Current Status Bill Number:4014 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19950412 Primary Sponsor:Wilkins All Sponsors:Wilkins Drafted Document Number:dka\3870cm.95 Companion Bill Number:701, 4059 Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Administrative driver's license, DUI
Body Date Action Description Com Leg Involved
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House 19950412 Introduced, read first time, 25 HJ
referred to Committee
View additional legislative information at the LPITS web site.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 56-5-2951 SO AS TO PROVIDE FOR AN ADMINISTRATIVE DRIVER'S LICENSE AND PERMIT REVOCATION PROCEDURE FOR A PERSON ARRESTED WHILE DRIVING UNDER THE INFLUENCE OF ALCOHOL OR ANOTHER SUBSTANCE AND TO PROVIDE THAT CERTAIN EVIDENCE PRESENTED IN THIS PROCEEDING MAY BE USED IN A CRIMINAL PROSECUTION; TO AMEND SECTION 56-1-10, AS AMENDED, RELATING TO DEFINITIONS FOR PURPOSES OF MOTOR VEHICLE LAWS, SO AS TO PROVIDE A DEFINITION FOR "ALCOHOL" AND "ALCOHOL CONCENTRATION"; TO AMEND SECTION 56-1-2030, AS AMENDED, RELATING TO DEFINITIONS FOR PURPOSES OF COMMERCIAL DRIVER'S LICENSES, SO AS TO ELIMINATE THE DEFINITION FOR "ALCOHOL" AND "ALCOHOL CONCENTRATION"; AND TO AMEND SECTION 56-5-2950, AS AMENDED, RELATING TO IMPLIED CONSENT TO CHEMICAL TEST OR BREATH, BLOOD, AND URINE TO DETERMINE THE PRESENCE OF ALCOHOL OR DRUGS ON A MOTOR VEHICLE OPERATOR, SO AS TO REVISE THE NUMBER OF TESTS THAT MAY BE ADMINISTERED AND THE PROCEDURE FOR UTILIZING THE TEST RESULTS, TO DELETE THE DRIVER'S LICENSE AND PERMIT SUSPENSION PROCEDURE, AND TO MAKE TECHNICAL CHANGES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 56-5-2951. (A) The department shall suspend the driver's license of a person who operates a motor vehicle and who refuses to submit to a test required by Section 56-5-2950, or is determined to have an alcohol concentration of ten one-hundredths of one percent or above. The period of suspension is provided in subsection (E) of this section. The suspension is effective thirty days after the department serves the order of suspension on the person. The order of suspension shall advise the person of his right to obtain an administrative review and an administrative hearing regarding the suspension of his driver's license under this section.
(B) When possible, a law enforcement officer immediately shall serve the order of suspension upon a person who violates a provision contained in subsection (A). The law enforcement officer shall take possession of the motor vehicle operator's driver's license or permit. The order of suspension shall serve as a temporary driver's license or permit for thirty days.
A copy of the completed order of suspension and the driver's license or permit seized must be sent within two working days to the department with a copy of the law enforcement officer's incident report.
(C) An administrative review of an order of suspension may be requested by filing a written request with the department within ten days after the order of suspension is served stating the specific grounds for review. Upon receiving a request for an administrative review, the director or his designee shall review:
(1) the order of suspension;
(2) the law enforcement officer's incident report;
(3) the arrested person's driving record, if it is relevant to the review; and
(4) other relevant information provided to the director or his designee.
From this review, the director or his designee shall determine whether to sustain the order of suspension. Within ten days after receiving a request for an administrative review, the director or his designee shall report in writing the results of the review to the person requesting the review.
An administrative review of an order of suspension is not a contested proceeding under the Administrative Procedures Act, does not stay a suspension, and has no effect upon the availability of an administrative hearing under this section.
