Current Status Introducing Body:House Bill Number:4174 Primary Sponsor:Jennings Committee Number:11 Type of Legislation:GB Subject:DUI, videotaping of arrest Residing Body:Senate Computer Document Number:436/12019.DW Introduced Date:Jan 15, 1992 Date of Last Amendment:Apr 23, 1992 Last History Body:Senate Last History Date:Apr 28, 1992 Last History Type:Introduced, read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Jennings M. Martin Ross Type of Legislation:General Bill
Bill Body Date Action Description CMN
---- ------ ------------ ------------------------------ ---
4174 Senate Apr 28, 1992 Introduced, read first time, 11
referred to Committee
4174 House Apr 24, 1992 Read third time, sent to
Senate
4174 House Apr 23, 1992 Amended, read second time,
unanimous consent for third
reading on next Legislative
day
4174 House Apr 08, 1992 Objection withdrawn by
Representative
4174 House Apr 07, 1992 Objection withdrawn by
Representative
4174 House Apr 01, 1992 Objection by Representative
4174 House Apr 01, 1992 Amended
4174 House Mar 31, 1992 Debate interrupted by
adjournment
4174 House Mar 18, 1992 Committee Report: Favorable 25
with amendment
4174 House Jan 15, 1992 Introduced, read first time, 25
referred to Committee
View additional legislative information at the LPITS web site.
13
AMENDED
April 23, 1992
H. 4174
Introduced by REPS. Jennings, M. Martin and Ross
S. Printed 4/23/92--H.
Read the first time January 15, 1992.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 56-5-2951 SO AS TO PROVIDE THAT ANY PERSON UPON BEING ARRESTED FOR A VIOLATION OF SECTION 56-5-2930 AND TAKEN BY THE ARRESTING OFFICER TO A LOCATION FOR PURPOSES OF ADMINISTERING THE CHEMICAL TEST OF HIS BREATH MUST ALSO HAVE HIS CONDUCT AT THIS LOCATION VIDEOTAPED BY THE ARRESTING OFFICER OR ANOTHER MEMBER OF THE ARRESTING OFFICER'S DEPARTMENT, TO PROVIDE THAT A COPY OF THIS VIDEOTAPE MUST BE PROVIDED TO THE DEFENDANT UPON HIS REQUEST AND AT HIS EXPENSE BEFORE THE SCHEDULED TRIAL DATE AND IT IS ADMISSIBLE AS EVIDENCE BY EITHER SIDE IN THIS PROCEEDING, AND TO PROVIDE THAT A PERSON WHO OPERATES A MOTOR VEHICLE IN THIS STATE IS CONSIDERED TO HAVE GIVEN CONSENT TO THE VIDEOTAPING OF HIS CONDUCT.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 1, Chapter 1, Title 56 of the 1976 Code is amended by adding:
"Section 56-1-285. (A) In addition to any penalty imposed by law, including additional driver's license suspensions, the department shall suspend for ninety days the driver's license of a person under the age of twenty-one who operates a motor vehicle and who is determined to have a blood alcohol content of four one-hundredths of one percent or above.
(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 or blood 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 who is operating a motor vehicle 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) Tests must be administered at the direction of the arresting officer. At the direction of the arresting officer, the person first must be offered two breath tests to determine the alcohol content of his blood. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious, or for any other reason considered acceptable by licensed medical personnel, a blood sample may be taken. Only one blood test is required under the provisions of this section. The breath tests 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 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 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, which shall include, but not be limited to, the following provisions:
(1) The test must be administered as soon as practicable after the arrest;
(2) prior to the first test, the person administering the test must observe the person to be tested for no less than twenty minutes;
(3) any sequential test shall not be administered less than five minutes after the first test;
(4) the test results may be used to prove a person's particular alcohol concentration if the pair of readings are from consecutively administered tests, and the readings do not differ from each other by an alcohol concentration greater than two one-hundredths of one percent; and
(5) the breath testing machine must be maintained and calibrated by SLED at intervals not more than every ninety days.
The costs of the tests administered at the direction of the arresting officer must be paid from the general fund of the State.
(E) 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. No inference may be taken from a person's failure to request additional blood tests. The failure or inability of the person tested to obtain additional tests does not preclude the consideration of the tests or samples taken at the direction of the arresting officer. The arresting officer shall provide reasonable assistance to the person to contact a qualified person to conduct additional tests.
(F) 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.
(G) If a person refuses, upon the request of the arresting officer, to submit to chemical tests as provided in subsection (D), none may be given and the Department of Highways and Public Transportation shall suspend his license or permit to drive, or any nonresident's operating privilege, for ninety days.
If a defendant under arrest, upon the request of the arresting officer, submits to chemical tests as provided in subsection (D), and both test results indicate a blood alcohol content of four one-hundredths of one percent or above, the department shall suspend his license or permit to drive or any nonresident's operating privilege for 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 ninety days 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 tests or give the samples, but that his privilege to drive must be suspended or denied for ninety days if he refuses to submit to the tests.
