DUI vs. DUAC - What’s the difference?
There are two different types of drunk driving charges: DUI and DUAC. DUI is an acronym for Driving Under the Influence, while DUAC is the acronym for Driving with an Unlawful Alcohol Concentration. While they do have different elements, each charge carries the exact same penalties.. Realistically, there is no difference in a DUI and a DUAC with some very limited exceptions. In fact, I have heard officers and even courts say that DUAC is a “civil” penalty and not a criminal offense. This is simply NOT true. Both DUAC and DUI are criminal offenses and they both carry jail time. See 56-5-2933.
What about DWI in South Carolina
DWI is used by many states as the same or similar charge as DUI in South Carolina. DWI generally stands for “Driving While Impaired” or “Driving While Intoxicated.” South Carolina uses the acronym DUI. If you see any reference to DWI as opposed to DUI, you can substitute DUI because there is no common use of that acronym in this state for impaired or “drunk” driving.
Criminal vs. Administrative
It’s important to understand that a DUI generally consists of two separate cases which are the criminal case and the administrative case. The criminal case is the DUI or in other words, the part you can potentially pay a fine for or serve jail time.
The administrative case deals with the license suspension for the very act of providing a breath sample of .15% or more, or refusing to provide a breath sample. While every DUI is a criminal case, every DUI does not involve an administrative case. The administrative case will be discussed much further in Chapter 4.
DUI - Driving Under the Influence
Section 56-5-2930 and the statues surrounding that law cover most driving under the influence or “drunk driving” offenses. In short, it is illegal to drive any type of motor vehicle in South Carolina while under the influence of alcohol or drugs.
More specifically, the statute says:
“It is unlawful for a person to drive a motor vehicle within this State while under the influence of alcohol to the extent that the person's faculties to drive a motor vehicle are materially and appreciably impaired, under the influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person's faculties to drive a motor vehicle are materially and appreciably impaired, or under the combined influence of alcohol and any other drug or drugs or substances which cause impairment to the extent that the person's faculties to drive a motor vehicle are materially and appreciably impaired….”
In order for the state to be able to convict someone of DUI, they must be able to prove three elements:
- Driving
- While under the influence of drugs and/or alcohol
- Such that the person’s ability to drive was “materially and appreciably impaired.”
The last element, “materially and appreciably impaired” can be dangerous for defendants because it’s up to the arresting officer to make this determination. They can use any evidence of impairment that they see fit, including the results of your field sobriety tests, conversations with them, and more.
Legal Limit
There is no set “legal limit” in South Carolina, and most people are surprised to hear that. The determining factor is really whether you are “materially and appreciably impaired.” Everyone likely has heard about the .08% limit for alcohol, and that if you’re over that amount, it’s DUI or if you’re under that amount it’s not. That’s not really correct. It’s not a “litmus test” standard. For example, one person can be DUI with less than .08% and another person may not be DUI with over .08%. If anything, .08% is merely an “inference” that the person was impared. In general this means that a person at this level will be at a level of impairment sufficient to impact their ability to drive. There are other inferences that are created by statute that deal with the blood alcohol level. Section 56-5-2950(G) discusses those.
- .05% or less is “conclusively presumed that the person was not under the influence of alcohol.”
- More than .05% but less than .08%, “does not give rise to any inference that the person was or was not under the influence of alcohol, but .... may be considered with other evidence…”
- .08% or more, “it may be inferred that the person was under the influence of alcohol.
So what does that mean?
Well, this is where the danger comes in, because it’s up to the officer to make the determination initially as to whether someone is DUI or not. In most cases, law enforcement officers use field sobriety tests to help determine whether you are impaired such that they are going to charge the person with DUI.
I will tell you from experience representing many DUI clients, if there is any indication of impairment, the person is likely going to be arrested. Law enforcement will err on the side of arrest and let a court sort it out later.
What if a person blows a .00%?
Keep in mind, DUI’s don’t just involve alcohol. The Datamaster DMT or breath machine that is used in South Carolina only detects alcohol. However, a person can absolutely be impaired on another substance (non-alcohol) and fail the field sobriety test miserably yet, blow a .00%. In fact, this is rather common with DUIs where marijuana or prescription medications are involved. So just because a person blows .00% doesn’t mean the case will be dismissed. Remember, the prosecutor doesn’t have to prove impairment on “alcohol”, they can also prove impairment for any other drug, legal or not.
