Facing a South Carolina DUI? Don’t Rely on These “Defenses” That Will Fail in Court

by Michael L. Brown, JR. | Sep 1, 2022 | DUI Charges

When you are facing a DUI charge in South Carolina, there are defenses that work, and there are “defenses” that don’t. While the defenses you have available depend on the specific facts of your case, there are mistakes that can jeopardize your case regardless of the circumstances involved.

With this in mind, if you have been charged with driving under the influence in South Carolina, you need to make sure you are making smart decisions. You need to assert the defenses you have available, and you need to avoid saying things that could land you in jail.

10 “Defenses” That Can Lead to a DUI Conviction in South Carolina

What are the mistakes you need to avoid? Here are 10 common “defenses” that can lead to a DUI conviction in South Carolina:

1. You Didn’t Realize You Were Too Drunk to Drive

Under South Carolina law, driving under the influence (DUI) is a “strict liability” offense. This means that it doesn’t matter whether you realized you were too drunk to drive. Even if you didn’t mean to break the law, driving drunk is still a criminal act. By saying, “I didn’t realize I was too drunk to drive,” you are effectively admitting to DUI, and the prosecution will use your words against you.

2. You Only Had One Drink

In South Carolina, it doesn’t matter how much you had to drink. If your blood alcohol concentration (BAC) is 0.08% or above, or if your “faculties to drive a motor vehicle are materially and appreciably impaired,” you are not allowed to drive. So, regardless of whether or not it is true that you only had one drink, the simple fact is that it doesn’t matter. If prosecutors have admissible evidence of your BAC or of your impaired state, you can face a DUI conviction under South Carolina law.

3. You Were Only a Little Buzzed

Buzzed driving is drunk driving. If you admit to being buzzed behind the wheel, this too is effectively an admission to DUI. One of the problems with trying to justify your decision to drive is that alcohol impairs your decision-making capacity. If you admit to knowing you were buzzed, the judge will say that this means you weren’t capable of making an informed decision—and this means that you shouldn’t have put yourself behind the wheel.

4. You Had to Drive to Get Home

While “necessity” can be a valid defense in some cases, not having a ride home does not justify the decision to drive drunk. From Uber and Lyft to taxis and public transportation, these days there are plenty of ways to get where you need to go—and the judge knows it. Even if your designated driver left you at the bar, this is not an excuse for driving while intoxicated.

5. You Thought You Waited Long Enough for Your BAC to Go Down

Most of us are familiar with the general rule that the liver can process about one standard drink per hour. But, there are many factors that can affect how quickly your body absorbs alcohol, and just because someone else can drive after a few hours, this doesn’t necessarily mean that you can do so safely. Even if you tried to do the right thing and wait until your BAC went down, if you didn’t wait long enough, you can still be found guilty of DUI.

6. You Were Still Driving Safely Even Though Your BAC was High

South Carolina’s DUI lawyer establishes two ways prosecutors can prove your guilt. Prosecutors can prove that your ability to drive was “materially and appreciably impaired,” or they can prove that your BAC was 0.08% or above. They do not need to prove both. So, even if you were capable of driving safely while your BAC was above the legal limit, the fact that your BAC was above the legal limit means you are guilty of DUI.

7. The Police Stopped You For Speeding (Not for Driving Under the Influence)

When you are facing a DUI charge, it doesn’t matter why the police pulled you over (unless they pulled you over for an illegal reason, such as based on your race or color). If the police stopped you for speeding and then discovered that you appeared to be intoxicated, they had the ability—and the responsibility—to test you for DUI.

8. The Police Didn’t Read Your Rights

While the police must read your Mirada rights prior to conducting custodial interrogation, they do not have to read your rights before your arrest. Additionally, under no circumstances are the police required to explain your right to refuse the field sobriety tests. Failure to read your rights can serve as a defense in some cases, but only under certain circumstances, and only if you know how to raise this defense effectively.

9. You Weren’t Driving When the Police Approached Your Vehicle

What if you were already stopped on the side of the road? The police didn’t see you driving, so does this mean that your DUI arrest was invalid?

Not necessarily.

