Getting pulled over on reasonable suspicion of drunk driving in South Carolina puts you in front of a decision in a matter of seconds: take the breathalyzer test, or refuse it. Neither choice makes the situation disappear. What changes is which consequence you are choosing and how soon it starts.
Touma Law Group defends DUI cases from offices in Greenville, Columbia, and Anderson, and our attorneys include former prosecutors who handled these same stops from the other side of the courtroom.
Here is what South Carolina law says about the breath test decision, including the 2024 change to the ignition interlock requirements. To schedule a consultation, contact our defense law firm in Greenville today.
Refusing and Taking the Test Carry Different Consequences
A refusal always carries a license consequence. Under S.C. Code Ann. § 56-5-2951, the Department of Motor Vehicles must suspend the license of a driver who refuses the test, and the length of the suspension grows with each prior offense or suspension within the previous ten years. The same section also requires a suspension if you take the test and the result is 0.15 percent or higher, though the starting point is shorter than it is for a refusal. A result below 0.15 percent does not trigger this administrative suspension, but it can still be used in the criminal case.
The tradeoff works differently in your criminal case. Refuse, and prosecutors have no blood alcohol number to use against you, though your refusal itself may be used against you in court. Take the test, and the result becomes evidence: under S.C. Code Ann. § 56-5-2950(G), a result of 0.08 percent or more allows it to be inferred that you were under the influence of alcohol. Since May 19, 2024, a DUI conviction can also require an ignition interlock device before you drive again, which is a change that earlier guides on this topic do not reflect.
Related: Touma Law Group has an experienced Columbia DUI Lawyer ready to help with your case.
What South Carolina’s Implied Consent Law Actually Requires
Under South Carolina’s implied consent law, S.C. Code Ann. § 56-5-2950, driving on the state’s roads means you are considered to have consented to a breath, blood, or urine test if you are arrested on suspicion of DUI. The officer still has to follow specific steps before that consent means anything in practice.
- The officer must first offer a breath test. The test must be given by a person trained and certified by the South Carolina Criminal Justice Academy, following State Law Enforcement Division (SLED) policies.
- A breath sample must be collected within two hours of the arrest, and any additional samples must be collected within three hours of the arrest.
- If you cannot provide an acceptable breath sample, the officer may request a blood sample. If the officer has reasonable suspicion that you are under the influence of drugs other than alcohol, or of a combination of alcohol and drugs, the officer may order a urine sample.
- Before any test, once the video recording equipment is activated, the officer must give you a written copy of and verbally tell you your rights. These include that you do not have to take the test, the license consequences of a refusal or a result of 0.15 percent or more, your right to an independent test at your own expense, and your right to request a contested case hearing within thirty days of the notice of suspension.
Be Prepared: What to do After a DUI in Greenville
What Happens to Your License If You Refuse
A refusal triggers an automatic license suspension that begins before your criminal case is ever heard in court. Under S.C. Code Ann. § 56-5-2951(I), the suspension period for a refusal is:
- First offense: six months
- Second offense: nine months
- Third offense: twelve months
- Fourth or subsequent offense: fifteen months
A prior offense counts if it is a conviction for DUI, driving with an unlawful alcohol concentration, or felony DUI, or a similar law of another state, or if it is an earlier license suspension under the implied consent or DUI suspension laws, within the ten years before the new violation.
Instead of serving the rest of a suspension, a person may enroll in South Carolina’s Ignition Interlock Device Program. The device is then required for the time remaining on the suspension, and for at least three months if less than three months remain. Your refusal may also be used against you in court, meaning the prosecution can point to it at trial as part of its case.
What Happens to Your License if You Take the Test and the Result is 0.15 or Higher
Taking the test does not necessarily lead to a shorter path if the result is high. Under the same section, a breath, blood, or urine result of 0.15 percent or more triggers its own administrative suspension: one month for a first offense, two months for a second, three months for a third, and four months for a fourth or subsequent offense. That suspension is separate from whatever happens with the criminal DUI charge itself.
Fifteen hundredths is the threshold for this administrative suspension. It is not the legal limit. South Carolina’s per se limit is 0.08 percent: S.C. Code Ann. § 56-5-2933 makes it unlawful to drive with an alcohol concentration of 0.08 percent or more, a charge called Driving with an Unlawful Alcohol Concentration (DUAC) that is built on the BAC (Blood Alcohol Concentration) number rather than on visible impairment. A standard Driving Under the Influence charge under S.C. Code Ann. § 56-5-2930 is different. It is based on alcohol or drugs impairing your faculties to drive, and a result of 0.08 percent or more is evidence from which that impairment may be inferred. If you want to understand how a DUI and a DUAC charge differ, see our DUI vs. DUAC breakdown.
The 2024 Ignition Interlock Law Expanded Who Must Install a Device
Under S.C. Code Ann. § 56-5-2941, a person convicted of DUI or DUAC, or issued a temporary alcohol license, must have an ignition interlock device (IID) installed on any motor vehicle the person drives, except a moped or motorcycle. The requirement does not apply to a person whose breath test result was 0.00, and it does not begin for an implied consent suspension until the suspension is upheld at a contested case hearing or the hearing is waived.
