South Carolina General Assembly
115th Session, 2003-2004

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H. 3228

STATUS INFORMATION

General Bill
Sponsors: Reps. G.M. Smith, Sheheen and Rutherford
Document Path: l:\council\bills\swb\5081cm03.doc
Companion/Similar bill(s): 3224, 3532

Introduced in the House on January 14, 2003
Introduced in the Senate on March 27, 2003
Last Amended on March 26, 2003
Currently residing in the Senate Committee on Judiciary

Summary: DUI and DUS fines and fees; portion of increased funds to DPS; refusal to submit to breath test; administrative changes

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
-------------------------------------------------------------------------------
  12/18/2002  House   Prefiled
  12/18/2002  House   Referred to Committee on Judiciary
   1/14/2003  House   Introduced and read first time HJ-93
   1/14/2003  House   Referred to Committee on Judiciary HJ-94
    2/4/2003  House   Member(s) request name added as sponsor: Sheheen
   3/18/2003  House   Member(s) request name added as sponsor: Rutherford
   3/20/2003  House   Committee report: Favorable with amendment Judiciary HJ-2
   3/24/2003          Scrivener's error corrected
   3/26/2003  House   Amended HJ-37
   3/26/2003  House   Read second time HJ-39
   3/27/2003  House   Read third time and sent to Senate HJ-15
   3/27/2003  Senate  Introduced and read first time
   3/27/2003  Senate  Referred to Committee on Judiciary SJ-30
   3/27/2003          Scrivener's error corrected SJ-30
   5/28/2003  Senate  Committee report: Majority favorable with amend., 
                        minority unfavorable Judiciary SJ-20
   1/13/2004  Senate  Recommitted to Committee on Judiciary SJ-58

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

12/18/2002
3/20/2003
3/24/2003
3/26/2003
3/27/2003
5/28/2003

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

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COMMITTEE REPORT

May 28, 2003

H. 3228

Introduced by Reps. G.M. Smith, Sheheen and Rutherford

S. Printed 5/28/03--S.

Read the first time March 27, 2003.

            

THE COMMITTEE ON JUDICIARY

To whom was referred a Bill (H. 3228) to amend Section 56-5-2934, Code of Laws of South Carolina, 1976, relating to a person's right to compulsory process when charged with the offense of, etc., respectfully

REPORT:

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 therein the following:

/    SECTION    1.    Article 3, Chapter 6, Title 23 of the 1976 Code is amended by adding:

"Section 23-6-180.    The Department of Public Safety is directed to keep permanent records of all Highway Patrolmen who are killed in the line of duty or die in any other manner while actively employed as well as records of those who are retired."

SECTION    2.    Section 56-5-2934 of the 1976 Code, as added by Act 390 of 2000, is amended to read:

"Section 56-5-2934.    Notwithstanding any other provision of law, a person charged with a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 who is being tried in any court of competent jurisdiction in this State shall have has the right to compulsory process for obtaining witnesses, documents, or both, including, but not limited to, state employees charged with the maintenance of breath testing devices in this State and the administration of breath testing pursuant to this article once the compulsory process program is specifically, fully, and adequately funded. Such This process may be issued under the official signature of the magistrate, judge, clerk, or other officer of the court of competent jurisdiction. The term 'documents' includes, but is not limited to, a copy of the computer software program of breath testing devices.

In addition, at the time of arrest for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945, the arresting officer, in addition to other notice requirements, must inform the defendant of his right to all hearings provided by law to include those if a breath test is refused or taken with a result that would require license suspension. The arresting officer, if the defendant wishes to avail himself of any such hearings, depending on the choices made or the breath test results obtained, shall then must provide the defendant with the appropriate form to request the hearing or hearings. The defendant shall must acknowledge receipt of the notice requirements and receipt of the hearing form if such a hearing or hearings are desired. The defendant may at this time complete the hearing request form and give it to the officer who shall in turn forward it to the department."

SECTION    3.    Sections 56-1-286(A), (I), (J), (K), (N) and (V) of the 1976 Code, as amended by Act 390 of 2000, are further amended to read:

"(A)    In addition to any other penalty imposed by law unless otherwise prohibited in this section, including additional driver's license suspensions, the The Department of Public Safety must suspend the driver's license, permit, or nonresident operating privilege of, or deny the issuance of a license or permit to, a person under the age of twenty-one who drives a motor vehicle and has an alcohol concentration of two one-hundredths of one percent or more. The department shall not suspend a person's privilege to drive under this section if the person's privilege to drive has been suspended for In cases in which a law enforcement officer initiates suspension proceedings for a violation of this section, the officer has elected to pursue a violation of this section and is subsequently prohibited from prosecuting the person for a violation of Section 20-7-8920, 20-7-8925, or 56-5-2930, or 56-5-2933 arising from the same incident."

