South Carolina General Assembly
109th Session, 1991-1992

Bill 3115


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Introducing Body:               House
Bill Number:                    3115
Primary Sponsor:                Wilkins
Committee Number:               25
Type of Legislation:            GB
Subject:                        Nontestimonial identification
                                items
Residing Body:                  House
Current Committee:              Judiciary
Computer Document Number:       3115
Introduced Date:                Jan 08, 1991
Last History Body:              House
Last History Date:              Jan 08, 1991
Last History Type:              Introduced and read first time,
                                referred to Committee
Scope of Legislation:           Statewide
All Sponsors:                   Wilkins
Type of Legislation:            General Bill



History


 Bill  Body    Date          Action Description              CMN
 ----  ------  ------------  ------------------------------  ---
 3115  House   Jan 08, 1991  Introduced and read first       25
                             time, referred to Committee
 3115  House   Dec 27, 1990  Prefiled, referred to           25
                             Committee

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(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

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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