H 4059 Session 111 (1995-1996)
H 4059 General Bill, By Wilkins
A Bill to amend the Code of Laws of South Carolina, 1976, 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; to amend Section 56-1-10, as amended,
relating to definitions for purposes of motor vehicle laws, so as to provide a
definition for "alcohol" and "alcohol concentration"; to amend Section
56-1-2030, as amended, relating to definitions for purposes of commercial
driver's licenses, so as to eliminate the definition for "alcohol" and
"alcohol concentration"; and to amend Section 56-5-2950, as amended, relating
to implied consent to chemical test or breath, blood, and urine to determine
the presence of alcohol or drugs on a motor vehicle operator, so as to revise
the number of tests that may be administered and the procedure for utilizing
the test results, to delete the driver's license and permit suspension
procedure, and to make technical changes.
04/12/95 House Introduced and read first time HJ-35
04/12/95 House Referred to Committee on Judiciary HJ-35
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA,
1976, 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 AND TO PROVIDE
THAT CERTAIN EVIDENCE PRESENTED IN THIS
PROCEEDING MAY BE USED IN A CRIMINAL
PROSECUTION; TO AMEND SECTION 56-1-10, AS
AMENDED, RELATING TO DEFINITIONS FOR PURPOSES OF
MOTOR VEHICLE LAWS, SO AS TO PROVIDE A
DEFINITION FOR "ALCOHOL" AND
"ALCOHOL CONCENTRATION"; TO AMEND
SECTION 56-1-2030, AS AMENDED, RELATING TO
DEFINITIONS FOR PURPOSES OF COMMERCIAL DRIVER'S
LICENSES, SO AS TO ELIMINATE THE DEFINITION FOR
"ALCOHOL" AND "ALCOHOL
CONCENTRATION"; AND TO AMEND SECTION
56-5-2950, AS AMENDED, RELATING TO IMPLIED CONSENT
TO CHEMICAL TEST OR BREATH, BLOOD, AND URINE TO
DETERMINE THE PRESENCE OF ALCOHOL OR DRUGS ON
A MOTOR VEHICLE OPERATOR, SO AS TO REVISE THE
NUMBER OF TESTS THAT MAY BE ADMINISTERED AND
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 56-5-2951. (A) The department shall suspend the
driver's license 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 period of suspension is provided in
subsection (E) of this section. The suspension is effective thirty
days after the department serves the order of suspension on the
person. The order of suspension shall advise the person of his right
to obtain an administrative review and an administrative hearing
regarding the suspension of his driver's license under this section.
(B) When possible, a law enforcement officer immediately shall
serve the order of suspension upon a person who violates a
provision contained in subsection (A). The law enforcement officer
shall 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.
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 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 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.
(D) In addition to requesting an administrative review under
subsection (C), a person whose driver's license or permit has been
suspended 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 not stay the suspension. The department may
order a stay of the remainder of the suspension if the hearing is not
conducted within the sixty-day-period. 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
during two successfully completed tests did not vary by more than
two one-hundredths of one percent and the lower reported reading
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) The period of a driver's license or permit suspension for an
arrested person who has no previous convictions 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, and
who has no previous suspension imposed pursuant to Section
56-5-2950 or Section 56-5-2951 within the ten years preceding a
violation of this section is:
(1) one hundred eighty days for a person who refuses to
submit to a test pursuant to Section 56-5-2950; or
(2) ninety days 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 more.
(F) The period of a driver's license or permit suspension 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, or
who has had a previous suspension imposed pursuant to Section
56-5-2950 or Section 56-5-2951 within the ten years preceding a
violation of this section is one year if he:
(1) refused to submit to the test pursuant to Section
56-5-2950; or
(2) took the test pursuant to Section 56-5-2950 and his
alcohol concentration was ten one-hundredths of one percent or
more.
(G) Once a nonresident's privilege to operate a motor vehicle
has been suspended pursuant to this section, the department shall
notify the motor vehicle administrator of each state from which the
person has obtained a driver's license or permit.
(H) A person whose driver's license is suspended pursuant to
this section is not required to file proof of financial responsibility.
(I) In a criminal prosecution only the lower of the breath tests
administered pursuant to this section is admissible as
evidence."
SECTION 2. Section 56-1-10 of the 1976 Code, as last
amended by Act 181 of 1993, is 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 3. Section 56-1-2030 of the 1976 Code, as last
amended by Acts 134 and 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 4. 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 Tests must
be administered at the direction of a law enforcement officer
who has apprehended on 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 two breath test
tests to determine the alcohol concentration of his blood.
A subsequent test may not be administered less than two
minutes after the first test. The reported test results may be used to
prove a person's alcohol concentration if the two successfully
completed tests yield readings which do not differ from each other
by an alcohol concentration greater than two one-hundredths of one
percent and the lower reading is at least ten one-hundredths of one
percent. If the person is physically unable to provide an
acceptable breath sample because he has an injured mouth, is
unconscious, dead, or for another reason considered
acceptable by the licensed medical personnel or a law
enforcement officer, then a blood sample may be
taken. Only one blood sample is required under the provisions
of this section. If the officer has reasonable grounds to believe
that the person is under the influence of drugs other than alcohol,
then the law enforcement officer may order that a
blood or 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 officer may not require additional
tests of the person as provided in this chapter. The breath
test tests must be administered by a person trained
and certified by SLED, using methods approved by SLED. 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 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
law enforcement officer.
The arresting 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 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 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 tests,
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.
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 before any trial or other proceedings
another proceeding 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 of the results to the arresting officer prior to
before any trial or other proceedings another
proceeding 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 5. This act takes effect upon approval by the
Governor.
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