Senator Massey proposes the following amendment (SR-3924.CEM0039S):

Amend the bill, as and if amended, by adding appropriately numbered SECTIONS to read:

SECTION X.A. Article 23, Chapter 5, Title 56 of the S.C. Code is amended by adding:

 Section 56-5-2937. (A) It is unlawful for a person to drive a motor vehicle within this State with the presence of five or more nanograms per milliliter of delta-9 tetrahydrocannabinol or tetrahydrocannabinol analogue in his blood.
 (B) If a law enforcement officer has reasonable suspicion that a person who was driving a motor vehicle within this State with the presence of tetrahydrocannabinol or tetrahydrocannabinol analogue in his body, the law enforcement officer may request a blood sample pursuant to Section 56-5-2950(A)(2). The remaining provisions of Section 56-5-2950 related to blood testing apply to blood tests requested and administered pursuant to this section.
 (C)(1) A person who violates the provisions of this section is guilty of the offense of driving with an unlawful tetrahydrocannabinol concentration and, upon conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail must be punished as follows:
   (a) for a first offense, by a fine of four hundred dollars, which may not be suspended, or imprisonment for not less than forty-eight hours nor more than thirty days, or both. 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 not working and does not interfere with his regular employment under terms and conditions the court considers proper. However, the court may not compel an offender to perform public service employment in lieu of the minimum forty-eight hour sentence. Notwithstanding the provisions of Sections 22-3-540, 22-3-545, and 22-3-550, a first offense charged for this item may be tried in magistrates court;
   (b) for a second offense, by a fine of not less than two thousand one hundred dollars nor more than five thousand one hundred dollars, and imprisonment for not less than five days nor more than one year, or both. However, the fine imposed by this item must not be suspended in an amount less than one thousand one hundred dollars.; or
   (c) for a third or subsequent offense, by imprisonment for not less than one year nor more than five years.
 (2) The provisions contained in this article related to ignition interlock devices and the Ignition Interlock Device program do not apply to a conviction of this section.
 (D) For the purposes of this section a conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail for the violation of a law or ordinance of this or another state or a municipality of this or another state that prohibits a person from driving a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics, including, but not limited to, Section 56-5-2930, Section 56-5-2933, or prohibits a person from driving a motor vehicle with an unlawful tetrahydrocannabinol concentration, including, but not limited to, this section, constitutes a prior offense of this section. Only those violations which occurred within a period of ten years including and immediately preceding the date of the last violation constitute prior violations within the meaning of this section.
 (E) 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.
 (F) Two 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.
 (G) 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 State Law Enforcement Division to offset the costs of administration of the bodily fluid tests.
 (H) A person convicted of violating this section, whether for a first offense or subsequent offense, must enroll in and successfully complete an Alcohol and Drug Safety Action Program certified by the Office of Substance Use Services. An assessment of the extent and nature of the alcohol and drug abuse problem of the applicant must be prepared and a plan of education or treatment, or both, must be developed for the applicant. The Alcohol and Drug Safety Action Program shall determine if the applicant successfully has completed the services. The applicant must attend the first Alcohol and Drug Safety Action Program available after the date of enrollment. The Office of Substance Use Services shall determine the cost of services provided by each certified Alcohol and Drug Safety Action Program. Each applicant shall bear the cost of services recommended in the applicant'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. An applicant may not 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 successfully has completed services. An applicant 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 successfully has completed services. The court must be notified whether an offender failed to enroll in a certified program within thirty days or failed to participate in the plan of education or treatment. The court may hold the individual in contempt of court if the individual cannot show cause as to why no enrollment occurred within the mandated thirty days or why no progress has been made on the plan of education or treatment.
 (I) A person charged with a violation of Section 56-5-2930 may be prosecuted pursuant to this section if the original testing of the person's blood was performed pursuant to subsection (B). A person may not be prosecuted for both a violation of Section 56-5-2930 and a violation of this section for the same incident. A person who violates the provisions of this section is entitled to a jury trial and is afforded the right to challenge certain factors including, but not limited to:
  (1) whether or not the person was lawfully arrested or detained;
  (2) the period of time between arrest and testing;
  (3) whether the person was given a written copy of and verbally informed of the rights pursuant to subsection (B) and enumerated in Section 56-5-2950;
  (4) whether the person consented to taking a test pursuant to subsection (B), and whether the:
   (a) presence of five or more nanograms per milliliter of delta-9 tetrahydrocannabinol or tetrahydrocannabinol analogue was detected by the test;
   (b) individual who took blood samples was qualified; and
   (c) tests administered and samples obtained were conducted pursuant to subsection (B) and Section 56-5-2950 and regulations adopted pursuant to Section 56-5-2951 and Section 56-5-2953.
 (J)(1) Nothing contained in this section prohibits the introduction of:
   (a) the results of any additional tests of the person's blood;
   (b) any evidence that may corroborate or question the validity of the blood test result including, but not limited to, evidence that the person did not consume delta-9 tetrahydrocannabinol or tetrahydrocannabinol analogue.
   (c) a video recording of the person's conduct at the incident site and the blood testing site which is subject to redaction under the South Carolina Rules of Evidence; or
   (d) any other evidence of the state of a person's faculties to drive which would call into question the results of a blood test.
  (2) At trial, a person charged with a violation of this section is allowed to present evidence relating to the factors enumerated above and the totality of the evidence produced at trial may be used by the jury to determine guilt or innocence. A person charged with a violation of this section must be given notice of intent to prosecute under the provisions of this section at least thirty calendar days before his trial date.
 (K) For the purpose of this section, any offense carrying a penalty of imprisonment of ninety days or less may be tried in magistrates court.
 (L)(1) The Department of Motor Vehicles 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 subsection (B) or had five or more nanograms per milliliter of delta-9 tetrahydrocannabinol or tetrahydrocannabinol analogue was detected in a blood test. The arresting officer shall issue a notice of suspension which is effective beginning on the date of the alleged violation of this section and the arresting officer must electronically submit the notice to the Department of Motor Vehicles. The provisions of Section 56-5-2951 related to temporary alcohol licenses apply to temporary tetrahydrocannabinol licenses except:
  (1) for the provisions related to ignition interlock devices and the Ignition Interlock Device Program;
  (2) that the notice of suspension, in addition to the person's right to request a contested case hearing, shall:
   (a) state that the person has a right to a temporary tetrahydrocannabinol license rather than a temporary alcohol license; and
   (b) not provide an opportunity to enroll in the Ignition Interlock Device Program.
  (3) that the scope of a contested case hearing shall include whether the person consented to taking a blood test pursuant to subsection (B) and whether the reported results of that test detected the presence of five or more nanograms per milliliter of delta-9 tetrahydrocannabinol or tetrahydrocannabinol analogue rather than a reported alcohol concentration; and
  (4) references to blood alcohol level are deemed to be references to the presence of tetrahydrocannabinol.

