S 585 Session 109 (1991-1992)
S 0585 General Bill, By J.V. Smith, J.C. Hayes, I.E. Lourie, M.T. Rose and
Wilson
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Sections
50-21-112 and 50-21-114 so as to establish an offense for causing injury,
death, or property damage to another while operating watercraft under the
influence of alcohol or drugs, to provide implied consent to testing of body
fluids for alcohol and drugs by operators of watercraft, to provide for
testing procedures and assessment of fees, to provide a schedule of blood
alcohol content that gives rise to certain inferences and presumptions of
operating watercraft under the influence, and to provide penalties.
02/05/91 Senate Introduced and read first time SJ-9
02/05/91 Senate Referred to Committee on Judiciary SJ-9
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTIONS 50-21-112 AND 50-21-114 SO AS TO
ESTABLISH AN OFFENSE FOR CAUSING INJURY, DEATH, OR
PROPERTY DAMAGE TO ANOTHER WHILE OPERATING
WATERCRAFT UNDER THE INFLUENCE OF ALCOHOL OR
DRUGS, TO PROVIDE IMPLIED CONSENT TO TESTING OF
BODY FLUIDS FOR ALCOHOL AND DRUGS BY OPERATORS OF
WATERCRAFT, TO PROVIDE FOR TESTING PROCEDURES AND
ASSESSMENT OF FEES, TO PROVIDE A SCHEDULE OF BLOOD
ALCOHOL CONTENT THAT GIVES RISE TO CERTAIN
INFERENCES AND PRESUMPTIONS OF OPERATING
WATERCRAFT UNDER THE INFLUENCE, AND TO PROVIDE
PENALTIES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 50-21-112. (A) A person who, while under the
influence of alcohol, drugs, or the combination of alcohol and drugs,
operates, navigates, steers, or drives a moving vessel, or is in actual
physical control of a moving vessel, or manipulates any moving water
skis, moving aquaplane, moving surfboard, or similar moving device
upon the waters of this State and does any act forbidden by law or
neglects a duty imposed by law, which proximately causes great bodily
injury or death of a 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 ten years when death results.
(B) No part of the minimum sentences required to be imposed by
subsection (A) may be suspended, and probation must not be granted for
any portion.
(C) As used in subsection (A) `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 a bodily member or organ.
(D) A person who, while under the influence of alcohol, drugs, or
the combination of alcohol and drugs, operates, navigates, steers, or
drives a vessel, or is in actual physical control of a moving vessel, or
manipulates any moving water skis, moving aquaplane, moving
surfboard, or similar moving device upon the waters of this State and
does any act forbidden by law or neglects a duty imposed by law, which
act or neglect proximately causes damage to property other than his own,
or injury other than great bodily injury to a person other than himself, is
guilty of a misdemeanor and, upon conviction, must be punished by a
fine of not less than one hundred nor more than two hundred dollars or
imprisonment for not more than thirty days.
(E) The department must suspend the privilege of a person who
is convicted or who pleads guilty or nolo contendere under this section
to operate, navigate, steer, or drive a vessel or be in actual physical
control of a moving vessel or manipulates any moving water skis,
moving aquaplane, moving surfboard, or similar moving device on
waters of this State for a period to include any term of imprisonment
plus:
(1) three years in the case of death or great bodily injury; or
(2) one year in the case of property damage or injury other
than great bodily injury.
(F) A person who, while operating privileges are under
suspension, operates, navigates, steers, or drives a vessel or is in actual
physical control of a moving vessel or manipulates any moving water
skis, moving aquaplane, moving surfboard, or similar moving device, on
waters of this State is guilty of a misdemeanor and, upon conviction,
must be punished by a fine of not less than one hundred dollars nor more
than two hundred dollars or imprisonment for not more than thirty days.
Section 50-21-114. (A) (1) A person who operates, navigates, steers,
or drives a vessel, or is in actual physical control of a moving vessel, or
manipulates any moving water skis, moving aquaplane, moving
surfboard, or similar moving device, which is involved in a reportable
boating accident or marine casualty upon the waters of this State, is
considered to have given consent to a chemical test or analysis of his
breath, blood, or urine to determine 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 or in physical control of a
moving vessel 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,
navigating, steering, or driving a vessel, or being in actual physical
control of a moving vessel, or manipulating any moving water skis,
moving aquaplane, moving surfboard, or similar moving device 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 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 breath analysis reading is ten one-hundredths of one percent or
above by weight of alcohol in the person's blood, the officer may not
require additional tests of the person as provided in this chapter.
(2) The breath test must be administered by a person trained
and certified by the South Carolina Law Enforcement Division, 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, or 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 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 operate, navigate, steer, or drive a vessel, or be in actual
physical control of a moving vessel, or manipulate any moving water
skis, moving aquaplane, moving surfboard, or similar moving device
must be suspended or denied for one hundred eighty days if he refuses
to submit to the tests.
(3) A hospital, physician, qualified technician, chemist, or
registered nurse who takes 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.
(4) 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 a
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.
(5) The arresting officer shall provide reasonable assistance to
the person to contact a qualified person to conduct additional tests.
(6) SLED shall administer the provisions of this subsection
and may promulgate regulations necessary to carry out its provisions.
The cost 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 50-21-112. 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 SLED and individuals and institutions
obtaining the samples forwarded to SLED.
(B) In any criminal prosecution for a violation of Section
50-21-112 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 presumed
conclusively 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.
(C) The provisions of this section may not be construed as limiting
the introduction of other competent evidence bearing upon the question
of whether or not the person was under the influence of alcohol, drugs,
or a combination of them.
(D) 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).
(E) If a person under arrest refuses, upon the request of a law
enforcement officer, to submit to chemical tests provided in subsection
(A), none may be given, but the department, on the basis of a report
from the law enforcement officer that the arrested person was operating,
navigating, steering, or driving a vessel, or was in actual physical control
of a moving vessel, or was manipulating any moving water skis, moving
aquaplane, moving surfboard, or similar moving device upon the waters
of 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 privilege to perform the activity for one hundred
eighty days. The one hundred eighty-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 one hundred
eighty-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 violation of Section
50-21-112, within thirty days of arrest, the period of the suspension
under this section must be canceled.
(F) Upon suspending the operating privilege of a person, the
department 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 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.
(G) If a boating accident or marine casualty 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 2. The crime provided for in Section 50-21-112(A) of the
1976 Code as contained in Section 1 of this act is added to the list of
crimes classified as felonies in Section 16-1-10.
SECTION 3. This act takes effect upon approval by the Governor.
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