BREATH SAMPLE INFERENCE

April 15, 2014

By Vannoy Law Firm

jury

SHOULD I GIVE A BREATH SAMPLE?

Under South Carolina law, a jury gets to hear the following at the trial of a DUI case under S.C. Code Ann. Sec. 56-5-2950. 

The alcohol concentration at the time of the test, as shown by the Datamaster result gives rise to the following at trial:

(1) if the alcohol concentration was at that time five one-hundredths of one percent or less, it is conclusively presumed that the person was not under the influence of alcohol;

(2) if the alcohol concentration was at that time in excess of five one-hundredths of one percent but less than eight one-hundredths of one percent, this fact does not give rise to any inference that the person was or was not under the influence of alcohol, but this fact may be considered with other evidence in determining the guilt or innocence of the person;

(3) if the alcohol concentration was at that time eight one-hundredths of one percent or more, it may be inferred that the person was under the influence of alcohol; or

(4) if one refuses the test, the refusal may be used against him/her.

Obviously because a jury is allowed to "infer" that a person was under the influence does not mean, that person was actually under the influence.  However, it is a powerful piece of evidence in my opinion for the prosecution.  Most people representing the State in my opinion would rather prosecute a case where a person provides a sample over .08% than if that person refuses.  Why?  Because the prosecution gets to use a number to confirm what a police officer already concluded, i.e. that the Defendant was in fact under the influence of alcohol. 

I personally would not trust my freedom on what a machine says but the decision to provide a sample or to refuse is one that involves many different variables.  However, it is one that can have lasting consequences.  See the punishment chart here: https://bradyvannoy.com/dui-lawyer-moncks-corner/

You can read a related blog post here: https://bradyvannoy.com/dui-criminal-attorney-berkeley-sc/

If you have questions regarding a DUI or criminal case in Berkeley, Charleston, or Dorchester County, please contact my office today at (843) 761-0610 or through the contact page on this website.

Photo (14)Brady Vannoy carries a Martindale-Hubbell(R) AV PreeminentTM Rating.  According to the rating system, "AV Preeminent(R) is a significant rating accomplishment-a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence."  http://www.martindale.com/Products_and_Services/Peer_Review_Ratings.aspx

Brady is a member of the South Carolina Association of Criminal Defense Lawyers and The National Association of Criminal Defense Lawyers.  Brady defends DUI and criminal cases in Berkeley, Charleston, and Dorchester counties along with other areas of the South Carolina low country.  He can be reached at (843) 761-0610 or through the contact page on this website.

Get Started with a Consultation

"*" indicates required fields

Name*