Reference is to Printer's Date 2/27/13-S.
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. This act may be cited as "Emma's Law".
SECTION 2. Section 56-1-286 of the 1976 Code, as last amended by Act 264 of 2012, is further amended to read:
"Section 56-1-286.
(A) The Department of Motor Vehicles
must shall suspend the driver's license,
permit, or nonresident operating privilege of, or deny the
issuance of a license or permit to a person under the age of
twenty-one who drives a motor vehicle and has an alcohol
concentration of two one-hundredths of one percent or more. In
cases in which a law enforcement officer initiates suspension
proceedings for a violation of this section, the officer has
elected to pursue a violation of this section and is
subsequently prohibited from prosecuting the person for a
violation of Section 63-19-2440, 63-19-2450, 56-5-2930, or
56-5-2933, arising from the same incident.
(B) A person under the
age of twenty-one who drives a motor vehicle in this State is
considered to have given consent to chemical tests of
his the person's breath or blood for the
purpose of determining the presence of alcohol.
(C) A law enforcement
officer who has arrested a person under the age of twenty-one
for a violation of Chapter 5 of this title (Uniform Act
Regulating Traffic on Highways), or any other traffic offense
established by a political subdivision of this State, and has
reasonable suspicion that the person under the age of twenty-one
has consumed alcoholic beverages and driven a motor vehicle may
order the testing of the person arrested to determine the
person's alcohol concentration.
A law enforcement officer may detain and
order the testing of a person to determine the person's alcohol
concentration if the officer has reasonable suspicion that a
motor vehicle is being driven by a person under the age of
twenty-one who has consumed alcoholic beverages.
(D) A test must be
administered at the direction of the primary investigating law
enforcement officer. At the officer's direction
of the officer, the person first must be
offered a breath test to determine the person's alcohol
concentration. If the person physically is unable to provide an
acceptable breath sample because he the
person has an injured mouth or is unconscious or dead, or
for any other reason considered acceptable by licensed medical
personnel, a blood sample may be taken. The breath test must be
administered by a person trained and certified by the South
Carolina Criminal Justice Academy, pursuant to
SLED the State Law Enforcement
Division's policies. The primary investigating officer may
administer the test. Blood samples must be obtained by
physicians licensed by the State Board of Medical Examiners,
registered nurses licensed by the State Board of Nursing, or
other medical personnel trained to obtain these samples in a
licensed medical facility. Blood samples must be obtained and
handled in accordance with procedures approved by the division.
The division shall administer the provisions of this subsection
and shall promulgate regulations necessary to carry out
its the subsection's provisions. The
costs of the tests administered at the officer's
direction of the officer must be paid from the
State's general fund of the State.
However, if the person is subsequently convicted of violating
Section 56-5-2930, 56-5-2933, or 56-5-2945, then, upon
conviction, the person must shall pay
twenty-five dollars for the costs of the tests. The twenty-five
dollars must be placed by the Comptroller General into a special
restricted account to be used by the State Law Enforcement
Division to offset the costs of administration of the breath
testing devices, breath testing site video program, and
toxicology laboratory.
The person tested or giving samples for
testing may have a qualified person of his
the person's choice conduct additional tests at the
person's expense and must be notified in writing of that right.
A person's request or failure to request additional blood tests
is not admissible against the person in any proceeding. The
person's failure or inability of the person
tested to obtain additional tests does not preclude the
admission of evidence relating to the tests or samples taken at
the officer's direction of the officer.
The officer must shall provide
affirmative assistance to the person to contact a qualified
person to conduct and obtain additional tests. Affirmative
assistance shall, at a minimum, include providing transportation
for the person to the nearest medical facility which provides
blood tests to determine a person's alcohol concentration. If
the medical facility obtains the blood sample but refuses or
fails to test the blood to determine the person's alcohol
concentration, SLED must the State Law
Enforcement Division shall test the blood and provide the
result to the person and to the officer. Failure to provide
affirmative assistance upon request to obtain additional tests
bars the admissibility of the breath test result in
any a judicial or administrative
proceeding.
(E) A qualified person
and his the person's employer who obtain
samples or administer the tests or assist in obtaining samples
or administering of tests at the direction of
the primary investigating officer
officer's direction are immune from civil and criminal
liability unless the obtaining of samples or the administering
of tests is performed in a negligent, reckless, or fraudulent
manner. A person may not be required by the officer ordering
the tests to obtain or take any sample of blood or urine.
(F) if a person refuses
upon the request of the primary investigating
officer officer's request to submit to
chemical tests as provided in subsection (C), the department
must shall suspend his
the person's license, permit, or any
nonresident operating privilege, or deny the issuance of a
license or permit to him the person for:
(1)
six months; or
(2)
one year, if the person, within the five
three years preceding the violation of this section, has
been previously convicted of violating Section 56-5-2930,
56-5-2933, or 56-5-2945, or any
other a law of this State or
another state that prohibits a person from driving a motor
vehicle while under the influence of alcohol or another
drug other drugs, or the person has had a
previous suspension imposed pursuant to Section 56-1-286,
56-5-2950, or 56-5-2951, or 56-5-2990.
(G) If a person submits
to a chemical test and the test result indicates an alcohol
concentration of two one-hundredths of one percent or more, the
department must shall suspend
his the person's license, permit, or
any nonresident operating privilege, or deny
the issuance of a license or permit to him
the person for:
(1)
three months; or
(2)
six months, if the person, within the
five three years preceding the violation
of this section, has been previously convicted of violating
Section 56-5-2930, 56-5-2933, or
56-5-2945, or any other a law of
this State or another state that prohibits a
person from driving a motor vehicle while under the influence of
alcohol or another drug other drugs, or
the person has had a previous suspension imposed pursuant
to Section 56-1-286, 56-5-2950, or
56-5-2951, or 56-5-2990.
(H) A person's driver's
license, permit, or nonresident operating privilege must be
restored when the person's period of suspension
under pursuant to subsection (F) or
(G) has concluded, even if the person
has not yet completed the Alcohol and Drug Safety Action Program
in which he the person is enrolled.
After the person's driving privilege is restored, he
must the person shall continue to participate in
the Alcohol and Drug Safety Action Program in which
he the person is enrolled. If the
person withdraws from or in any way stops making satisfactory
progress toward the completion of the Alcohol and Drug Safety
Action Program, the person's license must be suspended until
he the person completes the Alcohol and
Drug Safety Action Program. A person must
shall be attending or have completed an Alcohol and Drug
Safety Action Program pursuant to Section 56-5-2990 before
his the person's driving privilege
can may be restored at the conclusion of
the suspension period.
(I) A test may not be
administered or samples taken unless, upon activation of the
video recording equipment and prior to the commencement of the
testing procedure, the person has been given a written copy of
and verbally informed that:
(1)
he the person does not have to
take the test or give the samples but that his
the person's privilege to drive must be suspended or
denied for at least six months if he the
person refuses to submit to the tests, and that
his the person's refusal may be used
against him the person in court;
(2)
his the person's privilege to
drive must be suspended for at least three months if
he the person takes the test or gives
the samples and has an alcohol concentration of two
one-hundredths of one percent or more;
(3)
he the person has the right to
have a qualified person of his the
person's own choosing conduct additional independent tests
at his the person's expense;
(4)
he the person has the right to
request an administrative a contested
case hearing within thirty days of the issuance of the
notice of suspension; and
(5)
he must the person shall enroll in
an Alcohol and Drug Safety Action Program within thirty days of
the issuance of the notice of suspension if he
the person does not request an
administrative a contested case hearing or
within thirty days of the issuance of notice that the suspension
has been upheld at the administrative
contested case hearing.
The primary investigating officer
must notify promptly shall promptly
notify the department of the a
person's refusal of a person to submit to a
test requested pursuant to this section as well as the test
result of any a person who submits to a
test pursuant to this section and registers an alcohol
concentration of two one-hundredths of one percent or more. The
notification must be in a manner prescribed by the department.
(J) If the test
registers an alcohol concentration of two one-hundredths of one
percent or more or if the person refuses to be tested, the
primary investigating officer must shall
issue a notice of suspension, and the suspension is effective
beginning on the date of the alleged violation of this section.
The person, within thirty days of the issuance of the notice of
suspension, must shall enroll in an
Alcohol and Drug Safety Action Program pursuant to Section
56-5-2990 if he the person does not
request an administrative hearing. If the person does not
request an administrative hearing and does not enroll in an
Alcohol and Drug Safety Action Program within thirty days, the
suspension remains in effect, and a temporary alcohol license
must not be issued. If the person drives a motor vehicle during
the period of suspension without a temporary alcohol license,
the person must be penalized for driving while
his the person's license is suspended
pursuant to Section 56-1-460.
(K) Within thirty days
of the issuance of the notice of suspension the person may:
(1)
obtain a temporary alcohol license by filing with the
Department of Motor Vehicles a form for this purpose. A
one-hundred-dollar fee must be assessed for obtaining a
temporary alcohol license. Twenty-five dollars of the fee
collected by the Department of Motor Vehicles must be
distributed to the Department of Public Safety for supplying and
maintaining all necessary vehicle videotaping equipment. The
remaining seventy-five dollars must be placed by the Comptroller
General into a special restricted account to be used by the
Department of Motor Vehicles to defray its
the Department of Motor Vehicle's expenses. The
temporary alcohol license allows the person to drive a motor
vehicle without any restrictive conditions pending the outcome
of the contested case hearing provided for in this section or
the final decision or disposition of the matter; and
(2)
request a contested case hearing before the Office of
Motor Vehicle Hearings pursuant to its rules of procedure.
At the contested case hearing if:
(a)
the suspension is upheld, the person must
shall enroll in an Alcohol and Drug Safety Action Program
and his the person's driver's license,
permit, or nonresident operating privilege must be suspended or
the person must be denied the issuance of a license or permit
for the remainder of the suspension periods provided for in
subsections (F) and (G); or
(b)
the suspension is overturned, the person must have
his person's driver's license, permit, or
nonresident operating privilege must be reinstated.
(L) The periods of
suspension provided for in subsections (F) and (G) begin on the
day the notice of suspension is issued, or at the expiration of
any other suspensions, and continue until the person applies for
a temporary alcohol license and requests an administrative
hearing.
(M) If a person does
not request a contested case hearing, he shall
have the person has waived his
the person's right to the hearing and
his the person's suspension must not be
stayed but shall continue for the periods provided for in
subsections (F) and (G).
(N) The notice of
suspension must advise the person of the requirement to enroll
in an Alcohol and Drug Safety Action Program and of
his the person's right to obtain a
temporary alcohol license and to request a contested case
hearing. The notice of suspension also must advise the person
that, if he the person does not request
a contested case hearing within thirty days of the issuance of
the notice of suspension, he must the person
shall enroll in an Alcohol and Drug Safety Action Program,
and he the person waives his
the person's right to the contested case hearing, and the
suspension continues for the periods provided for in subsections
(F) and (G).
