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Current Status Bill Number:View additional legislative information at the LPITS web site.4919 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:20020319 Primary Sponsor:Gilham All Sponsors:Gilham, Allison, Barfield, Davenport, Emory, Freeman, Frye, Haskins, Keegan, Koon, J.M. Neal, Neilson, Riser, Rivers, Rodgers, D.C. Smith, Snow, Stille, Stuart, Townsend and Vaughn Drafted Document Number:l:\council\bills\swb\5170cm02.doc Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:DUI; defendant no longer afforded jury trial, alcohol concentration limit lowered to .08%; provisions regarding chemical, simulator and breath tests History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 20020319 Introduced, read first time, 25 HJ referred to Committee Versions of This Bill
TO AMEND SECTION 56-5-2935, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE RIGHT TO A JURY TRIAL AFFORDED TO A PERSON WHO IS CHARGED WITH OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL, DRUGS, OR A COMBINATION OF BOTH, DRIVING WITH AN UNLAWFUL ALCOHOL CONCENTRATION, OR CAUSING GREAT BODILY INJURY OR DEATH BY OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL, DRUGS, OR A COMBINATION OF BOTH, SO AS TO DELETE THE PROVISION THAT AFFORDS A JURY TRIAL TO A PERSON CHARGED WITH OPERATING A MOTOR VEHICLE WITH AN UNLAWFUL ALCOHOL CONCENTRATION; TO AMEND SECTION 56-5-2940, AS AMENDED, RELATING TO THE PENALTIES FOR A VIOLATION OF CERTAIN ALCOHOL RELATED MOTOR VEHICLE OFFENSES, SO AS TO DELETE OPERATING A MOTOR VEHICLE WITH AN UNLAWFUL ALCOHOL CONCENTRATION FROM THE LIST OF OFFENSES COVERED BY THIS PROVISION; TO AMEND SECTION 56-5-2950, AS AMENDED, RELATING TO A MOTOR VEHICLE DRIVER'S IMPLIED CONSENT TO HAVE HIS BREATH, BLOOD, OR URINE TESTED FOR THE PURPOSE OF DETERMINING THE PRESENCE OF ALCOHOL OR DRUGS OR A COMBINATION OF BOTH, SO AS TO PROVIDE THAT IF A DRIVER HAS AN ALCOHOL CONCENTRATION OF EIGHT ONE-HUNDREDTHS OF ONE PERCENT OR MORE, THEN A DRIVER IS NOT REQUIRED TO TAKE ADDITIONAL CHEMICAL TESTS, AND THE DRIVER IS GUILTY OF DRIVING UNDER THE INFLUENCE OF ALCOHOL, TO REVISE THE ALCOHOL CONCENTRATIONS THAT MUST BE REGISTERED BY A SIMULATOR TEST BEFORE A BREATH TEST IS ADMINISTERED, TO DELETE THE PROVISIONS RELATING TO VARIOUS LEVELS OF ALCOHOL CONCENTRATION THAT RESULT IN CERTAIN PRESUMPTIONS, INFERENCES, AND GUILT REGARDING WHETHER A PERSON HAS VIOLATED A PROVISION THAT MAKES DRIVING UNDER THE INFLUENCE OF ALCOHOL, DRUGS, OR A COMBINATION OF BOTH ILLEGAL, AND TO DELETE REFERENCES TO THE PROVISION THAT MAKES IT ILLEGAL TO OPERATE A MOTOR VEHICLE WITH AN UNLAWFUL ALCOHOL CONCENTRATION; TO AMEND SECTION 56-5-2951, AS AMENDED, RELATING TO THE SUSPENSION OF A PERSON'S DRIVER'S LICENSE FOR HIS REFUSAL TO SUBMIT TO A TEST TO DETERMINE HIS LEVEL OF ALCOHOL CONCENTRATION, SO AS TO DELETE REFERENCES TO THE PROVISION THAT MAKES IT ILLEGAL TO OPERATE A MOTOR VEHICLE WITH AN UNLAWFUL ALCOHOL CONCENTRATION; TO REPEAL SECTION 56-5-2933; AND TO DIRECT THE CODE COMMISSIONER TO DELETE ALL REFERENCES TO SECTION 56-5-2933 WHEREVER IT APPEARS IN THE CODE OF LAWS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 56-5-2935 of the 1976 Code, as added by Act 390 of 2000, is further amended to read:
"Section 56-5-2935. Notwithstanding any other provision of law, a person charged with a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 who is being tried in any court of competent jurisdiction in this State must have the right of trial by jury. A person charged with one or more of these offenses shall enjoy the right to a speedy and public trial by an impartial jury, to be fully informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses, documents, or both, and the right to be fully heard in his defense by himself or by his counsel or, by both."
