When you get pulled over on suspicion of drunk driving in South Carolina, the police will typically test your blood alcohol concentration (BAC) using a breathalyzer device. If the breathalyzer device says your BAC is above the legal limit (0.08 percent for drivers over 21 and 0.02 percent for drivers under 21), the police will arrest you on the spot for driving with an unlawful alcohol concentration (DUAC).
But, what if your BAC reading isn’t accurate? There are a number of reasons why a breathalyzer test might return a “false positive,” and arguing that your BAC reading was inaccurate can be an effective way to fight a DUAC charge in South Carolina.
With that said, it won’t be possible to challenge your BAC reading in all cases. Additionally, even if you successfully challenge your BAC reading, this won’t necessarily protect you against a conviction. Here’s what you need to know about challenging a false positive BAC reading in South Carolina:
While breathalyzer test results are often accurate, it is not unusual for a test to result in a false positive. Here are eight examples of reasons why a BAC reading might be inaccurate or unreliable—and therefore inadmissible in South Carolina criminal court:
1. The Breathalyzer Device Wasn’t Properly Maintained or Calibrated
Breathalyzer devices don’t just work. In order to function properly, they must be maintained and calibrated on a regular basis. If police records show that the breathalyzer device used during your traffic stop wasn’t properly maintained or calibrated—or if the police department doesn’t have maintenance or calibration records—this may provide grounds to argue that your BAC was artificially inflated.
2. The Arresting Officer Improperly Administered the Breathalyzer Test
In addition to properly maintaining and calibrating their breathalyzer devices, the police must also properly administer breath tests during drunk driving traffic stops. The officer administering the test must be, “trained and certified by the South Carolina Criminal Justice Academy, pursuant to [South Carolina Law Enforcement Division (SLED)] policies,” and the officer must follow SLED’s established guidelines. If the officer who administers the test is not certified or does not follow the SLED guidelines, then the test could very easily result in a false positive BAC reading.
3. You Have a Medical Condition
Certain types of medical conditions can impact your BAC. These include gastroesophageal reflux disease (GERD), having a high red blood cell count, and having a high ketone level. If you have (or had) any condition that could have impacted your BAC reading at the time of your traffic stop, then this could provide a defense to your DUAC charge.
4. You Were on Medication
Certain types of medications can also impact your BAC. Oral pain relievers, cough suppressants, cold and flu medications (such as Nyquil), and various other prescription and over-the-counter drugs can all cause an elevated BAC without any alcohol consumption.
5. You Had Recently Eaten Something
Breads, chocolates, hot sauces, fruits, protein bars, and various other foods can cause a false positive reading on a BAC test. The same is true of energy drinks, certain sodas, and even non-alcoholic beers and wines. If you had consumed any of these foods or drinks shortly before your drunk driving arrest, this could explain why your BAC was elevated even though you hadn’t been consuming alcohol.
6. You Had Recently Used Mouthwash or a Breath Mint
Mouthwashes, breath mints, and breath sprays often have alcohol-based ingredients, but using these products does not make you guilty of drunk driving. If you had breath mint or a breath spray in your car, or if you had recently used mouthwash before getting behind the wheel, this could save you from a DUAC conviction in South Carolina.
7. You Had Mouth Alcohol
When you blow into a breathalyzer device, the device doesn’t just read the alcohol concentration in your blood. It also picks up any residual alcohol in your mouth (often simply referred to as “mouth alcohol”). If you had mouth alcohol because you had recently been drinking (or you had recently consumed a breath mint or other product), this could have falsely inflated your BAC reading.
8. Your BAC Rose After the Police Pulled You Over
When you consume alcohol, your BAC does not rise immediately. Instead, it takes time for the alcohol to enter your bloodstream and increase your BAC. As a result, it is possible that your BAC was under the legal limit while you were driving, and it only went over the legal limit after the police pulled you over.
If Your BAC Reading was Inaccurate, You Could Still Be Convicted of Driving Under the Influence (DUI)
Successfully challenging a false positive BAC reading can save you from a DUAC conviction in South Carolina. However, even if your BAC reading was inaccurate, you could still potentially be convicted of driving under the influence (DUI).
