DUI CHARGES & PENALTIES
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:
- 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.
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|
Jail = 48 hours to 30 days
|1st Offense||.10-.15%||misdemeanor||Fine = $500|
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|
Jail = 30 to 90 days
|6 successful months to get license back||Indefinite suspension|
|2nd Offense||<.10%||misdemeanor||Fine = $2,100-$5,100|
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)|
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)|
Jail = 90 days to 3 years
|2 years||Indefinite suspension|
|3rd Offense||<.10%||misdemeanor||Fine = $3,800-$6,300|
Jail = 60 days to 3 years
|3 years||Indefinite suspension|
|3rd Offense||.10-.15%||misdemeanor||Fine = $5,000-$7,500|
Jail = 90 days to 4 years
|3 years||Indefinite suspension|
|3rd Offense||>.15%||misdemeanor||Fine = $7,500-$10,000|
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.
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.
SOBRIETY TESTING AND DUI ARRESTS
The incident generally begins by either being pulled over or stopped at a checkpoint. In either case, the officer may claim to smell alcohol, ask where you’re coming from or notice some indication of possible impairment. At that point, he or she is going to focus on investigating whether you were impaired while driving a vehicle.
THERE ARE THREE MAIN WAYS THIS WILL HAPPEN:
- Field sobriety tests
- Testing of your breath, blood, or urine.
First the officer will usually begin by simply asking, “have you had anything to drink tonight?”. Regardless of the answer, the next question is usually, “Do you mind doing some tests for me so that I can make sure you’re ok to drive home?” And my favorite question of all time is, “on a scale of 1 to 10 with 10 being the most drunk you’ve ever been, where would you rate yourself? Please don’t answer this question. Almost everyone answers with a “4”!!! – You may as well say, hey officer, I’m only half lit!
Standardized Field Sobriety Tests
You will be asked if you will consent to field sobriety tests in South Carolina. This means that you can choose to accept or refuse the test. Realistically, if you refuse to do the test, you are getting arrested for DUI. But guess what, if you do the tests, you better nail them because you’re likely going to jail for DUI anyway.
If you agree to the tests, you will likely be asked to perform the three tests below:
- Horizontal Gaze Nystagmus
- Walk and Turn
- One Leg Stand
These tests come from the National Highway Traffic Safety Administration (NHTSA) and are what are considered the “Standardized Field Sobriety Tests” or SFSTs. If you choose to perform the tests, remember they are “divided” attention tests. This means that part of the tests is to follow the instructions as well as perform the tasks.
You generally get one shot at the instructions and will ever only get one shot at the test. I say this because if you mess up and try it again, you can rest assured that the prosecutor will use both “performances” of the test against you. If you do well the second time, they will say you practiced and that the tests lose effectiveness after multiple attempts.
The tests are difficult to perform for almost anyone except maybe a middle school ballerina, and it’s doubtful the middle schooler would be able to follow the instructions. Try them at home when you’re perfectly sober.
HORIZONTAL GAZE NYSTAGMUS
The HGN test is commonly known as the “eye test” or “pen test.” You’ve probably seen this one where the officer holds up a pen and asks you to follow it with your eyes as he moves the pen from side to side. There is actually a lot more to it, but basically the officer is looking for signs that the eyes are moving involuntarily which indicate the person may be too imparied to drive.
More specifically, the officer will ask the person to “turn and face me, put your feet together with your hands down by your side. Follow the pen with your eyes only and don’t move your head.” The officer will then do several quicker passes with the pen looking for “equal tracking” of each eye. The officer should then slow down and check each eye for the three clues in each eye.
The NHTSA claims this is “the most reliable field sobriety test” however, the accuracy is disputed by their own documentation. On Session 7, page 9 of 39, they discuss the test as being “88% accurate at detecting subjects at or above 0.08 BAC.” However, on Session 8, page 8 of 95, the test diminishes to be “77% accurate”. In other words, the test gets a C+ or possibly a B+ depending on the grading curve.
Regardless, there are 6 clues that law enforcement looks for; three clues in each eye. The three clues used for each eye are as follows:
- “smooth pursuit”, meaning no jerking as the eyes move from side to side;
- “distinct and sustained nystagmus [jerking] at maximum deviation”, meaning that as the eye moves out as far as it will go and is held for at least 4 seconds, is there involuntary jerking of the eye.
- “Onset of nystagmus prior to 45 degrees”, meaning that as the eye is brought to the far left or right, does the eye start jerking prior to reaching 45 degrees?
WALK AND TURN
This test seems pretty simple, but there’s actually a lot to it. The officer begins with some instructions that include something like this.
