Can You Refuse a Breathalyzer DUI Test in South Carolina?

One area of confusion in DUI cases is whether a person can refuse a breathalyzer in South Carolina. As William G. Yarborough explains in more detail, you have a right to refuse, but there will be clear, legal consequences for this refusal. In other words, your refusal will not be free of negative consequences. Every driver should understand those consequences before they agree or refuse a breath test.

Call Yarborough Law to speak with an experienced Greenville, SC DUI lawyer. Our firm has handled hundreds of DUI cases and can analyze the best defense to bring.

Why Police Request a Breath Test

Officers ask drivers to take a breathalyzer test for a simple reason: to gather evidence in support of a DUI prosecution. The police are trying to make it easy to convict you. The breathalyzer device measures the alcohol content in someone’s breath, which is a good proxy for the alcohol in their bloodstream.

Technically, you can be convicted of DUI if you have any alcohol in your system and your ability to drive is appreciably impaired. All an officer must do is testify in court that he smelled alcohol on your breath and that you were weaving all over the road. Testimony of that sort is usually enough for a conviction. For this reason, you cannot avoid a DUI conviction simply by avoiding a breathalyzer test.

However, blowing a high number makes it much easier for the state to get a conviction. Juries give a lot of credence to “scientific” evidence like breathalyzer results. Under the law, if your blood alcohol content (BAC) is 0.08% or higher, then an adult is intoxicated and can be convicted. The state doesn’t even need to show that you were out of control or driving dangerously.

South Carolina’s Implied Consent Law

The Fourth Amendment prohibits unreasonable searches and seizures. Furthermore, the amendment prohibits unreasonable bodily restraint without due process of law. A person cannot be forced to give a breath test without a judicial order.

However, South Carolina has an implied consent law on the books. (S.C. Code § 56-5-2950.) Anyone who operates a motor vehicle in the state has given implied consent to take a chemical test—either a breath, urine, or blood test—if they are arrested for DUI.

If you refuse to take a BAC test, then you will suffer the consequences spelled out in the implied consent law. It’s that simple. You are not being punished for a crime. Instead, the state will take action because you did not consent to the breathalyzer.

What Happens if You Deny a Breathalyzer?

You have the right to refuse to take a test. But there will be consequences in the form of a license suspension:

• A first refusal: 6-month suspension.
• Second refusal: 9-month suspension.
• Third refusal: 12-month suspension.

South Carolina will suspend your license for your refusal to take a breath test. You might even end up acquitted of DUI, but it doesn’t matter. The license suspension is administrative in nature and will likely take place as your criminal case continues to wind its way through the courts.

What if you don’t have a license from South Carolina but are visiting from Florida or a different state? South Carolina does not have the power to suspend a license granted by a different jurisdiction. But they will certainly let your home state know about the arrest and your refusal to take the test, which will probably result in a license suspension back home. You will still need to defend yourself from the criminal charges in South Carolina.

Other Consequences of Refusing a Breath Test

Losing a license, even for a short period, is devastating. Many people can’t get to work or school and can struggle to pay their bills.

Helpfully, a first-time offender can get a restricted license, but they must install an ignition interlock device on their vehicle. This device is essentially a breathalyzer attached to your car. The vehicle won’t start until you blow into the device to prove there is no detectable alcohol in your breath.

Your refusal to take a BAC test might also be used at trial. The prosecution can argue that it shows you were trying to hide your intoxication. That might not be the strongest argument they make, but it is an argument some jurors might find persuasive.

You May Challenge the Traffic Stop

If you refuse a breathalyzer in South Carolina, you have a chance to avoid the license suspension. The police cannot violate the Constitution in their efforts to stamp out crime. They must have reasonable suspicion of criminal activity before they pull over a vehicle.

For example, it would be flatly illegal for a cop to pull someone over because of their race or gender. Instead, they need to point to facts that show a reasonable basis to believe a crime was committed. The basis doesn’t have to be anything major—a minor traffic violation is usually enough. But the officer must point to something.

We might challenge the legality of the stop at an administrative hearing. If successful, you will avoid the automatic suspension for refusal to take a BAC test. You also will likely win your criminal DUI case.

Contact an Experienced Greenville DUI Defense Lawyer

The administrative license suspension is an underappreciated component of a DUI case. South Carolina’s implied consent law gives the state enormous power over anyone the police pull over for suspected DUI. If you blow a high number, the state will suspend your license. Refuse to take the test, and you get an automatic suspension for violating the implied consent law. You might feel trapped.

For help with your case, reach out to William G. Yarborough, a lawyer with more than 30 years of experience in criminal law matters. Our consultations are completely private, and we can discuss the strength of the case against you, as well as possible defenses. Contact us today.