H 3638 Session 110 (1993-1994)
H 3638 General Bill, By Wilkins, J.M. Baxley, H.H. Clyborne, R.S. Corning,
T.E. Huff, Quinn and D.A. Wright
Similar(S 533)
A Bill to amend Section 56-5-2950, Code of Laws of South Carolina, 1976,
relating to the implied consent to chemical breath tests to determine the
presence of alcohol or drugs in operators of motor vehicles, so as to increase
from ninety to one hundred twenty days the time a driver's license must be
suspended for refusal to submit to a chemical breath test, and to amend the
1976 Code by adding Section 56-5-2953 so as to provide that a person charged
with driving under the influence whose blood alcohol concentration is ten
one-hundredths of one percent or more must have his driver's license suspended
for a period of three months whether or not a criminal conviction results, to
establish certain procedural requirements pertaining to this provision, and to
establish certain procedures whereby persons who refuse to submit to chemical
breath tests or whose blood alcohol concentration is ten one-hundredths of one
percent or more shall have their driver's licenses immediately seized and the
required suspension expedited.
03/04/93 House Introduced and read first time HJ-20
03/04/93 House Referred to Committee on Judiciary HJ-21
A BILL
TO AMEND SECTION 56-5-2950, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO THE IMPLIED CONSENT TO
CHEMICAL BREATH TESTS TO DETERMINE THE PRESENCE OF
ALCOHOL OR DRUGS IN OPERATORS OF MOTOR VEHICLES,
SO AS TO INCREASE FROM NINETY TO ONE HUNDRED
TWENTY DAYS THE TIME A DRIVER'S LICENSE MUST BE
SUSPENDED FOR REFUSAL TO SUBMIT TO A CHEMICAL
BREATH TEST, AND TO AMEND THE 1976 CODE BY ADDING
SECTION 56-5-2953 SO AS TO PROVIDE THAT A PERSON
CHARGED WITH DRIVING UNDER THE INFLUENCE WHOSE
BLOOD ALCOHOL CONCENTRATION IS TEN ONE-HUNDREDTHS OF ONE PERCENT OR MORE MUST HAVE HIS
DRIVER'S LICENSE SUSPENDED FOR A PERIOD OF THREE
MONTHS WHETHER OR NOT A CRIMINAL CONVICTION
RESULTS, TO ESTABLISH CERTAIN PROCEDURAL
REQUIREMENTS PERTAINING TO THIS PROVISION, AND TO
ESTABLISH CERTAIN PROCEDURES WHEREBY PERSONS WHO
REFUSE TO SUBMIT TO CHEMICAL BREATH TESTS OR WHOSE
BLOOD ALCOHOL CONCENTRATION IS TEN ONE-HUNDREDTHS OF ONE PERCENT OR MORE SHALL HAVE
THEIR DRIVER'S LICENSES IMMEDIATELY SEIZED AND THE
REQUIRED SUSPENSION EXPIDITED.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The purposes of this act are:
(1) to provide safety for all persons using the highways of this State
by quickly revoking the driving privilege of those persons who have
shown themselves to be safety hazards by driving with an excessive
concentration of alcohol in their bodies; and
(2) to guard against the potential for any erroneous deprivation of
the driving privilege by providing an opportunity for administrative
review before the effective date of the suspension and an opportunity for
a full hearing as quickly as possible after the suspension becomes
effective; and
(3) following the suspension period, to prevent the relicensing of
these persons until the department is satisfied that their alcohol problem
is under control and that they no longer constitute a safety hazard to
other highway users.
SECTION 2. (A) Section 56-5-2950(a) of the 1976 Code is
amended to read:
"(a) Any 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 any 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. Any 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 officer the person first must be offered a breath
test to determine the alcohol concentration of his blood. If the person is
physically unable to provide an acceptable breath sample because he has
an injured mouth, is unconscious, dead, or for any other reason
considered acceptable by 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
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 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
ninety one hundred twenty 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 any
other 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 shall not be 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 fee of fifty dollars is
assessed at the time of sentencing persons convicted of, pleading guilty
or nolo contendere to, or forfeiting bond for violating Section 56-5-2930
or 56-5-2945. This fee must be forwarded by the county treasurer to the
general fund of the State to defray any costs incurred by SLED and
individuals and institutions obtaining the samples forwarded to SLED.