"(I)    A test may not be administered or samples taken unless the person has been informed in writing that:

(1)    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 six months if he refuses to submit to the tests and that his refusal may be used against him in court;

(2)    his privilege to drive must be suspended for at least three months if he takes the test or gives the samples and has an alcohol concentration of two one-hundredths of one percent or more;

(3)    he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense;

(4)    he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and

(5)    he must enroll in an Alcohol and Drug Safety Action Program within thirty days of the issuance of the notice of suspension if he does not request an administrative hearing or within thirty days of the issuance of notice that the suspension has been upheld at the administrative hearing.

The primary investigating officer must notify promptly the department of the refusal of a person to submit to a test requested pursuant to this section as well as the test result of any person who submits to a test pursuant to this section and registers an alcohol concentration of two one-hundredths of one percent or more. The notification must be in a manner prescribed by the department."

"(J)    If the test registers an alcohol concentration of two one-hundredths of one percent or more or if the person refuses to be tested, the primary investigating officer must issue a notice of suspension, and the suspension is effective beginning on the date of the alleged violation of this section. The person, within thirty days of the issuance of the notice of suspension, must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 if he does not request an administrative hearing. If the person does not request an administrative hearing and does not enroll in an Alcohol and Drug Safety Action Program within thirty days, the suspension remains in effect, and a temporary alcohol restricted license must not be issued, and an administrative hearing may not be requested. If the person drives during the period of suspension without a temporary alcohol restricted license, the person must be penalized for driving while his license is suspended pursuant to Section 56-1-460."

"(K)    Within thirty days of the issuance of the notice of suspension the person may:

(1)    obtain a temporary alcohol restricted license by filing with the department a form after enrolling in an Alcohol and Drug Safety Action Program. A one hundred dollar fee must be assessed for obtaining a temporary alcohol restricted license. Twenty-five dollars of the fee must be retained by the department for supplying and maintaining all necessary vehicle videotaping equipment. The remaining seventy-five dollars must be placed by the Comptroller General into a special restricted account to be used by the department to defray the expenses of the Division of Motor Vehicles. The temporary alcohol restricted license allows the person to drive without any restrictive conditions pending the outcome of the administrative hearing provided for in this section or the final decision or disposition of the matter; and

(2)    request an administrative hearing.

At the administrative hearing if:

(a)    the suspension is upheld, the person's person must enroll in an Alcohol and Drug Safety Action Program and his driver's license, permit, or nonresident operating privilege must be suspended or the person must be denied the issuance of a license or permit for the remainder of the suspension periods provided for in subsections (F) and (G);

(b)    the suspension is overturned, the person shall have his driver's license, permit, or nonresident operating privilege reinstated and is not required to complete the Alcohol and Drug Safety Action Program in which he is enrolled. Any costs paid by the person to the certified Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 must be refunded."

"(N)    The notice of suspension shall must advise the person of the requirement to enroll in an Alcohol and Drug Safety Action Program and of his right to obtain a temporary alcohol restricted driver's license and to request an administrative hearing. The notice of suspension also shall must advise the person that, if he does not enroll in an Alcohol and Drug Safety Action Program and does not request an administrative hearing within thirty days of the issuance of the notice of suspension, he must enroll in an Alcohol and Drug Safety Action Program, and he shall have waived waives his right to the administrative hearing, and the suspension continues for the periods provided for in subsections (F) and (G)."

"(V)    Notwithstanding any other provision of law, no suspension imposed pursuant to this section is counted as a demerit or result in any insurance penalty for automobile insurance purposes if at the time he was stopped, the person whose license is suspended had an alcohol concentration that was less than ten eight one-hundredths of one percent."

SECTION    4.    Section 56-5-2940 of the 1976 Code, as last amended by Act 390 of 2000, is further amended to read:

"Section 56-5-2940.    A person who violates a provision of Section 56-5-2930 or 56-5-2933, upon conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail must be punished:

(1)    by a fine of three four hundred dollars or imprisonment for not less than forty-eight hours nor more than thirty days, for the first offense; 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.;

(2)    by a fine of not less than two thousand one hundred dollars nor more than five thousand one hundred dollars and imprisonment for not less than forty-eight hours five days nor more than one year for the second offense. However, the fine imposed by this item may not be suspended in an amount less than one thousand one hundred 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 thirty days upon terms and conditions the court considers proper.;

(3)    by a fine of not less than three thousand five eight hundred dollars nor more than six thousand three hundred dollars and imprisonment for not less than sixty days nor more than three years for the third offense.;

(4)    by imprisonment for not less than one year nor more than five years for a fourth offense or subsequent offense.

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 a person from operating a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics shall constitute constitutes a prior offense for the purpose of any prosecution for any subsequent violation hereof. Only those violations which occurred within a period of ten years including and immediately preceding the date of the last violation shall constitute prior violations within the meaning of this section.

Upon imposition of a sentence of public service, the defendant may apply to the 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.

One hundred dollars of each fine imposed pursuant to this section must be placed by the Comptroller General into a special restricted account to be used by the Department of Public Safety for the Highway Patrol.

