South Carolina General Assembly
115th Session, 2003-2004

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A61, R157, H3231

STATUS INFORMATION

General Bill
Sponsors: Reps. Gilham, Stille, Wilkins, Walker, Bales, M.A. Pitts, Cobb-Hunter, Richardson, Ceips, Cotty, Skelton, Owens, Haskins, Martin, Toole, Lourie, Huggins, E.H. Pitts, Talley, Mahaffey, Leach, Hamilton, Loftis, D.C. Smith, McLeod, Thompson and J.E. Smith
Document Path: l:\council\bills\swb\5092cm03.doc

Introduced in the House on January 14, 2003
Introduced in the Senate on March 26, 2003
Last Amended on June 5, 2003
Passed by the General Assembly on June 5, 2003
Governor's Action: June 19, 2003, Signed

Summary: DUI, decrease blood alcohol content to 0.08%

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-95
   1/14/2003  House   Referred to Committee on Judiciary HJ-95
   1/21/2003  House   Member(s) request name added as sponsor: Ceips
    2/4/2003  House   Member(s) request name added as sponsor: Cotty
    2/5/2003  House   Member(s) request name added as sponsor: Skelton
    2/6/2003  House   Member(s) request name added as sponsor: Owens
   2/12/2003  House   Member(s) request name added as sponsor: Haskins, 
                        Martin, Toole
   2/26/2003  House   Member(s) request name added as sponsor: Lourie, Huggins
   2/26/2003  House   Committee report: Favorable with amendment Judiciary HJ-6
   2/27/2003  House   Member(s) request name added as sponsor: E.H.Pitts, 
                        Talley
   2/27/2003          Scrivener's error corrected
    3/4/2003  House   Member(s) request name added as sponsor: Mahaffey, 
                        Leach, Hamilton, Loftis, D.C.Smith
    3/4/2003  House   Requests for debate-Rep(s). Altman, Walker, Clemmons, GM 
                        Smith, Sheheen, Scarborough, Jennings, White, Ott, 
                        Lloyd, Sinclair, JE Smith, Whitmire, Merrill, Hinson, 
                        EH Pitts, Pinson, Weeks, Rhoad, Moody-Lawrence, Hayes, 
                        Viers and Hosey HJ-86
    3/5/2003  House   Member(s) request name added as sponsor: McLeod
    3/6/2003  House   Member(s) request name added as sponsor: Thompson
   3/19/2003  House   Member(s) request name added as sponsor: J.E.Smith
   3/19/2003  House   Amended HJ-59
   3/19/2003  House   Read second time HJ-78
   3/19/2003  House   Roll call Yeas-106  Nays-6 HJ-78
   3/20/2003          Scrivener's error corrected
   3/25/2003  House   Read third time and sent to Senate HJ-38
   3/26/2003  Senate  Introduced and read first time SJ-20
   3/26/2003  Senate  Referred to Committee on Judiciary SJ-20
    4/9/2003  Senate  Recalled from Committee on Judiciary SJ-53
    4/9/2003  Senate  Amended SJ-53
    4/9/2003  Senate  Read second time SJ-53
    4/9/2003  Senate  Ordered to third reading with notice of amendments SJ-53
    4/9/2003  Senate  Recommitted to Committee on Judiciary SJ-53
    4/9/2003  Senate  Unanimous consent to be placed on third reading calendar 
                        when reported out of committee SJ-69
   4/11/2003          Scrivener's error corrected
   5/27/2003  Senate  Committee report: Favorable with amendment Judiciary 
                        SJ-23
   5/28/2003          Scrivener's error corrected
   5/28/2003  Senate  Debate interrupted SJ-55
   5/29/2003  Senate  Amended SJ-105
   5/29/2003  Senate  Read third time and returned to House with amendments 
                        SJ-105
    6/3/2003  House   Senate amendment amended HJ-35
    6/3/2003  House   Returned to Senate with amendments HJ-48
    6/3/2003  Senate  Non-concurrence in House amendment SJ-46
    6/4/2003  House   House insists upon amendment and conference committee 
                        appointed Reps. Gilham, Sinclair and Lucas HJ-118
    6/4/2003  Senate  Conference committee appointed Sens. McConnell, Martin, 
                        Hutto SJ-24
    6/5/2003  Senate  Free conference powers granted SJ-267
    6/5/2003  Senate  Free conference committee appointed Sens. McConnell, 
                        Martin, Hutto SJ-267
    6/5/2003  Senate  Free conference report received and adopted SJ-267
    6/5/2003  House   Free conference powers granted HJ-320
    6/5/2003  House   Free conference committee appointed Gilham, Sinclair and 
                        Lucas HJ-322
    6/5/2003  House   Free conference report received and adopted HJ-322
    6/5/2003  Senate  Ordered enrolled for ratification SJ-295
    6/5/2003          Ratified R 157
    6/9/2003          Scrivener's error corrected
   6/11/2003          Scrivener's error corrected
   6/19/2003          Signed By Governor
   6/26/2003          Copies available
   6/26/2003          Effective date 08/19/03
    7/1/2003          Act No. 61

