What is implied consent and how do DUI administrative hearings work?
Below, we will cover the basics of implied consent in SC, including:
- How to request an implied consent hearing,
- How to get a temporary license while you wait for your hearing, and
- The procedure for a DUI administrative/ implied consent hearing in SC.
DUI Administrative Hearings vs. DUI Criminal Charges
For many people charged with driving under the influence in SC, there will be “two sides” to their case – the criminal case that is pending in the magistrate court, municipal court, or General Sessions Court, and the administrative case challenging the implied consent license suspension.
The criminal and administrative sides of your DUI case are separate – they are in different courtrooms, with different judges (one is called a “hearing officer”), and one does not affect the other.
If you win your implied consent hearing, you must still deal with the DUI criminal charges. If you lose your implied consent hearing, you can be punished twice with license suspensions, ignition interlock requirements, and ADSAP requirements if you are also convicted of the DUI charges.
What is a DUI Administrative/Implied Consent Hearing?
What is implied consent?
The SC legislature says in SC Code Section 56-5-2950 that, if you drive in the state of SC, you “impliedly consent” to chemical tests for alcohol or drugs if a police officer suspects that you are driving under the influence.
This is what we call a “legal fiction.” You did not consent to take a breath or blood test when you got your driver’s license. Neither did I.
We have a Fifth Amendment right to not provide evidence against ourselves when we are accused of a crime, although the courts have said the right against self-incrimination doesn’t apply to implied consent laws.
You can refuse the DataMaster or other alcohol tests, but, if you do, your license will immediately be suspended, you must enroll in the Alcohol and Drug Safety Action Program (ADSAP), and you may be required to install an ignition interlock device (IID) on your vehicle.
On the other hand, if you take the test and the result is .15% or greater, your license will still be suspended under SC’s implied consent laws.
Is there anything you can do to get your license back?
Notice of Suspension and Implied Consent Hearing Requests
If the arresting officer suspends your driver’s license because you refused the DataMaster test or you blow .15% or greater, the arresting officer (or Datamaster operator – they are often the same person) will give you a Notice of Suspension form. On the back of this form are instructions for requesting an implied consent hearing.
Your hearing request must be received by the DMV within 30 days of your arrest on the original notice form, or you will forever lose your right to request a DUI administrative hearing. Send this form in immediately or provide it to your attorney so that you do not unintentionally waive your right to a hearing by waiting too long.
Can I Get a Temporary License While I Wait for the Hearing?
Once you request your implied consent hearing, you can go to any DMV branch and get a Temporary Alcohol License (TAL) that allows you to drive in South Carolina without restrictions other than you cannot drink alcohol – until your hearing date.
Implied Consent License Suspensions
The length of an implied consent license suspension depends on how many prior convictions you have for driving under the influence within the last ten years and whether you refused the breathalyzer or had a BAC result of .15% or greater:
| Prior Convictions During Past 10 Years | License Suspension Period for BAC of .15% or higher | License Suspension Period for Refusing the Breathalyzer |
|---|---|---|
| 0 | 1 month | 6 months |
| 1 | 2 months | 9 months |
| 2 | 3 months | 12 months |
| 3 | 4 months | 15 months |
In some cases, you will be required to install an ignition interlock device (IID) before you can drive again. In other cases, you may have the option to install an IID rather than serving out your suspension period.
What Happens at a DUI Administrative/Implied Consent Hearing?
In most cases, the arresting officer (who is usually also the Datamaster operator) will be the only witness at the implied consent hearing.
The officer will testify as to their probable cause for the arrest and DataMaster test, the testing procedure, and the test results. Your attorney can then cross-examine the officer to show the hearing officer that the license suspension was not warranted and that your license should be returned.
SC Code § 56-5-2951 limits the scope of the hearing to whether the person:
- was lawfully arrested or detained,
- was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950,
- refused to submit to a test pursuant to Section 56-5-2950, or
- consented to taking a test pursuant to Section 56-5-2950, and the
- reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more,
- individual who administered the test or took samples was qualified pursuant to Section 56-5-2950,
- tests administered and samples obtained were conducted pursuant to Section 56-5-2950, and
- machine was working properly.
The DMV hearing officer will then decide whether the testimony supports the officer’s decision to take your license, and, if the hearing officer agrees with your attorney’s arguments, the hearing officer will “rescind the suspension” and return your license to you.
What Happens if You Win the Hearing?
There are several ways that you can win your implied consent hearing.
For example:
- The hearing officer agrees with your attorney’s arguments regarding probable cause for the arrest, the officer’s failure to comply with SLED policy, whether the machine was operating properly, or whether you actually refused the test,
- The arresting officer or Datamaster operator doesn’t appear at your hearing, resulting in no testimony and you win your hearing by default, or
- The arresting officer shows up for your hearing but declines to enter testimony, resulting in no testimony and you win your hearing by default.
When you win your hearing, your license is restored, and you should be able to go to the DMV to get a copy of your license within a few days.
Note that, if you win your implied consent hearing, your criminal charges for DUI are still pending in another court and your case is not over.
What Happens if You Lose the Hearing?
If you lose the hearing, or if you did not request a DUI administrative hearing, you must complete the suspension period, enroll in ADSAP, and possibly install an ignition interlock device on your vehicle.
There are no penalties for requesting and losing an administrative hearing – if lose, you gain nothing, but you also lose nothing.
Questions About DUI Administrative/ Implied Consent Hearings?
Your Lexington, DUI defense lawyer will answer your questions, investigate your charges, and work to get your case dismissed, find a resolution that is acceptable, or win your case at trial.
Call now at 803-356-2800 or send us a message online to speak with a Lexington DUI lawyer today.
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