S 306 Session 112 (1997-1998)
S 0306 General Bill, By Hayes, Alexander, Courson, Drummond, Fair, Giese,
Gregory, Jackson, Lander, Leatherman, Martin, McGill, Mescher, O'Dell,
Passailaigue, Peeler, M.T. Rose, Russell, Ryberg, J.V. Smith, Thomas, Waldrep,
Washington and Wilson
Similar(H 3350)
A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION
56-1-287 BY ENACTING THE OMNIBUS HIGHWAY SAFETY ACT.-SHORT TITLE
02/04/97 Senate Introduced and read first time SJ-10
02/04/97 Senate Referred to Committee on Judiciary SJ-10
04/22/97 Senate Committee report: Majority favorable with amend.,
minority unfavorable Judiciary SJ-18
04/14/98 Senate Special order SJ-43
04/21/98 Senate Read second time SJ-41
04/21/98 Senate Ordered to third reading with notice of
amendments SJ-41
05/21/98 Senate Recommitted to Committee on Judiciary SJ-33
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
April 22, 1997
S. 306
Introduced by Senators Hayes, Alexander, Courson, Drummond,
Fair, Giese, Gregory, Jackson, Lander, Leatherman, Martin, McGill,
Mescher, O'Dell, Passailaigue, Peeler, Rose, Russell, Ryberg,
J. Verne Smith, Thomas, Waldrep, Washington and Wilson
S. Printed 4/22/97--S.
Read the first time February 4, 1997.
THE COMMITTEE ON JUDICIARY
To whom was referred a Bill (S. 306), to amend the Code of Laws
of South Carolina, 1976, by adding Section 56-1-287 by enacting the
Omnibus Highway Safety Act, etc., respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting
words and inserting therein the following:
/SECTION 1. Article 1, Chapter 1, Title 56 of the 1976 Code is
amended by adding:
"Section 56-1-286. (A) In addition to any other penalty
imposed by law, including additional driver's license suspensions, the
Department of Public Safety must suspend the driver's license,
permit, or nonresident operating privilege of, or deny the issuance of
a license or permit to a person under the age of twenty-one who
drives a motor vehicle and has an alcohol concentration of two
one-hundredths of one percent or more.
(B) A person under the age of twenty-one who drives 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 (Uniform
Act Regulating Traffic on Highways), or any other traffic offense
established by a political subdivision of this State, and has probable
cause to believe that the person under the age of twenty-one has
consumed alcoholic beverages and driven a motor vehicle may order
the testing of the person arrested to determine the person's alcohol
concentration.
A law enforcement officer who has a reasonable suspicion to
believe that a motor vehicle is being driven by a person under the age
of twenty-one who has consumed alcoholic beverages may stop the
driver for further investigation. The law enforcement officer may
order the testing of the person to determine the person's alcohol
concentration if the officer establishes probable cause that the motor
vehicle was being driven by a person under the age of twenty-one
who had consumed alcoholic beverages.
(D) A test must be administered at the direction of the primary
investigating law enforcement officer. At the direction of the officer,
the person first must be offered a breath test to determine the person's
alcohol concentration. 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 any other reason considered acceptable
by 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. Before the breath test is administered, a 0.10 percent
simulator test must be performed and read between 0.095 percent and
0.105 percent. The primary investigating 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 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
any proceeding. 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 officer. The
primary investigating officer must provide reasonable assistance to
the person to contact and obtain a qualified person to conduct
additional tests. Failure to provide reasonable assistance upon
request to obtain additional tests bars the admissibility of the breath
test result in any judicial proceeding.
(E) 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 the primary investigating 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 or urine.
(F) If a person refuses, upon the request of the primary
investigating officer, to submit to chemical tests as provided in
subsection (C), or if the person submits to chemical tests as provided
in subsection (C) and the tests results indicate an alcohol
concentration of two one-hundredths of one percent or more, the
department must suspend his license, permit, or any nonresident
operating privilege, or deny the issuance of a license or permit to him
for:
(1) six months; or
(2) one year if the person, within the ten years preceding the
violation of this section, has been previously convicted of violating
Section 56-5-2930 or Section 56-5-2945 or any other 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 has had a
previous suspension imposed pursuant to Section 56-1-286 or Section
56-5-2950.
(G) No tests may be administered or samples taken unless the
person has been informed that:
(1) 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 six
months if he refuses to submit to the tests and that his refusal may be
used against him in court; and
(2) his privilege to drive must be suspended for at least six
months if he takes the tests or gives the samples and has an alcohol
concentration of two one-hundredths of one percent or more.
