Breathalyzer Test: Do I Need to Consent To It?

South Carolina is widely considered among the states with the highest number of drunk drivers in the United States, with almost half of all fatal road accidents involving someone driving under the influence (DUI).

While driving after consuming alcohol is not considered a crime, it is illegal to drive when your faculties are impaired by a blood alcohol concentration over the safe limit. If a police officer has reason to suspect that a motorist is driving under the influence of alcohol, or if there has been an accident or traffic violation due to suspected drunk driving, they can stop the person and require them to take a breathalyzer test.

Have you ever been subjected to such a test? Even if you haven’t, you’ve probably heard about it. This is essentially a screening test that measures the concentration of alcohol in your breath. The process typically takes up to a minute, and the result belongs to one of four categories – “zero,” “pass,” “warn,” and “fail.”

If you fail this test, you will be required to perform a breath test at the nearest police station. However, this raises an important question—is it mandatory to consent to such a test? Should you hire an Orangeburg DUI lawyer? Read on to find out.

What Does the South Carolina DUI Law State?

From a legal point of view, the simplest answer to this is – yes. The State of South Carolina legally forbids driving with a blood alcohol concentration greater than 0.08%, with a 0.04% limit for those with a commercial driver’s license. For those under the age of 21, the limit is 0.02%.

As you might be aware, South Carolina has enforced an Implied Consent Law. According to this, “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 to determine 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…At the direction of the arresting officer, the person first must be offered a breath test to determine the person’s alcohol concentration.”

To paraphrase, if you are driving a vehicle, you have automatically consented to be tested for drugs and/or alcohol.

While the law is clear, you have the right to refuse such a test. However, if you do so, you will be charged with an implied consent violation. Therefore, it is advisable to consult a lawyer, typically one who specializes in DUIs, before making such a refusal.

This will help clarify whether the circumstances under which you were stopped were sufficient to warrant a breathalyzer test and, if so, the possible ways of defending your actions.

Breathalyzer test

Circumstances of Arrest

Standard arresting protocol stands, wherein the arresting officer must read you your rights and inform you about the possible penalties you might have to pay for refusing the test. The Implied Consent Law states that there must be some provision for recording the entire test for future reference. In the absence of such a video recording device, the test cannot be performed.

Moreover, a written copy of the law must also be provided in addition to verbally informing you about the same. The law also states that the test must be administered by a person who is appropriately trained and certified by the South Carolina Criminal Justice Academy.

If this is not followed, the test is considered to be invalid. The procedure for the test includes an “eight one-hundredths of one percent simulator test” before the actual test, the result of which must be between 0.076% and 0.084%. Additionally, if you are charged with an implied consent violation, you have the right to test your blood alcohol concentration at your own expense independently.

What Are the Consequences of Refusing Breathalyzer Test in Orangeburg, SC?

Depending on the circumstances surrounding the incident, there can be a wide range of consequences if you refuse a breathalyzer test. These are described in the South Carolina Code annotated 56-5-2951.

Typically, refusal would result in your license being suspended for six months. You are free to pursue the case in court in the meantime, provided you request a hearing within 30 days of the incident.

You can also apply for a temporary alcohol driver’s license during this period. If there is a record of similar refusals or if you have a recorded DUI conviction within the past ten years, the suspension period can be correspondingly increased.

Typically, this increased period is nine months for second-time offenders and a year for third-time offenders. Additionally, you can be asked to pay a fine of $400 and either receive a jail sentence of up to a month or be assigned a specified number of hours of community service.

If the suspension of the license is upheld at the hearing, you would be required to complete a term at the Alcohol and Drug Safety Action Program and would have the right to apply for a restricted license for a fee of $100. You would also have to carry SR22 insurance for three years or more following the suspension period.

However, the burden of proof at such a hearing would lie with the Department of Motor Vehicles and the arresting officer, meaning that they would have to provide relevant circumstantial evidence of drunk driving on the offender’s part. It is important to remember that this might include eye-witness accounts of passers-by, an official report, or video evidence, if available.

If you refuse to consent to a breathalyzer test, mainly if you are a repeat offender, ensure that you consult a qualified DUI attorney. A competent and experienced lawyer could successfully reduce your sentence or even dismiss the charges entirely.

Several states have enforced a no-refusal policy; while South Carolina is not one of these, refusing a breathalyzer test can result in various penalties and a lot of time spent in a courthouse. The best way to avoid this is to ensure that you never drive under the influence.

Get The Best Criminal Defense Lawyer in Orangeburg, SC

According to the National Highway Traffic Safety Administration’s 2019 report, drinking and driving kill one person every 52 minutes in the United States. This is an extraordinarily high figure and highlights the dangers of such an act. As is commonly said, “don’t drink and drive. Arrive alive.”

However, if you find yourself in one such situation, it is essential to consult an Orangeburg criminal defense attorney to represent your case best. Contact us today to learn more.