DUAC and DUI are two different types of drunk driving charges under South Carolina law. While a DUAC charge is based solely on your BAC, a DUI charge is based solely on your inability to drive safely due to alcohol impairment. This means that you can be convicted of DUI even if your BAC reading was flawed, and even if your BAC was below the legal limit.
With this in mind, as you are preparing to fight your drunk driving case in South Carolina, you need to make sure that you are asserting all necessary and available defenses. If you focus solely on disputing your breathalyzer test result, you could still find yourself facing the consequences of a DUI conviction.
Discuss Your Case with a Rock Hill Drunk Driving Defense Lawyer
Were you arrested for drunk driving in South Carolina, and do you believe that your BAC reading was inaccurate? If so, we encourage you to contact us for a free consultation about your case. To speak with an experienced Rock Hill DUI defense lawyer in confidence, call 803-328-8822 or request an appointment online now.
In South Carolina, there are two main types of drunk driving charges. The first is driving under the influence (DUI). If your “faculties to drive a motor vehicle are materially and appreciably impaired,” you can be charged with DUI regardless of your blood alcohol concentration (BAC).
The second type of drunk driving charge in South Carolina is driving with an unlawful alcohol concentration (DUAC). This is what is known as a “per se” offense. If your BAC is above the legal limit of 0.08, you can be charged with DUAC even if your alcohol consumption has not “materially and appreciably impaired” your ability to drive.
Since a DUAC charge is based entirely on your BAC and not actual evidence of impairment, defending against a DUAC charge differs from defending against a DUI charge in several important ways. With this in mind, here’s what you need to know if you have been charged with DUAC in Rock Hill, SC:
1. It Doesn’t Matter if You Were Driving Safely
Since a DUAC charge only takes into consideration your BAC, it doesn’t matter if you were driving safely. This is based on Section 56-5-2933(A) of the South Carolina Code of Laws, which 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 section is guilty of the offense of driving with an unlawful alcohol concentration and, upon conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail must be punished [according to the law].”
As you can see, if your BAC was 0.08 or above, this alone is enough to establish guilt for DUAC. So, while you might have been perfectly capable of driving your vehicle safely, this won’t serve as a defense in your DUAC case.
2. It Doesn’t Matter if You “Passed” the Field Sobriety Tests
It also doesn’t matter if you “passed” the field sobriety tests (FSTs). In fact, if you submitted to the FSTs (which isn’t required in South Carolina) and you were charged with DUAC instead of DUI, this is probably because of the fact that you did not show any signs of alcohol intoxication.
But, again, even though you may not have been impaired, this doesn’t matter when you get charged with DUAC. Instead, as discussed below, your defense strategy will need to focus on challenging the legality of your traffic stop and/or the validity of your BAC reading.
3. DUI and DUAC Carry the Same Penalties in South Carolina
Despite the fact that a DUAC charge does not require evidence of impairment, a DUAC carries the same penalties as a DUI in South Carolina. This means that for a “standard” offense (involving a BAC of 0.08 to 0.10 and no accident), a conviction could mean:
- First Offense – A $400 fine, assessments and surcharges, 48 hours to 30 days in jail, and a six-month driver’s license suspension.
- Second Offense – A $2,100 to $5,100 fine, assessments and surcharges, five days to 12 months of jail time, and a one-year driver’s license suspension.
- Third Offense – A $3,800 to $6,300 fine, assessments and surcharges, 60 days to three years in jail, and a two to four-year driver’s license suspension.
- Fourth or Subsequent Offense – Court-determined fines, assessments, and surcharges; one to five years of jail time; and permanent revocation of your driver’s license.
4. What Happened During Your Traffic Stop is Extremely Important
Given that you cannot defend against a DUAC by arguing lack of impairment, your defense strategy needs to focus elsewhere. In many cases, this means arguing that your traffic stop was unlawful. If the arresting officer lacked “reasonable suspicion” to pull you over, for example, then your BAC test result may be inadmissible in court. As a result, it is important to write down every detail you can remember and to go over your traffic stop from start to finish with your defense attorney.