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

12/18/2002
2/26/2003
2/27/2003
3/19/2003
3/20/2003
4/9/2003
4/9/2003-A
4/11/2003
5/27/2003
5/28/2003
5/29/2003
6/3/2003
6/5/2003
6/9/2003
6/11/2003


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

(A61, R157, H3231)

AN ACT TO AMEND SECTION 23-31-420, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE PRESUMPTIONS CREATED WHEN CERTAIN LEVELS OF ALCOHOL ARE FOUND IN A CHEMICAL ANALYSIS OF A PERSON WHO USES A FIREARM'S BLOOD OR BREATH, SO AS TO LOWER THE LEVEL OF ALCOHOL FOUND IN A PERSONS BLOOD THAT MAY BE CONSIDERED WITH OTHER COMPETENT EVIDENCE IN DETERMINING WHETHER A PERSON IS UNDER THE INFLUENCE OF ALCOHOL AND THE LEVEL THAT CREATES AN INFERENCE THAT A PERSON IS UNDER THE INFLUENCE OF ALCOHOL; BY ADDING SECTION 42-3-105 SO AS TO AUTHORIZE THE WORKER'S COMPENSATION COMMISSION TO DOUBLE THE AMOUNT OF FINES AND PENALTIES ASSESSED FOR CERTAIN VIOLATIONS OF THE WORKERS' COMPENSATION LAW, TO PROVIDE A MINIMUM PENALTY FOR CERTAIN VIOLATIONS, AND TO ALLOW THE COMMISSION TO RETAIN AND EXPEND ALL REVENUES RECEIVED PURSUANT TO THIS SECTION; TO AMEND SECTION 50-21-114, AS AMENDED, RELATING TO CHEMICAL TESTS ADMINISTERED ON A PERSON WHO OPERATES A WATER DEVICE TO DETERMINE WHETHER HE IS OPERATING THE DEVICE WITH AN UNLAWFUL ALCOHOL CONCENTRATION, SO AS TO ALLOW AN ARRESTING OFFICER TO DIRECT A BLOOD SAMPLE BE TAKEN FROM A DECEASED PERSON WHO HE BELIEVES HAS OPERATED A WATER DEVICE WHILE UNDER THE INFLUENCE OF ALCOHOL, DRUGS, OR A COMBINATION OF BOTH, TO MAKE CERTAIN TECHNICAL CHANGES, AND TO LOWER THE LEVEL OF ALCOHOL FOUND IN A PERSON'S BLOOD THAT MAY BE CONSIDERED WITH OTHER COMPETENT EVIDENCE IN DETERMINING WHETHER A PERSON IS UNDER THE INFLUENCE OF ALCOHOL AND THE LEVEL THAT CREATES AN INFERENCE THAT A PERSON IS UNDER THE INFLUENCE OF ALCOHOL; TO AMEND SECTION 56-1-286, AS AMENDED, RELATING TO THE SUSPENSION OF A DRIVER'S LICENSE OR A PERMIT, AND THE DENIAL OF ISSUANCE OF A DRIVER'S LICENSE OR A PERMIT TO A PERSON UNDER THE AGE OF TWENTY-ONE WHO DRIVES A MOTOR VEHICLE WITH AN ILLEGAL ALCOHOL CONCENTRATION, SO AS TO MAKE CERTAIN TECHNICAL CHANGES, TO PROVIDE THAT IF A LAW ENFORCEMENT OFFICER INITIATES A SUSPENSION PROCEEDING PURSUANT TO THIS SECTION HE MAY NOT PROSECUTE THE PERSON FOR A VIOLATION OF CERTAIN OTHER SECTIONS THAT REQUIRE A PERSON TO ENTER AN ALCOHOL AND DRUG SAFETY ACTION PROGRAM AND OBTAIN AN ADMINISTRATIVE HEARING, AND TO REVISE THE ALCOHOL CONCENTRATION LEVEL OF A PERSON WHOSE LICENSE IS SUSPENDED THAT COUNTS AS A DEMERIT OR RESULTS IN AN INSURANCE PENALTY FOR AUTOMOBILE PURPOSES; TO AMEND SECTION 56-5-2933, RELATING TO DRIVING WITH AN UNLAWFUL ALCOHOL CONCENTRATION, SO AS TO LOWER THE UNLAWFUL ALCOHOL CONCENTRATION FROM TEN ONE-HUNDREDTHS OF ONE PERCENT OR MORE TO EIGHT ONE-HUNDREDTHS OF ONE PERCENT OR MORE, TO SUBSTITUTE THE TERM "ARTICULABLE SUSPENSION" FOR THE TERM "PROBABLE CAUSE", AND TO PROVIDE THAT A PERSON CHARGED WITH A VIOLATION OF THIS SECTION MUST BE GIVEN NOTICE OF INTENT TO PROSECUTE AT LEAST FOURTEEN DAYS BEFORE HIS TRIAL DATE; TO AMEND SECTION 56-5-2950, AS AMENDED, RELATING TO A DRIVER OF A MOTOR VEHICLE'S IMPLIED CONSENT TO BE ADMINISTERED CERTAIN CHEMICAL TESTS, AND THE RESULTS OF THESE TESTS THAT LEAD TO VARIOUS INFERENCES OF EITHER DRIVING OR NOT DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS, OR DRIVING WITH AN UNLAWFUL ALCOHOL CONCENTRATION, SO AS TO MAKE A TECHNICAL CHANGE, TO REVISE THE READING THAT THE SIMULATOR TEST MUST REGISTER BEFORE A BREATH TEST IS ADMINISTERED, TO REVISE THE PROVISION THAT REQUIRES A PERSON TO ENROLL IN AN ALCOHOL AND DRUG SAFETY ACTION PROGRAM, TO LOWER THE LEVEL OF ALCOHOL CONCENTRATION THAT GIVES RISE TO AN INFERENCE THAT A PERSON WAS UNDER THE INFLUENCE OF ALCOHOL, OR HAD AN ILLEGAL ALCOHOL CONCENTRATION, TO PROVIDE THAT POLICIES, PROCEDURES, AND REGULATIONS PROMULGATED BY SLED MAY BE REVIEWED BY THE TRIAL JUDGE OR HEARING OFFICER AND THAT FAILURE TO FOLLOW THESE POLICIES, PROCEDURES, AND REGULATIONS SHALL RESULT IN THE EXCLUSION FROM EVIDENCE OF ANY TEST RESULTS UNDER CERTAIN CIRCUMSTANCES, AND