fbpx

What is a “BAC?”

The amount of alcohol in a person’s body is measured by the weight of the alcohol in a certain measure of blood; also known as the “blood alcohol concentration,” or “BAC.”

When alcohol is consumed by a person, it is absorbed directly through the walls of the stomach and the small intestine; it then travels into the blood stream throughout the body finally impacting the brain.  This is how one becomes “intoxicated.”  Alcohol is  absorbed rapidly and can be measured within 30 to 70 minutes after a person has had a drink.

There are a number of factors that play into how fast a person’s BAC rises.  First, the number of drinks one consumes is the most obvious; the more one drinks the higher the BAC.  Second, how quickly one imbibes alcohol can be an issue because the body breaks down alcohol at a rate of about one drink per hour; therefore, if a person consumes one drink per hour, it will break down at a more rapid pace than five drinks because of the filtration limitations of the human liver.  Third, gender can also contribute because women generally have less water and more body fat per pound than men, and alcohol does not go into fat cells as easily as other cells.  Thus, alcohol can remain in the blood of women for longer periods of time.  Fourth, one’s weight is another factor because the more a person weighs, the more water is present in the body.  This causes the dilution of the alcohol, and the lowering of the person’s BAC.  Finally, the last factor is how much food a person has in his or her stomach.  Absorption will be slowed down if you have had something to eat.

Due to these multiple factors, it is very hard for a person to assess his or her own impairment.  Though small amounts of alcohol can affect one’s ability to drive, people often swear they are “fine” after several drinks.  However, the failure to recognize impairment can often be one of the symptoms of impairment.

This lack of recognition causes a person to get behind the wheel of a car when they shouldn’t.  As a result bad things can happen; one may be arrested by the police, or even more serious they are more likely to be involved in an automobile accident as a result of their impairment.  This could injure or even kill the driver and also the people who were driving in the vehicle.  The charge of DUI could then be escalated to a more serious charge of Vehicular Manslaughter and Felony DUI.

If you or a loved one has made the decision to get behind the wheel of a car, boat, or any other motorized vehicle and been charged with a DUI or Felony DUI, call the Law Offices of Reeves, Aiken & Hightower to discuss your outcome. Contact us today for a free consultation at704-499-9000 or 877-374-5999 toll-free. 

SC DUI Lawyer – DUI Penalties in South Carolina

As DUI law has developed in South Carolina and as public opinion has increasingly turned against individuals who find themselves with DUI charges, the penalties for DUI convictions and consequently DUI pleas have gotten stricter.  The state legislature has taken increasing amounts of discretion away from judges to sentence based on the merits in each case and the character and individual traits of each defendant.

Today, there is mandatory minimum sentencing for every DUI based on past DUIs and the blood alcohol content at the time of arrest.

BAC: Less than 0.10% 0.10%-0.15% 0.16% or more
First Offense
  • 6 month license suspension
  • $400 Fine
  • 48 hours jail or public service up  to 30 days jail
  • 6 month license suspension
  • $500 Fine
  • 72 hours jail or public service up to 30 days jail
  • 6 month license suspension
  • $1,000 Fine
  • Minimum 30 days jail up to 90 days jail
Second Offense
  • 1 year  License suspension
  • $2,100-$5,100 Fine
  • Jail – 5 days to 1 year
  • 1 year  license suspension
  • $2,500-$5,500 Fine
  • Jail – 30 days to 2 years
  • 1 year  license suspension
  • $3,500-$6,500 Fine
  • Jail – 90 days to 3 years
Third Offense
  • 2 year  license suspension
  • $3,800-$6,300 Fine
  • Jail – 60 days to 3 years
  • 2 year  license suspension
  • $5,000-$7,500 Fine
  • Jail – 90 days to 4 years
  • 2 year  license suspension
  • $7,500-$10,000 Fine
  • Jail – 6 months to 5 years
Fourth  (and later) Offense
  • Permanent license revocation
  • Jail – 1 to 5 years
  • Permanent license revocation
  • Jail – 2 to 6 years
  • Permanent license revocation
  • Jail – 3 to 7 years

 

For first time DUI’s, the court may offer public service instead of jail time, but the court cannot make you accept public service instead of jail.  Also, for first time DUI’s, the legislature has directed the courts to allow those convicted of DUI to serve their public service or jail time in such a way as to avoid interfering with employment, such as on the weekends.