5. There are a Number of Ways to Defend Against a DUAC Charge
In addition to challenging the legality of your traffic stop, there are a number of other potential defenses to a South Carolina DUAC charge. For example, it may also be possible to avoid a conviction by arguing that:
- The Arresting Officer Failed to Explain Your Rights – Before administering a breath test during a drunk driving traffic stop, the arresting officer is required to explain your rights under South Carolina’s implied consent law. If the arresting officer did not explain your rights, this could provide a defense to your DUAC.
- The Breathalyzer Device Wasn’t Calibrated – Breathalyzer devices require careful calibration in order to produce reliable BAC readings (and even with proper calibration, they still don’t always provide accurate results). If the device the arresting officer used during your traffic stop wasn’t calibrated, then your BAC reading may be inadmissible in court.
- The Arresting Officer Didn’t Administer the Breath Test Properly – If the arresting officer didn’t administer the breath test properly, this could also make your BAC reading inadmissible. State and local police must follow specific protocols when administering breath tests in order to ensure that suspects’ BAC readings are reliable (or as reliable as possible).
- There is a Lawful Explanation for Your High BAC – Drinking alcohol isn’t the only thing that can cause a high BAC reading. For example, if you had acid reflux or GERD, if you had recently taken a medication, or even if you had recently used mouthwash or a breath mint, this could explain your over-the-limit BAC.
- Your Blood or Urine Sample was (Possibly) Contaminated – If you took a blood or urine test instead of a breath test, the prosecutor must be able to prove that your sample wasn’t contaminated. If there is any chance that it was contaminated, then your attorney might be able to keep it out of court.
Facing a DUAC Charge in Rock Hill, SC? Talk to a Defense Lawyer Today
If you face a DUAC charge in Rock Hill, you should promptly talk to a DUI defense lawyer. To find out what defenses you can use to fight your South Carolina DUAC, call 803-328-8822 or request a confidential consultation online now.
Driving under the influence of alcohol is not the only way to get a DUI charge in South Carolina. You can also be charged with DUI for driving under the influence of drugs (“DUI drugs”). While there are some similarities between DUI cases involving alcohol and drugs, there are also important differences, and you will need to hire a lawyer who has experience handling your specific charge.
What is DUI Drugs in South Carolina?
South Carolina’s DUI statute applies to both alcohol and drugs. Under Section 56-5-2930(A) of the South Carolina Code of Laws:
“It is unlawful for a person to drive a motor vehicle within this State while under the influence of alcohol . . . [or] any other drug or a combination of other drugs or substances which cause impairment to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired . . . .”
Since DUI and DUI drugs are technically the same offense, they are also subject to the same penalties. This means that if you have been charged with DUI drugs in South Carolina, you could be facing:
First-Time DUI Charge
- $400 fine
- Additional assessments and surcharges
- Six-month driver’s license suspension
- Minimum 48-hour jail sentence (up to 30 days)
- Possible community service in lieu of jail time
- Alcohol and Drug Safety Action Program completion
Second-Time DUI Charge
- $2,100 to $5,100 fine
- Additional assessments and surcharges
- One-year driver’s license suspension
- Five days to one year of jail time
- Alcohol and Drug Safety Action Program completion
Third-Time DUI Charge
- $3,800 to $6,300 fine
- Additional assessments and surcharges
- Two-year driver’s license suspension
- 60 days to three years of jail time
- Alcohol and Drug Safety Action Program completion
Fourth or Subsequent DUI
- Court-determined fines, assessments, and surcharges
- Permanent driver’s license revocation
- One to five years of jail time
- Alcohol and Drug Safety Action Program completion
The fact that DUI and DUI drugs are technically the same offense also means that you can be charged as a repeat offender if you have a prior alcohol-related DUI and you are now facing a charge for DUI drugs. Likewise, if you have a prior drug-related DUI conviction involving a different drug from the one involved in your current case, you can still be charged with a second (or subsequent) DUI drugs.
What are Potential Defenses to a DUI Drugs Charge in South Carolina?