TO ALLOW THE EMPLOYER OF A STATE EMPLOYEE CHARGED WITH THE MAINTENANCE AND ADMINISTRATION OF BREATH TEST DEVICES AND POLICY WHO TESTIFIES IN A PROCEEDING TO CHARGE A REASONABLE FEE TO THE DEFENDANT FOR THESE SERVICES; TO AMEND SECTION 56-5-2951, AS AMENDED, RELATING TO THE SUSPENSION OF THE DRIVER'S LICENSE OF A PERSON WHO REFUSES TO SUBMIT TO CERTAIN TESTS TO DETERMINE WHETHER HE IS OPERATING A VEHICLE WITH AN UNLAWFUL ALCOHOL CONCENTRATION, SO AS TO DELETE AND REVISE CERTAIN PROVISIONS THAT REQUIRE A PERSON TO ENROLL IN AN ALCOHOL AND DRUG SAFETY ACTION PROGRAM, AND THE NONISSUANCE OF AN ALCOHOL RESTRICTED LICENSE TO A PERSON WHO DOES NOT ENROLL IN THE PROGRAM; TO AMEND SECTION 56-5-2953, AS AMENDED, RELATING TO THE VIDEOTAPING OF THE INCIDENT SITE AND THE BREATH TEST SITE OF A PERSON CHARGED WITH OPERATING A VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL, DRUGS, OR THE COMBINATION OF BOTH, OR WHO CAUSES GREAT BODILY HARM OR DEATH WHILE OPERATING A VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL, DRUGS, OR A COMBINATION OF BOTH, SO AS TO MAKE A TECHNICAL CHANGE, AND TO PROVIDE THAT CERTAIN PROVISIONS CONTAINED IN THIS SECTION TAKE EFFECT WHEN VIDEOTAPING DEVICES ARE PRESENT IN CERTAIN LAW ENFORCEMENT VEHICLES AND BREATH TEST SITES; TO REQUEST THE ATTORNEY GENERAL TO BRING AN APPROPRIATE ACTION IN FEDERAL COURT THAT CHALLENGES THE FEDERAL GOVERNMENT'S RIGHT TO WITHHOLD FUNDS TO WHICH A STATE IS OTHERWISE ENTITLED BECAUSE OF A STATE'S FAILURE TO ENACT A STATE LAW CONSISTENT WITH A FEDERAL GOAL OR POLICY; TO REPEAL SECTION 30 OF ACT 390 OF 2000 WHICH RELATES TO LOWERING THE ALCOHOL CONCENTRATION LEVEL FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL OR OTHER INTOXICATING SUBSTANCES FROM TEN ONE-HUNDREDTHS OF ONE PERCENT OR MORE TO EIGHT ONE-HUNDREDTHS OF ONE PERCENT OR MORE; TO AMEND SECTION 56-5-2940, AS AMENDED, RELATING TO THE PENALTY FOR OPERATING A VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL, ANY OTHER DRUG, OR A COMBINATION OF DRUGS, AND OPERATING A VEHICLE WITH AN UNLAWFUL ALCOHOL CONCENTRATION, SO AS TO REVISE THE MINIMUM IMPRISONMENT FOR A SECOND OFFENSE, THE MONETARY PENALTY FOR ALL OFFENSES, AND TO PROVIDE THAT A PORTION OF THE PENALTY SHALL BE USED BY THE DEPARTMENT OF PUBLIC SAFETY AND THE STATE LAW ENFORCEMENT DIVISION; BY ADDING SECTION 56-5-2942 SO AS TO PROVIDE THAT A PERSON WHO IS CONVICTED OF A SECOND OR SUBSEQUENT OFFENSE OF OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL, ANOTHER DRUG, OR A COMBINATION OF DRUGS, OR OPERATING A VEHICLE WITH AN UNLAWFUL ALCOHOL CONCENTRATION MUST HAVE ALL MOTOR VEHICLES OWNED BY OR REGISTERED TO HIM IMMOBILIZED UNDER CERTAIN CIRCUMSTANCES; BY ADDING SECTION 23-6-180 SO AS TO PROVIDE THAT THE DEPARTMENT OF PUBLIC SAFETY MUST KEEP PERMANENT RECORDS OF ALL HIGHWAY PATROLMEN KILLED IN THE LINE OF DUTY, WHO DIE WHILE ACTIVELY EMPLOYED, AND WHO ARE RETIRED; TO AMEND SECTION 56-5-2934, RELATING TO THE RIGHT TO COMPULSORY PROCESS OF A PERSON WHO IS CHARGED WITH CERTAIN ALCOHOL RELATED OFFENSES SO AS TO PROVIDE THAT THE PROVISION CONTAINED IN THIS SECTION THAT REQUIRES THE ATTENDANCE AT A HEARING OR COURT PROCEEDING OF A STATE EMPLOYEE CHARGED WITH MAINTENANCE AND THE ADMINISTRATION OF BREATH TESTING DEVICES TAKES EFFECT ONCE THE COMPULSORY PROCESS PROGRAM AT THE STATE LAW ENFORCEMENT DIVISION IS FUNDED, AND TO DELETE THE PROVISION THAT REQUIRES A DEFENDANT TO COMPLETE A HEARING REQUEST FORM AND GIVE IT TO AN ARRESTING OFFICER WHO WOULD FORWARD IT TO THE DEPARTMENT OF PUBLIC SAFETY; TO AMEND SECTION 56-5-2945, AS AMENDED, RELATING TO CAUSING GREAT BODILY INJURY OR DEATH WHILE DRIVING UNDER THE INFLUENCE OF ALCOHOL, DRUGS, OR A COMBINATION OF BOTH, SO AS TO INCREASE THE FINES IMPOSED FOR A VIOLATION OF THIS PROVISION AND TO PROVIDE THAT A PORTION OF THE FINES MUST BE SET ASIDE FOR THE HIGHWAY PATROL; TO AMEND SECTION 56-5-2952, RELATING TO THE FILING FEE FOR AN ADMINISTRATIVE HEARING, SO AS TO PROVIDE THAT THIS FEE APPLIES TO ANY HEARING BEFORE THE DEPARTMENT OF PUBLIC SAFETY, AND TO INCREASE THE FEE FROM FIFTY DOLLARS TO ONE HUNDRED DOLLARS.

