S 1423 Session 111 (1995-1996)
S 1423 General Bill, By Senate Judiciary
Similar(S 1063, H 4582)
A Bill to enact the Omnibus Highways Safety Act.-short title
05/16/96 Senate Introduced, read first time, placed on calendar
without reference SJ-16
INTRODUCED
May 16, 1996
S. 1423
Introduced by Judiciary Committee
S. Printed 5/16/96--S.
Read the first time May 16, 1996.
A BILL
TO ENACT THE OMNIBUS HIGHWAY SAFETY ACT BY
AMENDING THE CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING SECTION 56-1-285, SO AS TO PROVIDE
FOR A SIX-MONTH'S SUSPENSION OF THE DRIVER'S
LICENSE OF A PERSON UNDER THE AGE OF TWENTY-ONE
OPERATING A MOTOR VEHICLE WHO HAS AN ALCOHOL
CONCENTRATION OF TWO ONE-HUNDREDTHS OF ONE
PERCENT OR ABOVE, TO PROVIDE THAT LICENSED
DRIVERS UNDER TWENTY-ONE HAVE CONSENTED TO BE
TESTED, TO LIMIT TESTING TO INCIDENTS IN WHICH A
PERSON HAS BEEN ARRESTED FOR A TRAFFIC OFFENSE,
TO PRESCRIBE THE METHOD AND PROCEDURES FOR
TESTING AND REQUIRE AN AUTOMATIC NINETY-DAY
SUSPENSION FOR REFUSAL TO BE TESTED, TO PROVIDE
THAT THE SUSPENSION BEGINS THIRTY DAYS AFTER THE
ARRESTING OFFICER TAKES POSSESSION OF THE
LICENSE, TO PROVIDE FOR AN ADMINISTRATIVE
REVIEW, ADMINISTRATIVE HEARING, AND A TRIAL DE
NOVO ON THE SUSPENSION AT THE DRIVER'S REQUEST,
AND TO PROVIDE THAT A PERSON WHOSE LICENSE IS
SUSPENDED IS NOT REQUIRED TO FILE PROOF OF
FINANCIAL RESPONSIBILITY; BY ADDING SECTION
56-5-2951, SO AS TO PROVIDE FOR AN ADMINISTRATIVE
DRIVER'S LICENSE AND PERMIT REVOCATION
PROCEDURE FOR A PERSON ARRESTED WHILE DRIVING
UNDER THE INFLUENCE OF ALCOHOL OR ANOTHER
SUBSTANCE; BY AMENDING SECTION 56-1-10, AS
AMENDED, RELATING TO DEFINITIONS FOR PURPOSES OF
MOTOR VEHICLE LAWS, SO AS TO DEFINE
"ALCOHOL" AND "ALCOHOL
CONCENTRATION"; BY AMENDING SECTION
56-1-2030, AS AMENDED, RELATING TO DEFINITIONS FOR
PURPOSES OF COMMERCIAL DRIVER'S LICENSES, SO AS
TO DELETE THE DEFINITION FOR "ALCOHOL"
AND "ALCOHOL CONCENTRATION"; BY
AMENDING SECTION 56-5-2930, RELATING TO THE
UNLAWFUL USE OF NARCOTICS, LIQUOR, DRUGS, OR
SIMILAR SUBSTANCES BY A MOTOR VEHICLE DRIVER, SO
AS TO REVISE THE CIRCUMSTANCES UNDER WHICH A
PERSON MAY NOT OPERATE A MOTOR VEHICLE AND
PRESERVE THE RIGHT TO A JURY TRIAL; AND BY
AMENDING SECTION 56-5-2950, AS AMENDED, RELATING
TO IMPLIED CONSENT TO CHEMICAL TESTS OF BREATH,
BLOOD, AND URINE TO DETERMINE THE PRESENCE OF
ALCOHOL OR DRUGS ON A MOTOR VEHICLE OPERATOR,
SO AS TO REVISE THE PROCEDURE FOR UTILIZING THE
TEST RESULTS, TO DELETE THE DRIVER'S LICENSE AND
PERMIT SUSPENSION PROCEDURE, AND TO MAKE
TECHNICAL CHANGES.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 56-1-285. (A) In addition to any other penalty
imposed by law, including additional driver's license suspensions,
the department shall suspend for six months the driver's license,
permit, or nonresident operating privilege or deny for six months
the issuance of a license or permit of a person under the age of
twenty-one who operates a motor vehicle and who is determined to
have an alcohol concentration of two one-hundredths of one percent
or above.
