First, this is a confusing area of the law for many drivers who find themselves arrested or charged with DUI and also facing an “administrative suspension.” If you are confused, it is probably because it is confusing. What is an “administrative suspension” and what is an “administrative hearing?”
The South Carolina law on point is fully listed below, but here are the highlights:
- An administrative suspension is totally separate and distinct from the DUI charge. It is handled in front of a different court where different rules and procedures apply than the DUI charge.
- An administrative suspension is usually sought against a driver in a DUI case who either refuses the breath test or takes the breath test and registers .15 percent or higher.
- An administrative suspension from 30 days on up to six months, generally, is what is at stake for the driver in this administrative action. Any suspension levied administratively is in addition to any license suspensions levied because of a DUI conviction.
- The hearing takes place before a hearing officer and not a jury. The basic issues are whether or not there was probable cause to justify the DUI arrest, and whether or not the breath test was offered according to SLED procedure.
- An important point is that this hearing must be requested promptly within 30 days of the date of the arrest or else the driver has forfeited the right for this hearing.
SECTION 56-5-2951. Suspension of license for refusal to submit to testing or for certain level of alcohol concentration; temporary alcohol license; administrative hearing; restricted driver’s license; penalties.
(A) The Department of Motor Vehicles must suspend the driver’s license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950 or has an alcohol concentration of fifteen one-hundredths of one percent or more. The arresting officer must issue a notice of suspension which is effective beginning on the date of the alleged violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.
(B) Within thirty days of the issuance of the notice of suspension, the person may:
(1) obtain a temporary alcohol license by filing with the Department of Motor Vehicles a form for this purpose. A one hundred dollar fee must be assessed for obtaining a temporary alcohol license. Twenty-five dollars of the fee must be distributed by the Department of Motor Vehicles to the Department of Public Safety for supplying and maintaining all necessary vehicle videotaping equipment. The remaining seventy-five dollars must be placed by the Comptroller General into a special restricted account to be used by the Department of Motor Vehicles to defray its expenses. The temporary alcohol license allows the person to drive without any restrictive conditions pending the outcome of the contested case hearing provided for in subsection (F) or the final decision or disposition of the matter. If the suspension is upheld at the contested case hearing, the temporary alcohol license remains in effect until the Office of Motor Vehicle Hearings issues the hearing officer’s decision and the Department of Motor Vehicles sends notice to the person that he is eligible to receive a restricted license pursuant to subsection (H); and
(2) request a contested case hearing before the Office of Motor Vehicle Hearings in accordance with its rules of procedure.
At the contested case hearing if:
(a) the suspension is upheld, the person’s driver’s license, permit, or nonresident operating privilege must be suspended or the person must be denied the issuance of a license or permit for the remainder of the suspension period provided for in subsection (I). Within thirty days of the issuance of the notice that the suspension has been upheld, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990;
(b) the suspension is overturned, the person must have his driver’s license, permit, or nonresident operating privilege reinstated.
The provisions of this subsection do not affect the trial for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.
(C) The period of suspension provided for in subsection (I) begins on the day the notice of suspension is issued, or at the expiration of any other suspensions, and continues until the person applies for a temporary alcohol license and requests a contested case hearing.
(D) If a person does not request a contested case hearing, he waives his right to the hearing, and his suspension must not be stayed but continues for the period provided for in subsection (I).
(E) The notice of suspension must advise the person of his right to obtain a temporary alcohol driver’s license and to request a contested case hearing before the Office of Motor Vehicle Hearings. The notice of suspension also must advise the person that, if he does not request a contested case hearing within thirty days of the issuance of the notice of suspension, he waives his right to the administrative hearing, and the suspension continues for the period provided for in subsection (I). The notice of suspension also must advise the person that if the suspension is upheld at the contested case hearing or if he does not request a contested case hearing, he must enroll in an Alcohol and Drug Safety Action Program.
(F) A contested case hearing must be held after the request for the hearing is received by the Office of Motor Vehicle Hearings. The scope of the hearing is limited to whether the person:
(1) was lawfully arrested or detained;
(2) was given a written copy of and verbally informed 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 the:
(a) reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more;
(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and
(d) machine was working properly.
Nothing in this section prohibits the introduction of evidence at the contested case hearing on the issue of the accuracy of the breath test result.
A written order must be issued to all parties either reversing or upholding the suspension of the person’s license, permit, or nonresident’s operating privilege, or denying the issuance of a license or permit. If the suspension is upheld, the person must receive credit for the number of days his license was suspended before he received a temporary alcohol license and requested the contested case hearing.
The Department of Motor Vehicles and the arresting officer shall have the burden of proof in contested case hearings conducted pursuant to this section. If neither the Department of Motor Vehicles nor the arresting officer appears at the contested case hearing, the hearing officer shall rescind the suspension of the person’s license, permit, or nonresident’s operating privilege regardless of whether the person requesting the contested case hearing or the person’s attorney appears at the contested case hearing.
