What Happens If You Refuse a Breathalyzer in SC?

You were pulled over after having a few drinks.

The police officer asks you to take a Breathalyzer test.

What happens if you say no?

Whether you knew it or not, in South Carolina, by default you give consent (implied consent) to provide a breath sample to a police officer upon his request, if you are under arrest for Driving Under the Influence (DUI), Driving with An Unlawful Alcohol Concentration (DUAC), or Felony DUI (DUI involving serious bodily injury or death).

This consent applies to drivers holding a South Carolina driver’s license AND drivers licensed in other states who drive in South Carolina.

You Can Refuse to Blow, But There is A Penalty

SC law provides that you can “refuse” to provide a breath sample, but you can’t do it without paying a price. That price is the suspension of your SC driver’s license, or the suspension of your privilege to drive in South Carolina for a period of time.

For a 1st offense, the suspension period is six months. This suspension period begins at the moment the officer determines you are refusing to provide a breath sample. If the officer thinks that a person refused to blow, he will then provide the person with a Notice of Suspension.

If the person holds a South Carolina driver’s license, the officer will confiscate it right then and there and turn it in it to the Department of Motor Vehicles.

The Administrative Hearing and Temporary Alcohol Restricted Licenses

If you choose to refuse to provide a breath sample and your license is then suspended there is something very important that you need to know about. You can request an administrative hearing challenging the suspension of your license!

You can hire an attorney to submit the request for you, or you can submit this request yourself. There is a $200.00 fee required to request this hearing, but it can be well worth the money if your license is important to you.

The other important thing about this hearing is that afterward you can go to the DMV and request a Temporary Alcohol Restricted License, or TARL, for an additional $100.00 fee.

You can read more about the Administrative Hearing here.

I provided a breath sample, but it was “refused.” What does this mean?

You should ask for a hearing! The law about breath samples can be very complicated. It sounds confusing, but sometimes a “refusal” may not be a refusal.

How the Breath Sampling Process Works

Under the rule for how a breath test is performed in South Carolina, there is a twenty minute “observation period” to allow any residual mouth alcohol to evaporate, and then a 120 second period for you to provide a breath sample.

South Carolina law provides that a person must provide an “acceptable” breath sample.

Acceptable to whom or what?

A refusal to blow clearly occurs where the person being tested states “I refuse” and never places his mouth on the Breathalyzer mouthpiece attached to the breath tube when offered the chance to do so. Also, if a person simply sits silently in the chair by the breath test machine, and the 120 second window to provide a sample expires, that is also a clear refusal.

But, what if you agree to blow, but the machine doesn’t “take” the sample offered?

Should you be faulted when a machine doesn’t move on to the next step of testing the breath sample? Would that be fair? NO.

Believe it or not, the breath test machine does not determine if you have refused to blow into the machine. The police officer does.

How does the police officer decide if there was a refusal?

When the 120 second period of time expires, and even though you blew into the machine and produced steady breaths, the machine does not accept the sample and move on to the next step, something happens.

This computerized machine shows a message on its screen to the police officer operating it. Even though the machine decided NOT to test the person’s breath for some reason, the machine asks the officer operating it, “What just happened?” The screen then says: “SUBJECT REFUSED? Y/N?”

If the officer types in the letter Y for yes, the machine then completes the process and prints the test results. Those test results will be the same as if you made no effort to blow into the mouthpiece or stated that you refused to provide a sample. The form will read, “REFUSED.”

BUT… If the officer types “N” for no on the machine, the machine prints the report and reads, “INCOMPLETE.”

When a test is INCOMPLETE, the entire procedure must be started again, except that the 20 minute observation doesn’t have to be repeated.

How Does the Officer Decide What Button to Press?

That is the big question and is how a “false refusal” can occur. It is up to the officer to make this decision.

But wait? If the person blew into the mouthpiece and the beeping tone changed to steady, meaning that the person was meeting the minimum flow requirements for a valid sample, how could the officer type Y for yes so that a refusal to blow was reported?

Because the officer himself may not know what is going on either. It happens!

Why is a “False Refusal” Important?

The reason a false refusal is important is this. If you choose to provide a sample, and through no fault of your own, the machine decides not to test the sample and report a result, you are in theory, being deprived of something very valuable. You didn’t get the chance to blow and produce a test result that, if .05% or less, could have proven that you were not under the influence of alcohol.

Ready to Speak with an Attorney?

Contact Timothy Kulp to discuss your situation.

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