Implied consent hearings, or “DUI administrative hearings,” are a critical stage in many DUI cases in South Carolina.
DUI defense lawyers everywhere keep saying, “don’t take the breathalyzer test” like a mantra, but, if you refuse to take the breath test, your license is suspended…
Of course, if you do take the test, then 1) you are giving the police evidence to use against you and 2) your license will still be suspended if the Datamaster result is .15 or greater. So, what can you do?
In this article, we will discuss the basics of DUI administrative hearings in SC, including:
- How implied consent hearings in SC work,
- What your implied consent rights are, and
- The difference between criminal and administrative DUI proceedings.
What is Implied Consent?
“Implied consent” means you didn’t give consent for breath or blood tests, but the state is going to pretend as if you gave consent.
SC Code Section 56-5-2950 says that, if you drive a motor vehicle in SC, you are “considered to have given consent” for the breathalyzer or alcohol blood test:
(A) A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of the person’s breath, blood, or urine for the purpose of determining the presence of alcohol, drugs, or the combination of alcohol and drugs, if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of alcohol and drugs.
Of course, you didn’t agree to provide a breath or blood sample in exchange for the “privilege” of driving a vehicle. Neither did I.
You have the right to refuse the breathalyzer.
If you refuse the test, which you should do in most cases, your license will be suspended. If you take the test and your BAC result is .15 or greater, your license will be suspended. In either case, the only way to avoid the suspension, ADSAP, and possibly an ignition interlock device on your vehicle is to request an implied consent hearing and get the officer’s decision to take your license reversed (the hearing officer can “rescind the suspension” in some cases).
What are Your “Implied Consent Rights?”
The arresting officer (or Datamaster operator if it is a different officer) must 1) read your implied consent rights to you and 2) provide you with a written copy.
What are your implied consent rights?
- First, you don’t have to take the test (“implied consent” is a lie that you are free to ignore), but
- If you refuse the test, your license will be suspended (or you may be required to install an ignition interlock device) and you must enroll in the ADSAP program,
- You have the right to an independent alcohol test (and the officer must assist you in getting an independent test if you request it), and
- You have the right to a DUI administrative hearing if your license is suspended under the implied consent laws.
The notice form that is provided to you must also be used to request your implied consent hearing – do not lose it and immediately provide the form to your attorney, because there is a strict deadline to request your hearing.
The Implied Consent Hearing Process in SC
What is the procedure for an implied consent hearing?
First, you must request the hearing using the original implied consent rights notice form that was given to you in the Datamaster room – provide this form to your attorney immediately (or mail it in with the required fee following the instructions on the form).
What is the Procedure for an Implied Consent Hearing?
The hearing is usually in a conference room (not the courtroom) at the courthouse and is less formal than criminal proceedings.
Before the hearing begins, the arresting officer may or may not talk to your attorney – depending on the circumstances, the officer could decline to testify (in which case you “win” the hearing by default) or your attorney could withdraw the implied consent hearing request if there is a good reason to do so (an agreement to dismiss the DUI charges, for example).
When the hearing begins, the officer will tell the hearing officer the facts of your case – why you were pulled over, why the officer believed you were intoxicated, what the officer’s probable cause was for the DUI arrest and breathalyzer test, and the procedure followed when administering the test.
Your attorney can then 1) cross-examine the officer to establish that there was no probable cause and 2) provide additional evidence (in most cases, however, this is limited to the officer’s cross-examination).
SC Code § 56-5-2951 says the scope of the hearing is limited to whether the defendant:
- was lawfully arrested or detained;
- was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;
- refused to submit to a test pursuant to Section 56-5-2950; or
- consented to taking a test pursuant to Section 56-5-2950, and the:
- reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more;
- individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
- tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and
- machine was working properly.
If the officer does not establish probable cause for the arrest, if the officer did not follow SLED policy and procedure when administering the test, if the officer was not qualified to administer the test, if the machine was not working properly, if you did not actually refuse the test, or if the test results were incorrect or demonstrably unreliable, the hearing officer should “rescind the suspension” and reinstate your full license.
If the officer does not appear (and the hearing officer doesn’t continue your case to give them another chance), or if the officer declines to testify, you “win” your hearing and your license is reinstated.
DUI Administrative Hearings v. DUI Criminal Cases
Because implied consent hearings are administrative, they are in a separate court from your DUI criminal case, and one does not directly affect the other.
If you win your implied consent hearing: your license is restored, but you still have a criminal DUI charge pending that must be resolved. You’ve won the battle, but you haven’t yet won the war.
If you lose your implied consent hearing (or if you don’t request a hearing): your license is suspended, you must enroll in the ADSAP program, and you may be required to install an ignition interlock device on your vehicle.
Your case is not over, however – you still have a DUI criminal case that must be resolved and that could result in an additional license suspension or ignition interlock device requirement if you are convicted.
DUI Defense Lawyers in Surfside Beach, SC
Myrtle Beach DUI defense lawyer Daniel Selwa has extensive experience defending clients accused of driving under the influence and DUI-related charges in Horry County, Conway, Surfside Beach, Aynor, Myrtle Beach, North Myrtle Beach, and Georgetown, SC.
If you have been charged with DUI in SC or believe you are under investigation, call now at (854) 854-6650 or send us a message through our website to talk with an attorney today.