In second and subsequent DUI offenses, the court will order that an ignition interlock device be installed in the defendant’s car at the defendant’s expense, upon conviction.

In addition to these minimum sentences, prosecutors are not allowed to bargain DUIs down to a wet reckless charge, which is allowed in some states.  These sort of charges involve acknowledging that alcohol was involved, but in a charge less serious than DUI but more serious than reckless driving.  Plea bargaining is still possible, but on different terms than in other states.

Keep in mind also that the DMV is required to collect and publish the names of all those whose licenses have been revoked due to DUI convictions.

The DUI attorneys of Reeves Aiken & Hightower LLP stand ready to fight for you if you have been charged with DUI in SC. We encourage you to visit our website at www.rjrlaw.com and compare our attorneys’ credentials to any other firm. You can then call us toll-free at 877-374-5999 or contact us by email for a private, confidential consultation to review your particular case.

SC DUI – Alcohol Blood Testing – Written Implied Consent – DMV License Suspension

This SC Supreme Court case addresses the distinction between the criminal and DMV aspects of a DUI arrest. On the criminal side, a failure to follow the implied consent statute will result in exclusion of evidence at trial. On the DMV side, however, the Court declined to reach a similar outcome. The critical difference involves “rights” which must be protected during a criminal proceeding versus the “privilege” of operating a motor vehicle which can be regulated by the Department of Motor Vehicles (DMV). Even if the criminal charges are ultimately defeated, there may still be civil consequences on your ability to drive. Better make sure your DUI attorney understands these crucial elements and how they interact. There is too much at stake to risk an inexperienced criminal lawyer.

At Reeves, Aiken & Hightower LLP, our seasoned attorneys have over 70 years of combined trial experience in both civil and criminal courts.  We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are aggressive criminal trial attorneys.  We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.

THE STATE OF SOUTH CAROLINA
In The Supreme Court


Suchart Taylor, Petitioner,

v.

South Carolina Department of Motor Vehicles, Respondent.


ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


Appeal From Berkeley County
R. Markley Dennis, Jr., Circuit Court Judge


Opinion No.  26637
Heard October 8, 2008 – Filed April 20, 2009


AFFIRMED


C. Bradley Hutto, of Williams & Williams, of Orangeburg, C. Rauch Wise, of Greenwood, Desa Ballard and P. Christopher Smith, Jr., both of West Columbia, and Michael Sean O’Neal, of N. Charleston, and Reese I. Joye, of Joye Law Firm, of N. Charleston, for Petitioner.

General Counsel Frank L. Valenta, Jr., Deputy General Counsel Philip S. Porter, and Assistant General Counsel Linda A. Grice, all of Columbia, for Respondent.


JUSTICE WALLER:  We granted a writ of certiorari to review the Court of Appeals’ opinion in Taylor v. SC Dep’t of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006).  We affirm.

FACTS

Petitioner, Suchart Taylor, was involved in an automobile collision on I-26 in Berkeley County.  A police officer arrived on the scene to find Taylor in his pickup truck being treated by paramedics.  The officer smelled alcohol inside the vehicle and, when he attempted to speak with him, Taylor seemed disoriented and had heavy mouth injuries; he was unable to stand or perform field sobriety tests.

Taylor was taken to the emergency room, where he was advised of his Miranda rights and arrested for DUI.  The officer determined Taylor’s mouth injuries would prevent him from taking a breath test, so he requested a blood sample.  The officer read the implied consent form aloud to Taylor, but did not provide him with a written copy of the form.  Taylor refused the blood sample and refused to sign the implied consent form; he was therefore issued a notice that his driver’s license would be suspended for ninety days.

Taylor filed for an administrative hearing to challenge the license suspension.  The hearing officer upheld the suspension.  Taylor petitioned for judicial review contending the license suspension was invalid because he had not been provided with a written copy of the implied consent law, as required by S.C. Code Ann. § 56-5-2951 (2006).  The trial court agreed and reversed the license suspension.  The Court of Appeals reversed the trial court’s ruling; it held Taylor was not prejudiced by the lack of a written copy of the implied consent form because he was read those rights aloud.

ISSUE

Did the Court of Appeals properly hold that Taylor was not prejudiced by the lack of written notice of the implied consent law?