B. Sections 56-5-2934 and 56-5-2935 of the S.C. Code are amended to read:

 Section 56-5-2934. Notwithstanding any other provision of law, a person charged with a violation of Section 56-5-2930, 56-5-2933, 56-5-2937, or 56-5-2945 who is being tried in any court of competent jurisdiction in this State has the right to compulsory process for obtaining witnesses, documents, or both, including, but not limited to, state employees charged with the maintenance of breath testing devices in this State and the administration of breath testing pursuant to this article. This process may be issued under the official signature of the magistrate, judge, clerk, or other officer of the court of competent jurisdiction. The term "documents" includes, but is not limited to, a copy of the computer software program of breath testing devices. SLED must produce all breath testing software in a manner that complies with any and all licensing agreements. This section does not limit a person's ability to obtain breath testing software directly from the manufacturer or distributor.

 Section 56-5-2935. Notwithstanding any other provision of law, a person charged with a violation of Section 56-5-2930, 56-5-2933, 56-5-2937, 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.

C. Section 56-5-2942 (A) through (F) of the S.C. Code is amended to read:

 (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, 56-5-2937, or 56-5-2945 must have all motor vehicles owned by or registered to 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, 56-5-2937, or 56-5-2945, the department shall determine all vehicles registered to the 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 another state of a conviction for a second or subsequent violation of Section 56-5-2930, 56-5-2933, 56-5-2937, or 56-5-2945, the department shall require the person, unless the person is a holder of a valid ignition interlock restricted license, 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, 56-5-2937, or 56-5-2945. The department 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, 56-5-2937, 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) the person regularly drives the motor vehicle subject to immobilization;
  (2) the immobilized motor vehicle is necessary to 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 the person to have been convicted of a second or subsequent violation of Section 56-5-2930, 56-5-2933, 56-5-2937, 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 the person to have been convicted of a second or subsequent violation of Section 56-5-2930, 56-5-2933, 56-5-2937, or 56-5-2945.

D. Section 56-5-2947(A) of the S.C. Code is amended to read:

 (A) A person eighteen years of age or older is guilty of child endangerment when:
  (1) the person violates:
   (a) Section 56-5-750;
   (b) Section 56-5-293056-5-2910;
   (c) Section 56-5-2933; or56-5-2920;
   (d) Section 56-5-2945; and56-5-2930;
   (e) Section 56-5-2933;
   (f) Section 56-5-2945; or
   (g) Section 56-5-2937; and
  (2) the person has one or more passengers younger than sixteen years of age in the motor vehicle when the violation occurs.
 If more than one passenger younger than sixteen years of age is in the vehicle when a violation occurs, the person may be charged with only one violation of this section.

E. Section 56-5-2947(D)(2) of the S.C. Code is amended to read:

 (2) Upon conviction under subsection (A)(1)(b)(d) through (d)(g), 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.

F. Section 56-5-2950(E) � the undesignated paragraph � of the S.C. Code is amended to read:

 (2) SLED shall administer the provisions of this subsection and shall make regulations necessary to carry out 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. However, if the person is subsequently convicted of violating Section 56-5-2930, 56-5-2933, 56-5-2937, or 56-5-2945, then, upon conviction, the person 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.

