Charged with DUI under .08?
By Brooks Davis
Many of my clients are under the misapprehension that you may not be charged for driving under the influence (DUI) if your blood alcohol level (BAC) indicates less that .08 on the breathalyzer. This is a very dangerous and incorrect assumption. Most people refer to .08 as the “legal limit”. The DUI statute in South Carolina, 56-5-2930, states the following:
“It is unlawful for a person to drive a motor vehicle within this State while under the influence of alcohol to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired, under the influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired, or under the combined influence of alcohol and any other drug or drugs or substances which cause impairment to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired.”
In other words, there is no statutory limit pertaining to DUI. You may be charged with DUI if the arresting officer simply has probable cause to believe that you are under the influence of alcohol, drugs or a combination thereof which “materially and appreciably” impairs your ability to drive a motor vehicle. If the officer can make a case that you were impaired, even with a .01 BAC, you could be convicted of DUI. Theoretically, you could be convicted of DUI if aspirin or an over-the-counter cold medicine impairs your ability to drive. Where then does .08 come from? .08 is the BAC limit per se, not the “legal limit” as there is no such term. If your BAC is .08 or above, then the law presumes you are impaired regardless of whether you are actually impaired or not. Per Section 56-50-2950, “Implied consent to testing for alcohol or drugs”, by virtue of exercising the privileges of a driver’s license in the State of South Carolina, you have implicitly agreed to consent to breathalyzer testing. You may refuse the test but the consequence is that your license will be suspended for a minimum of six months and your refusal may be used against you in court. Furthermore, if your BAC is .15 or above your license will automatically be suspended for at least a month regardless of whether or not you consent to a breath test. You should be aware that if you disagree with the results of the breath test that you have the right to have a qualified person of your choosing conduct independent tests at your expense. In other words, you have the right to demand the arresting officer take you to a hospital or other facility for an independent blood or urine test. If the officer refuses, your case may be dismissed as he or she has an affirmative duty to provide such assistance.
As a driver, this is a very important distinction to understand. If you are charged with DUI it’s not the end of the world. There are many defenses available including the officer’s reasoning for the initial stop, failure to record the entire stop including the field sobriety test, inaccuracies in the testing equipment. etc. I hope you are never charged with a DUI, but if your are please call me to discuss your case. Remember, a taxi will cost much less for a ride home than an attorney will for a DUI defense.