Current Status Bill Number:1116 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19980312 Primary Sponsor:Courtney All Sponsors:Courtney Drafted Document Number:jud9047.ctc Residing Body:Senate Current Committee:Judiciary Committee 11 SJ Subject:Transportation Department, Traffic violations, DUI, blood alcohol content percentage decreased; Drivers license
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
Senate 19980527 Recommitted to Committee 11 SJ
Senate 19980430 Recalled from Committee 11 SJ
Senate 19980312 Introduced, read first time, 11 SJ
referred to Committee
View additional legislative information at the LPITS web site.
Indicates Matter Stricken
Indicates New Matter
RECALLED
April 30, 1998
S. 1116
S. Printed 4/30/98--S.
Read the first time March 12, 1998.
ESTIMATED FISCAL IMPACT ON GENERAL FUND EXPENDITURES IS:
Department of Public Safety
The department has indicated that there would be no impact to the General Fund of the State or to the Department of Public Safety.
Judicial Department
The Judicial Department has indicated there were 5,145 DUI related cases disposed of in the court of General Sessions and 6,448 in the municipal courts during 1997. Although figures are not available on the number of DUI cases in magistrates court, it is assumed to be about as many as in the municipal courts. This bill states a new level of DUI called gross intoxication, and will apply higher penalties. It is assumed approximately one third of the magistrate and municipal court DUI cases will involve gross intoxication, carrying a one year penalty. This would result in an increase of approximately 4,298 new general sessions cases which would probably result in a jury trial. Based on the current judges caseload and the additional cases resulting from this bill, it is estimated that three new judges and staff (secretary, court reporter, law clerk) at a cost of $844,092 recurring and $96,060 non-recurring will be required to handle the additional workload.
Department of Corrections
The department has indicated that there exists no available data on which to base an estimate of the additional prisoners' days that would result from passage of this legislation. However, it is reasonable to assume some additional cost which are not determinable at this time.
In a survey of 24 local governments concerning the fiscal impact of the legislation, seven responded indicating no cost to their locality. One respondent stated costs of $25,000 for additional staff for the county detention center should the bill result in additional incarcerations for the county.
The italicized portion of this impact indicates the items that have been revised. For this impact, the revised constitutes information that was not available in the original impact.
Approved By:
Frank A. Rainwater
Office of State Budget
TO AMEND SECTION 56-5-2930, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DRIVING UNDER THE INFLUENCE, SO AS TO PROVIDE FOR THE OFFENSE OF GROSS INTOXICATION; TO AMEND SECTION 56-5-2940, RELATING TO THE PENALTY FOR DRIVING WHILE INTOXICATED, SO AS TO PROVIDE FOR ENHANCED PENALTIES FOR A PERSON WHO HAS MORE THAN TWENTY ONE-HUNDREDTHS OF ONE PERCENT BY WEIGHT OF ALCOHOL IN HIS BLOOD; TO AMEND SECTION 56-5-2950, RELATING TO IMPLIED CONSENT TO CHEMICAL TESTS OF BREATH, BLOOD, AND URINE, SO AS TO PROVIDE THAT IT MAY BE INFERRED THAT A PERSON WHO HAS MORE THAN TWENTY ONE-HUNDREDTHS OF ONE PERCENT BY WEIGHT OF ALCOHOL IN HIS BLOOD IS GROSSLY INTOXICATED; TO AMEND SECTION 56-5-2990, RELATING TO THE DRIVER'S LICENSE SUSPENSION PERIOD FOR A PERSON CONVICTED OF DRIVING WHILE INTOXICATED, SO AS TO PROVIDE FOR ENHANCED PENALTIES FOR A PERSON WHO IS CONVICTED AND AT THE TIME OF THE OFFENSE HAD MORE THAN TWENTY ONE-HUNDREDTHS OF ONE PERCENT BY WEIGHT OF ALCOHOL IN HIS BLOOD; AND TO AMEND SECTION 56-1-1320, RELATING TO PROVISIONAL DRIVER'S LICENSES, SO AS TO PROVIDE THAT A PERSON WHO IS CONVICTED OF DRIVING WHILE INTOXICATED AND AT THE TIME OF THE OFFENSE HAD MORE THAN TWENTY ONE-HUNDREDTHS OF ONE PERCENT BY WEIGHT OF ALCOHOL IN HIS BLOOD MAY NOT RECEIVE A PROVISIONAL DRIVER'S LICENSE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 56-5-2930 of the 1976 Code is amended to read:
"Section 56-5-2930. It is unlawful for any person who is a habitual user of narcotic drugs or any person who is under the influence of intoxicating liquors, narcotic drugs, barbiturates, paraldehydes or drugs, herbs or any other substance of like character, whether synthetic or natural, to drive any vehicle within this State.