There are plenty of ways the prosecution can prove you were driving drunk even if the police didn’t pull you over. From traffic camera footage to eyewitness statements (or your own statements) and the simple fact that there was no way to get where you were without driving, prosecutors may be able to use various forms of evidence to secure a DUI conviction.

10. You’re Sorry and You Won’t Do It Again

Finally, when facing a DUI charge, the fact that you are sorry doesn’t matter. South Carolina judges don’t go easy on DUI defendants, and you can’t avoid a conviction simply by showing remorse. Instead, you need to assert the real DUI defenses you have available, and you need to take a strategic approach focused on avoiding mistakes and securing the best outcome possible.

Discuss Your Case with a Rock Hill, SC DUI Defense Lawyer in Confidence

Are you facing a DUI charge in South Carolina? If so, we encourage you to contact us for more information. To schedule a free and confidential consultation with a Rock Hill, SC DUI defense lawyer, call 803-328-8822 or tell us how we can reach you online now.

Are You Facing a Felony DUI Charge in Rock Hill, South Carolina?

by Michael L. Brown, JR. | Nov 1, 2021 | DUI Charges, DUI Lawyer

In South Carolina, a felony DUI is a serious crime. Felony DUIs carry mandatory sentences, and having a felony conviction on your record can negatively impact virtually all aspects of your life.

While there are ways to fight felony DUI charges, avoiding unnecessary consequences requires a strategic defense. You will need to work with an experienced defense lawyer, and you will need to take affirmative steps to target a favorable resolution well in advance of your trial. Here are seven more important facts you need to know if you are facing a felony DUI charge in Rock Hill, SC:

1. Felony DUI is Very Specific Crime

You can only be convicted of a felony DUI in South Carolina under certain specific circumstances. The law states that in order to be convicted of a felony DUI, you must, “while under the influence of alcohol, drugs, or the combination of alcohol and drugs, drive[] a motor vehicle and when driving a motor vehicle do[] any act forbidden by law or neglect[] any duty imposed by law in the driving of the motor vehicle, which act or neglect proximately causes great bodily injury or death to another person . . . .” If prosecutors cannot prove each element of the crime, then you are not guilty of a felony DUI.

2. You Can Defend Against a Felony DUI By Arguing Against the Prosecution’s Evidence of Impairment

To secure a conviction for felony DUI, prosecutors must be able to prove that you were, “under the influence of alcohol, drugs, or the combination of alcohol and drugs.” Your blood alcohol concentration (BAC), your performance on the field sobriety tests (FSTs), and the arresting officer’s observations all serve as possible evidence of impairment. However, it is possible to challenge each of these forms of evidence under appropriate circumstances, and arguing that the prosecution cannot prove you were drunk can be an effective defense strategy in many cases.

Importantly, South Carolina law provides that if a person’s BAC is 0.08 percent or above, “it may be inferred that the person was under the influence of alcohol.” In other words, if you blew 0.08 percent or above on the breathalyzer, you are facing an uphill battle. But, there are various ways to challenge breathalyzer results, and it will be possible to overcome this inference with additional evidence in some cases.

3. You Can Defend Against a Felony DUI By Arguing Against the Prosecution’s Evidence that You Caused the Accident

Even if you were driving under the influence, this does not necessarily mean that you caused the accident. Your brakes could have failed, the other driver could have been distracted, or any of a number of other factors could be to blame for the collision. If you did not make a mistake that “proximately cause[d]” the accident, then you might be guilty of DUI, but you are not guilty of felony DUI.

4. You Can Defend Against a Felony DUI By Arguing Against the Prosecution’s Evidence of “Great Bodily Injury”

Let’s assume that you were driving under the influence, and let’s also assume that your impairment was a factor in the crash. This still isn’t enough to establish guilt for a felony DUI under South Carolina law. Prosecutors must also be able to prove that the accident caused “great bodily injury” or death.

South Carolina law defines “great bodily injury” as, “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” What constitutes a “substantial risk of death”? When is a loss or impairment considered “protracted”? These questions don’t necessarily have clear answers, and this ambiguity could work to your advantage in your felony DUI case.