“Place your left foot on the line. Place your right foot on the line ahead of the left foot, with the heel of your right foot against the toe of the left foot. Place your arms down at your sides. Maintain this position until I have completed the instructions. Do not start to walk until told to do so. Do you understand the instructions so far?
When I tell you to start, take nine heel‐to‐toe steps on the line, turn, and take nine heel‐to‐toe steps down the line. When you turn, keep the front (lead) foot on the line, and turn by taking a series of small steps with the other foot, like this. While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud. Once you start walking, don’t stop until you have completed the test. Do you understand the instructions?” NHTSA 2018 sfst manual, session 8, pg 64-65
It sounds pretty easy, but what is never told to the person is that it’s something called a “divided attention” test. This means that part of the test is not really the performance, but also following the directions to the letter.
During the first part of the test, the officer tells the person to stand with one foot in front of the other, heel touching toe, and hands down by their side. Remain in that position until I have completed the instructions. If at any point, the person breaks away, or moves out the way when the officer is demonstrating the test or does anything other than stand there with one foot in front of the other, that is considered a clue of impairment – no matter how well the test is performed.
They are looking for a series of clues that include:
- Fails to hold position or maintain balance during instructions.
- Starts the test too soon.
- Stops while walking.
- Does not touch heel to toe.
- Steps off line.
- Uses arms for balance.
- Improper turn.
- Incorrect number of steps.
Sound nerve-racking? Don’t mess up, if you do, you’re going to jail. I don’t know anyone who routinely walks around heel to toe. Certainly no one drives this way. Nonetheless, it is one of the tests that is used to determine if a person is competent to drive.
ONE LEG STAND
This test is also a “divided attention” test but is much simpler in instruction than the walk and turn. The officer begins with some instruction that may sound something like this:
“Please stand with your feet together and your arms down at the sides, like this. Do not start to perform the test until I tell you to do so. Do you understand the instructions so far?
When I tell you to start, raise either leg with the foot approximately six inches off the ground, keeping your foot parallel to the ground. Keep both legs straight and your arms at your side. While holding that position, count out loud in the following manner: ‘one thousand one, one thousand two, one thousand three,’ and so on until told to stop. Keep your arms at your sides at all times and keep watching the raised foot. Do you understand?” NHTSA 2018 sfst manual, session 8, pg 75-76
For some reason it is not protocol to tell the person how long this test is to be performed. However, the manual states that the person should perform the test for 30 seconds.
The officer is looking for the following clues:
- Sways while balancing
- Uses arms for balance
- Puts foot down (even one time)
According to NHTSA, the officer “will accurately classify 83% of the people [tested] as to whether their BAC’s are at or above 0.08.” As an aside, I’d encourage you as a reader of this article to get 10 people together who have had absolutely nothing to drink. See if 8 of the 10 can perform this test without exhibiting 2 or more clues. Remember, no practicing ahead of the test and you only get one shot at it.
The other sobriety test that will happen in almost all DUI cases, is that the officer will offer a “Breath” test. The person is taken to the police station or jail where the Datamaster DMT is located. At that point, the person should be informed that they are being video recorded and read the implied consent advisement. The person can then refuse or agree to provide a sample. The machine takes the breath sample and renders a number indicating the amount of alcohol in the blood. For a more thorough discussion on breath tests and the administrative case, see Chapter 4.
Blood and Urine Tests
You will not be asked to submit to a blood test for alcohol in your system during most DUI arrests unless the officer suspects that the impairment is caused by a drug, or possibly if you are charged with Felony DUI. You do have the right to request one independently and the officer must facilitate that request. In order to get a blood test though, you have to provide a breath sample to the state.
If the police officer suspects you are under the influence of something other than alcohol, like drugs, you can be asked to submit to a blood test. Just as with breath test results, your blood or urine test can be used against you in criminal court.
Did You Know…?
You don’t have to consent to field sobriety tests or a breath test.
GETTING OUT ON BOND
If you were arrested for DUI the next hurdle to overcome is getting out of jail. Chances are, you will spend the night and have a bond hearing the next morning. Once you get bail set, then you can be released.
A bond hearing is a hearing to determine the amount of bail you will have to pay if any, and is the first major step in the process after your arrest. At this hearing the judge will consider your charge and a number of other factors to determine whether you will be given a Personal Recognizance (PR) Bond or otherwise. If you don’t get a bond, or if your bond is set too high, then you will be forced to sit in jail until your criminal case is resolved or you get a reduced bail amount or some other reconsideration. Everyone is entitled to a bond hearing after their arrest.