(D) In addition to requesting an administrative review under subsection (C), a person whose driver's license or permit has been suspended under subsection (A) may request before the effective date of the suspension an administrative hearing by filing a written request with the department. The department must schedule the hearing within sixty days after the request is received. The filing of the request shall not stay the suspension. The department may order a stay of the remainder of the suspension if the hearing is not conducted within the sixty-day-period. The scope of the hearing must be limited to whether the person:
(1) was lawfully arrested;
(2) was advised of the consequences of taking or refusing to take a test pursuant to Section 56-5-2950;
(3) refused to submit to a test pursuant to Section 56-5-2950; or
(4) consented to taking a test pursuant to Section 56-5-2950 and the:
(a) reported alcohol concentration at the time of testing during two successfully completed tests did not vary by more than two one-hundredths of one percent and the lower reported reading was at least ten one-hundredths of one percent;
(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950; and
(c) tests administered and samples taken were conducted pursuant to Section 56-5-2950.
A written order must be issued sustaining or rescinding the suspension order at the conclusion of the administrative hearing.
(E) The period of a driver's license or permit suspension for an arrested person who has no previous convictions for violating Section 56-5-2930 or Section 56-5-2945 or another law of this State or another state that prohibits a person from operating a motor vehicle while under the influence of alcohol or another drug, and who has no previous suspension imposed pursuant to Section 56-5-2950 or Section 56-5-2951 within the ten years preceding a violation of this section is:
(1) one hundred eighty days for a person who refuses to submit to a test pursuant to Section 56-5-2950; or
(2) ninety days for a person who takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of ten one-hundredths of one percent or more.
(F) The period of a driver's license or permit suspension for an arrested person who has been previously convicted for violating Section 56-5-2930 or Section 56-5-2945 or another law of this State or another state that prohibits a person from operating a motor vehicle while under the influence of alcohol or another drug, or who has had a previous suspension imposed pursuant to Section 56-5-2950 or Section 56-5-2951 within the ten years preceding a violation of this section is one year if he:
(1) refused to submit to the test pursuant to Section 56-5-2950; or
(2) took the test pursuant to Section 56-5-2950 and his alcohol concentration was ten one-hundredths of one percent or more.
(G) Once a nonresident's privilege to operate a motor vehicle has been suspended pursuant to this section, the department shall notify the motor vehicle administrator of each state from which the person has obtained a driver's license or permit.
(H) A person whose driver's license is suspended pursuant to this section is not required to file proof of financial responsibility.
(I) In a criminal prosecution only the lower of the breath tests administered pursuant to this section is admissible as evidence."
SECTION 2. Section 56-1-10 of the 1976 Code, as last amended by Act 181 of 1993, is amended by adding:
"(16) `Alcohol' means a substance containing any form of alcohol including, but not limited to, ethanol, methanol, propanol, and other volatile substances including toluene and acetaldehyde.
(17) `Alcohol concentration' means the number of grams of alcohol for each:
(a) one hundred milliliters of blood;
(b) two hundred ten liters of breath; or
(c) sixty-seven milliliters of urine."
SECTION 3. Section 56-1-2030 of the 1976 Code, as last amended by Acts 134 and 149 of 1993, is further amended to read:
"Section 56-1-2030. As used in this article:
(1) `Alcohol' means a substance containing any form of alcohol including, but not limited to, ethanol, methanol, propanol, and isopropanol.
(2) `Alcohol concentration' means:
(a) the number of grams of alcohol for each one hundred milliliters of blood; or
(b) as determined by the South Carolina Law Enforcement Division for other bodily fluids.
(3)(1) `Commercial driver license' means a license issued in accordance with the requirements of the Commercial Motor Vehicle Safety Act of 1986 (Title XII of Public Law 99-570) to an individual which authorizes the individual to drive a class of commercial motor vehicle.
(4)(2) `Commercial Driver License Information System' means the information system established pursuant to the Commercial Motor Vehicle Safety Act of 1986 to serve as a clearinghouse for locating information related to the licensing and identification of commercial motor vehicle drivers.
(5)(3) `Commercial driver instruction permit' means a permit issued pursuant to Section 56-1-2080(D) of this article.