(O) A contested case
hearing must be held after the request for the hearing is
received by the Office of Motor Vehicle Hearings. The scope of
the hearing is limited to whether the person:
(1)
was lawfully arrested or detained;
(2)
was given a written copy of and verbally informed of the
rights enumerated in subsection (I);
(3)
refused to submit to a test pursuant to this section; or
(4)
consented to taking a test pursuant to this section, and
the:
(a)
reported alcohol concentration at the time of testing was
two one-hundredths of one percent or more;
(b)
individual who administered the test or took samples was
qualified pursuant to this section;
(c)
test administered and samples taken were conducted
pursuant to this section; and
(d)
the machine was operating properly.
Nothing in this section prohibits the
introduction of evidence at the contested case hearing on the
issue of the accuracy of the breath test result.
The Department of Motor Vehicles and the
arresting officer shall have the burden of proof in contested
case hearings conducted pursuant to this section. If neither
the Department of Motor Vehicles nor the arresting officer
appears at the contested case hearing, the hearing officer shall
rescind the suspension of the person's license, permit, or
nonresident's operating privilege regardless of whether the
person requesting the contested case hearing or the person's
attorney appears at the contested case hearing.
A written order must be issued to all
parties either reversing or upholding the suspension of the
person's license, permit, or nonresident's operating privilege,
or denying the issuance of a license or permit. If the
suspension is upheld, the person must receive credit for the
number of days his the person's license
was suspended before he the person
received a temporary alcohol license and requested the contested
case hearing.
(P) A contested case
hearing is a contested proceeding under the Administrative
Procedures Act, and a person has a right to appeal the decision
of the hearing officer pursuant to that act to the
Administrative Law Court in accordance with its appellate rules.
The filing of an appeal shall stay the suspension until a final
decision is issued.
(Q) A person who is
unconscious or otherwise in a condition rendering him incapable
of refusal is considered to be informed and not to have
withdrawn the consent provided for in subsection (B) of this
section.
(R) When a
nonresident's privilege to drive a motor vehicle in this State
has been suspended under the procedures of this section, the
department shall give written notice of the action taken to the
motor vehicle administrator of the state of the person's
residence and of any state in which he has a license or permit.
(S) A person required
to submit to a test must be provided with a written report
including the time of arrest, the time of the tests, and the
results of the tests before any proceeding in which the results
of the tests are used as evidence. A person who obtains
additional tests shall furnish a copy of the time, method, and
results of any additional tests to the officer before any trial,
hearing, or other proceeding in which the person attempts to use
the results of the additional tests as evidence.
(T) A person whose
driver's license or permit is suspended under this section is
not required to file proof of financial responsibility.
(U) The department
shall administer the provisions of this section, not including
subsection (D), and shall promulgate regulations necessary to
carry out its provisions.
(V) Notwithstanding any
other provision of law, no suspension imposed pursuant to this
section is counted as a demerit or result in any insurance
penalty for automobile insurance purposes if at the time
he the person was stopped, the person
whose license is suspended had an alcohol concentration that was
less than eight one-hundredths of one percent."
SECTION 3. Section 56-1-400 of the 1976 Code, as last amended by Act 285 of 2008, is further amended to read:
"Section 56-1-400.
(A) The Department of Motor Vehicles, upon suspending or
revoking a license, shall require that such
the license shall be surrendered to the
Department of Motor Vehicles department.
At the end of the suspension period of
suspension, other than a suspension for reckless
driving, driving under the influence of intoxicants, driving
with an unlawful alcohol concentration, felony driving under the
influence of intoxicants, or pursuant to the point system
such license so surrendered shall be returned to the
licensee, or in the discretion of the Department of Motor
Vehicles, the department shall issue a new
license issued to him the
person. The Department of Motor Vehicles
If the person has not held a license within the previous nine
months, the department shall not return nor
issue or restore a license which has been suspended for
reckless driving, driving under the influence of intoxicants,
driving with an unlawful alcohol concentration, felony
driving under the influence of intoxicants, or for
violations under the point system, until the person has
filed an application for a new license, submitted to an
examination as upon an original application, and
has satisfied the Department of Motor
Vehicles department, after an investigation of
the person's character, habits, and
driving ability of the person, that it would be
safe to grant him the person the
privilege of driving a motor vehicle on the public highways.
Provided, the Department of Motor Vehicles
The department, in its the
department's discretion, where the suspension is for
a violation under the point system, may waive
such the examination, application, and
investigation. A record of the suspension
shall must be endorsed on the license
returned to the licensee, or the new license
issued to the licensee person, showing
the grounds of such the
suspension. In the case of a license suspended for
driving under the influence of intoxicants If a
person is permitted to operate a motor vehicle only with an
ignition interlock device installed pursuant to Section
56-5-2941, the restriction on the license returned
to the licensee, or the new license issued to the
licensee person, must
conspicuously identify the licensee
person as a person who may only only
may drive a motor vehicle with an ignition interlock device
installed, and the restriction must be maintained on the license
for the duration of the period for which the ignition interlock
device must be maintained pursuant to Section
56-5-2941 56-1-286, 56-5-2945, 56-5-2947
except if the conviction was for section 56-5-750, 56-5-2951, or
56-5-2990. For purposes of Title 56, the license must be
referred to as an ignition interlock restricted license. The fee
for an ignition interlock restricted license is one hundred
dollars, which shall be placed into a special restricted account
by the Comptroller General to be used by the Department of Motor
Vehicles to defray the department's expenses. Unless the
person establishes that he the person is
entitled to the exemption set forth in subsection (B), no
ignition interlock restricted license containing
an ignition interlock device restriction shall
may be issued by the Department of Motor
Vehicles department without written notification
from the authorized ignition interlock service provider that the
ignition interlock device has been installed and
confirmed to be in working order. If a person chooses to not
have an ignition interlock device installed when
required by law, the license will remain suspended
for three years from the date the suspension for driving
under the influence of intoxicants ends
indefinitely. If during this three-year
period the person subsequently decides to have
the ignition interlock device installed, the device must be
installed for the full suspension period or until the
end of the three-year period, whichever comes first
length of time set forth in Section 56-1-286, 56-5-2945,
56-5-2947 except if the conviction was for section 56-5-750,
56-5-2951, or 56-5-2990. This provision
shall does not affect nor bar the
reckoning of prior offenses for reckless driving and driving
under the influence of intoxicating liquor or narcotic drugs, as
provided in Article 23 of, Chapter 5 of
this title.
(B)(1) A person
who does not own a vehicle, as shown in the Department of Motor
Vehicles' records, and who certifies that he
the person:
(a)
cannot obtain a vehicle owner's permission to
have an ignition interlock device installed on a vehicle;
(b)
will not be driving any a
vehicle other than the one a vehicle
owned by his the person's
employer; and
(c)
that he will not own a vehicle
during the interlock period, may petition the Department
of Motor Vehicles department, on a form provided
by it the department, for issuance of
a an ignition interlock restricted
license containing an ignition interlock device
restriction, that permits the person to operate a
vehicle specified by the employee according to the employer's
needs as contained in the employer's statement during the days
and hours specified in the employer's statement without
having to show that an ignition interlock device has been
installed.
(2)
The form must contain:
(a)
identifying information about the employer's
noncommercial vehicles that the person will be operating;
(b)
a statement that explains the circumstances in
which the person will be operating the employer's vehicles;
and
(c) the
notarized signature of the person's employer.
(3)
This subsection does not apply to a person who
is self-employed or to a person who is employed by a business
owned in whole or in part by the person or a member of the
person's household or immediate family unless during the defense
of a criminal charge, the court finds that the vehicle's
ownership by the business serves a legitimate business purpose
and that titling and registration of the vehicle by the business
was not done to circumvent the intent of this section.
(4)
Whenever the person operates the employer's
vehicle pursuant to this subsection, the person shall have with
the person a copy of the form specified by this subsection.
(5)
The determination of eligibility for
this the waiver is subject to periodic
review at the discretion of the Department of Motor
Vehicles department. The Department of
Motor Vehicles must department shall revoke a
license waiver issued pursuant to this
exemption if it the department
determines that the person has been driving a vehicle other than
the one vehicle owned by
his the person's employer or has been
operating the person's employer's vehicle outside the locations,
days, or hours specified by the employer in the department's
records. The person may seek relief from the
Department of Motor Vehicle's
department's determination by filing a request for a
contested case hearing with the Office of Motor Vehicle Hearings
pursuant to the Administrative Procedures Act and the rules of
procedure for the Office of Motor Vehicle Hearings.
(C)
Any A person whose license has
been suspended or revoked for an offense within the jurisdiction
of the court of general sessions shall provide the
Department of Motor Vehicles department
with proof that the fine owed by the person has been paid before
the Department of Motor Vehicles
department may return or issue the
person a license. Proof that the fine has been paid may be a
receipt from the clerk of court of the county in which the
conviction occurred stating that the fine has been paid in
full."
SECTION 4. Section 56-1-460 of the 1976 Code, as last amended by Act 273 of 2012, is further amended to read:
"Section 56-1-460.
(A)(1) Except as provided in item (2),
a person who drives a motor vehicle on any
a public highway of this State when his
the person's license to drive is canceled, suspended, or
revoked must, upon conviction, be punished as follows:
(a)
for a first offense, fined three hundred dollars or
imprisoned for up to thirty days, or both;
(b)
for a second offense, fined six hundred dollars or
imprisoned for up to sixty consecutive days, or both; and
(c)
for a third and or subsequent
offense, fined one thousand dollars, and imprisoned for
up to ninety days or confined to a person's place of residence
pursuant to the Home Detention Act for not less
than up to ninety days nor more than six
months. No portion of a term of imprisonment or
confinement under home detention may be suspended by the trial
judge except when the court is suspending a term of
imprisonment upon successful completion of the terms and
conditions of confinement under home detention. For
purposes of this item, a person sentenced to confinement
pursuant to the Home Detention Act is required to pay for the
cost of such confinement.
(d)
Notwithstanding the provisions of Sections 22-3-540,
22-3-545, 22-3-550, and 14-25-65, an offense punishable under
this item may be tried in magistrates or municipal court.
(e)(i)
A person convicted of a first or second offense of this
item, as determined by the records of the department, and who is
employed or enrolled in a college or university at any time
while his the person's driver's license
is suspended pursuant to this item, may apply for a route
restricted driver's license permitting him
the person to drive only to and from work or
his the person's place of education and
in the course of his the person's
employment or education during the period of suspension. The
department may issue the route restricted driver's license only
upon a showing by the person that he the
person is employed or enrolled in a college or university
and that he the person lives further
than one mile from his the person's
place of employment or place of education.
