“I blew over the legal limit so I know there’s nothing a lawyer can do.”
This is something that many potential clients tell me. But did you know that there may be something a lawyer can do for your DUI case even if you blew over the legal limit in SC?
While it is true that juries like to hear “numbers” when it comes to determining a level of impairment, the breathalyzer is nothing more than a computer or machine. It is not perfect. Things can interfere with the readings of the machine. And computers make mistakes.
The Breathalyzer is the only machine that SC uses for breath tests. There is a presumption that a driver is impaired with alcohol if that person is over the age of 21 years old and blows a Blood Alcohol Content (BAC) of .08 or more.
You may have seen breathalyzer machines that you can buy online or at different stores. These are not the type of breathalyzers that law enforcement uses in SC. They may be similar, but with few exceptions, only law enforcement and government agencies can purchase the official breathalyzer machines used for DUI’s.
How Breathalyzers Work
The Datamaster, also known as the DMT or breathalyzer is a machine just like any other machine. It is a simple machine. It’s used to determine the amount of alcohol in your breath, breath alcohol content (BrAC).
When you drink alcohol, whether it’s beer, moonshine, wine, spirits, liquors, cold medicine that contains alcohol, etc. a substance called ethanol moves through your body. The alcohol moves through your digestive tract, into your blood, and into your lungs. The carbon dioxide is exhaled into the breathalyzer. The level reported on the breathalyzer has a relationship to what’s in your blood. However, there are many factors that could cause the test result to be inaccurate. Your lawyer should be able to explore these factors and explain them to you.
The more alcohol you consume, the more ethanol gets into your bloodstream. The process can happen quickly depending on whether you have eaten, the time period and amount of alcohol consumed. Your metabolism is also a factor.
Did you know that lawyers actually use expert witnesses that can testify at your trial about how the breathalyzer works? Expert and Attorney Chuck Rathburn is a fine example of someone who actually owns his own breathalyzer machine and travels across the US teaching other lawyers about how the machine works, how it can fail, and the possible defenses available for people charged with DUI’s. I have taken Attorney Rathburn’s breathalyzer course and learned exactly how the inner workings of the breathalyzer works. Pictured here is literally the inside of a breathalyzer machine that was taken during Attorney Rathburn’s breathalyzer course.
In fact, I blew into Attorney Rathburn’s breathalyzer and watched first hand how the machine works.
What Breathalyzer Testing Looks Like
SC does not have breathalyzer tests on the “side of the road” or in patrol cars. The only tests are the ones given at designated locations. These places are usually a room in the police station. After you have been arrested, you may be offered a breathalyzer test.
Many people believe they have no choice but to blow. However this is not necessarily the case. If the machine has no reading, then the police do not have a number to put in their report and testify about at a later trial. On the other hand, there are consequences for refusing to blow, such as a license suspension. There are many specifics as to how to obtain a driver’s license, whether you are eligible for a driver’s license and when to obtain a driver’s license after a breathalyzer refusal.
If you decide to blow, you will blow into the machine for a few seconds. The machine may or may not be working properly. Your attorney should be able to obtain the records from the exact breathalyzer machine that you took your test on and tell you how many times that machine has worked properly or not. Sometimes there are errors with not blowing enough air for a long enough period of time into the breathalyzer. Sometimes the machine does not take in enough air or the person doesn’t blow a sufficient sample. Your attorney should be able to obtain all of this information that will be featured in the detailed graphs and records of the breathalyzer that you blew into.
Do you have to take a breathalyzer test?
Absolutely not. Breathalyzers are not mandatory, however, you impliedly consent (referred to as implied consent) when you drive a vehicle on a SC road to take a breathalyzer if asked. When you sign your name at the DMV to get your driver’s license, you are giving your consent to follow the rules of the roads in SC. The rules of the roads in SC include agreeing to take the breathalyzer test. That is why it is called giving your “implied consent.”
If you do not blow, you will have some consequences. Some of the consequences could be your license being suspended for 6 months. It is possible to obtain a driver’s license even after you have refused the breathalyzer. By requesting an Administrative Hearing, you can apply for a Temporary Alcohol License (TAL). If you qualify, you can obtain a license to drive without restrictions within the state of SC (assuming you do not have a CDL). There are some special rules that apply to those people who have CDL’s. If you do decide to blow, the results of the test(s) can be used against you.
Field Sobriety Tests
Breathalyzers are not the only way police officers evaluate impairment. Field sobriety tests and other tests are commonly used in DUI cases.
There are 3 standardized DUI tests:
Recently, attorney Susan E. Williams was the featured speaker at NC Advocates for Justice DUI Continuing Legal Education Seminar. She was selected by her peers to teach at this event that included North Carolina and South Carolina DUI practitioners in 2018. Below is a photo taken of Susan E. Williams during the Continuing Legal Education seminar.
Other tests that can be used in roadside testing include:
- ABC or number testing – recite alphabet or count either forwards or backwards
- Finger to nose test – hold arm out, then place one finger on nose
- Rhomberg balance test – tilt head up and down for a set period of time
Impairment = About More Than Just Alcohol
Sometimes people forget that impairment under SC law can be something other than alcohol, such as legal or illegal drugs. Alcohol is obviously a legal substance to consume, but when it is used in combination with other drugs or prescriptions, or you drink too much alcohol, you can be impaired.
A breathalyzer does not measure for any substance other than alcohol. The breathalyzer cannot alert for anything mixed with alcohol such as prescription or non prescription drugs that could alter or impair your ability to drive a vehicle.
It is important to keep in mind that even if you blow a 0.0 or refuse to blow, you can still be arrested for DUI if law enforcement can prove you are impaired by some substance. The burden, however, is on law enforcement to prove beyond a reasonable doubt that you are guilty. You do not have the burden of proving that you are innocent.
Do I need a lawyer to fight a breathalyzer result?
Yes, a lawyer has been through extra schooling, training and typically has more experience than the average lay person on DUI defenses.
Results can be used against you in your prosecution; DUI convictions come with harsh penalties. The collateral consequences of a DUI conviction happen long after you leave the courtroom for your case. The consequences can be increased insurance rates, another round of driver’s license suspensions, possibly driving with an Ignition Interlock Device on the vehicles you drive, completion of costly alcohol and drug courses, such as ADSAP.
There are many other consequences. A DUI conviction is not eligible for an expungement from your criminal record.
Ready to tackle your DUI case?
A DUI can be an embarrassing and life altering experience. The decisions you make now on whether to hire an attorney can affect you the rest of your life. Consider the investment of an attorney who has handled DUI cases for at least 15 years. Navigating your way through the court system can be intimidating and you don’t want to get railroaded.
If you or someone you know has been charged with DUI and you have questions, contact attorney Susan E. Williams for a free consultation. There are many complex parts to a DUI and Susan has handled DUI’s as a prosecutor and a defense attorney. She has seen DUI’s first hand from both sides of the law.
Questions about DUI? Contact Attorney Susan E. Williams.