suspicion that the person is driving under the influence or operating with an unlawful bodily alcohol content.
If a driver is asked to take the official breathalyzer test, they must take it or face immediate suspension of their driver’s license.
PBT vs. DataMaster in South Carolina’s implied consent law
Two types of breath tests are used in drunk driving investigations. The PBT (preliminary breathalyzer test) is a handheld test that you may be asked to take by your vehicle. PBTs help officers in drunk driving investigations, but they offer little evidentiary value. You can refuse a PBT. This is not related to the implied consent law.
Refusing a breathalyzer relates to the official breath test machine found at the police station or in a mobile law enforcement unit. In South Carolina, this instrument is called a DataMaster DMT or an INTOX DMT. When discussing breathalyzer test refusals in SC, we’re referring to the official test administered after an arrest.
Can You Legally Refuse a Breath Test in SC?
While you can refuse a breath test in SC, there will be legal consequences. Breath test refusal is not a criminal offense, but can result in suspension of your driver’s license by the Department of Motor Vehicles (DMV). The suspension is separate from, and in addition to, any conviction you might receive for drunk driving.
What Happens Immediately After a Breathalyzer Refusal?
Immediately after a breathalyzer refusal, the law enforcement officer will issue a notice of suspension, which is effective immediately.
The driver then has 30 days to request a hearing.
Temporary alcohol license
A person who requests a hearing may get a temporary alcohol license for $100. This allows the person to drive without restrictions until the disposition of their administrative hearing. If the hearing is upheld, a new notice of suspension will be issued.
Administrative Penalties vs. Criminal Consequences
The DMV license suspension process is an administrative penalty. The hearing is before a hearing officer who is not a court judge or magistrate. The DMV has the burden of proof at the hearing, and drivers have appeal rights.
Criminal process after breathalyzer refusal
Separate from the next steps regarding the breathalyzer refusal, the arresting officer may place the person in jail on drunk driving charges. The person may be released when there are no longer signs of intoxication. They may be issued a bond or may stay in jail until they can be arraigned. Charges may also be issued at a later time.
How Breath Test Refusal Affects Your DUI Case
Law enforcement may still charge you with drunk driving. While they won’t have the result of a breath test to prove their case, they can use your refusal against you.
A conviction or guilty plea for drunk driving results in a separate license suspension.
Can You Fight a Breathalyzer Refusal Suspension?
Yes. You can fight a breathalyzer refusal suspension, but you must request a hearing, as it is not automatic.
Potential defenses include:
- Law enforcement didn’t follow the proper steps to inform you of your rights and offer you a test.
- Your face was injured, or you were unconscious and unable to test.
- The officer didn’t have probable cause to stop your vehicle, arrest you, or conduct a test.
You have the right to have an attorney represent you if you refuse a breathalyzer test in SC.
Why You Need a Lawyer After Refusing a Breath Test
An experienced lawyer understands the rules and requirements for breathalyzer test administration. They know the steps to contest the refusal and how to present evidence at a hearing. They can identify defenses and advocate for you in all aspects of your case.
Talk to a Lawyer for Refusing a Breathalyzer Test in SC
At Shealey Law Firm, we aggressively represent people in breathalyzer refusal matters in SC. We can represent you whether or not you’re also facing drunk driving charges. Call or message us now.