Overview of South Carolina's DUI Laws

Throughout the United States, and in South Carolina, it is illegal to operate a motor vehicle while impaired by alcohol (or drugs). Although it is not illegal to have a drink and drive in South Carolina, our laws state:

It is unlawful for a person to drive a motor vehicle within this State while:

(1) under the influence of alcohol to the extent that the person's faculties to drive are materially and appreciably impaired;

(2) under the influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person's faculties to drive are materially and appreciably impaired; or

(3) under the combined influence of alcohol and any other drug or drugs or substances which cause impairment to the extent that the person's faculties to drive are materially and appreciably impaired.

Proof of Impaired Driving

Typically, prosecutors prove violations of this statute by showing, among other things: (1) the driver had observable signs of intoxication such as slurred speech, blood-shot eyes, strong odor of alcohol, staggering, or swaying; (2) the driver failed field sobriety tests (reciting ABC's, standing on one leg and counting, etc.); or (3) the driver could not maintain control of the vehicle (weaving, driving off the shoulder, etc.). Additionally, prosecutors could also introduce evidence that the driver had a BAC (Blood Alcohol Concentration) level above the statutory legal limit.

Standardized Field Sobriety Tests (SFST)

The Standardized Field Sobriety Test (SFST) is a series of three tests administered and evaluated in a standardized manner to obtain valid indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA). A formal program of training was developed and is available through NHTSA to help police officers become more skillful at detecting DUI suspects, describing the behavior of these suspects and presenting effective testimony in court. The three tests are:

• Horizontal gaze nystagmus
   
• Walk-and-turn
   
• One-leg stand

These tests should be administered systematically and objectively evaluated according to measured responses of the suspect.

1. HGN Testing

Horizontal gaze nystagmus (HGN) is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes.

The examiner looks for three indicators of impairment in each eye: 1) if the eye cannot follow a moving object smoothly, 2) if jerking is distinct when the eye is at maximum deviation, and 3) if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater. NHTSA research indicates that this test allows proper classification of approximately 77 percent of suspects. HGN may also indicate consumption of seizure medications, phencyclidine and a variety of inhalants, barbiturates and other depressants.

Divided Attention Testing

The walk-and-turn test and one-leg stand test are "divided attention" tests that are easily performed by most sober people. They require a suspect to listen to and follow instructions while performing simple physical movements. This test is based on the fact that impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises.

2. Walk-and-Turn Test

In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for seven indicators of impairment: 1) if the suspect cannot keep balance while listening to the instructions, 2) begins before the instructions are finished, 3) stops while walking to regain balance, 4) does not touch heel-to-toe, 5) uses arms to balance, 6) loses balance while turning, or 7) takes an incorrect number of steps. NHTSA research indicates that 68 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.10 or greater.

3. One-Leg Stand Test

In the one-leg stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including 1) swaying while balancing, 2) using arms to balance, 3) hopping to maintain balance and 4) putting their foot down. NHTSA research indicates that 65 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.10 or greater.

The effectiveness of SFST in court testimony and evidence depends upon the cumulative total of impairment indicators provided by the three-test battery. The greater the number of indicators, the more convincing the testimony. Because SFST is administered according to national standards and is supported by significant research, it has greater credibility than mere subjective testimony.

Alternative Testing Methods

Occasionally, certain suspects such as physically disabled persons are unable to perform the SFST and alternative testing methods must be employed. In such cases, some other battery of tests such as counting aloud, reciting the alphabet or finger dexterity tests may be administered. Several appellate court decisions have indicated that, if you administer a test that requires the subject to respond orally in other than a routine information-giving fashion, such as requiring them to indicate the date of their sixth birthday, and if they are in custody at the time, you should administer the Miranda warning first, because the officer is seeking information that is testimonial in nature.

BAC Limits

Under South Carolina law, the legal BA (blood / alcohol) limits are:

(1) Less than .05 - It is conclusively presumed that the person was not under the influence of alcohol.

(2) Greater than .05 but less than .08 - No inference whether the person was under the influence of alcohol, but that fact may be considered with other evidence in determining the guilt or innocence of the person.

(3) Greater than .08 - It may be inferred that the person was under the influence of alcohol.

