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Should you have taken a breath test for your South Carolina DUI?

Should you have taken a breath test for your South Carolina DUI?

This office handles a good number of DUI cases in Lexington, Columbia, and surrounding areas.

As part of our commitment to learning more about local DUI prosecutions, we have reviewed the results of DUI breath tests administered in Lexington and Richland County for the past several years. The following are the results of our review of publically available DUI breath test results for a three-year period in these two counties. 

Approximately 40% of those offered a breath test refuse. South Carolina law allows drivers to refuse a breath test, However, that decision does come with a possible 6-month suspension. A refusal does however prevent the government from obtaining a specific blood alcohol number that they can use in court later.

Most people who do take a breath test do show significant alcohol in their system. The average is 0.14, with 52% of test-takers scoring 0.16 or higher. 

The reason that this is especially significant is that there are three tiers of first-offense DUI's in South Carolina. Low, medium, and high. The highest tier is for those who blow a 0.16 or higher. It comes with higher fines, and an additional possible 60 days of jail time (for a total of 90 days). Most people who voluntarily take the breath test blow into this highest penalty tier. 

There are a very small number of test takers (less than 10%), who show blood alcohol levels of 0.07 or below.  The overwhelming majority of breath test-takers likely end up hurting, rather than helping, their case. 

What about the automatic 6-month suspension?

Refusing a breath test can result in an automatic 6-month suspension under what is called the implied consent law.

You'll know if this applies in your case if the officer took your driver's license or issued you a Notice of Suspension form. 

We can help restore legal driving privileges, usually in 2-3 business days by filing an objection to this suspension in the Office of Motor Vehicle Hearings (OMVH). This office is separate from the DUI Court and only determines if the up-front suspension should apply. This office is not concerned with if someone is guilty or not guilty of the underlying DUI. 

Those who do take a breath test and score 0.15 or higher instead face a 30 day suspension. 

Suspensions that are upheld by the OMVH (or are never challenged in the first place) also will require completion of the ADSAP program to reinstate a South Carolina driver's license (even if the DUI is later dismissed). 

Everyone facing the automatic suspension is recommended to see to it that their case is challenged both in the OMVH and in Court. 


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