(ii)
When the department issues a route restricted driver's
license, it shall designate reasonable restrictions on the times
during which and routes on which the person may operate a motor
vehicle. A person holding a route restricted driver's license
pursuant to this item must shall report
to the department immediately any change in his
the person's employment hours, place of employment,
status as a student, or residence.
(iii)
The fee for a route restricted driver's license issued
pursuant to this item is one hundred dollars, but no additional
fee is due when changes occur in the place and hours of
employment, education, or residence. Of this fee, eighty
dollars must be placed by the Comptroller General into a special
restricted account to be used by the Department of Motor
Vehicles to defray its the Department of
Motor Vehicle's expenses. The remainder of the fees
collected pursuant to this item must be credited to the
Department of Transportation State Non-Federal Aid Highway Fund.
(iv)
The operation of a motor vehicle outside the time limits
and route imposed by a route restricted license by the
person issued that license is a violation of subsection
(A)(1).
(2)
A person who drives a motor vehicle on
any a public highway of this State when
his the person's license has been
suspended or revoked pursuant to the provisions of Section
56-5-2990 or 56-5-2945 must, upon conviction, be punished
as follows:
(a)
for a first offense, fined three hundred dollars or
imprisoned for not less than ten nor more than thirty days;
(b)
for a second offense, fined six hundred dollars or
imprisoned for not less than sixty days nor more than six
months;
(c)
for a third and or subsequent
offense, fined one thousand dollars and imprisoned for not less
than six months nor more than three years;
.
(d)
noNo portion of the
minimum sentence imposed under pursuant
to this item may be suspended.
(B) The Department of
Motor Vehicles, upon receiving a record of the
conviction of any person under a person's conviction
pursuant to this section upon a charge of driving a vehicle
while his the person's license was
suspended for a definite period of time, shall extend the
suspension period of the suspension for
an additional like period. If the original period of suspension
has expired or terminated before trial and conviction, the
department shall again suspend the person's license
of the person for an additional like period of
time. If the suspension is not for a definite period of time,
the suspension must be for an additional three months. If the
license of a person cited for a violation of this section is
suspended solely pursuant to the provisions of Section 56-25-20,
the additional period of suspension pursuant to this section is
thirty days, and the person does not have to offer proof
of financial responsibility as required under
pursuant to Section 56-9-500 prior to
his the person's license being
reinstated. If the conviction was for a charge of driving while
a license was revoked, the department shall not issue a new
license for an additional period of one year from the date the
person could otherwise have applied for a new license. Only
those violations which occurred within a period of five years
including and immediately preceding the date of the last
violation constitute prior violations within the meaning of this
section.
(C) One hundred dollars
of each fine imposed pursuant to this section must be placed by
the Comptroller General into a special restricted account to be
used by the Department of Public Safety for the Highway
Patrol."
SECTION 5. Section 56-1-748 of the 1976 Code, as last amended by Act 201 of 2008, is further amended to read:
"Section 56-1-748.
(A) No person issued a
restricted driver's license under the provisions of Section
56-1-170(B) 56-1-170, Section
56-1-320(A) 56-1-320, Section
56-1-740(B) 56-1-740, 56-1-745,
Section 56-1-746 (D) 56-1-746,
Section 56-5-750(G) 56-5-750,
Section 56-9-430(B) 56-9-430,
Section 56-10-260(B) 56-10-260,
Section 56-10-270(C) 56-10-270, or
Section 56-5-2951(H) 56-5-2951 shall
subsequently be eligible for issuance of a restricted driver's
license under these provisions.
(B) A person
who obtains a route restricted driver's license and who is
required to attend an Alcohol and Drug Safety Action Program or
a court ordered drug program as a condition of reinstatement of
the person's driving privileges may use the route restricted
driver's license to attend the Alcohol and Drug Safety Action
Program classes or court ordered drug program in addition to the
other permitted uses of the route restricted driver's
license."
SECTION 6. Section 56-1-1310 of the 1976 Code is repealed.
SECTION 7. Section 56-1-1320 of the 1976 Code is amended to read:
"Section 56-1-1320.
(A) A person with a South Carolina
driver's license, a person who had a South Carolina driver's
license at the time of the offense referenced below, or a person
exempted from the licensing requirements by Section 56-1-30, who
is or has been convicted of a first offense violation of
an ordinance of a municipality,
or a law of this State, that
prohibits a person from operating a vehicle while under the
influence of intoxicating liquor, drugs, or narcotics, including
Section Sections 56-5-2930 and
Section 56-5-2933, and whose license is not
presently suspended for any other reason, may apply to the
Department of Motor Vehicles to obtain a provisional driver's
license of a design to be determined by the department to
operate a motor vehicle. The person shall enter an Alcohol and
Drug Safety Action Program as provided for in
pursuant to Section 56-1-1330, shall furnish
proof of responsibility as provided for in Section
56-1-1350, and shall pay to the department a fee of one
hundred dollars for the provisional driver's license. The
provisional driver's license is not valid for more than six
months from the date of issue shown on the license. The
determination of whether or not a provisional driver's license
may be issued pursuant to the provisions of this article as well
as reviews of cancellations or suspensions under Sections
56-1-370 and 56-1-820 must be made by the director of the
department or his designee.
(B) Ninety-five dollars
of the collected fee must be credited to the State's
General Fund of the State for use of the
Department of Public Safety in the hiring, training, and
equipping of members of the South Carolina Highway Patrol and
Transportation Police and in the operations of the South
Carolina Highway Patrol and Transportation Police."
SECTION 8. Section 56-1-1350 of the 1976 Code is repealed.
SECTION 9. Section 56-5-2941 of the 1976 Code, as last amended by Act 285 of 2008, is further amended to read:
"Section 56-5-2941. (A)
Except as otherwise provided in this section, in
addition to the penalties required and authorized to be imposed
against a person violating the provisions of Section 56-5-2930,
56-5-2933, or 56-5-2945, or violating the provisions of another
law of any other another state that prohibits a person from
driving a motor vehicle while under the influence of alcohol or
other drugs,the The Department of Motor Vehicles
must shall require the
a person, if he is a subsequent offender
and who is a resident of this
State, and who is convicted of violating the
provisions of Section 56-5-2930, 56-5-2933, 56-5-2945, 56-5-2947
except if the conviction was for section 56-5-750, or a law of
another state that prohibits a person from driving a motor
vehicle while under the influence of alcohol or other drugs,
to have installed on any motor vehicle the person drives an
ignition interlock device designed to prevent driving of the
motor vehicle if the person has consumed alcoholic beverages.
This section does not apply to a person convicted of a first
offense violation of Section 56-5-2930 or 56-5-2933, unless the
person submitted to a breath test pursuant to Section 56-5-2950
and had an alcohol concentration of fifteen one hundredths of
one percent or more. The Department of Motor
Vehicles department may waive the requirements
of this section if it finds the department
determines that the offender person
has a medical condition that makes him the
person incapable of properly operating the installed device.
If the department grants a medical waiver, the department
shall suspend the person's driver's license for the length of
time that the person would have been required to hold an
ignition interlock restricted license. The department may
withdraw the waiver at any time that the department becomes
aware that the person's medical condition has improved to the
extent that the person has become capable of properly operating
an installed device. The department also shall require a person
who has enrolled in the Ignition Interlock Device Program in
lieu of the remainder of a driver's license suspension or denial
of the issuance of a driver's license or permit to have an
ignition interlock device installed on any motor vehicle the
person drives.
The length of time that an
interlock a device is required to be affixed to
a motor vehicle following the completion of a period of
license suspension imposed on the offender person is two years
for a second offense, three years for a third offense, and the
remainder of the offender's person's life for a fourth or
subsequent offense as set forth in Sections
56-1-286, 56-5-2945, 56-5-2947 except if the conviction was for
section 56-5-750, 56-5-2951, and 56-5-2990.
(B)
Notwithstanding the pleadings, for purposes of a second or
a subsequent offense, the specified length of time that
an interlock a device is required to be
affixed to a motor vehicle is based on the Department of Motor
Vehicle's records for offenses pursuant to Section
56-1-286, 56-5-2930, 56-5-2933, or
56-5-2945, 56-5-2947 except if the conviction was for section
56-5-750, 56-5-2950, or 56-5-2951.
(B)(C)
If a person who is a subsequent offender
and a resident of this State is convicted of violating
the provisions of a law of any
other another state that prohibits a person from
driving a motor vehicle while under the influence of alcohol or
other drugs, and, as a result of the conviction, the person is
subject to an ignition interlock device requirement in the other
state, the person is subject to the requirements of this section
for the length of time that would have been required for an
offense committed in South Carolina, or for the length of time
that is required by the other state, whichever is longer.
(C)(D)
If a person from another state becomes a resident
of South Carolina while subject to an ignition interlock device
requirement in another state, the person may only obtain a South
Carolina driver's license if the person enrolls in the South
Carolina ignition interlock device program
Ignition Interlock Device Program pursuant to this
section. The person is subject to the requirements of this
section for the length of time that would have been required for
an offense committed in South Carolina, or for the length of
time that is required by the other state, whichever is longer.
(D)(E)
The offender shall person
must be subject to an Ignition Interlock Device Point
System managed by the Department of Probation, Parole and Pardon
Services. An offender receiving A person
accumulating a total of:
(1)
two points or more, but less than three
points, will must have
their the length of time that the
interlock device is required extended by two
months.;
(2)
An offender receiving a total of
three points or more, but less than four points,
will must have their
the length of time that the interlock
device is required extended by four months, and
must shall submit to a substance abuse
assessment pursuant to Section 56-5-2990, and
shall successfully complete the plan of education and
treatment, or both, as recommended by the certified substance
abuse program. Should the individual
person not complete the recommended plan, or not make
progress toward completing the plan, the Department of Motor
Vehicles must shall suspend the
individual's driver's person's ignition
interlock restricted license until the plan is completed or
progress is being made toward completing the
plan.;
(3)
An offender receiving a total of
four points or more shall must
have their the person's ignition interlock
restricted license suspended for a period of one
year six months, and
shall submit to a substance abuse assessment pursuant to
Section 56-5-2990, and shall successfully complete
the plan of education and treatment, or both, as recommended by
the certified substance abuse program. Completion of
the plan is mandatory as a condition of reinstatement of the
person's driving privileges Should the person not
complete the recommended plan or not make progress toward
completing the plan, the Department of Motor Vehicles shall
leave the person's ignition interlock restricted license in
suspended status, or, if the license has already been reinstated
following the six-month suspension, shall resuspend the person's
ignition interlock restricted license until the plan is
completed or progress is being made toward completing the
plan. The Department of Alcohol and Other Drug Abuse
Services is responsible for notifying the Department of Motor
Vehicles of an individual's a person's
completion and compliance with education and treatment programs.
