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COMMITTEE REPORT
May 27, 2003
H. 3231
Introduced by 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
S. Printed 5/27/03--S.
Read the first time March 26, 2003.
To whom was referred a Bill (H. 3231) to amend Section 56-5-2950, as amended, Code of Laws of South Carolina, 1976, relating to a motor vehicle driver's implied consent to chemical tests, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting therein the following:
/ SECTION 1. 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 is 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, shall create 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 ten eight one-hundredths of one percent by weight of alcohol in the person's blood, that this fact shall 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 that 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 ten 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."
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 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 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 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 contending 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 shall must provide reasonable assistance to the person to contact a qualified person to conduct additional tests.
(6) SLED shall 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 is 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 50-12-113 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 this fact does not give rise to any inference that the person was or was not under the influence of alcohol, but that 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 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. Sections 56-1-286(A), (I), (J), (K), (N) and (V) of the 1976 Code, as amended by Act 390 of 2000, are further amended to read:
"(A) In addition to any other penalty imposed by law unless otherwise prohibited in this section, including additional driver's license suspensions, the The Department of Public Safety must suspend the driver's license, permit, or nonresident operating privilege of, or deny the issuance of a license or permit to a person under the age of twenty-one who drives a motor vehicle and has an alcohol concentration of two one-hundredths of one percent or more. The department shall not suspend a person's privilege to drive under this section if the person's privilege to drive has been suspended for In cases in which a law enforcement officer initiates suspension proceedings for a violation of this section, the officer has elected to pursue a violation of this section and is subsequently prohibited from prosecuting the person for a violation of Section 20-7-8920, 20-7-8925, or 56-5-2930, or 56-5-2933 arising from the same incident."
"(I) A test may not be administered or samples taken unless the person has been informed in writing that:
(1) he does not have to take the test or give the samples but that his privilege to drive must be suspended or denied for at least six months if he refuses to submit to the tests and that his refusal may be used against him in court;
(2) his privilege to drive must be suspended for at least three months if he takes the test or gives the samples and has an alcohol concentration of two one-hundredths of one percent or more;
(3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense;
(4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and
(5) he must enroll in an Alcohol and Drug Safety Action Program within thirty days of the issuance of the notice of suspension if he does not request an administrative hearing or within thirty days of the issuance of notice that the suspension has been upheld at the administrative hearing.
The primary investigating officer must notify promptly the department of the refusal of a person to submit to a test requested pursuant to this section as well as the test result of any person who submits to a test pursuant to this section and registers an alcohol concentration of two one-hundredths of one percent or more. The notification must be in a manner prescribed by the department."
"(J) If the test registers an alcohol concentration of two one-hundredths of one percent or more or if the person refuses to be tested, the primary investigating officer must issue a notice of suspension, and the suspension is effective beginning on the date of the alleged violation of this section. The person, within thirty days of the issuance of the notice of suspension, must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 if he does not request an administrative hearing. If the person does not request an administrative hearing and does not enroll in an Alcohol and Drug Safety Action Program within thirty days, the suspension remains in effect, and a temporary alcohol restricted license must not be issued, and an administrative hearing may not be requested. If the person drives during the period of suspension without a temporary alcohol restricted license, the person must be penalized for driving while his license is suspended pursuant to Section 56-1-460."
"(K) Within thirty days of the issuance of the notice of suspension the person may:
(1) obtain a temporary alcohol restricted license by filing with the department a form after enrolling in an Alcohol and Drug Safety Action Program 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's person must enroll in an Alcohol and Drug Safety Action Program and his driver's license, permit, or nonresident operating privilege must be suspended or the person must be denied the issuance of a license or permit for the remainder of the suspension periods provided for in subsections (F) and (G);
(b) the suspension is overturned, the person shall must have his driver's license, permit, or nonresident operating privilege reinstated and is not required to complete the Alcohol and Drug Safety Action Program in which he is enrolled. Any costs paid by the person to the certified Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 must be refunded."