DUAC - Driving with an Unlawful Alcohol Concentration
Section 56-5-2933 states that it is against the law to drive a vehicle in South Carolina with a BAC (blood alcohol concentration) of 0.08% or more. We discussed the similarities of this charge at the beginning, and there is no real distinction between DUI and DUAC other than the name with regard to penalties.
If someone asked if a person had ever been convicted of DUI, the person could honestly answer “no” and it would be a truthful answer if they had instead been convicted of DUAC.
Realistically, however, the charge is used by prosecutors when there is simply no evidence of impairment and they want to prosecute the person anyway. If a prosecutor elects to proceed as a DUAC instead of a DUI, appropriate notice must be given prior to the trial.
In a trial for DUAC, the “impairment” element is removed from the charge and the only thing that is considered is if the person’s alcohol level was .08% or higher. I have seen this backfire on prosecutors because if the Datamaster DMT (breath) reading is suppressed, the case gets dismissed because there is no evidence that the person blew higher than a .08%.
Rarely is a person charged originally with DUAC. I have seen it happen, but generally a person will be charged with DUI and the officer or prosecutor may offer a plea to DUAC instead. There are times when a plea to DUAC as opposed to DUI may be beneficial but those cases are not all that common.
Potential Penalties for a Conviction
As mentioned, DUI and DUAC charges have the same penalties. Prior offenses make a huge difference in sentencing as does the level of alcohol.
10 Year Look Back Period
There is a 10 year “look back period” for previous DUI / DUAC driving offenses. This just means that the state looks at the previous 10 years to count the number of prior DUI / DUAC driving convictions.
For example, if you were convicted of DUI 12 years ago, but haven’t committed any offenses since then you will be looking at a 1st offense DUI. If you were convicted of a 1st offense DUI two years ago, you would be facing a 2nd offense DUI charge now. Likewise, if you pled to DUAC 5 years ago and received a new DUI, the DUI would be considered a second offense because of the prior DUAC. Prior offenses also include out-of-state convictions for similar offenses.
Chart of Penalties, Suspensions and Requirements
Below are the charges and penalties for DUI and DUAC charges in South Carolina. These DUI penalties are for lower level drunk driving cases, not those involving great bodily injury or death.
Charge of DUI or DUAC |
BAC Level |
Offense Classification |
Penalty (does not include court costs and assessments) |
Mandatory IID |
License Suspension |
1st Offense |
< .10% |
misdemeanor |
Fine = $400
OR
Jail = 48 hours to 30 days |
None |
6 months |
1st Offense |
.10-.15% |
misdemeanor |
Fine = $500
OR
Jail = 72 hours to 30 days |
BAC .15% or more requires 6 successful months |
Depends on BAC:
.10-.14% = 6 months
.15 % or more = indefinite suspension with IID |
1st Offense |
>.15% |
misdemeanor |
Fine = $1,000
OR
Jail = 30 to 90 days |
6 successful months to get license back |
Indefinite suspension |
2nd Offense |
<.10% |
misdemeanor |
Fine = $2,100-$5,100
AND
Jail = 5 days to 1 year |
2 years |
Indefinite suspension |
2nd Offense |
.10-.15% |
misdemeanor |
Fine = $2,500-$5,500 (can’t be suspended lower than $1,100)
AND
Jail = 30 days to 2 years |
2 years |
Indefinite suspension |
2nd Offense |
>.15% |
misdemeanor |
Fine = $3,500-$6,500 (can’t be suspended lower than $1,100)
AND
Jail = 90 days to 3 years |
2 years |
Indefinite suspension |
3rd Offense |
<.10% |
misdemeanor |
Fine = $3,800-$6,300
AND
Jail = 60 days to 3 years |
3 years |
Indefinite suspension |
3rd Offense |
.10-.15% |
misdemeanor |
Fine = $5,000-$7,500
AND
Jail = 90 days to 4 years |
3 years |
Indefinite suspension |
3rd Offense |
>.15% |
misdemeanor |
Fine = $7,500-$10,000
AND
Jail = 6 months to 5 years |
3 years - or If the 1st conviction occurs within 5 years then 4 years IID |
Indefinite suspension |
4th or Subsequent Offense |
<.10% |
felony |
Jail = 1-5 years |
Life |
Indefinite suspension |
4th or Subsequent Offense |
.10-.15% |
felony |
Jail = 2-6 years |
Life |
Indefinite suspension |
4th or Subsequent Offense |
>.15% |
felony |
Jail = 3-7 years |
Life |
Indefinite suspension |
Other Penalties and Consequences for DUI / DUAC Convictions
DUI and DUAC convictions can pack a serious punch. In addition to the potential jail time and fine, there are other penalties and consequences you will be facing if you are convicted. Sometimes, these consequences go undiscovered until it’s too late.
