What is an implied consent hearing/ administrative hearing in SC?
Do you remember back when you first got your driver’s license, and you agreed to take a blood alcohol test anytime a police officer requests it?
No? Me either…
But SC law pretends as if you did by saying you “impliedly consented” to take the breathalyzer test. How does that work?
Below, I’ll go over the basics of implied consent/ administrative hearings in SC, including:
- What implied consent means in SC,
- The difference between an administrative hearing and your criminal DUI case,
- How to request an implied consent hearing, and
- The procedure for administrative DUI hearings.
What Does Implied Consent Mean in SC?
No one agrees to submit to breath, blood, or urine tests as a condition of getting your driver’s license.
Why would you agree, in advance, to waive your Fifth Amendment right to not be compelled to give evidence against yourself?
So, to make law enforcement’s job easier, the legislature has proclaimed that you “impliedly consent” to take the breathalyzer when you drive in this state. SC Code Section 56-5-2950 says:
(A) A person who drives a motor vehicle in this State 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 arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of alcohol and drugs.
You have the right to refuse to take the test, and the arresting officer or Datamaster operator must inform you, verbally and in writing, of your implied consent rights.
If you refuse the test, though, you will be punished with an immediate license suspension, you must enroll in ADSAP, and you might be required to install an ignition interlock device on your vehicle.
If you take the test, and the result is .15 or greater, you will be punished with an immediate license suspension, you must enroll in ADSAP, and you might be required to install an ignition interlock device on your vehicle.
What are Implied Consent Rights?
You could say that your implied consent rights include the right to be told that you didn’t really consent to take the officer’s breathalyzer test.
The officer must inform you, verbally and in writing (on a form that you will later use to request your implied consent hearing), that:
- You have the right to refuse the test,
- If you refuse the test, your license will be suspended or you may be required to put an ignition interlock device (IID) on your vehicle,
- You have the right to independent testing (the officer must assist you to get an independent test if you request it),
- You can request an administrative hearing if the officer takes your license, and
- You must enroll in the ADSAP program if you do not request an administrative hearing.
Administrative v. Criminal Court
Implied consent hearings are administrative proceedings. The issues are decided by a hearing officer, and it is considered a civil proceeding.
This is a separate court case from your DUI charges, which will be heard in the criminal court. One does not affect the other – if you win your implied consent hearing, your DUI charges are still pending, and your license will still be suspended if you are convicted of DUI.
If you lose the implied consent hearing, your DUI charges are still pending, and your license will be suspended again if you are convicted of DUI.
What’s the Procedure for an Implied Consent Hearing in SC?
If your license is suspended because you refused the breathalyzer test or because you took the test and the result was .15 or greater, you must immediately request an implied consent hearing if you want to challenge the suspension.
Requesting the Administrative Hearing
The DMV must receive your hearing request within 30 days of the arrest, and the request must be made on the original implied consent form that was given to you in the Datamaster room (there are instructions on the back of the form).
Fill it out and mail it in with the required fee or bring it to your DUI defense attorney ASAP so you don’t miss the deadline.
Once you request the implied consent hearing, you can go to the DMV and get a temporary license that allows you to drive until the hearing.
What Happens at an Implied Consent Hearing?
At the hearing, the officer will testify as to their probable cause for your DUI arrest and what happened in the breathalyzer room (why they suspended your license).
Your attorney will cross-examine the officer and can then argue to the judge (hearing officer) that:
- There was no probable cause for the arrest,
- The officer did not read your implied consent rights to you or provide you with the implied consent rights form,
- You did not refuse the test,
- The result was not .15 or greater,
- The officer was not qualified to administer the Datamaster test,
- There were problems with the machine that affected the result, or
- The officer did not follow SLED policy and procedure when administering the test.
What Happens if You Win?
You could win at the implied consent hearing if:
- The hearing officer agrees with your attorney’s arguments,
- The arresting officer does not show up and did not request a continuance, or
- The arresting officer appears but agrees not to enter testimony (this is rare but it could happen).
If you win your implied consent hearing, the “suspension is rescinded,” and your license is restored. You can then go to the DMV and get your regular license returned to you.
What Happens if You Lose?
If you lose at the implied consent hearing, you lose nothing – there is no downside to requesting an implied consent hearing. Your license is suspended, and you must enroll in ADSAP, which is what would have happened if you had never requested the hearing.
Questions About Implied Consent Hearings in SC?
The Myrtle Beach and Columbia, SC criminal defense lawyers at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC, including driving under the influence charges and implied consent hearings.
We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.