(B) A person under the age of twenty-one who operates 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.
(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 (the
Uniform Act Regulating Traffic on Highways), or any other traffic
offense established by a political subdivision of this State, may
order the testing of the person arrested to determine the alcohol
concentration of his blood.
(D) A test must be administered at the direction of the arresting
law enforcement officer. At the direction of the arresting law
enforcement officer, the person first must be offered a breath test to
determine the alcohol concentration of his blood. If the person
physically is unable to provide an acceptable breath sample because
he has an injured mouth or is unconscious or dead, or for another
reason considered acceptable by the licensed medical personnel, a
blood or urine sample may be taken. 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 law enforcement officer may not administer the tests.
Blood and urine tests must be administered 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
administer these tests in a licensed medical facility. Blood and
urine samples must be obtained and handled in accordance with
procedures approved by the division. 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 arresting law enforcement
officer must be paid from the general fund of the State.
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
arresting law enforcement officer. The arresting law enforcement
officer shall provide reasonable assistance to the person to contact a
qualified person to conduct additional tests.
(E) 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 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 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.
A qualified person and his employer who obtain samples or
administer the tests or assist in obtaining samples or administration
of tests at the direction of a law enforcement officer are released
from civil and criminal liability unless the obtaining of samples or
the tests are performed in a negligent manner. 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 law enforcement officer, or by another law enforcement
officer, to obtain or take any sample of blood or urine.
(F) If a person under the age of twenty-one refuses, upon the
request of the arresting law enforcement officer, to submit to
chemical tests as provided in subsection (D), the Department of
Public Safety shall suspend his license or permit to drive or any
nonresident's operating privilege for ninety days.
If a person under arrest, upon the request of the arresting law
enforcement officer, submits to chemical tests as provided in
subsection (D), and the test results indicate an alcohol concentration
of two one-hundredths of one percent or above, the department
shall suspend his license or permit to drive or any nonresident's
operating privilege for six months.
If the person is a resident without a license or permit to operate a
motor vehicle in this State, the department shall deny to the person
the issuance of a license or permit after he would otherwise be
eligible to be licensed for six months if he has a blood alcohol
concentration of two one-hundredths of one percent or above, or
ninety days if he refuses to submit to chemical tests as provided in
subsection (D). No tests may be administered or samples taken
unless the person has been informed that he does not have to take
the tests 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.
The arresting law enforcement officer shall promptly notify the
department of the refusal of a person to submit to a test requested
pursuant to this section as well as the test result of any person who
submits to a test pursuant to this section and registers the presence
of an alcohol concentration of two one-hundredths of one percent or
above.
(G) If the test registers the presence of an alcohol concentration
of two one-hundredths of one percent or above, or if the person
refuses to be tested, the arresting law enforcement officer shall take
possession of the person's driver's license or permit. When
possible, a law enforcement officer immediately must serve the
order of suspension upon a person who violates a provision
contained in this section. The suspension is effective thirty days
after the department serves the order of suspension on the person,
unless a hearing is requested in which case the suspension begins
the day after the date of the order sustaining the suspension. The
order of suspension must advise the person of his right to obtain an
administrative review and an administrative hearing regarding the
suspension of his driver's license, permit, or nonresident operating
privilege, or denial of issuance of a license or permit under this
section. The order of suspension shall serve as a temporary driver's
license or permit for thirty days, or if a hearing is requested, the
order of suspension will serve as a temporary driver's license or
permit until the day after the date of the order sustaining the
suspension. However, the order of suspension shall not serve as a
temporary driver's license or permit if the person does not have a
driver's license or permit at the time the order of suspension is
served.
(H) A copy of the completed order of suspension and the
driver's license or permit seized must be sent within two working
days to the department with a copy of the arresting law enforcement
officer's incident report.
