Getting pulled over for drunk driving in South Carolina can be a confusing and frightening experience. It can be more confusing when the officer mentions a DUAC charge instead of a DUI. Most people have heard of a DUI, but is there a difference between DUI vs DUAC? It is an important difference, because it changes how the prosecution must prove its case. Understanding the DUAC vs DUI distinction is the first step toward understanding your options.
Both a DUI (Driving Under the Influence) under S.C. Code Ann. § 56-5-2930 and a DUAC (Driving with an Unlawful Alcohol Concentration) under S.C. Code Ann. § 56-5-2933 are serious criminal charges that carry life-changing penalties. They are often used interchangeably, but they are not the same thing.
One focuses on your impairment, while the other is about your blood alcohol concentration (BAC). We encourage you to seek guidance from a Greenville DUI attorney to understand your rights and legal options.
What is Driving Under the Influence (DUI)?
Driving Under the Influence, or DUI, is the classic drunk driving charge. Under S.C. Code Ann. § 56-5-2930(A), it is unlawful to drive a motor vehicle in South Carolina while under the influence of alcohol, drugs, or a combination of the two to the extent that your faculties to drive are “materially and appreciably impaired.” The prosecution does not need a specific blood alcohol concentration to prove a DUI. Instead, it must prove that you were impaired to that extent.
How is a DUI Proven?
A police officer may use several pieces of evidence to show impairment. This can include observations of your driving, such as swerving, speeding, or running a stop sign. After a stop, the officer may note signs like slurred speech, the smell of alcohol, or fumbling for your license and registration.
The officer may also ask you to perform field sobriety tests, which are designed to measure coordination and attention. Section 56-5-2930(J) allows evidence of field sobriety tests, the amount of alcohol consumed, and the person’s driving. If an officer has probable cause to believe you are impaired, the officer can arrest you.
After the arrest, the officer must first offer a breath test, and it must be collected within two hours of the arrest under S.C. Code Ann. § 56-5-2950. Under § 56-5-2950(G), a result of 0.08 percent or more permits an inference that you were under the influence. A result above 0.05 percent and below 0.08 percent gives rise to no inference either way, but it may be considered with other evidence, so a DUI charge is still possible in that range. A result of 0.05 percent or less is conclusively presumed to mean you were not under the influence of alcohol.
Learn More: What is the Blood Alcohol Concentration limit in SC?
What is Driving with an Unlawful Alcohol Concentration (DUAC)?
A DUAC charge is based on a number, not on how you drove. Under S.C. Code Ann. § 56-5-2933(A), it is unlawful to drive a motor vehicle in South Carolina while your alcohol concentration is 0.08 percent or more. The prosecution does not have to prove that your driving was impaired. It must prove that you drove with an alcohol concentration of 0.08 percent or more.
How is a DUAC Proven?
The prosecution’s case for a DUAC conviction rests largely on the result of a chemical test, such as a breath test or blood test. This is sometimes called a “per se” offense, because driving with a specific alcohol concentration is unlawful in itself, whether or not your driving abilities were affected.
The statute also sets conditions. Under § 56-5-2933(I), a person charged with DUI may be prosecuted for DUAC if the original testing of the breath or other bodily fluids was performed within two hours of the time of arrest and reasonable suspicion existed to justify the traffic stop. A person cannot be prosecuted for both DUI and DUAC for the same incident. A person charged with DUAC has the right to a jury trial and may challenge factors that include:
- whether you were lawfully arrested or detained
- the period of time between the arrest and testing
- whether you were given a written copy of your rights and verbally informed of them
- whether you consented to the test, and whether the person who administered it was qualified, the test was conducted according to the statute and SLED regulations, and the machine was working properly
Because of this, the accuracy and administration of the chemical test, and the way the officer carried it out, are central to a DUAC case. A DUI attorney can look at the police protocols and the qualifications of the officer who administered the tests.
DUAC vs DUI Penalties: Are They the Same?
This is a common point of confusion. Many people think a DUAC conviction is a “lesser” charge, but the penalties set out in § 56-5-2933(A) are the same as those in § 56-5-2930(A). Both charges carry the same fines, jail terms, and license consequences.
Both are serious criminal offenses. A conviction for either can have a lasting impact on your life, including a criminal record that is generally not eligible for expungement, because S.C. Code Ann. § 22-5-910(A) does not apply to an offense involving the operation of a motor vehicle.
Penalties for a First Offense:
- Fines and Jail: A first offense is punished by a fine of $400 or imprisonment of not less than 48 hours nor more than 30 days. The court may provide 48 hours of public service employment in place of the 48-hour minimum imprisonment. If the alcohol concentration is at least 0.10 percent but less than 0.16 percent, the penalty is a fine of $500 or 72 hours to 30 days. At 0.16 percent or more, it is a fine of $1,000 or 30 to 90 days.
- License Suspension and Ignition Interlock: Under S.C. Code Ann. § 56-5-2990, the Department of Motor Vehicles suspends the license of a person convicted of DUI or DUAC. For a first offense, the person enrolls in the Ignition Interlock Device Program, which ends the suspension and leads to an ignition interlock restricted license. The device is required for six months.