The primary investigating officer must promptly notify the
department of the refusal of a person to submit to a test requested
pursuant to this section as well as the tests results of any person who
submits to tests pursuant to this section and registers an alcohol
concentration of two one-hundredths of one percent or more. The
notification must be in a manner prescribed by the department.
(H) If the test registers an alcohol concentration of two
one-hundredths of one percent or more, or if the person refuses to be
tested, the department must serve an order of restriction on the
person. The order of restriction limits the person's privilege to drive
so that the person may drive only to and from work or his place of
education and in the course of his employment or education. The
person may apply for a restricted driver's license from the department
under subsection (N). The department must serve an order of
suspension on the person if the person does not apply for a restricted
driver's license from the department or is refused a restricted driver's
license by the department under subsection (N) within thirty days
after the order of restriction is served.
The order of restriction shall remain in effect until the order of
restriction is rescinded or an order of suspension is served on the
person. The period of suspension provided in subsection (F) begins
on the day the order of suspension is served on the person. The order
of restriction shall advise the person of his right to obtain a restricted
driver's license, an administrative review, and an administrative
hearing regarding the suspension of his privilege to drive under this
section.
(I) If a person who has been issued an order of restriction under
subsection (H) desires an administrative review, he shall request a
review by the department, in writing, within ten days after the order
of restriction is served. Upon receiving a request for an
administrative review, the director or his designee shall review:
(1) the order of restriction;
(2) the primary investigating law enforcement officer's
affidavit;
(3) the 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 the department should rescind the order of restriction. The
director or his designee shall report in writing the results of the
review to the person requesting the review within ten days after the
request for the review is received.
An administrative review of an order of restriction is not a contested
proceeding under the Administrative Procedures Act, does not stay
a restriction, 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), an administrative hearing may be requested within
thirty days after the order of restriction is served by filing a written
request with the department. The department shall serve an order of
suspension on the person if the person does not request a hearing
within the thirty-day period. The department shall conduct the
hearing within thirty days after the request for the hearing is received.
The scope of the hearing must be limited to whether the person:
(1) was lawfully arrested or detained;
(2) was lawfully ordered to submit to chemical tests pursuant to
this section;
(3) was advised of the consequences of taking or refusing to
take a test pursuant to this section;
(4) refused to submit to a test pursuant to this section; or
(5) consented to taking a test pursuant to this section and the
(a) reported alcohol concentration at the time of testing was
two one-hundredths of one percent or more;
(b) individual who administered the test or took samples was
qualified pursuant to this section; and
(c) tests administered and samples taken were conducted in
accordance with this section and division procedures.
Nothing in this section prohibits the introduction of competent
evidence at the administrative hearing on the issue of the accuracy of
the breath test result.
A written order must be issued to the person rescinding the order of
restriction or suspending the person's license, permit, or
nonresident's operating privilege, or denying the issuance of a license
or permit within ten days after the conclusion of the administrative
hearing. An administrative hearing is a contested proceeding under
the Administrative Procedures Act. A person has a right to judicial
review pursuant to the Administrative Procedures Act.
(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).
(L) When a nonresident's privilege to drive a motor vehicle in this
State has been suspended under the procedures of this section, the
department shall give written notice 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.
(M) A person required to submit to tests by the primary
investigating officer must be provided with a written report including
the time of arrest, the time of the tests, and the results of the tests
before any proceeding in which the results of the tests are used as
evidence. A person administering a test at the request of the person
giving the samples shall record in writing the time, method, and
results of the test and promptly furnish a copy to the officer before
any proceeding in which the results of the tests are used as evidence.
(N) (1) If an individual is employed or enrolled in a school,
college, or university at any time while his privilege to drive is
restricted by an order of restriction under this section, he may apply
for a restricted driver's license permitting him to drive only to and
from work or his place of education and in the course of his
employment or education during the period of restriction. The
department may issue the restricted driver's license only upon a
showing by the individual that he is employed or enrolled in a school,
college, or university, that he lives further than one mile from his
place of employment or education, and that there is no adequate
public transportation between his residence and his place of
employment or place of education.
(2) If the department issues a restricted driver's license, it shall
designate reasonable restrictions on the times during which and
routes on which the individual may operate a motor vehicle. A
change in the employment hours, place of employment, status as a
student, or residence must be reported immediately to the department
by the licensee.
(3) The fee for each restricted driver's license, including a
reissue caused by changes in the place and hours of employment,
education, or residence, is twenty dollars.