Let’s take a look at some of the additional consequences below.
ADSAP
If you are convicted of DUI, you will be required to complete the Alcohol and Drug Safety Action Program (ADSAP). It’s a substance abuse intervention program aimed at reducing the risk of committing another DUI in the future. The program involves many aspects, including assessments, education on alcohol abuse, intervention techniques, and treatment services.
Who pays for ADSAP? You do, and it can be from $500 to $2500.
SR-22 Insurance Certificate
After a conviction for DUI or DUAC, you will be required to have on file with the DMV a SR-22 certificate of insurance before you are eligible to drive. Essentially, this alerts the insurer that you are “high-risk”. As a result, your insurance premiums will likely increase tremendously.
Criminal and DMV Record
As with any charge, a DUI conviction will result in an arrest record that shows as a conviction on your criminal history. Likewise, your driver’s record will no longer be a short document showing a license renewal or maybe a speeding ticket. Instead, it may have quite a few entries about violations, convictions, suspension, etc.
Did You Know...?
A DUI conviction is not eligible for expungement and will remain on your arrest record long after it falls from your 10 year driving history.
Career and Future Opportunities
DUI convictions can affect your current and future employment, especially if driving a work vehicle is part of your job. I don’t need to go into too much detail to illustrate that if two employees of equal work ethic, training and history apply for a job, one has a DUI and the other does not. Who gets the job?
As a government contractor or government employee, a DUI conviction (or even a charge) can cause the revocation of the security clearance.
Costs
You’ve probably seen billboards that say a DUI can cost $10,000. This is accurate and may be understated. By the time you add court dates, fines, court costs, time missed from work, ignition interlock, ADSAP, insurance, and all the other things associated with DUI, I would say that it would actually exceed $10,000.
Felony DUI or DUI with Great Bodily Injury or Death
If you’re reading this article regarding a DUI with great bodily injury or death, feel free to keep reading, but I would encourage you to seek the services of an experienced DUI attorney. This article predominantly discusses lower level type DUIs, and with a charge involving a serious injury, the stakes are tremendously higher.
Charges for driving under the influence of drugs or alcohol when another person is either significantly injured or killed are called “Felony DUI” charges. “Felony DUI” is how the statute references Driving Under the Influence where Death Results or the lesser Driving Under the Influence where Great Bodily Injury Results. They are both contained in section 56-5-2945.
Felony DUI charges have an extra element that must be proven. That is, the state has to prove that the defendant “does any act forbidden by law or neglects any duty imposed by law.” This means that it is not a strict liability type crime in that if a person kills someone while DUI, it is not automatically a Felony DUI. For example, if a person is driving under the influence, and someone comes in their lane and dies in a car accident, it’s not necessarily Felony DUI. If on the other hand, the impaired driver drifted into the person’s lane, then it would be.
“‘Great bodily injury’ means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 56-5-2945(B). This sounds like the person would have to be severely injured, but in reality, the courts have interpreted great bodily injury to include things like a broken bone.
If the injury rose to the level of great bodily injury, the minimum sentence you could be facing is 30 days and up to 15 years in jail, plus a fine of $5,100 up to $10,100.
If death resulted from the DUI, the minimum sentence is 1 year and up to 25 years in jail and a fine of $10,100 up to $25,100.
As with other DUIs, the convicted person’s driver’s license will be suspended. An Ignition Interlock Device, (see Chapter 5 for more info), must be installed in the offender’s vehicle for 3 years in cases involving great bodily injury and 5 years for cases involving death. Additionally, no part of the mandatory minimum sentence may be suspended or probation given for that portion.