In South Carolina, a driver under 21 can be charged with DUI like any other driver. A DUI conviction can occur if a driver was under the influence of alcohol, drugs, or both to the extent that the driver’s faculties to drive were materially and appreciably impaired (S.C. Code Ann. § 56-5-2930), or if the driver drove with an alcohol concentration of 0.08 or more, which is the separate offense of driving with an unlawful alcohol concentration (DUAC) (S.C. Code Ann. § 56-5-2933). The penalty tiers in those sections do not depend on the age of the driver.
South Carolina also has a separate rule for drivers under 21. A person under 21 who drives with an alcohol concentration of 0.02 or more faces a license suspension, and a refusal to take the chemical test also leads to a suspension (S.C. Code Ann. § 56-1-286).
When an underage driver has been drinking, the officer can pursue the license suspension under Section 56-1-286 or charge the driver under the DUI statutes or the underage alcohol statutes. If the officer starts suspension proceedings under Section 56-1-286, the officer cannot prosecute the same incident under Section 63-19-2440, Section 63-19-2450, Section 56-5-2930, or Section 56-5-2933. If the officer does not use Section 56-1-286, a driver under 21 can still be charged, and a driver with an alcohol concentration of 0.08 or more can be charged with DUI or DUAC.
An arrest of a teenager or young adult for an alcohol related driving incident can be stressful. A South Carolina criminal defense attorney can explain the process and the legal rights of the driver at each stage.
What is the Legal Process for an Underage DUI Case?
An underage driver can face two separate processes. The first is the under 21 license suspension under Section 56-1-286, which is an administrative matter handled through the South Carolina Department of Motor Vehicles (SCDMV) and, if you ask for a hearing, the Office of Motor Vehicle Hearings. The second is a criminal case, if the officer charges the driver with DUI, DUAC, or an underage alcohol offense. The suspension is not a criminal conviction, but it is a real consequence of its own.
If the test registers 0.02 or more, or if the driver refuses, the officer issues a notice of suspension. Within 30 days of the notice, the driver may request a contested case hearing and either enroll in the Ignition Interlock Device Program or get a temporary alcohol license (TAL) from SCDMV for a $100 fee. A TAL for a driver under 21 carries an ignition interlock restriction for three months (S.C. Code Ann. § 56-1-286(L)). If the driver does not request a hearing, the driver waives it, and must enroll in an Alcohol and Drug Safety Action Program (ADSAP) within 30 days or no TAL is issued (S.C. Code Ann. § 56-1-286(K)). It is important to get in touch with a Greenville DUI lawyer if you were stopped for an underage DUI.
The Penalties for an Underage Driver in South Carolina
Even when the case is an administrative suspension and not a criminal conviction, there are consequences, including the loss of driving privileges and a required alcohol program.
If a driver under 21 refuses the chemical test, SCDMV suspends the license for six months. The suspension is one year if, within the three years before the violation, the driver was convicted of DUI, DUAC, or felony DUI (or a similar law of another state), or had a prior suspension under Section 56-1-286, Section 56-5-2951, or Section 56-5-2990 (S.C. Code Ann. § 56-1-286(F)).
If the driver takes the test and the result is 0.02 or more, the suspension is three months, or six months with that same kind of prior within three years (S.C. Code Ann. § 56-1-286(G)). In place of serving the rest of the suspension, the driver may enroll in the Ignition Interlock Device Program, with a device for the time remaining on the suspension and for at least three months (S.C. Code Ann. § 56-1-286(H)). These rules are separate from the penalties for a DUI conviction in Section 56-5-2930, which apply if the driver is convicted of first time DUI or a second offense.
A driver who does not request a hearing, or whose suspension is upheld, must enroll in ADSAP (S.C. Code Ann. § 56-1-286(L), (K); ADSAP information). Anyone convicted of DUI must complete an ADSAP as well (S.C. Code Ann. § 56-5-2930(H)).
Challenging an Underage DUI Suspension in South Carolina
The suspension can be challenged in some cases. The driver has 30 days from the notice of suspension, not from the date of the arrest, to request a contested case hearing. The scope of the hearing is limited to whether the driver was lawfully arrested or detained, was given the required written and verbal advisement of rights, refused the test, or, if tested, whether the result was 0.02 or more, the person who gave the test was qualified, the test followed the Code, and the machine worked properly. SCDMV and the arresting officer carry the burden of proof (S.C. Code Ann. § 56-1-286(P)). Your Greenville juvenile crime lawyer can review whether the arrest was lawful, the accuracy of the machine, and whether the driver actually refused to take the test.
What Happens if Police Find Alcohol in the Car I Am in?
A person under 21 commits a misdemeanor by purchasing, attempting to purchase, consuming, or knowingly possessing beer or wine (S.C. Code Ann. § 63-19-2440) or other alcoholic liquors (S.C. Code Ann. § 63-19-2450). Possession is prima facie evidence that the alcohol was knowingly possessed. Whether a person who is a passenger in a vehicle “knowingly possessed” alcohol depends on the facts of the case, and a lawyer should review them. You may be charged with possession of alcohol even if you are not charged with DUI.
A conviction carries a fine of $100 to $200, or imprisonment for up to 30 days, or both, and a required alcohol prevention education or intervention program of at least eight hours. SCDMV also suspends the driver’s license for 120 days for a first conviction and one year for a second or later conviction (S.C. Code Ann. § 56-1-746).
Contact Touma Law Group to Consult an Attorney
At Touma Law Group, we handle underage drinking and driving cases and other alcohol or drug related offenses. We can explain the rules above and talk through the facts of your situation. A licensed South Carolina attorney at the firm must review the facts of your case before anyone relies on this page, which is general information and not legal advice. Our criminal defense lawyers will listen to you and explain your legal options.