For purposes of this section `drug' means illicit or licit drug, a combination of licit or illicit drugs, a combination of alcohol and an illicit drug, or a combination of alcohol and a licit drug.
A person is grossly intoxicated if he drives a vehicle while under the influence of intoxicating liquors, drugs, or any like substance and one of the following factors is present:
(1) The person's manner, disposition, speech, muscular movement, general appearance, or behavior is grossly affected by the influence of intoxicating liquors, drugs, or any like substance; or
(2) At the time of the offense, there was twenty one-hundredths of one percent or more by weight of alcohol in the person's blood.
The question of gross intoxication is one of fact which must be determined by a judge or jury."
SECTION 2. Section 56-5-2940 of the 1976 Code is amended to read:
"Section 56-5-2940. A person violating who violates a provision of Section 56-5-2930, upon conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail, must be punished in accordance with the following:
(1) (a) By by a fine of two hundred dollars or imprisonment for not less than forty-eight hours nor more than thirty days, for the first offense if the person was not grossly intoxicated. However, in lieu of the forty-eight hour minimum imprisonment the court may provide for forty-eight hours of public service employment. The minimum forty-eight hour imprisonment or public service employment must be served at a time when the person is off from work and does not interfere with his regular employment under terms and conditions as the court considers proper. However, the court may not compel an offender to perform public service employment in lieu of the minimum sentence.;
(b) by a fine of not less than two thousand dollars nor more than five thousand dollars and imprisonment for not less than forty-eight hours nor more than one year for the first offense if the person was grossly intoxicated pursuant to Section 56-5-2930;
(2) (a) By by a fine of not less than two thousand dollars nor more than five thousand dollars and imprisonment for not less than forty-eight hours nor more than one year for the second offense if the person was not grossly intoxicated. However, the fine imposed by this item may not be suspended in an amount less than one thousand dollars. In lieu of service of imprisonment, the court may require that the individual complete an appropriate term of public service employment of not less than ten days upon terms and conditions the court considers proper.;
(b) by a fine of not less than three thousand, five hundred dollars nor more than six thousand dollars and imprisonment for not less than sixty days nor more than three years for the second offense if the person was grossly intoxicated pursuant to Section 56-5-2930;
(3) (a) By by a fine of not less than three thousand, five hundred dollars nor more than six thousand dollars and imprisonment for not less than sixty days nor more than three years, for the third offense if the person was not grossly intoxicated;
(b) by imprisonment for not less than one year nor more than five years for the third offense if the person was grossly intoxicated pursuant to Section 56-5-2930.
(4) (a) Imprisonment by imprisonment for not less than one year nor more than five years for a fourth offense or subsequent offense if the person was not grossly intoxicated;
(b) by imprisonment for not less than five years nor more than ten years for the fourth or subsequent offense if the person was grossly intoxicated pursuant to Section 56-5-2930;
No part of the minimum sentences provided in this section must may be suspended. The court may provide instead of service other sentences provided in this section. For a third or subsequent offense or for a violation of Section 56-5-2945 for great bodily injury, the service of the minimum sentence is mandatory. However, the judge may provide for the sentence to be served upon terms and conditions as he considers proper including, but not limited to, weekend service or nighttime service in any fashion he considers necessary.
The fine for a first offense may not be suspended. The court is prohibited from suspending a monetary fine below that of the next preceding minimum monetary fine.
For the purposes of this chapter any conviction, entry of a plea of guilty or of nolo contendere or forfeiture of bail, for the violation of any law or ordinance of this or any other state or any municipality of this or any other state that prohibits any person from operating a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics shall constitute a prior offense for the purpose of any prosecution for any subsequent violation hereof. Only those offenses violations which occurred within a period of ten years including and immediately preceding the date of the last offense violation shall constitute prior offenses violations within the meaning of this section.
Upon imposition of a sentence of public service, the defendant may apply to the Court court to be allowed to perform his public service in his county of residence if he has been sentenced to public service in a county where he does not reside."