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

Use of firearm while under the influence of alcohol

SECTION    1.    Section 23-31-420(A) of the 1976 Code is amended to read:

"(A)    Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while using a firearm while under the influence of alcohol or a controlled substance, the results of any test administered pursuant to Section 23-31-410 or 23-31-415 and this section are admissible into evidence, and the amount of alcohol in the person's blood at the time alleged, as shown by chemical analysis of the person's blood or breath, creates the following presumptions:

(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 must be 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 eight one-hundredths of one percent by weight of alcohol in the person's blood, this fact does not give rise to any inference that the person was or was not under the influence of alcohol to the extent that his normal faculties were impaired, but this fact may be considered with other competent evidence in determining whether the person was under the influence of alcohol.

(3)    If there was at that time eight one-hundredths of one percent or more by weight of alcohol in the person's blood, this fact creates an inference that the person was under the influence of alcohol."

Workers' Compensation Commission

SECTION     2.    Chapter 3 of Title 42 of the 1976 Code is amended by adding:

"Section 42-3-105.    The Worker's Compensation Commission is authorized to double the amount of fines and penalties assessed for each violation of the Workers' Compensation law, except that for employers found to be uninsured in violation of the Workers' Compensation law, the minimum amount of the penalty assessed shall be seven hundred fifty dollars a year of noncompliance and the maximum amount of the penalty shall be one thousand dollars a year of noncompliance. The commission is further authorized to retain and expend all revenues received as a result of these collections."

Boating while under the influence of alcohol

SECTION    3.    Section 50-21-114(A) and (B) of the 1976 Code, as last amended by Act 124 of 1999, is further amended to read:

"(A)(1)    A person who operates a water device is considered to have given consent to chemical tests or analysis of his breath, blood, or urine to determine the presence of alcohol, drugs, or a combination of both, if arrested for an offense arising out of acts alleged to have been committed while the person was operating or directing the operation of a water device while under the influence of alcohol, drugs, or a combination of both. A test given must be administered at the direction of the arresting law enforcement officer. 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 or dead, or for any other reason considered acceptable by licensed medical personnel, a blood sample may be taken. If the officer has reasonable grounds to believe 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 breath analysis reading is eight one-hundredths of one percent or above by weight of alcohol in the person's blood, the officer may not require additional tests of the person as provided in this chapter.

