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Legal Limit of Alcohol in South Carolina for DUI

If I had to guess, if I presented this question to a party crowd probably 60 or 70% would say .08% as the answer. While this is an answer, it’s not necessarily correct. The DUI laws in South Carolina spell out what this means.

Contrary to popular belief, it is not illegal to “drink and drive.” The DUI statute requires that a person's “ability to drive must be materially and appreciably impaired.” That means with many people, a glass of wine or one beer may not be enough to impair one’s ability to drive. On the other hand, it may.

What is .08%?

In South Carolina the Datamaster DMT test is used to determine the amount of alcohol in the blood. It performs a calculation to determine the amount of blood alcohol by measuring the "deep lung" or alveolar air and then translates that amount to BAC or "Blood Alcohol Content."

The .08% amount is an amount that the National Highway Traffic Safety Administration (NHTSA) has determined is a threshold for drivers. Through funding mandates, states, including South Carolina have adopted this standard.

It means that if you provide a sample that is .08% or higher, the jury may “infer[] that the person was under the influence of alcohol.” Section 56-5-2950(G)(3). Of course, “under the influence” in this context means that the jury may infer that the person’s ability to drive was materially and appreciably impaired. It does NOT mean that they have to conclude by reference to the number alone that a person was under the influence and must be guilty.

What if I blow less than a .08%

So back to the party crowd question above. If the “legal limit” is .08% then if you blow a .07% or less then they should let you go, right? Wrong! The statute says that “if the alcohol concentration was … in excess of .05% but less than .08%, 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.” Section 56-5-2950(G)(2). What this means is that there is no inference that the jury can use for impairment, but it is a factor that they can consider when deciding guilt or innocence.

What about a .05%

Surely if you blow a .05% they will let you go, right? Doubtful! The statute says that it is “conclusively presumed that the person was not under the influence of alcohol” if the alcohol level was .05% or less. Section 56-5-2950(G)(1).

Realistically, if you blow a .05% or less you are already arrested for DUI. In other words, the determination to charge someone for DUI in South Carolina comes prior to the sampling of the breath.  As an attorney and former prosecutor, there is some belief in law enforcement that when you arrest someone you can’t “unarrest” them. I have never found anything that prohibits a law enforcement officer from letting someone go who has been arrested, but realistically, you’re likely going to jail for the DUI.

I have represented people who blew a .05% or less and I’ve represented people who have blown a 0.0%. Yes, that number is correct. During the writing of this article, I pulled a report from around the state of people charged with DUI, who provided a breath sample of .05% or less solely for the month of January, 2019. A total of 147 people in South Carolina were taken into custody, and provided a breath sample of .05 or less that returned no error. Remember, all of these people were arrested for DUI. For the year of 2018, that number was 843 people. It does NOT mean they were or will be convicted of it – but think of the hassle.

The logic of law enforcement (sometimes correct) is that the person was not impaired on alcohol, but rather on drugs. Remember, it is just as illegal to be impaired on drugs and drive as it is alcohol. However, not all of these people were on drugs despite the suggestion of law enforcement.

The answer

I’m going to go out on a limb and say there is no true “legal limit” in South Carolina or likely any other state. If there is, that limit is different for each person on each day and ultimately it’s up to a jury to decide. At .05% with no other evidence of drug use, you’re pretty safe from a conviction, but you will still have the hassle of defending a DUI case. I can almost assure you, law enforcement or the prosecutor will not just dismiss it.

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