5. You Can Defend Against a Felony DUI By Asserting Your Constitutional Rights

Now, let’s assume that you caused an accident resulting in “great bodily injury” or death while you were drunk. Does this mean that the prosecution has an open-and-shut case? Not necessarily.

As a criminal defendant in South Carolina, you are entitled to all of the protections afforded by the U.S. Constitution. This includes the protection against unreasonable searches and seizures and the protection against self-incrimination—among many others. If police or prosecutors violate your constitutional rights at any stage of your felony DUI case, this could provide a defense that you can use to avoid a conviction.

6. Felony DUI Charges Carry Mandatory Penalties

If you get convicted of a felony DUI in South Carolina, you will be subject to mandatory penalties. These mandatory penalties include fines and prison time, and you will be required to serve at least a portion of your prison sentence without suspension. South Carolina law also prohibits judges from granting probation for any portion of a felony DUI sentence.

In addition to fines and jail time, you will face a mandatory driver’s license suspension; and, once you serve your sentence, you will be required to enroll in South Carolina’s Ignition Interlock Device Program. You will then be required to obtain an ignition interlock restricted license, and you will need to install an ignition interlock device in your vehicle for three years (or five years in the case of an accident resulting in death).

7. You Cannot Afford to Take Chances When Facing a Felony DUI Charge

Given the severe consequences of a felony DUI conviction, you cannot afford to take chances. You need to take your case very seriously, and you need to defend yourself by all means available. A lawyer who is experienced in handling felony DUI cases will be able to examine your case from all angles, identify any and all defenses you have available, and pursue a defense strategy focused on protecting you to the fullest extent possible.

Schedule a Free Consultation with a Rock Hill Felony DUI Lawyer

If you are facing a felony DUI charge in Rock Hill, we encourage you to contact us promptly for a free consultation. To speak with an experienced Rock Hill felony DUI lawyer in confidence, call 803-328-8822 or request an appointment online now.

South Carolina DUI Laws: What You Need to Know After an Arrest

by Michael L. Brown, JR. | Oct 1, 2021 | DUI Charges, DUI Lawyer

South Carolina’s drunk driving laws are strict. You can be convicted for having a blood alcohol concentration (BAC) of 0.08% regardless of your level of impairment, and a conviction for a first-time offense can mean fines, jail time, and other penalties.

If you are facing a drunk driving charge, it is important to understand how South Carolina’s DUI laws apply to your situation. Is your BAC enough to warrant a conviction? Could you be facing charges in addition to a DUI? What penalties are at stake in your case? These are all critical questions—and you need to learn the answers as soon as possible.

Overview of South Carolina’s DUI Laws

So, you are facing a DUI charge in South Carolina. What do you need to know? Here is an overview of South Carolina’s DUI laws:

Operating a Motor Vehicle While Under the Influence of Alcohol

There are two ways you can face a DUI charge in South Carolina. The first involves operating a vehicle while under the influence of alcohol. Under Section 56-6-2930 of the South Carolina Code of Laws, if you are “under the influence of alcohol to the extent that [your] faculties to drive a motor vehicle are materially and appreciably impaired,” then you can face a DUI charge regardless of your BAC.

Driving with an Unlawful Alcohol Concentration (Per Se DUI)

The second way you can face a DUI charge in South Carolina is based on your BAC. If you are driving and your BAC is 0.08% or above, then you are in violation of South Carolina law. For this type of DUI charge, it doesn’t matter whether you are still able to drive safely. If your BAC is over the legal limit, this alone is enough to establish criminal culpability. This is known as a per se DUI.

Penalties for a DUI in South Carolina

Under South Carolina law, the penalties for operating a motor vehicle while under the influence of alcohol and for a per se DUI are the same. These penalties increase for high BACs and for second and subsequent offenses. If you are facing a DUI charge as a first-time offender and your BAC was less than 0.10% (or your BAC wasn’t measured), the penalties you are facing under South Carolina’s DUI laws include:

Up to a $400 fine
Nearly $600 in additional assessments and surcharges
48 hours to 30 days in jail (the judge may sentence you to community service in lieu of jail time)
Loss of your driver’s license for six months

If your BAC was 0.10% or above, you are facing up to a $500 fine and a minimum of 72 hours of jail time or community service. If your BAC was 0.16% or above, you are facing up to a $1,000 fine and a minimum of 30 days of jail time or community service.