(I) An administrative review of an order of suspension may be
requested by filing a written request with the department within ten
days after the order of suspension is served stating the specific
grounds for review. Upon receiving a request for an administrative
review, the director or his designee shall review:
(1) the order of suspension;
(2) the arresting law enforcement officer's incident report;
(3) the arrested person's driving record, if it is relevant to the
review; and
(4) other relevant information provided to the director or his
designee.
From this review, the director or his designee shall determine
whether to sustain the order of suspension. Within ten days after
receiving a request for an administrative review, the director or his
designee shall report in writing the results of the review to the
person requesting the review.
An administrative review of an order of suspension is not a
contested proceeding under the Administrative Procedures Act, does
not stay a suspension, and has no effect upon the availability of an
administrative hearing under this section.
(J) In addition to requesting an administrative review under
subsection (I), a person whose driver's license, permit, or
nonresident operating privilege has been suspended, or who has
been denied issuance of a license or permit pursuant to this section
may request before the effective date of the suspension an
administrative hearing by filing a written request with the
department. The department must schedule the hearing within sixty
days after the request is received. The filing of the request will
stay the suspension. The scope of the hearing must be limited to
whether the person:
(1) was lawfully arrested;
(2) was advised of the consequences of taking or refusing to
take a test pursuant to subsection (F);
(3) refused to submit to a test pursuant to subsection (F); or
(4) consented to take a test pursuant to subsection (D), and
the:
(a) reported alcohol concentration at the time of testing
was at least two one-hundredths of one percent;
(b) individual who administered the test or took samples
was qualified pursuant to subsection (D); and
(c) tests administered and samples taken were conducted
pursuant to subsection (D).
A written order must be issued sustaining or rescinding the
suspension order at the conclusion of the administrative hearing.
(K) If the suspension is sustained at the conclusion of the
administrative hearing, pursuant to Section 56-5-2951(D), a person
may file within ten days after the issuance of the order sustaining
the suspension a petition in the court which has original jurisdiction
over the substantive offense under Section 56-5-2930 for review of
the decision, and the hearing upon review must proceed as a trial de
novo before a jury. Nothing in this section shall prohibit the
transfer of certain petitions for review to magistrate's court pursuant
to Section 22-3-545. The filing of this petition shall stay the
suspension if the court so orders.
(L) 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 (B) of
this section.
(M) When it is finally determined under the procedures of this
section that a nonresident's privilege to operate a motor vehicle in
this State has been suspended, the department shall give information
in writing 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 and shall forward the license or permit to the
appropriate state motor vehicle administrator.
(N) 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 prior to any administrative review, hearing, or other
proceeding in which the results of the tests are used as evidence. A
person administering a test at the request of the defendant shall
record in writing the time, method, and results of the test and
promptly furnish a copy to the arresting law enforcement officer
prior to any administrative review, hearing, or other proceeding in
which the results of the test are used as evidence.
(O) A person whose driver's license is suspended under this
section is not required to file proof of financial
responsibility."
SECTION 2. The 1976 Code is amended by adding:
"Section 56-5-2951. (A) The department shall suspend the
driver's license, permit, or nonresident operating privilege, or deny
the issuance of a license or permit of a person who operates a
motor vehicle and who refuses to submit to a test required by
Section 56-5-2950 or is determined to have an alcohol concentration
of ten one-hundredths of one percent or above. The periods of
suspension are provided in subsections (F) and (G) of this section.
The suspension is effective thirty days after the department serves
the order of suspension on the person, unless a hearing is requested
in which case the suspension begins the day after the date of the
order sustaining the suspension. The order of suspension must
advise the person of his right to obtain an administrative review and
an administrative hearing regarding the suspension of his driver's
license, permit, or nonresident operating privilege, or denial of the
issuance of a license or permit under this section.
