If you are pulled over for DUI, you are required to submit to testing. Right?

That’s not quite true. Under South Carolina law, you can legally refuse to provide a breath, blood or urine sample. But if you do so, you are automatically subject to certain consequences, namely license suspension. The question is not can you refuse but should you?

Understanding the implied consent law

When you are issued a driver’s license, you are subject to South Carolina’s “implied consent” law. Under this law, you agree to take a blood, breath or urine test if you are arrested for DUI.

It is implied or assumed that you agree, even if you really do not want to. However, the implied consent law (a) only applies if you have been actually arrested for DUI and (b) only applies to the official breath, blood or urine test).

• The implied consent law does not require you to perform field sobriety tests. (For example, the walk-and-turn or saying the alphabet backward.)
• The implied consent law does not require to you blow into a portable breath test device during the traffic stop. This is not the same as the official testing machine back at the station.

If you refuse these roadside tests, you have not broken any law, even if the officer tries to convince you otherwise.

Refusal to submit to testing is a violation

Implied consent applies if you are arrested and taken into custody on suspicion of DUI. Under the direction of the arresting officer, you will be asked to blow into the breath testing machine. If you are physically unable to provide a breath sample, you may be asked to submit to a blood draw or to provide a urine sample, administered by a trained medical professional.

Per South Carolina’s implied consent statute, if you refuse to provide any sample:

• Your driving privileges must be suspended for at least six months (on a first offense of refusal).
• Your refusal can be used against you in court if you are charged with DUI.

So should you submit to testing?

This is always the dilemma. Forcing you to provide a sample seems to fly in the face of your constitutional right against self-incrimination. However, U.S. courts have consistently upheld implied consent laws.

On the one hand, breath test refusal automatically and immediately results in license suspension, whereas if you blow into the Breathalyzer and “flunk” the test your license your license will not necessarily be suspended if you win your DUI case or administrative license hearing.

On the other hand, if you refuse the test, the prosecutor will need other evidence of impaired driving to make the DUI charges stick. If you think that you are likely to fail the test, are you willing to take the suspension or will you gamble on the additional consequences that come with a DUI conviction on your record? It’s a choice between a rock and a hard place.

Anytime you are pulled over or arrested, including a DUI, you have the right to remain silent and to contact an attorney. The arresting officer must also explain your rights, including that you are free to refuse the Breathalyzer test, subject to the consequences.