March 17, 1983


TO: All Magistrates
FROM: H. Lee Smith, Staff Attorney
RE: Implied Consent Hearings

The S.C. Supreme Court has ruled that legislation permitting magistrates to conduct implied consent hearings is unconstitutional.

In State v. Whittington, 278 S.C. 661, 301 S.E.2d 134 (1983), the Court held unconstitutional the portion of S.C. Code Ann. § 56-1-370, which permits magistrates to hold hearings to determine the validity of a driver's license suspension pursuant to Section 56-4-2950(e), refusal to submit to the breathalyzer test. The unconstitutionality is based on the separation of powers doctrine, the Court finding that the suspension and control of drivers' licenses is an administrative or executive function.

Therefore, effective immediately, no magistrate or other judicial officer may conduct an implied consent hearing. Instead, only duly authorized agents of the Department of Highways and Public Transportation may hold the hearings.