What is an implied consent hearing, and how do you get your license back after a DUI arrest?
Below, we will go over the basics of implied consent hearings in SC, including:
- Why implied consent and DUI criminal charges are in two different courts,
- The process for administrative hearings in DUI cases,
- When you can get a temporary license after a DUI arrest, and
- Win or lose, what happens after your implied consent hearing.
What is Implied Consent and How Does it Affect Your DUI Charges?
According to SC Code § 56-5-2950, if you drive on SC’s highways, you impliedly consent to give a breath, urine, or blood sample for alcohol testing:
(A) A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of the person’s breath, blood, or urine for the purpose of determining the presence of alcohol, drugs, or the combination of alcohol and drugs, if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of alcohol and drugs.
Did you really consent to take a breathalyzer, though? I don’t recall checking that box on my license application…
None of us consented to give a breath sample as a condition of driving – it’s a legal fiction created by the legislature because law enforcement wants to be able to force every person to take the breathalyzer.
You can refuse to take a breathalyzer or to give a blood sample, but, if you do, your license will be suspended, you will have to enroll in ADSAP, and you may have to install an ignition interlock device on your car before you can drive again.
On the other hand, if you take the breathalyzer and the result is .15 or greater, your license will be suspended, you will have to enroll in ADSAP, and you may have to install an ignition interlock device on your car before you can drive again.
So, what can you do?
In most cases, people should refuse the breathalyzer – they are not reliable, and why would you voluntarily give the police evidence for them to use against you?
Whether you refuse the breathalyzer or blow .15 or greater, however, you still have options – call your DUI lawyer immediately, request an implied consent hearing, and you will at least have an opportunity to get your license back.
How Long is an Implied Consent License Suspension?
The length of an implied consent suspension depends on how many prior convictions you have for DUI and whether you refused the breathalyzer or blew .15 or greater:
|DUI Convictions in the Previous 10 Years||BAC .15% or higher||Refusal|
|0||1 month||6 months|
|1||2 months||9 months|
|2||3 months||12 months|
|3||4 months||15 months|
Two Courts, Two Cases
Once you request an implied consent hearing, a case is opened in the administrative court. It is different and separate from your criminal charges for DUI – it is in a different court, and you will have different court dates.
One case does not affect the other – if you win your implied consent hearing, you are still facing DUI charges in the criminal court. If your DUI charges are dismissed, you will still have an implied consent violation to deal with.
What’s the Process for Implied Consent Administrative Hearings in SC?
What’s the procedure for implied consent hearings in SC?
Requesting an Implied Consent Hearing
First, you must request an administrative/ implied consent hearing. You will be given a Notice of Suspension by the arresting officer along with your other paperwork – you will need to use this original form to mail in your implied consent hearing request.
Call your DUI lawyer immediately after your arrest – there is a 30-day deadline for the DMV to receive your implied consent hearing request. If you do not request the hearing, your license will be suspended, you will need to enroll in ADSAP, and you may be required to install an ignition interlock device before you can drive again.
Can You Get a Temporary License After a DUI Arrest?
Once you have requested your administrative hearing, you can go to the DMV and get a temporary alcohol restricted license that allows you to drive without restrictions until your hearing date.
What Happens at the Implied Consent Hearing?
At the hearing, the arresting officer testifies as to why they arrested you for DUI and why they took your license. Your attorney then cross-examines the officer and, when appropriate, asks the hearing officer to reinstate your license.
SC Code § 56-5-2951 says that the scope of the hearing is limited to whether the person:
was lawfully arrested or detained;
(2) was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;
(3) refused to submit to a test pursuant to Section 56-5-2950; or
(4) consented to taking a test pursuant to Section 56-5-2950, and the:
(a) reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more;
(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and
(d) machine was working properly.
Your attorney can challenge the probable cause for your arrest, whether the officer followed SLED policy and procedure when taking the breath sample, whether the officer was qualified to conduct the test, or other irregularities that your attorney may have found in SLED’s Datamaster database that may have affected the test results.
If You Lose Your Implied Consent Hearing…
Why should you always request an administrative hearing? If you lose your implied consent hearing, you lose nothing.
Your license is suspended, just as it was before you requested the hearing, and you will need to enroll in ADSAP and jump through some hoops before you are allowed to drive again.
If you Win Your Administrative Hearing…
If you win your hearing, that means the hearing officer “rescinded your suspension” based on the testimony and arguments (or because the officer did not show up or declined to testify at your hearing).
Your full license is restored, and you can go to any DMV office to get a copy of your license and drive legally.
If you have been charged with DUI, DUAC, felony DUI, or a DUI-related offense in SC, contact a DUI defense lawyer on the Axelrod team immediately – we may be able to get your case dismissed, you may be able to avoid a license suspension, and you may have defenses that you are not aware of.