If both breath tests required by subsection (D) do not indicate a blood alcohol content of four one-hundredths of one percent or above, the person is considered not to have violated the provisions of this section.
(H) If the tests register a blood alcohol content of four one-hundredths of one percent or above, or if the person refuses to be tested, the arresting officer, acting as an agent for the department, shall immediately serve a notice and order of suspension on a person who refuses to submit to the tests or on a person who submits to the chemical tests the results of which both indicate a blood alcohol concentration of four one-hundredths of one percent or greater by weight of alcohol. The arresting officer shall take immediate possession of a license or permit issued by the department and the notice and order of suspension which he issues serves as a temporary license effective for twenty days.
A copy of the completed notice and order of suspension form and the driver's license taken into possession must be forwarded within two working days to the department by the officer along with a copy of the report.
The suspension period begins twenty days after the issuance of the notice and order of suspension. The notice and order of suspension must advise the defendant of the right to obtain a judicial review as provided in this section.
(I) The person arrested shall receive a judicial hearing before a magistrate, municipal judge or municipal recorder within twenty days of his arrest unless he waives his right to this judicial hearing in writing.
The hearing must be conducted in the manner provided by this section. If the person waives the judicial hearing or if he fails to appear at the hearing without just cause, the suspension based upon the arresting officer's report shall become final.
(J) The sole issues to be considered in a judicial 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 tests, but that his privilege to drive must be suspended or denied if he refused to submit to the tests upon request of the arresting officer;
(3) the person refused to submit to the tests upon request of the arresting officer.
(K) The sole issues to be considered in a judicial review on the operation of a motor vehicle while the person under twenty-one years of age had a blood alcohol content of four one-hundredths of one percent or above are whether:
(1) the person was placed under arrest;
(2) the person was advised of the consequences of registering a blood alcohol content of four one-hundredths of one percent or above;
(3) the person registered a blood alcohol content of four one-hundredths of one percent or above on two consecutively administered tests and that there was not a variance of said tests of more than two one-hundredths of one percent;
(4) the individual taking samples or administering the tests was qualified in accordance with this section;
(5) the samples given and tests administered were given in accordance with this section.
The department after the judicial review, if any, 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.
(L) 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.
(M) 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.
(N) A person required to submit to tests by an arresting officer must be provided with a written report including the time of the incident, the time of the tests, and the results of the tests. 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.
(O) A person whose driver's license is suspended under this section is not required to file proof of financial responsibility.
(P) In any criminal prosecution, only the lower breath test administered pursuant to this section shall be admissible as evidence."
SECTION 2. Article 1, Chapter 1, Title 56 of the 1976 Code is amended by adding:
"Section 56-1-286. (A) In addition to any penalty imposed by law, including additional driver's license suspensions, the department shall suspend for ninety days the driver's license of a person twenty-one years or older who operates a motor vehicle and who is determined to have a blood alcohol content of fifteen one-hundredths of one percent or above.
(B) A person who operates a motor vehicle in this State is considered to have given consent to chemical tests of his breath or blood for the purpose of determining the presence of alcohol.
(C) A law enforcement officer who has arrested an operator of a motor vehicle for any offense arising out of acts alleged to have been committed while being under the influence of alcohol may order the testing of the person arrested to determine the presence of blood alcohol.
(D) Tests must be administered at the direction of the arresting officer. At the direction of the arresting officer, the person must be offered two breath tests, or a second test if a first test has already been given pursuant to the terms of Section 56-5-2950, to determine the alcohol content of his blood. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious, or for any other reason considered acceptable by licensed medical personnel, a blood sample may be taken. Only one blood test is required under the provisions of this section. The breath tests 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 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 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, which shall include, but not be limited to, the following provisions:
(1) The test must be administered as soon as practicable after the arrest;
(2) prior to the first test, the person administering the test must observe the person to be tested for no less than twenty (20) minutes;
(3) any sequential test shall not be administered less than five minutes after the first test;
(4) the test results may be used to prove a person's particular alcohol concentration if the pair of readings are from consecutively administered tests, and the readings do not differ from each other by an alcohol concentration greater than two one-hundredths of one percent; and
(5) the breath testing machine must be maintained and calibrated by SLED at intervals not more than every ninety days.
The costs of the tests administered at the direction of the arresting officer must be paid from the general fund of the State.
(E) 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. No inference may be taken from a person's failure to request additional blood tests. The failure or inability of the person tested to obtain additional tests does not preclude the consideration of the tests or samples taken at the direction of the arresting officer. The arresting officer shall provide reasonable assistance to the person to contact a qualified person to conduct additional tests.
(F) 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.
(G)(1) If a person under arrest refuses, upon the request of the arresting officer, to submit to chemical tests as provided in subsection (D) of this section, none may be given, but the department, on the basis of a report of the arresting officer that the arrested person was operating a motor vehicle in this State while under the influence of alcohol and that the person 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 the final determination is made pursuant to this section. 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.