"(N) The notice of suspension shall must advise the person of the requirement to enroll in an Alcohol and Drug Safety Action Program and of his right to obtain a temporary alcohol restricted driver's license and to request an administrative hearing. The notice of suspension also shall must advise the person that, if he does not enroll in an Alcohol and Drug Safety Action Program and does not request an administrative hearing within thirty days of the issuance of the notice of suspension, he must enroll in an Alcohol and Drug Safety Action Program, and he shall have waived waives his right to the administrative hearing, and the suspension continues for the periods provided for in subsections (F) and (G)."
"(V) Notwithstanding any other provision of law, no suspension imposed pursuant to this section is counted as a demerit or result in any insurance penalty for automobile insurance purposes if at the time he was stopped, the person whose license is suspended had an alcohol concentration that was less than ten eight one-hundredths of one percent."
SECTION 4. Section 56-5-2933 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 does not apply to cases arising out of a stop at a traffic road block or driver's license check point. A person cannot 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 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 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 them 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, 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 0.076 percent and 0.105 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)(3) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and
(5)(4) 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 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 contending 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 shall must administer the provisions of this subsection and shall 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 them 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 ten eight one-hundredths of one percent, that this fact does not give rise to any inference that the person was or was not under the influence of alcohol, but that 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 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.
(e) The failure to strictly follow the provisions of this section and the policies, procedures, or regulations promulgated by SLED is prima facie evidence of prejudice against the person charged and any evidence so obtained is not admissible against the person in any proceeding."
SECTION 6. Section 56-5-2951 of the 1976 Code, as amended by Act 390 of 2000, is further amended to read:
"Section 56-5-2951. (A) The Department of Public Safety shall must suspend the driver's license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950 or has an alcohol concentration of fifteen one-hundredths of one percent or more. The arresting officer shall must issue a notice of suspension which is effective beginning on the date of the alleged violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.
(B) If the test registers an alcohol concentration of ten one-hundredths of one percent or more, the person, within thirty days of the issuance of the notice of suspension, must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990.
(C) If the person does not enroll in an Alcohol and Drug Safety Action Program within thirty days, the suspension remains in effect, a temporary alcohol restricted license must not be issued, and an administrative hearing may not be requested. If the person drives during the period of suspension without a temporary alcohol restricted license, the person must be penalized for driving while his license is suspended pursuant to Section 56-1-460.
(D) Within thirty days of the issuance of the notice of suspension, the person may:
(1) obtain a temporary alcohol restricted license by filing with the department a form after enrolling in an Alcohol and Drug Safety Action Program for this purpose. A one hundred-dollar fee must be assessed for obtaining a temporary alcohol restricted license. Twenty-five dollars of the fee must be retained by the department for supplying and maintaining all necessary vehicle videotaping equipment. The remaining seventy-five dollars must be placed by the Comptroller General into a special restricted account to be used by the department to defray the expenses of the Division of Motor Vehicles. The temporary alcohol restricted license allows the person to drive without any restrictive conditions pending the outcome of the administrative hearing provided for in subsection (H) (F) or the final decision or disposition of the matter. If the suspension is upheld at the administrative hearing, the temporary alcohol restricted license shall remain remains in effect until the department issues the hearing officer's decision and sends notice to the person that he is eligible to receive a special restricted license pursuant to subsection (J) (H); and
(2) request an administrative hearing.
At the administrative hearing if:
(a) the suspension is upheld, the person's driver's license, permit, or nonresident operating privilege must be suspended or the person must be denied the issuance of a license or permit for the remainder of the suspension period provided for in subsection (K); (I). Within thirty days of the issuance of the notice that the suspension has been upheld, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990;
(b) the suspension is overturned, the person shall must have his driver's license, permit, or nonresident operating privilege reinstated and is not required to complete the Alcohol and Drug Safety Action Program in which he is enrolled. Any costs paid by the person to the certified Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 must be refunded.
The provisions of this subsection do not affect the trial for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.
(E)(C) The period of suspension provided for in subsection (K) (I) begins on the day the notice of suspension is issued, or at the expiration of any other suspensions, and continues until the person applies for a temporary alcohol restricted license and requests an administrative hearing.
