If you have what is called an “implied consent violation” in SC, you are in danger of losing your driver’s license. You are also facing the possibility of mandatory ADSAP (Alcohol and Drug Safety Action Program) classes and the possibility of a mandatory ignition interlock device (IID) requirement.
DUI law in SC can be confusing and complex, and if you don’t consult a DUI defense attorney immediately after an arrest, you may lose important rights or damage your driving under the influence case because you didn’t know what your options were.
There are actually two parts to your DUI case — an administrative side and a criminal side.
If you miss a filing deadline or don’t understand how administrative hearings work, you can face consequences like the suspension of your driver’s license before your criminal DUI case even gets started.
In this article you will learn:
- What an administrative hearing is in SC and why it matters;
- What “implied consent” is in South Carolina;
- What the penalty is for refusing a breathalyzer; and
- What happens if you win or lose your administrative hearing in SC.
Implied Consent Administrative Hearings are Separate from Your DUI Case
DUI charges in SC often have two parts – a non-criminal, “administrative” case where the DMV attempts to take your license and impose ADSAP and other requirements, and a criminal case where a prosecutor attempts to get a conviction for driving under the influence.
You may be facing a license suspension in both cases.
If you do nothing in the weeks immediately following your arrest, you may lose your license before you are even convicted of the DUI. If you act quickly, however, your DUI defense attorney may have options available that can get you back on the road.
Implied Consent Hearings in the Administrative Court
The “administrative” side of your DUI case begins when the officer reads your “implied consent rights” to you – that usually happens in the Datamaster room just before they ask you to take the breathalyzer test.
If you refuse to take the breathalyzer (you should in almost every case), or if you take the breathalyzer and the machine says your blood alcohol content (BAC) is higher than .15%, the officer will give you a Notice of Suspension along with your ticket and other documents.
The Notice of Suspension lets you know that your license is now suspended, and you can no longer drive. It also has directions for how to request a hearing where your attorney may be able to get the suspension lifted, but there is a strict 30-day time limit for the DMV to receive your hearing request.
Once you or your attorney requests the administrative hearing, you will be eligible for a “Temporary Alcohol License” that allows you to drive (without restrictions other than no alcohol) until your hearing.
If you win the administrative hearing, your license will be reinstated (although you will still have the potential for another license suspension if you are convicted in the criminal case.) If you lose the hearing, the administrative suspension will be reinstated, you will need to enroll in ADSAP before you can regain your license, and, depending on the facts of your case, you may be required to install an ignition interlock device on your vehicle.
What is Implied Consent in SC?
What does implied consent in SC mean?
SC law says that, when you drive on SC’s roads, you “impliedly” agree to take a breathalyzer or a blood test when requested. If you refuse (which you almost always should), your license will be suspended. Even if you agree, your license will still be suspended if you blow a .15% or greater.
If you don’t request an implied consent hearing, or if you lose the hearing, your license will be suspended, and you will have to enroll in ADSAP before it can be reinstated.
How Long Will My License be Suspended?
The chart below shows the suspension period – it depends on the number of prior convictions that you have for DUI and whether 1) you refused to take the breathalyzer or 2) the result was .15% or greater:
| Prior ConvictionsDuring Past 10 Years | License Suspension Period for BAC of .15% or higher | License Suspension Period for Refusingthe Breathalyzer |
| 0 | 1 month | 6 months |
| 1 | 2 months | 9 months |
| 2 | 3 months | 12 months |
| 3 | 4 months | 15 months |
What Happens at the Implied Consent Hearing?
The hearing is held in a small courtroom or conference room, where officers and attorneys will meet with the hearing officer (like a judge, but he or she works for the DMV). The officer will tell the judge what their probable cause was for the arrest and what happened in the Datamaster room, usually reading from their incident report.
Your attorney can then cross examine the officer and present evidence on your behalf. SC law limits the scope of the hearing to:
- Whether there was probable cause for your DUI arrest;
- Whether you were given a written copy of your implied consent rights and whether they were read aloud to you; and
- Whether you refused to take the test.
If you took the breathalyzer and the result was .15% or greater, you can also argue:
- Whether the result was, in fact, .15% or greater;
- Whether the officer who administered the test was qualified to operate the machine;
- Whether the officer followed SLED policy and procedure when administering the test; and
- Whether the machine was working properly.
The hearing officer will review SLED policy and procedure provided by your attorney, as well as any information your attorney is able to get from SLED’s database – which may include information about error messages generated by the machine, whether maintenance has been performed on the machine, the temperature and expiration date of the simulator solution used in your breathalyzer test, and other test results generated by the same officer on the machine.
If the officer did not follow SLED’s policy and procedure or if the machine was not operating properly, the hearing officer can suppress the Datamaster result (which means you win).
What if the Officer Doesn’t Show Up at My Administrative Hearing?
If the officer does not appear at the hearing (and has not notified the hearing officer to request a continuance), you win because there will be no one to enter evidence against you.
There are many reasons why an officer may not appear at the hearing, although many police departments require them to show up and testify. In some cases, an officer may appear at the hearing but decide not to enter testimony – if this happens, you win the hearing just as you would if the officer does not appear.
What Happens if you Win the Implied Consent Hearing?
If you win the implied consent hearing, either because the officer did not enter testimony or because your attorney was able to prove that your license should not have been suspended, the “suspension is rescinded,” and you can go to the DMV to get your full license reinstated.
Winning your implied consent hearing, however, does not mean that you have won your DUI case in the criminal court – your DUI charges are separate, the DUI case will continue in the criminal court, and you should stay in contact with your attorney.
What Happens if You Lose the Implied Consent Hearing?
If you lose the implied consent hearing or if you did not request a hearing, your license is still suspended, you will need to enroll in ADSAP before you can get your license back, and your DUI case will also continue in the criminal court.
If you are later convicted of the DUI, the consequences for the DUI conviction will be separate and in addition to the consequences for the implied consent violation – if there is a license suspension based on your conviction, for example, it will be an additional suspension.
Need help with your DUI case?
If you are charged with any DUI offense in SC, contact a DUI lawyerimmediately – if you miss the filing deadline and do not request an administrative hearing for an implied consent suspension, your license will be suspended and you will still be facing prosecution for the DUI charge.
If you’re facing a DUI charge in South Carolina, immediately contact the attorneys at Templeton Mims & Ward so we can start building your defense.