If you have been charged with driving under the influence of marijuana, methamphetamine, prescription painkillers, or any other legal or illegal drug, what defenses can you assert in South Carolina court? The answer to this question depends on the specific facts of your case. Generally speaking. However, some examples of potential defenses to drug-related DUI charges in South Carolina include:
1. You Were Not Under the Influence of a Drug (or Drugs)
One potential defense is that you were not actually driving under the influence of drugs. If the arresting officer mistakenly assumed that you were under the influence (maybe because he or she found drugs or drug paraphernalia in your vehicle), your attorney can seek to challenge the prosecution’s evidence that you were violating the law.
2. Your Ability to Drive was Not “Materially and Appreciably Impaired”
Even if it is not possible to dispute the fact that you were driving under the influence of drugs, you may still be able to avoid a DUI drugs conviction by arguing that you were not “materially and appreciably impaired.” This language in South Carolina’s DUI statute establishes a high bar for prosecutors; and, while there may be evidence (i.e., dash camera footage) demonstrating your impairment, it may be possible for your attorney to challenge this element of the government’s case as well.
3. The Police Stopped You Illegally
To conduct a lawful traffic stop, the police must have “reasonable suspicion” that the person stopped is guilty of a crime. If the police stopped you without reasonable suspicion, then any evidence obtained after your traffic stop may be inadmissible in court.
When can you assert a lack of reasonable suspicion as a defense? While there are several possible scenarios, racial profiling is easily among the most common grounds. However, if the police pulled you over for a busted taillight and then charged you with DUI drugs, this does not mean that they lacked reasonable suspicion to make an arrest.
4. The Police Conducted an Illegal Search, Seizure, or Arrest
In addition to having “reasonable suspicion” to conduct a traffic stop, the police must also have “probable cause” to conduct a search or seizure—or to make an arrest. If the police violated your Fourth Amendment rights by conducting an illegal search, seizure, or arrest, this could also provide grounds to seek suppression of the prosecution’s evidence against you.
5. Your Blood or Urine Test Results are Unreliable
If you took a blood or urine test, there are several ways that your defense attorney may be able to challenge your test results. One option is to show that the arresting officer failed to inform you of your rights under South Carolina’s implied consent law. Other possible options include:
- Demonstrating that the test was administered improperly;
- Demonstrating that your sample was (or may have been) tainted; and,
- Arguing that the results do not prove you were impaired at the time of your traffic stop.
As mentioned above, these are just examples. There are other ways to defend against a DUI drugs charge in South Carolina as well. To find out what defenses you can use to fight your DUI drugs charge, contact us to discuss your case today.
Charged with DUI Drugs in South Carolina? Talk to a Rock Hill Criminal Defense Lawyer Today
Are you facing a DUI drugs charge in South Carolina? If so, we encourage you to contact us promptly to discuss your case. To speak with an experienced Rock Hill criminal defense lawyer in confidence, call 803-328-8822 or tell us how we can reach you online now.
A DUI arrest can change your life. There is simply no other way to put it. From losing your driver’s license to losing your job – not to mention the possibility of facing jail time – the consequences of getting arrested for drunk driving in South Carolina can be severe.
With this in mind, when facing a DUI charge, there is a lot you need to know. There are steps you need to take, there are mistakes you need to avoid, and there are realities with which you need to come to terms. Previously, we wrote about seven mistakes to avoid after a DUI arrest in South Carolina. Now, here are seven steps you can (and should) take to mitigate the consequences of your arrest:
7 Steps to Take After a DUI Arrest in South Carolina
Step #1: Know Your Rights
Driving under the influence (DUI) is a crime in South Carolina, and this means that, as a criminal defendant, you have many legal rights. You need to be aware of these rights so that you can assert them effectively, and so that you can discuss any potential violations of your legal rights with your DUI defense lawyer. If the police or prosecutors violate your rights, there are legal remedies available, and you may be able to use these remedies to avoid a conviction at trial.
You had rights during your traffic stop, you had the right rights when you were at the police station, and you have rights now has your DUI case is pending in South Carolina state court. These rights include (but are not limited to):
- The right to an attorney
- The right to be free from unreasonable searches and seizures
- he right to remain silent
- The right to know the state’s evidence
- The right to a speedy trial
Learn more: What are Your Constitutional Rights After an Arrest in South Carolina?