SECTION 2. Section 56-5-2940 of the 1976 Code, as last amended by Act 390 of 2000, is further amended to read:
"Section 56-5-2940. A person who violates a provision of Section 56-5-2930 or 56-5-2933, upon conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail must be punished:
(1) by a fine of three hundred dollars or imprisonment for not less than forty-eight hours nor more than thirty days, for the first offense; however, in lieu of the forty-eight hour minimum imprisonment, the court may provide for forty-eight hours of public service employment. The minimum forty-eight hour imprisonment or public service employment must be served at a time when the person is off from work and does not interfere with his regular employment under terms and conditions as the court considers proper. However, the court may not compel an offender to perform public service employment in lieu of the minimum sentence.
(2) by a fine of not less than two thousand dollars nor more than five thousand dollars and imprisonment for not less than forty-eight hours nor more than one year for the second offense. However, the fine imposed by this item may not be suspended in an amount less than one thousand dollars. In lieu of service of imprisonment, the court may require that the individual complete an appropriate term of public service employment of not less than ten days upon terms and conditions the court considers proper.
(3) by a fine of not less than three thousand five hundred dollars nor more than six thousand dollars and imprisonment for not less than sixty days nor more than three years for the third offense.
(4) by imprisonment for not less than one year nor more than five years for a fourth offense or subsequent offense.
No part of the minimum sentences provided in this section must be suspended. The court may provide instead of service other sentences provided in this section. For a third or subsequent offense or for a violation of Section 56-5-2945 for great bodily injury, the service of the minimum sentence is mandatory. However, the judge may provide for the sentence to be served upon terms and conditions as he considers proper including, but not limited to, weekend service or nighttime service in any fashion he considers necessary.
The fine for a first offense may not be suspended. The court is prohibited from suspending a monetary fine below that of the next preceding minimum monetary fine.
For the purposes of this chapter any conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail for the violation of any law or ordinance of this or any other state or any municipality of this or any other state that prohibits any person from operating a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics shall constitute a prior offense for the purpose of any prosecution for any subsequent violation hereof. Only those violations which occurred within a period of ten years including and immediately preceding the date of the last violation shall constitute prior violations within the meaning of this section.
Upon imposition of a sentence of public service, the defendant may apply to the court to be allowed to perform his public service in his county of residence if he has been sentenced to public service in a county where he does not reside."
SECTION 3. Section 56-5-2950 of the 1976 Code, as last amended by Act 390 of 2000, 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 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 them. 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 them. 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 has an injured mouth or 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 grounds to believe that the person is under the influence of drugs other than alcohol, the officer may order that a urine sample be taken for testing. If the alcohol concentration is ten eight one-hundredths of one percent or above, the officer may not require additional tests of the person as provided in this chapter. The breath test must be administered by a person trained and certified by the department, pursuant to SLED policies. The arresting officer may administer the tests if the person's conduct during the twenty-minute pre-test waiting period is videotaped pursuant to Section 56-5-2953(A)(2)(d). Before the breath test is administered, a ten an eight one-hundredths of one percent simulator test must be performed and the result must reflect a reading between 0.095 0.075 percent and 0.105 0.085 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.
No tests may be administered or samples obtained unless the person has been informed in writing that:
(1) he does not have to take the test or give the samples but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court;
(2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one-hundredths of one percent or more;
(3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense;
(4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and
(5) he must enroll in an Alcohol and Drug Safety Action Program within thirty days of the issuance of the notice of suspension.
