Can I get my license back?

Usually, yes.

But first, let’s clear something up.

There are two ways that a South Carolina DUI arrest might suspend your driver’s license. They’re going to try to get you coming and going – once when you’re arrested, and again once you get to court.

These are separate suspensions, and you need to start thinking of them separately.

First, there’s the administrative license suspension – this is what the officer might have given you after you took (or didn’t take) the breath test (or blood test). 

In South Carolina, if you refuse to submit a breath, blood, or urine sample when the officer asks you for it after arresting you for DUI, your license is going to be suspended for at least six months. (Six months if this is your first time, more if it isn’t.) 

The officer will give you a piece of paper called a Notice of Suspension. It does just what it says – it puts you on notice that your license is currently suspended. You need to save this piece of paper.

What if you don’t refuse? Well, if the sample comes back with an alcohol concentration result of less than .15%, then you’re clear for now – you won’t get an administrative license suspension. (Depending on what happens down the road in court, you still might be a license suspension, but at least there’s nothing on the front end to worry about.)

If the sample comes back with an alcohol concentration result of .15% or more, then the officer will give you a Notice of Suspension, just like they would do if you didn’t take the test at all. However, the suspension won’t last as long – it lasts for at least one month. (One month if this is your first time, more if it isn’t.)

You can get a temporary license if you got an administrative suspension, but you only have 30 days to act.

In order to get a temporary license, you have to file an appeal of the administrative suspension. Then, while you’re waiting for that appeal to go to court (and it’s going to be a separate court, separate judge, maybe even in a different county, and there won’t be any legal interaction between it and your criminal charge at all), you can go to the SCDMV and pay $100 for a “Temporary Alcohol License.” They used to call this a “Temporary Alcohol Restricted License,” but there aren’t really any “restrictions” on it per se – it may or may not be honored by other states, and it only lasts until the appeal is decided. But otherwise, you’re good to drive.

There are instructions on the back of your Notice of Suspension on how to request the appeal yourself, but you should have a lawyer do it if possible so that you make sure it goes to the right place in a timely manner. I routinely handle the entire appeal process for my DUI clients, and most other lawyers do the same – I just need a copy of your Notice of Suspension and your ticket, and $200 for the filing fee that the DMV charges.

You might also get something in the mail from the SCDMV that says you have to enroll in the Alcohol and Drug Safety Action Program, and that you are eligible for a Restricted License for going to and from work and/or school. The SCDMV will send this to you automatically, but if you appeal your suspension as I layout above, you don’t have to worry about it, unless you missed the 30-day deadline or you lose your appeal.

Even if you decide to request the appeal on your own, you really ought to have a lawyer by the time the appeal hearing comes around (and it will be scheduled quickly as far as court goes, usually in 6-8 weeks). That’s because the appeal hearing is limited to whether the officer legally suspended your license based on the circumstances in front of them – it doesn’t have to do with whether you’re legally guilty of DUI beyond a reasonable doubt. There’s no jury. There are not as many formalities as you might find in another court. It is really its own animal – and that’s why it’s important to have a lawyer that knows what they’re doing at these hearings to hopefully get the suspension dismissed on appeal.

What if I don’t have a South Carolina license? Do I need to appeal an administrative license suspension?

Answer: Yes. South Carolina may not be able to directly suspend your license – because South Carolina didn’t give it to you in the first place, and in order to taketh away, you have to giveth in the first place. But, South Carolina did give you the privilege to use your out-of-state license on the roads of South Carolina, and they can certainly suspend that. And they can tell your home state that they did.  And then your home state might make you do the things they make their license holders do after a DUI suspension. 

And even if you think your state won’t take any action (and it’s true that some won’t), and even if you never want to come back to South Carolina again, the fact that South Carolina has a red mark on your license history means that when you go to renew or replace your license in your home state someday, or if you ever have to change states and switch over your license, you are going to be experiencing the most painful bureaucratic nightmare when you try to get a valid license at that point, I promise you (I get calls from people going through that all the time, and there’s usually not much I can do to help).

You can still get a “temporary permit” to drive in South Carolina while appealing the hearing, but the process is a little different, and it’s helpful to hire an attorney who has dealt with that situation before (I have).

OK, get all that? 

That was about the first type of suspension you have to think about – depending on your situation, maybe you got one, maybe you didn’t. (And if you don’t know or don’t remember, I can find out.)

Second, if you are ultimately convicted (meaning, you plead guilty, or you are found guilty) of Driving Under the Influence (DUI), or Driving with an Unauthorized Alcohol Concentration (DUAC), you’ll get your license suspended in court. 

The length of time and what options you may have for driving while you’re serving out the suspension are going to vary depending on what particular subsection of the DUI laws you are convicted of and whether you’ve been in DUI trouble before. 

