Weighing the Pros and Cons of Refusing a Breathalyzer Test In South Carolina

So you’re out at your favorite watering hole to celebrate your new job. You have a couple of drinks then decide to call it a night. You hop in the car and start to head home when you notice lights flashing in your rear-view mirror.

If the officer has any suspicion that you’ve been drinking then you will have a decision to make: should you refuse the pending breathalyzer test?

This is one of the most common questions asked to DUI attorneys and there is no simple answer. The fact is, every case is different and the best you can hope to do is weigh the pros and cons of what refusing a breathalyzer test will mean for you and make an informed decision.

To help you we’ve put together some of the biggest pros and cons, but please remember this is not to be construed as specific legal advice for your situation. This blog is for informational purposes so give us a call to talk about your specific case.

Pro #1 – BAC results can’t be used against you in court

If you refuse to take the breathalyzer then the prosecution will not have any hard evidence of what your blood alcohol content was when you were pulled over. Do not misconstrue this to mean that you cannot still be convicted—there are many other ways to achieve a DUI conviction in court without BAC results—but if you know for certain that you will blow higher than the legal limit of 0.08 on your breath test it may not be in your best interests to provide hard evidence of that fact.

Pro #2 – Possibly avoid enhanced penalties for extra-high BAC

The higher your BAC, the harsher the penalty. For example, a first-time offender who blows a .16 or higher on their breath test can face a minimum of 30 and maximum of 90 days in prison compared to a minimum of 2 and maximum of 30 days for someone who blows between a .08 and .10. By refusing to submit to the breath test, it’s possible you could still face a DUI conviction but the prosecution would have no way of knowing that your BAC fell into the higher-penalty range.

Con #1 – License suspension

In South Carolina, the first time you refuse to submit to a breathalyzer test automatically results in a six month suspension of your driver’s license. A second time will result in a nine month suspension while a third results in a year-long license suspension. By accepting your driver’s license at the DMV you have agreed to South Carolina’s implied consent law which states that you agree to take a breath, blood, or urine test if you are arrested by an officer with probable cause that you were driving under the influence. The automatic license suspension is an administrative penalty for failing to abide by that agreement, and it will go into effect immediately upon arrest.  Additionally, depending upon the circumstance of your case, failing the breath test or receiving a DUI conviction, may require that you install an interlock ignition device on your vehicle.

Con #2- Providing evidence of your guilt

If you refuse a breathalyzer test, the refusal itself can be used in court by the prosecution as evidence that you were aware you were breaking the law and driving with a BAC over the legal limit. As we stated before, the prosecution does not have to have breathalyzer results for a conviction, they simply have to prove beyond a reasonable doubt that you were impaired at the time of your arrest, and your refusal the take a breathalyzer test could help them achieve that.

Obviously, the best advice we can give you is to avoid having to decide whether or not to refuse a breathalyzer test. If you’ve been drinking, make other arrangements for your transportation besides driving yourself. If you do happen to find yourself having to make a decision about taking a breath test, no matter what you decide a strong DUI attorney can help you fight the charges and take back your life. Give us a call and let us go to work for you!

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Written by Greg McCollum CLDT

Greg McCollum CLDT

At the Complete Legal Defense Team we represent, assist, and defend people who are accused of crimes. Being accused of a crime is a harrowing experience. You experience public shame and humiliation and do not know where to turn for help. We are experienced and knowledgeable and will take immediate steps to begin repairing your life. We evaluate how the allegation affects your reputation in the community, how it affects your time and your life, and how it will affect you financially. Believe it or not, many people who are arrested and charged with crimes are innocent.