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Do I Have To Submit to a Breathalyzer Test in South Carolina?
DUI (Driving Under the Influence) laws in South Carolina can be very difficult to understand. I am often asked by clients, family, and friends questions regarding this area of law. Many times these questions revolve around whether they were required to take field sobriety or breathalyzer (a.k.a Datamaster) tests.
The simple answer is “No”. South Carolina law only requires an individual to take a field sobriety or breathalyzer test in two circumstances:
(1) a person must take a field sobriety test if they are involved in a motor vehicle incident resulting in the death of another person and they are physically able to do the field sobriety test and
(2) a person must take a chemical test of their breath, blood, or urine if they cause “great bodily injury” to a person other than themselves while driving.
Unless one of these two circumstances exists, a person has every right to refuse to take any of the tests that are requested by a law enforcement officer. Furthermore, South Carolina law clearly states that refusal to take a field sobriety test does not constitute disobeying a police command.
What Is Implied Consent Regarding South Carolina DUI Laws?
The story does not end there, however. South Carolina has an “Implied Consent” statute which states that a person is considered to have given consent to be tested if they drive a vehicle. In other words, law enforcement officers are empowered to think that you have already consented to tests of your sobriety. Failure to take those tests, therefore, can be used by law enforcement in their determination of your intoxication and/or your prosecution for driving under the influence.
The “Implied Consent” law also gives the State the right to punish you even before you are prosecuted and actually found guilty of driving under the influence. If you refuse a breathalyzer test, your ability to drive in South Carolina will be automatically suspended by the Department of Motor Vehicles. This is true even though no jury has found you to be guilty. You may appeal this suspension within 30 days and request an administrative hearing—but the fact remains that your license will have been suspended solely based on your refusal to take a breathalyzer test.
What Should I Do If I Am Stopped For A DUI in South Carolina?
So what does all of this actually mean? And what should you do if you are stopped by law enforcement? Unfortunately, I can not answer that question in this blog as the advice would be very case-specific and would require an in-depth conversation. I can, however, tell you what I tell my clients, family, and friends.
You do not have to do any tests unless you have injured someone. If you chose not to take the tests, this refusal will likely result in your arrest and/or the suspension of your privilege to drive. If you do refuse the tests, however, the State will not be able to use the evidence of those tests at the trial in your case. In other words, if you do not do the field sobriety test there will be no bad (or good) field sobriety test to potentially show a jury. If you do not blow into a breathalyzer, there will be no bad (or good) breath test result to show the jury.
The choice is yours.