H 3138 Session 109 (1991-1992)
H 3138 General Bill, By Hayes and R.S. Corning
A Bill to amend Chapter 21, Title 50, Code of Laws of South Carolina, 1976, so
as to add Article 2 to establish the offense of boating under the influence of
alcohol or drugs and provide a schedule of blood alcohol content that gives
rise to presumptions and inferences of operating a watercraft under the
influence, to provide for definitions used in the enforcement of this Article,
to provide for a testing procedure and provide penalties for violations; to
amend Section 50-21-110, relating to reckless operation of watercraft, so as
to delete provisions relating to operating watercraft while under the
influence of alcohol or drugs and provide penalties for violations; and to
amend Section 50-21-150, relating to the punishment for operating watercraft
recklessly or under the influence of alcohol or drugs, so as to delete the
provision which provides a penalty for violating Section 50-21-110.
12/27/90 House Prefiled
12/27/90 House Referred to Committee on Judiciary
01/08/91 House Introduced and read first time HJ-77
01/08/91 House Referred to Committee on Judiciary HJ-77
01/29/91 House Tabled in committee
A BILL
TO AMEND CHAPTER 21, TITLE 50, CODE OF LAWS OF SOUTH
CAROLINA, 1976, SO AS TO ESTABLISH THE OFFENSE OF
BOATING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS
AND PROVIDE A SCHEDULE OF BLOOD ALCOHOL CONTENT
THAT GIVES RISE TO PRESUMPTIONS AND INFERENCES OF
OPERATING A WATERCRAFT UNDER THE INFLUENCE, TO
PROVIDE FOR DEFINITIONS USED IN THE ENFORCEMENT OF
THIS ARTICLE, TO PROVIDE FOR A TESTING PROCEDURE AND
PROVDE PENALTIES FOR VIOLATIONS; TO AMEND SECTION
50-21-110, RELATING TO RECKLESS OPERTION OF
WATERCRAFT, SO AS TO DELETE PROVISIONS RELATING TO
OPERATING WATERCRAFT WHILE UNDER THE INFLUENCE
OF ALCOHOL OR DRUGS AND PROVIDE PENALTIES FOR
VIOLATIONS; AND TO AMEND SECTION 50-21-150, RELATING
TO THE PUNISHMENT FOR OPERATING WATERCRAFT
RECKLESSLY OR UNDER THE INFLUENCE OF ALCOHOL OR
DRUGS, SO AS TO DELETE THE PROVISION WHICH PROVIDES
A PENALTY FOR VIOLATING SECTION 50-21-110.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. SECTION 1. Chapter 21, Title 50 of the 1976 Code
is amended by adding:
"Article 2
Boating Under the Influence of Alcohol or Drugs
Section 50-21-210. As used in this article:
(1) 'Drug' means illicit or licit drug, a combination of licit or illicit
drugs, a combination of alcohol and an illicit drug, or a combination of
alcohol and a licit drug;
(2) 'Water' means any waters open to the general public including
but not limited to lakes, bays, sounds, ponds, impounding reservoirs,
rivers, streams, creeks, estuaries, marshes, inlets, canals, the Atlantic
Ocean within the territorial limits of the State, and all other bodies of
surface or underground water, natural or artificial, inland or coastal,
fresh or salt, which are wholly or partially within or bordering the State
or within its jurisdiction.
(3) 'Motorized vessel' means any vessel powered by an internal
combustion engine.
Section 50-21-220. (A) It is unlawful to operate, drive, or be in
actual physical control of any moving motorized vessel upon the waters
of this State while:
(1) under the influence of alcohol;
(2) under the influence of any drug to a degree which renders
the operator incapable of operating safely.
(B) Any person who violates any provision of this section is guilty
of a misdemeanor and, upon conviction, must be fined not less than fifty
dollars nor more than two hundred dollars and for a second or
subsequent offense be fined not less than one thousand dollars or be
imprisoned for not more than one year, or both. Only an offense
occurring within a period of five years including and immediately
preceding the date of the last offense constitutes a prior offense within
the meaning of this subsection. Any person convicted of an offense
under this section, in addition to other penalties, may be prohibited by
the court having jurisdiction of the violation from operating any
motorized vessel or conducting the activity for not more than two years.