Driving With An Unlawful Alcohol Concentration

Until recently, almost ever other state, other than South Carolina, has had a "per se" DUI law whereby it is illegal to operate a vehicle if you exceed the requisite alcohol concentration. In other words, if a driver's BAC is above the legal limit, that alone is a crime and there is no need to present other evidence to the court that the driver was impaired (as mentioned above). Recently, South Carolina adopted a similar DUI law. This law states:

It is unlawful for a person to drive a motor vehicle within this State while his alcohol concentration is eight one-hundredths of one percent or more. A person who violates the provisions of this [statute] is guilty of the offense of Driving With An Unlawful Alcohol Concentration.

The prosecution now has the choice of convicting a driver under the "old" law (proof of impairment which may include proof of BAC) or this "new" law (proof of BAC .08 or greater and the driver is guilty). However, a driver can only be prosecuted under the new law if the breath (or blood) test is performed within two hours of the time of arrest and probable cause (a reasonable belief that a person has committed a crime) existed to justify the traffic stop. A driver cannot be prosecuted under the new law if the driver was stopped at a traffic road block or driver's license check point. Further, a driver cannot be prosecuted for both a violation of the "old" and "new" laws for the same stop.

The following charts illustrate the average estimated BAC's for females or males based on body weight and number of drinks:

The following charts illustrate the average estimated BAC elimination over time:
 

Your Right to Trial By Jury

Many (particularly the press) have speculated that South Carolina's new DUI law (Driving With An Unlawful Alcohol Concentration) now takes away a person's right to a trial by jury (which has been done in other states under their per se illegal statutes). This is not correct. The law also states:

A person who violates the provisions of this section is entitled to a jury trial and is afforded the right to challenge certain factors including, but not limited to, the following:

(1) whether or not the person was lawfully arrested or detained;

(2) whether or not probable cause existed to justify the stop;

(3) the period of time between arrest and testing;

(4) whether or not the person was advised in writing of [their rights to refuse the test];

(5) whether the person consented to taking a test . . .and the:

(a) reported alcohol concentration at the time of testing was ten one- hundredths of one percent or more;

(b) individual who administered the test or took samples was qualified . . .;

(c) tests administered and samples obtained were conducted pursuant to [South Carolina law and regulations]; and

(d) machine was working properly.

Nothing contained in this section prohibits the introduction of:

(1) the results of any additional tests of the person's breath or other bodily fluids;

(2) any evidence that may corroborate or question the validity of the breath or bodily fluid test result including, but not limited to:

(a) evidence of field sobriety tests;

(b) evidence of the amount of alcohol consumed by the person; and

(c) evidence of the person's driving;

(3) a videotape of the person's conduct at the incident site and breath testing site . . .; or

(4) any other evidence of the state of a person's faculties to drive which would call into question the results of a breath or bodily fluid test.

Penalties

DUI First Offense – A fine not less $400 or imprisoned not less than forty-eight hours nor more than 30 days.  If your alcohol concentration is at least 0.10% but less than 0.16%, then you will be subject to a higher fine or be imprisoned not less than seventy-two hours nor more than 30 days.  If your alcohol concentration is 0.16% or greater, then you will be subject to an even higher fine or be imprisoned not less than 30 days nor more than 90 days.  In lieu of the minimum imprisonment requirements, the court may provide for public service employment of equal duration.

DUI Second Offense – A fine of not less than $2,100 nor more than $5,100 and imprisonment for not less than five days nor more than one year.  If your alcohol concentration is at least 0.10% but less than 0.16%, then your fine will be not less than $2,500 nor more than $5,500 and imprisonment for not less than 30 days nor more than two years.  If your alcohol concentration is 0.16% or greater, then your fine will be not less than $3,500 nor more than $6,500 and imprisonment for not less than 90 days nor more than three years.

DUI Third Offense – A fine of not less than $3,800 nor more than $6,300 and imprisonment for not less than 60 days nor more than three years.  If your alcohol concentration is at least 0.10% but less than 0.16%, then your fine will be not less than $5,000 nor more than $7,500 and imprisonment for not less than 90 days nor more than four years.  If your alcohol concentration is 0.16% or greater, then your fine will be not less than $7,500 nor more than $10,000 and imprisonment for not less than six months nor more than five years.

DUI Fourth Offense or Greater – Imprisoned for not less than one year nor more than five years.  If your alcohol concentration is at least 0.10% but less than 0.16%, then you will be imprisoned for not less than two years nor more than six years.  If your alcohol concentration is 0.16% or greater, then you will be imprisoned for not less than three years nor more than seven years.

Driving With An Unlawful Alcohol Concentration - Same penalties as DUI above.

Other Concerns - License Suspension, Temporary License, Administrative Hearing, and SR-22 Insurance

In addition to the fines and sentences listed above, a DUI, a refusal to submit to tests, or certain BAC levels will result in the suspension of driving privileges for a period of time. 

