Do I Have a Right to Consult with an Attorney before Deciding whether to Take a Breath Test or Blood Test?

On Behalf of The Law Office of Brad C. Richardson, LLC | Apr 18, 2024

If you’ve been pulled over by the police on suspicion of being under the influence, they’ll very likely request that you take either a breath or a blood test. This generally starts with a breath test on the road. You can refuse to take the test, but it’s not going to do you much good.

When you get behind the wheel of your car, you give what is known as implied consent to test your blood alcohol content (BAC) – as long as the officer doing the asking has reasonable grounds to believe you are intoxicated. While you may assume that you have the right to consult with an attorney prior to consenting to a blood or breath test, that isn’t how it works. If you’ve been charged with DUI, you shouldn’t wait to consult with an experienced South Carolina DUI defense attorney.

Forcing a Blood Test Back at the Station

In some states, the police have the right to force those stopped for DUI to take blood tests back at the station if they refuse a breath test when stopped, but this isn’t the case in South Carolina. It’s also true, however, that the prosecution doesn’t need a BAC reading to convict you of DUI – or driving under the influence. Instead, the prosecution needs to prove that you were materially and appreciably impaired, which means your driving was negatively affected by alcohol or drugs.

It’s also important to note that your refusal to be tested can be used as evidence against you in your DUI case. In other words, your refusal is interpreted to mean that you knew you were over the limit, which motivated you to decline the test.

Requesting You to Take a Test Is Not Considered a Form of Interrogation

You know that if you’re arrested for or are interrogated regarding a criminal charge, you have the right to an attorney, so why doesn’t this apply when you’ve been taken against your will in a police car to the police station for your BAC to be tested? The fact is that this testing request on the part of the police is not considered a form of interrogation, and as a result, you’re not entitled to a Miranda warning.

This can feel like a Catch-22, but it’s the law. Consider all the following:

When you drive, which is a privilege, not a right, you imply your consent in terms of BAC testing – under the appropriate circumstances.
While you can refuse testing, your license and/or privilege to drive in South Carolina may be suspended
Your implied consent gives the police the right to take you to the police station for testing. Because you are not under arrest and are not being interrogated, you don’t have the right to an attorney’s counsel regarding whether you should submit to testing.

Reach Out to an Experienced South Carolina DUI Defense Attorney Today

The formidable South Carolina DUI defense attorneys at The Law Office of Brad C. Richardson recognize how challenging DUI charges can be and encourage you to reach out for our skilled legal guidance as soon as you’re able to do so. Learn more by contacting us online or calling 843-488-4321 today.