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 any
other law enforcement officer, to obtain or take any sample of blood or
urine."
(B) Section 56-5-2950(d) of the 1976 Code is amended to read:
"(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 South Carolina
Department of Highways and Public Transportation, 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 one
hundred twenty days. If the person is a resident without a license or
permit to operate a motor vehicle in this State, the Department of
Highways and Public Transportation shall deny to the person the
issuance of a license or permit for a period of ninety one
hundred twenty days after the date of the alleged violation. The
ninety-day one hundred twenty-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 one hundred twenty-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."
SECTION 3. The 1976 Code is amended by adding:
"Section 59-5-2953. (A) The department must suspend the
license of a person upon its determination that the person operated a
motor vehicle while the alcohol concentration in the person's blood,
urine, or breath was ten one-hundredths of one percent or more. For
purposes of this section, `alcohol concentration' means either grams of
alcohol per one hundred milliliters of blood or urine or grams of alcohol
per two hundred ten liters of breath.
The department must make a determination of these facts on the basis
of the report of a law enforcement officer pursuant to subsection (B),
and this determination is final unless an administrative review is
conducted under subsection (F) or a hearing is held under subsection
(G).
The determination of these facts by the department is independent of
the determination of the same or similar facts in the adjudication of any
criminal charge arising out of the same occurrence. The disposition of
a criminal charge does not affect a suspension under this section.
(B) A law enforcement officer who arrests a person for a violation
of Section 56-5-2930 or 56-5-2945 immediately shall forward to the
department a sworn report of all information relevant to the enforcement
action, including information adequately identifying the arrested person,
a statement of the officer's grounds for belief that the person violated
Section 56-5-2930 or 56-5-2945, and a report of the results of any tests
conducted on the person's breath, blood or urine or the person's refusal
to submit to a test.
The report required by this subsection must be made on forms
supplied by the South Carolina Law Enforcement Division or in a
manner approved by the South Carolina Law Enforcement Division.
(C) Upon receipt of the report of the law enforcement officer, the
department shall make the determination described in subsection (A). If
the department determines that the person is subject to license
suspension, and if Notice of Suspension has not already been served
upon the person by the officer as required in subsection (D), the
department shall issue a notice of suspension.
This notice of suspension must be mailed to the person at the last
known address in the department's driver records and to the address
provided by the officer's report if that address differs from the address
of record. The notice is deemed received three days after mailing.
The Notice of Suspension shall clearly specify the reason and
statutory grounds for the suspension, the effective date of the
suspension, the right of the person to request an administrative review
and a hearing, the procedure for requesting an administrative review and
a hearing, and the date by which a request for an administrative review
must be made in order to receive a determination before the effective
date of the suspension.
If the department determines that the person is not subject to driver
license suspension, the department shall notify the person of its
determination and shall rescind any order of suspension served upon the
person by the law enforcement officer or by the department.
(D) If the test results for a person who is being charged with a
violation of Section 56-5-2930 or 56-5-2945 show an alcohol
concentration of ten one-hundredths of one percent or more or if the
person refuses to submit to a test in accordance with Section 56-5-2950,
the officer, acting on behalf of the department, shall serve the notice of
suspension personally on the arrested person.
When the law enforcement officer serves the notice of suspension, the
officer shall take possession of any driver's license issued by this State
which is held by the person. When the officer takes possession of a valid
driver's license issued by this State, the officer, acting on behalf of the
department, shall issue a temporary permit which is valid for fifteen days
after its date of issuance.
A copy of the completed notice of suspension form, a copy of a
completed temporary permit form, and any driver's license taken into
possession under this section, must be forwarded to the department by
the officer within two days of the date of arrest.