G. Section 56-5-2951 (I)(1) and (2) and (N) of the S.C. Code is amended to read:

 (I)(1) Except as provided in item (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, 56-5-2937, or 56-5-2945, or a law of another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or other drugs within the ten years preceding a violation of this section, and who has had no previous suspension imposed pursuant to Section 56-1-286, 56-5-2951, 56-5-2937, or 56-5-2990, within the ten years preceding a violation of this section is:
   (a) six monthsone year for a person who refuses to submit to a test pursuant to Section 56-5-2950; or
   (b) one monthtwo months 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 or if the person takes a test pursuant to Section 56-5-2937 and the test detected the presence of five or more nanograms per milliliter of delta-9 tetrahydrocannabinol or tetrahydrocannabinol analogue.
  (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, a person who has been convicted previously for violating Section 56-5-2930, 56-5-2933, 56-5-2937, or 56-5-2945, or 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 56-1-286, 56-5-2951, 56-5-2937, or 56-5-2990, within the ten years preceding a violation of this section is:
   (a) for a second offense, nine monthstwo years if the person refuses to submit to a test pursuant to Section 56-5-2950, or two four months if 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 or if the person takes a test pursuant to Section 56-5-2937 and the test detected the presence of five or more nanograms per milliliter of delta-9 tetrahydrocannabinol or tetrahydrocannabinol analogue;
   (b) for a third offense, twelve monthsthree years if the person refuses to submit to a test pursuant to Section 56-5-2950, or three six months if 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 or if the person takes a test pursuant to Section 56-5-2937 and the test detected the presence of five or more nanograms per milliliter of delta-9 tetrahydrocannabinol or tetrahydrocannabinol analogue; and
   (c) for a fourth or subsequent offense, fifteen monthsfour years if the person refuses to submit to a test pursuant to Section 56-5-2950, or four eight months if 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 more or if the person takes a test pursuant to Section 56-5-2937 and the test detected the presence of five or more nanograms per milliliter of delta-9 tetrahydrocannabinol or tetrahydrocannabinol analogue.

 (N) An insurer 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, 56-5-2937, 56-5-2945, or a law of another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or other drugs based solely on the violation unless the person is convicted of the violation.

H. Section 56-5-2953 (A)(1) of the S.C. Code is amended to read:

 (A) A person who violates Section 56-5-2930, 56-5-2933, 56-5-2937, or 56-5-2945 must have his conduct at the incident site video recorded and the breath test site video recorded, as appropriate. The State may comply with the video recording requirement by offering into evidence one or more video recordings, or by establishing that one or more of the exceptions provided for in subsection (B) applies.
  (1)(a) The video recorded recording at the incident site must:
    (i) not begin later than the activation of the officer's blue lights;
    (ii) include any field sobriety tests administered; and
    (iii) include the arrest of a person for a violation of Section 56-5-2930 or Section 56-5-2933, or a probable cause determination in that the person violated Section 56-5-2945, and show the person being advised of his Miranda rightsreasonably document the advisement of Miranda rights if Miranda warnings are given. Nothing in this section shall be construed to require Miranda warnings unless the State attempts to introduce statements made in response to a custodial interrogation.
   (b) A refusal to take a field sobriety test does not constitute disobeying a police command.

I. Section 56-5-2953(B) of the S.C. Code is amended to read:

 (B)(1) Nothing in this section may be construed as prohibiting the introduction of other relevant evidence in the trial of a violation of Section 56-5-2930, 56-5-2933, 56-5-2937, or 56-5-2945. A violation of this section is not grounds for dismissal of a violation of Section 56-5-2930. 56-5-2933, 56-5-2937, or 56-5-2945.
  (2) Failure by the arresting officer to produce the video recording required by this section is not alone a ground for dismissal of any charge made pursuant to a video recording that substantially complies with the recording requirements of this section may be grounds for the suppression of evidence that was not properly recorded or documented as set forth in this section in any trial for a violation of Section 56-5-2930, 56-5-2933, 56-5-2937, or 56-5-2945 if unless the arresting officer submits a sworn affidavit certifying that the video recording equipment at the time of the arrest or probable cause determination, or video equipment at the breath test facility was in an inoperable condition, stating which reasonable efforts have been made to maintain the equipment in an operable condition, and certifying that there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the video recording because the person needed emergency medical treatment, or exigent circumstances existed. In circumstances including, but not limited to, road blocks,roadblocks, traffic accident investigations, and citizens' arrests, where an arrest has been made and the video recording equipment has not been activated by blue lights, the failure by the arresting officer to produce the video recordings required by this section is not alone a ground for dismissalthe suppression of evidence. However, as soon as video recording is practicable in these circumstances, video recording must begin as soon as practicable and thereafter must conform with the provisions of this section. Nothing in this section prohibits the court from considering any other valid reason for the failure to produce theof the State to substantially comply with any video recording requirements based upon the totality of the circumstances; nor do the provisions of this section prohibit the person from offering evidence relating to the arresting law enforcement officer's failure to produce the video recording.
  (3) The court must view all relevant portions of any video recordings before making a ruling on the suppression of evidence or testimony.

Renumber sections to conform.

Amend title to conform.