A roadside breath test may be refused

South Carolina has vigorously promoted a zero-tolerance approach to DUI, and while everyone has a shared interest in roadway safety, there are legal issues to consider when police agencies ramp up their law enforcement efforts. Initially, it must be recognized that for most drivers, it is not illegal to drive with any measurable amount of alcohol in their system but only if their blood alcohol content is greater than 0.08. Often, a more salient legal issue is the manner in which the police stop the suspected drunk driver and the justification for it.

In many instances, when the police suspect a driver of DUI, a stop is conducted ostensibly for some other reason, such as a traffic stop for a minor violation or equipment failure such as a broken light. If there is no pretense for the stop and it is based solely on DUI, the police must have some articulable suspicion that the driver was in fact under the influence. DUI experts may explain that this is a lower legal standard than the probable cause that is required for an arrest.

After a stop is made for whatever reason, the officer typically seeks to gather evidence to support the suspicion of intoxication. Speaking with the driver, asking questions, observing demeanor and other factors create an impression in the officer, who then may ask the driver to perform a series of field sobriety tests. Among these may be a breath test from a hand-held device. Even though the officer will never tell the driver, all field sobriety tests are strictly voluntary.

In reality, however, a driver who refuses field sobriety tests is often arrested nonetheless based on other observations. Once arrested, under implied consent laws, a breath test back at the station house is mandatory, and refusal can result in license suspension. DUI is complex, so a criminal defense lawyer may explain and help protect one's rights.

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