5 THINGS TO KNOW IF YOU’VE BEEN PULLED OVER ON SUSPICION OF DUI

KEEP YOUR ANSWERS SHORT AND TO THE POINT

First, do not lie to law enforcement.  However, there is no reason to volunteer information, especially when it may be used against you later.  For example, if an officer asks you if you know why you have been pulled over, decline to answer or state that you are not sure.  Law enforcement can pull you over if they have probable cause that any law has been violated.  If you admit you were speeding, that becomes additional evidence to legitimize the initial stop, which you might otherwise be able to challenge in court on the ground that the initial stop was unconstitutional.

YOU DO NOT HAVE TO CONSENT TO A FIELD SOBRIETY TEST

Under South Carolina law, you do not have to consent to a field sobriety test.  However, if an officer has probable cause that you are under the influence of alcohol or drugs, you could be arrested and subject to South Carolina’s implied consent law (discussed below).  Still, the officer must have probable cause to arrest you for DUI, and whether an officer had probable cause to arrest you can be challenged in court. Field sobriety tests involve actions that are difficult for anyone, intoxicated or not, and you should keep this in mind before consenting to take such a test, as the test can be used against you in court to establish probable cause for the arrest.

UNDER THE S.C. IMPLIED CONSENT LAW, YOU CAN LOSE YOUR LICENSE IF YOU REFUSE A CHEMICAL TEST

If you are arrested on suspicion of DUI, that means you have given implied consent to have your breath tested.  You may refuse a breathalyzer test, but if you do, your license can be revoked for 6 months pursuant to S.C. Code Ann. § 56-5-2950(B)(1).  The breathalyzer must be administered within two hours of the arrest, and any additional tests (such as a urine test administered based on a suspicion of drug intoxication) must be administered within three hours of arrest.  Further, an officer must activate a video recording prior to the test and give both a written copy and verbally inform the suspect that he or she does not have to consent to the test, but that his or her license can be suspended due to a refusal.  It is also important to know that your refusal to take the test may be used against you in court. 

If you refuse a breathalyzer and your license is suspended, you can request an administrative hearing challenging the suspension of your license.  While awaiting your hearing date, you can request a Temporary Alcohol Restricted License, or TARL, which will allow you to continue to drive pending the result of the hearing.

YOU HAVE THE RIGHT TO AN INDEPENDENT CHEMICAL TEST

Most people do not know this, but South Carolina law mandates that you have the right to obtain an independent chemical test from a “qualified person” following an arrest for DUI.  In addition, the arresting officer “must provide affirmative assistance to the person to contact a qualified person to conduct and obtain additional tests. Affirmative assistance, at a minimum, includes providing transportation for the person to the nearest medical facility which performs blood tests to determine a person's alcohol concentration.”  S.C. Code Ann. § 56-5-2950(E).   “Failure to provide affirmative assistance upon request to obtain additional tests bars the admissibility of the breath test result in any judicial or administrative proceeding.” Id.

Therefore, if you have the means, it may be a good idea to seek assistance from the arresting officer to procure an independent chemical test from a local medical facility as soon as possible following the arrest.  The second test may help to exonerate you, and if the officer does not provide the requisite assistance, your original test might not be admissible as evidence against you.

THE HIGHER THE BLOOD ALCOHOL CONTENT (BAC), THE HARSHER THE PENALTIES

A first-time offender who blows a .16 or higher on a breath test can face a minimum of 30 and a maximum of 90 days in prison and a $1000 fine, plus court costs.   A first offense conviction with a BAC of .10% to .16% will result in a minimum jail sentence of 72 hours up to a maximum of 30 days and a $500 fine, plus court costs.  Finally, a first-time conviction for a BAC of between .08 and .10 of can result in a 48-hour jail sentence up to a maximum of 30 days, and a $400 fine, but the court can order 48 hours of community service in lieu of jail time.  Therefore, if you refuse to submit to a breathalyzer, you could still face a DUI conviction but the prosecution would have great difficulty in showing what range you fall under.

 

Stephen Foster