DISCUSSION

The Implied Consent Statute, S.C. Code Ann. § 56-5-2950(a) (2006), provides that a person who drives a motor vehicle in South Carolina is considered to have given consent to chemical tests of his breath, blood, or urine to determine whether the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs.  The statute provides, in pertinent part:

No tests may be administered or samples obtained unless the person has been informed in writing that:

(1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court;

(2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one hundredths of one percent or more;

(3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense;

(4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and

(5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.

S.C. Code Ann. § 56-5-2950(a).  (Emphasis supplied).  Subsection 56-5-2950(e) provides that the failure to follow policies or procedures set forth in § 56-5-2950 will result in the exclusion from evidence of any tests results, “if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.”  Notably, neither section (a) nor section (e) addresses the issue of license suspension for the failure to comply with the procedures set forth therein.

S.C. Code Ann. § 56-5-2951(a), governs the Department of Motor Vehicle’s (DMV) suspension of a driver’s license for refusing to submit to a test or for certain levels of alcohol concentration.  The statute states that the DMV “shall suspend the driver’s license . . . of . . . a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950;” the statute gives an offender thirty days in which to request an administrative hearing.  S.C. Code Ann. § 56-5-2951 (B) (2).  The hearing must be held within thirty days and is limited to a determination of whether the person:

(1) was lawfully arrested or detained;

(2) was advised in writing of the rights enumerated in Section 56-5-2950;

(3) refused to submit to a test pursuant to Section 56-5-2950; or

(4) consented to taking a test pursuant to Section 56-5-2950 (and several conditions relating to administration of the test).

S.C. Code Ann. § 56-5-2951(F) (1-4).  We find nothing in section 56-5-2951 which mandates re-issuance of the driver’s license if one, or all of the  above factors is not met.  If the Legislature had intended the lack of written notice (or any other factor) to be a fatal defect, it could have said so in the statute.  Giannini v. SC Dep’t of Transportation, 378 S.C. 573, 664 S.E.2d 450 (2008) (if Legislature had intended certain result in a statute it would have said so).  Accord S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E2d 544, 549 (Ct. App. 2005) (requirements for suspension for refusal to consent do not include written notice of implied consent statute).

We hold the criterion in § 56-5-2951(f) are simply factors which the DMV may consider in determining whether to uphold a suspension, i.e., a prejudice analysis.  Given that nothing in § 56-5-2951 provides for mandatory re-issuance of a driver’s license upon review of these factors, we find an examination of the four factors with an eye toward prejudice is the proper inquiry.  Accordingly, the Court of Appeals properly applied a prejudice analysis.   Given that it is undisputed Taylor was advised of the implied consent warning, the Court of Appeals properly found he suffered no prejudice from the officer’s lack of written notice.  Accordingly, the Court of Appeals’ opinion is affirmed.

AFFIRMED.

TOAL, C.J., and Acting Justice Billy A. Tunstall, concur. BEATTY, J., dissenting in a separate opinion in which PLEICONES, J., concurs.

JUSTICE BEATTY:    I respectfully dissent.  Section 56-5-2950(a) of the South Carolina Code specifically states no tests may be administered or samples obtained unless the person has been informed in writing of certain provisions of the section.  S.C. Code Ann. § 56-5-2950(a).  It is undisputed that Taylor was not “informed in writing.”  In my view, the Department of Motor Vehicles cannot suspend a driver’s license because driver refused to take a test that the law enforcement officer was not authorized to administer.

The South Carolina Legislature specifically set forth a pre-condition that must be met before any tests may be administered.  Section 56-5-2950 is unambiguous and its meaning and intent are clear.  The Court may not simply ignore it.  I would reverse the decision of the Court of Appeals.

PLEICONES, J., concurs.


SC DUI Out of State License Issues – DMV Proceedings

This SC Supreme Court case addresses an issue we encounter routinely as we practice in both South Carolina and North Carolina. Whenever you are arrested for DUI in one state, that arrest is supposed to be communicated back to your “home” state. If you refuse to submit to the breathalyzer, your driving privileges are immediately suspended for six (6) months in SC and twelve (12) months in NC. In order to regain your license, you may have to resolve the various requirements in both states. This case stands for the proposition that due process and fundamental fairness applies to this interest. Although the Courts make a critical distinction between “rights” in criminal courts and “privileges” in civil DMV hearings, the characterizations are rendered moot when it comes to the legal proceedings involved in both forums. Better make sure your DUI attorney understands these crucial differences and is willing to fight for you in court. There is too much at stake to risk an inexperienced lawyer.

