A NEW FOCUS ON IMPLIED CONSENT HEARINGS
In light of the increased challenges of obtaining convictions from the impact of the pandemic, some agencies began taking a closer look at the implied consent component of a DUI arrest. Implied consent laws refer to the fact that when someone obtains a driver’s license, they agree to provide a breath sample to law enforcement if suspected of impaired driving. However, people do have the option of refusing in the moment, but that comes with a penalty — an automatic six- month license suspension. In South Carolina, we allow those who have had their license suspended for refusing, or for blowing over a .15 BAC, to keep driving if they contest the suspension and apply for a Temporary Alcohol Restricted License (TARL). It is a $200 fee to challenge the license suspension, and a $100 fee to get the TARL. Eventually, ranging from a few weeks to a few months, they will have a hearing before an administrative hearing officer, who are employees of the Administrative Law Court, to determine if the officer had proper justification for the traffic stop, followed all proper procedures, and the license suspension was correctly issued. The implied consent hearing is a separate process from the criminal case to determine whether the person broke the law by driving impaired. In an implied consent hearing, the standard of proof is “preponderance of evidence” rather than “beyond a reasonable doubt.” There are fewer relevant aspects of the arrest that the officer should need to speak to compared to the criminal case. Also, while in South Carolina the video recording of the arrest is crucial to a conviction, it is not relevant in an implied consent hearing. In fact, the criminal case could be dropped, but someone could still have their license suspended for refusing. Implied consent hearings are common as SLED data tells us that 41% of the people who were asked to give a breath sample upon arrest for DUI in 2020 refused. If the arresting officer does not attend the hearing to articulate the necessary information about what led to the refusal and suspension, then the suspension is overturned, and the person never actually loses driving privileges for six months. Some suspensions are overturned even if the officer, perhaps with a prosecutor, appears and makes their case, but most suspensions are overturned because the officer does not attend. This is not uncommon. There have been long been complaints by law enforcement officers that implied consent hearings are held at inconvenient times (typically in the morning and many officers who write DUIs work nights), have to be attended outside of paid work hours, and are sometimes used by the defense to obtain information that is outside the scope of what an administrative hearing needs to cover (“fishing expedition”), giving them a possible edge on the criminal ca se. Therefore, some officers do not attend all implied consent hearings, and some have stopped attending altogether.
A New Approach to Implied Consent Hearings: Goose Creek Police Department
When criminal courts first shut down for an extended time for COVID-19, administrative hearings also were paused for a time, but administrative hearings began again after a few weeks, much sooner than criminal courts reopened. For the Goose Creek Police Department (GCPD),
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