H 4174 Session 109 (1991-1992)
H 4174 General Bill, By Jennings, L.M. Martin and L.W. Ross
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
56-5-2951 so as to provide that any person upon being arrested for a violation
of Section 56-5-2930 and taken by the arresting officer to a location for
purposes of administering the chemical test of his breath must also have his
conduct at this location videotaped by the arresting officer or another member
of the arresting officer's department, to provide that a copy of this
videotape must be provided to the defendant upon his request and at his
expense before the scheduled trial date and it is admissible as evidence by
either side in this proceeding, and to provide that a person who operates a
motor vehicle in this State is considered to have given consent to the
videotaping of his conduct.
01/15/92 House Introduced and read first time HJ-37
01/15/92 House Referred to Committee on Judiciary HJ-37
03/18/92 House Committee report: Favorable with amendment
Judiciary HJ-16
03/31/92 House Debate interrupted HJ-63
04/01/92 House Amended HJ-15
04/01/92 House Objection by Rep. G. Brown, Scott, J. Brown, Byrd
& Taylor HJ-16
04/07/92 House Objection withdrawn by Rep. G. Brown HJ-38
04/08/92 House Objection withdrawn by Rep. J. Brown HJ-22
04/23/92 House Amended HJ-26
04/23/92 House Read second time HJ-26
04/23/92 House Unanimous consent for third reading on next
legislative day HJ-26
04/24/92 House Read third time and sent to Senate HJ-2
04/28/92 Senate Introduced and read first time SJ-28
04/28/92 Senate Referred to Committee on Judiciary SJ-28
AMENDED
April 23, 1992
H. 4174
Introduced by REPS. Jennings, M. Martin and Ross
S. Printed 4/23/92--H.
Read the first time January 15, 1992.
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 56-5-2951 SO AS TO PROVIDE THAT ANY
PERSON UPON BEING ARRESTED FOR A VIOLATION OF
SECTION 56-5-2930 AND TAKEN BY THE ARRESTING OFFICER
TO A LOCATION FOR PURPOSES OF ADMINISTERING THE
CHEMICAL TEST OF HIS BREATH MUST ALSO HAVE HIS
CONDUCT AT THIS LOCATION VIDEOTAPED BY THE
ARRESTING OFFICER OR ANOTHER MEMBER OF THE
ARRESTING OFFICER'S DEPARTMENT, TO PROVIDE THAT A
COPY OF THIS VIDEOTAPE MUST BE PROVIDED TO THE
DEFENDANT UPON HIS REQUEST AND AT HIS EXPENSE
BEFORE THE SCHEDULED TRIAL DATE AND IT IS ADMISSIBLE
AS EVIDENCE BY EITHER SIDE IN THIS PROCEEDING, AND TO
PROVIDE THAT A PERSON WHO OPERATES A MOTOR
VEHICLE IN THIS STATE IS CONSIDERED TO HAVE GIVEN
CONSENT TO THE VIDEOTAPING OF HIS CONDUCT.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 1, Chapter 1, Title 56 of the 1976 Code is
amended by adding:
"Section 56-1-285. (A) In addition to any penalty imposed by
law, including additional driver's license suspensions, the department
shall suspend for ninety days the driver's license of a person under the
age of twenty-one who operates a motor vehicle and who is determined
to have a blood alcohol content of four 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 or blood 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 who is operating a motor vehicle 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 presence of blood alcohol.
(D) Tests must be administered at the direction of the arresting
officer. At the direction of the arresting officer, the person first must be
offered two breath tests to determine the alcohol content of his blood.
If the person is physically unable to provide an acceptable breath sample
because he has an injured mouth, is unconscious, or for any other reason
considered acceptable by licensed medical personnel, a blood sample
may be taken. Only one blood test is required under the provisions of
this section. The breath tests must be administered by a person trained
and certified by the State Law Enforcement Division, using methods
approved by the division. The arresting officer may not administer the
tests. Blood 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 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,
which shall include, but not be limited to, the following provisions:
(1) The test must be administered as soon as practicable after the arrest;
(2) prior to the first test, the person administering the test must
observe the person to be tested for no less than twenty minutes;
(3) any sequential test shall not be administered less than five
minutes after the first test;
(4) the test results may be used to prove a person's particular
alcohol concentration if the pair of readings are from consecutively
administered tests, and the readings do not differ from each other by an
alcohol concentration greater than two one-hundredths of one percent;
and
(5) the breath testing machine must be maintained and
calibrated by SLED at intervals not more than every ninety days.