At Reeves, Aiken & Hightower LLP, our seasoned attorneys have over 70 years of combined trial experience in both civil and criminal courts.  We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are aggressive criminal trial attorneys.  We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.

THE STATE OF SOUTH CAROLINA
In The Supreme Court


Charles R. Hipp, III, Respondent,

v.

South Carolina Department of Motor Vehicles, Appellant.


Appeal from Charleston County
Michael G. Nettles, Circuit Court Judge


Opinion No.  26588
Heard December 4, 2008 – Filed January 26, 2009


AFFIRMED


General Counsel Frank L. Valenta, Jr., Deputy General Counsel Philip S. Porter, and Assistant General Counsel Linda A. Grice, all of Blythewood, for Appellant.

Michael A. Timbes, of Thurmond, Kirchner & Timbes, of Charleston, for Respondent.


PER CURIAM: South Carolina Department of Motor Vehicles (SCDMV) appeals the order of the circuit court enjoining it from suspending the driver’s license of Respondent Charles R. Hipp, III (Respondent) as a consequence of Respondent’s 1993 Georgia conviction for driving under the influence (DUI).  We affirm.

FACTS

Respondent was arrested and pled guilty to DUI in the State of Georgia in 1993.  At the time of the arrest, Respondent was a South Carolina resident attending college in South Carolina, and a driver licensed by the South Carolina Department of Motor Vehicles (SCDMV).  As a result of his plea, Respondent paid a fine to the State of Georgia and fulfilled other conditions required by Georgia.  In 2005, twelve years after his conviction, Respondent received notice from the SCDMV that his South Carolina driver’s license was being suspended as a consequence of his 1993 Georgia DUI conviction.  Respondent filed a declaratory judgment action asking the court to enjoin suspension of his license.  The circuit court issued an order enjoining the SCDMV from suspending Respondent’s driver’s license.

ISSUE

Did the circuit court err in enjoining the suspension of Respondent’s driver’s license?

STANDARD OF REVIEW

“Actions for injunctive relief are equitable in nature.” Shaw v. Coleman, 373 S.C. 485, 492, 645 S.E.2d 252, 256 (Ct. App. 2007).  In actions in equity this Court may find facts in accordance with its own view of the preponderance of the evidence. Id.

ANALYSIS

The circuit court cited three grounds for enjoining suspension of Respondent’s driver’s license: (1) that the applicable statute is ambiguous; (2) the doctrine of laches; and (3) that suspension twelve years after conviction violates the “fundamental fairness” required by due process.  We find the circuit court’s conclusion as to fundamental fairness to be persuasive and so, affirm.[1]

A person’s interest in his driver’s license is property that a state may not take away without satisfying the requirements of due process. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed2d 90 (1971).   Due process is violated when a party is denied fundamental fairness. City of Spartanburg v. Parris, 251 S.C. 187, 191, 161 S.E.2d 228, 230 (1968).

This Court addressed facts similar to those in the case at hand in State v. Chavis, 261 S.C. 408, 200 S.E.2d 390 (1973).  While we found fundamental fairness was not violated by suspension after a one-year delay, we allowed that there might be circumstances under which it could be soundly held that the State had no right to suspend a driver’s license after a lengthy delay. Id. at 411, 200 S.E.2d at 391.  We find in the instant case the extreme circumstances contemplated by Chavis.

While we do not intend to set forth a bright line rule, we find that imposition of a suspension after more than twelve years delay, where Respondent bears no fault for the delay, is manifestly a denial of fundamental fairness.[2]  Though neither dispositive nor directly applicable to the instant case, we note that Title 56 of the South Carolina Code, which addresses “Motor Vehicles,” is replete with ten-year limitations for purposes of sentence enhancement and keeping record of convictions. Seee.g., S.C. Code Ann. §§ 56-1-746 (for purposes of determining a prior offense for sentence enhancement of alcohol-related offenses, only convictions within ten years of the date of the most recent violation are considered prior offenses); 56-1-1340 (violation convictions shall be entered in the records of the SCDMV for a period of ten years); 56-5-2940 (for sentence enhancement of convictions for operating motor vehicle under influence of alcohol or drugs, only those violations which occurred within ten years preceding date of last violation constitute prior violations); 56-5-1990 (in determining time of suspension of driver’s license, only violations which occurred within ten years of the last violation shall constitute prior violations).