The penalties for repeat offenders increase dramatically under South Carolina’s DUI laws. For example, if this is your second offense, you are facing $2,100 to $5,100 in fines plus an additional $5,600 in assessments and surcharges. You are also facing up to one year in jail and a one-year driver’s license suspension. If this is your third offense, you are facing more than $13,000 in financial penalties, up to three years of imprisonment, and loss of your driving privileges for two years.

Felony DUI

In most cases, a DUI is a misdemeanor offense under South Carolina law. However, it is possible to face a felony DUI charge in some circumstances.

Specifically, prosecutors can pursue felony DUI charges in cases involving accidents resulting in “great bodily injury or death.” Under Section 56-5-2945 of the South Carolina Code of Laws, “great bodily injury” is defined as an injury that, “creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

In felony DUI cases, the penalties that are at stake depending on whether the accident results in great bodily injury or death. When an accident results in great bodily injury, potential penalties include more than $20,000 in financial liability and anywhere from 30 days to 15 years of imprisonment. When an accident results in death, potential penalties include more than $50,000 in financial liability and from one to 25 years behind bars.

Implied Consent Violations

Under South Carolina’s implied consent law (Section 56-5-1950 of the South Carolina Code of Laws) all drivers are required to submit to a breath, blood, or urine test when they get pulled over on suspicion of DUI. If you refuse testing during a DUI stop, you can be charged with an implied consent violation in addition to being charged with a DUI.

Under Section 56-5-2951, implied consent violations carry an automatic 90-day driver’s license suspension. This increases to 180 days if you have a prior alcohol-related conviction or suspension on your record. However, similar to DUI charges, there are several potential defenses to implied consent violations, and you should consult with a lawyer promptly about protecting your ability to drive.

Open Container Violations

In addition to implied consent violations, many individuals who are charged with DUI in South Carolina will also face charges for open container violations. Under Sections 61-4-110 and 61-6-4020 of the South Carolina Code of Laws, if you have an open container anywhere in your vehicle except the trunk or luggage compartment, you can face an additional $100 fine and up to 30 days in jail.

While South Carolina’s DUI laws establish several different offenses that carry several different penalties, the laws establish several defenses to DUI charges and related offenses as well. For an overview of these defenses, you can read 5 Types of Defenses to DUI Charges in South Carolina.

Talk to a Rock Hill, SC DUI Lawyer for Free

If you are facing a DUI charge in South Carolina, it is important that you speak with a lawyer as soon as possible. To schedule a free, no-obligation consultation with Rock Hill, SC DUI lawyer Michael L. Brown, Jr., call 803-328-8822 or get in touch online now.

7 Ways to Challenge Your Field Sobriety Test Results in South Carolina

by Michael L. Brown, JR. | Aug 1, 2021 | DUI Charges

When the police pull you over on suspicion of driving under the influence (DUI) in South Carolina, they will typically ask you to take the field sobriety tests. Unlike the breathalyzer test, you are not required to take the field sobriety tests under South Carolina law. However, if you take the field sobriety tests, prosecutors can use your results against you, and this can potentially lead to a conviction in court.

As a result, if you “failed” any of the field sobriety tests during your DUI stop, you will need to challenge your test results by all means available. While individual circumstances vary, there are several ways that a DUI defense lawyer may be able to challenge your field sobriety test results on your behalf.

Here are some examples:

1. The Officer Administered the Tests Improperly

There are three standardized field sobriety tests: (i) the one-leg stand test, (ii) the walk-and-turn test, and (iii) the horizontal gaze nystagmus test. Each of these standardized tests has a specific set of guidelines for how it is to be administered—and police officers in South Carolina are trained on how to administer these tests during DUI traffic stops.

Even so, the police don’t always administer the field sobriety tests properly. Whether they skip steps or ignore the guidelines entirely, officers can (and do) make various mistakes on the side of the road. If your arresting officer did not properly administer the field sobriety tests, then your test results may be unreliable and inadmissible in court.

