H*3026(Rat #0208, Act #0138 of 1991)  General Bill, By L.E. Gentry
 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 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 implied consent by operators of watercraft to
 testing of bodily fluids for alcohol and drugs, and to provide for the testing
 procedure and penalties for violations; and to add the crime provided in
 Section 50-21-112(A) to the list of crimes classified as felonies in Section
 16-1-10.-amended title

   12/12/90  House  Prefiled
   12/12/90  House  Referred to Committee on Judiciary
   01/08/91  House  Introduced and read first time HJ-44
   01/08/91  House  Referred to Committee on Judiciary HJ-45
   01/30/91  House  Committee report: Favorable with amendment
                     Judiciary HJ-6
   01/31/91  House  Amended HJ-475
   01/31/91  House  Read second time HJ-480
   01/31/91  House  Unanimous consent for third reading on next
                     legislative day HJ-480
   02/01/91  House  Read third time and sent to Senate HJ-1
   02/05/91  Senate Introduced and read first time SJ-15
   02/05/91  Senate Referred to Committee on Judiciary SJ-15
   04/10/91  Senate Committee report: Favorable Judiciary SJ-17
   04/16/91  Senate Read second time SJ-25
   04/16/91  Senate Ordered to third reading with notice of
                     amendments SJ-25
   04/25/91  Senate Amended SJ-45
   04/25/91  Senate Read third time and returned to House with
                     amendments SJ-45
   05/01/91  House  Non-concurrence in Senate amendment HJ-44
   05/14/91  Senate Senate insists upon amendment and conference
                     committee appointed Sens. Land, Passailaigue,
                     Patterson SJ-28
   05/15/91  House  Conference committee appointed Gentry, Nettles &
                     Harrison HJ-5
   05/22/91  Senate Conference report received and adopted SJ-16
   06/04/91  House  Conference report received and adopted HJ-11
   06/04/91  House  Ordered enrolled for ratification HJ-17
   06/06/91         Ratified R 208
   06/12/91         Signed By Governor
   06/12/91         Effective date 06/12/91
   06/12/91         Act No. 138
   06/27/91         Copies available

AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTIONS 50-21-112 AND 50-21-114, 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 IMPLIED CONSENT BY OPERATORS OF WATERCRAFT TO TESTING OF BODILY FLUIDS FOR ALCOHOL AND DRUGS, AND TO PROVIDE FOR THE TESTING PROCEDURE AND PENALTIES FOR VIOLATIONS; AND TO ADD THE CRIME PROVIDED IN SECTION 50-21-112(A) TO THE LIST OF CRIMES CLASSIFIED AS FELONIES IN SECTION 16-1-10.

Be it enacted by the General Assembly of the State of South Carolina:

Operating a moving vessel while under the influence of drugs or alcohol

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) 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.

(C) 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.

(D) 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.

(E) 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 the 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."

Crime added to list of felonies

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.

Time effective

SECTION 3. This act takes effect upon approval by the Governor.

Approved the 12th day of June, 1991.