What Happens If I Refuse to Take a Breath Test?

If you refused a breath test as part of a DUI arrest in South Carolina, your license is already under suspension. Our lawyers are able to begin work immediately to help restore driving privileges. You only have 30 days to fight this aspect of your case. Contact us at (803) 359-3301 to schedule a free consultation to learn about what steps can be taken to help with your license and fight the DUI arrest. 

Approximately 40% of those arrested for DUI in South Carolina refuse to take a breath, blood, or urine test. If this applies to you, your license will be suspended automatically by the police officer at the time of your arrest. You should receive a form titled Notice of Suspension along with the other paperwork you receive when released from jail. The police officer should also take your South Carolina driver’s license for surrender to the DMV. 

The immediate effect is the suspension of your driver’s license. This will take a few days to be reported to the DMV, but you are technically under suspension upon receipt of the written notice you received with your arrest.  If you are found driving while suspended you will face rearrest, and an additional charge against you. A conviction for driving under suspension can have drastic consequences for your driver’s license, so this initial suspension should be taken seriously. 

The suspension for refusing a breath test is for 6 months. This can be stayed (meaning delayed) by the submission of a request for a contested hearing before the Office of Motor Vehicles. Our office submits these requests on behalf of our DUI defense clients as soon as we are hired, often having this completed within the first hour. Once the DMV is notified of this filing, they will authorize the issuance of a replacement credential called a Temporary Alcohol License. This normally takes approximately two business days. The Temporary Alcohol License allows for unrestricted driving in South Carolina, with no requirement to obtain SR-22 insurance, enroll in the alcohol course (ADSAP), or install an ignition interlock device. 

Many people begin by wondering if they made the correct decision to refuse a breath test. The answer is almost always yes. Attorney James Snell conducted a multi-year survey of breath test results in Lexington and Richland counties, and determined that of those who submitted to a breath test reporting any alcohol, the average reading was 0.14 and over 50% of test takers results were 0.16 or higher. 

South Carolina's implied consent law mandates that all drivers arrested for a DUI charge take a breathalyzer test at the request of law enforcement as part of a DUI arrest. If a driver is unable to take a breath test due to a medical condition or being at the hospital, they may instead be requested to take a blood or urine test. The same penalties and procedures apply for refusing a blood or urine test as a breath test. 

These penalties are also separate from and in addition to any possible license suspension or other DMV requirements that can come with a DUI conviction. If you are charged with DUI and you refused breath testing, you are facing a suspension for both the DUI and the refusal.  The process to contest the suspension for the refusal is separate from the DUI in court, with a separate timeline. We help defend our clients in both proceedings. 

BAC Does not Automatically Determine DUI In South Carolina

It is important to understand the legal definition of DUI in South Carolina. South Carolina’s DUI statute does not make driving and driving illegal. There is no reading from a breath machine that makes someone automatically guilty of DUI. You can be found guilty or not guilty regardless of the reading.

The reason is that DUI in South Carolina is defined as materially and appreciably impaired. This is a subjective standard, meaning that it is up to a police officer to guess or have an opinion as who they are going to arrest. 

South Carolina’s DUI statute does still make the BAC as determined by a breath or other testing important. If you provide a breath sample of 0.05 or below it’s presumed your not under the influence of alcohol. 0.06 or 0.07 there is no inference. If your BAC is 0.08 this creates an inference of impairment, but does not preclude a court from still finding you not guilty. 

DUI in South Carolina does not have to be alcohol based. The statute provides that impairment can come from alcohol, drugs, or combination of the two. If your BAC is low, the prosecutor could still argue that you were impaired by drugs. This can be especially be true if the police asked you for a follow up drug test (usually urine), and you either refused or the test showed that you had taken some drugs or medication in the past. 

Negative and Positive Consequences

Let us start with the Positive Consequences for refusing a breath test.

South Carolina has three tiers of DUI charges based on the BAC level. These are 0.10 and below, .11 through .15, and .16 or higher. If you have refused the breath test. In a refusal DUI case the charge will be the .10 or below, limiting the fine or possible jail time your case can carry.

The other benefit is that a refusal can increase the chances of a successful negotiation or trial outcome in a DUI case. Most people who provide a breath sample blow a significant number, well over the presumptive inference level of 0.08. Because of this it can be more difficult to obtain an agreement with the prosecutor to dismiss or reduce a charge when they have a number they can use against you. Additionally, if your case goes to trial a higher number can also make it less likely that a court would find you not guilty. 

What about the Negative Consequences? 

The most immediate negative consequence is the immediate suspension of your driver’s license. This can be challenged through the Office of Motor Vehicle Hearings. This process isn’t automatic, but we can guide you through every step and help minimize delays. We can begin work immediately on your case. 

When you refuse the prosecutor will likely be allowed to bring this up during your trial, and argue to them that they should hold that against you.  In our experience this is not normally very significant, but it is still a possible negative. 

When you refuse you also give up the chance to use a possible helpful low BAC in your case. A low-test result of 0.05 or below creates a presumptive inference that you were not impaired. The one caveat to this is that frequently the police will request a urine test after a low BAC reading, giving them information about possible drug use during the last 30 days. 

Potential Costs Associated with a Refusal

There are significant financial costs associated with refusing a breath test. These can be avoided if the refusal suspension is timely and successfully challenged before the Office of Motor Vehicle Hearings as discussed in this article. It is important to keep in mind that the costs and penalties for the refusal can still apply even if your DUI case in court is dismissed or you have been found not-guilty.