(B) When possible, the arresting law enforcement officer
immediately must serve the order of suspension upon a person who
violates a provision contained in subsection (A). The arresting law
enforcement officer must take possession of the motor vehicle
operator's driver's license or permit. The order of suspension shall
serve as a temporary driver's license or permit for thirty days, or if
a hearing is requested, the order of suspension shall serve as a
temporary driver's license or permit until the day after the date of
the order sustaining the suspension. However, the order of
suspension shall not serve as a temporary driver's license or permit
if the person does not have a driver's license or permit at the time
the order of suspension is served. A copy of the completed order
of suspension and the driver's license or permit seized must be sent
within two working days to the department with a copy of the
arresting law enforcement officer's incident report.
(C) An administrative review of an order of suspension may be
requested by filing a written request with the department within ten
days after the order of suspension is served stating the specific
grounds for review. Upon receiving a request for an administrative
review, the director or his designee shall review:
(1) the order of suspension;
(2) the arresting law enforcement officer's incident report;
(3) the arrested person's driving record, if it is relevant to the
review; and
(4) other relevant information provided to the director or his
designee.
From this review, the director or his designee shall determine
whether to sustain the order of suspension. Within ten days after
receiving a request for an administrative review, the director or his
designee must report in writing the results of the review to the
person requesting the review.
An administrative review of an order of suspension is not a
contested proceeding under the Administrative Procedures Act, does
not stay a suspension, and has no effect upon the availability of an
administrative hearing under this section.
(D) In addition to requesting an administrative review under
subsection (C), a person whose driver's license, permit, or
nonresident operating privilege has been suspended, or who has
been denied the issuance of a license or permit under subsection (A)
may request before the effective date of the suspension an
administrative hearing by filing a written request with the
department. The department must schedule the hearing within sixty
days after the request is received. The filing of the request shall
stay the suspension. The scope of the hearing must be limited to
whether the person:
(1) was lawfully arrested;
(2) was advised of the consequences of taking or refusing to
take a test pursuant to 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 at least ten one-hundredths of one percent;
(b) individual who administered the test or took samples
was qualified pursuant to Section 56-5-2950; and
(c) tests administered and samples taken were conducted
pursuant to Section 56-5-2950.
A written order must be issued sustaining or rescinding the
suspension order at the conclusion of the administrative hearing.
(E) If the suspension is sustained at the conclusion of the
administrative hearing, pursuant to Section 56-5-2951(D), a person
may file within ten days after the issuance of the order sustaining
the suspension a petition in the court which has original jurisdiction
over the substantive offense under Section 56-5-2930 for review of
the decision, and the hearing upon review must proceed as a trial de
novo before a jury. Nothing in this section shall prohibit the
transfer of certain petitions for review to magistrate's court pursuant
to Section 22-3-545. The filing of this petition shall stay the
suspension if the court so orders.
(F) The period of a driver's license, permit, or nonresident
operating privilege suspension, or denial of the issuance of a license
or permit for an arrested person who has no previous conviction for
violating Section 56-5-2930 or Section 56-5-2945 or another law of
this State or another state that prohibits a person from operating 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 no previous suspension imposed pursuant to Section 56-5-2950
or Section 56-5-2951 within the five years preceding a violation of
this section is ninety days if he:
(1) refuses to submit to a test pursuant to Section 56-5-2950;
or
(2) takes a test pursuant to Section 56-5-2950 and has an
alcohol concentration of ten one-hundredths of one percent or
above.
(G) The period of a driver's license, permit, or nonresident
operating privilege suspension, or denial of the issuance of a license
or permit for an arrested person who has been previously convicted
for violating Section 56-5-2930 or Section 56-5-2945 or another
law of this State or another state that prohibits a person from
operating 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 or Section 56-5-2951 within the five years
preceding a violation of this section is:
(1) ninety days for a person who refuses to submit to a test
pursuant to Section 56-5-2950; or
(2) one year for a person who takes a test pursuant to Section
56-5-2950 and has an alcohol concentration of ten one-hundredths
of one percent or above.
(H) When it is finally determined under the procedures of this
section that a nonresident's privilege to operate a motor vehicle in
this State has been suspended, the department shall give information
in writing 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.
(I) A person whose driver's license is suspended pursuant to
this section is not required to file proof of financial
responsibility."
SECTION 3. Section 56-1-10 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended by adding:
"(16) `Alcohol' means a substance containing any form
of alcohol including, but not limited to, ethanol, methanol,
propanol, and other volatile substances including toluene and
acetaldehyde.