(2)    The breath test must be administered by a person trained and certified by the South Carolina Law Enforcement Division (SLED), using methods approved by SLED. The arresting officer may administer the tests if testing is done in conformity with the standards set out by SLED. 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, or 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 operate a water device must be suspended or denied for one hundred eighty days if he refuses to submit to the tests.

(3)    A hospital, physician, qualified technician, chemist, or registered nurse who takes 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 any other cause alleging that the drawing of blood or taking of 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. No person may be required by the arresting officer, or by any other law enforcement officer, to obtain or take any sample of blood or urine.

(4)    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 a 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.

(5)    The arresting officer must provide reasonable assistance to the person to contact a qualified person to conduct additional tests.

(6)    SLED must administer the provisions of this subsection and may promulgate regulations necessary to carry out its provisions. The cost of the tests administered at the direction of the law enforcement officer must be paid from the general fund of the State. A fee of fifty dollars must be assessed at the time of the sentencing against persons convicted of, pleading guilty or nolo contendere to, or forfeiting bond for violating Section 50-21-112 or Section 50-21-113. This fee must be forwarded by the county treasurer to the State Treasurer and credited to the general fund of the State to defray any costs incurred by SLED and individuals and institutions obtaining the samples forwarded to SLED.

(B)    In any criminal prosecution where a test or tests were administered pursuant to this chapter, 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 presumed conclusively 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 eight one-hundredths of one percent by weight of alcohol in the person's blood, this fact does not give rise to any inference that the person was or was not under the influence of alcohol, but this fact may be considered with other competent evidence in determining the guilt or innocence of the person.

(3)    If there was at that time eight 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."

Driver's license suspension

SECTION    4.    Section 56-1-286(A), (I), (J), (K), (N), and (V) of the 1976 Code, as amended by Act 390 of 2000, is further amended to read:

"(A)    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. 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, 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. 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 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 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 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 must have his driver's license, permit, or nonresident operating privilege reinstated.

(N)    The notice of suspension 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 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 must enroll in an Alcohol and Drug Safety Action Program, and he 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 eight one-hundredths of one percent."

Driving with an unlawful alcohol concentration

SECTION    5.    Section 56-5-2933 of the 1976 Code is amended to read:

"Section 56-5-2933.    It is unlawful for a person to drive a motor vehicle within this State while his alcohol concentration is eight one-hundredths of one percent or more. A person who violates the provisions of this section is guilty of the offense of Driving With An Unlawful Alcohol Concentration. A person may be charged for a violation of Section 56-5-2930 but prosecuted pursuant to this section if the original testing of the person's breath or collection of other bodily fluids was performed within two hours of the time of arrest and articulable suspicion existed to justify the traffic stop. This section does not apply to cases arising out of a stop at a traffic roadblock or driver's license checkpoint. A person shall not be prosecuted for both a violation of Section 56-5-2930 and a violation of this section for the same incident. A person who violates the provisions of this section is entitled to a jury trial and is afforded the right to challenge certain factors including, but not limited to, the following:

(1)    whether or not the person was lawfully arrested or detained;

(2)    whether or not articulable suspicion existed to justify the stop;

(3)    the period of time between arrest and testing;

(4)    whether or not the person was advised in writing of the rights enumerated in Section 56-5-2950;

(5)    whether the person consented to taking a test pursuant to Section 56-5-2950, and the:

(a)    reported alcohol concentration at the time of testing was eight 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 regulations adopted pursuant to Section 56-5-2951(Q) and Section 56-5-2953(F); and

(d)    machine was working properly.

Nothing contained in this section prohibits the introduction of:

(1)    the results of any additional tests of the person's breath or other bodily fluids;

(2)    any evidence that may corroborate or question the validity of the breath or bodily fluid test result including, but not limited to:

(a)    evidence of field sobriety tests;

(b)    evidence of the amount of alcohol consumed by the person; and

(c)    evidence of the person's driving;

(3)    a videotape of the person's conduct at the incident site and breath testing site taken pursuant to Section 56-5-2953 which is subject to redaction under the South Carolina Rules of Evidence; or

(4)    any other evidence of the state of a person's faculties to drive which would call into question the results of a breath or bodily fluid test.

At trial, a person charged with a violation of this section is entitled to a jury instruction stating that the factors enumerated above and the totality of the evidence produced at trial may be used by the jury to determine guilt or innocence.

A person charged with a violation of this section must be given notice of intent to prosecute under the provisions of this section at least fourteen days before his trial date."

Driving under the influence of alcohol or drugs

SECTION    6.    Section 56-5-2950 of the 1976 Code, as last amended by Act 390 of 2000, is further amended to read:

"Section 56-5-2950.    (a)    A person who drives 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 or the combination of alcohol and drugs if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of alcohol and drugs. At the direction of the arresting officer, the person first must be offered a breath test to determine the person's alcohol concentration. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious or dead, or for any other reason considered acceptable by the licensed medical personnel, the arresting officer may request a blood sample to 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 alcohol concentration is eight one-hundredths of one percent 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 the department, pursuant to SLED policies. The arresting officer may administer the tests if the person's conduct during the twenty-minute pre-test waiting period is videotaped pursuant to Section 56-5-2953(A)(2)(d). Before the breath test is administered, an eight one-hundredths of one percent simulator test must be performed and the result must reflect a reading between 0.076 percent and 0.084 percent. Blood and urine samples must be obtained 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 obtain the samples in a licensed medical facility. Blood and urine samples must be obtained and handled in accordance with procedures approved by SLED.