(4) A person shall not drive a motor vehicle on a public
highway of this State outside the time limits and route imposed under
this section by an order of restriction or restricted license. A person
convicted of driving outside the restricted route must be fined two
hundred dollars.
(O) A person whose driver's license or permit is suspended under
this section is not required to file proof of financial responsibility.
(P) The department shall administer the provisions of this section,
not including subsection (D), and may promulgate regulations
necessary to carry out its provisions.
(Q) A person's privilege to drive shall not be restricted or
suspended under this section if his alcohol concentration is
determined by a Breathalyzer machine."
SECTION 2. The 1976 Code is amended by adding:
"Section 56-5-2951. (A) The Department of Public Safety shall
suspend the driver's license, permit, or nonresident operating
privilege of, or deny the issuance of a license or permit to a person
who drives a motor vehicle and refuses to submit to a test required by
Section 56-5-2950 or has an alcohol concentration of ten
one-hundredths of one percent or more.
(B) If the test registers an alcohol concentration of ten
one-hundredths of one percent or more, or if the person refuses to be
tested, the department must serve an order of restriction on the
person. The order of restriction limits the person's privilege to drive
so that the person may drive only to and from work or his place of
education and in the course of his employment or education. The
person may apply for a restricted driver's license from the department
under subsection (G). The department must serve an order of
suspension on the person if the person does not apply for a restricted
driver's license from the department or is refused a restricted driver's
license by the department under subsection (G) within thirty days
after the order of restriction is served.
The order of restriction shall remain in effect until the order of
restriction is rescinded or an order of suspension is served on the
person. The period of suspension provided in subsection (E) begins
on the day the order of suspension is served on the person. The order
of restriction shall advise the person of his right to obtain a restricted
driver's license, an administrative review, and an administrative
hearing regarding the suspension of his privilege to drive under this
section.
(C) If a person who has been issued an order of restriction under
subsection (B) desires an administrative review, he shall request a
review by the department, in writing, within ten days after the order
of restriction is served. Upon receiving a request for an
administrative review, the director or his designee shall review:
(1) the order of restriction;
(2) the arresting law enforcement officer's incident report;
(3) the 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 the department should rescind the order of restriction. The
director or his designee shall report in writing the results of the
review to the person requesting the review within ten days after the
request for the review is received.
An administrative review of an order of restriction is not a contested
proceeding under the Administrative Procedures Act, does not stay
a restriction, 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), an administrative hearing may be requested within
thirty days after the order of restriction is served by filing a written
request with the department. The department shall serve an order of
suspension on the person if the person does not request a hearing
within the thirty-day period. The department shall conduct the
hearing within thirty days after the request for the hearing is received.
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
ten one-hundredths of one percent or more;
(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.
Nothing in this section prohibits the introduction of competent
evidence at the administrative hearing on the issue of the accuracy of
the breath test result.
A written order must be issued to the person rescinding the order of
restriction or suspending the person's license, permit, or
nonresident's operating privilege, or denying the issuance of a license
or permit within ten days after the conclusion of the administrative
hearing. An administrative hearing is a contested proceeding under
the Administrative Procedures Act. A person has a right to judicial
review pursuant to the Administrative Procedures Act.
(E) (1) The period of a driver's license, permit, or nonresident
operating privilege suspension for, or denial of issuance of a license
or permit to an arrested person who has no previous convictions for
violating Section 56-5-2930 or Section 56-5-2945 or any other 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
had 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:
(a) one hundred eighty days for a person who refuses to
submit to a test pursuant to Section 56-5-2950; or
(b) 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.
(2) The period of a driver's license, permit, or nonresident
operating privilege suspension for, or denial of issuance of a license
or permit to an arrested person who has been previously convicted for
violating Section 56-5-2930 or Section 56-5-2945 or any other law
of this State or another state that prohibits a person from operating a
motor vehicle while under the influence of alcohol or any other 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 ten years preceding a violation of this
section is one year if he:
(a) refuses to submit to the test pursuant to Section
56-5-2950; or
(b) takes a test pursuant to Section 56-5-2950 and has an
alcohol concentration of ten one-hundredths of one percent or more.
(F) When a nonresident's privilege to drive a motor vehicle in this
State has been suspended under the provisions of this section, the
department must give written notice 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.
