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With Labor Day almost here, the holiday season begins again in South Carolina. With the holidays come celebrations with friends and family for all types of reasons, and even none at all. In response also comes increased efforts by the authorities to watch for and ticket driving offenses, particularly those involving drinking. What happens to you when you find yourself in a DUI-like traffic stop comes down to knowing your rights and making choices based on the consequences of those choices. Here are some of the three major ones you should remember:
1. You have the right to remain silent, and should.
One of your most fundamental rights is the right against self-incrimination, usually referred to as your Fifth Amendment right. This right makes it so you cannot be forced to testify against yourself in any criminal investigation. What most people do not realize is that you have to actively assert this right and failing to do so, or ceasing to do so after starting, can be a waiver, even momentarily, of that right.
So, your best protection is to simply not engage in conversation with authorities if they have approached you. They have not done so for any purpose beneficial to you; it is always a function of investigation. And even if you have not done anything wrong, the more you engage in conversation, the greater your chances of getting in trouble anyway.
Your choices, then, are to converse or not. The consequences of that choice are that if you speak, you could get yourself into trouble (Q: have you had anything to drink this evening? A: maybe a beer or two, that’s all. [Now there is separate evidence to substantiate the officer’s observations of your “condition”]). If you do not speak, you could increase the aggressiveness of the officer investigating you, and increase your time at a stop. From a defense perspective, it is better for you to give less information to the officer to use against you, but that does come with the cost of potentially antagonizing the officer and decreasing any potential discretion. Still, confessions and breath tests are harder to overcome than officer statements of “smelled like alcohol” and the like.
2. You have the right to drive even after drinking, but shouldn’t.
There is no law on the books in South Carolina making it illegal to drive after having consumed alcohol. What is illegal is operating a vehicle with a specific blood alcohol level, or to be impaired while driving to the degree that your ability to drive safely is impacted. Still, given the climate in the United States, and recently in South Carolina, which increasingly adds to the penalties for driving after any sort of alcohol consumption, the best choice is to simply not do it.
If you choose to drive after drinking, do so smartly. Know your limits. Pace your drinking with water consumption and food if possible, to decrease the effects. Wait a few hours after drinking before driving. All of these choices increase your chances of not being stopped by any officer.
The consequences of choosing to drive after drinking without taking the proper measures are that you can face charges ranging from a misdemeanor to a felony (depending on the facts and how often this has happened to you), thousands of dollars in fines, jail time, an expensive interlock device installed on your vehicle, restriction or loss of your license, and increased insurance costs or even loss.
3. You have the right to refuse to submit to the breathalyzer (Datamaster), and may want to in certain circumstances.
In South Carolina, you are not required by law to submit to a breath test. You have the right to refuse. And, since the results of the test can be used to substantiate a Driving with an Unlawful Alcohol Concentration (DUAC) charge, it may often be best to refuse the test.
Your choice to take or refuse the test comes with significant consequences either way. If you refuse the test, there are no result to substantiate a DUAC charge, but there is no impact on a DUI charge. That can be brought anyway. Refusal also results in an automatic suspension of your driver’s license. This is a statutory penalty imposed at the DMV level, separate from any charge of DUI or DUAC. In fact, the officer could even not charge you at all, but you would still lose your license for the refusal. The positive consequences of refusal are that the pool of evidence against you is lessened, and limited more to the officer’s observations and not “scientific” evidence.
Consenting carries with it consequences as well. It increases the possible evidence against you. It can also encourage you to plead guilty because the test result will make you believe that you cannot successfully fight the charges. But the statute that criminalizes blood alcohol level also preserves your right to challenge the evidence, even beyond the alcohol concentration. Consulting with an attorney about your options in this situation will help decrease the stress and help you set a plan in motion to quickly move past it all with the minimum impact on you.
At Schiller & Hamilton, we are dedicated to preserving your rights and helping you make the best choices for resolving your case. We will fight hard to get you the best outcome we can taking all factors into consideration. We help you choose your best result, and help you get it.