(G) A contested case hearing is governed by the Administrative Procedures Act, and a person has a right to appeal the decision of the hearing officer pursuant to that act to the Administrative Law Court in accordance with its appellate rules. The filing of an appeal stays the suspension until a final decision is issued on appeal.
(H)(1) If the suspension is upheld at the contested case hearing, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 and may apply for a restricted license if he is employed or enrolled in a college or university. The restricted license permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The restricted license also permits him to drive to and from the Alcohol Drug Safety Action Program classes or to a court-ordered drug program. The department may issue the restricted license only upon showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, or location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program.
(2) If the department issues a restricted license, it must designate reasonable restrictions on the times during which and routes on which the individual may drive a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of attendance of his court-ordered drug program, or residence must be reported immediately to the department by the licensee.
(3) The fee for a restricted license is one hundred dollars, but no additional fee may be charged because of changes in the place and hours of employment, education, or residence. Twenty dollars of this fee must be deposited in the state general fund, and eighty dollars must be placed by the Comptroller General into a special restricted account to be used by the Department of Motor Vehicles to defray the expenses of the Department of Motor Vehicles.
(4) Driving a motor vehicle outside the time limits and route imposed by a restricted license by the person issued that license is a violation of Section 56-1-460.
(I)(1) The period of a driver’s license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has no previous convictions for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug within the ten years preceding a violation of this section, and who has had no previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:
(a) six months for a person who refuses to submit to a test pursuant to Section 56-5-2950; or
(b) one month for a person who takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.
(2) The period of a driver’s license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has been convicted previously for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug within the ten years preceding a violation of this section, or who has had a previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:
(a) for a second offense, nine months if he refuses to submit to a test pursuant to Section 56-5-2950 or two months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more;
(b) for a third offense, twelve months if he refuses to submit to a test pursuant to Section 56-5-2950 or three months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more; and
(c) for a fourth or subsequent offense, fifteen months if he refuses to submit to a test pursuant to Section 56-5-2950 or four months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.
(J) A person’s driver’s license, permit, or nonresident operating privilege must be restored when the person’s period of suspension under subsection (I) has concluded, even if the person has not yet completed the Alcohol and Drug Safety Action Program in which he is enrolled. After the person’s driving privilege is restored, he must continue the services of the Alcohol and Drug Safety Action Program in which he is enrolled. If the person withdraws from or in any way stops making satisfactory progress toward the completion of the Alcohol and Drug Safety Action Program, the person’s license must be suspended until the completion of the Alcohol and Drug Safety Action Program. A person must be attending or have completed an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 before his driving privilege can be restored at the conclusion of the suspension period.
(K) When a nonresident’s privilege to drive a motor vehicle in this State has been suspended under the provisions of this section, the department must give written notice of the action taken to the motor vehicle administrator of the state of the person’s residence and of any state in which he has a license or permit.
(L) The department must not suspend the privilege to drive of a person under the age of twenty-one pursuant to Section 56-1-286 if the person’s privilege to drive has been suspended under this section arising from the same incident.
(M) A person whose driver’s license or permit is suspended pursuant to this section is not required to file proof of financial responsibility.
(N) An insurer may not increase premiums on, add surcharges to, or cancel the automobile insurance of a person charged with a violation of Section 56-1-286, 56-5-2930, 56-5-2933, or 56-5-2945, or another law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug based solely on the violation unless he is convicted of the violation.
(O) The department must administer the provisions of this section and must promulgate regulations necessary to carry out its provisions.
(P) If a person does not request a contested case hearing within the thirty-day period as authorized pursuant to this section, the person may file with the department a form after enrolling in a certified Alcohol and Drug Safety Action Program to apply for a restricted license. The restricted license permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The restricted license also permits him to drive to and from Alcohol and Drug Safety Action Program classes or a court-ordered drug program. The department may issue the restricted license at any time following the suspension upon a showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program. The department must designate reasonable restrictions on the times during which and routes on which the individual may drive a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of his court-ordered drug program, or residence must be reported immediately to the department by the licensee. The route restrictions, requirements, and fees imposed by the department for the issuance of the restricted license issued pursuant to this item are the same as those provided in this section had the person requested a contested case hearing. A restricted license is valid until the person successfully completes a certified Alcohol and Drug Safety Action Program, unless the person fails to complete or make satisfactory progress to complete the program.
HISTORY: 1998 Act No. 434, Section 8; 1999 Act No. 115, Sections 7, 8, 13; 1999 Act No. 100, Part II, Section 11; 1999 Act No. 115, Section 15; 2000 Act No. 390, Sections 15 to 22; 2001 Act No. 79, Sections 2.I.1. and 2.I.2.; 2002 Act No. 296, Sections 2, 3; 2002 Act No. 348, Sections 10 and 11; 2002 Act No. 354, Sections 4 and 5; 2003 Act No. 61, Section 7; 2006 Act No. 381, Section 7, eff June 13, 2006; 2008 Act No. 201, Section 10, eff February 10, 2009; 2012 Act No. 212, Section 4, eff June 7, 2012; 2012 Act No. 264, Section 5, eff June 18, 2012.
South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers
. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.
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