Upon reinstatement of driving privileges following the
six-month suspension, the Department of Probation, Parole and
Pardon Services shall reset the person's point total to zero
points, and the person shall complete the remaining period of
time on the ignition interlock device.
(E)(F)
The cost of the interlock device
must be borne by the offender person.
However, if the offender believes he
person is indigent and cannot afford the cost of the
ignition interlock device, the
offender person may submit an affidavit
of indigency to the Department of Probation, Parole and Pardon
Services for a determination of indigency as it pertains to the
cost of the ignition interlock device. The
affidavit of indigency form must be made publicly accessible on
the Department of Probation, Parole and Pardon Services'
Internet web site. If the Department of Probation, Parole and
Pardon Services determines that the offender
person is indigent as it pertains to the ignition
interlock device, it the Department
of Probation, Parole and Pardon Services may authorize
an interlock a device to be affixed to
the motor vehicle and the cost of the initial
installation and standard use of the ignition
interlock device to be paid for by the Ignition
Interlock Device Fund managed by the Department of Probation,
Parole and Pardon Services. Funds remitted to the Department
of Probation, Parole and Pardon Services for the Ignition
Interlock Device Fund also may be used by the Department of
Probation, Parole and Pardon Services to support the Ignition
Interlock Device Program. For purposes of this section, a
person is indigent if the person is financially unable to afford
the cost of the ignition interlock device. In making a
determination whether a person is indigent, all factors
concerning the person's financial conditions should be
considered including, but not limited to, income, debts, assets,
number of dependants dependents claimed
for tax purposes, living expenses, and family situation. A
presumption that the person is indigent is created if the
person's net family income is less than or equal to the poverty
guidelines established and revised annually by the United States
Department of Health and Human Services published in the Federal
Register. 'Net income' means gross income minus deductions
required by law. The determination of indigency is subject to
periodic review at the discretion of the Department of
Probation, Parole and Pardon Services.
(F)(G)
The ignition interlock service provider
must shall collect and remit monthly to
the Ignition Interlock Device Fund a fee as determined by
the Department of Probation, Parole and Pardon Services not to
exceed three hundred sixty thirty
dollars per year month for each
year month the person is required to
drive a vehicle with an ignition interlock
a device. Any A
ignition service provider
failing who fails to properly remit
funds to the Ignition Interlock Device Fund may be
decertified as an ignition interlock a
service provider by the Department of Probation, Parole and
Pardon Services. If a service provider is decertified for
failing to remit funds to the Ignition Interlock Device Fund,
the cost for removal and replacement of an ignition
interlock a device must be borne by the service
provider.
(G)(H)(1)
The offender must person
shall have the interlock device inspected
every sixty days to verify that the device is affixed to the
motor vehicle and properly operating, and to allow for the
preparation of an ignition interlock device inspection
report by the service provider indicating the
offender's person's alcohol content at
each attempt to start and running re-test
retest during each sixty-day period. Failure of the
person to have the interlock device inspected every sixty days
must result in one ignition interlock device point.
(2)
Only a service provider authorized by the
Department of Probation, Parole and Pardon Services to perform
inspections on ignition interlock devices may conduct
inspections. The service provider immediately
must shall report any
devices that fail inspection to the Department of Probation,
Parole and Pardon Services. The report must contain the
person's name of the offender, identify
the vehicle upon which the failed device is installed,
and the reason for the failed inspection,
and.
(3)
If the inspection report reflects that the
person has failed to complete a running retest, the person must
be assessed one ignition interlock device point.
(4)
The inspection report must indicate the
offender's person's alcohol content at
each attempt to start and running re-test
retest during each sixty-day period. Failure of
the offender to have the interlock device inspected every sixty
days will result in one ignition interlock device point. Upon
review of the ignition interlock device inspection report, if
the report reflects that the offender attempted to start the
motor vehicle with an alcohol concentration of two
one-hundredths of one percent or more, the offender is assessed
one-half interlock device point. Upon review of the interlock
device inspection report, if If the report
reflects that the offender person
violated a running re-test retest by
having an alcohol concentration of:
(a)
between two one-hundredths of one
percent or more and but less than
four one-hundredths of one percent, the offender
is person must be assessed one-half
ignition interlock device point.;
(b)
Upon review of the interlock device
inspection report, if the report reflects that the offender
person violated a running re-test retest by having an alcohol
concentration between four one-hundredths of one
percent or more and but less than
fifteen one-hundredths of one percent, the offender
is person must be assessed one ignition
interlock device point.; or
(c)
Upon review of the interlock device
inspection report, if the report reflects that the offender
person violated a running re-test retest by having an alcohol
concentration above fifteen one-hundredths of one
percent or more, the offender is
person must be assessed two ignition interlock
device points.
(5)
An individual A person may
appeal any less than four ignition
interlock device points received to an administrative hearing
officer with the Department of Probation, Parole and Pardon
Services through a process established by the Department of
Probation, Parole and Pardon Services. The administrative
hearing officer's decision on appeal shall be
is final and no appeal from such decision shall
be is allowed.
(H)(I)(1)
If a person's license is suspended due to the
accumulation of four or more ignition interlock device points,
the Department of Probation, Parole and Pardon Services must
provide a notice of assessment of ignition interlock points
which must advise the person of his right to request a contested
case hearing before the Office of Motor Vehicle Hearings. The
notice of assessment of ignition interlock points also must
advise the person that, if he does not request a contested case
hearing within thirty days of the issuance of the notice of
assessment of ignition interlock points, he waives his right to
the administrative hearing and the person's driver's license is
suspended pursuant to Section 56-5-2941(E).
(2)
The person may seek relief from the Department
of Probation, Parole and Pardon Services determination that a
person's license is suspended due to the accumulation of four or
more ignition interlock device points by filing a request for a
contested case hearing with the Office of Motor Vehicle Hearings
pursuant to the Administrative Procedures Act. The filing of
the request for a contested case hearing will stay the driver's
license suspension pending the outcome of the hearing. However,
the filing of the request for a contested case hearing will not
stay the requirements of the person having the ignition
interlock device.
(3)
At the contested case hearing:
(a)
the assessment of driver's license suspension
can be upheld;
(b)
the driver's license suspension can be
overturned, or any or all of the contested ignition interlock
points included in the device inspection report that results in
the contested suspension can be overturned, and the penalties as
specified pursuant to Section 56-5-2941(E) will then be imposed
accordingly.
(4) A contested case hearing
must be held after the request for the hearing is received by
the Office of Motor Vehicle Hearings. Nothing in this section
prohibits the introduction of evidence at the contested case
hearing on the issue of the accuracy of the ignition interlock
device. However, if the ignition interlock device is found to
not be in working order due to failure of regular maintenance
and upkeep by the person challenging the accumulation of
ignition interlock points pursuant to the requirement of the
ignition interlock program, such allegation cannot serve as a
basis to overturn point accumulations.
(5)
A written order must be issued by the Office of
Motor Vehicle Hearings to all parties either reversing or
upholding the assessment of ignition interlock points.
(6)
A contested case hearing is governed by the
Administrative Procedures Act, and a person has a right to
appeal the decision of the hearing officer pursuant to that act
to the Administrative Law Court in accordance with its appellate
rules. The filing of an appeal does not stay the ignition
interlock requirement.
(J)
Ten Five years from the date of
the person's last conviction driver's
license reinstatement and every five years thereafter a
fourth or subsequent offender whose license has been reinstated
pursuant to Section 56-1-385 may apply to the Department of
Probation, Parole and Pardon Services for removal of the
ignition interlock device and the removal of the restriction
from his the person's driver's license.
The Department of Probation, Parole and Pardon Services may, for
good cause shown, remove the device and remove the
restriction notify the Department of Motor Vehicles
that the person is eligible to have the restriction removed
from the offender's person's license.
(I)(K)(1)
Except as otherwise provided in this section, it is
unlawful for a person issued a driver's license with an
ignition interlock restriction who is subject to the
provisions of this section to drive a motor vehicle that is
not equipped with a properly operating, certified ignition
interlock device. A person who violates this section
must be punished in the manner provided by law
subsection:
(a)
for a first offense, is guilty of a misdemeanor,
and, upon conviction, must be fined not less than one thousand
dollars or imprisoned not more than one year. The person must
have the length of time that the ignition interlock device is
required extended by six months;
(b)
for a second offense, is guilty of a
misdemeanor, and, upon conviction, must be fined not less than
five thousand dollars or imprisoned not more than three years.
The person must have the length of time that the ignition
interlock device is required extended by one year; and
(c)
for a third or subsequent offense, is guilty of
a felony, and, upon conviction, must be fined not less than ten
thousand dollars or imprisoned not more than ten years. The
person must have the length of time that the ignition interlock
device is required extended by three years.
(2)
No portion of the minimum sentence imposed
pursuant to this subsection may be suspended.
(3)
Notwithstanding any other provision of law, a
first or second offense punishable pursuant to this subsection
may be tried in summary court.
(J)(L)(1)
An offender that A person
who is required in the course and scope of
his the person's employment to drive a
motor vehicle owned by the offender's
person's employer may drive his
the employer's motor vehicle without installation of an
ignition interlock device, provided that the
offender's person's use of the
employer's motor vehicle is solely for the employer's business
purposes. This subsection does not apply to an
offender a person who is self-employed or to
an offender a person who is employed by
a business owned in whole or in part by the
offender person or a member of the
offender's person's household or
immediate family unless during the defense of a criminal charge,
the court finds that the vehicle's ownership by the business
serves a legitimate business purpose and that titling and
registration of the vehicle by the business was not done to
circumvent the intent of this section.
(2)
Whenever the person operates the employer's
vehicle pursuant to this subsection, the person shall have with
the person a copy of the Department of Motor Vehicle's form
specified by Section 56-1-400(B).
(3)
This subsection will be construed in parallel
with the requirements of subsection 56-1-400(B). A waiver
issued pursuant to this subsection will be subject to the same
review and revocation as described in subsection
56-1-400(B).
(K)(M)
It is unlawful for a person to tamper with or
disable, or attempt to tamper with or disable, an ignition
interlock device installed on a motor vehicle pursuant to this
section. Obstructing or obscuring the camera lens of an
ignition interlock device constitutes tampering. A person
who violates this subsection is guilty of a misdemeanor and,
upon conviction, must be fined not more than five hundred
dollars or imprisoned not more than thirty days, or both.
(L)(N)
It is unlawful for a person to knowingly rent,
lease, or otherwise provide an offender a
person who is subject to this section with a motor vehicle
without a properly operating, certified ignition interlock
device. This subsection does not apply if the person began
the lease contract period for the motor vehicle prior to the
person's arrest for a first offense violation of Section
56-5-2930 or Section 56-5-2933. A person who violates this
subsection is guilty of a misdemeanor, and, upon
conviction, must be fined not more than five hundred dollars or
imprisoned not more than thirty days, or both.