2. The Officer Failed to Provide Adequate Instructions

When administering the field sobriety tests, police officers must provide adequate instructions. During your DUI traffic stop, the officer should have explained what you needed to do step-by-step. If the officer’s instructions were not clear, if the officer omitted certain instructions, or if you didn’t understand what you needed to do in order to “pass” the field sobriety tests, this could provide a defense in your DUI case as well.

3. Road, Traffic, or Weather Conditions Impacted Your Performance

Road, traffic, and weather conditions can all impact your ability to perform the field sobriety tests. When administering the tests, police officers look for certain indicators of alcohol impairment; but, while these indicators may indicate impairment, they can result from other factors as well. For example:

Road Conditions – If the road surface is uneven, if the road is covered in gravel, or if the shoulder slants away from the road, these are all factors that could make it difficult for you to maintain your balance on the one-leg stand and walk-and-turn tests.
Traffic Conditions – If cars are rushing by, this can distract you and cause you to lose your balance. Bright headlights on an approaching vehicle can also cause your eyes to dart toward the road. Since the police look for smooth eye movement during the horizontal gaze nystagmus test, this can result in a “failure” even if you are simply reacting to your surroundings.
Weather Conditions – Rain, wind, and other weather conditions can all impair your ability to perform well on the field sobriety tests. If there is any possible alternate explanation for your poor performance on the field sobriety tests, the prosecution shouldn’t be able to use your test results as evidence against you.

4. Your Shoes, Clothing, or Health Condition Impacted Your Performance

In addition to the road, traffic, and weather conditions, there are many other factors that can impact your performance on the field sobriety tests. All of the following are possible defenses to poor field sobriety test performance in a South Carolina DUI case:

Unstable shoes
Loose or tight clothing
Anxiety or nervousness
Age
Bodyweight
Eyestrain
Glaucoma
Hypoglycemia
Hip, knee, and ankle injuries
Flu and other illnesses

These are just examples. If you believe any factor other than alcohol intoxication negatively impacted your performance on the field sobriety tests during your DUI stop, you should discuss this with your defense attorney.

5. The Officer Failed to Properly Observe You

Police officers must carefully observe drivers throughout their performance of each of the three field sobriety tests. If the officer who arrested you looked away, got distracted by a call, or just generally wasn’t paying attention, he or she could have missed clues that indicated that you were not intoxicated. If dash camera footage shows this, then the footage could be key evidence in your DUI case.

6. The Officer’s Subjective Assessment was Flawed

Police officers’ assessments of drivers’ performance on the field sobriety tests are inherently subjective. There are no measurements, and the field sobriety tests do not produce any data. If it is possible that your arresting officer simply misinterpreted your performance, this could be enough to keep your field sobriety test results out of your DUI case as well.

7. Your DUI Stop was Illegal

Finally, if your DUI stop was illegal, then all of the evidence gathered during and after your stop (including your field sobriety test results, your breathalyzer test results, and anything you said to the arresting officer) could be legally inadmissible. The police are not above the law; and, if they violate the law, any evidence they obtain as a result can potentially be kept out of court. But, this will not happen automatically—it is up to you to hire a defense lawyer who can effectively assert your legal rights.

A DUI stop is illegal if the police pull you over without “reasonable suspicion”. This includes pulling you over based on your race, color, or gender. There are other possibilities as well, and an experienced DUI defense lawyer will be able to examine the circumstances surrounding your traffic stop to determine if this is a defense you have available.

Discuss Your Case with Rock Hill DUI Defense Lawyer Michael L. Brown, Jr.

Are you facing a South Carolina DUI charge? If so, you should discuss your case with a lawyer promptly. To request an appointment with Rock Hill DUI defense lawyer Michael L. Brown, Jr., call 803-328-8822 or contact us online now.

8 Ways to Fight a False Positive BAC Reading in South Carolina?

by Michael L. Brown, JR. | Jun 1, 2021 | DUI Lawyer, DUI Charges

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.

What to Know if You’ve Been Charged with DUAC in Rock Hill, SC

by Michael L. Brown, JR. | May 1, 2021 | DUI Charges

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 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.

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