Two hundred dollars of the fine imposed pursuant to subsection (3) must be placed by the Comptroller General into a special restricted account to be used by the State Law Enforcement Division to offset the costs of administration of the datamaster, breath testing site video program, ignition interlock provisions, and toxicology laboratory."

SECTION    5.    Section 56-5-2945 of the 1976 Code is amended to read:

"Section 56-5-2945.    (A)    Any A person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs, drives a vehicle and when driving does any act forbidden by law or neglects any duty imposed by law in the driving of the vehicle, which act or neglect proximately causes great bodily injury or death to any a person other than himself, is guilty of a felony and upon conviction must be punished:

(1)    by a mandatory fine of not less than five thousand one hundred dollars nor more than ten thousand one hundred dollars and mandatory imprisonment for not less than thirty days nor more than fifteen years when great bodily injury results;

(2)    by a mandatory fine of not less than ten thousand one hundred dollars nor more than twenty-five thousand one hundred dollars and mandatory imprisonment for not less than one year nor more than twenty-five years when death results.

No A part of the mandatory sentences required to be imposed by this section may must not be suspended, and probation may must not be granted for any portion.

(B)    As used in this section, 'great bodily injury' means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

The department shall must suspend the driver's license of any a person who is convicted or who receives sentence upon a plea of guilty or nolo contendere pursuant to this section for a period to include any a term of imprisonment plus three years.

(C)    One hundred dollars of each fine imposed pursuant to this section must be placed by the Comptroller General into a special restricted account to be used by the department for the Highway Patrol."

SECTION    6.    Section 56-5-2951 of the 1976 Code, as amended by Act 390 of 2000, is further amended to read:

"Section 56-5-2951.    (A)    The Department of Public Safety shall must suspend the driver's license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950 or has an alcohol concentration of fifteen one-hundredths of one percent or more. The arresting officer shall must issue a notice of suspension which is effective beginning on the date of the alleged violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.

(B)    If the test registers an alcohol concentration of ten one-hundredths of one percent or more, the person, within thirty days of the issuance of the notice of suspension, must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990.

(C)    If the person does not enroll in an Alcohol and Drug Safety Action Program within thirty days, the suspension remains in effect, a temporary alcohol restricted license must not be issued, and an administrative hearing may not be requested. If the person drives during the period of suspension without a temporary alcohol restricted license, the person must be penalized for driving while his license is suspended pursuant to Section 56-1-460.

(D)    Within thirty days of the issuance of the notice of suspension, the person may:

(1)    obtain a temporary alcohol restricted license by filing with the department a form after enrolling in an Alcohol and Drug Safety Action Program for this purpose. A one hundred-dollar fee must be assessed for obtaining a temporary alcohol restricted license. Twenty-five dollars of the fee must be retained by the department for supplying and maintaining all necessary vehicle videotaping equipment. The remaining seventy-five dollars must be placed by the Comptroller General into a special restricted account to be used by the department to defray the expenses of the Division of Motor Vehicles. The temporary alcohol restricted license allows the person to drive without any restrictive conditions pending the outcome of the administrative hearing provided for in subsection (H) (F) or the final decision or disposition of the matter. If the suspension is upheld at the administrative hearing, the temporary alcohol restricted license shall remain remains in effect until the department issues the hearing officer's decision and sends notice to the person that he is eligible to receive a special restricted license pursuant to subsection (J) (H); and

(2)    request an administrative hearing.

At the administrative hearing if:

(a)    the suspension is upheld, the person's driver's license, permit, or nonresident operating privilege must be suspended or the person must be denied the issuance of a license or permit for the remainder of the suspension period provided for in subsection (K); (I). Within thirty days of the issuance of the notice that the suspension has been upheld, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990;

(b)    the suspension is overturned, the person shall must have his driver's license, permit, or nonresident operating privilege reinstated and is not required to complete the Alcohol and Drug Safety Action Program in which he is enrolled. Any costs paid by the person to the certified Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 must be refunded.

The provisions of this subsection do not affect the trial for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.

(E)(C)    The period of suspension provided for in subsection (K) (I) begins on the day the notice of suspension is issued, or at the expiration of any other suspensions, and continues until the person applies for a temporary alcohol restricted license and requests an administrative hearing.

(F)(D)    If a person does not request an administrative hearing, he shall have waived waives his right to the hearing, and his suspension must not be stayed but continues for the period provided for in subsection (K) (I).

(G)(E)    The notice of suspension shall must advise the person of the requirement to enroll in an Alcohol and Drug Safety Action Program and of his right to obtain a temporary alcohol restricted driver's license and to request an administrative hearing. The notice of suspension also shall must advise the person that, if he does not request an administrative hearing within thirty days of the issuance of the notice of suspension, he shall have waived waives his right to the administrative hearing, and the suspension continues for the period provided for in subsection (K) (I). The notice of suspension must also advise the person that if the suspension is upheld at the administrative hearing or if he does not request an administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.

