Current Status Introducing Body:House Bill Number:3345 Primary Sponsor:Jennings Type of Legislation:GB Subject:DUI, drivers license suspension for ninety days Residing Body:House Computer Document Number:CYY/15098SD.93 Introduced Date:19930202 Last History Body:House Last History Date:19940518 Last History Type:Objection withdrawn by Representative Scope of Legislation:Statewide All Sponsors:Jennings Martin Huff Type of Legislation:General Bill
Bill Body Date Action Description CMN Leg Involved
---- ------ ------------ ------------------------------ --- ------------
3345 House 19940518 Objection withdrawn by G. Brown
Representative
3345 House 19940517 Objection by Representative Whipper
G. Brown
Inabinett
Williams
Breeland
Holt
Felder
3345 House 19940426 Committee Report: Favorable 30
with amendment
3345 House 19930520 Referred to Committee 30
3345 House 19930519 Debate adjourned until
Thursday, 19930520
3345 House 19930518 Debate interrupted by
adjournment
3345 House 19930506 Debate adjourned until
Tuesday, 19930518
3345 House 19930427 Committee Report: Favorable 25
with amendment
3345 House 19930202 Introduced, read first time, 25
referred to Committee
View additional legislative information at the LPITS web site.
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
April 26, 1994
H. 3345
S. Printed 4/26/94--H.
Read the first time February 2, 1993.
To whom was referred a Bill (H. 3345), to amend the Code of Laws of South Carolina, 1976, by adding Section 56-1-285 so as to provide that the Department of Highways and Public Transportation shall suspend for ninety days the driver's license of any person under the age of twenty-one who is determined to have a blood alcohol content of, etc., respectfully
That they have duly and carefully considered the same, and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/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 an administrative 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 of Public Safety is satisfied that their alcohol problem is under control and that they no longer constitute a safety hazard to other highway users.
SECTION 2. Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:
"Section 56-5-2951. (A) In addition to any penalty imposed by law, including additional driver's license suspensions, the Department of Public Safety shall suspend for three months 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 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 sample 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 samples must be taken 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 take these samples 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 breath test must be administered as soon as practicable after the arrest;
(2) prior to the first breath test, the person administering the test must observe the person to be tested for no less than twenty minutes;
(3) any sequential breath test may not be administered less than five minutes after the first breath test;
(4) the breath test results may be used to prove a person's particular alcohol concentration if the pair of readings are from consecutively administered breath tests, the readings do not differ from each other by an alcohol concentration greater than two one-hundredths of one percent and the lesser reading is at least fifteen one-hundredths of one percent; and
(5) the breath testing instrument must be maintained and calibrated by SLED at intervals not more than every one hundred 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 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 three months. 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 three months after the date of the alleged violation. 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 the arrested person's request, the department 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 only 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. A request for an administrative review does not stay the suspension.
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 three months.
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 both breath tests register a blood alcohol content of fifteen one-hundredths of one percent or above, or if the arrested person refuses to submit to the tests, the arresting officer, acting as an agent for the department, shall immediately serve a notice and order of suspension on the arrested person. 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 thirty days.
A copy of the completed notice and order of suspension form and the driver's license taken into possession must be forwarded immediately within two working days to the department by the officer along with a copy of the report.
The suspension period begins thirty days after the issuance of the notice and order of suspension and is not stayed if a review of the suspension is requested. The notice and order of suspension must advise the defendant of the right to obtain an administrative hearing as provided in this section.
(I) The person arrested must request an administrative hearing within ten days from the date of his arrest and must be given the hearing within thirty days from the date of his arrest.
The hearing must be conducted in the manner provided by this section. If the person waives the administrative 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 an administrative hearing 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 and that the lesser reading is at least fifteen 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;
(6) videotape may be introduced by either side at the administrative hearing only if the videotape is contradictory of the breath tests results.
The department after the administrative hearing, if any, shall order in writing that the suspension, or determination that there should be a denial of issuance, either be rescinded or sustained. The period of license suspension under this section shall be as follows:
(a) the period shall be three months if the person's driving record shows no prior driving under the influence convictions or license suspensions under this section or refusals to submit to the chemical tests under this section or under Section 56-5-2950 during the immediately preceding ten years;
(b) the period shall be one year if the person's driving record shows one or more prior driving under the influence convictions or license suspensions under this section or refusals to submit to the tests under this section or under Section 56-5-2950 during the immediately preceding ten years.