CONCLUSION

We agree with the circuit court that under the unique circumstances of this case, the attempted suspension of Respondent’s driver’s license twelve years after conviction constitutes a denial of fundamental fairness.  The order enjoining suspension is therefore

AFFIRMED.

TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.

[1] Having found the circuit court’s decision supported by its finding that Respondent was denied fundamental fairness, we do not address the remaining grounds. See Wilson v. Moseley, 327 S.C. 144, 147, 488 S.E.2d 862, 864 (1997).

[2] It should be noted that neither Respondent nor SCDMV is at fault for the delay.  The unexplained delay in reporting the 1993 violation appears to be solely attributable to the inaction of the State of Georgia.

SC DUI – No More Mopeds – But We Can Still Make Jokes

In a recent story reported by WJBF News Channel 6 posted on February 16, 2012, there is an apparent effort to “close the loophole” which allows DUI defendants to drive mopeds despite not being able to get a regular driver’s license during a suspension period. At the risk of seeming flippant, I always thought driving a moped was part of the rehabiliation process. The jokes alone would seemingly deter future bad conduct. Nevertheless, the legislature is taking active steps to deprive accused drivers from using mopeds to get around or go to work. Truly drunk drivers should be arrested and punished, especially if they injure or kill innocent victims. However, as a practicing DUI attorney, I regularly meet good, hard working individuals who have gotten caught up in the current DUI hysteria after having a drink with dinner or a beer with a friend. If you drive with any amount of alcohol on your breath and are stopped, you are going to be arrested and spend the night in jail no matter what you say or do. If you attempt to perform field sobriety tests, you will invariably fail and be arrested. If you decline any question or test, you are going to jail. You get the idea here. The best advice, pre-DUI arrest, is to simply not drink at all before driving. Even though that is not what the laws requires, it is the only protection available to prevent a wrongful DUI arrest.

At Reeves, Aiken & Hightower LLP, our seasoned attorneys have over 70 years of combined trial experience in both civil and criminal courts.  We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are aggressive criminal trial attorneys.  We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com.

Here is the story:

Columbia, SC –A South Carolina Senate committee has approved a bill that would close a loophole in the state’s DUI law that has allowed people to drive mopeds while drunk.”It seems strange, but some magistrates have agreed that the law exempted mopeds from DUI laws,” says Sen. Larry Grooms, R-Bonneau, chairman of the Senate Transportation Committee. “So we’re absolutely closing that loophole.”

The problem is that state law does not consider mopeds to be motor vehicles. The state House passed a bill last year that would change that, to treat mopeds as motor vehicles in all circumstances. But Sen. Grooms says the House bill would lead to some unintended consequences, like allowing mopeds on Interstate highways, even though by definition a moped can’t go more than 30 miles per hour on level ground.

Mopeds are often associated with DUIs, because people who lose their driver’s licenses because of drunken driving can still drive a moped. State law says, “a person must possess a valid driver’s license … or a valid moped operator’s license … except that a person whose driver’s license has been suspended for a period of six months or less is not required to obtain a moped operator’s license or possess a valid driver’s license during the period of suspension.”

The Senate version of the bill would not change that. Sen. Grooms says, “The Senate amendment classifies mopeds as a motor vehicle only in the section of law dealing with driving under the influence.”

Moped driver Taylor Harrison, of Greenville, thinks closing the moped DUI loophole is a good idea. “Because a moped is essentially a motorcycle just powered down a little bit less. So if you drink and drive while on it, it still can be as dangerous as drinking and driving while on a motorcycle or something else,” he says.

But Billy Campbell, owner of Hawg Scooters in Columbia, says he doesn’t see a need for the change. “Clearly they don’t get all the DUI drivers,” he says. “So why are we going after mopeds?”

He says only the driver of a moped is likely to be hurt in a moped DUI accident. “There’s not going to be some mopedist that runs into a family and kills anybody,” he says.

The bill now goes to the full Senate floor, where Sen. Grooms expects it to pass. If it does, since senators changed the House version, the two bodies will have to reach an agreement on a final version.