No tests may be administered or samples obtained 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 ninety days 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 thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen 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)    if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.

A hospital, physician, qualified technician, chemist, or registered nurse who obtains the samples or conducts the test or participates in the process of obtaining 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 alleging 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 obtaining the samples or conducting the test. This qualified release also applies to the employer of the person who conducts the test or obtains 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 in writing of that right. A person's request or 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 obtained at the direction of the law enforcement officer.

The arresting officer must provide affirmative assistance to the person to contact a qualified person to conduct and obtain additional tests. Affirmative assistance, at a minimum, includes providing transportation for the person to the nearest medical facility which provides blood tests to determine a person's alcohol concentration. If the medical facility obtains the blood sample but refuses or fails to test the blood sample to determine the person's alcohol concentration, SLED must test the blood sample and provide the result to the person and to the arresting officer. Failure to provide affirmative assistance upon request to obtain additional tests bars the admissibility of the breath test result in any judicial or administrative proceeding.

SLED must administer the provisions of this subsection and must 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 the 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, reckless, or fraudulent 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 the criminal prosecution for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 relating to driving a vehicle under the influence of alcohol, drugs, or a combination of alcohol and drugs, the alcohol concentration at the time of the test, as shown by chemical analysis of the person's breath or other body fluids, gives rise to the following:

(1)    If the alcohol concentration was at that time five one-hundredths of one percent or less, it is conclusively presumed that the person was not under the influence of alcohol.

(2)    If the alcohol concentration was at that time in excess of five one-hundredths of one percent but less than eight one-hundredths of one percent, this fact does not give rise to any inference that the person was or was not under the influence of alcohol, but this fact may be considered with other evidence in determining the guilt or innocence of the person.

(3)    If the alcohol concentration was at that time eight one-hundredths of one percent or more, it may be inferred that the person was under the influence of alcohol.

(4)    If the alcohol concentration was at that time eight one-hundredths of one percent or more and the original testing of the person's breath or collection of other bodily fluids was performed within two hours of the time of arrest, the person has violated Section 56-5-2933.

The provisions of this section must not be construed as limiting the introduction of any other evidence bearing upon the question of whether or not the person was under the influence of alcohol, drugs, or a combination of them.

(c)    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)    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 before any trial or other proceeding in which the results of the tests are used as evidence. A person who obtains additional tests must furnish a copy of the time, method, and results of any test to the officer before any trial, hearing, or other proceeding in which the person attempts to use the results of the additional tests as evidence.

(e)    Policies, procedures, and regulations promulgated by SLED may be reviewed by the trial judge or hearing officer on motion of either party. The failure to follow any of these policies, procedures, and regulations, or the provisions of this section, shall result in the exclusion from evidence any tests results, if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.

(f)    If a state employee charged with the maintenance of breath testing devices in this State and the administration of breath testing policy is required to testify at an administrative hearing or court proceeding, the entity employing the witness may charge a reasonable fee to the defendant for these services."

Driver's license suspension

SECTION    7.    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 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 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)    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 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 (F) or the final decision or disposition of the matter. If the suspension is upheld at the administrative hearing, the temporary alcohol restricted license 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 (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 (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 must have his driver's license, permit, or nonresident operating privilege reinstated.

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.

(C)    The period of suspension provided for in subsection (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.

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

(E)    The notice of suspension must advise the person of his right to obtain a temporary alcohol restricted driver's license and to request an administrative hearing. The notice of suspension also 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 waives his right to the administrative hearing, and the suspension continues for the period provided for in subsection (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.

(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 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;

(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.

(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 stays the suspension until a final decision is issued.

(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 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 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 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 may 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.

(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 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.

(J)    A person's driver's license, permit, or nonresident operating privilege must be restored when the person's period of suspension under subsection (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 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.

(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.

(L)    The department 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.

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

(N)    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.

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

(P)    If a person does not request an administrative hearing within the 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 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 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 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."

Videotaping of breath test and incident sites

SECTION    8.    Section 56-5-2953 of the 1976 Code, as amended by Act 390 of 2000, is further amended to read:

"Section 56-5-2953.    (A)    A person who violates Section 56-5-2930, 56-5-2933, or 56-5-2945 must have his conduct at the incident site and the breath test site videotaped.

(1)    The videotaping at the incident site must:

(a)    begin not later than the activation of the officer's blue lights and conclude after the arrest of the person for a violation of Section 56-5-2930, 56-5-2933, or a probable cause determination that the person violated Section 56-5-2945; and

(b)    include the person being advised of his Miranda rights before any field sobriety tests are administered, if the tests are administered.

