A DUI Case Starts Long Before the Breath Test
A DUI arrest may seem to come down to one number or one officer’s opinion. In reality, the case can involve everything that happened from the initial traffic stop through roadside testing, arrest, chemical testing, and video recorded afterward.
Sharpe & Leventis, LLC represents people facing DUI charges in Columbia and surrounding South Carolina communities.
We examine why the vehicle was stopped, what the officer observed, how field sobriety tests were administered, what the video shows, how any breath or other testing was performed, and whether the State can prove the charge filed.
What Is DUI in South Carolina?
South Carolina law prohibits driving while under the influence of alcohol, drugs, or a combination of substances when the person’s ability to drive is materially and appreciably impaired.
That distinction is important because South Carolina does not define every DUI case solely by a BAC number.
DUI Based on Impairment
Under South Carolina Code §56-5-2930, the State may pursue DUI based on evidence that alcohol, drugs, or a combination of substances materially and appreciably impaired the person’s ability to drive.
Evidence may include:
- Driving behavior
- Officer observations
- Field sobriety testing
- Video
- Statements
- Breath, blood, or urine results
- Other evidence concerning impairment
Driving With an Unlawful Alcohol Concentration — DUAC
South Carolina also has a separate offense commonly called DUAC. Under §56-5-2933, it is unlawful to drive with an alcohol concentration of 0.08% or higher.
DUI and DUAC are related, but they are not identical charges. The evidence and prosecution theory should be evaluated based on the offense actually alleged.
What Does Your BAC Mean in a South Carolina DUI Case?
BAC is important, but the legal effect is more nuanced than simply “under or over .08.” Under current South Carolina law:
0.05% or Less
For purposes of an alcohol-based DUI prosecution, an alcohol concentration of
0.05%
or less creates a conclusive presumption that the person was not under the influence of alcohol.
More Than 0.05% but Less Than 0.08%
That range creates
no automatic inference either way. The BAC may be considered together with other evidence.
0.08% or Higher
At
0.08%
or
more, the law permits an inference that the person was under the influence of alcohol. A BAC of .08% or higher can also support a DUAC charge.
Enhanced Penalty
Higher BAC levels can also increase the potential penalties if there is a conviction. South Carolina’s DUI statutes use enhanced penalty ranges beginning at
.10% and again at
.16%.
What Evidence Matters in a DUI Case?
A DUI defense should be built from the complete record—not just the breath-test result.
The Traffic Stop
Why did the officer stop the vehicle?
The defense may examine alleged speeding, weaving, equipment violations, an accident, a checkpoint, or whatever law enforcement relied on to initiate the encounter.
Roadside Video
South Carolina law specifically requires video recording in covered DUI cases. At the incident site, the recording generally must begin no later than activation of the officer’s blue lights and include any field sobriety tests and the arrest.
Video can be valuable because it allows the case to be evaluated based on what actually occurred rather than solely on a written description.
Field Sobriety Tests
The defense may examine:
- Which tests were administered
- Instructions given
- Road and lighting conditions
- Footwear
- Physical limitations
- Whether the person understood the directions
- Whether the officer administered and interpreted the tests properly
- What the video actually shows
Performance on these tests is evidence—not an automatic finding of guilt.
Breath Testing
South Carolina law allows challenges involving issues such as whether the person was lawfully arrested, testing occurred within the required timeframe, the operator was qualified, proper procedures were followed, and the machine was functioning correctly.
Blood or Urine Testing
Drug-related DUI cases or certain other circumstances may involve blood or urine evidence rather than—or in addition to—breath testing. South Carolina law expressly recognizes DUI based on drugs as well as alcohol.
South Carolina Requires DUI Video Recording
Under §56-5-2953, covered DUI and DUAC cases generally require video at both the
incident site
and
breath-test site.
Roadside Recording
The incident-site video generally must include:
- The encounter beginning no later than activation of blue lights
- Field sobriety tests administered
- The arrest
- The advisement of Miranda rights required by the statute
Breath-Test Recording
The breath-test-site video generally must include:
- The entire breath-test procedure
- Notice that the person is being recorded
- Advisement of the right to refuse
- The person taking or refusing the test
- The breath-test operator’s actions
- The required 20-minute pre-test waiting period, subject to the statutory exception
South Carolina law also provides limited exceptions where required video cannot be produced, so missing footage does not automatically mean a charge will be dismissed.
The important question is what the statute required under the particular circumstances and what the available evidence shows.
What Happens to Your License After a DUI Arrest?
The
criminal case
and your driving privileges are related, but they are not always the same proceeding. A license problem can begin before the DUI charge itself is resolved.
Refusing a Chemical Test
South Carolina’s implied-consent law can trigger an administrative license suspension when a driver refuses the required chemical test.
Under the current statute, a person with no qualifying prior DUI-related conviction or suspension generally faces a
six-month administrative suspension for refusing the test.
BAC of 0.15% or Higher
An administrative suspension can also be imposed when testing reports an alcohol concentration of
0.15%
or
more. Under the current statute, the initial suspension period for someone without qualifying priors is generally one month.