(H)(F)    An administrative hearing must be held within thirty days after the request for the hearing is received by the department. If the department does not hold the hearing within thirty days, a written order must be issued by the department within thirty days. The order must set forth the reasons why the hearing was not held within thirty days, and a new hearing must be scheduled. If the department does not issue a written order within thirty days or fails within thirty days to notify the defendant of a new hearing, the person shall must have his driver's license, permit, or nonresident operating privilege reinstated. The scope of the hearing must be limited to whether the person:

(1)    was lawfully arrested or detained;

(2)    was advised in writing of the rights enumerated in Section 56-5-2950; or

(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 was fifteen one- hundredths of one percent or more;

(b)    individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;

(c)    tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and

(d)    the machine was working properly.

Nothing in this section prohibits the introduction of evidence at the administrative hearing on the issue of the accuracy of the breath test result.

A written order must be issued to the person upholding the suspension of the person's license, permit, or nonresident's operating privilege, or denying the issuance of a license or permit within thirty days after the conclusion of the administrative hearing. If the suspension is upheld, the person must receive credit for the number of days his license was suspended before he received a temporary alcohol restricted license and requested the administrative hearing.

(I)(G)    An administrative hearing is a contested proceeding under the Administrative Procedures Act, and a person has a right to judicial review pursuant to that act. The filing of a petition for review shall stay stays the suspension until a final decision is issued.

(J)(1)(H)(1)        If the suspension is upheld at the administrative hearing, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 and may apply for a special restricted driver's license if he is employed or enrolled in a college or university. The special restricted license shall permit permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The special restricted license also shall permit permits him to drive to and from the Alcohol Drug Safety Action Program classes or to a court-ordered drug program. The department may issue the special restricted driver's license only upon showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, or location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program.

(2)    If the department issues a special restricted driver's license, it shall must designate reasonable restrictions on the times during which and routes on which the individual may operate a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of attendance of his court-ordered drug program, or residence must be reported immediately to the department by the licensee.

(3)    The fee for a special restricted driver's license is one hundred dollars, but no additional fee is due shall be charged because of changes in the place and hours of employment, education, or residence. Twenty dollars of this fee must be deposited in the state general fund, and eighty dollars must be placed by the Comptroller General into a special restricted account to be used by the department to defray the expenses of the Division of Motor Vehicles.

(4)    The operation of a motor vehicle outside the time limits and route imposed by a special restricted license by the person issued that license is a violation of Section 56-1-460.

(K)(1)(I)(1)    The period of a driver's license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has no previous convictions for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another any other drug within the ten years preceding a violation of this section, and who has had no previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:

(a)    ninety days for a person who refuses to submit to a test pursuant to Section 56-5-2950; or

(b)    thirty days for a person who takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.

(2)    The period of a driver's license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has been convicted previously for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or any other drug within the ten years preceding a violation of this section, or who has had a previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is one hundred eighty days if he refuses to submit to a test pursuant to Section 56-5-2950 or sixty days if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.

(L)(J)    A person's driver's license, permit, or nonresident operating privilege must be restored when the person's period of suspension under subsection (K) (I) has concluded, even if the person has not yet completed the Alcohol and Drug Safety Action Program in which he is enrolled. After the person's driving privilege is restored, he must continue the services of the Alcohol and Drug Safety Action Program in which he is enrolled. If the person withdraws from or in any way stops making satisfactory progress toward the completion of the Alcohol and Drug Safety Action Program, the person's license shall must be suspended until the completion of the Alcohol and Drug Safety Action Program. A person must be attending or have completed an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 before his driving privilege can be restored at the conclusion of the suspension period.

(M)(K)    When a nonresident's privilege to drive a motor vehicle in this State has been suspended under the provisions of this section, the department must give written notice 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 or permit.

(N)(L)    The department shall must not suspend the privilege to drive of a person under the age of twenty-one pursuant to Section 56-1-286 if the person's privilege to drive has been suspended under this section arising from the same incident.

(O)(M)        A person whose driver's license or permit is suspended pursuant to this section is not required to file proof of financial responsibility.

(P)(N)    An insurer may shall not increase premiums on or add surcharges to the automobile insurance of a person charged with a violation of Section 56-1-286, 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or any other drug unless he is convicted of the violation.

(Q)(O)    The department shall must administer the provisions of this section and shall must promulgate regulations necessary to carry out its provisions.