TIME FOR BOND HEARING
The general rule is that your bond hearing will take place within 24 hours after your arrest. As an aside, many authorities say 48 hours to receive a bond hearing, however this is incorrect. Under US Constitutional law, a state must conduct a bond hearing within 48 hours, but in South Carolina, “a person charged with a bailable offense must have a bond hearing within twenty-four hours of his arrest and must be released within a reasonable time, not to exceed four hours, after the bond is delivered to the incarcerating facility.” See Section 22-5-510(B).
DETERMINING WHETHER TO GRANT A BOND
The judge presiding over your bond hearing can use any information he or she deems necessary to come to a decision. The main factors that are used are:
- Is the defendant a flight risk?
- Does the defendant live in the community or have ties that keep him here?
- If the defendant is a threat to the community?
- If the person is released is there a significant threat to the public?
- How bad is the crime charged?
- Does he have a significant prior record?
AMOUNT OF BOND
If a PR bond is not given, the bail amount on a DUI first offense charge cannot be any higher than the amount of the fine with costs and assessments applied. See Section 22-5-530(A). However, on a second offense or greater or on a Felony DUI offense, that restriction to the bail amount does not apply.
Oftentimes on a first offense DUI, the court will give a person a PR bond especially if the person has no prior record.
Types of Bail Bonds
There are several types of bonds a judge can order that can be posted if necessary. Some of them may require a bail bondsman and some do not. A bondsman can help you in the event that you are ordered to come up with an amount that is more than you can cover on your own.
PERSONAL RECOGNIZANCE BOND
This is the only type of bail bond that doesn’t require paying any sum of money to get out of jail. Personal recognizance or “PR Bonds” are clearly the preference if someone is in jail. If a person is given a PR bond, the person will be released without further action from the accused or his/her family. If the person fails to show up for court, the court could “estreat” or initiate legal action to require the person to pay the amount of the bond to the court. This would be extremely rare for a PR bond. Realistically, if the person didn’t appear for court, the person would be tried in their absence in magistrate or municipal court. However, for a DUI second offense or higher, a bench warrant would be issued and the person would be put back in jail.
If a cash bond is ordered in your case you will have to pay to the Clerk of Court the full amount of the bond set by the court. The benefit of this type of bond is that once the case is resolved, you get all of your bail money back.
CASH PERCENTAGE OF BOND
This type of bond means that the defendant will have to pay a percentage (usually 10%) of the bond amount to the Clerk of Court. If the terms of the bond are violated, the court can take assets that total the full amount of bond.
A surety bond or “professional surety” is simply an insurance policy. This type of bond requires you to pay a bail bondsman or “surety” who in turn signs a document that says if you don’t show up for court, they are going to be responsible for the full bond amount. The benefit is that a person can get released without paying the full amount of the bond and oftentimes, a bondsman will accept payments. The downside is that the money paid to a bondsman is not returnable, and if you don’t show up to court, the “bounty hunter” will certainly be looking for you.
Did You Know…?
You don’t always have to hire a bondsman to be released from jail.
THE ADMINISTRATIVE CASE
The administrative case is the portion of a DUI case that challenges the license suspension for either the refusal to provide a breath sample or providing a breath sample of .15% or greater.
If your license is suspended, requesting an administrative case gives you the right to get a “Temporary Alcohol License” until the case can be resolved. This will be discussed further, below.
The administrative case deserves a separate chapter and likewise could have a place as a separate “complete guide.” As mentioned in Chapter 1, the administrative case is completely separate from the criminal case. You received many pieces of paper but two of them are very important. 1.) The ticket or warrant, which is the charging document for the criminal case, and 2.) the Notice of Suspension (shown below), which is the document that initiates the right to an administrative case.
Notice of Suspension
The two cases are connected only in fact, meaning that they are based on the same incident. However, the outcomes of the two cases are completely unrelated. You could win the administrative case and be convicted of DUI; you could be found not guilty of the DUI and still lose the administrative case; or win or lose both!
Breath Testing and the Implied Consent Statute
South Carolina uses the “Datamaster DMT” as its breath testing device of choice. There is no roadside breath testing (despite the pictures on the road signs). The Datamaster is a very technical machine that takes “alveolar” or “deep lung” air and measures the alcohol in that air. It then performs a calculation to convert the “Breath alcohol” into “blood alcohol concentration (or content)” or “BAC”. Because it’s quite complicated, it is subject to interference and error.
For the most part, the breath test is at the heart of the administrative case because either a refusal or a high BAC is usually the basis for an administrative suspension.
