Yes, it is legal to drink and drive in South Carolina. However, there is an important distinction between drinking alcohol before driving and driving while impaired by alcohol. South Carolina law does not automatically prohibit someone from driving after consuming an alcoholic beverage. Instead, the law prohibits driving when alcohol has impaired a person's ability to operate a motor vehicle.
That does not mean drinking before driving is a good idea. Even a small amount of alcohol can lead to a DUI investigation, an arrest, and serious legal consequences. In South Carolina, you do not have to be falling-down drunk, driving recklessly, or involved in an accident to be charged with DUI.
Understanding how South Carolina's DUI law actually works can help explain why some drivers are arrested even when they believe they were perfectly capable of driving safely.
What Should You Say if a Police Officer Asks Whether You Have Been Drinking?
During a routine traffic stop or at a DUI checkpoint, one of the first questions a police officer may ask is, "Have you had anything to drink tonight?"
From the standpoint of avoiding a DUI investigation, the only answer that is unlikely to raise additional suspicion is "no." However, you should never lie to a police officer. If you have been drinking, you have the right to decline to answer questions about your alcohol consumption rather than provide potentially incriminating information.
There is a practical problem with exercising that right. Although refusing to answer questions does not, by itself, establish that you are impaired, an officer may become more suspicious and decide to investigate further.
If you admit to having consumed alcohol, even if you only had one beer or one glass of wine several hours earlier, that admission may become part of the officer's justification for conducting a DUI investigation.
This is one reason why drivers who have consumed alcohol can find themselves facing roadside field sobriety testing even when they believe they have done nothing wrong.
What Is the Legal Definition of DUI in South Carolina?
South Carolina's DUI law is found in S.C. Code § 56-5-2930. Under this statute, it is unlawful to drive a motor vehicle while under the influence of alcohol, drugs, or a combination of substances to the extent that the person's faculties to drive are materially and appreciably impaired.
Those last four words are extremely important.
South Carolina law does not require the prosecution to prove that someone was completely intoxicated or incapable of driving. Instead, the issue is whether the person's ability to drive was materially and appreciably impaired.
The statute does not provide a simple numerical formula for determining when someone's driving faculties become materially and appreciably impaired. This creates an important issue in South Carolina DUI cases: the determination of impairment is often subjective.
DUI is also not based strictly on a blood alcohol level (BAC) from a breath or blood test. You can be guilty or not guilty of DUI with a test result of either higher or lower than 0.08.
DUI Arrests Are Based on a Police Officer's Opinion
Unlike a traffic offense that can be established through a relatively objective measurement, such as a vehicle's speed, DUI investigations often depend heavily on an officer's personal observations and interpretation of a driver's behavior.
A police officer may believe someone is impaired based on observations such as bloodshot eyes, the odor of alcohol, nervousness, difficulty answering questions, or performance on roadside field sobriety tests.
But these observations do not necessarily establish that someone was under the influence to the extent prohibited by South Carolina law.
For example, bloodshot eyes can be caused by fatigue, allergies, or other innocent explanations. Nervousness is common during police encounters. Even an odor of alcohol, standing alone, does not establish how much someone drank or whether their driving ability was impaired.
Ultimately, officers must make a judgment about whether they believe the driver's faculties are materially and appreciably impaired.
This means that two police officers observing the same person could potentially reach different conclusions about whether that person should be arrested for DUI.
Although an officer's opinion must be supported by facts sufficient to establish probable cause for an arrest, the initial decision to charge someone with DUI frequently involves subjective judgments rather than a precise scientific measurement of impairment.
That distinction is important because an officer's opinion that someone was impaired is not the same as proof beyond a reasonable doubt that the person committed DUI.
South Carolina Police Do Not Use Roadside Breath Tests Before DUI Arrests
One of the most misunderstood aspects of South Carolina DUI law involves breath testing.
In some states, police officers use portable breath-testing devices at the roadside to help estimate a driver's blood alcohol concentration before deciding whether to make an arrest.
South Carolina police do not use these roadside or portable breath tests as part of the standard DUI arrest process.
Instead, the breath testing associated with South Carolina's DUI laws is generally offered after the driver has already been arrested. This means that an officer typically decides whether to arrest someone for DUI without first obtaining a breath-test result.
This is possible because South Carolina's DUI statute is not strictly tied to a particular blood alcohol concentration. Rather, the DUI statute focuses on whether the person's faculties to drive were materially and appreciably impaired.
South Carolina also has a separate unlawful alcohol concentration statute, S.C. Code § 56-5-2933, which addresses driving with an alcohol concentration of 0.08 percent or higher.
These are separate offenses with different elements. A person can be arrested and prosecuted for DUI under § 56-5-2930 without a breath-test result establishing a particular alcohol concentration.
As a practical matter, this means that a police officer may arrest someone for DUI based on observations and field sobriety testing, even though the officer has no scientific measurement of that person's alcohol concentration at the time of arrest.
What Training Do South Carolina Police Officers Receive for DUI Investigations?
South Carolina police officers who conduct standardized field sobriety testing commonly receive training through a three-day program known as DWI Detection and Standardized Field Sobriety Testing.
This training is based on a curriculum developed by the National Highway Traffic Safety Administration (NHTSA).
The program teaches officers how to identify possible signs of impaired driving, conduct roadside DUI investigations, administer standardized field sobriety tests, and interpret the results.