(17) `Alcohol concentration' means the number of grams of
alcohol for each:
(a) one hundred milliliters of blood;
(b) two hundred ten liters of breath; or
(c) sixty-seven milliliters of urine."
SECTION 4. Section 56-1-2030 of the 1976 Code, as last
amended by Act 149 of 1993, is further amended to read:
"Section 56-1-2030. As used in this article:
(1) `Alcohol' means a substance containing any form of
alcohol including, but not limited to, ethanol, methanol, propanol,
and isopropanol.
(2) `Alcohol concentration' means:
(a) the number of grams of alcohol for each one hundred
milliliters of blood; or
(b) as determined by the South Carolina Law Enforcement
Division for other bodily fluids.
(3)(1) `Commercial driver license' means a
license issued in accordance with the requirements of the
Commercial Motor Vehicle Safety Act of 1986 (Title XII of Public
Law 99-570) to an individual which authorizes the individual to
drive a class of commercial motor vehicle.
(4)(2) `Commercial Driver License Information
System' means the information system established pursuant to the
Commercial Motor Vehicle Safety Act of 1986 to serve as a
clearinghouse for locating information related to the licensing and
identification of commercial motor vehicle drivers.
(5)(3) `Commercial driver instruction permit'
means a permit issued pursuant to Section 56-1-2080(D) of this
article.
(6)(4) `Commercial motor vehicle' means a
motor vehicle designed or used to transport passengers or property
if the vehicle:
(a) the vehicle has a gross vehicle weight rating of
twenty-six thousand one or more pounds;
(b) the vehicle is designed to transport sixteen or
more persons, including the driver; or
(c) the vehicle is transporting hazardous materials and
is required to be placarded in accordance with 49 C.F.R. part 172,
subpart F.
(7)(5) `CMVSA' means the Commercial Motor
Vehicle Safety Act of 1986 (Title XII of Public Law 99-570).
(8)(6) `Controlled substance' means a
substance so classified under Section 102(6) of the
Controlled Substances Act (21 U.S.C. 802(6)) listed on Schedules I
through V of 21 C.F.R. part 1308, as revised from time to
time.
(9)(7) `Conviction' means an unvacated
adjudication of guilty, or a determination that a person has violated
or failed to comply with the law in a court of original jurisdiction
or an authorized administrative tribunal, an unvacated forfeiture of
bail or collateral deposited to secure the person's appearance in
court, the payment of a fine or court cost, or violation of a
condition of release without bail, regardless of whether or not the
penalty is rebated, suspended, or probated.
(10)(8) `Disqualification' means a withdrawal of
the privilege to drive a commercial motor vehicle.
(11)(9) `Drive' means to drive, operate, or be in
physical control of a motor vehicle.
(12)(10) `Driver' means a person who drives a
commercial motor vehicle, or who is required to hold a commercial
driver license.
(13)(11) `Driver license' means a license
issued to an individual which authorizes the individual to drive a
motor vehicle.
(14)(12) `Employer' means a person, including
the United States, a state, or a political subdivision of a state who
owns or leases a commercial motor vehicle or assigns a person to
drive a commercial motor vehicle.
(15)(13) `Endorsement' means a special
authorization to drive certain types of vehicles or to transport
certain types of property or a certain number of passengers.
(16)(14) `Felony' means an offense under state
or federal law that is punishable by death or imprisonment for more
than one year.
(17)(15) `Foreign jurisdiction' means a
jurisdiction other than a state of the United States.
(18)(16) `Gross vehicle weight rating' means
the actual weight or the value specified by the manufacturer as the
maximum loaded weight of a single or a combination vehicle or the
registered gross weight, whichever is greater. The gross vehicle
weight rating of a combination vehicle (commonly referred to as the
`gross combination weight rating') is the gross vehicle weight rating
of the power unit plus the gross vehicle weight rating of a towed
unit.
(19)(17) `Hazardous materials' has the
meaning as that found in Section 103 of the Hazardous Materials
Transportation Act (49 U.S.C. 1801, et seq).