You can either consent to providing a breath test or you can refuse. A refusal can also come in the form of a passive failure to provide a sample. If you refuse to provide a breath sample, the officer by statute, should issue you a notice of suspension right then and there. That is the blue piece of paper, pictured above, that notifies you that your license has been suspended. The suspension could last anywhere from 6 months to 15 months depending on any prior DUI or DUAC convictions in the last 10 years. (See Chart below)
Also, if you refuse to provide a breath sample, the prosecutor will use that against you in your DUI trial. This practice is constitutionally questionable and has successfully been challenged in Georgia.
The reason a suspension can be imposed for refusing to provide incriminating evidence, is because of the “implied consent” law that exists here in South Carolina, and almost all states if not all of them. When you drive a motor vehicle in this state, you agree that if you are requested to provide a breath or blood test, you will do it. If not, your license will be suspended.
PROVIDING A SAMPLE
If you consent to providing a breath sample, and your BAC reads less than .15%, your license will not be suspended at all as it relates to the administrative case. It would get suspended later if you were ultimately convicted of DUI or DUAC. If, however, it reads .15% or more your license will be suspended for at least 1 month. Additionally, if the reading is .08% or more, the reading will likely be used against you as evidence during your criminal prosecution for DUI – If it’s less than .08%, I’m willing to bet the prosecutor won’t use it!
As a summary, a breath test of:
- More than or equal to .15% = at least 1 month suspension
- Less than .15% = no suspension
- Refusal = at least 6 month suspension
Suspension Periods for Implied Consent Violation
Here is a chart that sets out the possible suspension period you will be facing:
|Prior Convictions During Past 10 Years||License Suspension Period for BAC of .15% or higher||License Suspension Period for Refusing the Breathalyzer|
|0||1 month||6 months|
|1||2 months||9 months|
|2||3 months||12 months|
|3||4 months||15 months|
How do you get a license back?
REQUEST AN ADMINISTRATIVE HEARING AND GET A TEMPORARY ALCOHOL LICENSE (TAL)
If you refused to blow or blew a .15% or higher there are steps you can take to get back on the road at least temporarily while your case is pending. Unless you have an out of state license, the officer should have taken it at the time of your suspension. On the back of the blue Notice of Suspension that would have been provided to you, is the way to request an administrative hearing. You only have 30 days to return it to the SC Office of Motor Vehicle Hearings. If you wait longer than 30 days from the date of suspension, you will lose the opportunity to challenge the suspension.
The hearing request requires a $200 fee, but it gives you the ability to get a Temporary Alcohol License and drive until the hearing officer can make a determination as to whether the license was appropriately suspended or not. If you are successful at the administrative hearing, you get your regular license back. If you are not, the suspension will be upheld and will go back into effect at that time.
Once the administrative hearing is scheduled, you have the option to get a Temporary Alcohol License (TAL). It will cost you an additional $100 at the SCDMV and is valid from the time you get it until shortly after the time a decision is rendered by the Administrative Hearing Officer. It is unrestricted, meaning you can drive whenever you like. (See also Chapter 6, Alternative License Types)
THE ADMINISTRATIVE HEARING
In South Carolina, the administrative hearing is also sometimes called a “contested case hearing”. The hearing is conducted by a DMV hearing officer. That person hears from the witnesses in the case which generally is the arresting officer and the Datamaster operator if that is not the same person. The officer will present the case to the hearing officer as to probable cause for the arrest, and the providing or refusing to provide a breath sample. The officer is subject to cross examination during those hearings by your attorney or you, if you are representing yourself.
The hearing is limited by section 56-5-2951 to whether the arrested person:
- 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
- [the] machine was working properly.
The officer or someone capable of testifying within the rules must be present to testify in order to uphold the administrative suspension. It is the state’s burden of proof (responsibility) to show that the license suspension was appropriate and if they cannot demonstrate that, then the suspension will be set aside and the person’s license would be reinstated.
WHAT IF YOU LOSE THE ADMINISTRATIVE HEARING
If a hearing is not requested or if a hearing is requested and the suspension is upheld, you will have to:
- Enroll in ADSAP and;
- Undergo the Suspension OR
Get an IID License or other available alternative license type (See Chapter 6)
Did You Know…?
You may be able to get back on the road after a DUI arrest even while your criminal case continues.
IGNITION INTERLOCK DEVICES
History of IID in South Carolina and Emma’s Law
The DUI reform of 2014, or “Emma’s Law” was named after Emma Longstreet, a 6 year-old-girl that tragically lost her life in Lexington, South Carolina in 2012. Emma was riding in a car on the way to church with her parents and three brothers on New Year’s Day when they were hit by a drunk driver who ran a red light, killing Emma.