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 contending 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.
The person tested or giving samples for testing may have a qualified person of his own choosing conduct additional tests at his 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.
The arresting officer must 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 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 sample to determine the person's alcohol concentration, SLED must 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 judicial or administrative proceeding.
SLED shall administer the provisions of this subsection and shall make regulations necessary to carry out its provisions. The costs of the tests administered at the direction of the law enforcement officer must be paid from the general fund of the State.
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.
(b) In the criminal prosecution for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 relating to driving a vehicle under the influence of alcohol, drugs, or a combination of them, if 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: is eight one-hundredths of one percent or more, the person is guilty of driving under the influence of alcohol.
(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 ten one-hundredths of one percent, that fact does not give rise to any inference that the person was or was not under the influence of alcohol, but that fact may be considered with other evidence in determining the guilt or innocence of the person.
(3) If the alcohol concentration was at that time ten one-hundredths of one percent or more, it may be inferred that the person was under the influence of alcohol.
(4) If the alcohol concentration was at that time ten one-hundredths of one percent or more and the original testing of the person's breath or collection of other bodily fluids was performed within two hours of the time of arrest, the person has violated Section 56-5-2933.
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.
(c) 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 by subsection (a) of this section.
(d) 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 furnish a copy of the time, method, and results of any test 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."
SECTION 4. Section 56-5-2951 of the 1976 Code, as last amended by Act 390 of 2000, is further amended to read:
"Section 56-5-2951. (A) The Department of Public Safety 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 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) If the test registers an alcohol concentration of ten eight one-hundredths of one percent or more, the person, within thirty days of the issuance of the notice of suspension, must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990.
(C) If the person does not enroll in an Alcohol and Drug Safety Action Program within thirty days, the suspension remains in effect, a temporary alcohol restricted license must not be issued, and an administrative hearing may not be requested. If the person drives during the period of suspension without a temporary alcohol restricted license, the person must be penalized for driving while his license is suspended pursuant to Section 56-1-460.
(D) Within thirty days of the issuance of the notice of suspension the person may:
(1) obtain a temporary alcohol restricted license by filing with the department a form after enrolling in an Alcohol and Drug Safety Action Program. A one hundred dollar fee must be assessed for obtaining a temporary alcohol restricted license. Twenty-five dollars of the fee must be retained by the department 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 to defray the expenses of the Division of Motor Vehicles. The temporary alcohol restricted license allows the person to drive without any restrictive conditions pending the outcome of the administrative hearing provided for in subsection (H) or the final decision or disposition of the matter. If the suspension is upheld at the administrative hearing, the temporary alcohol restricted license shall remain in effect until the department issues the hearing officer's decision and sends notice to the person that he is eligible to receive a special restricted license pursuant to subsection (J); and
(2) request an administrative hearing.
At the administrative 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 (K);
(b) the suspension is overturned, the person shall have his driver's license, permit, or nonresident operating privilege reinstated and is not required to complete the Alcohol and Drug Safety Action Program in which he is enrolled. Any costs paid by the person to the certified Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 must be refunded.
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.
(E) The period of suspension provided for in subsection (K) 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 restricted license and requests an administrative hearing.
(F) If a person does not request an administrative hearing, he shall have waived his right to the hearing and his suspension must not be stayed but continues for the period provided for in subsection (K).
(G) The notice of suspension shall advise the person of the requirement to enroll in an Alcohol and Drug Safety Action Program and of his right to obtain a temporary alcohol restricted driver's license and request an administrative hearing. The notice of suspension also shall advise the person that, if he does not request an administrative hearing within thirty days of the issuance of the notice of suspension, he shall have waived his right to the administrative hearing, and the suspension continues for the period provided for in subsection (K).
(H) An administrative hearing must be held within thirty days after the request for the hearing is received by the department. If the department does not hold the hearing within thirty days, a written order must be issued by the department within thirty days. The order must set forth the reasons why the hearing was not held within thirty days, and a new hearing must be scheduled. If the department does not issue a written order within thirty days or fails within thirty days to notify the defendant of a new hearing, the person shall have his driver's license, permit, or nonresident operating privilege reinstated. The scope of the hearing must be limited to whether the person:
(1) was lawfully arrested or detained;
(2) was advised in writing 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) the machine was working properly.