(G) (1) If an individual is employed or enrolled in a school,
college, or university at any time while his privilege to drive is
restricted by an order of restriction under this section, he may apply
for a restricted driver's license permitting him to drive only to and
from work or his place of education and in the course of his
employment or education during the period of restriction. The
department may issue the restricted driver's license only upon
showing by the individual that he is employed or enrolled in a school,
college, or university, that he lives further than one mile from his
place of employment or education, and that there is no adequate
public transportation between his residence and his place of
employment or place of education.
(2) If the department issues a restricted driver's license, it shall
designate reasonable restrictions on the times during which and
routes on which the individual may operate a motor vehicle. A
change in the employment hours, place of employment, status as a
student, or residence must be reported immediately to the department
by the licensee.
(3) The fee for each restricted driver's license, including a
reissue caused by changes in the place and hours of employment,
education, or residence, is twenty dollars.
(4) A person shall not drive a motor vehicle on a public
highway of this State outside the time limits and route imposed under
this section by an order of restriction or restricted license. A person
convicted of driving outside of restriction must be fined two hundred
dollars.
(H) The department shall not suspend the privilege to drive of a
person under the age of twenty-one under Section 56-1-286 if the
person's privilege to drive has been suspended under this section
arising from the same incident.
(I) A person whose driver's license or permit is suspended
pursuant to this section is not required to file proof of financial
responsibility.
(J) The department shall administer the provisions of this section
and may promulgate regulations necessary to carry out its
provisions."
SECTION 3. Section 56-1-10 of the 1976 Code, as last amended
by Act 459 of 1996, is further amended by adding:
"(16) 'Alcohol' means a substance containing any form of alcohol
including, but not limited to, ethanol, methanol, propanol, and
isopropanol.
(17) `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."
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's 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's 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's 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
amended.
(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's license.
(13)(11) 'Driver's 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 five years or more.
(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. 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
a motor vehicle within this State while:
(1) having an alcohol concentration of ten one-hundredths of one
percent or more;
(2) under the influence of alcohol;
(3) under the influence of any other drug or a combination of other
drugs or substances which cause impairment; or
(4) under the combined influence of alcohol or any other 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."
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 breath 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
person's 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
any other reason considered acceptable by the licensed
medical personnel, a blood sample may be taken. If the officer has
reasonable grounds to believe that 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 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 must be administered by a person trained and certified by
SLED, using methods approved by SLED. The arresting officer may
not administer the tests. Before the breath test is administered, a 0.10
percent simulator test must be performed and read between 0.095
percent and 0.105 percent. 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:
(1) 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 one hundred eighty days if he
refuses to submit to the tests and that his refusal may be used
against him in court; and
(2) his privilege to drive must be suspended for at least ninety
days if he takes the tests or gives the samples and has an alcohol
concentration of ten one-hundredths of one percent or more.
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 must provide reasonable
assistance to the person to contact a qualified person to conduct
additional tests. The arresting officer also must provide
reasonable assistance to the person to obtain additional tests if the
person's breath test result was fifteen one-hundredths of one percent
or less. Failure to provide reasonable assistance upon request to
obtain additional tests bars the admissibility of the breath test result
in any judicial proceeding.
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 the criminal prosecution for the
a 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 rebuttably
presumed that the person had an illegal alcohol concentration.
(4) If the person obtained a blood test and the alcohol
concentration at that time was less than ten one-hundredths of one
percent, it may be rebuttably presumed that the person did not have
an illegal alcohol concentration and was not 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.
Nothing in this section prohibits the introduction of competent
evidence at the criminal prosecution for a violation of Section
56-5-2930 or 56-5-2945 on the issue of the accuracy of the breath test
result.
(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 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 he suspension may be shown on any of his records."
SECTION 7. Section 56-5-2990, as last amended by Act 459 of
1996, is further amended to read:
"Section 56-5-2990. The department shall suspend the driver's
license of any person who is convicted, receives sentence upon a plea
of guilty or of nolo contendere, or forfeits bail posted for the
violation of Section 56-5-2930 or for the violation of any other law
or ordinance of this State or of any municipality of this State that
prohibits any person from operating a motor vehicle while under the
influence of intoxicating liquor, drugs, or narcotics for six months for
the first conviction, plea of guilty or of nolo contendere, or forfeiture
of bail, one year for the second conviction, plea of guilty or of nolo
contendere, or forfeiture of bail, two years for the third offense, three
years for the fourth offense, and a permanent revocation of the
driver's license for fifth and subsequent offenses. Only those
violations which occurred within ten years including and immediately
preceding the date of the last violation shall constitute prior violations
within the meaning of this section. Any person whose license is
revoked following conviction for a fifth offense as provided in this
section is forever barred from being issued any license by the
department to operate a motor vehicle.