If this is your first rodeo, and you took the breath test and blew under .15%, the suspension is going to last for 6 months. You will be eligible for a provisional license during that time, or you can get an ignition interlock (blow-and-go) restricted license.  

If it’s your first conviction and you blew .15% or more, then you have to get an ignition interlock restricted license, and your suspension will continue indefinitely until you get it. 

If it’s your first conviction and you refused the breath test, the length of your suspension is six months, and you can’t get a provisional license during that time. You can either get an ignition interlock restricted license, or you can wait it out, that’s it.

All this gets more complicated if you have any DUIs on your driving history, and it’s best to go over your specific situation with an attorney to know what exactly you might be facing. There are also complications if your driver’s license is from out-of-state, because every state’s DMV has different rules for what they do once they learn about an out-of-state DUI conviction.

So, back to the original question.

Can I get my license back? 

Usually, yes, or maybe you’ll be eligible for something else that’ll get you driving again. But it’s going to depend on what type of suspension you’re dealing with and on the particular circumstances of your case. And if you are convicted of DUI or DUAC, or if your administrative suspension survives on appeal, then you’ll need to plan on enrolling in the state’s Alcohol and Drug Safety Action Program and getting SR-22 insurance.

I know how important it is to you to be able to stay driving. Maybe you need to get to work. Or to school. Or to see family. Maybe you just don’t want your insurance costs to skyrocket. And now you know how complicated it can be for all of that to happen. 

If I’m your DUI lawyer, I’m going to be the lawyer I’d want if I were in your shoes. I’m at home in the courtroom, even if you’re not. And if you think your situation is hopeless, you’re probably wrong – and I’m sure I’ve seen worse.

What’s going to happen in court?

In South Carolina, if you are arrested for DUI and haven’t been convicted of it before, your charge is probably going to be heard in what’s known as a summary court – of which there are two kinds: municipal courts (which handle charges made by city police officers within city limits) and magistrate courts (which handle the DUIs that come from everywhere else). Municipal courts are tied to one city, and magistrate courts are tied to one county, although a particular county might have multiple different magistrate courts that handle DUIs. Everywhere’s a little different.

Before going into detail on summary courts, a quick word of the other courts you might be in. If you are charged with DUI as a second or subsequent offense – meaning that you’ve already been convicted before of DUI or DUAC in South Carolina or a similar offense in another state – your case should be heard in the appropriate county’s Court of General Sessions. You might hear it called “Big Court.” That’s because it’s the court where all other criminal offenses are heard, from murders to robberies and what-have-you. The Solicitor’s Office in that county is going to provide one of its lawyers to prosecute your case.

You’ll also have your case heard in General Sessions if you’re charged with Felony DUI – Great Bodily Injury Results or Felony DUI – Death Results. 

There are a lot of summary courts in South Carolina, and they all do things a little bit differently. One thing they have in common is that the court date that’s on your ticket is going to be a “bench trial” date – that means the officer is going to be there, and if you want a judge to hear your case that day, you can. I do not normally advise my clients to actually have a bench trial, as it is usually better to exercise your right to a jury trial. In every case in a summary court, you have the right to have a jury of six people pulled from the community hear the evidence, and they have to agree unanimously before they issue a verdict.

Sometimes I will request a jury trial on behalf of my clients from the outset, which will cancel the bench trial date. Sometimes I will attend the bench trial date for my client and request a “continuance” – another court date – to provide me with time to work on the case and go over my options with my client. That is a strategic decision that I will make after considering my past experience in a particular court or with a particular officer. Either way, if you hire me before that first bench trial date, you can expect that nothing of substance will happen on that date, and I may even tell you that you don’t have to be there. 

If we request a jury trial, some courts will send us a notice for a new date rather quickly, and others might seem to take forever. Most courts were shut down or operating on an altered schedule during the first year of COVID-19, and so they are still dealing with the backlog that was created. Sometimes, it takes well over a year to get a resolution to your DUI case.

What if I don’t have a lawyer before I have to go to court?

If you don’t hire an attorney before your first court date, you have to go by yourself and make sure you walk out of there with some more time to hire an attorney. You should make sure you give yourself enough time to find where you’re going and get there without being late – if you aren’t present when the judge calls your case, you might be “tried in absentia” – meaning they will hold a bench trial against you without anyone there to defend you. If that happens and the judge finds you guilty in your absence, then you will definitely need to hire an attorney as soon as possible so they can file something to set aside your sentence and re-open the case. Assuming you get there on time, ask the judge for more time to hire an attorney. This is usually not a problem if it’s your first court date. 

What’s your strategy for fighting a DUI?

Every case is different, but there is always a general blueprint that any good DUI attorney will follow at first in order to get a sense of what options you have and whether it’s possible to get a case dismissed or reduced.

