I have completed an analysis of all published breathalyzer repots coming from the Lexington County Detention Center from January 1, 2016, through April 20, 2016. As a DUI defense attorney I think it is important for us to just be aware at least generally what the overall results are from breath tests. The data we reviewed includes all publically available test data (in other words, not limited to just our clients).
Here are the results:
Average BAC Reading: 0.14
Percent Less than 0.08: 10%
Percent at Lowest DUI Tier: 19%
Percent at Mid DUI Tier: 30%
Percent at Highest Tier: 51%
The average BAC reading of 0.14 is based on the number of tests actually conducted where the BAC level was over 0.00. I did not count “zero” results because those are likely individuals arrested for suspicion of drugged driving, and the breathalyzer was only administered as a required precursor to a urine or blood test. The lowers BAC reported was 0.02 and the highest was 0.33.
The study sample was 94 completed tests. This number is significantly lower than the overall county DUI arrest rate since many individuals opt to refuse the breath test. Given that 90% of test takers are in excess of 0.08, it seems that the refusal is usually a good decision. Although this year to date analysis is based on a relatively small sample, the results closely match those of a more comprehensive analysis I completed in 2014 (over 300 samples), where again the average BAC was 0.014.
What does this data mean?
South Carolina has a three tier system for DUI 1st charges based on reported BAC levels. Defendants who refuse the breath test are charged at the lowest level (although upon conviction they are required to install an Interlock device). Otherwise individuals who provide a sample at under 0.10 are charged at the lowest tier (this was 19% of reported samples).
The next higher tier is for BAC levels of 0.10-0.15. The penalty is the same as for the lower level with the exception of a slightly higher fine. The highest tier is for BAC levels of 0.16 or greater. At this level the fine is more than doubled, and the possible jail sentence is tripled. Those convicted at this level are also required to install an Interlock device as part of their sentence.
The only way that most defendants get into the highest tier is by voluntarily providing a breath sample. The data shows that over half of all breath test takers put themselves in this category.
The data shows that the decision to provide a BAC sample usually results in more serious charges being brought. As a result it remains very important that police properly advise defendants of their rights to refuse the breath test. When the police skip over this test it can create a significant legal defense that can either result in a significant reduction in the charge or even a total dismissal.