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What happens if I refuse a breathalyzer test?

If you are pulled over on suspicion of drunk driving, the law presumes you have given your consent to a test of your breath, blood or urine for the presence of alcohol.

Refusing to submit to a “breathalyzer” test is not proof of the offense of driving under the influence (DUI). But under South Carolina law, you will automatically forfeit your driver’s license for at least six months. Is it ever advisable to refuse the breathalyzer?

Understanding the implied consent law

South Carolina, like all states, has an implied consent law. As a licensed driver on public roads, you have given your implied permission to have your blood alcohol concentration tested, even though the results could be incriminating. By statute, you must provide a breath sample within two hours of arrest, or a blood or urine sample within three hours of arrest.

Law enforcement will first ask you to take a breathalyzer (Datamaster) test. If you refuse or are unable to provide a breath sample within the 2-hour window, and also refuse a urine or blood sample, you will be charged with violation of the implied consent statute:

  • Your license will be suspended for a minimum of six months.
  • You will probably have to get an ignition interlock.
  • Your refusal can be used against you in court.
  • A refusal counts against you if you are arrested for DUI in the future.

Should I refuse the breathalyzer?

We cannot advise anyone to refuse implied consent testing. Even if you beat the DUI charge, you will still lose your license and a have an alcohol offense on your record. There could be scenarios where refusing the breathalyzer works to your advantage (avoiding jail and other consequences), but it would depend on the specific facts of each situation.

If you initially refuse the breathalyzer, you should contact a lawyer immediately. It may be possible to still comply, or to reverse an implied consent violation after the fact.