Current Status Introducing Body:House Bill Number:3138 Primary Sponsor:Hayes Committee Number:25 Type of Legislation:GB Subject:Boating under the influence Residing Body:House Current Committee:Judiciary Date Tabled:Jan 29, 1991 Computer Document Number:3138 Introduced Date:Jan 08, 1991 Last History Body:House Last History Date:Jan 29, 1991 Last History Type:Tabled in Committee Scope of Legislation:Statewide All Sponsors:Hayes Corning Type of Legislation:General Bill
Bill Body Date Action Description CMN
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3138 House Jan 29, 1991 Tabled in Committee 25
3138 House Jan 08, 1991 Introduced and read first 25
time, referred to Committee
3138 House Dec 27, 1990 Prefiled, referred to 25
Committee
View additional legislative information at the LPITS web site.
TO AMEND CHAPTER 21, TITLE 50, CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO ESTABLISH THE OFFENSE OF BOATING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS AND PROVIDE A SCHEDULE OF BLOOD ALCOHOL CONTENT THAT GIVES RISE TO PRESUMPTIONS AND INFERENCES OF OPERATING A WATERCRAFT UNDER THE INFLUENCE, TO PROVIDE FOR DEFINITIONS USED IN THE ENFORCEMENT OF THIS ARTICLE, TO PROVIDE FOR A TESTING PROCEDURE AND PROVDE PENALTIES FOR VIOLATIONS; TO AMEND SECTION 50-21-110, RELATING TO RECKLESS OPERTION OF WATERCRAFT, SO AS TO DELETE PROVISIONS RELATING TO OPERATING WATERCRAFT WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS AND PROVIDE PENALTIES FOR VIOLATIONS; AND TO AMEND SECTION 50-21-150, RELATING TO THE PUNISHMENT FOR OPERATING WATERCRAFT RECKLESSLY OR UNDER THE INFLUENCE OF ALCOHOL OR DRUGS, SO AS TO DELETE THE PROVISION WHICH PROVIDES A PENALTY FOR VIOLATING SECTION 50-21-110.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. SECTION 1. Chapter 21, Title 50 of the 1976 Code is amended by adding:
Section 50-21-210. As used in this article:
(1) '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;
(2) 'Water' means any waters open to the general public including but not limited to lakes, bays, sounds, ponds, impounding reservoirs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial limits of the State, and all other bodies of surface or underground water, natural or artificial, inland or coastal, fresh or salt, which are wholly or partially within or bordering the State or within its jurisdiction.
(3) 'Motorized vessel' means any vessel powered by an internal combustion engine.
Section 50-21-220. (A) It is unlawful to operate, drive, or be in actual physical control of any moving motorized vessel upon the waters of this State while:
(1) under the influence of alcohol;
(2) under the influence of any drug to a degree which renders the operator incapable of operating safely.
(B) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than two hundred dollars and for a second or subsequent offense be fined not less than one thousand dollars or be imprisoned for not more than one year, or both. Only an offense occurring within a period of five years including and immediately preceding the date of the last offense constitutes a prior offense within the meaning of this subsection. Any person convicted of an offense under this section, in addition to other penalties, may be prohibited by the court having jurisdiction of the violation from operating any motorized vessel or conducting the activity for not more than two years.
Section 50-21-230. (A) A person who operates, drives, or is in actual physical control of any moving motorized vessel upon the waters of this State is considered to have given consent to a chemical test 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, driving, or in actual physical control of a moving motorized vessel while under the influence of alcohol, drugs, or any combination of them. Any test must be administered at the direction of a law enforcement officer who has apprehended a person for operating a motorized vessel upon the waters of 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 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 the State Law Enforcement Division, using methods approved by the division. 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 the division. 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 operate, drive, or be in actual physical control of any moving motorized vessel must be suspended or denied for ninety 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 of 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. 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.
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.
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. 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 50-21-220 or 50-21-240. This fee must be forwarded by the county treasurer to the State Treasurer and credited to the general fund of the State to defray any costs incurred by the division and individuals and institutions obtaining the samples forwarded to the division.
(B) In any criminal prosecution for a violation of Section 50-21-220 or 50-21-240 the amount of alcohol in the person's blood at the time of the alleged violation, as shown by chemical analysis of the person's breath or other body fluids, gives rise to the following inferences:
(1) If there 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 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 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.
The provisions of this section must not be construed as limiting the introduction of 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 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).