(F)(D) If a person does not request an administrative hearing, he shall have waived waives his right to the hearing, and his suspension must not be stayed but continues for the period provided for in subsection (K) (I).
(G)(E) The notice of suspension shall must advise the person of the requirement to enroll in an Alcohol and Drug Safety Action Program and of his right to obtain a temporary alcohol restricted driver's license and to request an administrative hearing. The notice of suspension also shall must advise the person that, if he does not request an administrative hearing within thirty days of the issuance of the notice of suspension, he shall have waived waives his right to the administrative hearing, and the suspension continues for the period provided for in subsection (K) (I). The notice of suspension must also advise the person that if the suspension is upheld at the administrative hearing or if he does not request an administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.
(H)(F) An administrative hearing must be held within thirty days after the request for the hearing is received by the department. If the department does not hold the hearing within thirty days, a written order must be issued by the department within thirty days. The order must set forth the reasons why the hearing was not held within thirty days, and a new hearing must be scheduled. If the department does not issue a written order within thirty days or fails within thirty days to notify the defendant of a new hearing, the person shall must have his driver's license, permit, or nonresident operating privilege reinstated. The scope of the hearing must be limited to whether the person:
(1) was lawfully arrested or detained;
(2) was advised in writing of the rights enumerated in Section 56-5-2950; or
(3) refused to submit to a test pursuant to Section 56-5-2950; or
(4) consented to taking a test pursuant to Section 56-5-2950, and the:
(a) reported alcohol concentration at the time of testing was fifteen one- hundredths of one percent or more;
(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and
(d) the machine was working properly.
Nothing in this section prohibits the introduction of evidence at the administrative hearing on the issue of the accuracy of the breath test result.
A written order must be issued to the person upholding the suspension of the person's license, permit, or nonresident's operating privilege, or denying the issuance of a license or permit within thirty days after the conclusion of the administrative hearing. If the suspension is upheld, the person must receive credit for the number of days his license was suspended before he received a temporary alcohol restricted license and requested the administrative hearing.
(I)(G) An administrative hearing is a contested proceeding under the Administrative Procedures Act, and a person has a right to judicial review pursuant to that act. The filing of a petition for review shall stay stays the suspension until a final decision is issued.
(J)(1)(H)(1) If the suspension is upheld at the administrative hearing, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 and may apply for a special restricted driver's license if he is employed or enrolled in a college or university. The special restricted license shall permit permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The special restricted license also shall permit permits him to drive to and from the Alcohol Drug Safety Action Program classes or to a court-ordered drug program. The department may issue the special restricted driver's license only upon showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, or location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program.
(2) If the department issues a special restricted driver's license, it shall must designate reasonable restrictions on the times during which and routes on which the individual may operate a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of attendance of his court-ordered drug program, or residence must be reported immediately to the department by the licensee.
(3) The fee for a special restricted driver's license is one hundred dollars, but no additional fee is due 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.
(K)(1)(I)(1) The period of a driver's license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has no previous convictions for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another any other drug within the ten years preceding a violation of this section, and who has had no previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:
(a) ninety days for a person who refuses to submit to a test pursuant to Section 56-5-2950; or
(b) thirty days for a person who takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.
(2) The period of a driver's license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has been convicted previously for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or any other drug within the ten years preceding a violation of this section, or who has had a previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is one hundred eighty days if he refuses to submit to a test pursuant to Section 56-5-2950 or sixty days if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.
(L)(J) A person's driver's license, permit, or nonresident operating privilege must be restored when the person's period of suspension under subsection (K) (I) has concluded, even if the person has not yet completed the Alcohol and Drug Safety Action Program in which he is enrolled. After the person's driving privilege is restored, he must continue the services of the Alcohol and Drug Safety Action Program in which he is enrolled. If the person withdraws from or in any way stops making satisfactory progress toward the completion of the Alcohol and Drug Safety Action Program, the person's license shall must be suspended until the completion of the Alcohol and Drug Safety Action Program. A person must be attending or have completed an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 before his driving privilege can be restored at the conclusion of the suspension period.
