A common question we receive is what exactly does it mean when someone is charged with "DUI / DRIVING UNDER THE INFLUENCE, LESS THAN .10 1ST OFFENSE"?
This is how a South Carolina DUI charge would be referenced on the jail or court index when someone is charged as a 1st offense DUI with either a refusal on the breath test, or less commonly a breath test result at 0.09 or less.
Since the vast majority of these cases involve a defendant refusing a breath test, this language on the jail or count index does not mean that someone had a breath test resulting in 0.10 or below. It most likely means that there is no breath test
Charged with DUI? You've come to the right place. We have over 20 years experience with defending DUI charges. James Snell is a published author on the topic of South Carolina DUI Defense, and has specific training in law enforcement techniques. We offer free consultations, and seeks dismissal in all types DUI cases. To talk to us about your case call us at (803) 359-3301. Same day appointments usually available. Suspended license? We can turn your DMV paperwork in fast, often in under an hour. Call for details.
South Carolina has three levels of DUI. Low, medium and high. The potential fines and jail time increase depending on the level. The level is based on the BAC result as calculated by a breath or a urine test. The levels are less than 0.10, .10-.15, and .16 or higher.
Our office conducted a review of every DUI breath test conducted in Lexington County over a multi-year period. Per this review, approximately 40% of DUI arrests involve no breath test result (this is typically due to a refusal). Less than 10% of DUI cases involve a breath test result at 0.10 or below. The average result is a .14, and 52% of breath test results are 0.16 or higher. Similar results would be expected for DUI cases in Richland County or elsewhere in South Carolina.
When a charge starts off as "LESS THAN .10 1ST OFFENSE" it is subject to be changed later. If the prosecutor determines that someone has a prior DUI conviction within the past 10 years the charge can automatically be upgraded to a 2nd offense and transferred to General Sessions. If the defendant didn't do a breath test, but did submit to a blood test, the DUI level can increase once the blood testing is complete. Blood testing is conducted by SLED in Columbia, and it's not unusual for it to take 6 months or more for results to be available. This delay doesn't necessarily prevent someone from pleading guilty, or accepting a plea agreement to a reduced charge, but typically the prosecutor or court will not schedule an actual trial until those results are available.
It should also be noted that South Carolina's DUI law does not only pertain to alcohol. S.C. Code § 56-5-2930 provides that impairment can be based on alcohol, drugs or any combination. Drugs can include prescription medications, "street" drugs like marijuana or cocaine, and also other substances such as inhalants. Because of this, if a defendant's BAC is tested as low, it doesn't mean that the DUI would automatically be dismissed. Prosecutors can, and frequently do, argue that impairment is based on drugs and not simply alcohol. In this situation though the charge remains the "LESS THAN .10".
At any DUI level, including with a refusal or a lower BAC, the DMV penalties still apply if someone is convicted in court. This includes the SR-22 insurance, ADSAP, license suspension and ignition interlock device. The way to avoid these penalties is to retain a DUI defense attorney and seek a dismissal or a reduced charge. All DUI convictions, regardless of BAC level, include DMV penalties.
If you're facing a DUI charge in Lexington, Columbia or elsewhere in South Carolina, The Law Office of James R. Snell, Jr., LLC, can help you. We fight for dismissals or reductions in every type of DUI case. There is no case that is beyond help. James Snell has over 20 years experience with DUI cases, and is the author of the book South Carolina DUI Defense: The Law and Practice. He is also received training in police investigative techniques pertaining to DUI cases. We offer free consultations, to schedule yours call us at (803) 359-3301.