(R)(P)    If a person does not request an administrative hearing within the ten-day period as authorized pursuant to this section, the person may file with the department a form after enrolling in an approved Alcohol and Drug Safety Action Program to apply for a special restricted driver's license. The special restricted license shall permit permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The special restricted license also shall permit permits him to drive to and from Alcohol and Drug Safety Action Program classes or a court-ordered drug program. The department may issue the special restricted driver's license at any time following the suspension upon a showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program. The department shall must designate reasonable restrictions on the times during which and routes on which the individual may operate a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of his court-ordered drug program, or residence must be reported immediately to the department by the licensee. The route restrictions, requirements, and fees imposed by the department for the issuance of the special restricted driver's license issued pursuant to this item are the same as those provided in this section had the person requested an administrative hearing. A special restricted driver's license is valid until the person successfully completes an approved Alcohol and Drug Safety Action Program, unless the person fails to complete or make satisfactory progress to complete the program."

SECTION    7.    Section 56-5-2952 of the 1976 Code, as added by Act 235 of 2002, is amended to read:

"Section 56-5-2952.    The filing fee to request an administrative hearing pursuant to Section 56-5-2951 or 56-1-286 for a person whose driver's license has been suspended for either his refusal to submit to a breath test or registering an alcohol concentration greater than the existing lawful limit, or any other administrative hearing before the Department of Public Safety, is fifty one hundred dollars. Funds generated from the collection of this fee must be used by the Office of Administrative Hearings of the Department of Public Safety to defray the costs of scheduling and conducting administrative hearings."

SECTION    8.    This act takes effect upon approval by the Governor and applies to offenses committed on or after the effective date.            /

Renumber sections to conform.

Amend title to conform.

Majority favorable.    Minority unfavorable.

LARRY A. MARTIN    RALPH ANDERSON

For Majority.    For Minority.

            

A BILL

TO AMEND SECTION 56-5-2934, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO A PERSON'S RIGHT TO COMPULSORY PROCESS WHEN CHARGED WITH THE OFFENSE OF, OR AN OFFENSE RELATED TO, DRIVING UNDER THE INFLUENCE OF ALCOHOL OR ANOTHER SUBSTANCE, SO AS TO DELETE THE PROVISION THAT ALLOWS A PERSON CHARGED WITH AN OFFENSE TO COMPLETE A HEARING REQUEST FORM AND GIVE IT TO THE ARRESTING OFFICER WHO SHALL FORWARD IT TO THE DEPARTMENT OF PUBLIC SAFETY; TO AMEND SECTION 56-5-2940, AS AMENDED, RELATING TO PENALTIES IMPOSED FOR VIOLATING THE OFFENSE OF DRIVING UNDER THE INFLUENCE OF ALCOHOL OR ANOTHER ILLEGAL SUBSTANCE AND DRIVING WITH AN UNLAWFUL ALCOHOL CONCENTRATION, SO AS TO INCREASE THE FINES IMPOSED FOR THESE OFFENSES, AND TO PROVIDE THAT A PORTION OF EACH FINE MUST BE USED BY THE DEPARTMENT OF PUBLIC SAFETY TO FUND HIGHWAY PATROL PROJECTS; TO AMEND SECTION 56-5-2945, AS AMENDED, RELATING TO THE OFFENSE OF CAUSING GREAT BODILY INJURY OR DEATH WHILE OPERATING A VEHICLE UNDER THE INFLUENCE OF ALCOHOL OR ANOTHER SUBSTANCE, SO AS TO INCREASE THE FINES IMPOSED FOR THIS OFFENSE, AND TO PROVIDE THAT A PORTION OF EACH FINE MUST BE USED BY THE DEPARTMENT OF PUBLIC SAFETY TO FUND HIGHWAY PATROL PROJECTS; TO AMEND SECTION 56-5-2951, AS AMENDED, RELATING TO THE SUSPENSION OF A PERSON'S DRIVER'S LICENSE WHO REFUSES TO SUBMIT TO A TEST TO DETERMINE HIS ALCOHOL CONCENTRATION OR WHO HAS A CERTAIN ALCOHOL CONCENTRATION, SO AS TO DELETE THE PROVISION THAT REQUIRES A PERSON WHO DOES NOT ENROLL IN AN ALCOHOL AND DRUG SAFETY ACTION PROGRAM WITHIN A CERTAIN PERIOD TO HAVE HIS SUSPENSION REMAIN IN EFFECT AND BE DENIED ISSUANCE OF A TEMPORARY ALCOHOL RESTRICTED LICENSE AND THE RIGHT TO REQUEST AN ADMINISTRATIVE HEARING, TO DELETE THE PROVISION THAT REQUIRES A PERSON TO ENROLL IN AN ALCOHOL AND DRUG SAFETY ACTION PROGRAM BEFORE FILING A FORM TO OBTAIN A TEMPORARY ALCOHOL RESTRICTED LICENSE, TO REQUIRE A PERSON TO ENROLL IN AN ALCOHOL AND DRUG SAFETY ACTION PROGRAM BEFORE A LICENSE OR PERMIT IS ISSUED IF THE PERSON'S SUSPENSION IS UPHELD DURING AN ADMINISTRATIVE HEARING, TO REQUIRE A PERSON TO ENROLL IN AN ALCOHOL DRUG SAFETY ACTION PROGRAM BEFORE HE MAY BE ISSUED A SPECIAL RESTRICTED DRIVER'S LICENSE, AND TO REVISE THE TIME PERIOD IN WHICH A PERSON MAY REQUEST AN ADMINISTRATIVE HEARING; AND TO AMEND SECTION 56-5-2952, RELATING TO THE FILING FEE FOR REQUESTING AN ADMINISTRATIVE HEARING TO CHALLENGE CERTAIN DRIVER'S LICENSE SUSPENSIONS, SO AS TO PROVIDE THAT THIS FEE APPLIES TO ANY ADMINISTRATIVE HEARING BEFORE THE DEPARTMENT OF PUBLIC SAFETY, AND TO INCREASE THE FEE.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 56-5-2934 of the 1976 Code, as added by Act 390 of 2000, is amended to read:

