Refusing the Standardized Field Sobriety Tests (SFSTs) and/or Breathalyzer
The State will lack direct, quantified evidence of your impairment and your alcohol concentration (such as a specific blood alcohol content reading) when it has to prove beyond a reasonable doubt your impairment or alcohol content.
DUI Procedures and Chemical Testing Options
Under South Carolina's implied consent law for motor vehicles, if you are arrested for DUI, you will first be offered a breath test to determine your alcohol concentration S.C. Code Ann. § 56-5-2950, Sanders v. S.C. DMV, 431 S.C. 374.
Breath Test Exceptions: If you are physically unable to provide an acceptable breath sample due to an injured mouth, unconsciousness, or any other reason deemed acceptable by licensed medical personnel, the arresting officer may request a blood sample S.C. Code Ann. § 56-5-2950, Sanders v. S.C. DMV, 431 S.C. 374.
Urine Testing: If the officer has reasonable suspicion that you are under the influence of drugs other than alcohol, or a combination of drugs and alcohol, the officer may order a urine sample S.C. Code Ann. § 56-5-2950, Sanders v. S.C. DMV, 431 S.C. 374.
Implied Consent Warnings: Before any testing or sample collection begins, and upon activation of video recording equipment, the officer must verbally inform you and provide a written copy of your rights S.C. Code Ann. § 56-5-2950. This notice must advise you that you do not have to take the test, but that choosing to refuse or testing above certain limits will result in license suspension S.C. Code Ann. § 56-5-2950.
Consequences of Refusal vs. Submitting to a DUI Test
While you are not physically forced to submit to chemical testing, choosing to refuse or failing a test carries mandatory administrative penalties S.C. Code Ann. § 56-5-2951, S.C. DMV v. Nelson, 364 S.C. 514:
Refusal to Test (First Offense): If you have no prior DUI convictions or implied consent suspensions within the preceding ten years and you refuse to submit to the test, your driver's license or operating privilege must be suspended for six months S.C. Code Ann. § 56-5-2950, S.C. Code Ann. § 56-5-2951.
High Alcohol Concentration (First Offense): If you submit to the test and register an alcohol concentration of 0.15% or higher, your driving privilege must be suspended for one month S.C. Code Ann. § 56-5-2950, S.C. Code Ann. § 56-5-2951.
Prior Offenses (Within 10 Years): If you have a prior DUI conviction or suspension within the past ten years, the suspension periods increase progressively:
Second Offense: Nine months for a refusal; two months for a registration of 0.15% or higher S.C. Code Ann. § 56-5-2951.
Third Offense: Twelve months for a refusal; three months for a registration of 0.15% or higher S.C. Code Ann. § 56-5-2951.
Fourth or Subsequent Offense: Fifteen months for a refusal; four months for a registration of 0.15% or higher S.C. Code Ann. § 56-5-2951.
Ignition Interlock Option: Suspensions for refusal or high alcohol concentration may be ended early if you enroll in the Ignition Interlock Device Program S.C. Code Ann. § 56-5-2950. Additionally, an insurer cannot increase your premiums, add surcharges, or cancel your automobile insurance based solely on a DUI charge unless you are ultimately convicted of the violation S.C. Code Ann. § 56-5-2951.
Requesting Independent Tests and Obtaining Assistance
If you submit to the state's chemical testing, you have the right to have a qualified person of your own choosing conduct additional, independent tests at your own expense S.C. Code Ann. § 56-5-2950, Peake v. S.C. DMV, 375 S.C. 589.
Affirmative Assistance: Upon your request, the arresting officer must provide affirmative assistance to help you contact a qualified person to obtain these tests S.C. Code Ann. § 56-5-2950. At a minimum, this includes providing transportation to the nearest medical facility that performs blood tests S.C. Code Ann. § 56-5-2950.
Consequences of Non-Assistance: If the officer fails to provide this affirmative assistance upon request, the results of the state's breath test are barred from admissibility in any judicial or administrative proceeding S.C. Code Ann. § 56-5-2950.
