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Defenses against dui charges in sc

Defenses against dui charges in sc
Axelrod & Associates, P.A.

Although SC’s DUI laws can be harsh, there are also many possible defenses against DUI charges in SC.

If you have been charged with driving under the influence in SC, your attorney can present evidence to the prosecutor, to the court, or to the jury at your trial that would tend to show you are not guilty of the charges, including “sobriety witnesses” who can testify as to how much you had to drink or how you did not appear drunk before you got into your vehicle.

SC’s DUI laws and appellate cases also contain many possible defenses against DUI charges that include:

  • Suchenski defenses based on the officer’s failure to follow SC’s mandatory videotape requirements,
  • A statutory presumption of innocence if your BAC was .05 or less,
  • Challenges to the breath or blood test results, and
  • Statutory defenses to DUAC charges.


SC Code Section 56-5-2953(A) makes it mandatory for an arresting officer to record a DUI suspect’s conduct at both the incident site and the breath testing site, and this provides potential defenses against DUI charges in SC.

At the incident site, the recording must begin no later than the activation of the blue lights and it must include:

  • Any field sobriety tests,
  • The person’s arrest, and
  • The person being advised of their Miranda rights.

For the video to show the field sobriety tests, the video must also show the person’s feet while they are performing the one-legged stand or the walk and turn test – otherwise, the requirement to videotape the tests is meaningless because attorneys, judges, and jurors will not be able to see how the person performed the tests.

At the breath test location, the video must also show:

  • The entire breath test procedure,
  • The person being told that they are being recorded,
  • The person being told they have a right to refuse the test,
  • The person taking or refusing the test,
  • The actions of the breath test operator while conducting the test, and
  • The person’s conduct during the 20-minute observation period.

The officer can be excused from these requirements if he or she submits a sworn affidavit that 1) the videotaping equipment was inoperable and what reasonable efforts were made to repair or maintain the equipment or 2) it was physically impossible to record due to a need for emergency medical care or other exigent circumstances.

If the officer fails to comply with the videotape law and does not have a valid excuse per the statute, the SC Supreme Court has confirmed in City of Rock Hill v. Suchenski and subsequent cases that the remedy is dismissal.

What are some other potential defenses against DUI charges in SC?


Defenses against DUI charges can sometimes involve the suppression of key evidence in your case.

You could introduce the results of breath or blood tests if they are helpful to your case, or, if they are not helpful, you may be able to get the breath or blood test results excluded from your trial.

Breath and Blood Test Results that are Helpful

If the results of a breath test are .05 or less, SC Code Section 56-5-2930 says that it is conclusively presumed that you are not DUI – unless there is admissible evidence of other drug use, this means that your case should be dismissed, or the court should grant a “directed verdict” of acquittal.

Excluding the Breath or Blood Test Results

The SC Supreme Court has not said that an officer’s failure to follow other requirements in SC law or SLED policy regarding the breath test will result in dismissal, but it can result in suppression of the blood or breath test results if you can show prejudice.

The mandatory videotape requirements found in Section 2953 – the requirements addressed in the Suchenski case – also expressly provides for dismissal as a remedy for noncompliance. Other DUI laws, like SC Code Section 56-5-2950, do not authorize dismissal as a remedy.

So, as in State v. Huntley, if a Datamaster machine’s simulator solution is .10% alcohol instead of between 0.076% and 0.084% as required by Section 2950, and, when the machine tests the simulator solution (a pretest the machine performs before testing your breath sample) it finds that it is .10% alcohol, there is no prejudice – the machine’s test has found that the machine is properly calibrated although it used the wrong BAC.

On the other hand, if the machine’s simulator solution is .10% and the pretest finds that it is .08%, the machine is not calibrated and there would be prejudice resulting from the mistake.

Although noncompliance + prejudice can result in the exclusion of the Datamaster results, the court is not likely to dismiss your charges (although the prosecutor might have to dismiss the case if there is insufficient evidence to go forward).


If you are charged with DUAC in SC, the only thing the State must prove is that your BAC result was .08 or greater.

Your best defense against a DUAC charge is suppression of the breath or blood test results – if there is no BAC result, the State cannot prove that your BAC was .08 or greater…

If you cannot get the BAC results suppressed, however, SC Code Section 56-5-2933 also allows for defenses against DUAC. For example, you can challenge:

(1) whether or not the person was lawfully arrested or detained;

(2) the period of time between arrest and testing;

(3) whether or not the person was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;

(4) whether the person consented to taking a test pursuant to Section 56-5-2950, and whether the:

(a) reported alcohol concentration at the time of testing was eight 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 regulations adopted pursuant to Section 56-5-2951(O) and Section 56-5-2953(F); and

(d) machine was working properly.

The statute is also clear that you can still introduce evidence that would tend to show that the breath test results were wrong, like:

(1) the results of any additional tests of the person’s breath or other bodily fluids;

(2) any evidence that may corroborate or question the validity of the breath or bodily fluid test result including, but not limited to:

(a) evidence of field sobriety tests;

(b) evidence of the amount of alcohol consumed by the person; and

(c) evidence of the person’s driving;

(3) a video recording of the person’s conduct at the incident site and breath testing site taken pursuant to Section 56-5-2953 which is subject to redaction under the South Carolina Rules of Evidence; or

(4) any other evidence of the state of a person’s faculties to drive which would call into question the results of a breath or bodily fluid test.

The potential defenses against DUI charges in SC also apply to DUAC charges:

  • You can introduce evidence to show that you were not intoxicated (and therefore the BAC results must be wrong),
  • The officer must comply with the mandatory videotape requirements (or the case is dismissed pursuant to Section 2953 and Suchenski), and
  • You may be able to get the breath or blood test results excluded (and, if you are charged with DUAC, the charge must be dismissed because they cannot prove your BAC level).


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 will investigate your case and find all possible defenses against your DUI charges based on the facts of your case.

Call Axelrod and Associates now at 843-916-9300 or email us to talk with a Myrtle Beach, SC DUI defense attorney today.

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