(2)    The videotaping at the breath site:

(a)    must be completed within three hours of the person's arrest for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 or a probable cause determination that the person violated Section 56-5-2945, unless compliance is not possible because the person needs emergency medical treatment considered necessary by licensed medical personnel;

(b)    must include the reading of Miranda rights, the entire breath test procedure, the person being informed that he is being videotaped, and that he has the right to refuse the test;

(c)    must include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test;

(d)    must also include the person's conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to videotape this waiting period. However, if the arresting officer administers the breath test, the person's conduct during the twenty-minute pre-test waiting period must be videotaped.

The videotapes of the incident site and of the breath test site are admissible pursuant to the South Carolina Rules of Evidence in a criminal, administrative, or civil proceeding by any party to the action.

(B)    Nothing in this section may be construed as prohibiting the introduction of other evidence in the trial of a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945. Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945 if the arresting officer submits a sworn affidavit certifying that the videotape equipment at the time of the arrest, probable cause determination, or breath test device was in an inoperable condition, stating reasonable efforts have been made to maintain the equipment in an operable condition, and certifying that there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the videotape because the person needed emergency medical treatment, or exigent circumstances existed. Further, in circumstances including, but not limited to, road blocks, traffic accident investigations, and citizens' arrests, where an arrest has been made and the videotaping equipment has not been activated by blue lights, the failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal. However, as soon as videotaping is practicable in these circumstances, videotaping must begin and conform with the provisions of this section. Nothing in this section prohibits the court from considering any other valid reason for the failure to produce the videotape based upon the totality of the circumstances; nor do the provisions of this section prohibit the person from offering evidence relating to the arresting law enforcement officer's failure to produce the videotape.

(C)    A videotape must not be disposed of in any manner except for its transfer to a master tape for consolidation purposes until the results of any legal proceeding in which it may be involved are finally determined.

(D)    SLED is responsible for purchasing, maintaining, and supplying all necessary videotaping equipment for use at the breath test sites. SLED also is responsible for monitoring all breath test sites to ensure the proper maintenance of videotaping equipment. The Department of Public Safety is responsible for purchasing, maintaining, and supplying all videotaping equipment for use in all law enforcement vehicles used for traffic enforcement. The Department of Public Safety also is responsible for monitoring all law enforcement vehicles used for traffic enforcement to ensure proper maintenance of videotaping equipment.

(E)    Beginning one month from the effective date of this act, all of the funds received in accordance with Section 14-1-208(C)(9) must be expended by SLED to equip all breath test sites with videotaping devices and supplies. Once all breath test sites have been equipped fully with videotaping devices and supplies, eighty-seven and one-half percent of the funds received in accordance with Section 14-1-208(C)(9) must be expended by the Department of Public Safety to purchase, maintain, and supply videotaping equipment for vehicles used for traffic enforcement. The remaining twelve and one-half percent of the funds received in accordance with Section 14-1-208(C)(9) must be expended by SLED to purchase, maintain, and supply videotaping equipment for the breath test sites. Funds must be distributed by the State Treasurer to the Department of Public Safety and SLED on a monthly basis. The Department of Public Safety and SLED are authorized to carry forward any unexpended funds received in accordance with Section 14-1-208(C)(9) as of June thirtieth of each year and to expend these carried forward funds for the purchase, maintenance, and supply of videotaping equipment. The Department of Public Safety and SLED must report the revenue received under this section and the expenditures for which the revenue was used as required in the department's and SLED's annual appropriation request to the General Assembly.

(F)    The Department of Public Safety and SLED must promulgate regulations necessary to implement the provisions of this section.

(G)    The provisions contained in Section 56-5-2953(A), (B), and (C) take effect for each law enforcement vehicle used for traffic enforcement once the law enforcement vehicle is equipped with a videotaping device. The provisions contained in Section 56-5-2953(A), (B), and (C) take effect for a breath test site once the breath test site is equipped with a videotaping device."

Federal preemption

SECTION    9.    The Supremacy Clause of Article VI of the United States Constitution provides that the laws of the United States shall be the supreme law of the land, notwithstanding any provision in the constitution or laws of any state to the contrary, and invests in the Congress the power to preempt state law.

Preemption occurs when the Congress, in enacting a federal statute, expresses a clear intent to preempt state law. However, nothing in Article VI or any other provision of the United States Constitution permits the federal government, the Congress, or federal agencies from withholding funds to which a state is otherwise entitled because of a state's failure to enact a state law consistent with some federal goal or policy. In this case, federal officials have indicated that certain federal highway funds will be withheld from South Carolina unless this State enacts legislation to make it unlawful for a person to drive a motor vehicle while his blood alcohol concentration level is eight one-hundredths of one percent or more rather than the ten one-hundredths of one percent or more.

The South Carolina General Assembly believes this is an action violative of the United States Constitution, and therefore requests the Attorney General of this State to bring an appropriate action in federal court at the earliest possible date challenging the constitutionality of this practice.

Savings clause

SECTION    10.    All proceedings pending and all rights and liabilities existing, acquired, or accrued at the time this act takes effect are saved. The provisions of this act apply prospectively to crimes and offenses committed on or after the effective date of this act.

Repeal

SECTION    11.    Section 30 of Act 390 of 2000 is repealed.

