As a board certified criminal defense lawyer and DUI defense lawyer in Charleston, South Carolina, I find myself explaining license suspension considerations to most new clients charged with DUI or DUAC. The implied consent law can be complicated.
First, DUI is driving under the influence. DUAC is driving with an unlawful alcohol concentration. In another blog post, I will explain the similarities and differences of the two charges. For now, the focus is on driver’s license suspensions.
License Suspensions at the Time of Breath Testing-Refusals and .15 or Higher Readings
If a person intentionally refuses to provide a breath sample when under arrest for DUI, the officer administering the breath test is empowered by law to issue a driver’s license notice of suspension. If the person is licensed in another state, the officer will issue a notice of the suspension of that person’s driving privileges in the state of South Carolina. The officer is not an agent of foreign states and should not confiscate the out of state driver’s license. The officer can seize a South Carolina driver’s license.
The period of suspension for a refusal is six months.
The same applies if the person provides a breath sample and the Datamaster DMT machine reflects that the reading is .15 of 1% or more.
The period of refusal for a .15 of 1% or more is 30 days.
Clearly, the legislature intended to provide an incentive for a person to provide a breath sample by providing for a shorter period of suspension in this circumstance.
How To Drive Lawfully During these Periods of Suspension-The TARL or Temporary Alcohol License
The suspension periods addressed in the is blog post are “administrative.” While a person charged with DUI or DUAC will face additional terms of license suspension if convicted of those offenses, these suspension periods are distinct from those arising from a conviction.
Any person, whose license, or privilege to drive is suspended administratively at the time of breath testing, has the right to an administrative hearing. He or she can request this hearing using the form provided at the time of arrest by completing the form, and with a $200.00 money order or certified check, mail both into the Administrative Hearings Division Office. The address is listed on the back of the suspension form.
Upon receipt of this hearing request, the administrative court will set a hearing within thirty days and also notify the SC DMV that the request has been made. Within a few days, DMV computers at any DMV office will reflect receipt of the request and allow for a person to appear with $100.00 and obtain a TARL.
Temporary Alcohol License Considerations
- The person is NOT required to sign up for the ADSAP program
- The person in not required securing SR-22 or assigned risk insurance.
- Upon issuance of the TARL, the balance of the applicable period of suspension is held in abeyance pending the results of the hearing.
- There are no limitations on the time of day a person may drive, nor on locations in South Carolina
- However, driving in other states on a TARL can be tricky. It is best to consult with your lawyer before doing so.
- A person may drive on the TARL UNTIL THE ADMINISTRATIVE HEARING RESULT IS ISSUED, OR IF A DECISION IS ANNOUNCED AT THE HEARING ITSELF
- After the hearing, the hearing officer will announce the court’s decision in an order issued a few days after the hearing.
- At the hearing, if the person prevails, he or she can then seek re-issuance of a regular driver’s license in a few days at any DMV office. If the person does not prevail, the period of administrative suspension that was held in abeyance begins upon issuance of the hearing officer’s order and notice from the DMV of the suspension. A person may appeal a hearing officer’s decision to the South Carolina Administrative Law Court.
- The administrative hearing procedure is independent of the criminal DUI case itself. Winning the administrative hearing does not create a basis to dismiss the DUI. Losing the administrative hearing is not admissible in the DUI/DUAC trial.
- However, any testimony any officers provide at this hearing is under oath, and can be used potentially to impeach them at trial if their testimony then varies from what was presented at the administrative hearing.
These rights to an administrative hearing are reviewed with a person asked to submit a breath sample prior to the actual request for a breath sample. Miranda rights are read. The implied consent rights read make reference to this administrative hearing challenge a person may pursue at the end of the testing process, the officer issues a notice of suspension.
However, in practice, after the implied consent rights are read to a person, during the waiting period before testing, I have rarely seen an officer remind someone of the hearing if the person is deliberating over taking the test or not.
Kulp & Elliot accepts cases in Charleston, North Charleston, Mt. Pleasant, Summerville, Goose Creek, Hanahan, Moncks Corner, Ladson, James Island, West Ashley, Folly Beach, Sullivans Island, Isle of Palms, Awendaw, McClellanville South Carolina.