The department shall provide forms for notice of suspension and for
temporary permits to law enforcement agencies.
(E) The license suspension becomes effective fifteen days after the
subject person has received the notice of suspension as provided in
subsection (D) or is deemed to have received the notice of suspension
by mail as provided in subsection (C). The period of license suspension
under this section is three months. Where a license is suspended under
this section and the person is also convicted on criminal charges arising
out of the same occurrence for a violation of Section 56-5-2945 or 56-5-2990, both the suspension under this section and the suspension under
Section 56-5-2930 or 56-5-2945 must be imposed consecutively.
(F) A person who has received a notice of suspension under this
section may request an administrative review. The request may be
accompanied by a sworn statement and any other relevant evidence that
the person wants the department to consider in reviewing the
determination made pursuant to subsection (A).
When a request for administrative review is made, the department
shall review the determination made pursuant to subsection (A). In the
review, the department shall consider any relevant sworn statement or
other evidence accompanying the request for the review and the sworn
report of the law enforcement officer required by subsection (B). If the
department determines, by a preponderance of the evidence, that the
person operated a motor vehicle while having an alcohol concentration
of ten one-hundredths of one percent or more, the department shall
sustain the order of suspension. If the evidence does not support that
determination, the department must rescind the order of suspension. The
determination of the department upon administrative review is final
unless a hearing is requested under subsection (G).
The department shall make a determination upon administrative
review before the effective date of the suspension order if the request for
the review is received by the department within eight days following
service of the notice of suspension. If the request for administrative
review is received by the department more than eight days following
service of the notice of suspension, the department shall make its
determination within seven days following the receipt of the request for
review.
A request for administrative review does not stay the license
suspension unless the department is unable to make a determination
within seven days following the receipt of the request for review, in
which case the department shall stay the suspension pending that
determination.
The request for administrative review may be made by mail or in
person at any motor vehicle office of the department. The department
shall provide forms that the person may use to request an administrative
review and to submit a sworn statement, but use of the forms is not
required.
A person may request and be granted a hearing under subsection (G)
without first requesting administrative review under this subsection.
Administrative review is not available after a hearing is held.
(G) A person who has received a notice of suspension may make a
written request for a review of the department's determination at a
hearing. The request may, but need not, be made on a form available at
each office of the department. If the person's driver's license has not
been surrendered at the time the request for a hearing is made, the person
must submit his driver's license along with the hearing request. Failure
to surrender the license, if not previously surrendered, shall nullify the
person's request for a hearing, and the department's earlier determination
is final. A request for a hearing does not stay the license suspension.
The hearing must be scheduled to be held as quickly as practicable
and no later than thirty days after receiving the request for a hearing. If
the department is unable to schedule a hearing within thirty days of
receiving the request for a hearing, the suspension must be stayed until
the hearing is scheduled. The hearing must be held in the county where
the arrest occurred unless the parties agree to a different location. The
department shall provide a written notice of the time and place of the
hearing to the party requesting the hearing at least ten days before the
scheduled hearing unless the parties agree to waive this requirement. If
the person who requested the hearing fails to appear without just cause,
the right to a hearing is waived, and the department's earlier
determination is final.
The only issues to be considered in an administrative hearing on the
operation of a motor vehicle while the person's alcohol concentration
was ten one-hundredths of one percent or greater is limited to whether:
(1) the person was placed under arrest;
(2) the person was advised of the consequences of registering an
alcohol concentration of ten one-hundredths of one percent or greater;
(3) the person registered an alcohol concentration of ten one-hundredths of one percent or greater;
(4) the individual taking samples or administering tests was
certified in accordance with this section; and
(5) samples given and tests administered were given in
accordance in SLED procedure.
(H) The Administrative Procedures Act applies to this section except
the time requirements specified in this section shall supersede those of
the Administrative Procedures Act."
SECTION 4. This act takes effect January 1, 1994.
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