For me, the first thing I do is have a conversation with my client about what happened and everything they remember. I want to know what they remember about their interactions with the arresting officer, but also what they remember about the day leading up to that point. What did they have to eat? To drink? How long had they been awake? Where were they driving to? How long had they been driving? Was it a road they knew well or were they in unfamiliar territory? 

Then I want to learn everything that my client remembers the DUI investigation – what tests did the officer ask them to take? How did those go? 

I also want to learn about my client and find out if they have any medical conditions or are taking any prescription medications that might have impacted the officer’s investigation.

Next, I want to make a “discovery request” – that means formally asking for all the evidence that the officer has that they might use in court. The defense has a right to see that evidence and review it before we make a decision about what to do with your case. They have to turn over the video from their car, from their body camera (if they have one), from the jail (there’s a camera in the breath test room), and any reports they wrote up about why they stopped you in the first place, how you did on the sobriety tests, and so forth.

While we’re waiting for them to respond to my discovery request, I try to do whatever other investigation I can do on my own that might help your case. I will usually request a copy of the officer’s training history so I can know whether they’re properly certified to administer sobriety tests and operate the breath test machine. Their employment records will also give me a sense of whether they have been making DUI arrests for a while or whether they are more of a rookie. 

I might also request a copy of the county’s 911 and dispatch records, if that appears to be relevant to your case. I might also request the internal graphs and data from the breath test machine if you opted to provide a breath sample.

Once I have a file full of discovery materials and other records from my independent investigation, it’s time to start thinking about how your case looks and what your best options are. I’ll usually watch the video of your arrest more than once with an eye for whether the arresting officer administered the tests correctly and whether their reports match up with what the video shows. 

Sometimes there might be issues with the video that can help us. South Carolina has a very strict law about how DUI investigations must be video and audio recorded, and if part of the video is missing or if the footage is insufficient under the requirements set by the law, I might be able to get your case dismissed. 

Whether there are technicalities with the video or not, I try to get a sense of whether your case is one that is best taken to a jury trial or whether it’s one that you’re better off seeking a plea deal. Whether you go to trial or not is ultimately going to be your decision, but I will give you my best sense of your chances at a trial and what the risks and benefits of going to trial versus negotiating a plea deal might be. Sometimes in a close case, the prosecutor might be willing to reduce your DUI charge to a charge of Reckless Driving – which is still a hefty traffic ticket, but has advantages over a DUI conviction. 

Ultimately, even if there’s a general blueprint to follow at first, I always keep an open mind about what our strategy should be. I’ve had cases that look extremely difficult at first that I end up getting dismissed, to my surprise. I’ve also had cases where I’ve initially thought that going to trial would be the best strategy, but after talking it over with my client, we decide to take a plea deal. I’ve done this enough to know better than to assume how exactly things are going to go in court.

What penalties am I facing?

If you are convicted of DUI, there are certain mandatory minimum sentences you may be required to serve, and the punishments tend to get worse if you have been convicted of DUI in the past. Your driver’s license will likely be suspended. And of course, there are out-of-court consequences as well, such as hikes to your auto insurance rates, potential employment setbacks when your conviction shows up in a background check, and the hassle of getting your driver’s license reinstated. Please note that the penalties listed below are meant to be a starting point rather than definitive legal advice, and apply only to South Carolina. You must consult with an attorney about the facts of your particular case to know for sure what possible penalties you are facing, as exceptions may exist that cause a departure from the penalties listed below.

Penalties for a 1st DUI:

• Refusal or BAC .10 or less: $400 fine or between 2 and 30 days jail​​​​
• BAC between .10 and .16: $500 fine or between 3 and 30 days jail
• BAC .16 or more: $1000 fine or 30-90 days jail
• The court may substitute “public service employment” for jail time
• License suspension
• Alcohol and Drug Safety Action Program

​Penalties for a 2nd DUI:​

• Refusal or BAC .10 or less: $2100-$5100 fine and jail (minimum 5 days, maximum 1 year)
• BAC between .10 and .16: $2500-$5500 fine and jail (minimum 30 days, maximum 2 years)
• BAC .16 or more: $3500-$6500 fine and jail (minimum 90 days, maximum 3 years)
• License suspension
• Alcohol and Drug Safety Action Program

​​Penalties for a 3rd DUI:​

• Refusal or BAC .10 or less: $3800-$6300 fine and jail (minimum 60 days, maximum 3 years)
• BAC between .10 and .16: $5000-$7500 fine and jail (minimum 90 days, maximum 4 years)
• BAC .16 or more: $7500-$10000 fine and jail (minimum 6 months, maximum 5 years)
• License suspension
• Alcohol and Drug Safety Action Program

​​Penalties for a 4th or subsequent DUI:​

• Refusal or BAC .10 or less: 1-5 years jail
• BAC between .10 and .16: 2-6 years jail
• BAC .16 or more: 3-7 years jail
• License suspension
• Alcohol and Drug Safety Action Program

Should I have taken the breath test?