(M)(O)
It is unlawful for an offender
a person who is subject to the provisions of this section
to solicit or request another person, or for a person to solicit
or request another person on behalf of an
offender a person who is subject to the provisions
of this section, to engage an ignition interlock device to
start a motor vehicle with a device installed pursuant to this
section. A person who violates this subsection is guilty of a
misdemeanor, and, upon conviction, must be fined not more
than five hundred dollars or imprisoned not more than thirty
days, or both.
(N)(P)
It is unlawful for another person to engage an
ignition interlock device to start a motor vehicle with a device
installed pursuant to this section. A person who violates this
subsection is guilty of a misdemeanor, and, upon
conviction, must be fined not more than five hundred dollars or
imprisoned not more than thirty days, or both.
(O)(Q)
Only ignition interlock devices certified by the
Department of Probation, Parole and Pardon Services may be used
to fulfill the requirements of this section.
(1)
The Department of Probation, Parole and Pardon Services
must shall certify whether a device
meets the accuracy requirements and specifications provided in
guidelines or regulations adopted by the National Highway
Traffic Safety Administration, as amended from time to time.
All devices certified to be used in South Carolina must be set
to prohibit the starting of a motor vehicle when an alcohol
concentration of two one-hundredths of one percent or more is
measured and all running re-tests
retests must record violations of an alcohol
concentration of two one-hundredths of one percent or more,
and must capture a photographic image of the driver as the
driver is operating the ignition interlock device. The
photographic images recorded by the ignition interlock device
may be used by the Department of Probation, Parole and Pardon
Services to aid in the Department of Probation, Parole and
Pardon Services' management of the Ignition Interlock Device
Program; however, neither the Department of Probation, Parole
and Pardon Services, the Department of Probation, Parole and
Pardon Services' employees, nor any other political subdivision
of this State may be held liable for any injury caused by a
driver or other person who operates a motor vehicle after the
use or attempted use of an ignition interlock device.
(2)
The Department of Probation, Parole and Pardon Services
shall maintain a current list of certified ignition
interlock devices and their manufacturers.
The list must be updated at least quarterly. If a particular
certified device fails to continue to meet federal requirements,
the device must be decertified, may not be used until it is
compliant with federal requirements, and must be replaced with a
device that meets federal requirements. The cost for removal
and replacement must be borne by the manufacturer of the
noncertified device.
(3)
Only ignition interlock installers certified by the
Department of Probation, Parole and Pardon Services may install
and service ignition interlock devices required pursuant to this
section. The Department of Probation, Parole and Pardon
Services shall maintain a current list of vendors that are
certified to install the devices.
(P)(R)
In addition to availability under the Freedom of
Information Act, any Department of Probation, Parole and Pardon
Services policy concerning ignition interlock devices must be
made publicly accessible on the Department of Probation, Parole
and Pardon Service's Services' Internet
web site. Information obtained by the Department of
Probation, Parole and Pardon Services and ignition interlock
service providers regarding a person's participation in the
Ignition Interlock Device Program is to be used for internal
purposes only and is not subject to the Freedom of Information
Act. A person participating in the Ignition Interlock Device
Program or the person's family member may request that the
Department of Probation, Parole and Pardon Services provide the
person or family member with information obtained by the
department and ignition interlock service providers. The
Department of Probation, Parole and Pardon Services may release
the information to the person or family member at the
department's discretion. The Department of Probation, Parole
and Pardon Services and ignition interlock service providers may
retain information regarding a person's participation in the
Ignition Interlock Device Program for a period not to exceed
eighteen months from the date of the person's completion of the
Ignition Interlock Device Program.
(Q)(S)
The Department of Probation, Parole and Pardon
Services shall develop policies including, but not limited to,
the certification, use, maintenance, and operation of ignition
interlock devices and the Ignition Interlock Device
Fund."
SECTION 10. Section 56-5-2942 of the 1976 Code, as last amended by Act 212 of 2012, is further amended to read:
"Section 56-5-2942.
(A) A person who is convicted of or
pleads guilty or nolo contendere to a second or subsequent
violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 must
have all motor vehicles owned by or registered to
him the person immobilized if the person
is a resident of this State, unless the vehicle has been
confiscated pursuant to Section 56-5-6240 or the person is a
holder of a valid ignition interlock restricted license.
(B) For purposes of
this section, 'immobilized' and 'immobilization' mean suspension
and surrender of the registration and motor vehicle license
plate.
(C) Upon receipt of a
conviction by the department from the court for a second or
subsequent violation of Section 56-5-2930, 56-5-2933, or
56-5-2945, the department must shall
determine all vehicles registered to the
convicted person, both solely and jointly, and
suspend all vehicles registered to the person, unless the
person is a holder of a valid ignition interlock restricted
license.
(D) Upon notification
by a court in this State or by any other
another state of a conviction for a second or subsequent
violation of Section 56-5-2930, 56-5-2933, or 56-5-2945, the
department must shall require the
person, unless the person is a holder of a valid ignition
interlock restricted license, convicted to
surrender all license plates and vehicle registrations subject
to immobilization pursuant to this section. The immobilization
is for a period of thirty days to take place during the driver's
license suspension pursuant to a conviction for a second or
subsequent violation of Section 56-5-2930, 56-5-2933, or
56-5-2945. The department must shall
maintain a record of all vehicles immobilized pursuant to this
section.
(E) An immobilized
motor vehicle must be released to the holder of a bona fide lien
on the motor vehicle when possession of the motor vehicle is
requested, as provided by law, by the lienholder for the purpose
of foreclosing on and satisfying the lien.
(F) An immobilized
motor vehicle may be released by the department without legal or
physical restraints to a person who has not been convicted of a
second or subsequent violation of Section 56-5-2930, 56-5-2933,
or 56-5-2945, if that person is a registered owner of the motor
vehicle or a member of the household of a registered owner. The
vehicle must be released if an affidavit is submitted by that
person to the department stating that:
(1)
he the person regularly drives the
motor vehicle subject to immobilization;
(2)
the immobilized motor vehicle is necessary to
his the person's employment,
transportation to an educational facility, or for the
performance of essential household duties;
(3)
no other motor vehicle is available for the person's use;
(4)
the person will not authorize the use of the motor vehicle
by any other person known by him the
person to have been convicted of a second or subsequent
violation of Section 56-5-2930, 56-5-2933, or 56-5-2945; or
(5)
the person will report immediately to a local law
enforcement agency any unauthorized use of the motor vehicle by
a person known by him the person to have
been convicted of a second or subsequent violation of Section
56-5-2930, 56-5-2933, or 56-5-2945.
(G) The department may
issue a determination permitting or denying the release of the
vehicle based on the affidavit submitted pursuant to subsection
(F). A person may seek relief from a department determination
immobilizing a motor vehicle or denying the release of the motor
vehicle by filing a request for a contested case hearing with
the Office of Motor Vehicle Hearings pursuant to the
Administrative Procedures Act and the rules of procedure for the
Office of Motor Vehicle Hearings.
(H) A person who drives
an immobilized motor vehicle except as provided in subsections
(E) and (F) is guilty of a misdemeanor, and, upon
conviction, must be fined not more than five hundred dollars or
imprisoned not more than thirty days.
(I) A person who fails
to surrender registrations and license plates pursuant to this
section is guilty of a misdemeanor, and, upon conviction,
must be fined not more than five hundred dollars or imprisoned
not more than thirty days.
(J) A fee of fifty
dollars must be paid to the department for each motor vehicle
that was suspended before any of the suspended registrations and
license plates may be registered or before the motor vehicle may
be released pursuant to subsection (F). This fee must be placed
by the Comptroller General into a special restricted interest
bearing account to be used by the Department of Motor Vehicles
to defray its the Department of Motor
Vehicle's expenses.
(K) For purposes of
this article, a conviction of or plea of nolo contendere to
Section 56-5-2933 is considered a prior offense of Section
56-5-2930."
SECTION 11. Section 56-5-2945 of the 1976 Code, as last amended by Act 201 of 2008, is further amended to read:
"Section 56-5-2945.
(A) A person who, while under the
influence of alcohol, drugs, or the combination of alcohol and
drugs, drives a motor vehicle and when driving a motor vehicle
does any act forbidden by law or neglects any duty imposed by
law in the driving of the motor vehicle, which act or neglect
proximately causes great bodily injury or death to
a another person other than
himself, is guilty of the offense of felony driving
under the influence, and, upon conviction, must be
punished:
(1)
by a mandatory fine of not less than five thousand one
hundred dollars nor more than ten thousand one hundred dollars
and mandatory imprisonment for not less than thirty days nor
more than fifteen years when great bodily injury results;
(2)
by a mandatory fine of not less than ten thousand one
hundred dollars nor more than twenty-five thousand one hundred
dollars and mandatory imprisonment for not less than one year
nor more than twenty-five years when death results.
A part of the mandatory sentences required
to be imposed by this section must not be suspended, and
probation must not be granted for any portion.
(B) As used in this
section, 'great bodily injury' means bodily injury which creates
a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function
of any bodily member or organ.
(C)(1) The
Department of Motor Vehicles must shall
suspend the driver's license of a person who is convicted
or who receives sentence upon a plea of guilty or nolo
contendere pursuant to this section for a
period to include a period of incarceration plus three years for
a conviction of Section 56-5-2945 when 'great bodily injury'
occurs and five years when a death occurs. This period of
incarceration shall must not include any portion of a suspended
sentence such as probation, parole, supervised furlough, or
community supervision. For suspension purposes of this
section, convictions arising out of a single incident
shall must run concurrently.
(2)
After the person is released from prison, the
person shall enroll in the Ignition Interlock Device Program
pursuant to Section 56-5-2941, end the suspension, and obtain an
ignition interlock restricted license pursuant to Section
56-1-400. The ignition interlock device is required to be
affixed to the motor vehicle for three years when 'great bodily
injury' results and five years when a death occurs.
(C)(D)
One hundred dollars of each fine imposed pursuant
to this section must be placed by the Comptroller General into a
special restricted account to be used by the Department of
Public Safety for the Highway Patrol."
SECTION 12. Section 56-5-2947 of the 1976 Code, as last amended by Act 201 of 2008, is further amended to read:
"Section 56-5-2947.
(A) A person eighteen years of age or
over older is guilty of child
endangerment when:
(1)
the person is in violation of
violates:
(a)
Section 56-5-750;
(b)
Section 56-5-2930;
(c)
Section 56-5-2933; or
(d)
Section 56-5-2945; and
(2)
the person has one or more passengers
under younger than sixteen years of age
in the motor vehicle when the violation occurs.
If more than one passenger
under younger than sixteen years of age
is in the vehicle when a violation of subsection
(A)(1) occurs, the person may be charged with only one
violation of this section.