(6)(4) `Commercial motor vehicle' means a motor vehicle designed or used to transport passengers or property if the vehicle:
(a) the vehicle has a gross vehicle weight rating of twenty-six thousand one or more pounds;
(b) the vehicle is designed to transport sixteen or more persons, including the driver; or
(c) the vehicle is transporting hazardous materials and is required to be placarded in accordance with 49 C.F.R. part 172, subpart F.
(7)(5) `CMVSA' means the Commercial Motor Vehicle Safety Act of 1986 (Title XII of Public Law 99-570).
(8)(6) `Controlled substance' means a substance so classified under Section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)) listed on Schedules I through V of 21 C.F.R. part 1308, as revised from time to time.
(9)(7) `Conviction' means an unvacated adjudication of guilty, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person's appearance in court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.
(10)(8) `Disqualification' means a withdrawal of the privilege to drive a commercial motor vehicle.
(11)(9) `Drive' means to drive, operate, or be in physical control of a motor vehicle.
(12)(10) `Driver' means a person who drives a commercial motor vehicle, or who is required to hold a commercial driver license.
(13)(11) `Driver license' means a license issued to an individual which authorizes the individual to drive a motor vehicle.
(14)(12) `Employer' means a person, including the United States, a state, or a political subdivision of a state who owns or leases a commercial motor vehicle or assigns a person to drive a commercial motor vehicle.
(15)(13) `Endorsement' means a special authorization to drive certain types of vehicles or to transport certain types of property or a certain number of passengers.
(16)(14) `Felony' means an offense under state or federal law that is punishable by death or imprisonment for more than one year.
(17)(15) `Foreign jurisdiction' means a jurisdiction other than a state of the United States.
(18)(16) `Gross vehicle weight rating' means the actual weight or the value specified by the manufacturer as the maximum loaded weight of a single or a combination vehicle or the registered gross weight, whichever is greater. The gross vehicle weight rating of a combination vehicle (commonly referred to as the `gross combination weight rating') is the gross vehicle weight rating of the power unit plus the gross vehicle weight rating of a towed unit.
(19)(17) `Hazardous materials' has the meaning as that found in Section 103 of the Hazardous Materials Transportation Act (49 U.S.C. 1801, et seq.).
(20)(18) `Motor vehicle' means every a vehicle which is self-propelled and every a vehicle which is propelled by electric power obtained from overhead trolley wires but not operated upon rails, except a vehicle moved solely by human power and motorized wheelchairs.
(21)(19) `Out of service order' means a temporary prohibition against driving a commercial motor vehicle.
(22)(20) `Recreational vehicle' means a self-propelled or towed vehicle that is equipped to serve as temporary living quarters for recreational, camping, or travel purposes and is used solely as a family/personal conveyance.
(23)(21) `Restriction' means a prohibition against driving certain types of vehicles or a requirement that the driver comply with certain conditions when driving a motor vehicle.
(24)(22) `Serious traffic violation' means a conviction when operating a commercial motor vehicle of:
(a) excessive speeding, involving a single charge for a speed fifteen miles an hour or more above the speed limit;
(b) reckless driving, including charges of driving a commercial motor vehicle in a wilful or wanton disregard for the safety of persons or property;
(c) improper or erratic traffic lane changes;
(d) following the vehicle ahead too closely; or
(e) a violation of a state or local law related to motor vehicle traffic control, other than a parking violation, arising in connection with an accident or collision resulting in death or serious bodily injury to a person.
(25)(23) `State' means a state or territory of the United States and the District of Columbia and the federal government and a province or territory of Canada.
(26)(24) `Tank vehicle' means a vehicle that is designed to transport a liquid or gaseous material within a tank that either is attached permanently or temporarily to the vehicle and which has a capacity of one thousand gallons or more.
(27)(25) `United States' means the fifty states and the District of Columbia.
(28)(26) `Farm related vehicle' means a vehicle used:
(a) in custom harvester operations,;
(b) in livestock feeding operations,; or
(c) by an agri-chemical business or a company which hauls agri-chemical products to a farm.
