When can I get breathalyzer results suppressed in SC?
Sometimes, mistakes made by the officer during a DUI investigation and arrest can result in dismissal of your charges. Other mistakes made by the officer are not grounds for dismissal but will allow your DUI defense lawyer to get the breathalyzer results suppressed.
If you’ve been arrested and charged with DUI in Myrtle Beach, SC, call us immediately. I will answer any questions that you have, investigate your charges, review all evidence the state intends to use against you, and help you to challenge your DUI charges every way possible including:
- Suppressing key evidence like the breathalyzer results or field sobriety tests;
- Getting your case dismissed when possible; and
- Trying your case to a jury when the charges are not dismissed and the prosecutor does not make an offer that you can accept.
Below, I’ll discuss some of the situations where you can get the breathalyzer results suppressed in a SC DUI case and when a SC DUI case should be dismissed.
When Can I Get the Breathalyzer Results Suppressed in a DUI?
Many people think that, if the officer makes a mistake during a DUI arrest, their case will be dismissed.
In some cases, this is true. But, in other cases, the law does not provide for dismissal as a remedy although it may allow us to get the breathalyzer results suppressed.
The Difference Between Violations of 56-5-2950 and Violations of 56-5-2953
Violations of the mandatory requirements of SC’s videotaping law, found in SC Code 56-5-2953, may result in the dismissal of your DUI charges, as discussed below.
Violations of SC’s implied consent law, found in SC Code Section 56-5-2950, however, will not ordinarily result in dismissal although it may allow us to the get the breathalyzer results suppressed.
For example, in Hamrick v. State, the SC Supreme Court found that the officer’s violation of the requirement that a blood sample be taken within 3 hours of the DUI arrest was not grounds for dismissal or suppression of the test results under SC Code Section 56-5-2950(J):
The failure to follow policies, procedures, and regulations, or the provisions of this section, shall result in the exclusion from evidence of any test results, if the trial judge or hearing officer finds that this failure materially affected the accuracy or reliability of the test results or the fairness of the testing procedure…
The Court held that, although the officer failed to take the blood draw within three hours of the arrest, it did not “materially affect… the accuracy or reliability of the test results or the fairness of the testing procedure” because alcohol dissipates over time and therefore there would have been less alcohol in the defendant’s blood at the time the blood was drawn.
This holding effectively shuts down the possibility of exclusion of test results based on the officer’s failure to follow the law regarding the time limits for testing – any time an officer delays a blood draw or breathalyzer test, the Court can say “well, the results would have been lower if anything…”
Despite this, SC law says that you can get the breathalyzer results suppressed when the officer fails to follow either the requirements of 2950 or SLED policies when the officer’s mistake “materially affected the accuracy or reliability of the test results or the fairness of the testing procedure,” which may include failure to:
- Offer a breath test before taking a blood or urine sample;
- Collect a breath sample within two hours of arrest;
- Collect a urine or blood sample within three hours of arrest;
- Provide verbal and written implied consent warnings;
- Offer additional independent tests and provide affirmative assistance to get an independent test done; or
- Follow SLED policy and procedure regarding the collection of breath and blood samples.
Note that, despite this unfavorable ruling, Hamrick’s DUI conviction was still reversed based on improper testimony given by the officer at trial.
What Does “Suppressed” Mean?
When we get evidence suppressed, that means that the evidence will not be admitted during your trial. The state can still try you for the DUI, but they will not be permitted to tell the jury the breathalyzer or blood test results or even that you took the test.
How Does it Help to Get the Breathalyzer Results Suppressed?
The breathalyzer results are often the state’s best evidence against you.
Although the Datamaster machines used in SC are not always accurate and there are many factors that can cause a false reading, officers will present the test results as if the Datamaster is an infallible “black box” that never fails…
If you go to trial and the jurors do not hear the Datamaster result, we are more likely to get an acquittal in your case. On the other hand, if the breathalyzer or blood test results have been suppressed or are likely to be suppressed, your prosecutor is more likely to either dismiss your case or offer a lesser traffic violation to avoid a DUI conviction.
When Can I Get a DUI Dismissed in SC?
Every DUI client wants to hear the magic words, “your case has been dismissed.” Suppression just doesn’t have the same ring to it… So, what does SC DUI law say about dismissal?
When the officer fails to comply with the mandatory videotaping requirements of SC Code Section 56-5-2953, the remedy may be a complete dismissal of your DUI charges. The officer must record the traffic stop, arrest, and DUI investigation.
On the roadside, the video must include:
- The activation of the officer’s blue lights;
- Any field sobriety tests given on the roadside;
- The arrest; and
- The advisement of Miranda rights.
In the Datamaster (breathalyzer) room, the video must include:
- The entire breath test procedure;
- The person being informed that they are being recorded;
- The person taking or refusing the test;
- The actions of the Datamaster operator while conducting the test; and
- The person’s conduct during a 20-minute observation period before the test is administered.
The DUI charges will not be dismissed if the officer submits an affidavit stating:
- The video equipment was in an inoperable condition;
- Stating what reasonable efforts were made to maintain the equipment in an operable condition; and
- Certifying that there was no other operable breath test facility available in the county.
If the officer submits the affidavit, we check it to confirm that it is valid and properly notarized, and we then request the maintenance records for the patrol car or Datamaster room video equipment to confirm that the officer is being truthful (in some cases, it turns out that the equipment had not been properly maintained despite the officer’s affidavit to the contrary).
The officer’s failure to record may also be excused if the person needed emergency medical treatment or there were exigent circumstances, but the video recording must still begin as soon as is practicable.
SC DUI Defense Lawyer in Myrtle Beach
Attorney Daniel A. Selwa is a DUI defense attorney who accepts cases in Myrtle Beach, Conway, Georgetown, and Horry County, SC.