(M)(K) When a nonresident's privilege to drive a motor vehicle in this State has been suspended under the provisions of this section, the department must give written notice of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which he has a license or permit.
(N)(L) The department shall must not suspend the privilege to drive of a person under the age of twenty-one pursuant to Section 56-1-286 if the person's privilege to drive has been suspended under this section arising from the same incident.
(O)(M) A person whose driver's license or permit is suspended pursuant to this section is not required to file proof of financial responsibility.
(P)(N) An insurer may not increase premiums on or add surcharges to the automobile insurance of a person charged with a violation of Section 56-1-286, 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or any other drug unless he is convicted of the violation.
(Q)(O) The department shall must administer the provisions of this section and shall must promulgate regulations necessary to carry out its provisions.
(R)(P) If a person does not request an administrative hearing within the ten-day period as authorized pursuant to this section, the person may file with the department a form after enrolling in an approved Alcohol and Drug Safety Action Program to apply for a special restricted driver's license. The special restricted license shall permit permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The special restricted license also shall permit permits him to drive to and from Alcohol and Drug Safety Action Program classes or a court-ordered drug program. The department may issue the special restricted driver's license at any time following the suspension upon a showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program. The department shall must designate reasonable restrictions on the times during which and routes on which the individual may operate a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of his court-ordered drug program, or residence must be reported immediately to the department by the licensee. The route restrictions, requirements, and fees imposed by the department for the issuance of the special restricted driver's license issued pursuant to this item are the same as those provided in this section had the person requested an administrative hearing. A special restricted driver's license is valid until the person successfully completes an approved Alcohol and Drug Safety Action Program, unless the person fails to complete or make satisfactory progress to complete the program."
SECTION 7. Section 56-5-2953 of the 1976 Code, as amended by Act 390 of 2000, is further amended to read:
"Section 56-5-2963. (A) A person who violates Section 56-5-2930, 56-5-2933, or 56-5-2945 shall 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, if required by state or federal law, 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) shall must include the reading of Miranda rights, if required by state or federal law, 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) shall must include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test;
(d) shall 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, then 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 should 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 finally 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 (87.5) 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 (12.5) 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 shall 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 shall 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."
SECTION 8. 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 directs 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. Upon successful challenge of this practice, the law of the State of South Carolina in connection with the legal blood alcohol content must revert to the legal limit in effect immediately before the effective date of this act.
SECTION 9. 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.
SECTION 10. Section 30 of Act 390 of 2000 is repealed.
SECTION 11. 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. /
Renumber sections to conform.
Amend title to conform.
LARRY A. MARTIN for Committee.
EXPLANATION OF IMPACT:
Judicial Department
The department indicates there will be a minimal fiscal impact on the General Fund of the State, which can be absorbed by the agency at the current level of funding.
SLED
The agency has been forwarded a copy of the bill, but to date, has not submitted impact of the proposed bill.
Department of Corrections
The department anticipates a minimal fiscal impact on the General Fund of the State with passage of the proposed legislation.
Department of Public Safety
The department states this legislation would have no effect on the General Fund of the State or on federal/other funds as it merely changes the references to the blood alcohol content.
Department of Alcohol & Other Drug Abuse Services
The department reports that any increase in workload could be handled within existing resources.
Approved By:
Don Addy
Office of State Budget
TO AMEND SECTION 56-5-2950, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, 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 THAT A DRIVER WHO REGISTERS AN ALCOHOL CONCENTRATION OF EIGHT ONE-HUNDREDTHS OF ONE PERCENT OR MORE IS GUILTY OF DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS, OR A COMBINATION OF ALCOHOL AND DRUGS.
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 creates the following presumptions:
(1) If there was at that time five four 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 four 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 this fact shall 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 that 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 ten 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."
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, or 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 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 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 contending 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 shall must provide reasonable assistance to the person to contact a qualified person to conduct additional tests.
