H 3115 Session 109 (1991-1992)
H 3115 General Bill, By Wilkins
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 14
to Title 17 relating to the procedures and circumstances to obtain a court
order for nontestimonial identification items from suspects, contents of the
orders, and procedural safeguard for the suspect.
12/27/90 House Prefiled
12/27/90 House Referred to Committee on Judiciary
01/08/91 House Introduced and read first time HJ-69
01/08/91 House Referred to Committee on Judiciary HJ-69
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING CHAPTER 14 TO TITLE 17 RELATING TO THE
PROCEDURES AND CIRCUMSTANCES TO OBTAIN A COURT
ORDER FOR NONTESTIMONIAL IDENTIFICATION ITEMS FROM
SUSPECTS, CONTENTS OF THE ORDERS, AND PROCEDURAL
SAFEGUARD FOR THE SUSPECT.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"CHAPTER 14
Nontestimonial Identification
Section 17-14-10. A nontestimonial identification order authorized
by this chapter may be issued by a judge upon request of a solicitor. As
used in this chapter, `nontestimonial identification' means identification
by fingerprints, palm prints, footprints, measurements, blood specimens,
urine specimens, saliva samples, hair samples, or other reasonable
physical examination, handwriting exemplars, voice samples,
photographs, and lineups or similar identification procedures requiring
the presence of a suspect.
Section 17-14-20. A request for a nontestimonial identification
order may be made before the arrest of a suspect or after arrest and
before trial. This chapter does not preclude additional investigative
procedures permitted by law.
Section 17-14-30. An order may issue only on an affidavit or
affidavits sworn to before the judge and establishing as grounds for the
order that:
(1) there is probable cause to believe that an offense punishable
by imprisonment for more than one year has been committed;
(2) there are reasonable grounds to suspect that the person named
or described in the affidavit committed the offense; and
(3) the results of specific nontestimonial identification procedures
will be of material aid in determining whether the person named in the
affidavit committed the offense.
Section 17-14-40. Upon a showing that the grounds specified in
Section 17-14-30 exist, the judge may issue an order requiring the
person named or described with reasonable certainty in the affidavit to
appear at a designated time and place and to submit to designated
nontestimonial identification procedures. Unless the nature of the
evidence sought makes it likely that delay will adversely affect its
probative value, or when it appears likely that the person named in the
order may destroy, alter, or modify the evidence sought or may not
appear, the order must be served at least seventy-two hours before the
time designated for the nontestimonial identification procedure.
Section 17-14-50. At the request of a person ordered to appear, the
judge may modify the order with respect to time and place of appearance
whenever it appears reasonable under the circumstances to do so.
Section 17-14-60. A person who, without adequate excuse, fails to
obey an order to appear served upon him pursuant to this chapter may
be held in contempt of the court which issued the order.
Section 17-14-70. An order to appear pursuant to this chapter may
be served by a law enforcement officer. The order must be served upon
the person named or described in the affidavit by delivery of a copy to
him personally. The order must be served at least seventy-two hours in
advance of the time of compliance, unless the judge issuing the order has
determined, in accordance with Section 17-14-40, that delay will
adversely affect the probative value of the evidence sought or when it
appears likely that the person named in the order may destroy, alter, or
modify the evidence sought, or may not appear.
Section 17-14-80. An order to appear must be signed by the judge
and must state:
(1) that the presence of the person named or described in the
affidavit is required for the purpose of permitting nontestimonial
identification procedures in order to aide in the investigation of the
offense specified;
(2) the time and place of the required appearance;
(3) the nontestimonial identification procedures to be conducted,
the methods to be used, and the approximate length of time the
procedures will require;
(4) the grounds to suspect that the person named or described in
the affidavit committed the offense specified;
(5) that the person is entitled to be represented by counsel at the
procedure, and to the appointment of counsel if he cannot afford to
retain one;
(6) that the person will not be subjected to any interrogation or
asked to make any statement during the period of his appearance except
that required for voice identification;
(7) that the person may request the judge to make a reasonable
modification of the order with respect to time and place of appearance,
including a request to have nontestimonial identification procedure other
than a lineup conducted at his place of residence; and
(8) that the person, if he fails to appear, may be held in contempt
of court.
Section 17-14-90. (A) Nontestimonial identification procedures
may be conducted by a law enforcement officer or other person
designated by the judge issuing the order. The extraction of any bodily
fluid must be conducted by a qualified member of the health professions
and the judge may require medical supervision for any other test ordered
pursuant to this chapter when he considers the supervision necessary.
(B) In conducting authorized identification procedures, no
unreasonable or unnecessary force may be used.
(C) No person who appears under an order of appearance issued
under this chapter may be detained longer than is reasonably necessary
to conduct the specified nontestimonial identification procedures, and in
no event for longer than six hours, unless he is arrested for an offense.
(D) The person who is the subject of the order is entitled to have
counsel present and must be advised before being subjected to any
nontestimonial identification procedures of his right to have counsel
present during any nontestimonial identification procedure and to the
appointment of counsel if he cannot afford to retain counsel. No
statement made during nontestimonial identification procedures by the
subject of the procedures may be admissible in any criminal proceeding
against him, unless his counsel was present at the time the statement was
made.
(E) A person who resists compliance with the authorized
nontestimonial identification procedures may be held in contempt of the
court which issued the order.
(F) A nontestimonial identification order may not be issued
against a person previously subject to a nontestimonial identification
order unless it is based on different evidence which was not reasonably
available when the previous order was issued.
(G) Resisting compliance with a nontestimonial identification
order is not itself grounds for finding probable cause to arrest the
suspect, but it may be considered with other evidence in making the
determination whether probable cause exists.
Section 17-14-100. Within ninety days after the nontestimonial
identification procedure, a return must be made to the judge who issued
the order or to a judge designated in the order setting forth an inventory
of the products of the nontestimonial identification procedures obtained
from the person named in the affidavit. If, at the time of the return,
probable cause does not exist to believe that the person has committed
the offense named in the affidavit or any other offense, the person
named in the affidavit is entitled to move that the authorized judge issue
an order directing that the products and reports of the nontestimonial
identification procedures, and all copies, be destroyed. The motion must
be granted, except for good cause shown.
Section 17-14-110. A person arrested for or charged with an offense
punishable by imprisonment for more than one year may request that
nontestimonial identification procedures be conducted upon himself. If
it appears that the results of specific nontestimonial identification
procedures will be of material aid in determining whether the defendant
committed the offense, the judge to whom the request was directed must
order the State to conduct the identification procedures.
Section 17-14-120. A person who has been the subject of
nontestimonial identification procedures or his attorney must be
provided with a copy of any reports of test results as soon as the reports
are available."
SECTION 2. This act takes effect upon approval by the Governor.
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