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Frequently Asked Questions about DUI in South Carolina

Vehicle Stops in South Carolina:

A DUI checkpoint is when the police stop vehicles at random on public roadways to determine whether the driver is operating his vehicle under the influence. DUI roadblocks must be properly conducted with set guidelines and procedures. Each state sets up their own procedures for how roadblocks in each state should be conducted. South Carolina does not have state standards for setting up roadblocks. Even though it is up to each state to decide state guidelines, the National Highway Traffic Safety Administration has standards states can adopt and follow.

The National Highway Traffic Safety Administration states that roadblocks to stop cars must have a primary purpose to deter drunk driving. The NHTSA also wants roadblocks to be chosen in the interest of public safety for a specific objective. There should be adequate warnings to alert the drivers in advance that a checkpoint is coming up. The warning should make it obvious to a driver that they are approaching a checkpoint. The checkpoint can’t interfere with the flow of traffic or distract other drivers. Only trained police officers will run the roadblocks and do all of the DUI investigating. All of the procedures that are in place to set up a roadblock must be properly documented and any changes must be documented as well.

Once you are stopped at a roadblock, you will be asked for your license and registration. The officers might also ask where you are going and/or where you were coming from. The officer will be looking at the driver closely to look for signs of impairment. If the officer thinks the driver is impaired, the driver will be asked to get out of the vehicle. At that point, the officer will probably issue field sobriety tests to look for further impairment and reasonable suspicion that the driver is under the influence.

Can I get a DUI if I was not driving at the time?

In South Carolina, a person can be arrested for a DUI if they drive a motor vehicle while under the influence of alcohol or drugs. A driver is defined as a person who drives or is in actual physical control of a vehicle. Assuming physical control could be defined as sitting in the drivers seat with the key in the ignition. Driving has two components: the operation of a vehicle and the controlling of a vehicle.

Operating a vehicle is what is normally known as driving or having the car actually moving. However, moving is not the only element in driving. Controlling is the other factor in driving and it has to do with the keys. Having the keys in your possession is said to be controlling the vehicle. This definition means that you may be charged with a DUI even if the car isn’t actually moving as long as you have the keys in your control in a vehicle while intoxicated above the legal limit.

Courts can look at a couple of different factors to establish if a defendant was “driving” or “assumed physical control of a vehicle”. Courts may look if the engine was running, the position the defendant was found in the car, whether the defendant was asleep or awake, location of the ignition key, whether the headlights are one, and whether the car was in a roadway or legally parked. There have been cases in South Carolina where people were intoxicated sleeping in a car with the engine running who have been convicted of a DUI. If a person is sleeping in a car with the keys in the ignition and the officer has reasonable suspicion the person is intoxicated, the officer can ask the driver to take field sobriety tests. Every situation is a case-by-case basis and will be determined on the circumstances.

Do I have the right to talk to an attorney before submitting to a breath/chemical test?

If a driver is pulled over because an officer has a reasonable suspicion the driver is drunk, the officer can request the driver to take a breath, blood or urine test to determine the driver’s blood alcohol content. In South Carolina, there is no right to an attorney when a person is initially arrested for a DUI. This means that the driver does not have a right to call on counsel before taking a breath, blood or urine test.

In South Carolina, operating a motor vehicle in the state is giving implied consent to a breath, blood or urine test. Even though the driver does not have a right to counsel before the tests are administered, the arresting officer must inform the driver they can refuse to take the test. The arresting officer must also inform the driver that they have a right to take a blood or urine test if they don’t want to submit to a breath test. If the driver requests an additional test, they must pay for the requested test. In South Carolina, the arresting officer has to provide assistance in obtaining the additional tests. This can include taking the driver to a medical facility that performs urinalysis. If a driver refuses to take a test, their license to drive in South Carolina will be suspended for 90 days. If it is a driver’s second offense of a DUI and they refuse to take a test, their license will be suspended for 180 days.

Once a driver is officially arrested for a DUI, the officer will read the driver their Miranda Rights, which include right to counsel and right to remain silent. Only after being formally arrested is the accused entitled to have an attorney. Anything you are asked to do before being formally arrested is not subject to have an attorney present.

Can I refuse a Chemical Test in South Carolina?

A person who drives a motor vehicle in South Carolina is considered to have given consent to blood or urine tests to determine their blood alcohol level.  Since South Carolina has “implied consent” to give breath, blood or urine tests to determine the driver’s blood alcohol content, and a driver refuses to give a sample, there will be consequences. If this DUI is the driver’s first offense, the driver’s license will be automatically suspended for six months. If this arrest is a driver’s second charge for a DUI, the driver’s license will be suspended for 9 months. If the arresting officer suspects the driver was operating the car under the influence of drugs, the officer can demand a blood or urine sample.

Physicians licensed by the State Board of Medical Examiners, registered nurses licensed by State Board of Nursing and other medical personnel trained to obtain the samples in a licensed medical facility, must obtain blood and urine samples. Blood and urine samples must also be handled by procedures approved by South Carolina Law Enforcement Department.

The officer must ask the driver if he wants to take a breath test and not a blood test. A blood or urine test will be required if the driver can’t provide a breath test. If a driver is unconscious or physically injured, their blood may be drawn for testing. The determination that you are unable to provide a breath test may be made by any licensed medical professional. The police cannot determine whether or not to take a blood sample instead of a breath sample.

If the driver of a vehicle is under the age of 21 and the officer has reasonable suspicion to believe the driver is under any amount of alcohol, the driver is considered to give consent to breath or blood test. The officer must first offer the driver a breath test to determine their’ blood alcohol level. If the driver is unable to give a breath test, a blood sample may be taken.

Can I refuse a field sobriety test in South Carolina?

After an officer pulls a driver over because the officer has probable cause that the driver was operating a vehicle under the influence of an intoxicant, the officer will most likely ask the driver to perform field sobriety tests. Field sobriety tests are used to corroborate or question the officer asking the driver to take a breath test. Field sobriety tests cannot be used to replace breath, blood or urine tests. Field sobriety tests can’t be used to show what the driver’s blood alcohol content was.

The driver has the right to refuse participation in field sobriety tests. Refusing to participate in field sobriety tests may lead to the motorist being arrest on suspicion of DUI. It is at the police officer’s discretion whether or not to arrest the driving for failing to take field sobriety tests. If the driver refuses to take field sobriety tests, the officer will most likely ask to submit to a breath, blood or urine test. Field sobriety tests must be videotaped.

Field sobriety tests can be administered in mainly three ways. An officer can conduct a HGN test that measures the degree of impairment by the jerking or bouncing of the eyeball. The officer can also issue the “stand on one leg” test. This will measure the driver’s balance. Usually the officer will ask the driver to raise one foot six inches off the ground while keeping their arms at the side. Once in that position, the driver must then count out loud to 30 before putting their foot back down. The officer is looking for any clues that the driver is intoxicated. If the officer witnesses any excessive swaying, using arms for balance, hopping to maintain balance or putting their foot down, it could be a sign that the driver is under an intoxicant.


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