Emma’s parents, David and Karen Longstreet were devoted to changing South Carolina’s broken DUI laws that made it easy for repeat offenders to offend again. In 2014, Governor Nikki Haley signed into law new requirements for DUI offenders, most notably being the Ignition Interlock Device program.
Changes to the IID Requirement
Under the new law, all people convicted of DUI or DUAC, who were found to have a BAC of .15% or more on a first offense are required to have ignition interlock devices installed in their vehicles for at least 6 months. On subsequent offenses, the law made IID mandatory, and the required time periods much longer if the person had prior DUI convictions on their criminal record.
In addition, offenders who are facing their first DUI charge who had a BAC of .08-.14% at the time of their arrest may have the option of installing an IID in the vehicle in lieu of having their license suspended. If there is no recorded BAC, meaning the person refused or the machine was unable to produce a reading, then there is no requirement to install an IID. These offenders do, however, have their licenses suspended for 6 months with the option of ending that suspension by installation of the IID.
Another important change was who pays for the Ignition Interlock Device. Under Emma’s Law, the cost of the IID falls on the offender who needs to have it installed. Those costs include the installation and monthly fees associated with monitoring the IID. Generally, IID companies charge about $100 to $200 for installation with around $100 per month or less in monitoring and maintenance fees. There is a provision to apply for assistance if the person is indigent.
What is an Ignition Interlock Device?
An ignition interlock device or IID is a small device that is installed in the vehicle and connected into the ignition system. Before the vehicle will start, the person must blow into the device and register a breath sample below a preset value. In South Carolina, that value is .02% BAC. If the person has been drinking, the device will not allow the vehicle to start. If the sample is acceptable, the vehicle will start. After a period of time, the system will require a “running retest,” meaning that the driver will be asked to provide another sample.
A photo is taken of the person providing the sample to ensure that the device is not being manipulated or that someone else is not providing the sample.
The device must be installed by vendors approved and certified by the Department of Probation, Parole and Pardon Services (DPPPS). The current list of certified vendors are Guardian, LifeSafer, Intoxalock, and SmartStart. After installation, the device must be inspected every 60 days.
How Long is IID required?
Exactly how long you have to have the IID installed in your car depends on which DUI offense you are convicted. Your blood alcohol content (BAC) and the number of prior offenses also go into calculating the time requirement.
The IID requirements are listed above in the chart of penalties for a conviction, but I will include them below as well.
IID Requirements Chart after DUI / DUAC conviction:
DUI or DUAC
|%BAC||Duration of Mandatory successful IID|
|1st||Less than .15%||No mandatory period / IID is optional|
|1st||.15% or greater||6 months|
|3rd||any||3 years / or 4 years if 1st DUI / DUAC was within 5 years.|
|4th or Subsequent||any||Life|
|Felony DUI – Great Bodily Injury||any||3 years|
|Felony DUI – Death||any||5 years|
Most DUI offenses are first offense DUI charges. So let’s look at an example. If a person is convicted of DUI 1st, and they refused to provide a breath sample, there would be a 6 month optional period of IID. It’s optional in that the person could just undergo the suspension period and not get the IID license. After 6 months, the suspension would end and the person would be eligible for reinstatement of their license.
Can You get Ignition Interlock for Part of the Suspension Period?
There is a requirement that you cannot go back and forth between the suspension and the IID. If you choose to get the IID installed and get the IID license, then you have to stick with the IID from that point until the suspension period is complete. You can choose to get the IID license part of the way into the suspension, but you have to keep the IID for at least 3 months. For example, if you have a 6 month administrative suspension, you can choose to end the suspension at month 5, but you will have to keep the IID installed and the IID license for at least 3 months to get a regular license back.
Can you drive a Company Vehicle if I have an IID license?
Yes. Section 56-5-2941(L)(1) clearly states “a person who is required in the course and scope of the person’s employment to drive a motor vehicle owned by the person’s employer may drive the employer’s motor vehicle without installation of an ignition interlock device, provided that the person’s use of the employer’s motor vehicle is solely for the employer’s business purposes.” Obviously, your employer needs to be ok with the arrangement, but there is nothing illegal about driving a company vehicle “solely for the employer’s business purpose.”