Conviction for DUI 1st Offense – Driving privileges are suspended six months. To reinstate driving privileges, the driver must obtain SR-22 insurance for 3 years (at a substantially higher rate than normal insurance premiums). 

Conviction for DUI 2nd Offense – Driving privileges are suspended for one year. To reinstate driving privileges, the driver must obtain SR-22 insurance for 3 years (at a substantially higher rate than normal insurance premiums). 

Conviction for DUI 3rd Offense – Driving privileges are suspended for two years. If the third offense occurs within five years of the first offense, driving privileges are suspended for four years. If the third or subsequent offense occurs within 10 years of the first offense, the vehicle used must be confiscated if the offender is the owner or a resident of the household of the owner. 

Conviction for DUI 4th Offense – Driving privileges are forever revoked. 

Refusal to Submit to Testing (DUI 1st) – Six month suspension (regardless whether the driver is convicted of DUI).  Driver may challenge the suspension by requesting, within 30 days, an “administrative hearing.” Pending this hearing, the driver may obtain a temporary license.  To obtain a temporary license, the driver must, within 30 days, request an administrative hearing (the cost of which is $150). SR-22 Insurance is not required after suspension. 

Refusal to Submit to Testing (DUI 2nd within 10 years) – Nine-month suspension (regardless whether the driver is convicted of DUI). Driver may challenge the suspension by requesting, within 30 days, an "administrative hearing."  SR-22 Insurance is not required after suspension. 

Refusal to Submit to Testing (DUI 3rd within 10 years) – Twelve-month suspension (regardless whether the driver is convicted of DUI). Driver may challenge the suspension by requesting, within 30 days, an "administrative hearing."  SR-22 Insurance is not required after suspension. 

Refusal to Submit to Testing (DUI 4th within 10 years) – Fifteen-month suspension (regardless whether the driver is convicted of DUI). Driver may challenge the suspension by requesting, within 30 days, an "administrative hearing."  SR-22 Insurance is not required after suspension. 

BAC Equal to or Greater than .15 (DUI 1st) -  30-day suspension (regardless whether the driver is convicted of DUI).  Driver may challenge the suspension by requesting, within 30 days, an “administrative hearing.” Pending this hearing, the driver may obtain a temporary license.  SR-22 Insurance is not required after suspension. 

BAC Equal to or Greater than .15 (DUI 2nd within 10 years) – Two month suspension (regardless whether the driver is convicted of DUI).  Driver may challenge the suspension by requesting, within 30 days, an “administrative hearing.”  Pending this hearing, the driver may obtain a temporary license.  SR-22 Insurance is not required after suspension. 

BAC Equal to or Greater than .15 (DUI 3rd within 10 years) – Three month suspension (regardless whether the driver is convicted of DUI).  Driver may challenge the suspension by requesting, within 30 days, an “administrative hearing.”  Pending this hearing, the driver may obtain a temporary license.  SR-22 Insurance is not required after suspension. 

BAC Equal to or Greater than .15 (DUI 4th within 10 years) – Four month suspension (regardless whether the driver is convicted of DUI).  Driver may challenge the suspension by requesting, within 30 days, an “administrative hearing.”  Pending this hearing, the driver may obtain a temporary license.  SR-22 Insurance is not required after suspension. 

Temporary and Restricted Licenses - A temporary alcohol restricted license allows the person to drive pending the outcome of the administrative hearing.  To get such a license you must request an administrative hearing from the DMV within 30 days of the notice of suspension.  The statute states that such license shall be without any restrictive conditions; however, the Department of Motor Vehicles provides that you may not drive outside of the State of South Carolina. 

If the suspension is upheld at the administrative hearing, the temporary alcohol restricted license remains in effect until the Department issues the hearing officer’s decision and sends notice to the person that the license is suspended.  Afterward, the driver may apply for a special restricted driver’s license if the driver is employed or enrolled in a college or university.  The special restricted license permits driving only to and from work and school and in the course of work or school.  To obtain this “route restricted” driver’s license, the driver must also show the Department that work or school is further than one mile from the driver's home and that there is no adequate public transportation in between. 

If the suspension is overturned at the administrative hearing, the person shall have his driver’s license reinstated. 

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If you or someone you know needs help with a DUI or other traffic offense, call the law firm of Futeral & Nelson, LLC locally at (843) 284-5500, toll free at (877) 913-5500, or email info@charlestonlaw.net.

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