(20)(18) `Motor vehicle' means every
a vehicle which is self-propelled and every
a vehicle which is propelled by electric power obtained
from overhead trolley wires but not operated upon rails, except a
vehicle moved solely by human power and motorized wheelchairs.
(21)(19) `Out of service order' means a
temporary prohibition against driving a commercial motor vehicle.
(22)(20) `Recreational vehicle' means a
self-propelled or towed vehicle that is equipped to serve as
temporary living quarters for recreational, camping, or travel
purposes and is used solely as a family/personal conveyance.
(23)(21) `Restriction' means a prohibition
against driving certain types of vehicles or a requirement that the
driver comply with certain conditions when driving a motor vehicle.
(24)(22) `Serious traffic violation' means a
conviction when operating a commercial motor vehicle of:
(a) excessive speeding, involving a single charge for a speed
fifteen miles an hour or more above the speed limit;
(b) reckless driving, including charges of driving a
commercial motor vehicle in a wilful or wanton disregard for the
safety of persons or property;
(c) improper or erratic traffic lane changes;
(d) following the vehicle ahead too closely; or
(e) a violation of a state or local law related to motor vehicle
traffic control, other than a parking violation, arising in connection
with an accident or collision resulting in death or serious bodily
injury to a person.
(25)(23) `State' means a state or territory of
the United States and the District of Columbia and the federal
government and a province or territory of Canada.
(26)(24) `Tank vehicle' means a vehicle that is
designed to transport a liquid or gaseous material within a tank that
either is attached permanently or temporarily to the vehicle and
which has a capacity of one thousand gallons or more.
(27)(25) `United States' means the fifty states
and the District of Columbia.
(28)(26) `Farm related vehicle' means a
vehicle used:
(a) in custom harvester operations,;
(b) in livestock feeding operations,; or
(c) by an agri-chemical business or a company which hauls
agri-chemical products to a farm.
(29)(27) `Seasonal restricted commercial
driver's license' means a commercial driver's license issued under
the authority of the waiver promulgated by the Federal Department
of Transportation (57 Federal Register 13650) by the department to
an individual who has not passed the knowledge or skill test
required of other commercial driver's license holders. This license
authorizes operation of a commercial motor vehicle only on a
seasonal basis, stated on the license, by a seasonal employee of a
custom harvester, livestock feeder, agri-chemical operation and
company hauling agri-chemical products to a farm within one
hundred fifty miles of the place of business."
SECTION 5. Section 56-5-2930 of the 1976 Code is amended
to read:
"Section 56-5-2930. (A) It is unlawful for
any a person who is a habitual user of narcotic
drugs or any person who is under the influence of intoxicating
liquors, narcotic drugs, barbiturates, paraldehydes or drugs, herbs or
any other substance of like character, whether synthetic or
natural, to drive any operate a motor vehicle
within on the public highways, roads, and streets of
this State while:
(1) having an alcohol concentration of ten one-hundredths of
one percent or above;
(2) under the influence of alcohol;
(3) under the influence of another drug or a combination of
other drugs or substances which cause impairment; or
(4) under the combined influence of alcohol or another drug
or drugs, or substances which cause impairment.
For purposes of this section "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.
(B) Nothing in this section shall be construed to prohibit
the defendant from being entitled to a jury trial and presenting in
his case in chief a defense of lack of impairment or presenting
evidence to show the results of the chemical tests used to determine
alcohol concentration are invalid because of the methodology,
machinery, protocol, or personnel used to administer the
tests."
SECTION 6. Section 56-5-2950 of the 1976 Code, as last
amended by Act 497 of 1994, is further amended to read:
"Section 56-5-2950. (a) A person who operates 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 if arrested for an offense arising
out of acts alleged to have been committed while the person was
operating a motor vehicle while under the influence of alcohol,
drugs, or a combination of them. A test must be administered at
the direction of a law enforcement officer who has apprehended a
person for operating a motor vehicle in this State while under the
influence of alcohol, drugs, or a combination of them. At the
direction of the arresting law enforcement 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, or is unconscious, or
dead, or for another reason considered acceptable by the
licensed medical personnel, a blood sample may be taken. If the
arresting law enforcement officer has reasonable grounds to
believe that the person is under the influence of drugs other than
alcohol, the arresting law enforcement officer may order
that a urine sample be taken for testing. If the breathalyzer
reading alcohol concentration is ten one-hundredths of
one percent by weight of alcohol in the person's blood or
above, the arresting law enforcement 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 SLED, using methods approved by SLED. The
arresting law enforcement 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 and urine samples must be obtained and
handled in accordance with procedures approved by SLED. 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 drive must be suspended or
denied for at least 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 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 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.