Section 50-21-230. (A) A person who operates, drives, or is in actual
physical control of any moving motorized vessel upon the waters of this
State is considered to have given consent to a chemical test of his breath,
blood, or urine for the purpose of determining the presence of alcohol or
drugs if arrested for any offense arising out of acts alleged to have been
committed while the person was operating, driving, or in actual physical
control of a moving motorized vessel while under the influence of
alcohol, drugs, or any combination of them. Any test must be
administered at the direction of a law enforcement officer who has
apprehended a person for operating a motorized vessel upon the waters
of 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 alcohol concentration
of his blood. If the person is physically unable to provide an acceptable
breath sample because he has an injured mouth, is unconscious, dead, or
for any other reason considered acceptable by the licensed medical
personnel, a blood sample may be taken. If the officer has reasonable
grounds to believe 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 breathalyzer reading is ten one-hundredths of one percent by
weight of alcohol in the person's blood 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 State Law Enforcement Division, using methods
approved by the division. The arresting officer may not administer the
tests. Blood and urine samples must be taken 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 take the
samples in a licensed medical facility. Blood samples or urine samples
must be obtained and handled in accordance with procedures approved
by the division. No tests may be administered or samples taken unless
the person has been informed that he does not have to take the test or
give the samples but that his privilege to operate, drive, or be in actual
physical control of any moving motorized vessel must be suspended or
denied for ninety days if he refuses to submit to the tests.
A hospital, physician, qualified technician, chemist, or registered
nurse who takes the samples or conducts the test or participates in the
process of taking the samples or conducting the test in accordance with
this section is not subject to a cause of action for assault, battery, or any
other cause contending that the drawing of blood or taking of 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 taking the samples or conducting the
test. This qualified release also applies to the employer of the person
who conducts the test or takes the samples. No person may be required
by the arresting officer, or by any other law enforcement officer, to
obtain or take any sample of blood or urine.
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 of that right. A person's 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 taken at the direction of the law enforcement officer.
The arresting officer shall provide reasonable assistance to the person
to contact a qualified person to conduct additional tests.
The division shall administer the provisions of this subsection and
may promulgate 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 fee of fifty
dollars is assessed at the time of sentencing persons convicted of,
pleading guilty or nolo contendere to, or forfeiting bond for violating
Section 50-21-220 or 50-21-240. This fee must be forwarded by the
county treasurer to the State Treasurer and credited to the general fund
of the State to defray any costs incurred by the division and individuals
and institutions obtaining the samples forwarded to the division.
(B) In any criminal prosecution for a violation of Section
50-21-220 or 50-21-240 the amount of alcohol in the person's blood at
the time of the alleged violation, as shown by chemical analysis of the
person's breath or other body fluids, gives rise to the following
inferences:
(1) If there was at that time five one-hundredths of one percent
or less by weight of alcohol in the person's blood, it is conclusively
presumed that the person was not under the influence of alcohol.
(2) If there was at that time in excess of five one-hundredths
of one percent but less than ten one-hundredths of one percent by weight
of alcohol in the person's blood, 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 competent evidence in
determining the guilt or innocence of the person.
(3) If there was at that time ten one-hundredths of one percent
or more by weight of alcohol in the person's blood, 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 other competent evidence bearing upon the question
whether or not the person was under the influence of alcohol, drugs, or
a combination of them.
(C) Any 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).
(D) If a person under arrest refuses, upon the request of a law
enforcement officer, to submit to chemical tests as provided in
subsection (A), none may be given, but the South Carolina Department
of Wildlife and Marine Resources, on the basis of a report of the law
enforcement officer that the arrested person was operating, driving or
was in actual physical control of a moving motorized vessel while under
the influence of alcohol, drugs, or a combination of them and that the
person had refused to submit to the tests shall suspend his privilege to
perform the activity for a period of ninety days. The ninety-day period
of suspension begins with the day after the date of the notice required to
be given, unless a hearing is requested as provided, in which case the
ninety-day period begins with the day after the date of the order
sustaining the suspension. The report of the arresting officer must
include what grounds he had for believing the arrested person was
conducting the above-mentioned activity while under the influence of
alcohol, drugs, or a combination of them. If the arrested person took a
chemical breath test but refused to provide a blood or urine sample, the
report of the arresting officer must include the officer's grounds for
believing the arrested person was under the influence of drugs other than
alcohol. If a person who refuses, upon the request of a law enforcement
officer, to submit to chemical tests as provided in subsection (A), pleads
guilty or nolo contendere to, or forfeits bond for a first offense violation
of Section 50-21-220, within thirty days of arrest, the period of the
suspension under this section must be canceled.
