You just wrapped up the work week with some coworkers at the Tattooed Moose and you're already thinking about the weekend. But during the ride home, an officer pulls you over and tells you he smells beer on your breath. So what, you had a couple brews to wash down the pork belly burger, big deal right? Your driving is perfect and you thought you aced the sobriety tests, but the breathalyzer comes back 0.08%. Next thing you know your car is towed, and you are being handcuffed and hauled off to jail. Confused?
Getting a DUI in Charleston is often a bewildering and harrowing experience, so FindLaw has created this guide to prepare you for what to expect from your Charleston DUI case.
Your DUI case usually begins when the Charleston police officer initiates a traffic stop. To lawfully "seize" you in accordance with the Fourth Amendment, the officer must reasonably suspect that you are committing a crime, such as a traffic offense. The officer will likely ask you whether you've been drinking. In general, it is best that you not confirm consuming any alcohol whatsoever, even if it's just "a couple beers." Your "confession" will be included in the officer's police report and will likely be used to persuade the jury of your guilt should you go to trial. However, under no circumstances should you lie to police.
The officer will probably next ask you to step out of your vehicle and perform a field sobriety test. These are simple mental and physical tasks designed to test your coordination and memory. You will then be asked to blow into the officer's breathalyzer, also called a Datamaster in South Carolina. If the results are a 0.08% or higher, the officer has probable cause to arrest you on the spot.
Chemical Test Refusal
You may be tempted to refuse to blow into the breathalyzer. However, South Carolina has an "implied consent" law that states that when you apply for a driver's license, you consent to submit to a chemical test when you are stopped by a police officer who suspects you of driving while under the influence of alcohol or drugs. You must also take a blood, breath, or urine test if you are arrested for a DUI. Unfortunately, the officer gets to choose which test you take, and the test must be administered within three hours of when you were driving.
In South Carolina the police must turn on a video camera and read you some rights, including your right to refuse to take the test and associated penalties. Refusing to take the test will result in an automatic six-month license suspension. You can challenge your license suspension within 30 days of the stop, but if you do not challenge it or if the suspension is upheld, you will be required to take a driver's safety course.
Moreover, refusing to take the chemical test does not preclude a DUI conviction. The consequences for a first DUI are more severe than a refusal, and you could deprive the state of essential BAC evidence. However, the fact that you refused can be used by the prosecutor as evidence that you knew you were too drunk to pass, so you could end up with a refusal suspension and a DUI conviction.
Challenging the Constitutionality of the Stop
The Fourth Amendment's protection against unlawful searches and seizures are extremely important in DUI cases. Under the so-called "exclusionary rule," any evidence gathered by the State in violation of your constitutional guarantees may be prevented from being used in court. This would mean that neither the judge nor the jury could consider the unlawfully gathered evidence when determining your guilt.
You or your lawyer can challenge the constitutionality of the traffic stop with a motion to suppress evidence, the most common motion filed in DUI cases. Best case scenario -- if the initial stop was unlawful, all of the evidence will be excluded and your case will be thrown out of court.
The penalties for DUI start off small but quickly scale up. Your license will be suspended for six months after your first conviction. Moreover, you will serve a mandatory minimum of 48 hours in jail, though the judge may substitute community service instead, and pay a $400 fine. These figures will increase if your BAC is above 0.10%.
South Carolina has a "lookback period" of ten years, which means an 11 year old DUI conviction will be ignored for sentencing purposes. If you suffer a second DUI conviction within ten years, you will serve at least five days in jail, and a third will give you at least 60 days to sober up. Your fourth conviction counts as a felony, so you can expect a one year prison sentence and to have your license permanently revoked.
To make matters worse, South Carolina has forbidden prosecutors from accepting a guilty plea to the lesser crime of "reckless driving involving alcohol," commonly referred to as a wet reckless.
Moreover, the judge may elect to force you to install an ignition interlock device at the end of your suspension period if you are a repeat DUI offender. You must pay all the costs of installing and maintaining the device yourself as a condition of having your license returned.
Get Your License Back
If your license was suspended, you can apply for a restricted license in some cases. A restricted license will allow you to have limited driving privileges for necessary tasks such as attending school, going to and from work, hospital appointments and court appearances. To apply for a restricted license, start with Form DL-127 (PDF).
If your suspension period is over, you can reinstate your license by providing the DMV with proof that you completed alcohol safety school, paid all court fines, and then pay a $75 reinstatement fee, provide proof of insurance with an SR-22 Form and reapply through the DMV.
Contact a qualified attorney.