Nothing in this section prohibits the introduction of evidence at the administrative hearing on the issue of the accuracy of the breath test result.
A written order must be issued to the person upholding the suspension of the person's license, permit, or nonresident's operating privilege, or denying the issuance of a license or permit within thirty days after the conclusion of the administrative hearing. If the suspension is upheld, the person must receive credit for the number of days his license was suspended before he received a temporary alcohol restricted license and requested the administrative hearing.
(I) An administrative hearing is a contested proceeding under the Administrative Procedures Act, and a person has a right to judicial review pursuant to that act. The filing of a petition for review shall stay the suspension until a final decision is issued.
(J)(1) If the suspension is upheld at the administrative hearing, the person may apply for a special restricted driver's license if he is employed or enrolled in a college or university. The special restricted license shall permit 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 department may issue the special restricted driver's license only upon 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 or education, and that there is no adequate public transportation between his residence and his place of employment or his place of education.
(2) If the department issues a special restricted driver's license, it shall designate reasonable restrictions on the times during which and routes on which the individual may operate a motor vehicle. A change in the employment hours, place of employment, status as a student, or residence must be reported immediately to the department by the licensee.
(3) The fee for a special restricted driver's license is one hundred dollars, but no additional fee is due because of changes in the place and hours of employment, education, or residence. Twenty dollars of this fee must be deposited in the state general fund and eighty dollars must be placed by the Comptroller General into a special restricted account to be used by the department to defray the expenses of the Division of Motor Vehicles.
(4) The operation of a motor vehicle outside the time limits and route imposed by a special restricted license by the person issued that license is a violation of Section 56-1-460.
(K)(1) 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 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, and who has had no previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:
(a) ninety days for a person who refuses to submit to a test pursuant to Section 56-5-2950; or
(b) thirty days 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 person who has been convicted previously for violating Section 56-5-2930, 56-5-2933, or 56-5-2945 or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or any other 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 or 56-5-2951 within the ten years preceding a violation of this section is one hundred eighty days if he refuses to submit to a test pursuant to Section 56-5-2950 or sixty days if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.
(L) A person's driver's license, permit, or nonresident operating privilege must be restored when the person's period of suspension under subsection (K) 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 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 shall be suspended until the completion of the Alcohol and Drug Safety Action Program. A person must be attending or have completed an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 before his driving privilege can be restored at the conclusion of the suspension period.
(M) When a nonresident's privilege to drive a motor vehicle in this State has been suspended under the provisions of this section, the department must 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.
(N) The department 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 this section arising from the same incident.
(O) A person whose driver's license or permit is suspended pursuant to this section is not required to file proof of financial responsibility.
(P) An insurer may not increase premiums on or add surcharges to 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 any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or any other drug unless he is convicted of the violation.
(Q) The department shall administer the provisions of this section and shall promulgate regulations necessary to carry out its provisions.
(R) If a person does not request an administrative hearing within the ten-day period as authorized pursuant to this section, the person may file with the department a form after enrolling in an approved Alcohol and Drug Safety Action Program to apply for a special restricted driver's license. The department may issue the special restricted driver's 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 or education, and that there is no adequate public transportation between his residence and his place of employment or his place of education. The department shall designate reasonable restrictions on the times during which and routes on which the individual may operate a motor vehicle. A change in the employment hours, place of employment, status as a student, 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 special restricted driver's license issued pursuant to this item are the same as those provided in this section had the person requested an administrative hearing. A special restricted driver's license is valid until the person successfully completes an approved Alcohol and Drug Safety Action Program, unless the person fails to complete or make satisfactory progress to complete the program."
SECTION 5. Section 56-5-2933 of the 1976 Code is repealed.
SECTION 6. The Code Commissioner is directed to delete all references to Section 56-5-2933 wherever it appears in the Code of Laws.
SECTION 7. This act takes effect upon approval by the Governor.
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