Driving under the influence of alcohol or drugs

SECTION    12.    Section 56-5-2940(2) of the 1976 Code, as last amended by Act 390 of 2000, is further amended to read:

"(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 five days nor more than one year for the second offense. However, the fine imposed by this item shall 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 thirty days upon terms and conditions the court considers proper."

Motor vehicle immobilization

SECTION    13.    Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:

"Section 56-5-2942.    (A)    A person who is convicted of or pleads guilty or nolo contendere to a second or subsequent violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 must have all motor vehicles owned by or registered to him immobilized if the person is a resident of this State, unless the vehicle has been confiscated pursuant to Section 56-5-6240.

(B)    For purposes of this section, 'immobilized' and 'immobilization' mean suspension and surrender of the registration and motor vehicle license plate.

(C)    Upon sentencing for a second or subsequent violation of Section 56-5-2930, 56-5-2933, or 56-5-2945, the court must ascertain the registration numbers or other information to determine the identity of the vehicles to be immobilized. The court must notify the department of a person's conviction for a second or subsequent violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 and the identity of the vehicles to be immobilized.

(D)    Upon notification by a court in this State or by any other state of a conviction for a second or subsequent violation of Section 56-5-2930, 56-5-2933, or 56-5-2945, the department must require the person convicted to surrender all license plates and vehicle registrations subject to immobilization pursuant to this section. The immobilization is for a period of thirty days to take place during the driver's license suspension pursuant to a conviction for a second or subsequent violation of Section 56-5-2930, 56-5-2933, or 56-5-2945. The department must maintain a record of all vehicles immobilized pursuant to this section.

(E)    An immobilized motor vehicle must be released to the holder of a bona fide lien on the motor vehicle when possession of the motor vehicle is requested, as provided by law, by the lienholder for the purpose of foreclosing on and satisfying the lien.

(F)    An immobilized motor vehicle may be released by the department without legal or physical restraints to a person who has not been convicted of a second or subsequent violation of Section 56-5-2930, 56-5-2933, or 56-5-2945, if that person is a registered owner of the motor vehicle or a member of the household of a registered owner. The vehicle must be released if an affidavit is submitted by that person to the department stating that:

(1)    he regularly drives the motor vehicle subject to immobilization;

(2)    the immobilized motor vehicle is necessary to his employment, transportation to an educational facility, or for the performance of essential household duties;

(3)    no other vehicle is available for the use of the person;

(4)    the person will not authorize the use of the motor vehicle by any other person known by him to have been convicted of a second or subsequent violation of Section 56-5-2930, 56-5-2933, or 56-5-2945;

(5)    the person will report immediately to a local law enforcement agency any unauthorized use of the motor vehicle by a person known by him to have been convicted of a second or subsequent violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.

(G)    The department may conduct a hearing and receive testimony regarding the veracity of an affidavit submitted pursuant to subsection (F) or issue an agency decision to permit or deny the release of the vehicle based on the affidavit. A person may seek relief pursuant to the provisions of the Administrative Procedures Act from an agency action immobilizing a vehicle or denying the release of the vehicle.

(H)    A person who operates an immobilized vehicle except as provided in subsections (E) and (F) is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than thirty days.

(I)    A person who falsifies a report concerning vehicles owned by or registered to that person, or who fails to surrender registrations and license plates pursuant to this section is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than thirty days.

(J)    The court must assess a fee of forty dollars for each motor vehicle owned by or registered to the person convicted of a second or subsequent violation of Section 56-5-2930, 56-5-2933, or 56-5-2945. This fee must be placed by the Comptroller General into a special restricted interest bearing account to be used by the Department of Public Safety to defray the expenses of the Division of Motor Vehicles."

Permanent records

SECTION    14.    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."

Compulsory process

SECTION    15.    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 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. 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. The portion of compulsory process provided for in this section that requires the attendance, at any administrative hearing or court proceeding, of state employees charged with the maintenance of breath testing devices in this State and the administration of breath testing pursuant to this article, takes effect once the compulsory process program at the State Law Enforcement Division is specifically, fully, and adequately funded.

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, must provide the defendant with the appropriate form to request the hearing or hearings. The defendant must acknowledge receipt of the notice requirements and receipt of the hearing form if such a hearing or hearings are desired."

Driving under the influence of alcohol or drugs

SECTION    16.    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 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 five days nor more than one year for the second offense. However, the fine imposed by this item shall 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 thirty days upon terms and conditions the court considers proper;

(3)    by a fine of not less than three thousand 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 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 a person from operating a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics 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 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."

Causing great bodily harm or death

SECTION    17.    Section 56-5-2945 of the 1976 Code is amended to read:

"Section 56-5-2945.    (A)    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 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.

A part of the mandatory sentences required to be imposed by this section must not be suspended, and probation 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 must suspend the driver's license of 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 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."

Administrative hearing filing fee

SECTION    18.    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 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."

Time effective

SECTION    19.    This act takes effect at 12:00 p.m. on the first Tuesday following sixty days after the signature of the Governor, or August 19, 2003, whichever is later.

Ratified the 5th day of June, 2003.

Approved the 19th day of June, 2003.

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