The costs of the tests administered at the direction of the arresting
officer must be paid from the general fund of the State.
(E) 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. No inference may be taken
from a person's failure to request additional blood tests. The failure or
inability of the person tested to obtain additional tests does not preclude
the consideration of the tests or samples taken at the direction of the
arresting officer. The arresting officer shall provide reasonable
assistance to the person to contact a qualified person to conduct
additional tests.
(F) 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. No person may be required by the
officer ordering the tests to obtain or take any sample of blood.
(G) If a person refuses, upon the request of the arresting officer,
to submit to chemical tests as provided in subsection (D), none may be
given and the Department of Highways and Public Transportation shall
suspend his license or permit to drive, or any nonresident's operating
privilege, for ninety days.
If a defendant under arrest, upon the request of the arresting officer,
submits to chemical tests as provided in subsection (D), and both test
results indicate a blood alcohol content of four one-hundredths of one
percent or above, the department shall suspend his license or permit to
drive or any nonresident's operating privilege for 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 ninety days after he would otherwise
be eligible to be licensed. 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 ninety days if he refuses to submit to the tests.
If both breath tests required by subsection (D) do not indicate a blood
alcohol content of four one-hundredths of one percent or above, the
person is considered not to have violated the provisions of this section.
(H) If the tests register a blood alcohol content of four one-hundredths of one percent or above, or if the person refuses to be tested,
the arresting officer, acting as an agent for the department, shall
immediately serve a notice and order of suspension on a person who
refuses to submit to the tests or on a person who submits to the chemical
tests the results of which both indicate a blood alcohol concentration of
four one-hundredths of one percent or greater by weight of alcohol. The
arresting officer shall take immediate possession of a license or permit
issued by the department and the notice and order of suspension which
he issues serves as a temporary license effective for twenty days.
A copy of the completed notice and order of suspension form and the
driver's license taken into possession must be forwarded within two
working days to the department by the officer along with a copy of the
report.
The suspension period begins twenty days after the issuance of the
notice and order of suspension. The notice and order of suspension must
advise the defendant of the right to obtain a judicial review as provided
in this section.
(I) The person arrested shall receive a judicial hearing before a
magistrate, municipal judge or municipal recorder within twenty days of
his arrest unless he waives his right to this judicial hearing in writing.
The hearing must be conducted in the manner provided by this
section. If the person waives the judicial hearing or if he fails to appear
at the hearing without just cause, the suspension based upon the
arresting officer's report shall become final.
(J) The sole issues to be considered in a judicial review on the refusal
to take the chemical test are whether:
(1) the person was placed under arrest;
(2) the person was informed that he did not have to take the
tests, but that his privilege to drive must be suspended or denied if he
refused to submit to the tests upon request of the arresting officer;
(3) the person refused to submit to the tests upon request of
the arresting officer.
(K) The sole issues to be considered in a judicial review on the
operation of a motor vehicle while the person under twenty-one years of
age had a blood alcohol content of four one-hundredths of one percent
or above are whether:
(1) the person was placed under arrest;
(2) the person was advised of the consequences of registering
a blood alcohol content of four one-hundredths of one percent or above;
(3) the person registered a blood alcohol content of four one-hundredths of one percent or above on two consecutively administered
tests and that there was not a variance of said tests of more than two one-hundredths of one percent;
(4) the individual taking samples or administering the tests
was qualified in accordance with this section;
(5) the samples given and tests administered were given in
accordance with this section.
The department after the judicial review, if any, shall order that the
suspension, or determination that there should be a denial of issuance,
either be rescinded or sustained. If the suspension is rescinded, the
license must be promptly returned.
(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 and
shall forward the license to the appropriate state motor vehicle
administrator.
(N) A person required to submit to tests by an arresting officer
must be provided with a written report including the time of the incident,
the time of the tests, and the results of the tests. 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 officer.