Any person whose license is suspended under the provisions of this
section, Section 56-1-286, or Section 56-5-2951 must be
notified of suspension by the department of the requirement to be
evaluated by and successfully complete an Alcohol and Drug Safety
Action Program certified by the Department of Alcohol and Other
Drug Abuse Services prior to reinstatement of the license. An
assessment of the degree and kind of alcohol and drug abuse
problem, if any, of the applicant must be prepared and a plan of
education or treatment, or both, must be developed based upon the
assessment. Entry into and successful completion of the services, if
such services are necessary, recommended in the plan of education
or treatment, or both, developed for the applicant is a mandatory
requirement of the restoration of driving privileges to the applicant.
The applicant shall bear the cost of the services to be determined by
the administering agency and approved by the Department of Alcohol
and Other Drug Abuse Services. The cost may not exceed
seventy-five dollars for assessment, one hundred twenty-five dollars
for education services, two hundred twenty-five dollars for treatment
services, and three hundred dollars in total for any and all services.
No applicant may be denied services due to an inability to pay. The
applicant shall be terminated from the Alcohol and Drug Safety
Action Program no later than six months after the date of program
enrollment. If the applicant has not successfully completed the
services as directed by the Alcohol and Drug Safety Action Program
by the end of the six-month period of enrollment, a hearing must be
provided by the administering agency and if further needed by the
Department of Alcohol and Other Drug Abuse Services. If the
applicant is unsuccessful in the Alcohol and Drug Safety Action
Program, the department may restore the privilege to operate a motor
vehicle upon the recommendation of the Medical Advisory Board as
utilized by the department if it determines public safety and welfare
of the petitioner may not be endangered.
The department and the Department of Alcohol and Other Drug
Abuse Services shall develop procedures necessary for the
communication of information pertaining to relicensing or otherwise.
Such procedures must be consistent with the confidentiality laws of
the State and the United States. Successful completion of education,
treatment services, or both, for purposes of receiving a provisional
driver's license as stipulated in Section 56-1-1330 may be substituted
in lieu of services received under the authority of this section at the
discretion of the applicant. If the driver's license of any person is
suspended by authority of this section, no insurance company may
refuse to issue insurance to cover the remaining members of his
family, but the insurance company is not liable for any actions of the
person whose license has been suspended or who has voluntarily
turned his license in to the department."
SECTION 8. This act takes effect upon approval by the
Governor./
Amend title to conform.
Majority favorable. Minority unfavorable.
DONALD H. HOLLAND ROBERT FORD
For Majority. For Minority.
STATEMENT OF ESTIMATED FISCAL
IMPACT
1. First Year General Funds $87,419
2. Annually Thereafter $61,054
Itemization of Additional Cost to General Fund for First
Year
RECURRING NON-RECURRING
Personal Service &
Employer Contributions $52,254
FTE(3.00)
Operating Costs 8,800
Other $26,365
____________ ________________
TOTAL $61,054 $26,365
Department of Public Safety
The Department of Public Safety indicates a cost of $87,419 and 3
FTE's to administer the legislation. Of this amount $26,365 is
nonrecurring costs for data processing.
Department of Transportation
The Department of Transportation indicated there would be no
impact to the department.
Local Government Impact
In 1996 the office surveyed 24 local governments concerning costs
associated with the legislation with 12 respondents. Depending upon
the size of the locality and the current funding levels of local law
enforcement, additional costs were as follows: four localities
indicated no additional cost to implement the legislation; two
localities estimated additional costs but could not be specific as to the
amount and six localities indicated costs ranging from $500 to
$25,000.
Approved By:
Michael L. Shealy
Office of State Budget
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING SECTION 56-1-287 BY ENACTING THE
OMNIBUS HIGHWAY SAFETY ACT 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 OR IN EXCESS OF TWO
ONE-HUNDREDTHS OF ONE PERCENT, TO PROVIDE THAT
LICENSED DRIVERS UNDER TWENTY-ONE HAVE
CONSENTED TO BE TESTED, TO PROVIDE TESTING IN
INCIDENTS IN WHICH A LAW ENFORCEMENT OFFICER HAS
PROBABLE CAUSE TO BELIEVE A DRIVER HAS CONSUMED
ALCOHOLIC BEVERAGES OR A PERSON HAS BEEN
ARRESTED FOR A TRAFFIC OFFENSE, TO PRESCRIBE THE
METHOD AND PROCEDURES FOR TESTING AND REQUIRE
AN AUTOMATIC ONE-YEAR SUSPENSION FOR REFUSAL TO
BE TESTED, TO PROVIDE THAT THE SUSPENSION BEGINS
IMMEDIATELY UPON THE OFFICER TAKING POSSESSION
OF THE LICENSE, TO PROVIDE FOR AN ADMINISTRATIVE
HEARING 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 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, TO REVISE THE
DRIVER'S LICENSE SUSPENSION PERIOD FOR A PERSON
WHO REFUSES TO TAKE THE TESTS, 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 56-1-287. (A) The department shall suspend for six
months the driver's license of a person under the age of twenty-one
who operates a motor vehicle and who is determined to have an
alcohol concentration of or in excess of two one-hundredths of one
percent.
