DUI Breath Test and Implied Consent Driver’s License Suspension
If you are arrested for Driving Under the Influence (DUI) in South Carolina you will be offered a breath test. If your DUI breath test reading is .15 or higher or if you refuse to take the breath test your privilege to drive in South Carolina will immediately be suspended for a violation of South Carolina’s implied consent laws. However, your implied consent driver’s license suspension may be challenged. In Chisolm v. South Carolina Department of Motor Vehicles, the South Carolina Court of Appeals overturned an implied consent driver’s license suspension from a DUI arrest. If you have been charged with DUI or DUAC contact a DUI attorney at Pisarik Law Firm to discuss your DUI defense.
Chisolm v. South Carolina Department of Motor Vehicles, Opinion number 5107, (SC Ct. App. 2013)
Does a DUI suspect “refuse” to give a DUI breath sample pursuant to S.C. Code Section 56-5-2951 where the suspect blows into the Datamaster machine, the machine determines that an insufficient breath sample was given, but no other evidence exists that suggests the suspect consciously refused to give a DUI breath sample.
On May 19, 2010, Officer Dyar Archibald arrested Chisolm for DUI. Upon arrest, Chisolm was taken to the police station and offered a DUI breath test. Chisolm blew into the Datamaster machine for one minute and fifty-three seconds. During the time Chisolm was blowing, the machine registered a solid tone meaning that air was going into the machine. Officer Archibald testified the machine “just didn’t read it.” No evidence was presented that the Datamaster’s failure to register a breath sample was Chisolm’s own fault or that Chisolm was uncooperative, acting unruly, ingesting prohibited substances, or failing to cooperate with the Officer’s instructions. Officer Archibald deemed the inadequate sample to be a DUI breath test refusal. A refusal triggers a six month driver’s license suspension for first time DUI breath test violation. Chisolm’s suspension was upheld at the Administrative Law Court. Chisolm then appealed to the South Carolina Court of Appeals.
The South Carolina Court of Appeals found the Officer’s decision to consider Chisholm’s DUI breath test a “refusal” to be arbitrary and capricious. Thus the Court threw out Chisholm’s implied consent driver’s license suspension. The South Carolina Code does not define “refusal.” However, SLED policies provide several examples for when a refusal occurs. One of those SLED policies states that a “refusal” occurs when a person, “does not blow an adequate sample, as determined by the instrument.” SLED Policies and Procedures Section 8.12.5(F)(4)(i). However, according to SLED Policies and Procedures an Officer may determine that the subject failed to provide an acceptable DUI breath test through no fault of their own and be given another opportunity to take the test. SLED Policies and Procedures Section 8.12.5 (L)(2)(f)(vii). Therefore, the failure to supply a “registerable” DUI breath test sample does not automatically result in a refusal, because the Officer has, “discretion whether there was a refusal and has the option to conduct a second test.” Here, the Court found that, “No evidence was presented by the Department,…, that Chisolm’s failure to register a breath sample resulted from her own fault by faking or thwarting the test….” Thus, the Court determined that Officer Archibald’s decision to treat Chisolm’s DUI breath test as a “refusal” was arbitrary and capricious.
DUI attorney at Pisarik Law Firm can review your DUI breath test and discuss your DUI defense
Contact a DUI Attorney at Pisarik Law Firm today to discuss your DUI breath test and other options for your DUI defense. Just because you have been charged with DUI or DUAC does not mean that you are guilty. It won’t cost you anything to talk with a DUI lawyer at Pisarik Law Firm about your DUI defense. 803-415-2733