- Alcohol and Drug Safety Action Program (ADSAP): A person convicted must enroll in and complete an Alcohol and Drug Safety Action Program, which includes an assessment and a plan of education or treatment, or both.
- Emma’s Law and the All Offender Law: Emma’s Law took effect on October 1, 2014, and expanded the ignition interlock program, including a requirement for first offenders with a breath alcohol content of 0.15 or greater. The South Carolina Department of Probation, Parole and Pardon Services reports that the All Offender Law took effect on May 19, 2024, so everyone convicted of DUI must now have a device installed to drive, including a first offender with a lower BAC.
For later offenses, the fines and jail terms are higher and the ignition interlock periods are longer.
Related: Learn more about first time DUI charges and how Touma Law Group can help.
The Role of Implied Consent and Your Rights
South Carolina has an implied consent law, S.C. Code Ann. § 56-5-2950. A person who drives in the state is considered to have consented to chemical tests of breath, blood, or urine if arrested for driving under the influence. Before any test, the officer must tell you that you do not have to take it, but that your license will be suspended for at least six months if you refuse and that your refusal may be used against you in court. A refusal can lead to an automatic loss of driver’s license under S.C. Code Ann. § 56-5-2951.
You are not required to take field sobriety tests. S.C. Code Ann. § 56-5-2953(A)(1)(b) says a refusal to take a field sobriety test does not constitute disobeying a police command. That does not mean you cannot be arrested. An officer can still rely on your driving and other observations when deciding whether there is probable cause for an arrest.
Navigating these consent laws can be confusing, and it is important to seek legal guidance promptly.
Contact: Unsure what to do after a DUI in Greenville? Contact Touma Law Group for a consultation.
Why You Need a South Carolina DUI Defense Attorney
Whether you are charged with a DUI or DUAC, the prosecution will work to build a case against you. A defense attorney can review the evidence.
- The Stop: Was the initial traffic stop lawful? An attorney can examine whether the officer had a valid reason for the stop. If the stop was improper, evidence collected afterward, including the breath test results, may be challenged.
- Field Sobriety Tests: The National Highway Traffic Safety Administration (NHTSA) describes three standardized field sobriety tests that are designed to be given and scored in a standardized way. An attorney can examine whether those guidelines were followed and whether the officer has been trained on them.
- Chemical Testing: Under § 56-5-2950(A), a breath test must be administered by a person trained and certified by the South Carolina Criminal Justice Academy under SLED policies. Under § 56-5-2950(J), if the policies or the statute were not followed, the test result must be excluded when the judge finds the failure materially affected the accuracy or reliability of the result or the fairness of the testing procedure. An attorney can review the administration of the test, the calibration of the equipment, and the handling of any blood or other samples.
- Plea Bargains: You may be offered a plea agreement to reduce a DUI charge to a DUAC, but remember that the penalties are the same. An attorney can advise you on whether to accept a plea or go to trial.
Related: Can a Plea Deal Reduce a DUI to a Lesser Charge?
Facing a DUAC or DUI charge can be overwhelming, but you do not have to go through it alone.
Moving Forward After a DUAC or DUI Charge
If you have been charged with a DUI or DUAC, the first thing to do is understand your legal situation and options. Both charges in South Carolina are serious and can result in fines, jail time, and a driver’s license suspension. An attorney can help you understand your rights, review the evidence, and explain your options.
Reach out to an attorney at Touma Law Group for a consultation at (864) 618-2323 to discuss the specifics of your case.
FAQs
- If the police offer me a DUAC plea deal instead of a DUI, is that a better option? A DUAC charge in South Carolina is not a lesser offense. The penalties for DUAC in § 56-5-2933(A) are the same as for DUI in § 56-5-2930(A), including fines, jail time, and license consequences. Both are serious criminal offenses and should be handled with the same level of concern. Contact a Greenville Criminal Defense Attorney as soon as possible.
- What happens if I refuse the breathalyzer or other chemical test? Under the implied consent law, a person arrested for DUI is considered to have consented to chemical testing, but you may refuse. Under § 56-5-2951(I), a refusal results in a license suspension of six months for a first offense, with no prior DUI-related conviction or suspension in the previous ten years. The suspension is nine, twelve, or fifteen months for a second, third, or fourth or later offense. The suspension applies whether or not you are later convicted, and your refusal may be used against you in court. You have 30 days from the notice of suspension to request a contested case hearing.
- What is Emma’s Law? Emma’s Law was signed in 2014 and took effect on October 1, 2014. It expanded South Carolina’s ignition interlock program. The South Carolina Department of Probation, Parole and Pardon Services reports that the All Offender Law has been in effect since May 19, 2024. Under S.C. Code Ann. § 56-5-2990 and § 56-5-2941, a person convicted of DUI or DUAC must have an ignition interlock device installed to drive, for six months after a first offense. The device prevents the vehicle from starting if it detects alcohol on the driver’s breath.
