South Carolina has what is called an implied consent law with regard to alcohol and drug testing requested by an officer after a DUI arrest. If you are considered to have refused the test your license is suspended for 6 months for a first offense. If you submit a breath sample and it is 0.15 or higher your license is suspended for 30 days.
When does the suspension go into effect?
The suspension goes into effect immediately. It usually takes a few days for the DMV computer system to be updated. You will receive a letter usually within a week of a DUI arrest from the DMV advising you about the suspension.
What happens if you drive anyway?
If you are caught driving during an implied consent suspension you face an additional criminal charge for driving under suspension. You can be arrested and taken back to jail. You will face more jail time and another fine. If convicted your license will be suspended for an additional amount of time, plus you are quickly earning "strikes" toward a habitual offender (meaning multi-year) suspension.
How can you drive again?
You have two options. One is to enroll in ADSAP and obtain a provisional license. The other is to request an administrative hearing to challenge the implied consent hearing.
If you request the administrative hearing you will be allowed to obtain a full unrestricted license from the DMV allowing you to legally drive again. This takes about a week after you request the hearing. You also do not have to enroll and complete ADSAP.
What is ADSAP?
ADSAP is the name of a South Carolina drug and alcohol education program for people with implied consent or other DUI type issues. You would be responsible for the cost which is between $500 and $2,500. It can be a fairly involved program.
As a DUI defense attorney, what option do you recomend?
I advise my clients to request an administrative hearing. This avoids the requirement to enroll in ADSAP, and provides an unrestricted license.
How do I go about requesting an administrative hearing?
The request must be made in writing within thirty days of the suspension (usually the day you were arrested for DUI). It must be submitted to the Office of Motor Vehicle Hearings in Columbia. There is a $200 filing fee that must be paid at the time of the request.
It is recommended that you request your DUI defense attorney to handle this process for you. Also it is usually a good idea that the request either be filed in person, or sent by overnight courier (such as UPS). This will ensure that it was received, and help make sure it is processed faster.
What if you are not sure if you are suspended or not?
Sometimes police officer's don't actually turn in the suspension form right away to the DMV. Sometimes they are planning on suspending someone, but forget to take the driver's license or provide the Notice of Suspension form. If you think that you are eligible for an implied consent suspension (either not submitting to a test or testing over 0.15), my recommendation is that you still have your lawyer file for the administrative hearing. That way you will be protected in the event that the officer does report a suspension. If you aren't actually suspended the hearing office will usually return your filing fee back to you.
What happens at the hearing?
Hearings are held usually a few months after they are requested. The officer who arrested you along with any officer who administered a breath or other test must come to testify. Unless they can provide that they had probable cause to arrest you for DUI, and advised you of the implied consent rights the suspension will be reversed. There are also many other legal issues that your lawyer may raise. The hearings are presided over by a single hearing officer (not a judge). There is not a jury. The outcome of the hearing will not be binding on what happens in your DUI case. So you could win an implied consent hearing but still lose the DUI, or lose the implied consent hearing but then later have your DUI dismissed. You will be notified of the decision in writing, usually a few weeks or more after the hearing.
If I am stopped for DUI what should I do? Take the breath test or not?
Driver's in South Carolina do not have to take a breath test or submit any samples as part of a DUI arrest. If you refuse to take a test you will not face any additional criminal penalties (other states have different laws). The fact that you refused the test can be brought up during your DUI trial. If you do take a test, and register 0.10 blood alcohol level or higher you actually could be charged with a more serious DUI crime than if you had refused altogether.
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