SECTION 3. Section 56-5-2950 of the 1976 Code is 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 must be administered at the direction of a law enforcement officer who has apprehended 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 officer the person first must be offered a breath test to determine the alcohol concentration of his blood. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious, dead, or for another reason considered acceptable by the licensed medical personnel, a blood sample may be taken. If the officer has reasonable grounds to believe that the person is under the influence of drugs other than alcohol, the officer may order that a urine sample be taken for testing. If the breathalyzer datamaster reading is ten one-hundredths of one percent by weight of alcohol in the person's blood or above, the officer may not require additional tests of the person as provided in this chapter. The breath test must be administered by a person trained and certified by 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 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 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 in the person's blood at the time of the alleged violation, as shown by chemical analysis of the person's breath or other body fluids, gives rise to the following inferences:
(1) If there was at that time five one-hundredths of one percent or less by weight of alcohol in the person's blood, it is conclusively presumed that the person was not under the influence of alcohol.
(2) If there was at that time in excess of five one-hundredths of one percent but less than ten one-hundredths of one percent by weight of alcohol in the person's blood, that fact does not give rise to any inference that the person was or was not under the influence of alcohol, but that fact may be considered with other competent evidence in determining the guilt or innocence of the person.
(3) If there was at that time ten one-hundredths of one percent or more by weight of alcohol in the person's blood, it may be inferred that the person was under the influence of alcohol.
(4) If there was at that time twenty one-hundredths of one percent or more by weight of alcohol in the person's blood, it may be inferred that the person was grossly intoxicated.
The provisions of this section must not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the person was under the influence of alcohol, drugs, or a combination of them.
(c) Any person who is unconscious or otherwise in a condition rendering him incapable of refusal is considered to be informed and not to have withdrawn the consent provided by subsection (a) 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 provided 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) Any person required to submit to tests by the arresting 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 any trial or other proceedings in which the results of the tests are used as evidence. Any 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 prior to any trial or other proceedings 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 4. Section 56-5-2990 of the 1976 Code is amended to read:
"Section 56-5-2990. The department shall suspend the driver's license of any person who is convicted, receives sentence upon a plea of guilty or of nolo contendere, or forfeits bail posted for the violation of Section 56-5-2930 or for the violation of any other law or ordinance of this State or of any municipality of this State that prohibits any person from operating a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics for six months for the first conviction, plea of guilty or of nolo contendere, or forfeiture of bail, one year for the second conviction, plea of guilty or of nolo contendere, or forfeiture of bail, two years for the third offense, and a permanent revocation of the driver's license for fourth and subsequent offenses. A person who was grossly intoxicated pursuant to Section 56-5-2930 shall have his driver's license suspended for one year for the first conviction, plea of guilty or of nolo contendere, or forfeiture of bail; two years for the second conviction, plea of guilty or of nolo contendere, or forfeiture of bail; three years for the third conviction, plea of guilty or of nolo contendere, or forfeiture of bail; and a permanent revocation of the driver's license for fourth and subsequent offenses. Only those violations which occurred within ten years including and immediately preceding the date of the last violation shall constitute prior violations within the meaning of this section. A person whose license is revoked following conviction for a fourth offense as provided in this section is forever barred from being issued any license by the Department of Public Safety to operate a motor vehicle except as provided in Section 56-1-385."
SECTION 5. Section 56-1-1320 of the 1976 Code is amended to read:
"Section 56-1-1320. A person with a South Carolina driver's license, a person who had a South Carolina driver's license at the time of the offense referenced below, or a person exempted from the licensing requirements by Section 56-1-30, who is or has been convicted of a first offense violation of an ordinance of a municipality, or law of this State, that prohibits a person from operating a vehicle while under the influence of intoxicating liquor, drugs, or narcotics, and whose license is not presently suspended for any other reason, may apply to the motor vehicle division of the department to obtain a provisional driver's license of a design to be determined by the department to operate a motor vehicle. The person shall enter an Alcohol and Drug Safety Action Program as provided for in Section 56-1-1330, shall furnish proof of responsibility as provided for in Section 56-1-1350, and shall pay to the department a fee of five dollars for the provisional driver's license. The provisional driver's license is not valid for more than six months from the date of issue shown on the license. The determination of whether or not a provisional driver's license may be issued pursuant to the provisions of this article as well as reviews of cancellations or suspensions under Sections 56-1-370 and 56-1-820 must be made by the director of the department or his designee. A person convicted of a violation of an ordinance of a municipality or law of this State that prohibits a person from operating a vehicle while under the influence of intoxicating liquor, drugs, or narcotics who was grossly intoxicated pursuant to Section 56-5-2930 is prohibited from obtaining a provisional driver's license in this State."
SECTION 6. This act takes effect upon approval by the Governor.