You Have a Limited Time to Request a Hearing
A person receiving this type of suspension generally has 30 days from issuance of the notice to request a contested case hearing.
Current law also provides options involving a temporary alcohol license or enrollment in the Ignition Interlock Device Program while that administrative process proceeds.
Because that deadline runs separately from the criminal court process, it is something that should be addressed early.
What Are the Penalties for DUI in South Carolina?
The consequences depend on several factors, including:
- Whether it is a first or subsequent offense
- The BAC level
- Whether alcohol, drugs, or both were involved
- Whether anyone was seriously injured or killed
- The person’s prior DUI history
First DUI Offense
Under current South Carolina law, the standard first-offense DUI range begins with a
$400 fine
or 48 hours to 30 days of imprisonment, with public service potentially available in place of the minimum jail period. Higher BAC levels carry enhanced minimum penalties.
Repeat DUI Charges
Second, third, and subsequent offenses carry progressively greater exposure, including mandatory periods of incarceration and higher fines. South Carolina generally looks to DUI-related offenses occurring within the statutory lookback period when determining prior offenses.
Ignition Interlock Requirements
South Carolina now requires ignition-interlock participation for DUI convictions in circumstances set out by statute.
Under current law, a person convicted of a first DUI or DUAC generally enters the Ignition Interlock Device Program and uses an ignition-interlock-restricted license for
six months. The periods increase for subsequent offenses.
Alcohol and Drug Safety Action Program
A DUI-related license suspension can also involve enrollment in South Carolina’s Alcohol and Drug Safety Action Program, commonly called
ADSAP.
When Can DUI Become a Felony?
Under current South Carolina law, felony DUI can apply when a person drives under the influence, commits an unlawful act or neglects a legal duty while driving, and that conduct proximately causes
great bodily injury
or death to another person.
The potential consequences are substantially greater:
- When great bodily injury results, the statute currently provides for 30 days to 15 years of imprisonment
- When death results, the statute provides for one to 25 years of imprisonment
Mandatory fines also apply. Cases involving an injury or fatal collision therefore require a different level of investigation from an ordinary first-offense DUI.
DUI Charges Can Involve Drugs, Not Just Alcohol
South Carolina’s DUI statute is not limited to alcohol. A person may be accused of DUI based on:
- Alcohol
- Illegal drugs
- Prescription medication
- Other impairing substances
- A combination of alcohol and drugs
The State still must prove impairment to the level required by the DUI statute. Drug-related cases can raise different evidence questions because there may not be a single breath-test number around which the entire case is built.
The investigation may instead focus on:
- Driving behavior
- Officer observations
- Statements
- Field sobriety testing
- Blood or urine testing
- Medication history where relevant
- Laboratory evidence
- Video
- Whether the substance actually explains the alleged impairment
How Sharpe & Leventis Approaches a DUI Case
01
We Start With Why You Were Stopped
We examine the reason law enforcement gave for initiating the traffic stop or encounter.
02
We Watch the Video
Roadside and breath-test video can show what happened in real time—including driving observations, instructions, test performance, and police procedures.
03
We Review the Field Sobriety Tests
We evaluate how the tests were administered and whether the video supports the officer’s written conclusions.
04
We Examine Chemical Testing
When a breath, blood, or urine test is involved, we look at the timing, procedures, operator qualifications, equipment, and other issues relevant to reliability and admissibility.
05
We Address the License Case
When a refusal or BAC of .15% or higher triggers an administrative suspension, the 30-day hearing deadline and available driving options need to be considered separately from the criminal prosecution.
06
We Prepare Around the Evidence
Depending on the case, that may involve motions, evidentiary challenges, negotiations, administrative proceedings, or trial preparation.
Frequently Asked Questions
Can I be charged with DUI if my BAC was below 0.08%?
Potentially. South Carolina DUI law focuses on whether alcohol or drugs materially and appreciably impaired the person’s ability to drive. For alcohol concentrations above .05% but below .08%, the BAC itself creates no inference either for or against impairment, but other evidence may still be considered.
Is DUI the same as DUAC in South Carolina?
No. DUI focuses on impairment, while DUAC prohibits driving with an alcohol concentration of .08% or higher. They are separate statutory offenses, although they arise from many of the same types of evidence.
What happens if I refused the breath test?
A refusal can trigger a separate administrative license suspension. Under current South Carolina law, a first refusal generally results in a six-month suspension, and the person generally has 30 days to request a contested case hearing.
Does a BAC of 0.15% or higher automatically suspend my license?
It can trigger an administrative suspension under South Carolina law even before the criminal DUI case is resolved. A hearing can be requested within the statutory deadline.
Can DUI video help my defense?
Potentially. South Carolina law requires video recording of covered portions of the roadside encounter and breath-test procedure, subject to statutory exceptions. The recording may show whether the officer’s written description matches what actually happened.
Contact Our Columbia Law Firm for a Free Consultation Today.
A DUI arrest is not the end of the story.
Sharpe & Leventis, LLC digs into the evidence, the testing, and the police procedures that can shape your defense.