(O) A person whose driver's license is suspended under this
section is not required to file proof of financial responsibility.
(P) In any criminal prosecution, only the lower breath test
administered pursuant to this section shall be admissible as
evidence."
SECTION 2. Article 1, Chapter 1, Title 56 of the 1976 Code is
amended by adding:
"Section 56-1-286. (A) In addition to any penalty imposed by
law, including additional driver's license suspensions, the department
shall suspend for ninety days the driver's license of a person twenty-one
years or older who operates a motor vehicle and who is determined to
have a blood alcohol content of fifteen one-hundredths of one percent
or above.
(B) A person who operates a motor vehicle in this State is
considered to have given consent to chemical tests of his breath or blood
for the purpose of determining the presence of alcohol.
(C) A law enforcement officer who has arrested an operator of a
motor vehicle for any offense arising out of acts alleged to have been
committed while being under the influence of alcohol may order the
testing of the person arrested to determine the presence of blood alcohol.
(D) Tests must be administered at the direction of the arresting
officer. At the direction of the arresting officer, the person must be
offered two breath tests, or a second test if a first test has already been
given pursuant to the terms of Section 56-5-2950, to determine the
alcohol content of his blood. If the person is physically unable to
provide an acceptable breath sample because he has an injured mouth,
is unconscious, or for any other reason considered acceptable by
licensed medical personnel, a blood sample may be taken. Only one
blood test is required under the provisions of this section. The breath
tests must be administered by a person trained and certified by the State
Law Enforcement Division, using methods approved by the division.
The arresting officer may not administer the tests. Blood 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 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, which shall include, but
not be limited to, the following provisions:
(1) The test must be administered as soon as practicable after
the arrest;
(2) prior to the first test, the person administering the test
must observe the person to be tested for no less than twenty (20)
minutes;
(3) any sequential test shall not be administered less than five
minutes after the first test;
(4) the test results may be used to prove a person's particular
alcohol concentration if the pair of readings are from consecutively
administered tests, and the readings do not differ from each other by an
alcohol concentration greater than two one-hundredths of one percent;
and
(5) the breath testing machine must be maintained and
calibrated by SLED at intervals not more than every ninety days.
The costs of the tests administered at the direction of the arresting
officer must be paid from the general fund of the State.
(E) 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. No inference may be taken
from a person's failure to request additional blood tests. The failure or
inability of the person tested to obtain additional tests does not preclude
the consideration of the tests or samples taken at the direction of the
arresting officer. The arresting officer shall provide reasonable
assistance to the person to contact a qualified person to conduct
additional tests.
(F) 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. No person may be required by the
officer ordering the tests to obtain or take any sample of blood.
(G)(1) If a person under arrest refuses, upon the request of the
arresting officer, to submit to chemical tests as provided in subsection
(D) of this section, none may be given, but the department, on the basis
of a report of the arresting officer that the arrested person was operating
a motor vehicle in this State while under the influence of alcohol and
that the person 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 the final determination is made pursuant
to this section. 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.
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 purpose 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.
(2) If a defendant under arrest, upon the request of the arresting
officer, submits to chemical tests as provided in subsection (D), and both
test results indicate a blood alcohol content of fifteen one-hundredths of
one percent or above, the department shall suspend his license or permit
to drive or any nonresident's operating privilege for ninety days.
If both breath tests required by subsection (D) do not indicate a blood
alcohol content of fifteen one-hundredths of one percent or above, the
person is considered not to have violated the provisions of this section.
(H) If the tests register a blood alcohol content of fifteen one-hundredths of one percent or above, the arresting officer, acting as an
agent for the department, shall immediately serve a notice and order of
suspension on a person who submits to the chemical tests the results of
which both indicate a blood alcohol concentration of fifteen
one-hundredths of one percent or greater by weight of alcohol. The
arresting officer shall take immediate possession of a license or permit
issued by the department and the notice and order of suspension which
he issues serves as a temporary license effective for twenty days.
A copy of the completed notice and order of suspension form and the
driver's license taken into possession must be forwarded within two
working days to the department by the officer along with a copy of the
report.
The suspension period begins twenty days after the issuance of the
notice and order of suspension. The notice and order of suspension must
advise the defendant of the right to obtain a judicial review as provided
in this section.