If the suspension is rescinded, the license must be promptly returned within ten days and the temporary notice shall be marked rescinded and shall serve as a temporary driver's license until the permanent drivers license is 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 breath tests by a law enforcement officer must be provided with a written report including the time of the incident, the time of the breath tests, and the results of the breath 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 is admissible as evidence.
(P) In the event a person's license suspension pursuant to this section is rescinded, all records of the suspension must be deleted from the department's records."
SECTION 3. Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:
"Section 56-5-2952. (A) In addition to any penalty imposed by law, including additional driver's license suspensions, the Department of Public Safety shall suspend for three months the driver's license of a person under the age of twenty-one years 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, when the officer has probable cause to believe that the person has a measurable amount of blood alcohol in his system 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 sample 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 samples must be taken 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 breath test must be administered as soon as practicable after the arrest;
(2) prior to the first breath test, the person administering the breath test must observe the person to be tested for no less than twenty minutes;
(3) any sequential breath test may not be administered less than five minutes after the first breath test;
(4) the breath test results may be used to prove a person's particular alcohol concentration if the pair of readings are from consecutively administered breath tests, the readings do not differ from each other by an alcohol concentration greater than two one-hundredths of one percent and the lesser reading is at least four one-hundredths of one percent;
(5) the breath testing instrument must be maintained and calibrated by SLED at intervals not more than every one hundred 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 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 with a measurable amount of blood alcohol in his system 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 three months. 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 three months after the date of the alleged violation. 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 with a measurable amount of blood alcohol in his system.
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 above directed in this section, the department shall notify immediately the person in writing and, upon the arrested person's request, the department 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. A request for an administrative review does not stay the suspension. 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 such 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 three months.
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 person refuses to submit to a test or if both tests register a blood alcohol content of four 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 the arrested person. The arresting officer shall take immediate possession of a license or permit issued by the department. The notice and order of suspension which he issues serves as a temporary license effective for thirty days.
A copy of the completed notice and order of suspension form and the driver's license taken into possession immediately must be forwarded within two working days to the department by the officer along with a copy of the report.
The suspension period begins thirty days after the issuance of the notice and order of suspension. A request for an administrative review does not stay the suspension. The notice and order of suspension must advise the defendant of the right to obtain an administrative hearing as provided in this section.
(I) The person arrested must request an administrative hearing within ten days from the date of his arrest and be given the hearing within thirty days from the date of the arrest. The temporary license issued to the defendant shall remain effective until such time as an administrative hearing is held by the department.
The hearing must be conducted in the manner provided by this section. If the person waives the administrative 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 an administrative hearing 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 the tests of more than two one-hundredths of one percent and that the lesser reading is at least four 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;
(6) videotape may be introduced by either side at the administrative hearing only if the videotape is contradictory of the breath tests results.
The department after the administrative hearing, if any, shall order that the suspension, or determination that there should be a denial of issuance, either be rescinded or sustained. The period of license suspension under this section shall be as follows:
(a) The period shall be three months if the person's driving record shows no prior driving under the influence or administrative suspensions under this section or refusals to submit to the chemical tests under this section or under Section 56-5-2950 during the time since the person received his driver's license;
(b) The period shall be one year if the person's driving record shows one or more prior driving under the influence convictions or administrative suspensions under this section or refusals to submit to the chemical tests under this section or under Section 56-5-2950 during the time since the person received his driver's license.
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 an arresting officer must be provided with a written report including the time of the incident, the time of any breath tests or the time any sample is taken, and the results of the breath 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 breath test administered pursuant to this section is admissible as evidence.
(P) In the event a person's license suspension pursuant to this section is rescinded, all records of the suspension must be deleted from the Department's records."
SECTION 4. Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:
"Section 56-5-2953. Upon a person being arrested for a violation of Sections 56-5-2930 or 56-5-2945, or arrested under the provisions of Sections 56-5-2951 or 56-5-2952, a videotape must be made when considered possible by the investigating law enforcement officer. This videotape may include, but is not limited to, the entire breath test procedure, a sobriety test where feasible, any other similar tests, or competent videotapes of the scene, or all of them. The videotape shall be made at or about the time of the offense.