Violations of the Ignition Interlock Device Program in SC
There are criminal penalties and a point system if you violate the terms of the IID program. There are many ways you could do this and each has its own set of penalties. They are listed below.
|Charge / Violation||Offense||Penalty||Felony / Misdemeanor||Points||IID Extension|
|Driving w/o IID||1st||At least $1000 or up to 1 year.||Misdemeanor||0||6 months|
|Driving w/o IID||2nd||At least $5,000 or up to 3 years||Misdemeanor||0||1 year|
|Driving w/o IID||3rd or Sub||At least $10,000 or up to 10 years||Felony||0||3 years|
|Tampering with IID||Up to $500 and/or 30 days||misdemeanor||1.5||–|
|Asking another to Blow into or Blowing into another’s IID||Up to $500 and/or 30 days||misdemeanor||1.5||–|
|Allowing IID Required Driver to Use Vehicle without IID||Up to $500 and/or 30 days||misdemeanor||1.5||–|
Point system for IID in South Carolina
|Failure to have Calibrated every 60 days||1 point each violation|
|Failure to provide a running retest||1 point each violation|
|Running retest of >.02% to <.04%||0.5 points each violation|
|Running retest of .04% to <.15%||1 point each violation|
|Running retest of >.15%||2 points each violation|
|Tampering or allowing other to Activate||1.5 points each|
What do the IID Points Mean?
There is a cumulative point system associated with the IID program. This means that the points accumulate during the duration of the program and a suspension, extension or additional requirements may result from too many points.
|Points||Extension||Substance Abuse Treatment Required?||Suspension|
|2 – 2.5||2 months||No||No|
|3 – 3.5||4 months||Yes||No|
|4 or More||none||Yes||6 months|
Did You Know…?
Ignition Interlock Devices may be required even on a DUI 1st offense.
ALTERNATIVE LICENSE TYPES
I don’t think anyone really realizes how important their driver’s license is until they no longer have one. Getting charged with a DUI involves at least the threat of losing your license in every case. If you’ve started from the beginning of this article, you know that there can be a license suspension for either the administrative case (implied consent suspension) or for the criminal case (the actual DUI charge).
If you lose your license, there are still some options available to get a valid license back. Those options include:
- Temporary Alcohol License (TAL)
- Route Restricted License
- Ignition Interlock Device License (IID License)
- Provisional License
Temporary Alcohol License
A temporary alcohol license is available only for people who have requested an administrative hearing within the 30 day period. The thought process is that a driver is entitled to some sort of due process or quasi-judicial proceeding to determine if a suspension was properly imposed. This license allows the person to drive between the time of the request for a hearing and the time the decision is made as to whether the suspension should be upheld.
In order to get a TAL, the administrative request must be sent to the DMV office of Motor Vehicle Hearings with a $200 money order. When the hearing is scheduled, you can go to the DMV, pay $100 and get the TAL. It looks like a regular license, but it says “Temporary Alcohol License” at the top.
There has been some suggestion from colleagues that the TAL allows a person to only drive in South Carolina. I have seen no authority for that limitation and in fact the statute says that “the temporary alcohol license allows the person to drive without any restrictive conditions pending the outcome of the contested case hearing….” Section 56-5-2951(B)(1).
Route Restricted License
Another way to be able to drive is to apply for a South Carolina Route Restricted License. This option is available for people who may have missed the deadline to apply for a TAL or simply don’t want to request an administrative hearing.
This license allows a person to drive only “to and from work and his place of education and in the course of his employment or education during the period of suspension. The restricted license also permits him to drive to and from Alcohol and Drug Safety Action Program classes or a court-ordered drug program.” Section 56-5-2951(P).
Notice that it allows the person to drive “in the course of his employment”. This means that if you are driving a company vehicle, the restrictions don’t apply to you as long as you are operating in furtherance of the employment.
The person applying for the license must show “that he lives further than one mile from his place of employment, place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program.” Section 56-5-2951(P). If the person is unsuccessful in completing ADSAP, the license is no longer valid.
It’s also important to note that the person applying must be a US citizen or permanent resident, it is valid for non-commercial vehicles (no CDL) and a person may only get one route restricted license during their lifetime.
Ignition Interlock Device (IID) License
Another way to end a suspension is to get an ignition interlock license. In certain situations, an IID is mandatory in order to get a license. However, one of the options to end an administrative suspension or a suspension after a DUI conviction is to get an IID License. This requires an ignition interlock device to be installed on your vehicle by an approved vendor. Installing the IID and getting the license will end the suspension and allow you to drive the vehicle. It also allows you to drive a work vehicle without having the device installed as long as you are driving for work-related purposes. See Chapter 5 for a full discussion on ignition interlock devices and licensing.
You would only want to apply for a provisional license in South Carolina if you are convicted of DUI or DUAC. A provisional license allows for a 6 month license if your BAC was .14% or lower. There is a $100 fee to the DMV for a provisional license, and you must have had no other suspensions unless they were related to the same DUI / DUAC charge. A person can get one provisional license during their lifetime.