(I) The person arrested shall receive a judicial hearing before a
magistrate, municipal judge or municipal recorder within twenty days of
his arrest unless he waives his right to this judicial hearing in writing.
The hearing must be conducted in the manner provided by this
section. If the person waives the judicial hearing or if he fails to appear
at the hearing without just cause, the suspension based upon the
arresting officer's report shall become final.
(J) The sole issues to be considered in a judicial review on the
operation of a motor vehicle while the person had a blood alcohol
content of fifteen one-hundredths of one percent or above are whether:
(1) the person was placed under arrest;
(2) the person was advised of the consequences of registering
a blood alcohol content of fifteen one-hundredths of one percent or
above;
(3) the person registered a blood alcohol content of fifteen
one-hundredths of one percent or above on two sequential tests and that
there was not a variance of said tests of more than two one-hundreds of
one percent;
(4) the individual taking samples or administering the tests
was qualified in accordance with this section;
(5) the samples given and tests administered were given in
accordance with this section.
The Department after the judicial review, if any, shall order that the
suspension, or determination that there should be a denial of issuance,
either be rescinded or sustained. If the suspension is rescinded, the
license must be promptly returned.
(K) 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.
(L) 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 and
shall forward the license to the appropriate state motor vehicle
administrator.
(M) A person required to submit to tests by a law enforcement
officer must be provided with a written report including the time of the
incident, the time of the tests, and the results of the tests. 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 officer.
(N) A person whose driver's license is suspended under this
section is not required to file proof of financial responsibility.
(O) In any criminal prosecution only the lower of the breath tests
administered pursuant to this section shall be admissible as
evidence."
SECTION 3. The 1976 Code is amended by adding:
"Section 56-5-2951. Upon being arrested for a violation of
Sections 56-5-2930, 56-5-2945, 56-1-285, or 56-1-286 and taken by the
arresting officer to a location for purposes of administering the chemical
test of his breath, a person must have his conduct at this location
videotaped. This videotape shall include the entire breath test
procedure. At the beginning of the videotape, the person arrested must
be informed that he is being videotaped and of his rights pursuant to
Section 56-5-2950. This videotape is admissible as evidence by either
side.
However, nothing in this section shall be construed as prohibiting the
introduction of other competent evidence in the trial of violation of
Section 56-5-2930 or 56-5-2945. Failure by the law enforcement officers
of the arresting jurisdiction to produce a videotape is not alone grounds
for dismissal of any such charge if the arresting officer submits a signed
affidavit certifying that the videotape equipment in the arresting
jurisdiction was at the time of the arrest in an inoperable condition even
though reasonable efforts had been made to maintain the equipment in
an operable condition or, in the alternative, submits a signed affidavit
certifying that it is physically impossible to produce a videotape due to
exigent circumstances.
A fee of ten dollars is assessed all individuals at the time of conviction
of, pleading guilty or nolo contendere to, or forfeiting bond for Section
56-5-2930 or Section 56-5-2945. The fee shall be collected by the
appropriate court official and remitted to SLED. The division shall
administer the Implied Consent Program, including supplying and
maintaining all necessary equipment, including videotaping and
displaying at all breath testing sites and all applicable courts, and the
division shall promulgate the necessary regulations to administer the
program. The division shall be authorized to receive funds remitted in
accordance with this section, and to retain and expend such funds for the
operation of the South Carolina Implied Consent Program as deemed
necessary and appropriate by the division. The division shall be
authorized to carry forward any unexpended funds received in
accordance with this section as of June 30 of each year, and to expend
such carried forward funds for the operation of the South Carolina
Implied Consent Program. The division shall be required to report the
revenue received under this section and the expenditures for which such
revenue was used as required in the division's annual appropriation
request to the General Assembly.
The division shall promulgate those regulations necessary to
implement the provisions of this section."
SECTION 4. This act takes effect on July 1, 1993, except that the fee
assessed by Section 56-5-2951 shall be collected starting from January
1, 1993 at the time of conviction of, pleading guilty or nolo contendere
to, or forfeiting bond for violations of Sections 56-5-2930 or 56-5-2945.
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