(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), none may be given, but the South Carolina Department of Wildlife and Marine Resources, on the basis of a report of the law enforcement officer that the arrested person was operating, driving or was in actual physical control of a moving motorized vessel 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 privilege to perform the activity for a period of ninety days. 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. The report of the arresting officer must include what grounds he had for believing the arrested person was conducting the above-mentioned activity while under the influence of alcohol, drugs, or a combination of them. If the arrested person took a chemical breath test but refused to provide a blood or urine sample, the report of the arresting officer must include the officer's grounds for believing 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), pleads guilty or nolo contendere to, or forfeits bond for a first offense violation of Section 50-21-220, within thirty days of arrest, the period of the suspension under this section must be canceled.
(E) Upon suspending the operating privilege of any person, the Department of Wildlife and Marine Resources immediately shall notify the person in writing and upon his request give him an opportunity for a hearing as provided in Sections 50-9-1050(b) and 50-9-1060. The review must be scheduled by the department within twenty days after the receipt of the request. The scope of the hearing is 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 tests but that his privilege to operate a motorized vessel would be suspended or denied if he refused to submit to the tests, and whether he refused to submit to the tests upon request of the officer. Upon review, the department either shall rescind its order of suspension or if there is good cause, continue the suspension of the privilege.
Section 50-21-240. (A) Any person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs, operates, drives, or is in actual physical control of any moving motorized vessel and does any act forbidden by law or neglects any duty imposed by law, which act or neglect proximately causes great bodily injury or death to any person other than himself, is guilty of a felony and, upon conviction, must be punished:
(1) by a fine of not less than five thousand dollars nor more than ten thousand dollars and imprisonment for not less than thirty days nor more than ten years when great bodily injury results;
(2) by a fine of not less than ten thousand dollars nor more than twenty-five thousand dollars and imprisonment for not less than one year nor more than twenty-five years when death results.
No part of the minimum sentences required to be imposed by this section may be suspended, and probation must not be granted for any portion.
(B) As used in this section 'great bodily injury' means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
(C) The South Carolina Department of Wildlife and Marine Resources shall suspend the privilege of any person who is convicted or who pleads guilty or nolo contendere under this section to conduct the activity for which the person is convicted for a period to include any term of imprisonment plus three years.
(D) If a boating accident involves a fatality, the coroner having jurisdiction, within forty-eight hours of receiving notification of the death, shall direct that a chemical blood test to determine blood alcohol concentration or the presence of drugs be performed on the deceased and that the results of the test be recorded properly in the coroner's report.
Section 50-21-250. A person who operates a motorized vessel on the waters of this State when his privilege to operate the motorized vessel is canceled, suspended, or revoked pursuant to violations of this article is guilty of a misdemeanor and, upon conviction, must be fined in an amount not to exceed two hundred dollars or imprisoned for a period not to exceed thirty days."
SECTION 2. Section 50-21-110 of the 1976 Code is amended to read:
"Section 50-21-110. (1) No person may use any motorboat, boat, or vessel, or manipulate any water skis, aquaplane, surfboard, or similar device in a negligent manner so as to endanger the life, limb, or property of any person.
(2) No person may use any motorboat, boat, or vessel, or use any water skis, aquaplane, surfboard, or similar device while under the influence of alcohol, any narcotic drug, barbiturate, marijuana or hallucinogen.
(3)(2) Any person convicted of negligent operation of a motorboat, boat, or vessel or of operating a vessel while under the influence of intoxicating liquids, narcotic drugs, barbiturates, or marijuana, in addition to any other penalties, may be prohibited by the court having jurisdiction of such violation, from operating any vessel on any waters of this State for a period of not more than two years. is guilty of a misdemeanor and, upon conviction, for a first offense must be fined not less than fifty dollars nor more than two hundred dollars or be imprisoned for not more than thirty days and for a second or subsequent offense be fined not less than one thousand dollars or be imprisoned for not more than one year, or both. Only an offense occurring within a period of five years from the date of the last offense constitutes a prior offense within the meaning of this subsection."
SECTION 3. Section 50-21-150 of the 1976 Code is amended to read:
"Section 50-21-150. (1) Any person who violates any provision of Section 50-21-110 or the implementing regulations shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than fifty dollars nor more than one hundred dollars or be imprisoned for not more than thirty days for each violation.
(2) Any person violating any provision of this chapter or any regulations adopted by the Division of Boating where the penalty is not specified shall be deemed is guilty of a misdemeanor and, upon conviction, shall must be fined not more than one hundred dollars or be imprisoned for not more than thirty days for each violation."
SECTION 4. This act takes effect upon approval by the Governor.