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 purpose 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.
(2) If a defendant under arrest, upon the request of the arresting officer, submits to chemical tests as provided in subsection (D), and both test results indicate a blood alcohol content of fifteen one-hundredths of one percent or above, the department shall suspend his license or permit to drive or any nonresident's operating privilege for ninety days.
If both breath tests required by subsection (D) do not indicate a blood alcohol content of fifteen one-hundredths of one percent or above, the person is considered not to have violated the provisions of this section.
(H) If the tests register a blood alcohol content of fifteen one-hundredths of one percent or above, the arresting officer, acting as an agent for the department, shall immediately serve a notice and order of suspension on a person who submits to the chemical tests the results of which both indicate a blood alcohol concentration of fifteen one-hundredths of one percent or greater by weight of alcohol. The arresting officer shall take immediate possession of a license or permit issued by the department and the notice and order of suspension which he issues serves as a temporary license effective for twenty days.
A copy of the completed notice and order of suspension form and the driver's license taken into possession must be forwarded within two working days to the department by the officer along with a copy of the report.
The suspension period begins twenty days after the issuance of the notice and order of suspension. The notice and order of suspension must advise the defendant of the right to obtain a judicial review as provided in this section.
(I) The person arrested shall receive a judicial hearing before a magistrate, municipal judge or municipal recorder within twenty days of his arrest unless he waives his right to this judicial hearing in writing.
The hearing must be conducted in the manner provided by this section. If the person waives the judicial hearing or if he fails to appear at the hearing without just cause, the suspension based upon the arresting officer's report shall become final.
(J) The sole issues to be considered in a judicial review on the operation of a motor vehicle while the person had a blood alcohol content of fifteen one-hundredths of one percent or above are whether:
(1) the person was placed under arrest;
(2) the person was advised of the consequences of registering a blood alcohol content of fifteen one-hundredths of one percent or above;
(3) the person registered a blood alcohol content of fifteen one-hundredths of one percent or above on two sequential tests and that there was not a variance of said tests of more than two one-hundreds of one percent;
(4) the individual taking samples or administering the tests was qualified in accordance with this section;
(5) the samples given and tests administered were given in accordance with this section.
The Department after the judicial review, if any, 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.
(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) of this section.
(L) 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.
(M) A person required to submit to tests by a law enforcement officer must be provided with a written report including the time of the incident, the time of the tests, and the results of the tests. 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.
(N) A person whose driver's license is suspended under this section is not required to file proof of financial responsibility.
(O) In any criminal prosecution only the lower of the breath tests administered pursuant to this section shall be admissible as evidence."
SECTION 3. The 1976 Code is amended by adding:
"Section 56-5-2951. Upon being arrested for a violation of Sections 56-5-2930, 56-5-2945, 56-1-285, or 56-1-286 and taken by the arresting officer to a location for purposes of administering the chemical test of his breath, a person must have his conduct at this location videotaped. This videotape shall include the entire breath test procedure. At the beginning of the videotape, the person arrested must be informed that he is being videotaped and of his rights pursuant to Section 56-5-2950. This videotape is admissible as evidence by either side.
However, nothing in this section shall be construed as prohibiting the introduction of other competent evidence in the trial of violation of Section 56-5-2930 or 56-5-2945. Failure by the law enforcement officers of the arresting jurisdiction to produce a videotape is not alone grounds for dismissal of any such charge if the arresting officer submits a signed affidavit certifying that the videotape equipment in the arresting jurisdiction was at the time of the arrest in an inoperable condition even though reasonable efforts had been made to maintain the equipment in an operable condition or, in the alternative, submits a signed affidavit certifying that it is physically impossible to produce a videotape due to exigent circumstances.
A fee of ten dollars is assessed all individuals at the time of conviction of, pleading guilty or nolo contendere to, or forfeiting bond for Section 56-5-2930 or Section 56-5-2945. The fee shall be collected by the appropriate court official and remitted to SLED. The division shall administer the Implied Consent Program, including supplying and maintaining all necessary equipment, including videotaping and displaying at all breath testing sites and all applicable courts, and the division shall promulgate the necessary regulations to administer the program. The division shall be authorized to receive funds remitted in accordance with this section, and to retain and expend such funds for the operation of the South Carolina Implied Consent Program as deemed necessary and appropriate by the division. The division shall be authorized to carry forward any unexpended funds received in accordance with this section as of June 30 of each year, and to expend such carried forward funds for the operation of the South Carolina Implied Consent Program. The division shall be required to report the revenue received under this section and the expenditures for which such revenue was used as required in the division's annual appropriation request to the General Assembly.
The division shall promulgate those regulations necessary to implement the provisions of this section."
SECTION 4. This act takes effect on July 1, 1993, except that the fee assessed by Section 56-5-2951 shall be collected starting from January 1, 1993 at the time of conviction of, pleading guilty or nolo contendere to, or forfeiting bond for violations of Sections 56-5-2930 or 56-5-2945.