(6) SLED shall 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 is 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 50-12-113 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 four 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 four 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 this fact does not give rise to any inference that the person was or was not under the influence of alcohol, but that 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 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, as amended by Act 390 of 2000, is further 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 does 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)(2) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense;
(4)(3) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and
(5)(4) 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 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 contending 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 shall must administer the provisions of this subsection and shall 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 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 four 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 four one-hundredths of one percent but less than ten eight one-hundredths of one percent, that this fact does not give rise to any inference that the person was or was not under the influence of alcohol, but that 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 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 of the 1976 Code, as amended by Act 390 of 2000, is further amended to read:
"(A) The Department of Public Safety shall must suspend the driver's license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950 or has an alcohol concentration of fifteen one-hundredths of one percent or more. The arresting officer shall must issue a notice of suspension which is effective beginning on the date of the alleged violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.
(B) If the test registers an alcohol concentration of ten one-hundredths of one percent or more, the person, within thirty days of the issuance of the notice of suspension, must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990.
(C) If the person does not enroll in an Alcohol and Drug Safety Action Program within thirty days, the suspension remains in effect, a temporary alcohol restricted license must not be issued, and an administrative hearing may not be requested. If the person drives during the period of suspension without a temporary alcohol restricted license, the person must be penalized for driving while his license is suspended pursuant to Section 56-1-460.
(D) Within thirty days of the issuance of the notice of suspension, the person may:
(1) obtain a temporary alcohol restricted license by filing with the department a form after enrolling in an Alcohol and Drug Safety Action Program for this purpose. A one hundred-dollar fee must be assessed for obtaining a temporary alcohol restricted license. Twenty-five dollars of the fee must be retained by the department for supplying and maintaining all necessary vehicle videotaping equipment. The remaining seventy-five dollars must be placed by the Comptroller General into a special restricted account to be used by the department to defray the expenses of the Division of Motor Vehicles. The temporary alcohol restricted license allows the person to drive without any restrictive conditions pending the outcome of the administrative hearing provided for in subsection (H) (F) or the final decision or disposition of the matter. If the suspension is upheld at the administrative hearing, the temporary alcohol restricted license shall remain remains in effect until the department issues the hearing officer's decision and sends notice to the person that he is eligible to receive a special restricted license pursuant to subsection (J) (H); and
(2) request an administrative hearing.
At the administrative hearing if:
(a) the suspension is upheld, the person's driver's license, permit, or nonresident operating privilege must be suspended or the person must be denied the issuance of a license or permit for the remainder of the suspension period provided for in subsection (K); (I). Within thirty days of the issuance of the notice that the suspension has been upheld, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990; and
(b) the suspension is overturned, the person shall must have his driver's license, permit, or nonresident operating privilege reinstated and is not required to complete the Alcohol and Drug Safety Action Program in which he is enrolled. Any costs paid by the person to the certified Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 must be refunded.
The provisions of this subsection do not affect the trial for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.
(E)(C) The period of suspension provided for in subsection (K) (I) begins on the day the notice of suspension is issued, or at the expiration of any other suspensions, and continues until the person applies for a temporary alcohol restricted license and requests an administrative hearing.
(F)(D) If a person does not request an administrative hearing, he shall have waived waives his right to the hearing, and his suspension must not be stayed but continues for the period provided for in subsection (K) (I).
(G)(E) The notice of suspension shall must advise the person of the requirement to enroll in an Alcohol and Drug Safety Action Program and of his right to obtain a temporary alcohol restricted driver's license and to request an administrative hearing. The notice of suspension also shall must advise the person that, if he does not request an administrative hearing within thirty days of the issuance of the notice of suspension, he shall have waived waives his right to the administrative hearing, and the suspension continues for the period provided for in subsection (K) (I). The notice of suspension must also advise the person that if the suspension is upheld at the administrative hearing or if he does not request an administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.
