DUI charges can be confusing and frustrating, and it is important to know your options. One area of DUI law that is particularly daunting for someone who has never been through this is SC’s implied consent laws – you haven’t even been convicted of DUI and your license is already suspended!
In this article, we will look at:
- The difference between the administrative and the criminal side of DUI charges,
- The details of SC’s implied consent laws,
- How to get a temporary license after an implied consent suspension, and
- How implied consent hearings work.
The Two Sides of DUI Charges: Implied Consent and Criminal
If you have been charged with DUI in SC, you may be facing two court cases – one for the criminal prosecution for driving under the influence and another to challenge your implied consent license suspension.
These are two separate proceedings, in two separate courtrooms, and each has no effect on the other. What I mean is, if you win your implied consent hearing and your license is restored, you are still facing the DUI prosecution in criminal court.
If you are later convicted of DUI in the criminal court, your license will be suspended again. The only way to avoid a license suspension completely is to 1) request an implied consent hearing (and win it), and 2) get your DUI dismissed or get an acquittal at trial.
Wait, Isn’t that Double Jeopardy?
The Constitution protects against being punished twice for the same crime, right?
SC courts have found that double jeopardy does not prevent the state from punishing you twice when one set of proceedings are administrative in nature, and the other are criminal.
The DMV can administratively suspend your driver’s license for an implied consent violation, and then they can administratively suspend your license again for a DUI conviction, because the suspensions are considered civil in nature as opposed to punishment in the criminal court.
So, what can you do if you have an implied consent violation after a DUI arrest?
Administrative Hearings and Implied Consent Suspensions
If your license is suspended after a DUI arrest, you will need to understand the implied consent laws in SC and the process for getting your license restored, including what to do with your Notice of Suspension, what SC’s implied consent laws mean, how to get a temporary license so you can drive, and how implied consent hearings work.
Notice of Suspension
When you were arrested, the officer most likely took you to a Datamaster room before they processed you at the jail. Then they made you stand there for at least 20 minutes before reading your “implied consent rights” to you and then asking if you wanted to take the breathalyzer test.
If you refused to take the breathalyzer or if you took the breathalyzer and the result was .15% or greater, the officer then gave you a Notice of Suspension to take home along with your other documents like the tickets, warrants, and bond paperwork.
That Notice of Suspension is an important document, because 1) it has instructions for how to request an administrative/ implied consent hearing, including where to mail the form, that there is a $200 fee, and that it must be received within 30 days of the arrest date, and 2) the administrative hearing request must be sent in on the original Notice of Suspension form – save it, don’t lose it, and take it to your DUI defense attorney as soon as possible.
SC’s Implied Consent Law
According to SC’s implied consent laws, any person who drives a motor vehicle in the state is considered to have given consent for breath, urine, or blood tests if they are arrested for a DUI-related offense.
Did you give consent to provide a breath or blood test? No…
Affirmatively, you did not. Neither did I. But impliedly, we did when we were provided with a driver’s license. It’s a “legal fiction” created by the legislature with the natural result of getting people to provide evidence against themselves when they are accused of DUI.
You have the right to refuse the breathalyzer – if you do, however, your license will be suspended. On the other hand, if you take the test and the result is .15% or greater, your license will still be suspended.
The length of the suspensions for refusing the breath test or for a breath test result of .15% or greater are shown in the chart below:
| Prior Convictions During Past 10 Years | License Suspension Period for BAC of .15% or higher | License Suspension Period for Refusing the Breathalyzer |
| 0 | 1 month | 6 months |
| 1 | 2 months | 9 months |
| 2 | 3 months | 12 months |
| 3 | 4 months | 15 months |
The only way to avoid the suspension is to request an implied consent hearing and win the hearing. If you do not request the hearing within 30 days or if you lose the hearing, the suspension will remain, you will need to enroll in ADSAP, and, depending on the BAC result, you may be required to install an ignition interlock device (IID) before you can drive again.
You Can Get a Temporary License
Once you request the administrative hearing, you can get a temporary alcohol license (TAL) from the DMV that allows you to drive until your hearing date.
After the administrative hearing, you can get your regular license back if you win the hearing, or you may be eligible for a route restricted license if you lose the hearing.
Implied Consent Hearings
Implied consent hearings are often “informal” – they might be held in a conference room instead of a formal courtroom, and they are presided over by a DMV hearing officer instead of a magistrate or municipal judge.
At the hearing, the officer must present probable cause for your DUI arrest and implied consent suspension. Then, your DUI defense attorney cross-examines the officer and, sometimes, presents additional evidence to show:
- There was no probable cause for the DUI arrest,
- The officer did not read your implied consent rights to you and provide you with a written copy,
- You did not refuse the breathalyzer, or the result was not .15% or greater,
- The officer was not certified to operator the Datamaster machine,
- The machine was not working properly at the time of the test, or
- The officer did not comply with SLED’s policy and procedure or the requirements of SC’s implied consent laws.
If the hearing officer agrees with your attorney’s arguments, if the officer does not appear (this is common for some agencies but rare for others), or the officer does not enter testimony at the hearing, the “suspension is rescinded” and you can get your regular license back from the DMV.
Questions About DUI Administrative/ Implied Consent Hearings?
If your license has been suspended due to an implied consent violation or if you are charged with DUI in SC, get an experienced DUI defense lawyer on your case immediately – there are deadlines for requesting your administrative hearing.
Your attorney can help you to prepare your defense, mitigate the consequences of a DUI charge, get you set up with a provisional license if needed, and may be able to get your DUI charges dismissed.
Give us a call at (843) 501-0602 or contact us through our website to set up a free initial consultation and find out how we can help.