The three primary standardized field sobriety tests are:
Horizontal Gaze Nystagmus (HGN): This test involves an officer observing a person's eyes while the person follows a moving stimulus, such as a pen or fingertip. The officer looks for specific involuntary eye movements that may be associated with alcohol consumption.
Walk and Turn: During this test, a driver is instructed to take a series of heel-to-toe steps along a line, turn in a prescribed manner, and return. Officers look for specific indicators, such as stepping off the line, using arms for balance, or failing to follow instructions.
One Leg Stand: During this test, a driver is instructed to stand on one leg while counting aloud. Officers observe indicators such as swaying, hopping, putting a foot down, or using arms for balance.
These tests are not simply exercises that officers can administer however they choose. NHTSA's curriculum provides specific instructions, procedures, and scoring criteria.
When officers fail to follow their training, the reliability of the results may be called into question.
Why Police Training Matters in Defending a South Carolina DUI Charge
At the Law Office of James R. Snell, Jr., LLC, we understand the importance of examining how field sobriety tests were administered and interpreted.
DUI Defense Attorney James R. Snell, Jr., has qualified as an instructor in the NHTSA DWI Detection and Standardized Field Sobriety Testing curriculum. Our law firm also has an additional instructor on staff.
This training provides our office with an important foundation for evaluating DUI investigations and reviewing police arrest videos.
Rather than simply accepting an officer's conclusion that a driver failed field sobriety testing, we can examine the video evidence and compare what actually occurred with the procedures taught in the NHTSA curriculum.
Our review may include determining whether the officer provided the correct instructions, demonstrated the tests properly, used the appropriate scoring criteria, and accurately documented the driver's performance.
For example, an officer may record an alleged indicator of impairment that is not supported by the video. An officer might also fail to account for improper testing conditions or administer a test in a manner inconsistent with standardized procedures.
We also examine whether an officer's testimony and written reports accurately reflect what is shown on the recording.
Not every departure from standardized procedures will result in a DUI charge being dismissed. However, identifying mistakes, inconsistencies, and unsupported conclusions can be an important part of challenging the prosecution's evidence.
Because South Carolina DUI arrests frequently depend on an officer's subjective assessment of impairment, a careful review of the investigation can be particularly important.
Can You Get a DUI in South Carolina Even if You Blow Under 0.08?
Yes. A breath-test result below 0.08 does not automatically prevent a DUI prosecution under South Carolina law.
The DUI statute focuses on impairment rather than requiring proof of a specific alcohol concentration. Depending on the evidence, prosecutors may attempt to establish impairment even when a person's alcohol concentration was below 0.08.
However, South Carolina law also provides evidentiary rules concerning alcohol concentration. Under S.C. Code § 56-5-2950, certain test results may create statutory inferences or presumptions relevant to whether someone was under the influence.
For example, an alcohol concentration of 0.05 percent or less gives rise to a statutory inference that the person was not under the influence of alcohol. Results above 0.05 but below 0.08 do not, by themselves, establish impairment.
These distinctions can become important when defending DUI charges involving breath-test evidence.
What Happens if You Refuse a Breath Test or Blow 0.15 or Higher?
In South Carolina, a DUI arrest can create two separate problems: the criminal DUI charge and an administrative driver's license suspension.
Under South Carolina's implied consent law, S.C. Code § 56-5-2950, a driver who refuses a properly requested breath test following a DUI arrest may face an administrative license suspension.
A driver who provides a breath sample with an alcohol concentration of 0.15 percent or higher may also face an administrative suspension under S.C. Code § 56-5-2951.
These administrative consequences are separate from the criminal DUI case. They can affect a driver's ability to drive before the DUI charge is resolved.
Fortunately, drivers may have options to challenge an administrative suspension and seek restoration of driving privileges.
Our office can immediately assist clients with taking the steps necessary to challenge a qualifying suspension and pursue restoration of their driving privileges. Depending on the circumstances, this may involve requesting an administrative hearing and pursuing eligibility for a temporary alcohol license.
Strict deadlines apply, so contacting a DUI defense attorney as soon as possible after an arrest is important. Restoring driving privileges is not automatic, and the available options depend on the circumstances of the suspension.
Arrested for DUI in Columbia, Lexington, or Elsewhere in South Carolina?
A DUI arrest does not mean that you are guilty. The prosecution still has the burden of proving the elements of the offense beyond a reasonable doubt.
At the Law Office of James R. Snell, Jr., LLC, we represent individuals charged with DUI in Columbia, Lexington, and throughout South Carolina.
Our office reviews the circumstances of DUI arrests, including police video recordings, field sobriety testing, breath-test procedures, and the evidence used to justify the initial arrest.
Attorney James R. Snell, Jr.'s instructor-level training in standardized field sobriety testing, together with the additional instructor on our staff, allows us to closely examine whether officers followed their training and whether their conclusions are supported by the available evidence.
We also assist drivers who have lost their driving privileges following a breath-test refusal or a reported alcohol concentration of 0.15 or higher.
Free consultations are available, and same-day appointments can often be arranged.
If you have been arrested for DUI in South Carolina, call the Law Office of James R. Snell, Jr., LLC, at (803) 359-3301 to discuss your case and learn about your legal options.
Disclaimer: This article provides general information about South Carolina DUI law and is not a substitute for legal advice regarding your particular circumstances. Every case is unique. Prior results obtained by an attorney in one matter do not indicate or guarantee that similar results can be obtained for other clients in other matters.