Upon written request to the arresting officer's agency and in a timely manner, a copy of any videotape must be provided at a reasonable cost to the defendant not to exceed the actual cost of time and materials. The videotape is admissible as evidence and may be offered by either the prosecution or the defense.
However, nothing in this section may be construed as prohibiting the introduction of other competent evidence in the trials of violation of Section 56-5-2930 or 56-5-2945. Failure by the law enforcement officer of the arresting jurisdiction to provide 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. Failure to produce such a videotape or an affidavit by the arresting officer may be grounds for a dismissal.
All equipment to perform the videotaping as required by this section of arrests for violations of Sections 56-5-2930, 56-5-2945, 56-5-2951, and 56-5-2952 shall be funded as provided by the General Assembly in the annual general appropriations act. The State Law Enforcement Division shall administer the Implied Consent Laws of this State relating to the operation of motor vehicles, hereinafter referred to as the Implied Consent Program, involving, but not limited to, purchasing, supplying, and maintaining all necessary equipment, including videotaping equipment in traffic enforcement vehicles and videotaping and displaying at all breath testing sites. The division is authorized to receive funds remitted in accordance with this section, and to retain and expend these funds for the operation of the Implied Consent Program as considered necessary and appropriate by the division. The division is authorized to carry forward any unexpended funds received in accordance with this section as of June thirtieth of each year, and to expend these carried forward funds for the operation of the Implied Consent Program. The division is required to report the revenue received under this section and the expenditures for which the revenue was used as required in the division's annual appropriation request to the General Assembly."
SECTION 5. Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:
"Section 56-5-2954. Any person whose driving privileges must be suspended as a result of a conviction of a violation of this section 56-5-2951 or 56-5-2952 and who has filed an appeal of the suspension may apply to a court of competent jurisdiction for an Order to Stay the suspension of his driving privileges by the Department. Upon receipt of a certified copy of the Notice of Appeal and the Order to Stay, the Department shall stay its suspension. This Stay shall automatically terminate once the appeal is concluded."
SECTION 6. Section 56-1-1330 of the 1976 Code, as amended by Section 1348 of Act 181 of 1993, is further amended to read:
"Section 56-1-1330. The provisional driver's license provision must include a mandatory requirement that the applicant enter an Alcohol and Drug Safety Action Program certified by the Department of Alcohol and other Drug Abuse Services and be assessed to determine the extent and nature of an alcohol and drug abuse problem, if any, and successfully complete treatment or education services recommended by the program. The education services component of the program must include a presentation by a victim or a member of a victim's family of a driving under the influence charge. The applicant shall bear the cost of the services which must be determined by the administering agency and approved by the Department of Alcohol and other Drug Abuse Services. The cost may not exceed seventy-five dollars for assessment, one hundred twenty-five dollars for education services, two hundred twenty-five dollars for treatment services, and three hundred dollars in total for any and all services. The Department of Alcohol and other Drug Abuse Services shall recommend subsequent cost changes on an annual basis subject to the approval of the General Assembly. If the applicant fails to complete successfully the services as directed by the Department of Public Safety, the Department of Alcohol and other Drug Abuse Services shall notify the Department of Public Safety, and the provisional driver's license issued by the Department of Revenue and Taxation Public Safety must be revoked, and the suspension imposed for the full periods specified in Section 56-5-2990, the suspension to begin on date of notification to the individual."
SECTION 7. Section 56-5-2950(d) of the 1976 Code, as amended by Section 1420 of Act 181 of 1993, is further 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 department, 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 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 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 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. If, in the immediately preceding ten years, on any occasion the person refused to submit to chemical tests as provided in subsection (a) of this section, and the person was subsequently found guilty, plead guilty, or nolo contendere to, or forfeited bond for a first offense violation of Section 56-5-2930, 56-5-2945, 56-5-2951, or 56-5-2952, the period of suspension for this refusal must be one year."
