What is an implied consent hearing, also called a DUI administrative hearing?
A DUI arrest can be overwhelming and confusing, and it is critical that you get an experienced DUI defense lawyer on your side immediately because there are strict deadlines that you will need to meet so that you do not waive important rights.
One issue that arises immediately for many people who have been charged with DUI is the implied consent license suspension – if the DMV does not receive your hearing request within 30 days on the original notice form, you will lose your right to contest the suspension.
In this article, we will go over the basics of SC’s implied consent laws, including:
- What “implied consent” means,
- The procedure for DUI administrative hearings in SC, and
- How to get a temporary alcohol license after your DUI arrest.
DUI Administrative Hearings/Implied Consent Hearings in SC
If you refused the breathalyzer, urinalysis, or blood draw during a DUI arrest, your driver’s license is immediately suspended under SC’s implied consent laws.
On the other hand, if you took the breathalyzer and the result was .15 or greater, your driver’s license is still immediately suspended under SC’s implied consent laws. In either case, you can challenge the administrative suspension by requesting an implied consent hearing (also called a DUI administrative hearing).
The Administrative Side of DUI Cases
Implied consent proceedings are “administrative” in nature. The hearing is often held in a conference room instead of a courtroom, and a DMV hearing officer presides and makes the decisions instead of a magistrate or judge.
There are “two sides” to many DUI cases – the administrative proceedings and the criminal proceedings and these are separate from the other. If you win your implied consent hearing, for example, and your license is restored, your license will be suspended again if you lose the criminal side of the case.
If you lose your implied consent hearing or don’t request a hearing, your license can be suspended a second time if you are later convicted of the DUI offense.
What is “Implied Consent?”
“Implied consent” means you didn’t consent to give a breath or blood sample, and we understand that no reasonable person would consent to such a thing, so we are going to pretend as if you did and punish you if you refuse to provide a sample.
SC Code § 56-5-2950 says that anyone who drives in the State of SC “is considered to have given consent to chemical tests of the person’s breath, blood, or urine for the purpose of determining the presence of alcohol, drugs, or the combination of alcohol and drugs.”
If you refuse to give a breath, blood, or urine sample, or if you provide one and the BAC is .15 or greater, your license is immediately suspended, you will need to enroll in ADSAP before you can drive again, and, depending on the offense and the BAC result, you may need to install an ignition interlock device (IID) before you can drive again.
The length of the license suspension, based on the number of prior DUI offenses and whether it was a refusal or a result of .15 or greater, is shown in the chart below:
| 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 |
Did you consent to give a breath or blood sample when you applied for your driver’s license? No, you didn’t. Neither did I.
Despite the legislature’s pronouncement that you consented to something you never consented to, you have the right to refuse the breathalyzer, and, if you refuse or if you take it and the result is greater than .15, you have the right to request a hearing to contest the suspension.
What’s the Procedure for Implied Consent/DUI Administrative Hearings?
The most important thing to know, if you have been charged with DUI and your license is suspended under SC’s implied consent law, is that the DMV must receive your hearing request within 30 days or you will lose your right to request a hearing.
Notice of Suspension
During your arrest, while you were in the Datamaster room (the breathalyzer room), the arresting officer most likely handed you some paperwork – one of those forms is your Notice of Suspension, which must be used to request your implied consent hearing.
Fill this out, following the instructions on the back, and mail it in along with the $200 fee, or bring it to your attorney immediately so your attorney can request the hearing on your behalf.
Be aware that you may have other deadlines that must be met early in your case, including a jury trial request in advance of your initial court date – contact your attorney immediately, get advice on how to proceed, and do not delay.
Temporary Alcohol License
Once you have requested the DUI administrative hearing, you can go to any DMV office and get a “temporary alcohol license,” or TAL, that allows you to drive, without restrictions other than no alcohol, until your hearing date.
What Happens at the Implied Consent Hearing?
At the administrative hearing, the arresting officer (and the Datamaster operator if they are not the same person) will testify as to the probable cause for your arrest and why they suspended your license (a refusal or result of .15 or greater).
Your attorney can then cross-examine the officer to establish that there was no probable cause for your arrest, that you did not refuse the test, or that the result was not .15 or greater, including whether:
- You were lawfully arrested or detained,
- You were given a copy of and verbally informed of your implied consent rights,
- You refused to take the test,
- The result was .15 or greater,
- The officer was qualified to administer the test,
- The officer complied with SC implied consent law and SLED policy during the testing procedure, and
- The machine was working properly.
If you win the implied consent hearing, your license is restored (the “suspension is rescinded”), but you must still fight the DUI charges in criminal court. If the arresting officer does not appear at your hearing, or if they decline to testify, your attorney will make a motion to “rescind the suspension” and your license will be restored.
If you lose the implied consent hearing or do not request a hearing in time, your license will be suspended, you must enroll in ADSAP, and, in some cases, you may be required to install an ignition interlock device on your vehicle before you can drive.
Questions About Implied Consent/DUI Administrative Hearings in SC?
DUI lawyer Kent Collins will investigate your charges, answer your questions, and do everything legally and ethically possible to get your case dismissed, win your case at trial, or find a resolution that is fair and reasonable, including challenging your implied consent suspension and helping you to get your driver’s license restored.
Get in touch with Kent by phone at 803-808-0905 or use this form to reach him online to schedule your in-person consultation.
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