By the time you’re reading this, it’s probably too late to decide. But you may be wondering whether it’s better to refuse the breath test or to take the breath test.

The truth is that there is no one right answer. Every case is different, and the consequences for taking the test and refusing the test change depending on what state you’re in and on the facts of your case. Some people might be better off if they take the test, while some people will be handing over valuable evidence of their guilt that the State wouldn’t otherwise have to convict them.

Generally, you should keep in mind that if you refuse the test, there might be consequences for your driver’s license (but they might be prevented if you request an administrative hearing), and if you take the test, the results might be used against you and severely constrain you from fighting your case. Since there is always the option of fighting an administrative suspension, and since a DUI conviction typically results in a license suspension anyway, you certainly need to consider that you might be better off refusing all tests and preventing the State from gathering evidence to strengthen its case. Another thing to consider is that the test equipment might be faulty, or the operator might not properly use the equipment.

Ultimately, every case is different, and this is a decision that you have to make at the time of the arrest, before you’ve probably had time to consider all the consequences at play. Your arresting officer will read you your state’s “implied consent” warning about the consequences of taking and refusing the test, but these instructions are written by the State (which wants to rack up the most convictions it can) and they won’t tell you the whole story.

Did I have to do the sobriety tests?

In South Carolina, with one rare exception, all sobriety tests are optional. In fact, there’s very little a police officer can make you do during a traffic stop. If they ask you to step out of your car (for “safety reasons” or for whatever reason they give you), then yes, you have to step out of your car. You also have to give them your identifying information when requested – driver’s license, insurance, registration.

But you don’t have to do anything else. You don’t have to tell them anything else. You don’t have to tell them where you’re going, or where you’ve been, and you don’t have to tell them why you don’t want to tell them those things. You are well within your rights to just say no when they ask you to do something or reveal something about what you’ve been up to.

And when it comes to performing field sobriety tests, this is explicitly written into South Carolina law. South Carolina Code section 56-5-2953(A)(1)(b) states:

“A refusal to take a field sobriety test does not constitute disobeying a police command.”

They can ask all they want, and you can refuse all you want. 

They know this. And they know that most people don’t know this.

That’s why whenever I watch my clients on video, I usually notice the artful ways that police officers “encourage” their suspects to perform these optional tests.

“I’m just going to need you to just step over here and do some tests for me real quick.” 

(Yeah, I bet “you’re going to need” that, because otherwise, you won’t have probable cause to make an arrest!)

“Stand over here and put your hands at your side for me please.”

(He said please! That means you are being polite and doing him a favor when you do his tests!)

“I just need to know if you’re safe to drive before you get back on the road.”

They know they can’t tell you that you have to take the tests. They also know you’re less likely to take them if you know they’re optional. So, they take these subtle liberties with the English language to make it seem like you have to take the tests without actually saying so.

Are they going to arrest me if I refuse to take the field sobriety tests?

Maybe! That’s a risk you have to weigh. But think about it this way – if they really believed that they had enough probable cause to take you in for DUI without even seeing how you performed on the tests, they’re probably going to still think the same thing after you take the tests. The way the tests are scored is subjective and vague, and officers might mean well but still see what they expect to see when they decide how you did. 

And they might make you feel the pressure to take the tests by saying something like “well, you don’t have to take the tests, but then I have to make a decision based just off of what I have.” You don’t need to get in a long, back-and-forth about whether they’re going to arrest you. You have every right to politely refuse the tests, call their bluff, and let the chips fall where they may. And if you do get arrested, the fact that no tests were performed might be a reason to get your case dismissed or reduced.

There’s one exception under South Carolina law: 

According to South Carolina Code section 56-5-2948:

“When a person is suspected of causing a motor vehicle incident resulting in the death of another person by the investigating law enforcement officer on the scene of the incident, the driver must submit to field sobriety tests if he is physically able to do so.”

This is a pretty rare situation if you think about it. If a traffic accident is bad enough to cause the death of another person, chances are the suspected drunk driver is going to be physically unable to perform field sobriety tests. I’ve never seen an officer use this code section before, and it looks like it has never been cited in any South Carolina appeals court case, so there probably have not been many opportunities to challenge it. If I ever have a case where an officer relies on this code section to force my client to do field sobriety tests, I feel like I’d have a pretty good opportunity to throw the evidence of the tests out based on a violation of the right to be free from compelled self-incrimination guaranteed by the South Carolina Constitution.