"Section 56-5-2934.    Notwithstanding any other provision of law, a person charged with a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 who is being tried in any court of competent jurisdiction in this State shall have the right to compulsory process for obtaining witnesses, documents, or both, including, but not limited to, state employees charged with the maintenance of breath testing devices in this State and the administration of breath testing pursuant to this article once the compulsory process program is specifically, fully, and adequately funded. Such process may be issued under the official signature of the magistrate, judge, clerk, or other officer of the court of competent jurisdiction. The term "documents" includes, but is not limited to, a copy of the computer software program of breath testing devices. In addition, at the time of arrest for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945, the arresting officer, in addition to other notice requirements, must inform the defendant of his right to all hearings provided by law to include those if a breath test is refused or taken with a result that would require license suspension. The arresting officer, if the defendant wishes to avail himself of any such hearings, depending on the choices made or the breath test results obtained, shall then provide the defendant with the appropriate form to request the hearing or hearings. The defendant shall acknowledge receipt of the notice requirements and receipt of the hearing form if such a hearing or hearings are desired. The defendant may at this time complete the hearing request form and give it to the officer who shall in turn forward it to the department."

SECTION    2.    Section 56-5-2940 of the 1976 Code, as last amended by Act 390 of 2000, is further amended to read:

"Section 56-5-2940.    A person who violates a provision of Section 56-5-2930 or 56-5-2933, upon conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail must be punished:

(1)    by a fine of three four hundred dollars or imprisonment for not less than forty-eight hours nor more than thirty days, for the first offense; 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;

(2)    by a fine of not less than two thousand one hundred dollars nor more than five thousand one hundred dollars and imprisonment for not less than forty-eight hours nor more than one year for the second offense. However, the fine imposed by this item may not be suspended in an amount less than one thousand one hundred 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;

(3)    by a fine of not less than three thousand five six hundred dollars nor more than six thousand one hundred dollars and imprisonment for not less than sixty days nor more than three years for the third offense;

(4)    by imprisonment for not less than one year nor more than five years for a fourth offense or subsequent offense.

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 violations which occurred within a period of ten years including and immediately preceding the date of the last violation shall constitute prior violations within the meaning of this section.

Upon imposition of a sentence of public service, the defendant may apply to the 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.

One hundred dollars of each fine imposed pursuant to this section must be placed by the Comptroller General into a special restricted account to be used by the Department of Public Safety for the Highway Patrol. The Department of Public Safety is directed to keep permanent records of all Highway Patrolmen who are killed in the line of duty or die in any other manner while actively employed as well as records of those who are retired. "

SECTION    3.    Section 56-5-2945 of the 1976 Code, as last amended by Act 184 of 1993, is further amended to read:

"Section 56-5-2945.    (A)    Any A person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs, drives a vehicle and when driving does any act forbidden by law or neglects any duty imposed by law in the driving of the vehicle, which act or neglect proximately causes great bodily injury or death to any a person other than himself, is guilty of a felony and upon conviction must be punished:

(1)    by a mandatory fine of not less than five thousand one hundred dollars nor more than ten thousand one hundred dollars and mandatory imprisonment for not less than thirty days nor more than fifteen years when great bodily injury results;

(2)    by a mandatory fine of not less than ten thousand one hundred dollars nor more than twenty-five thousand one hundred dollars and mandatory imprisonment for not less than one year nor more than twenty-five years when death results.

No A part of the mandatory sentences required to be imposed by this section may must not be suspended, and probation may must not be granted for any portion.

(B)    As used in this section, "great bodily injury" means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

The department shall suspend the driver's license of any a person who is convicted or who receives sentence upon a plea of guilty or nolo contendere pursuant to this section for a period to include any a term of imprisonment plus three years.

(C)    One hundred dollars of each fine imposed pursuant to this section must be placed by the Comptroller General into a special restricted account to be used by the department for the Highway Patrol."

SECTION    4.    Section 56-5-2951 of the 1976 Code, as last amended by Act 354 of 2002, is further amended to read:

"(A)    The Department of Public Safety shall suspend the driver's license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950 or has an alcohol concentration of fifteen one-hundredths of one percent or more. The arresting officer shall issue a notice of suspension which is effective beginning on the date of the alleged violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.