Costs associated with an upheld refusal include those charged by the DMV, ADSAP, and for the ignition interlock device. These are expenses that you will pay for, even if your DUI is later dismissed or you are found not-guilty. The way to avoid these expenses is to successfully challenge the refusal suspension. DMV fees can be several hundreds of dollars, ADSAP can be $500-$2,500, and the ignition interlock may be approximately $1,000 for the required length of time. These costs add of quickly. 

Frequently Asked Questions about Breath Test Refusal

How quickly can you help me get back my license?

We can begin the process to restore your driving privileges quickly, often filing the necessary forms within an hour of being retained. It’s then normally 1-2 business days for the Office of Motor Vehicle Hearings and the DMV to process those forms and update their system. You will then be able to go to the DMV and obtain a Temporary Alcohol License, allowing you to resume driving.

What happens if you win the hearing at the Office of Motor Vehicle Hearings?

If you win the hearing, the implied consent suspension will be dismissed. If you had obtained a Temporary Alcohol License you will need to go back to the DMV to have a regular license reissued to you. 

When a suspension is dismissed, it does not affect the underlying DUI that may still be pending in court. 

What happens you do not contest the suspension or lose the hearing?

You will have a 6 months suspension. You will also be required to install an ignition interlock device and complete the ADSAP program. This is even if your DUI case is later dismissed or you are found not-guilty by the court. 

How long do I have to contest the suspension?

You have thirty days from issuance of the Notice of Suspension form to contest the license suspension. We file this paperwork on behalf of our clients, normally within the first hours of being retained. If you miss the 30-day deadline you will not be able to challenge the suspension and will be required to obtain an ignition interlock device and complete the ADSAP program. This is true even if your DUI case in court is dismissed or you are found not-guilty.

Who makes the decision at the Office of Motor Vehicle Hearings?

The Office of Motor Vehicle Hearings is an administrative hearing officer that decides contested DMV matters. It is not a court and there is no judge. Instead, there is a hearing officer. They do not decide if you are guilty or not guilty of DUI. Instead, they determine if the police officer followed the procedures outlined in South Carolina’s implied consent law, and if you did or did not submit to a breath sample. 

The hearing officer does not consider whether this is your 1^st DUI, you are young, or if a license suspension would create a hardship on you or your family. 

What if you have an out of state license?

If you have received a Notice of Suspension and have an out of state license you are immediately suspended from driving in South Carolina. That Notice of Suspension will also be forwarded to your home state, likely resulting in a suspension by your home state. 

When you have an out of state license the officer is still supposed to issue the Notice of Suspension form when applicable, but is not supposed to take your out of state license. If the officer did take your license, we can try to reach out to them to request its return, otherwise you may have to obtain a duplicate from your home state.

Once the paperwork to contest the suspension is submitted it should stop your home state from acting against your license. You will not qualify for the Temporary Alcohol License, but can obtain a nonresident driving credential form instead. This will allow you to drive in South Carolina while your suspension is being contested. 

If you have an out of state license any penalties you may receive from the DMV for refusing a breath test or being found guilty of DUI will be assessed by your home state’s DMV. These penalties can be different (and frequently are) from those that might apply to a South Carolina licensed driver. 

Why did the police officer estimate my BAC at below 0.10?

When you refuse a breath test the officer will normally complete the ticket indicating that the BAC level is 0.10 or below. This is because they do not have a higher number to use against you. The officer is not actually estimating or determining your BAC. The .10 or below reference is automatically included when someone does not blow, because the state is not able to charge you with having a BAC of .11 or above (or .15 or above), because you did not submit the sample.

What if you have a CDL and you refuse a breath test?

There are special considerations for those who hold a CDL license. The Temporary Alcohol License available for those who contest the suspension does not fully restore a CDL license. While someone may be able to drive their personal vehicle, they will not have the same ability to drive a commercial vehicle as they did under their CDL. This means that they will effectively lose their CDL until there is a decision from the Office of Motor Vehicle Hearings. 

The other issue is that beginning in 2024, the South Carolina Department of Motor Vehicles began sending staff attorneys to represent the government in administrative hearings involving CDL holders. They are taking additional steps to actually subpoena the police officer to try to force their appearance and testimony (otherwise many police officers do not come to the hearing). 

To overcome these challenges, it’s especially important that CDL holders challenge their suspension as soon as possible. It’s also important that they be as prepared as possible for the administrative hearing, and that a careful review of all available video records, police reports and other materials related to the arrest has been made to prepare for the hearing. Our lawyers have extensive experience preparing for and representing CDL drivers during this process.  

Can you refuse a breath test if you have not been drinking?

Yes, but you should keep in mind the same initial suspension and reinstatement process applies even if you never had any alcohol. If you do take a breath test and blow a 0.0 (no alcohol), the officer may then request you take an additional drug test. If you refuse, you will face the same 6-month suspension. 

Is it the same if you refuse field sobriety tests?

No. Under South Carolina law you are not required to participate in any field sobriety tests. There is no penalty for refusing field testing. 

Does refusing make me look guilty?

Generally, the answer is no. And having no numerical blood alcohol level to use against you is often much more favorable than the average number, and also helps you avoid the higher penalties that can come with a reading of 0.11 or higher. A refusal often times increases the odds of success with the underlying DUI case. 

What parts of South Carolina do you accept cases?

We are based in Lexington and Columbia, South Carolina. We accept DUI cases throughout South Carolina, including Greenville, Spartanburg, Orangeburg, Charleston, and Kershaw.