(B) Upon
conviction, the person must be punished
by:
(1)
a fine of fined not more than
one-half of the maximum fine allowed for committing the
violation enumerated in subsection (A)(1), when
the person is fined for that offense;
(2)
a term of imprisonment of
imprisoned not more than one-half of the maximum term of
imprisonment allowed for committing the violation
enumerated listed in subsection (A)(1),
when the person is imprisoned for the offense; or
(3)
both a fine and imprisonment fined and
imprisoned as prescribed in items (1) and (2) when the
person is fined and imprisoned for the offense.
(C) No portion of the
penalty assessed under pursuant to
subsection (B) may be suspended or revoked and probation may not
be awarded.
(D)(1) In
addition to imposing the penalties for offenses
enumerated listed in subsection (A)(1)
and the penalties contained in subsection (B), the Department of
Motor Vehicles must shall suspend the
person's driver's license for sixty days upon conviction
under subsection (A)(1)(a). Upon conviction under subsection
(A)(1)(b) through (d), the Department of Motor Vehicles shall
suspend the person's driver's license.
(2)
Upon conviction under subsection (A)(1)(b)
through (d), the person shall enroll in the Ignition Interlock
Device Program pursuant to Section 56-5-2941, end the
suspension, and obtain an ignition interlock restricted license
pursuant to Section 56-1-400. The ignition interlock device is
required to be affixed to the motor vehicle for three
months.
(3)
Sections 56-1-1320 and 56-5-2990 as they relate to
enrollment in an alcohol and drug safety action program and to
the issuance of a provisional driver's license will not be
effective until the sixty-day suspension
ignition interlock restricted license period is
completed.
(E) A person may be
convicted under pursuant to this section
for child endangerment in addition to being convicted for an
offense enumerated listed in subsection
(A)(1).
(F) The court that has
jurisdiction over an offense enumerated
listed in subsection (A)(1) has jurisdiction over the
offense of child endangerment.
(G) A first offense
charge for a violation of this section may not be used as the
only evidence for taking a child into protective custody
pursuant to Sections 63-7-620(A) and 63-7-660."
SECTION 13. Section 56-5-2950 of the 1976 Code, as last amended by Act 201 of 2008, is further amended to read:
"Section 56-5-2950.
(A) A person who drives a motor
vehicle in this State is considered to have given consent to
chemical tests of his the person's
breath, blood, or urine for the purpose of determining the
presence of alcohol, or drugs, or
the combination of alcohol and drugs, if arrested for an
offense arising out of acts alleged to have been committed while
the person was driving a motor vehicle while under the influence
of alcohol, drugs, or a combination of alcohol and drugs. A
breath test must be administered at the direction of a law
enforcement officer who has arrested a person for driving a
motor vehicle in this State while under the influence of
alcohol, drugs, or a combination of alcohol and drugs. At the
direction of the arresting officer, the person first must be
offered a breath test to determine the person's alcohol
concentration. If the person is physically unable to provide an
acceptable breath sample because he the
person has an injured mouth, is unconscious or dead, or for
any other reason considered acceptable by the licensed medical
personnel, the arresting officer may request a blood sample to
be taken. If the officer has reasonable suspicion that the
person is under the influence of drugs other than alcohol, or is
under the influence of a combination of alcohol and drugs, the
officer may order that a urine sample be taken for testing. A
breath sample taken for testing must be collected within two
hours of the arrest. Any additional tests to collect other
samples must be collected within three hours of the arrest. The
breath test must be administered by a person trained and
certified by the South Carolina Criminal Justice Academy,
pursuant to SLED policies. Before the breath test is
administered, an eight one-hundredths of one percent simulator
test must be performed and the result must reflect a reading
between 0.076 percent and 0.084 percent. Blood and urine
samples must be obtained by physicians licensed by the State
Board of Medical Examiners, registered nurses licensed by the
State Board of Nursing, and other medical personnel trained to
obtain the samples in a licensed medical facility. Blood and
urine samples must be obtained and handled in accordance with
procedures approved by SLED.
(B) No tests may be
administered or samples obtained unless, upon activation of the
video recording equipment and prior to the commencement of the
testing procedure, the person has been given a written copy of
and verbally informed that:
(1)
he the person does not have to
take the test or give the samples, but that his
the person's privilege to drive must be suspended or
denied for at least six months with the option of ending the
suspension if the person enrolls in the Ignition Interlock
Device Program, if he the person
refuses to submit to the test, and that
his the person's refusal may be used
against him the person in court;
(2)
his the person's privilege to
drive must be suspended for at least one month with the
option of ending the suspension if the person enrolls in the
Ignition Interlock Device Program, if he
the person takes the test or gives the samples and has an
alcohol concentration of fifteen one-hundredths of one percent
or more;
(3)
he the person has the right to
have a qualified person of his the
person's own choosing conduct additional independent tests
at his the person's expense;
(4)
he the person has the right to
request an administrative a contested
case hearing within thirty days of the issuance of the
notice of suspension; and
(5)
if he the person does not request
an administrative a contested case
hearing or if his the person's
suspension is upheld at the administrative
contested case hearing, he must the
person shall enroll in an Alcohol and Drug Safety Action
Program.
(C) A hospital,
physician, qualified technician, chemist, or registered nurse
who obtains the samples or conducts the test or participates in
the process of obtaining the samples or conducting the test in
accordance with this section is not subject to a cause of action
for assault, battery, or another cause alleging that the drawing
of blood or taking samples at the request of the arrested person
or a law enforcement officer was wrongful. This release from
liability does not reduce the standard of medical care required
of the person obtaining the samples or conducting the test.
This qualified release also applies to the employer of the
person who conducts the test or obtains the samples.
(D) The person tested
or giving samples for testing may have a qualified person of
his the person's own choosing conduct
additional tests at his the person's
expense and must be notified in writing of that right. A
person's request or failure to request additional blood or urine
tests is not admissible against the person in the criminal
trial. The failure or inability of the person tested to obtain
additional tests does not preclude the admission of evidence
relating to the tests or samples obtained at the direction of
the law enforcement officer.
(E) The arresting
officer must shall provide affirmative
assistance to the person to contact a qualified person to
conduct and obtain additional tests. Affirmative assistance, at
a minimum, includes providing transportation for the person to
the nearest medical facility which performs blood tests to
determine a person's alcohol concentration. If the medical
facility obtains the blood sample but refuses or fails to test
the blood sample to determine the person's alcohol
concentration, SLED must shall test the
blood sample and provide the result to the person and to the
arresting officer. Failure to provide affirmative assistance
upon request to obtain additional tests bars the admissibility
of the breath test result in any a
judicial or administrative proceeding.
SLED must shall
administer the provisions of this subsection and
must shall make regulations necessary to
carry out its this subsection's
provisions. The costs of the tests administered at the
direction of the law enforcement officer must be paid from the
State's general fund of the state.
However, if the person is subsequently convicted of violating
Section 56-5-2930, 56-5-2933, or 56-5-2945, then, upon
conviction, the person must shall pay
twenty-five dollars for the costs of the tests. The twenty-five
dollars must be placed by the Comptroller General into a special
restricted account to be used by the State Law Enforcement
Division to offset the costs of administration of the breath
testing devices, breath testing site video program, and
toxicology laboratory.
(F) A qualified person
who obtains samples or administers the tests or assists in
obtaining samples or the administration of tests at the
direction of a law enforcement officer is released from civil
and criminal liability unless the obtaining of samples or tests
is performed in a negligent, reckless, or fraudulent manner. No
person may be required by the arresting officer, or by another
law enforcement officer, to obtain or take any sample of blood
or urine.
(G) In the criminal
prosecution for a violation of Section 56-5-2930, 56-5-2933, or
56-5-2945 the alcohol concentration at the time of the test, as
shown by chemical analysis of the person's breath or other body
fluids, gives rise to the following:
(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; or
(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.
The provisions of this section must not be
construed as limiting the introduction of any other evidence
bearing upon the question of whether or not the person was under
the influence of alcohol, drugs, or a combination of
them alcohol and drugs.
(H) A person who is
unconscious or otherwise in a condition rendering
him the person incapable of refusal is
considered to be informed and not to have withdrawn the consent
provided by subsection (A) of this section.
(I) A person required
to submit to tests by the arresting law enforcement officer must
be provided with a written report including the time of arrest,
the time of the tests, and the results of the tests before any
trial or other proceeding in which the results of the tests are
used as evidence. A person who obtains additional tests
must shall furnish a copy of the time,
method, and results of any tests such
tests to the officer before any a
trial, hearing, or other proceeding in which the person attempts
to use the results of the additional tests as evidence.
(J) Policies,
procedures, and regulations promulgated by SLED may be reviewed
by the trial judge or hearing officer on motion of either party.
The failure to follow any of these policies,
procedures, and regulations, or the provisions of this section,
shall result in the exclusion from evidence of any test results,
if the trial judge or hearing officer finds that this failure
materially affected the accuracy or reliability of the test
results or the fairness of the testing procedure and the court
trial judge or hearing officer rules specifically as to the
manner in which the failure materially affected the accuracy or
reliability of the test results or the fairness of the
procedure.
(K) If a state employee
charged with the maintenance of breath testing devices in this
State and the administration of breath testing policy is
required to testify at an administrative a
contested case hearing or court proceeding, the entity
employing the witness may charge a reasonable fee to the
defendant for these such services."
SECTION 14. Section 56-5-2951 of the 1976 Code, as last amended by Act 264 of 2012, is further amended to read:
"Section 56-5-2951.
(A) The Department of Motor Vehicles
must shall suspend the driver's license,
permit, or nonresident operating privilege of, or deny
the issuance of a license or permit to, a person who
drives a motor vehicle and refuses to submit to a test provided
for in Section 56-5-2950 or has an alcohol concentration of
fifteen one-hundredths of one percent or more. The arresting
officer must shall issue a notice of
suspension which is effective beginning on the date of the
alleged violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.
(B) Within thirty days
of the issuance of the notice of suspension, the person may:
(1)
obtain a temporary alcohol license by filing
with from the Department of Motor Vehicles
a form for this purpose. A one hundred dollar
fee must be assessed for obtaining a temporary alcohol license.
Twenty-five dollars of the fee must be distributed by the
Department of Motor Vehicles to the Department of Public Safety
for supplying and maintaining all necessary vehicle videotaping
equipment. The remaining seventy-five dollars must be placed by
the Comptroller General into a special restricted account to be
used by the Department of Motor Vehicles to defray
its the Department of Motor Vehicle's
expenses. The temporary alcohol license allows the person to
drive without any restrictive conditions pending the outcome of
the contested case hearing provided for in subsection (F) or the
final decision or disposition of the matter. If the suspension
is upheld at the contested case hearing, the temporary alcohol
license remains in effect until the Office of Motor Vehicle
Hearings issues the hearing officer's decision and the
Department of Motor Vehicles sends notice to the person that
he the person is eligible to receive a
restricted license pursuant to subsection (H); and
(2)
request a contested case hearing before the Office of
Motor Vehicle Hearings in accordance with its
the Office of Motor Vehicle Hearings' rules of procedure.