(B)    If the test registers an alcohol concentration of ten one-hundredths of one percent or more, the person, within thirty days of the issuance of the notice of suspension, must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990.

(C)    If the person does not enroll in an Alcohol and Drug Safety Action Program within thirty days, the suspension remains in effect, a temporary alcohol restricted license must not be issued, and an administrative hearing may not be requested. If the person drives during the period of suspension without a temporary alcohol restricted license, the person must be penalized for driving while his license is suspended pursuant to Section 56-1-460.

(D)    Within thirty days of the issuance of the notice of suspension the person may:

(1)    obtain a temporary alcohol restricted license by filing with the department a form after enrolling in an Alcohol and Drug Safety Action Program. A one hundred dollar fee must be assessed for obtaining a temporary alcohol restricted license. Twenty-five dollars of the fee must be retained by the department for supplying and maintaining all necessary vehicle videotaping equipment. The remaining seventy-five dollars must be placed by the Comptroller General into a special restricted account to be used by the department to defray the expenses of the Division of Motor Vehicles. The temporary alcohol restricted license allows the person to drive without any restrictive conditions pending the outcome of the administrative hearing provided for in subsection (H) or the final decision or disposition of the matter. If the suspension is upheld at the administrative hearing, the temporary alcohol restricted license shall remain in effect until the department issues the hearing officer's decision and sends notice to the person that he is eligible to receive a special restricted license pursuant to subsection (J); and

(2)    request an administrative hearing.

At the administrative hearing if:

(a)    the suspension is upheld, the person's driver's license, permit, or nonresident operating privilege must be suspended or the person must be denied the issuance of a license or permit for the remainder of the suspension period provided for in subsection (K) and the person must enroll in an Alcohol and Drug Safety Action Program before a license or permit is issued;

(b)    the suspension is overturned, the person shall have his driver's license, permit, or nonresident operating privilege reinstated and is not required to complete the Alcohol and Drug Safety Action Program in which he is enrolled. Any costs paid by the person to the certified Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 must be refunded.

The provisions of this subsection do not affect the trial for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.

(E)    The period of suspension provided for in subsection (K) begins on the day the notice of suspension is issued, or at the expiration of any other suspensions, and continues until the person applies for a temporary alcohol restricted license and requests an administrative hearing.

(F)    If a person does not request an administrative hearing, he shall have waived his right to the hearing and his suspension must not be stayed but continues for the period provided for in subsection (K).

(G)    The notice of suspension shall advise the person of the requirement to enroll in an Alcohol and Drug Safety Action Program and of his right to obtain a temporary alcohol restricted driver's license and request an administrative hearing. The notice of suspension also shall advise the person that, if he does not request an administrative hearing within thirty days of the issuance of the notice of suspension, he shall have waived his right to the administrative hearing, and the suspension continues for the period provided for in subsection (K).

(H)    An administrative hearing must be held within thirty days after the request for the hearing is received by the department. If the department does not hold the hearing within thirty days, a written order must be issued by the department within thirty days. The order must set forth the reasons why the hearing was not held within thirty days, and a new hearing must be scheduled. If the department does not issue a written order within thirty days or fails within thirty days to notify the defendant of a new hearing, the person shall have his driver's license, permit, or nonresident operating privilege reinstated. The scope of the hearing must be limited to whether the person:

(1)    was lawfully arrested or detained;

(2)    was advised in writing of the rights enumerated in 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 was fifteen one-hundredths of one percent or more;

(b)    individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;

(c)    tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and

(d)    the machine was working properly.

Nothing in this section prohibits the introduction of evidence at the administrative hearing on the issue of the accuracy of the breath test result.

A written order must be issued to the person upholding the suspension of the person's license, permit, or nonresident's operating privilege, or denying the issuance of a license or permit within thirty days after the conclusion of the administrative hearing. If the suspension is upheld, the person must receive credit for the number of days his license was suspended before he received a temporary alcohol restricted license and requested the administrative hearing.

(I)    An administrative hearing is a contested proceeding under the Administrative Procedures Act, and a person has a right to judicial review pursuant to that act. The filing of a petition for review shall stay the suspension until a final decision is issued.

(J)(1)    If the suspension is upheld at the administrative hearing, the person may apply for a special restricted driver's license if he is employed or enrolled in a college or university. The special restricted license shall permit him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The special restricted license also shall permit him to drive to and from the Alcohol Drug Safety Action Program classes or to a court-ordered drug program. The department may issue the special restricted driver's license only upon showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, or location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program and has enrolled in an Alcohol and Drug Safety Action Program.

(2)    If the department issues a special restricted driver's license, it shall designate reasonable restrictions on the times during which and routes on which the individual may operate a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of attendance of his court-ordered drug program, or residence must be reported immediately to the department by the licensee.

