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Indicates Matter Stricken
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Indicates Matter Stricken
Indicates New Matter
COMMITTEE AMENDMENT ADOPTED
March 13, 2003
S. 172
Introduced by Senators Martin, Hayes, Gregory, Kuhn and Mescher
S. Printed 3/13/03--S.
Read the first time January 14, 2003.
TO AMEND SECTION 23-31-420, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PRESUMPTIONS REGARDING THE BLOOD ALCOHOL CONTENT OF A PERSON USING A FIREARM UNDER THE INFLUENCE OF ALCOHOL, TO PROVIDE THAT A PERSON WITH A BLOOD ALCOHOL CONTENT OF EIGHT ONE-HUNDREDTHS OF ONE PERCENT IS INFERRED TO BE UNDER THE INFLUENCE; TO AMEND SECTION 50-21-114 OF THE 1976 CODE, RELATING TO A PERSON OPERATING A WATER DEVICE UNDER THE INFLUENCE OF ALCOHOL, TO PROVIDE THAT A PERSON WITH A BLOOD ALCOHOL CONTENT OF EIGHT ONE-HUNDREDTHS OF ONE PERCENT IS INFERRED TO BE UNDER THE INFLUENCE; TO AMEND SECTION 56-1-286 OF THE 1976 CODE, RELATING TO A PERSON UNDER TWENTY-ONE OPERATING A VEHICLE WITH A CERTAIN ALCOHOL CONCENTRATION, TO DELETE A REFERENCE TO TEN ONE-HUNDREDTHS OF ONE PERCENT AND INCLUDE A REFERENCE TO EIGHT ONE-HUNDREDTHS OF ONE PERCENT; TO AMEND SECTION 56-5-2933 OF THE 1976 CODE, RELATING TO A PERSON DRIVING A MOTOR VEHICLE WITH AN UNLAWFUL ALCOHOL CONCENTRATION, TO PROVIDE THAT IT IS UNLAWFUL TO DRIVE A MOTOR VEHICLE WITH A BLOOD ALCOHOL CONTENT OF EIGHT ONE-HUNDREDTHS OF ONE PERCENT OR GREATER; TO AMEND SECTION 56-5-2950 OF THE 1976 CODE, RELATING TO A MOTOR VEHICLE DRIVER'S IMPLIED 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 IN HIS SYSTEM, SO AS TO PROVIDE A PERSON WITH A BLOOD ALCOHOL CONTENT OF EIGHT ONE-HUNDREDTHS OF ONE PERCENT IS INFERRED TO BE UNDER THE INFLUENCE OF ALCOHOL OR A COMBINATION OF ALCOHOL AND DRUGS; AND TO AMEND SECTION 56-5-2951 OF THE 1976 CODE, RELATING TO THE REQUIREMENT THAT A PERSON ENROLL IN THE ALCOHOL AND DRUG SAFETY ACTION PROGRAM, TO DELETE A REFERENCE TO TEN ONE-HUNDREDTHS OF ONE PERCENT AND INCLUDE A REFERENCE TO EIGHT ONE-HUNDREDTHS OF ONE PERCENT.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 23-31-420(A) of the 1976 Code is amended to read:
"Section 23-31-420. (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 is 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, shall create 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 ten eight one-hundredths of one percent by weight of alcohol in the person's blood, that fact shall 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 that 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 ten eight one-hundredths of one percent or more by weight of alcohol in the person's blood, this creates an inference that the person was under the influence of alcohol."
SECTION 2. Sections 50-21-114(A) and (B) of the 1976 Code are 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 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 ten 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 so long as it 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 contending 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 shall provide reasonable assistance to the person to contact a qualified person to conduct additional tests.
(6) SLED shall 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 is assessed, at the time of the sentencing, persons convicted of, pleading guilty or nolo contendere to, or forfeiting bond for violating Section 50-21-112 or Section 50-12-113 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 ten eight one-hundredths of one percent by weight of alcohol in the person's blood, that fact does not give rise to any inference that the person was or was not under the influence of alcohol, but that fact may be considered with other competent evidence in determining the guilt or innocence of the person.
(3) If there was at that time ten 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."
SECTION 3. Section 56-1-286(V) of the 1976 Code is amended to read:
"(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 56-5-2933 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 ten 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 probable cause existed to justify the traffic stop. This section shall not apply to cases arising out of a stop at a traffic road block or driver's license check point. A person cannot 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 probable cause 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 ten 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."
SECTION 5. Section 56-5-2950 of the 1976 Code is 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 them. 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 them. 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 or 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 ten 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, a ten an eight one-hundredths of one percent simulator test must be performed and the result must reflect a reading between 0.095 0.075 percent and 0.105 0.085 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) he must enroll in an Alcohol and Drug Safety Action Program within thirty days of the issuance of the notice of suspension.
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 contending that the drawing of blood or taking samples at the request of the arrested person or a law enforcement officer was wrongful. This release from liability does not reduce the standard of medical care required of the person 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 shall administer the provisions of this subsection and shall 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 them, 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 ten eight one-hundredths of one percent, that fact does not give rise to any inference that the person was or was not under the influence of alcohol, but that fact may be considered with other evidence in determining the guilt or innocence of the person.
(3) If the alcohol concentration was at that time ten 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 ten 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."
SECTION 6. Section 56-5-2951(B) of the 1976 Code is amended to read:
"(B) If the test registers an alcohol concentration of ten eight 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."
SECTION 7. This act takes effect upon approval by the Governor.
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