Financial Obligation: To trigger the officer's duty to transport you, you must have the financial means to pay for the independent test or a family doctor to order the test; simply being willing to go is insufficient if you cannot pay, though officers must make a phone available to help you attempt to secure the funds or order State v. Knighton, 334 S.C. 125.
Sharing Results: Before any trial or proceeding, the state must provide you with a written report of your arrest and test results S.C. Code Ann. § 56-5-2950. Conversely, if you obtain independent tests, you must furnish a copy of the time, method, and results to the officer before you can use them as evidence S.C. Code Ann. § 56-5-2950.
Challenging a DUI License Suspension
If your license is suspended, the arresting officer will issue a notice of suspension effective on the date of the alleged violation S.C. Code Ann. § 56-5-2951.
Contested Case Hearing: You have the right to request a contested case hearing before the Office of Motor Vehicle Hearings within 30 days of the notice of suspension S.C. Code Ann. § 56-5-2951. If you do not request a hearing within 30 days, you waive this right, the suspension continues, and you must enroll in the Alcohol and Drug Safety Action Program (ADSAP) S.C. Code Ann. § 56-5-2951.
Temporary Alcohol License: Upon requesting a hearing, you may obtain a temporary alcohol driver's license S.C. Code Ann. § 56-5-2951. If the suspension is ultimately upheld, you will receive credit for the days your license was suspended before you received the temporary license, as well as credit for any days you maintained an ignition interlock restriction on the temporary license S.C. Code Ann. § 56-5-2951.
Scope of the Hearing: The administrative hearing is strictly limited to whether you were lawfully arrested; whether you were properly advised of your rights; whether you refused the test; or, if you consented, whether the testing equipment was working, the operator was qualified, and your alcohol concentration was 0.15% or higher S.C. Code Ann. § 56-5-2951.
BUI Procedures and Testing Options
If you are arrested for boating under the influence (BUI) while operating or directing a water device, South Carolina's boating implied consent laws apply S.C. Code Ann. § 50-21-114.
Testing Requirements: You are considered to have consented to chemical tests of your breath, blood, or urine S.C. Code Ann. § 50-21-114. A breath test must be offered first S.C. Code Ann. § 50-21-114. If you are physically unable to provide a breath sample, a blood sample may be taken S.C. Code Ann. § 50-21-114. If the officer has reasonable grounds to believe you are under the influence of drugs, a urine sample may be ordered S.C. Code Ann. § 50-21-114.
Limit on Testing: If your breath analysis reading is 0.08% or higher, the officer is prohibited from requiring additional chemical tests S.C. Code Ann. § 50-21-114. However, if there is probable cause to believe you operated a water device under the influence and caused bodily injury or death, you must submit to one or a combination of chemical tests, and resisting testing is admissible as evidence at trial S.C. Code Ann. § 50-21-116.
Consequences of BUI Refusal: You must be informed that you do not have to take the test, but if you refuse, your privilege to operate a water device will be suspended for 180 days S.C. Code Ann. § 50-21-114.
Independent BUI Testing: Similar to DUI rules, you have the right to have a qualified person of your choice conduct additional tests at your expense, and you must be notified of this right S.C. Code Ann. § 50-21-116. Your decision to request or not request additional tests cannot be used against you in a criminal trial S.C. Code Ann. § 50-21-116.
If you are pulled over and arrested for a DUI or BUI, you must decide whether to submit to the state's testing.
Refusing the test reduces the evidence against you.
However, refusing the test or registering a high alcohol concentration (0.15% or more for DUI) results in an administrative suspension of your operating privileges. If you choose to submit to the test, you have a statutory right to request independent testing, and law enforcement must provide reasonable, affirmative assistance to help you obtain it. Finally, you have the right to challenge any license suspension by requesting an administrative contested case hearing within 30 days of your arrest.
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