A provisional license is NOT available if you did not provide a breath sample. There has been much discussion over this and some confusion among attorneys. However, the statute makes clear that [i]f a person is found to have refused to submit to a breath test … and is convicted of [DUI or DUAC], the person’s driver’s license must be suspended…. The person is not eligible for a provisional license ….” Section 56-5-2990(A)(2)(a).
Did You Know…?
There are alternative licenses available that allow you to drive after a DUI suspension.
South Carolina is unique in that this state requires a video of both the roadside and breath testing procedure. A DUI guide on South Carolina law would be incomplete without mentioning the state’s video requirements. Failure of Law Enforcement to provide a video complying with the requirements of the law could result in a dismissal of your case.
This law has gotten a lot of negative feedback from DUI groups because of the large number of DUI cases that get dismissed because of law enforcement’s failure to comply with the clear terms of the statute.
On the other hand, and what none of the DUI activist groups mention, is that when law enforcement officers do comply with the statute, the person being charged can be tried on the actual facts of the case.
If a jury looks at the video and sees that the person is intoxicated and impaired, there will likely be a guilty verdict. However, for a person charged with DUI, the video requirement can certainly work in their favor if law enforcement does not comply.
The basic rule of the video requirement is that the arrest has to be videotaped from the time the police officer’s blue lights turn on to the end of the arrest and through the breath testing procedure. There are some growing exceptions, some of which we will cover below.
The videotape is usually generated from the police car’s dash cam, but can be satisfied by the officer body camera or a combination of the two. The video or videos are provided during the discovery process of the case.
What does the video have to show?
The SC Videotaping statute for DUI cases is Section 56-5-2953. It requires that a person charged with DUI or DUAC “must have his conduct at the incident site and breath test site video recorded.”
The video recording at the incident site must
- not begin later than the activation of the officers blue lights
- Include any field sobriety tests administered
- Include the arrest of the person or probable cause determination
- Show the person being advised of his / her Miranda Rights
At the Breath testing site, the video must include:
- the entire breath test procedure
- The person being informed that he/she is being video recorded
- The person being informed that he/she has the right to refuse the test
- Include the person taking the test or refusing to take the test.
- Include the actions of the breath test operator during the test
- Show the person conduct during the twenty-minute observation period
Exceptions to the Video Requirement
There are some exceptions that do apply. If for example the person is involved in an accident, the videotaping must begin “as soon as practical.” Further, if a recording system messes up, the officer can submit an affidavit containing certain things to prevent a dismissal.
It is important to note that the lack of a video of your DUI arrest will not automatically get your charge thrown out. Courts in South Carolina have gotten increasingly strict in interpreting this statute preventing the dismissal of cases that would have been dismissed just several years ago.
There is much written in law books and there are many cases that interpret the statute dealing with the videotaping requirement. This is where it is imperative to have a qualified and capable DUI attorney represent you and review your evidence to see what can be used to minimize the effects of the DUI.
Did You Know…?
SC Law requires the officer to produce a video in almost all DUI cases!
FINDING AN ATTORNEY
If you’ve been charged with driving under the influence in South Carolina I can’t stress enough how important it is to find a qualified attorney–and not just any attorney. Because of the complexities involved in DUI cases you want an attorney who has experience in routinely representing people facing DUI charges in SC.
And while no ethical attorney can or should guarantee results, what they can do is decrease the probability of a negative outcome and increase the probability of a more positive outcome.
In other words, they can help tip the scales in your favor given the circumstances surrounding your case.
What if you just plead guilty and get it over with??
I know from years of representing many people charged with DUI, that it’s tempting to just plead guilty and get it over with. The problem with this logic is that a DUI is not a one-and-done process. The real consequences begin after trial.
For example, you will likely have to pay the fine, do ADSAP, undergo the suspension period, deal with your increased insurance rates, potentially lose your job and on and on and on. I know that these penalties can put a pretty big strain on most relationships and many other parts of your life.
So what should you look for in an attorney?
We’ve identified 5 key areas that you want to pay attention to when pre-qualifying DUI attorneys in SC.
1. Easy to contact
An attorney’s office should be answering the phone during normal business hours. If not, there should be someone calling you back within at least several hours. In addition, there should be alternative methods to contact as well such as email, text, client software, etc.
DUI work is intensive which is why a dedicated attorney surrounds him or herself around a well-trained dedicated staff.
A dedicated well-trained staff not only supports the attorney, but in many cases acts as an extension of the attorney by guiding you through the licensing process, keeping you informed of dates and procedures, and answering many non-legal questions.
Most importantly they free up the attorney’s time to focus on building your defense.
It would be unreasonable to suggest that even the best DUI attorneys will know every answer to every question you have.
