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Chemical Testing in South Carolina DUI cases

Whether you know it or not, by driving on South Carolina roads you consent to give samples (i.e. breath, blood and/or urine) for chemical testing if you are under arrest for Driving Under the Influence (DUI), Driving with an Unlawful Alcohol Concentration (DUAC), or Felony DUI (DUI involving death or serious bodily injury).  This law is referred to as Implied Consent ("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 . . . . If the person is physically unable to provide an acceptable breath sample because the person . . . is unconscious . . . the arresting officer may request a blood sample to be taken.  Any additional tests to collect other samples must be collected within three hours of the arrest.  S.C. Code Ann. § 56-5-2950 (A) (Supp. 2009)).

Can I refuse?

Many drivers are unaware that they can revoke consent by refusing to submit a sample of breath, blood and/or urine.  A refusal will result in the administrative penalty of a suspended license, however, that suspension can be challenged at an administrative hearing.  Many drivers are also unaware that by requesting an administrative hearing, they can go to the DMV and request a Temporary Alcohol Restricted License (TARL).

What if I was unconscious when my blood was drawn?

A certain degree of urgency ("Exigent circumstances") must exist to justify the taking of blood from an unconscious defendant absent a search warrant.  In 2013, the United States Supreme Court ruled that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment's search warrant requirement for nonconsensual blood testing in all drunk-driving cases, and instead, exigency must be determined case by case on the totality of the circumstances.  McNeely, 133 S.Ct. 1552 (2013).  When officers can reasonably obtain a search warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.  McNeely.

How long do police have to get a breath, blood or urine sample?

Police have two (2) hours from the time of the arrest to request a breath sample and three (3) hours from the time of arrest to request a blood sample in a DUI case.  S.C. Code Ann. § 56-5-2950(A)(Supp. 2009).

We have successfully contested the issue of blood being drawn without a search warrant . . . 

Our client (Client) was involved in an automobile accident at approximately 8:47 a.m. which rendered her unconscious.  As EMS personnel were removing Client from her vehicle, Trooper arrived on scene.  Trooper did not speak to Client because she was unconscious.  EMS transported Client to the hospital while Trooper investigated the scene.

After concluding his investigation at the scene, Trooper went to the hospital and placed Client under arrest for DUI at 10:35 a.m.  Trooper then read Client the advisement of implied consent rights at 10:36 a.m. while Client remained unconscious.  At 10:45 a.m. a registered nurse drew a sample of Client's blood.  At no point did Trooper get a search warrant for Client's blood even though a magistrate was on duty at the time and was within three (3) miles away from the hospital.

On appeal, a Greenville County Circuit Judge reversed Client's conviction and ruled that Client's blood results should have been suppressed. The State argued that the blood draw was lawfully obtained pursuant to the implied consent statute, however, the court did not find that argument compelling.  The court noted that Trooper had the opportunity to seek a search warrant, and a judge was readily available to issue one.  Even though the statute gave Trooper three (3) hours to obtain a blood sample, he waited only ten (10) minutes.

The court further noted that blood draws performed pursuant to implied consent statutes implicate "significant privacy issues."  The court held that a search warrant should have been obtained prior to Trooper ordering a blood draw from Client.  The blood evidence obtained from Client constituted an illegal search and seizure in violation of the Fourth Amendment to the United States Constitution and Article I, Section 10 of the South Carolina Constitution.  Accordingly, the trial court should have suppressed the blood evidence and a new trial is necessary.

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Price Law Firm, P.A.
644 East Washington Street
Greenville, SC 29601

Phone: 864-501-9627
Fax: 864-242-6560
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