(E) Upon suspending the operating privilege of any person, the
Department of Wildlife and Marine Resources immediately shall notify
the person in writing and upon his request give him an opportunity for
a hearing as provided in Sections 50-9-1050(b) and 50-9-1060. The
review must be scheduled by the department within twenty days after the
receipt of the request. The scope of the hearing is limited to the issues
of whether the person was placed under arrest, whether the person had
been informed that he did not have to take the tests but that his privilege
to operate a motorized vessel would be suspended or denied if he
refused to submit to the tests, and whether he refused to submit to the
tests upon request of the officer. Upon review, the department either
shall rescind its order of suspension or if there is good cause, continue
the suspension of the privilege.
Section 50-21-240. (A) Any person who, while under the
influence of alcohol, drugs, or the combination of alcohol and drugs,
operates, drives, or is in actual physical control of any moving motorized
vessel and does any act forbidden by law or neglects any duty imposed
by law, which act or neglect proximately causes great bodily injury or
death to any person other than himself, is guilty of a felony and, upon
conviction, must be punished:
(1) by a fine of not less than five thousand dollars nor more
than ten thousand dollars and imprisonment for not less than thirty days
nor more than ten years when great bodily injury results;
(2) by a fine of not less than ten thousand dollars nor more
than twenty-five thousand dollars and imprisonment for not less than
one year nor more than twenty-five years when death results.
No part of the minimum sentences required to be imposed by this
section may 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) The South Carolina Department of Wildlife and Marine
Resources shall suspend the privilege of any person who is convicted or
who pleads guilty or nolo contendere under this section to conduct the
activity for which the person is convicted for a period to include any
term of imprisonment plus three years.
(D) If a boating accident involves a fatality, the coroner having
jurisdiction, within forty-eight hours of receiving notification of the
death, shall direct that a chemical blood test to determine blood alcohol
concentration or the presence of drugs be performed on the deceased and
that the results of the test be recorded properly in the coroner's report.
Section 50-21-250. A person who operates a motorized vessel on the
waters of this State when his privilege to operate the motorized vessel
is canceled, suspended, or revoked pursuant to violations of this article
is guilty of a misdemeanor and, upon conviction, must be fined in an
amount not to exceed two hundred dollars or imprisoned for a period not
to exceed thirty days."
SECTION 2. Section 50-21-110 of the 1976 Code is amended to read:
"Section 50-21-110. (1) No person may use any motorboat,
boat, or vessel, or manipulate any water skis, aquaplane,
surfboard, or similar device in a negligent manner so as to endanger the
life, limb, or property of any person.
(2) No person may use any motorboat, boat, or vessel, or use
any water skis, aquaplane, surfboard, or similar device while under the
influence of alcohol, any narcotic drug, barbiturate, marijuana or
hallucinogen.
(3)(2) Any person convicted of negligent operation
of a motorboat, boat, or vessel or of operating a vessel while
under the influence of intoxicating liquids, narcotic drugs, barbiturates,
or marijuana, in addition to any other penalties, may be prohibited by the
court having jurisdiction of such violation, from operating any vessel on
any waters of this State for a period of not more than two years.
is guilty of a misdemeanor and, upon conviction, for a first offense
must be fined not less than fifty dollars nor more than two hundred
dollars or be imprisoned for not more than thirty days and for a second
or subsequent offense be fined not less than one thousand dollars or be
imprisoned for not more than one year, or both. Only an offense
occurring within a period of five years from the date of the last offense
constitutes a prior offense within the meaning of this
subsection."
SECTION 3. Section 50-21-150 of the 1976 Code is amended to read:
"Section 50-21-150. (1) Any person who violates any
provision of Section 50-21-110 or the implementing regulations shall be
deemed guilty of a misdemeanor and upon conviction shall be fined not
less than fifty dollars nor more than one hundred dollars or be
imprisoned for not more than thirty days for each violation.
(2) Any person violating any provision of this chapter or any
regulations adopted by the Division of Boating where the penalty is not
specified shall be deemed is guilty of a misdemeanor
and, upon conviction, shall must be
fined not more than one hundred dollars or be imprisoned for not more
than thirty days for each violation."
SECTION 4. This act takes effect upon approval by the Governor.
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