Step #2: Get a Lawyer
Since you are reading this, we will assume that you haven’t yet hired a lawyer. Now is the time to do so. DUI cases are complex, and the consequences are severe, and you cannot afford to try to handle your case on your own.
From helping you assert your constitutional rights to simply helping you understand what is going on in your DUI case, there are many ways that an experienced South Carolina DUI lawyer will be able to help you. You only get one chance to defend yourself. If you make mistakes because you don’t know any better, those mistakes could haunt you for the rest of your life.
Learn more: Why Do You Need a Lawyer for SC DUI Charges?
Step #3: Get Ready for Your Administrative Hearing
One fact most people don’t know about South Carolina DUI cases is that there are two entirely separate legal processes involved. There is the criminal justice process that culminates with a trial in court (unless your attorney can secure a favorable pre-trial resolution); but, before your trial, there is an administrative hearing.
When you get arrested for DUI, you will lose your license as the result of an “administrative suspension.” This administrative suspension happens automatically before your trial unless you request an administrative hearing. During your administrative hearing, your lawyer can present arguments for why your license should not be suspended, and this is the only way to protect your driver’s license while your DUI case is pending.
Learn more: DUI in South Carolina? Know the Administrative Penalties
Step #4: Learn about the consequences of a DUI Conviction
If you get convicted of driving under the influence, the criminal penalties you will face will depend on your criminal history. In South Carolina, repeat offenders are punished far more severely than individuals charged with first-time DUIs—though even first offenses carry the potential for up to 30 days in jail.
To make sure you give your DUI case the attention it deserves, you need to know what is at stake. Once you know, you will almost certainly have a different perspective on the severity of your situation.
Learn more: Criminal Penalties for a DUI in South Carolina
Step #5: Separate Fact from Fiction
Just as there are steps you need to take and mistakes you need to avoid, there are facts you need to know and myths of which you need to be aware. When defending against a South Carolina DUI charge, you cannot afford to make bad decisions based on faulty information. You need to know your rights, you need to know what to expect in court, and you need to know what it takes for the prosecutor’s office to secure a conviction.
Learn more: Fact or Fiction: 6 Myths about Criminal Trials in South Carolina
Step #6: Get Proactive About Your Defense
When facing a DUI charge, one of the worst things you can do is sit back and let the criminal justice process run its course. While you have legal rights, the system is not designed to protect you, and the consequences of inaction can be severe.
Instead, you need to get proactive about your defense. Avoid making assumptions, and make sure you are doing everything in your power to secure a favorable result. Even if you were drinking and driving, you could still have defenses to DUI.
Learn more: Charged with DUI in South Carolina?
Step #7: Work Closely with Your Lawyer
Finally, while your lawyer will handle much of your case for you, you will still need to remain actively involved. From discussing possible defenses to preparing for your day in court, the more engaged you are, the better the outcome of your case is likely to be.
Learn more: What Happens After You Get Arrested in South Carolina?
Arrested for DUI? Speak with a Rock Hill, SC DUI Defense Lawyer Today
Have you been arrested for driving under the influence in South Carolina? To schedule an initial confidential consultation with DUI defense lawyer at The Law Offices of Michael L. Brown, Jr. in Rock Hill, call 803-328-8822or request an appointment online now.
Last year, we wrote about our tips for avoiding a DUI charge during the holiday season. But, what if it’s too late? What if you got pulled over during the holidays and you are now at risk for having a DUI conviction on your permanent record?
Facing a DUI charge in South Carolina is a very serious matter. In South Carolina, a DUI charge can lead to both administrative and criminal penalties, and the impacts of a conviction can extend to virtually all aspects of your life. Getting into school, getting around town, finding a job, keeping a job, and protecting your parental rights during a divorce or custody dispute are all harder with a DUI on your record. When you add in the financial costs, a DUI conviction can truly be a life-altering experience.