(3)    The fee for a special restricted driver's license is one hundred dollars, but no additional fee is due because of changes in the place and hours of employment, education, or residence. Twenty dollars of this fee must be deposited in the state general fund and eighty dollars must be placed by the Comptroller General into a special restricted account to be used by the department to defray the expenses of the Division of Motor Vehicles.

(4)    The operation of a motor vehicle outside the time limits and route imposed by a special restricted license by the person issued that license is a violation of Section 56-1-460.

(K)(1)    The period of a driver's license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to an arrested person who has no previous convictions for violating Section 56-5-2930, 56-5-2933, or 56-5-2945 or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug within the ten years preceding a violation of this section, and who has had no previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:

(a)    ninety days for a person who refuses to submit to a test pursuant to Section 56-5-2950; or

(b)    thirty days for a person who takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.

(2)    The period of a driver's license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to an arrested person who has been convicted previously for violating Section 56-5-2930, 56-5-2933, or 56-5-2945 or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or any other drug within the ten years preceding a violation of this section, or who has had a previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is one hundred eighty days if he refuses to submit to a test pursuant to Section 56-5-2950 or sixty days if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.

(L)    A person's driver's license, permit, or nonresident operating privilege must be restored when the person's period of suspension under subsection (K) has concluded, even if the person has not yet completed the Alcohol and Drug Safety Action Program in which he is enrolled. After the person's driving privilege is restored, he must continue the services of the Alcohol and Drug Safety Action Program in which he is enrolled. If the person withdraws from or in any way stops making satisfactory progress toward the completion of the Alcohol and Drug Safety Action Program, the person's license shall be suspended until the completion of the Alcohol and Drug Safety Action Program. A person must be attending or have completed an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 before his driving privilege can be restored at the conclusion of the suspension period.

(M)    When a nonresident's privilege to drive a motor vehicle in this State has been suspended under the provisions of this section, the department must give written notice 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 or permit.

(N)    The department shall not suspend the privilege to drive of a person under the age of twenty-one pursuant to Section 56-1-286 if the person's privilege to drive has been suspended under this section arising from the same incident.

(O)    A person whose driver's license or permit is suspended pursuant to this section is not required to file proof of financial responsibility.

(P)    An insurer may not increase premiums on or add surcharges to the automobile insurance of a person charged with a violation of Section 56-1-286, 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or any other drug unless he is convicted of the violation.

(Q)    The department shall administer the provisions of this section and shall promulgate regulations necessary to carry out its provisions.

(R)    If a person does not request an administrative hearing within the ten thirty-day period as authorized pursuant to this section, the person may file with the department a form after enrolling in an approved Alcohol and Drug Safety Action Program to apply for a special restricted driver's license. The special restricted license shall permit him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The special restricted license also shall permit him to drive to and from Alcohol and Drug Safety Action Program classes or a court-ordered drug program. The department may issue the special restricted driver's license at any time following the suspension upon a showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program. The department shall designate reasonable restrictions on the times during which and routes on which the individual may operate a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of his court-ordered drug program, or residence must be reported immediately to the department by the licensee. The route restrictions, requirements, and fees imposed by the department for the issuance of the special restricted driver's license issued pursuant to this item are the same as those provided in this section had the person requested an administrative hearing. A special restricted driver's license is valid until the person successfully completes an approved Alcohol and Drug Safety Action Program, unless the person fails to complete or make satisfactory progress to complete the program."

SECTION    5.    Section 56-5-2952 of the 1976 Code, as added by Act 235 of 2002, is amended to read:

"Section 56-5-2952.    The filing fee to request an administrative hearing pursuant to Section 56-5-2951 or 56-1-286 for a person whose driver's license has been suspended for either his refusal to submit to a breath test or registering an alcohol concentration greater than the existing lawful limit, or any other administrative hearing before the Department of Public Safety, is fifty one hundred dollars. Funds generated from the collection of this fee must be used by the Office of Administrative Hearings of the Department of Public Safety to defray the costs of scheduling and conducting administrative hearings."

SECTION    6.    Section 56-1-286(K)(1) of the 1976 Code, as last amended by Act 79 of 2001, is further amended to read:

"(1)    obtain a temporary alcohol restricted license by filing with the department a form after enrolling in an Alcohol and Drug Safety Action Program. A one hundred dollar fee must be assessed for obtaining a temporary alcohol restricted license. Twenty-five dollars of the fee must be retained by the department for supplying and maintaining all necessary vehicle videotaping equipment. The remaining seventy-five dollars must be placed by the Comptroller General into a special restricted account to be used by the department to defray the expenses of the Division of Motor Vehicles. The temporary alcohol restricted license allows the person to drive without any restrictive conditions pending the outcome of the administrative hearing provided for in this section or the final decision or disposition of the matter; and"

SECTION    7.    This act takes effect upon approval by the Governor.

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This web page was last updated on Monday, December 7, 2009 at 10:24 A.M.