South Carolina Court of Appeals Defines a Legal "Refusal" in DUI/Drunk Driving Cases

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On May 19, 2010 Officer Dyar Archibald arrested Chisolm for driving under the influence (DUI). After Chisolm's arrest for DUI, Officer Archibald transported her to the police station and offered her a breath test pursuant to the South Carolina DUI law. Chisolm blew into the breath test instrument for approximately one minute and 53 seconds. Officer Archibald testified that there was a steady tone while Chisolm blew into the machine (meaning air was going into the breath testing instrument). However, Officer Archibald also testified that the instrument "just would not read it." There was no evidence presented that the breath test machine's failure to register the defendant's sample resulted from her own fault by trying to "fake out" or "thwart" the test; nor did she fail to cooperate and follow the officer's instructions. Because the machine would not read the sample, Officer Archibald considered it to be a "refusal." Consequently, Officer Archibald reported that Chisolm had refused to submit to a breath test and initiated a six month suspension of her license for same.

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