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
arresting law enforcement officer.
The arresting law enforcement officer shall provide
reasonable assistance to the person to contact a qualified person to
conduct additional tests.
SLED shall administer the provisions of this subsection and may
make regulations necessary to carry out its provisions. The costs of
the tests administered at the direction of the arresting 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 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 manner. No person may be required by
the arresting law enforcement officer, or by another law
enforcement officer, to obtain or take any sample of blood or urine.
(b) In any criminal prosecution for the violation of Section
56-5-2930 or 56-5-2945 relating to operating a vehicle under the
influence of alcohol, drugs, or a combination of them, the
amount of alcohol concentration in the person's
blood at the time of the alleged violation test,
as shown by chemical analysis of the person's breath or other body
fluids, gives rise to the following inferences:
(1) If there the alcohol concentration 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 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 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 the alcohol concentration 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 is conclusively
presumed that the person had an illegal alcohol concentration.
The provisions of this section must not be construed as limiting
the introduction of any 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 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) If a person under arrest refuses, upon the request of a
law enforcement officer, to submit to chemical tests as provided in
subsection (a) of this section, none may be given, but the
department, on the basis of a report of the law enforcement officer
that the arrested person was operating a motor vehicle in this State
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 license or permit to drive, or any nonresident operating
privilege for a period of ninety days. If the person is a resident
without a license or permit to operate a motor vehicle in this State,
the department shall deny to the person the issuance of a license or
permit for a period of ninety days after the date of the alleged
violation. 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 or
denial of issuance. The report of the arresting officer must include
what grounds he had for believing that the arrested person had been
operating a motor vehicle in this State while under the influence of
alcohol, drugs, or a combination of them. If the arrested person
took the chemical breath test but refused to provide a blood or urine
sample, the report of the arresting officer must include what were
his grounds for believing that 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) of this section, pleads
guilty or nolo contendere to, or forfeits bond for a first offense
violation of Section 56-5-2930, within thirty days of arrest, the
period of the suspension of driving privileges under this section
must be canceled and any suspension of driving privileges under
Section 56-5-2990 for a first conviction may not exceed six
months.
(e) Upon suspending the license or permit to drive or nonresident
operating privilege of any person, or upon determining that the
issuance of a license or permit must be denied to the person, as
hereinbefore in this section directed, the department shall notify
immediately the person in writing and, upon his request, shall
afford him an opportunity for a hearing in accordance with the State
Administrative Procedures Act, except that the scope of the hearing
for the purposes of this section must be 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 test but that his
privilege to drive would be suspended or denied if he refused to
submit to the test, and whether he refused to submit to the test upon
request of the officer. The department shall order that the
suspension or determination that there should be a denial of
issuance either be rescinded or sustained.
(f) When it is finally determined under the procedures of this
section that a nonresident's privilege to operate a motor vehicle in
this State has been suspended, the department shall give information
in writing 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.
(g) (d) Any 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 prior to any trial or
other proceedings in which the results of the tests are used as
evidence. Any A person administering a test at the
request of the defendant shall record in writing the time, method,
and results of the test and promptly furnish a copy to the arresting
law enforcement officer prior to any trial or other
proceedings in which the results of the test are used as evidence.
(h) Any person whose driver's license or permit is suspended
for failure to take the tests required by this section and who is not
convicted of operating a motor vehicle under the influence of
alcohol, drugs, or a combination of them is not required to file
proof of insurance under the Financial Responsibility Act, and no
record of the suspension may be shown on any of his
records."
SECTION 7. This act takes effect upon approval by the
Governor. -----XX----- |