Refusing an official breath test after a qualifying DUI arrest in South Carolina generally causes an immediate driver’s license suspension. A first refusal carries a six-month suspension when you have no qualifying prior offenses. You have 30 days from the issuance of your suspension notice to request an administrative hearing. You may qualify for a temporary alcohol license or an ignition interlock restricted license while addressing the suspension.
A refusal does not automatically prove DUI, and prosecutors may still bring a criminal charge. If you were arrested in Myrtle Beach, South Carolina, knowing which deadlines apply can help you protect your driving privileges and prepare your defense.
Can You Legally Refuse a Breath Test in South Carolina?
Yes. South Carolina’s implied consent law allows you to decline a chemical test, but a qualifying refusal has consequences. Under South Carolina Code Section 56-5-2950, drivers are deemed to have consented to certain breath, blood, or urine testing after arrest for a qualifying impaired-driving offense.
Officers must provide prescribed information about testing rights and consequences. Refusing a legally requested test can result in an administrative suspension even without a DUI conviction. The specific rules depend on the test requested and the arrest circumstances.
South Carolina Code Section 56-5-2950:
What Happens Immediately After You Refuse a Breath Test?
An officer generally issues a notice of suspension when you refuse a qualifying post-arrest test. Under Section 56-5-2951, the suspension is effective from the date of the alleged DUI-related violation.
Possible consequences include:
- An administrative driver’s license suspension.
- A 30-day deadline to request a contested case hearing.
- A separate criminal DUI case.
- Potential admission of the refusal as evidence in court.
- ADSAP and ignition interlock obligations, depending on the outcome and your licensing choices.
Key deadline: You have 30 days from the issuance of the suspension notice to request an administrative hearing. A criminal court date does not replace this deadline.
How Long Is Your License Suspended for Refusing a Breath Test?
South Carolina law establishes these administrative suspension periods for a qualifying refusal:
- No qualifying prior offenses: 6 months.
- Second qualifying offense: 9 months.
- Third qualifying offense: 12 months.
- Fourth or subsequent qualifying offense: 15 months.
Qualifying convictions and certain prior administrative suspensions within the preceding 10 years may affect the applicable period. These refusal suspensions are separate from penalties associated with a criminal DUI conviction.
Under Section 56-5-2951, an eligible driver may enroll in the Ignition Interlock Device Program to end the remaining suspension and obtain an ignition interlock restricted license. The device must remain installed for the time remaining on the suspension, subject to a three-month minimum if less than three months remain.
South Carolina Code Section 56-5-2951:
Can You Fight a Breath Test Refusal Suspension?
Yes. You may request a contested case hearing before the South Carolina Office of Motor Vehicle Hearings within 30 days after the suspension notice is issued. This hearing is separate from your criminal DUI case.
The hearing generally addresses:
- Whether you were lawfully arrested or detained.
- Whether the officer provided the required written and verbal warnings.
- Whether you refused a test requested under the implied consent law.
The Department of Motor Vehicles and the arresting officer have the burden of proof at the hearing. If the suspension is overturned, your driving privileges must be reinstated, subject to any other applicable restrictions.
A Myrtle Beach DUI attorney can review the suspension notice, recordings, and arrest paperwork to assess potential grounds for a challenge.
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Can You Drive While Waiting for Your Hearing?
Possibly. When you timely request a hearing, South Carolina law provides qualifying drivers with the option of enrolling in the Ignition Interlock Device Program or obtaining a temporary alcohol license while the administrative case is pending.
A temporary alcohol license costs $100 and permits driving without restrictive conditions while it remains valid during the pending case. You must follow the application process; requesting a hearing alone does not automatically authorize driving.
If your suspension is upheld, the law imposes additional licensing and program obligations. Confirm that you have valid driving authorization before operating a vehicle.
Can You Be Convicted of DUI Without a Breath Test Result?
Yes. Under Section 56-5-2930, a DUI prosecution can rely on evidence that alcohol, drugs, or both materially and appreciably impaired your ability to drive. A breath test result is not the only potential evidence.
Prosecutors may consider:
- Driving observations.
- Statements during the traffic stop.
- Field sobriety test performance.
- Dash camera or body camera recordings.
- Observations about speech, coordination, or behavior.
- Witness testimony.
A qualifying refusal may also be admissible in the criminal case. Neither the absence of a test result nor a refusal determines the outcome on its own.
Is a Roadside Breath Test Different From an Official Breath Test?
Yes. A preliminary roadside screening during an investigation is not necessarily the same as an evidentiary chemical test requested after an arrest under the implied consent law.
The type of test, the timing of the request, and whether a qualifying arrest occurred can affect the legal consequences. Declining a preliminary roadside screening does not automatically establish a refusal under Section 56-5-2950.
What If the Officer Did Not Explain Your Testing Rights?
South Carolina law requires specified written and verbal warnings before chemical testing. These include information about refusal, license suspension, independent testing, and the hearing process.
A failure to give legally required warnings may matter in an administrative hearing or criminal proceeding. Such a failure does not automatically dismiss every charge. An attorney can examine the recording and the testing documentation to assess the issue.
Will You Have to Complete ADSAP or Use an Ignition Interlock Device?
If you do not request a hearing or your refusal suspension is upheld, Section 56-5-2951 requires enrollment in South Carolina’s Alcohol and Drug Safety Action Program (ADSAP).
If you request a hearing and the suspension is upheld, the statute also requires enrollment in the Ignition Interlock Device Program. An eligible driver may separately choose an ignition interlock restricted license instead of serving the remainder of a qualifying suspension. The particular requirements depend on the stage of the case and your driving record.
At the conclusion of the suspension or interlock period, you must be attending or have completed ADSAP to have your driving privileges restored. You must continue the program if it is unfinished.
What Should You Do After Refusing a Breath Test in Myrtle Beach?
If you were arrested in Myrtle Beach or elsewhere in Horry County, these steps can help you respond promptly:
- Review your suspension notice and identify its issuance date.
- Address the 30-day administrative hearing deadline.
- Determine whether you qualify for a temporary alcohol license or ignition interlock restricted license.
- Keep your arrest documents and any details about the testing request.
- Drive only when you have valid authorization.
- Discuss the administrative and criminal cases with a DUI defense attorney.
For additional information about a first DUI charge, read:
Frequently Asked Questions About Refusing a Breath Test in South Carolina
Is refusing a breath test automatically a criminal offense?
A qualifying refusal primarily produces administrative licensing consequences. It is not itself a DUI conviction. Prosecutors may still pursue criminal charges based on the circumstances of the arrest.
Can you refuse a breath test and keep driving?
A qualifying refusal generally triggers an immediate suspension. If you complete the applicable hearing and licensing requirements, you may be eligible for temporary driving privileges.
Does refusing a breath test make a DUI case easier to defend?
Not necessarily. Prosecutors may rely on other admissible evidence, and the refusal itself may be used in court.
How long do you have to request a hearing?
You have 30 days from the issuance of the suspension notice to request a contested case hearing.
What happens if you miss the 30-day deadline?
You waive your right to that administrative hearing, and the suspension continues for the applicable period. You should promptly review your remaining licensing options with an attorney.
Speak With a Myrtle Beach DUI Defense Attorney About Your Options
If you refused a breath test in South Carolina, McCutchen Vaught Geddie & Hucks, P.A. can discuss your administrative hearing rights and the evidence in your criminal case. The firm represents people facing criminal charges in Myrtle Beach, North Myrtle Beach, and nearby South Carolina communities.
Contact the firm online to request a criminal defense consultation, or visit:
This article provides general information about South Carolina law and is not legal advice. Consult an attorney about your circumstances.