At the contested case hearing, if:
(a)
the suspension is upheld, the person's driver's license,
permit, or nonresident operating privilege must be suspended or
the person must be denied the issuance of a license or permit
for the remainder of the suspension period provided for in
subsection (I). Within thirty days of the issuance of the
notice that the suspension has been upheld, the person
must shall enroll in an Alcohol and Drug
Safety Action Program pursuant to Section 56-5-2990;
(b)
the suspension is overturned, the person must have
his the person's driver's license,
permit, or nonresident operating privilege reinstated.
The provisions of this subsection do not
affect the trial for a violation of Section 56-5-2930,
56-5-2933, or 56-5-2945.
(C) The period of
suspension provided for in subsection (I) begins on the day the
notice of suspension is issued, or at the expiration of any
other suspensions, and continues until the person applies for a
temporary alcohol license and requests a contested case hearing.
(D) If a person does
not request a contested case hearing, he the
person waives his the person's right
to the hearing, and his the person's
suspension must not be stayed but continues for the period
provided for in subsection (I).
(E) The notice of
suspension must advise the person:
(1)
of his the person's right
to obtain a temporary alcohol driver's license and to request a
contested case hearing before the Office of Motor Vehicle
Hearings.;
(2)
The notice of suspension also must advise the
person that, if he the person does not
request a contested case hearing within thirty days of the
issuance of the notice of suspension, he the
person waives his the person's right
to the administrative contested case
hearing, and the suspension continues for the period provided
for in subsection (I).; and
(3)
The notice of suspension also must advise the
person that, if the suspension is upheld at the contested
case hearing or if he the person does
not request a contested case hearing, he the
person must shall enroll in an
Alcohol and Drug Safety Action Program.
(F) A contested case
hearing must be held after the request for the hearing is
received by the Office of Motor Vehicle Hearings. The scope of
the hearing is limited to whether the person:
(1)
was lawfully arrested or detained;
(2)
was given a written copy of and verbally informed of the
rights enumerated in Section 56-5-2950;
(3)
refused to submit to a test pursuant to Section 56-5-2950;
or
(4)
consented to taking a test pursuant to Section 56-5-2950,
and the:
(a)
reported alcohol concentration at the time of testing was
fifteen one-hundredths of one percent or more;
(b)
individual who administered the test or took samples was
qualified pursuant to Section 56-5-2950;
(c)
tests administered and samples obtained were conducted
pursuant to Section 56-5-2950; and
(d)
machine was working properly.
Nothing in this section prohibits the
introduction of evidence at the contested case hearing on the
issue of the accuracy of the breath test result.
A written order must be issued to all
parties either reversing or upholding the suspension of the
person's license, permit, or nonresident's operating privilege,
or denying the issuance of a license or permit. If the
suspension is upheld, the person must receive credit for the
number of days his the person's license
was suspended before he the person
received a temporary alcohol license and requested the contested
case hearing.
The Department of Motor Vehicles and the
arresting officer shall have the burden of proof in contested
case hearings conducted pursuant to this section. If neither
the Department of Motor Vehicles nor the arresting officer
appears at the contested case hearing, the hearing officer shall
rescind the suspension of the person's license, permit, or
nonresident's operating privilege regardless of whether the
person requesting the contested case hearing or the person's
attorney appears at the contested case hearing.
(G) A contested case
hearing is governed by the Administrative Procedures Act, and a
person has a right to appeal the decision of the hearing officer
pursuant to that act to the Administrative Law Court in
accordance with its the Administrative Law
Court's appellate rules. The filing of an appeal stays the
suspension until a final decision is issued on appeal.
(H)(1) If the person
did not request a contested case hearing or the suspension
is upheld at the contested case hearing, the person
must shall enroll in an Alcohol and Drug
Safety Action Program pursuant to Section 56-5-2990, and
may apply for a restricted license if he the
person is employed or enrolled in a college or university.
The restricted license permits him the
person to drive only to and from work and
his the person's place of education and
in the course of his the person's
employment or education during the period of suspension. The
restricted license also permits him the
person to drive to and from the Alcohol Drug Safety Action
Program classes or to a court-ordered drug program. The
department may issue the restricted license only upon showing by
the individual person that
he the person is employed or enrolled in
a college or university, that he the
person lives further than one mile from his
the person's place of employment, place of education, or
location of his the person's Alcohol and
Drug Safety Action Program classes, or the location of
his the person's court-ordered drug
program, and that there is no adequate public transportation
between his the person's residence and
his the person's place of employment,
his the person's place of education, the
location of his the person's Alcohol and
Drug Safety Action Program classes, or the location of
his the person's court-ordered drug
program.
(2)
If the department issues a restricted license pursuant
to this subsection, it must the
department shall designate reasonable restrictions on the
times during which and routes on which the
individual person may drive a motor
vehicle. A change in the employment hours, place of employment,
status as a student, status of attendance of Alcohol and Drug
Safety Action Program classes, status of attendance of
his the person's court-ordered drug
program, or residence must be reported immediately to the
department by the licensee person.
(3)
The fee for a restricted license is one hundred dollars,
but no additional fee may be charged because of changes in the
place and hours of employment, education, or residence. Twenty
dollars of this fee must be deposited in the
state state's general fund, and eighty
dollars must be placed by the Comptroller General into a special
restricted account to be used by the Department of Motor
Vehicles to defray the expenses of the
Department of Motor Vehicles Vehicle's
expenses.
(4)
Driving a motor vehicle outside the time limits and route
imposed by a restricted license by the person issued
that license is a violation of Section 56-1-460.
(I)(1)
The Except as provided in subsection
(I)(3), the period of a driver's license, permit, or
nonresident operating privilege suspension for, or denial of
issuance of a license or permit to, an arrested person who has
no previous convictions for violating Section 56-5-2930,
56-5-2933, or 56-5-2945, or any other a
law of this State or another state that
prohibits a person from driving a motor vehicle while under the
influence of alcohol or another drug other
drugs within the ten years preceding a violation of this
section, and who has had no previous suspension imposed pursuant
to Section 56-5-2950 56-1-286,
or 56-5-2951, or 56-5-2990, within the
ten years preceding a violation of this section is:
(a)
six months for a person who refuses to submit to a test
pursuant to Section 56-5-2950; or
(b)
one month for a person who takes a test pursuant to
Section 56-5-2950 and has an alcohol concentration of fifteen
one-hundredths of one percent or more.
(2)
The period of a driver's license, permit, or nonresident
operating privilege suspension for, or denial of issuance of a
license or permit to, an arrested a
person who has been convicted previously for violating Section
56-5-2930, 56-5-2933, or 56-5-2945, or any
other another law of this State or another state
that prohibits a person from driving a motor vehicle while under
the influence of alcohol or another drug within the ten years
preceding a violation of this section, or who has had a previous
suspension imposed pursuant to Section
56-5-2950 56-1-286, or
56-5-2951, or 56-5-2990, within the ten years preceding a
violation of this section is:
(a)
for a second offense, nine months if he
the person refuses to submit to a test pursuant to
Section 56-5-2950, or two months if he
the person takes a test pursuant to Section 56-5-2950 and
has an alcohol concentration of fifteen one-hundredths of one
percent or more;
(b)
for a third offense, twelve months if he
the person refuses to submit to a test pursuant to
Section 56-5-2950, or three months if he
the person takes a test pursuant to Section 56-5-2950 and
has an alcohol concentration of fifteen one-hundredths of one
percent or more; and
(c)
for a fourth or subsequent offense, fifteen months if
he the person refuses to submit to a
test pursuant to Section 56-5-2950, or four months if
he the person takes a test pursuant to
Section 56-5-2950 and has an alcohol concentration of fifteen
one-hundredths of one percent or more.
(3)
In lieu of serving the remainder of a suspension
or denial of the issuance of a license or permit, a person may
enroll in the Ignition Interlock Device Program pursuant to
Section 56-5-2941, end the suspension or denial of the issuance
of a license or permit, and obtain an ignition interlock
restricted license pursuant to Section 56-1-400. The ignition
interlock device is required to be affixed to the motor vehicle
equal to the length of time remaining on the person's suspension
or denial of the issuance of a license or permit. If the length
of time remaining is less than three months, the ignition
interlock device is required to be affixed to the motor vehicle
for three months. Once a person has enrolled in the Ignition
Interlock Device Program and obtained an ignition interlock
restricted license, the person is subject to Section 56-5-2941
and cannot subsequently choose to serve the suspension.
(J) A person's driver's
license, permit, or nonresident operating privilege must be
restored when the person's period of suspension or ignition
interlock restricted license requirement
under pursuant to subsection (I) has
concluded, even if the person has not yet completed the Alcohol
and Drug Safety Action Program in which he is
enrolled. After the person's driving privilege is
restored, he must the person shall
continue the services of the Alcohol and Drug Safety Action
Program in which he is enrolled. If the person
withdraws from or in any way stops making satisfactory progress
toward the completion of the Alcohol and Drug Safety Action
Program, the person's license must be suspended until the
completion of the Alcohol and Drug Safety Action Program. A
person must shall be attending or have
completed an Alcohol and Drug Safety Action Program pursuant to
Section 56-5-2990 before his the
person's driving privilege can be restored at the conclusion
of the suspension period or ignition interlock restricted
license requirement.
(K) When a
nonresident's privilege to drive a motor vehicle in this State
has been suspended under pursuant to the
provisions of this section, the department must
shall give written notice of the action taken to the
motor vehicle administrator of the state of the person's
residence and of any state in which he the
person has a license or permit.
(L) The department
must shall not suspend the privilege to
drive of a person under the age of twenty-one pursuant to
Section 56-1-286, if the person's privilege to drive has
been suspended under pursuant to this
section arising from the same incident.
(M) A person whose
driver's license or permit is suspended pursuant to this section
is not required to file proof of financial responsibility.
(N) An insurer
may shall not increase premiums on, add
surcharges to, or cancel the automobile insurance of a person
charged with a violation of Section 56-1-286, 56-5-2930,
56-5-2933, or 56-5-2945, or
another a law of this
State another state that prohibits a person from
driving a motor vehicle while under the influence of alcohol or
another drug other drugs based solely on
the violation unless he the person is
convicted of the violation.
(O) The department
must shall administer the provisions of
this section and must promulgate regulations necessary
to carry out its provisions.