SECTION 8. This act takes effect on July 1, 1995, provided that Section 56-5-2953 of the 1976 Code as added by Section 4 of this act takes effect on July 1, 1995, only if the General Assembly in the 1995-96 annual general appropriations act appropriates additional funds of at least one million one hundred seventy-eight thousand dollars to the State Law Enforcement Division for the purchase and maintenance of the equipment to perform the videotaping as provided by law./
Renumber sections to conform.
Amend totals and title to conform.
WILLIAM D. BOAN, for Committee.
1. Estimated Cost to State-First Year$see below
2. Estimated Cost to State-Annually
Thereafter$see below
House Bill 3345, as amended, amends Title 56 of the South Carolina Code of Laws, 1976, relating to the suspension of driving privileges for driving under the influence of alcohol. The bill adds Sections 56-5-2951 and 56-5-2952 which require that motor vehicle operators must have their driver's license suspended for three months if found to have a blood alcohol level above specified limits:
a) if 21 years or older, the blood alcohol limit is .15 % or above; or b) if under 21 years, the blood alcohol limit is .04% or above. These sections declare that drivers give implied consent to testing, that officers arresting operators may require testing for blood alcohol levels, and that operators refusing to submit to testing shall have their licenses suspended for three months. These sections also provide for administrative hearings to appeal suspensions.
This bill adds Section 56-5-2953 which requires the videotaping of all breath tests and imposes a $35 fee to be paid by individuals at the time of their conviction. The fee is to be remitted to the State Law Enforcement Division (SLED).
The bill adds Section 56-5-2954 which allows for Appeals and Orders to Stay Suspension.
The bill amends Section 56-1-1330 which requires all educational programs to include a presentation by a victim or victim's family member.
The bill amends Section 56-5-2950 (D) which automatically increases the license suspension from three months to six months if the person arrested was previously arrested (within the last ten years) for similar DUI offenses.
The State Highway Department estimates costs to implement House Bill 3345, as amended, as follows:
4 Administrative Specialists $54,432
4 Sets of Office Furniture 13,162
Software Development 10,500
Printing New Forms 10,000
TOTAL $88,094
Total Recurring $69,875
Total Non-Recurring $18,219
These costs would impact on the State Highway Fund and not the State General Fund. The current level of reinstatement fee collections are not anticipated to offset these increased costs for two reasons. The amount received from reinstatement fees vary each year; and those revenues are currently committed to funding other programs of the department.
Section 56-5-2953 provides for the videotaping of chemical tests to be admissible as evidence by either side. SLED shall supply and maintain all necessary equipment, including the videotaping and displaying at all breath testing sites and applicable courts.
SLED estimates the following costs to implement the provisions of this bill:
Camcorders
400 units at test sites
50 backup units at HQ
450 units x $800 $ 360,000
Camcorder Monitors (6" B/W; to monitor taping)
320 monitors at test sites
25 backup monitors
345 units x $100 34,500
TV & VCR (for courts)
400 at Magistrate & Municipal Courts
46 at General Session Courts
30 backup units
476 units x $750 357,000
VCRs (for mandatory duplication)
320 units at test sites x $400 128,000
160 12" monitors at test sites
x $200 32,000
Tapes
35,000 tapes x $3.00 105,000
Personnel
3 Criminologist/Agents 91,023
Operating Expenses
Office Furniture, Gun, Uniform, etc.45,000 (NR)
Supplies, Travel 17,987
Maintenance Testing Equipment 7,500
TOTAL FIRST YEAR COST $ 1,178,010
Equipment Replacement Costs
Camcorders $ 237,600
TVs 33,320
VCRs 106,345
6" monitors 11,523
VCR tapes (35,000 @ $3.00) 105,000
Personnel
3 Criminalist/Agents 91,023
Supplies, Travel 17,987
Maintenance Agreements (TVs) 47,700
TOTAL ANNUAL COST $ 650,498
Costs should be somewhat defrayed by the $35 fee that is to be assessed on all individuals at the time of conviction, guilty plea, or forfeited bond. There are no complete records of conviction rates for DUI cases statewide because there is no reporting mechanism for municipal courts. However, the South Carolina Highway Patrol's conviction rate for 20,684 DUI arrests in FY 1990-91 totaled 79%.