(29)(27) `Seasonal restricted commercial driver's license' means a commercial driver's license issued under the authority of the waiver promulgated by the Federal Department of Transportation (57 Federal Register 13650) by the department to an individual who has not passed the knowledge or skill test required of other commercial driver's license holders. This license authorizes operation of a commercial motor vehicle only on a seasonal basis, stated on the license, by a seasonal employee of a custom harvester, livestock feeder, agri-chemical operation and company hauling agri-chemical products to a farm within one hundred fifty miles of the place of business."
SECTION 4. Section 56-5-2950 of the 1976 Code, as last amended by Act 497 of 1994, is further amended to read:
"Section 56-5-2950. (a) A person who operates a motor vehicle in this State is considered to have given consent to chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs if arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle while under the influence of alcohol, drugs, or a combination of them. A test Tests must be administered at the direction of a law enforcement officer who has apprehended on a person for operating a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of them. At the direction of the arresting law enforcement officer the person first must be offered a two breath test tests to determine the alcohol concentration of his blood. A subsequent test may not be administered less than two minutes after the first test. The reported test results may be used to prove a person's alcohol concentration if the two successfully completed tests yield readings which do not differ from each other by an alcohol concentration greater than two one-hundredths of one percent and the lower reading is at least ten one-hundredths of one percent. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious, dead, or for another reason considered acceptable by the licensed medical personnel or a law enforcement officer, then a blood sample may be taken. Only one blood sample is required under the provisions of this section. If the officer has reasonable grounds to believe that the person is under the influence of drugs other than alcohol, then the law enforcement officer may order that a blood or urine sample be taken for testing.
If the breathalyzer reading alcohol concentration 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 tests must be administered by a person trained and certified by SLED, using methods approved by SLED. The arresting officer may not administer the tests. Blood and urine samples must be taken by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, and other medical personnel trained to take the samples in a licensed medical facility. Blood samples or and urine samples must be obtained and handled in accordance with procedures approved by SLED. No tests may be administered or samples taken unless the person has been informed that he does not have to take the test or give the samples but that his privilege to drive must be suspended or denied for at least 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 another cause contending that the drawing of blood or taking samples at the request of the arrested person or a law enforcement officer was wrongful. This release from liability does not reduce the standard of medical care required of the person taking the samples or conducting the test. This qualified release also applies to the employer of the person who conducts the test or takes the samples.
The person tested or giving samples for testing may have a qualified person of his own choosing conduct additional tests at his expense and must be notified of that right. A person's failure to request additional blood or urine tests 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.
SLED shall administer the provisions of this subsection and may make regulations necessary to carry out its provisions. The costs of the tests administered at the direction of the law enforcement officer must be paid from the general fund of the State.
A qualified person who obtains samples or administers the tests or assists in obtaining samples or administration of tests at the direction of a law enforcement officer is released from civil and criminal liability unless the obtaining of samples or tests is performed in a negligent manner. No person may be required by the arresting officer, or by another law enforcement officer, to obtain or take any sample of blood or urine.
(b) In any criminal prosecution for the violation of Section 56-5-2930 or 56-5-2945 relating to operating a vehicle under the influence of alcohol, drugs, or a combination of them, the amount of alcohol concentration in the person's blood at the time of the alleged violation tests, as shown by chemical analysis of the person's breath or other body fluids, gives rise to the following inferences:
(1) If there the alcohol concentration 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 the alcohol concentration 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 the alcohol concentration 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 any 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 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 (a) of this section.
(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.
(e) 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 purposes 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.
(f) 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.
(g) (d) Any A person required to submit to tests by the arresting law enforcement officer must be provided with a written report including the time of arrest, the time of the tests, and the results of the tests prior to before any trial or other proceedings another proceeding in which the results of the tests are used as evidence. Any 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 of the results to the arresting officer prior to before any trial or other proceedings another proceeding in which the results of the test are used as evidence.
(h) Any person whose driver's license or permit is suspended for failure to take the tests required by this section and who is not convicted of operating a motor vehicle under the influence of alcohol, drugs, or a combination of them is not required to file proof of insurance under the Financial Responsibility Act, and no record of the suspension may be shown on any of his records."
SECTION 5. This act takes effect upon approval by the Governor.