(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 probable cause to believe
that a motor vehicle is being driven by a person under the age of
twenty-one who has consumed alcoholic beverages may detain a
person and may request that person submit to a test to determine
alcohol concentration. 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
presence of blood alcohol.
(D) A test must be administered at the direction of the arresting law
enforcement officer. At the direction of the officer, the person first
must be offered a breath test to determine the alcohol content of his
blood. If the person physically is unable to provide an acceptable
breath sample because he has an injured mouth, is unconscious, or for
any other reason considered unacceptable by the officer, 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 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 samples or 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 law
enforcement officer must be paid from the general fund of the State.
(E) 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 or
urine.
(F) If a person refuses, upon the request of a law enforcement
officer, to submit to chemical tests as provided in subsection (E), the
Department of Public Safety shall suspend his license or permit to
drive, or any nonresident's operating privilege, for one year.
If a defendant under arrest, upon the request of a law enforcement
officer, submits to chemical tests as provided in subsection (E), and
the test results indicate an alcohol concentration of or in excess of
two one-hundredths of one percent, 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 for six months 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 test or give the samples, but that his privilege to
drive must be suspended or denied for at least one year if he refuses
to submit to the tests.
The arresting 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 or in excess of two one-hundredths of one percent.
The notification must be in a manner prescribed by the department.
(G) If the test registers the presence of an alcohol concentration of
or in excess of two one-hundredths of one percent, or if the person
refuses to be tested, the arresting officer shall take possession of the
person's driver's license and forward it to the department in the
manner the department prescribes. The department shall suspend the
license and the period of suspension begins to run when the arresting
officer takes possession of the license. The officer taking the license
shall advise the person of his right to obtain an administrative review
as provided in this section.
(H) If a person whose license has been suspended pursuant to this
section desires a hearing, he shall request a review by the department,
in writing, within ten days of the date of the suspension. The
department shall afford the person a review as early as practicable in
the county in which the arrest occurred, unless the department and the
person agree that the review may be held in another county.
If a written request is not received within ten days of the date of the
suspension, the right to a hearing is waived and the suspension
becomes final. If the person requesting the hearing fails to appear
without just cause, the right to a hearing is waived and the
determination of the department which is based upon the arresting
officer's report becomes final.
(I) The sole issues to be considered in an administrative 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 test,
but that his privilege to drive would be suspended or denied if he
refused to submit to the test;
(3) the person refused to submit to the test upon request of the
arresting officer.
The sole issues to be considered in an administrative review on the
operation of a motor vehicle while the person under twenty-one years
of age had an alcohol concentration of or in excess of two
one-hundredths of one percent are whether:
(1) the person was placed under arrest;
(2) the person was advised of the consequences of registering
an alcohol concentration;
(3) the person registered an alcohol concentration in excess of
two one-hundredths of one percent;
(4) the individual taking samples or administering the test was
qualified in accordance with this section;
(5) the samples given and tests administered were in accordance
with the division procedures.
The department after the administrative review 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.
(J) 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.
(K) 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.
(L) A person required to submit to tests by a law enforcement
officer must be provided with the results of the tests. A person
administering a test at the request of the defendant shall furnish a
copy of the results to the arresting officer.
(M) 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 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 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."
SECTION 3. Section 56-1-10 of the 1976 Code, as last amended
by Act 459 of 1996, 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 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. 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 this State while:
(1) the alcohol concentration is ten one-hundredths of one percent
or more;
(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."
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 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 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 or a law enforcement officer, a
blood sample may be taken. If the officer has reasonable grounds to
believe that the person is under the influence of drugs other than
alcohol, the 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
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 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 one hundred eighty 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 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 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 he suspension may be shown on any of his records."
SECTION 7. This act takes effect upon approval by the Governor.
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