Situations arise with out-of-state licenses and unique unforseen twists that occur in certain cases that simply require some research.
However, if you were pulled over for swerving and this is your first DUI and you provided a breath sample, there should be very little research needed to answer your questions.
4. Available Technology
In general technology makes life easier for everyone involved. This is especially true when it comes to building a timely defense for your case.
DUI cases involve a lot of documentation and video recordings that you may need to review. Your attorney should embrace technology in such a way that makes it quick and easy to share these documents and videos with you for immediate feedback.
Not to mention, they should have an automated system that sends out reminders, provides you online access to billing and contains other critical information–all of which keeps you informed at all times.
The attorney should be reasonable in price and mindful of how you are treated during your discussions. They should be a good listener, be compassionate, and be open and upfront about the circumstances surrounding your case so that you are empowered to make an informed decision.
Who to eliminate as your potential DUI Attorney
If any of the following apply, immediately scratch them off your list.
1. The attorney promises a dismissal or particular outcome.
No legitimate attorney can or should promise an outcome and if they do they’re violating ethical rules as defined by the SC bar.
Sure, they may have an idea of how your case may turn out based on previous cases they’ve handled but do yourself a favor and steer clear of any attorney who promises an outcome. Otherwise you’ll likely be setting yourself up for disappointment.
2. The attorney can’t give you a set fee.
You should know how much this is going to cost you up front. Criminal cases are based on a fixed rate, and if the attorney can’t give you one then it’s time to go in a different direction!
3. The attorney cuts their fee to get your business.
It sounds like they may be doing you a favor here by reducing their fee to help you out and getting your business instead of you going to another attorney. They are doing you an extreme disservice. By cutting their fees, this should signify to you that they can’t get enough business by charging their normal fee. Now you’ve paid them less than someone else. It’s going to be the person who paid the full fee that gets the full service. By reducing the fee, they are effectively reducing the service to you.
4. If you receive an unsolicited call from the attorney or anyone else you are not personal friends with telling you to hire that attorney.
This is absolutely 100% unethical and the attorney should be reported to the bar.
5. If you get a letter from the attorney that doesn’t strictly comply with the advertising rules prescribed by the Supreme Court.
This too is unethical and the attorney should be reported.
How to Find a DUI Attorney in SC
Finding an attorney is really not all that difficult, but you do want to make sure they are qualified and competent to handle DUI cases. While the attorney who did your real estate closing is qualified, he or she is doubtfully competent or experienced in DUI cases and is likely not the person you want to hire for your DUI.
1. Ask people you trust if they have a recommendation for you.
The first step is to ask your friends and family if they know of an attorney you should contact. You probably know someone who had a DUI. The people who are closest to you are a good starting point. How did it work out for them? Were they satisfied with the result? Was the attorney responsive?
After you compile your recommendations, check out the attorneys. This is easily done by getting online and looking up their websites. You can tell a lot about an attorney from their website and online client reviews.
2. Schedule a consultation.
In most cases, criminal consultations are free of charge. That means that there is nothing holding you back from finding the attorney that is right for you. Will the attorney talk to you on the phone? How difficult are they to get in touch with?
4. Compile a list of questions.
Don’t go into an in person or phone consultation with an attorney empty handed. Before you get there make sure you set aside some time to come up with a list of questions you want to ask him or her. Once you are there and get to talking you may not think of all the things that you wanted answers to. Don’t be embarrassed to read straight off the list. The attorney will only appreciate how serious you are taking it. Can he or she answer the questions you’ve asked or are they unsure?
5. Think about your goals.
Your number one goal is most likely to get the charge against you dropped. That’s everyone’s wish! Make sure you take the time to prioritize what you want to work towards. Is it the financial situation that is the biggest concern? Jail time? How a charge or conviction will affect your employment? If you think about these things ahead of time, and write down your biggest priorities it will make a big difference. The attorney you meet with can go over what can be done to work in the right direction and what options are out there to help you get there.
6. Make a decision on who to hire.
You need to consider everything, including what each attorney charges. One of the most important concerns on your mind is money and that is completely understandable. Attorneys all have different rates, and many offer payment options that could ease the stress of the financial burden.
Also factor in which attorney you got along with the best. You will be spending a good deal of time communicating with this person, and you want it to be the best experience possible. Depending on the details of your case, you may need to discuss sensitive topics and you want to do that with someone you feel like you know, like, and trust.
Last but not least, if you’ve already done your research and you’re ready to speak with a qualified DUI attorney who routinely represents people facing DUI charges then feel free to give me a call at 843-376-5524 or click here to send me an email. Your consultation is free and there are no obligations.
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