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Charleston Breath and Field Sobriety Test Lawyers

Charleston Breath and Field Sobriety Tests Lawyer

Strong advocacy for drivers who fail or refuse drunk driving tests in Charleston

Police officers will ask you to take field sobriety tests and breath tests when they stop you for drunk driving. If you refuse to take a breath test, your license will be suspended, and you will still be charged with DUI. Charleston breath and field sobriety test lawyer defense attorney A. Randy Hough, a former prosecutor, regularly challenges the admissibility of the tests. Call The Law Offices of A. Randolph Hough, P.A. to assert your defenses today.

“Remember, an arrest is not a conviction.”    -    Attorney Hough

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What are field sobriety tests and breath tests?

Police officers in Charleston have the right to ask any driver they suspect of driving while impaired by alcohol or drugs to perform field sobriety tests.

Standardized Field Sobriety Tests (SFSTs)

Charleston police officers are required to give you standardized field sobriety tests in a specific order. The officers need to clearly explain to you what you must do to comply with each test. The three SFSTs must be recorded by video. The three tests are:

  • Horizontal gaze nystagmus test (HGN). You’ll need to follow a moving object, such as a flashlight or pen, from side to side. The officer looks to see if and when your eyes jerk, and whether you can follow the object smoothly. If you are intoxicated, the jerking becomes “more exaggerated and occurs at lesser angles.”
  • Walk-and-turn test. The officer will ask you to take nine steps, heel-to-toe, following a straight line. You’ll then turn on one foot and return in nine steps back to the officer. You will fail the test if you cannot keep your balance, cannot walk heel-to-toe, stop walking to regain your balance, take an improper number of steps, use your arms to keep your balance, or start before the instructions are complete.
  • One-leg stand test. The Charleston police officer will ask you to stand with your feet six inches apart, raise one foot, and count from 1,001 (one-thousand-one, one-thousand-two, etc.) until you’re told to put your foot down. You will fail the test if you cannot keep your balance, if you put your foot down too soon, sway, or if you use your arms to keep your balance.

Non-standard field sobriety tests include reciting the alphabet backward, placing your finger on your nose, and other balancing tests.

Breath Tests

In South Carolina, there is only one type of legal breath test device - the DataMaster DMT. This breath test measures your blood alcohol content (BAC) level using infrared absorption. The test is given at the police station (not on the roadside) after you are arrested. The test must be video recorded.

You’ll need to provide a strong breath sample.

Generally:

  • If your BAC is .08, there is a rebuttable presumption you were intoxicated while driving.
  • If your BAC is .05 or lower, you are conclusively presumed to have not been driving under the influence of alcohol – though the officer could assert that drugs impaired your driving.
  • If your BAC is between .05 and .08, there is no presumption of intoxication, and the officers shouldn’t arrest you without other evidence of intoxication.

If you’re charged with DUI, you need a Charleston criminal defense lawyer with experience. Attorney Hough has handled thousands of DUI cases.

Can I refuse a DUI breath test or any other chemical test?

South Carolina has an “implied consent” law: “A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of the person's breath, blood, or urine for the purpose of determining the presence of alcohol, drugs, or the combination of alcohol and drugs…”

You have an absolute right to refuse to take a breath test. While the police don’t have to tell you that you have the right to refuse these tests, they do need to tell you the consequences when you refuse. The police can still charge you with DUI and introduce your refusal at the DUI hearing. Your license will be suspended for refusing to take the test.

How do you contest breath tests in Charleston?

Breath tests are inherently unreliable. In 2019, a New York Times investigation found breath test devices “generate skewed results with alarming frequency, even though they are marketed as precise to the third decimal place” and that thousands of tests have been thrown out because of problems with overweight and human error:

The machines are sensitive scientific instruments, and in many cases they haven’t been properly calibrated, yielding results that were at times 40 percent too high. Maintaining machines is up to police departments that sometimes have shoddy standards and lack expertise. In some cities, lab officials have used stale or home-brewed chemical solutions that warped results. In Massachusetts, officers used a machine with rats nesting inside.

[…]

In Minnesota, officials found that the fuel-cell systems in their DataMaster devices often broke down. Instead of fixing the problem, technicians simply turned off that portion of the machine in 2012.

Our Charleston DUI defense lawyer asserts the following defenses to contest your breath test results:

  • Your medications may have affected the breath test results. If you use an asthma inhaler, take cough drop medications, have an excess of ketones due to diabetes or your diet, have had recent dental work, or have gastroesophageal acid reflux, the results may not be reliable.
  • The DataMaster device wasn’t properly validated or had software malfunctions.
  • The police officer failed to explain what you needed to do to comply with the test.
  • You were not tested within two hours of your arrest.
  • The police officer failed to observe you for 20 minutes before administering the test.
  • The police didn’t record the test and the observation period.
  • The administrator of the test wasn’t properly trained.
  • The simulator test did not fall within the correct levels.
  • The police didn’t respect your right to an independent test at your expense.

The arresting officer should ask you if there is reason why you might not be able to pass the breath test. You can also introduce witnesses, if available, to testify as to your sobriety. The video of the test and any videos of your driving may help your defense.

Can you help if I refused to take a field sobriety or a breath test in Charleston?

At The Law Offices of A. Randolph Hough, P.A., our Charleston breath and field sobriety lawyer asserts your defenses at two hearings:

  • The criminal DUI hearing. We’ll assert that the police failed to explain the consequences of the refusal. We’ll also assert that without the use of any breath tests or any field sobriety tests, the police do not have enough evidence to show beyond a reasonable doubt that you drove while under the influence of alcohol or drugs.
  • The Office of Motor Vehicle (OMVH) hearing. The arresting police officer can take your driver’s license immediately if you refuse to submit to a breath test. The officer can also take your license if your BAC is .15 or higher. We’ll assert your defenses. The OVMH hearing determines the length of the suspension and whether alternatives, such as an interlock ignition device or a provisional/restricted license, are available.

The Law Offices of A. Randolph Hough, P.A. also aggressively defends clients against other criminal charges, including assault, arson, kidnapping, and charges against college students. We also handle drunk driving defense.

Do you have a Charleston breath and field sobriety lawyer near me?

The Law Offices of A. Randolph Hough, P.A. consults with DUI defendants charged at our Charleston Office located at 171 Church St #160. We conduct in-custody visits and discuss cases by phone and through video consultations.

We’ll fight to have failed breath and field sobriety tests dismissed.

1720 Main St. Suite 105
Columbia, South Carolina 29201
Phone: (803) 219-2740
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171 Church Street, Suite 160
Charleston, SC 29401
Phone: (843) 507-4558
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1110 Queensborough Blvd,
Mount Pleasant, SC 29464
(803) 771-4119 or (800) 577-1013

Charged with DUI in Charleston? Call a defense lawyer who fights back

At The Law Offices of A. Randolph Hough, P.A., we understand every possible mistake that may justify having your DUI breath and field sobriety tests dismissed. Attorney A. Randolph Hough uses his experience as a former prosecutor and a seasoned defense lawyer to fight for your freedom and your right to drive. To schedule a consultation in Charleston, please call us or complete our contact form.