Here’s What You Need to Know if You Need to Fight a Holiday DUI
When faced with a DUI charge, the most important thing you need to know is that it is up to you to protect yourself. The prosecutor’s office is going to pursue your case, and the judge isn’t going to go easy on you because you got pulled over during the holidays. Driving drunk is dangerous. It is against the law. These facts don’t change with the seasons, and prosecutors and judges have an obligation to penalize those who break the law while putting others in harm’s way.
Here are seven more key facts about facing a DUI charge in South Carolina:
Key Fact #1: You Might Not Be Guilty.
You were arrested for DUI. An arrest is not a conviction, and it is not a finding of guilt. While the police rightfully pull over drivers who are under the influence, they also arrest people who are not actually guilty of DUI.
Do you take medications? Was there a long period of time between your traffic stop and your breath test? Could the breathalyzer have been improperly calibrated? Were you tired driving home late from a family gathering or holiday party? Do you have a medical condition? These are all possible explanations for driving behavior or a high blood alcohol concentration (BAC) reading that might not actually be indicative of drunk driving. There are numerous other factors that can explain unusual driving patterns, high BAC, blood shot eyes, slurred speech, and other common indicators of drunk driving as well.
Key Fact #2: Even If You Were Driving Under the Influence, You StillMight Have Defenses Available.
Let’s say none of the above defenses apply in your case. You were driving drunk, and you know it. Even if this is the case, you could still have several defenses in your South Carolina DUI case.
As a South Carolina resident, you have fundamental rights. The police cannot stop you without reasonable suspicion, and they cannot arrest you without probable cause. The police also cannot question you in custody without reading your Miranda rights. If the police violated any of your rights during your traffic stop or after your arrest, you may be able to use this to avoid a DUI conviction.
Key Fact #3: In South Carolina, DUIs Carry Administrative and Criminal Penalties.
As we mentioned above, DUIs carry two types of penalties in South Carolina: administrative and criminal. Administrative penalties are imposed by the South Carolina Department of Motor Vehicles (DMV) and include driver’s license suspension, financial penalties, and mandatory alcohol counseling. If you are convicted at trial, you can face additional fines and up to 30 days in jail for a first-time offense.
Key Fact #4: Your BAC Isn’t the Only Evidence Against You.
You got pulled over, you took the breathalyzer test, and you blew below the legal limit (which is 0.08 percent for adults in South Carolina). But, you were still charged with DUI. Or, maybe you are convinced that the breathalyzer test wasn’t administered properly. Does this mean it is case closed?
Unfortunately, not. While breathalyzer test results are a key piece of evidence in many South Carolina DUI cases, they are by no means the only source of evidence available to the prosecution. From the arresting officer’s observations (or dash cam video) to your performance on the field sobriety tests, there are various other types of evidence that can be used to prove that you were driving drunk. Additionally, while driving with a BAC of 0.08 or above is considered DUI per se, you do not have to be above the legal limit in order to be guilty of DUI.
Key Fact #5: Mistakes Can Be Incredibly Costly.
When dealing with a DUI charge, mistakes can be incredibly costly. In some cases, mistakes can not only significantly reduce the chances of asserting a successful defense, but they can even increase the penalties that are on the table (i.e. if you get arrested for DUI again while your case is pending). As a defendant in the South Carolina criminal justice system, it is critical that you have a clear understanding of the mistakes you need to avoid.
Key Fact #6: You Could Be Facing Charges in Addition to Your DUI.
In addition to facing a DUI charge, many individuals who are pulled over for drunk driving in South Carolina will face additional charges as well. For example, if you refused the breath test (or if the arresting officer thought you refused the breath test), you could be charged with an implied consent violation. South Carolina also has open container laws that impose fines and up to 30 days of jail time for first-time offenders.
Key Fact #7: You Need a Lawyer.
If you are facing a DUI charge in South Carolina, you need a DUI lawyer. You need to protect yourself by all means available, and this means hiring a lawyer who can use his or her experience to defend you effectively. Read our tips for choosing a DUI defense attorney: How to Find a Lawyer for DUI Charges in SC.
Schedule Free Consultation with a DUI Attorney in Rock Hill, SC
Were you charged with DUI during the holidays? Take our DUI attorney free consultation in Rock Hill, South Carolina. Call our lawyer at 803-328-8822 or request an initial consultation online now.