For projection purposes, assuming a 75% conviction rate, total estimated revenue generated from the $35 fee can be projected as follows:
YEAR DUI ARRESTS
1989 30,000
1990 27,529
1991 23,064
1992 19,804
1993 16,000 (PROJECTED)
1994 13,000 (PROJECTED)
13,000 DUI Arrests
x .75 Conviction Rate
9,750 Convictions
x $35 Fee
$ 341,250 Maximum Potential Revenue
x .72 Compliance Rate*
$ 245,700 Projected Annual Revenue
*Only 72% of those convicted actually remit the $35 fee and are therefore in compliance with the law.
YEAR COSTS REVENUES
1 $1,178,000 $245,700
2 $ 650,498 $245,700
3 $ 650,498 $245,700
Clearly, the costs to SLED exceed the projected annual revenue. SLED indicates that it does not have adequate funds in its annual appropriated budget to enforce the provisions of this bill. Therefore, the agency would have to request an additional appropriation from the State General Fund.
Prepared By: Approved By:
Robert J. Stein George N. Dorn, Jr.
State Budget Analyst State Budget Division
Scott Barnes
State Budget Analyst
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 56-1-285 SO AS TO PROVIDE THAT THE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION SHALL SUSPEND FOR NINETY DAYS THE DRIVER'S LICENSE OF ANY PERSON UNDER THE AGE OF TWENTY-ONE WHO IS DETERMINED TO HAVE A BLOOD ALCOHOL CONTENT OF FOUR ONE-HUNDREDTHS OF ONE PERCENT OR ABOVE WHEN OPERATING A MOTOR VEHICLE, TO PROVIDE THE PROCEDURES TO BE FOLLOWED FOR THIS SUSPENSION AND THAT IT IS IN ADDITION TO ANY OTHER PENALTIES IMPOSED BY LAW; TO AMEND THE 1976 CODE BY ADDING SECTION 56-1-286 SO AS TO PROVIDE THAT THE DEPARTMENT SHALL SUSPEND FOR NINETY DAYS THE DRIVER'S LICENSE OF ANY PERSON TWENTY-ONE YEARS OF AGE OR OLDER WHO IS DETERMINED TO HAVE A BLOOD ALCOHOL CONTENT OF FIFTEEN ONE-HUNDREDTHS OF ONE PERCENT OR ABOVE WHEN OPERATING A MOTOR VEHICLE, TO PROVIDE THE PROCEDURES TO BE FOLLOWED FOR THIS SUSPENSION AND THAT IT IS IN ADDITION TO ANY OTHER PENALTIES IMPOSED BY LAW; AND TO AMEND THE 1976 CODE BY ADDING SECTION 56-5-2951 SO AS TO PROVIDE THAT A PERSON ARRESTED FOR CERTAIN VIOLATIONS OF LAW REGARDING THE CONSUMPTION OF ALCOHOL WHILE DRIVING A MOTOR VEHICLE MUST HAVE HIS CONDUCT VIDEOTAPED AT THE LOCATION HE IS TAKEN FOR PURPOSES OF ADMINISTERING A CHEMICAL TEST OF HIS BREATH, TO PROVIDE THE PROCEDURES WHICH MUST BE FOLLOWED FOR THIS VIDEOTAPING AND FOR THE FEE TO BE ASSESSED IN THESE CASES.
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 may 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 the 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 is 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 minutes;
(3) any sequential test may 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 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 are 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 may be construed as prohibiting the introduction of other competent evidence in the trial of violation of Sections 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 must be collected by the appropriate court official and remitted to SLED. The division shall administer the Implied Consent Laws of this State relating to the operation of motor vehicles, hereinafter referred to as the Implied Consent Program, including supplying and maintaining all necessary equipment, including videotaping and displaying at all breath testing sites and all applicable courts. The division is authorized to receive funds remitted in accordance with this section, and to retain and expend these funds for the operation of the Implied Consent Program as considered necessary and appropriate by the division. The division is authorized to carry forward any unexpended funds received in accordance with this section as of June thirtieth of each year, and to expend these carried forward funds for the operation of the Implied Consent Program. The division is required to report the revenue received under this section and the expenditures for which the 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 and the Implied Consent Laws."
SECTION 4. This act takes effect on July 1, 1993, except that the fee assessed by Section 56-5-2951 must be collected beginning with the effective date of this act 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.