(P) If a person does
not request a contested case hearing within the thirty-day
period as authorized pursuant to this section, the person may
file with the department a form after enrolling in a certified
Alcohol and Drug Safety Action Program to apply for a restricted
license. The restricted license permits him to drive only to
and from work and his place of education and in the course of
his employment or education during the period of suspension.
The restricted license also permits him to drive to and from
Alcohol and Drug Safety Action Program classes or a
court-ordered drug program. The department may issue the
restricted license at any time following the suspension upon a
showing by the individual that he is employed or enrolled in a
college or university, that he lives further than one mile from
his place of employment, place of education, the location of his
Alcohol and Drug Safety Action Program classes, or the location
of his court-ordered drug program, and that there is no adequate
public transportation between his residence and his place of
employment, his place of education, the location of his Alcohol
and Drug Safety Action Program classes, or the location of his
court-ordered drug program. The department must designate
reasonable restrictions on the times during which and routes on
which the individual may drive a motor vehicle. A change in the
employment hours, place of employment, status as a student,
status of attendance of Alcohol and Drug Safety Action Program
classes, status of his court-ordered drug program, or residence
must be reported immediately to the department by the licensee.
The route restrictions, requirements, and fees imposed by the
department for the issuance of the restricted license issued
pursuant to this item are the same as those provided in this
section had the person requested a contested case hearing. A
restricted license is valid until the person successfully
completes a certified Alcohol and Drug Safety Action Program,
unless the person fails to complete or make satisfactory
progress to complete the program."
SECTION 15. Section 56-5-2990 of the 1976 Code is amended to read:
"Section 56-5-2990.
(A)(1) The Department of Motor Vehicles shall
suspend the driver's license of a person who is
convicted, receives sentence upon a plea of guilty or of
nolo contendere, or forfeits bail posted for a
violation of Section 56-5-2930, 56-5-2933, or for the
violation of another law or ordinance of this State or of a
municipality of this State a law of another
state that prohibits a person from driving a motor vehicle
while under the influence of intoxicating liquor, drugs,
or narcotics for six months for the first conviction, plea of
guilty or nolo contendre, or forfeiture of bail; one year for
the a second conviction, plea of guilty or of nolo contendere,
or forfeiture of bail; two years for the a third conviction,
plea of guilty or of nolo contendere, or forfeiture of bail; and
a permanent revocation of the driver's license for the a fourth
or subsequent conviction, plea of guilty or of nolo contendere,
or forfeiture of bail. Only those violations which occurred
within ten years including and immediately preceding the date of
the last violation shall constitute prior violations within the
meaning of this section. However, if the third conviction
occurs within five years from the date of the first offense,
then the department shall suspend the driver's license for four
years. A person whose license is revoked following conviction
for a fourth offense as provided in this section is forever
barred from being issued any license by the Department of Motor
Vehicles to operate a motor vehicle except as provided in
Section 56-1-385 alcohol or other drugs.
(2)
For a first offense:
(a)
If a person is found to have refused to submit
to a breath test pursuant to Section 56-5-2950 and is convicted
of 56-5-2930 or 56-5-2933, the person's driver's license must be
suspended six months. The person is not eligible for a
provisional license pursuant to Article 7, Chapter 1, Title 56.
In lieu of serving the remainder of the suspension, the person
may enroll in the Ignition Interlock Device Program pursuant to
Section 56-5-2941, end the suspension, and obtain an ignition
interlock restricted license pursuant to Section 56-1-400. The
ignition interlock device is required to be affixed to the motor
vehicle equal to the length of time remaining on the person's
suspension. If the length of time remaining is less than three
months, the ignition interlock device is required to be affixed
to the motor vehicle for three months. Once a person has
enrolled in the Ignition Interlock Device Program and obtained
an ignition interlock restricted license, the person is subject
to Section 56-5-2941 and cannot subsequently choose to serve the
suspension.
(b)
If a person submitted to a breath test pursuant
to Section 56-5-2950 and is convicted of having an alcohol
concentration of less than fifteen one hundredths of one
percent, the person's driver's license must be suspended six
months. The person is eligible for a provisional license
pursuant to Article 7, Chapter 1, Title 56. In lieu of serving
the remainder of the suspension, the person may enroll in the
Ignition Interlock Device Program pursuant to Section 56-5-2941,
end the suspension, and obtain an ignition interlock restricted
license pursuant to Section 56-1-400. The ignition interlock
device is required to be affixed to the motor vehicle equal to
the length of time remaining on the person's suspension. If the
length of time remaining is less than three months, the ignition
interlock device is required to be affixed to the motor vehicle
for three months. Once a person has enrolled in the Ignition
Interlock Device Program and obtained an ignition interlock
restricted license, the person is subject to Section 56-5-2941
and cannot subsequently choose to serve the suspension.
(c)
If a person submitted to a breath test pursuant
to Section 56-5-2950 and is convicted of having an alcohol
concentration of fifteen one hundredths of one percent or more,
the person shall enroll in the Ignition Interlock Device Program
pursuant to Section 56-5-2941, end the suspension, and obtain an
ignition interlock restricted license pursuant to Section
56-1-400. The ignition interlock device is required to be
affixed to the motor vehicle for six months. The person is not
eligible for a provisional license pursuant to Article 7,
Chapter 1, Title 56.
(3)
For a second offense, a person shall enroll in
the Ignition Interlock Device Program pursuant to Section
56-5-2941, end the suspension, and obtain an ignition interlock
restricted license pursuant to Section 56-1-400. The ignition
interlock device is required to be affixed to the motor vehicle
for two years.
(4)
For a third offense, a person shall enroll in
the Ignition Interlock Device Program pursuant to Section
56-5-2941, end the suspension, and obtain an ignition interlock
restricted license pursuant to Section 56-1-400. The ignition
interlock device is required to be affixed to the motor vehicle
for three years. If the third offense occurs within five years
from the date of the first offense, the ignition interlock
device is required to be affixed to the motor vehicle for four
years.
(5)
For a fourth or subsequent offense, a person
shall enroll in the Ignition Interlock Device Program pursuant
to Section 56-5-2941, end the suspension, and obtain an ignition
interlock restricted license pursuant to Section 56-1-400. The
ignition interlock device is required to be affixed to the motor
vehicle for life.
(6)
Except as provided in subsection (A)(4), only
those offenses which occurred within ten years, including and
immediately preceding the date of the last offense, shall
constitute prior offenses within the meaning of this
section.
(B) A person whose
license is suspended under the provisions
pursuant to this section, Section 56-1-286, Section
56-5-2945, or Section 56-5-2951 must be notified by the
department of the suspension and of the requirement to enroll in
and successfully complete an Alcohol and Drug Safety Action
Program certified by the Department of Alcohol and Other Drug
Abuse Services. A person who must complete an Alcohol and Drug
Safety Action Program as a condition of reinstatement of his
driving privileges or a court-ordered drug program may use the
route restricted or special restricted driver's license to
attend the Alcohol and Drug Safety Action Program classes or
court-ordered drug program in addition to the other permitted
uses of a route restricted driver's license or a special
restricted driver's license. An assessment of the extent and
nature of the alcohol and drug abuse problem, if any, of the
applicant person must be prepared and a
plan of education or treatment, or both, must be developed for
the applicant person. Entry into and
successful completion of the services, if the services are
necessary, recommended in the plan of education or treatment, or
both, developed for the applicant person
is a mandatory requirement of the issuance of an ignition
interlock restricted license and restoration of driving
privileges to the applicant person whose
license is suspended pursuant to this section. The Alcohol and
Drug Safety Action Program shall determine if the
applicant person has successfully
completed the services. Alcohol and Drug Safety Action Programs
shall meet at least once a month. The person whose license is
suspended must shall attend the first
Alcohol and Drug Safety Action Program available after the date
of enrollment.
(C) The Department of
Alcohol and Other Drug Abuse Services shall determine the cost
of services provided by each certified Alcohol and Drug Safety
Action Program. Each applicant person
shall bear the cost of services recommended in the
applicant's person's plan of education
or treatment. The cost may not exceed five hundred dollars for
education services, two thousand dollars for treatment services,
and two thousand five hundred dollars in total for all services.
No applicant person may be denied
services due to an inability to pay. Inability to pay for
services may not be used as a factor in determining if the
applicant person has successfully
completed services. An applicant A
person who is unable to pay for services shall perform fifty
hours of community service as arranged by the Alcohol and Drug
Safety Action Program, which may use the completion of this
community service as a factor in determining if the
applicant person has successfully
completed services. The Department of Alcohol and Other Drug
Abuse Services will shall report
annually to the House Ways and Means Committee and Senate
Finance Committee on the number of first and multiple offenders
completing the Alcohol and Drug Safety Action Program, the
amount of fees collected and expenses incurred by each Alcohol
and Drug Safety Action Program, and the number of community
service hours performed in lieu of payment.
(D) If the
applicant person has not successfully
completed the services as directed by the Alcohol and Drug
Safety Action Program within one year of enrollment, a hearing
must be provided by the Alcohol and Drug Safety Action Program
whose decision is appealable to the Department of Alcohol and
Other Drug Abuse Services. If the applicant
person is unsuccessful in the Alcohol and Drug Safety
Action Program, the Department of Motor Vehicles may
restore the privilege to drive a motor vehicle
waive the successful completion of the program as a mandatory
requirement of the issuance of an ignition interlock restricted
license upon the recommendation of the Medical Advisory
Board as utilized by the department
Department of Motor Vehicles, if it
the Medical Advisory Board determines public safety and
welfare of the petitioner person may not
be endangered.
(E) The Department
of Motor Vehicles and the Department of Alcohol and Other Drug
Abuse Services shall develop procedures necessary for the
communication of information pertaining to relicensing, or
otherwise. These procedures must be consistent with the
confidentiality laws of the State and the United States. If
the drivers a person's driver's license
of any a person is suspended by
authority of pursuant to this section,
no an insurance company
may shall not refuse to issue insurance
to cover the remaining members of his the
person's family, but the insurance company is not liable for
any actions of the person whose license has been suspended or
who has voluntarily turned his the
person's license in to the Department of Motor Vehicles.
(F) Except as provided
for in Section 56-1-365(D) and (E), the driver's license
suspension periods under this section begin on the date the
person is convicted, receives sentence upon a plea of guilty or
of nolo contendere, or forfeits bail posted for the a
violation of Section 56-5-2930, 56-5-2933, or for the violation
of any other a law of this State or ordinance of a county
or municipality of this State that prohibits a person from
operating a motor vehicle while under the influence of
intoxicating liquor, or narcotics; however, a person is not
prohibited from filing a notice of appeal and receiving a
certificate which entitles him to operate a motor vehicle for a
period of sixty days after the conviction, plea of guilty or
nolo contendere, or bail forfeiture pursuant to Section
56-1-365(F)."
SECTION 16. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 17. This act takes effect on October 1, 2014. /
Renumber sections to conform.
Amend title to conform.