The South Carolina Department of Probation, Parole and Pardon Services describes the All Offender Law as taking effect on May 19, 2024. As of that date, everyone convicted of DUI must have a device installed in order to drive. For a first offense with a BAC below 0.15 percent and an offense date before May 19, 2024, participation remains optional.
Under S.C. Code Ann. § 56-5-2990, the required length of time with the device after a conviction is six months for a first offense, two years for a second, three years for a third (four years if the third offense is within five years of the first), and for life for a fourth or subsequent offense.
The device is a breath alcohol device wired into the ignition that you blow into before starting the car and again at running retests while driving. The person pays for the device, although a person who cannot afford it may submit an affidavit of indigency to the Department of Probation, Parole and Pardon Services.
Learn More: Reach out to us if this is a first-time DUI.
You Generally Have 30 Days to Request a Hearing
If your license is suspended for a refusal or a 0.15-plus result, S.C. Code Ann. § 56-5-2951(B) gives you 30 days from the issuance of the notice of suspension to request a contested case hearing before the Office of Motor Vehicle Hearings. Within the same 30 days, you may also either enroll in the Ignition Interlock Device Program or obtain a temporary alcohol license from the Department of Motor Vehicles, which carries a $100 fee and lets you drive without restrictive conditions while the hearing is pending. If you do not request a hearing, you waive it and the suspension continues.
The hearing is limited to specific questions, including whether you were lawfully arrested or detained, whether you were given a written copy of and verbally told your rights, and, if you took the test, whether the person who gave it was qualified and the machine was working properly. You also have the right to an independent test of your own choosing at your own expense, separate from the state’s result.
A Breath Test Result is Not the End of the Case
A breath test result is a piece of evidence, not a verdict. An attorney can look at how the sample was taken, whether the device had current maintenance and calibration records, whether the officer held the required certification, whether SLED policies were followed, and whether the officer had legal grounds for the stop in the first place. Under S.C. Code Ann. § 56-5-2950(J), a failure to follow SLED policies or the statute results in exclusion of the test result if the judge finds that the failure materially affected the accuracy or reliability of the result or the fairness of the testing procedure.
What to Do After a DUI Arrest Anywhere in South Carolina
The choices you make right after an arrest can matter as much as the stop itself, no matter which of our three offices is closest to you.
- Note the time of the arrest and the test, since the two-hour breath window and other deadlines run from the arrest.
- Keep every piece of paperwork the officer gives you, including the notice of suspension.
- Avoid discussing the details of the stop with anyone besides your attorney.
- Contact a DUI defense attorney quickly. The 30-day hearing window moves fast, and it is easier to protect if someone starts working on it right away.
A DUI Conviction Stays on Your Record Even After the License Issue is Resolved
South Carolina’s general first-offense expungement statute, S.C. Code Ann. § 22-5-910(A), does not apply to an offense involving the operation of a motor vehicle, and the DUI statutes contain no expungement provision. As a result, a DUI conviction is generally not eligible for expungement, first offense or otherwise, even after a license is fully reinstated and an ignition interlock requirement ends.
If the DUI charge is dismissed or you are found not guilty, the arrest record may be eligible for expungement under S.C. Code Ann. § 17-1-40. An attorney can tell you whether any option applies to your situation. Because a conviction is so difficult to remove, it is worth taking the 30-day window and the criminal case seriously from the start, not just the license side of things.
Talking to a DUI Defense Attorney Before Your 30 Days Run Out
Whether you refused the test or took it and are waiting on next steps, the clock on your hearing request runs from the date the notice of suspension is issued, not the day you decide to look for help. Our attorneys include Jarrett Roman, a combat veteran who now leads our Anderson office, and our founding and lead attorney in the Columbia office, Adam Touma. We know how these stops are built and which questions to ask about them.
Touma Law Group is available 24/7 from offices in Greenville, Columbia, and Anderson. Call the office at 864-618-2323 or reach out through our contact page to speak with a South Carolina DUI attorney.
Under S.C. Code Ann. § 56-5-2950(B), the officer must tell you that you do not have to take the test. What South Carolina law does is attach a license suspension to a refusal and allow the refusal to be used against you in court, separate from whether you are later convicted of DUI.
No. Refusing removes one piece of evidence, the BAC number, but officers can still build a DUI case on other observations, and your refusal can be used against you at trial.
Under the law that took effect May 19, 2024, a person convicted of DUI must have an interlock device installed in order to drive, including many first offenses that would not have required one before that date. Whether a device is required after an implied consent suspension depends on how the hearing process ends, so speak with an attorney about your situation.
A DUI conviction is generally not eligible for expungement in South Carolina, because the general first-offense expungement statute excludes offenses involving the operation of a motor vehicle. If the charge is dismissed or you are acquitted, the arrest record may be eligible for expungement.