(H)(F) An administrative hearing must be held within thirty days after the request for the hearing is received by the department. If the department does not hold the hearing within thirty days, a written order must be issued by the department within thirty days. The order must set forth the reasons why the hearing was not held within thirty days, and a new hearing must be scheduled. If the department does not issue a written order within thirty days or fails within thirty days to notify the defendant of a new hearing, the person shall must have his driver's license, permit, or nonresident operating privilege reinstated. The scope of the hearing must be limited to whether the person:
(1) was lawfully arrested or detained;
(2) was advised in writing of the rights enumerated in Section 56-5-2950; or
(3) refused to submit to a test pursuant to Section 56-5-2950; or
(4) consented to taking a test pursuant to Section 56-5-2950, and the:
(a) reported alcohol concentration at the time of testing was fifteen one- hundredths of one percent or more;
(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and
(d) the machine was working properly.
Nothing in this section prohibits the introduction of evidence at the administrative hearing on the issue of the accuracy of the breath test result.
A written order must be issued to the person upholding the suspension of the person's license, permit, or nonresident's operating privilege, or denying the issuance of a license or permit within thirty days after the conclusion of the administrative hearing. If the suspension is upheld, the person must receive credit for the number of days his license was suspended before he received a temporary alcohol restricted license and requested the administrative hearing.
(I)(G) An administrative hearing is a contested proceeding under the Administrative Procedures Act, and a person has a right to judicial review pursuant to that act. The filing of a petition for review shall stay stays the suspension until a final decision is issued.
(J)(1)(H)(1) If the suspension is upheld at the administrative hearing, the person may apply for a special restricted driver's license if he is employed or enrolled in a college or university. The special restricted license shall permit him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The special restricted license also shall permit him to drive to and from the Alcohol Drug Safety Action Program classes or to a court-ordered drug program. The department may issue the special restricted driver's license only upon showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, or location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program.
(2) If the department issues a special restricted driver's license, it shall must designate reasonable restrictions on the times during which and routes on which the individual may operate a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of attendance of his court-ordered drug program, or residence must be reported immediately to the department by the licensee.
(3) The fee for a special restricted driver's license is one hundred dollars, but no additional fee is due shall be charged because of changes in the place and hours of employment, education, or residence. Twenty dollars of this fee must be deposited in the state general fund, and eighty dollars must be placed by the Comptroller General into a special restricted account to be used by the department to defray the expenses of the Division of Motor Vehicles.
(4) The operation of a motor vehicle outside the time limits and route imposed by a special restricted license by the person issued that license is a violation of Section 56-1-460.
(K)(1)(I)(1) The period of a driver's license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to an arrested person who has no previous convictions for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug within the ten years preceding a violation of this section, and who has had no previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:
(a) ninety days for a person who refuses to submit to a test pursuant to Section 56-5-2950; or
(b) thirty days for a person who takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.
(2) The period of a driver's license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to an arrested person who has been convicted previously for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or any other drug within the ten years preceding a violation of this section, or who has had a previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section, is one hundred eighty days if he refuses to submit to a test pursuant to Section 56-5-2950 or sixty days if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.
(L)(J) A person's driver's license, permit, or nonresident operating privilege must be restored when the person's period of suspension under subsection (K) (I) has concluded, even if the person has not yet completed the Alcohol and Drug Safety Action Program in which he is enrolled. After the person's driving privilege is restored, he must continue the services of the Alcohol and Drug Safety Action Program in which he is enrolled. If the person withdraws from or in any way stops making satisfactory progress toward the completion of the Alcohol and Drug Safety Action Program, the person's license shall must be suspended until the completion of the Alcohol and Drug Safety Action Program. A person must be attending or have completed an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 before his driving privilege can be restored at the conclusion of the suspension period.
(M)(K) When a nonresident's privilege to drive a motor vehicle in this State has been suspended under the provisions of this section, the department must give written notice of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which he has a license or permit.
(N)(L) The department shall must not suspend the privilege to drive of a person under the age of twenty-one pursuant to Section 56-1-286 if the person's privilege to drive has been suspended under this section arising from the same incident.
(O)(M) A person whose driver's license or permit is suspended pursuant to this section is not required to file proof of financial responsibility.
(P)(N) An insurer may not increase premiums on or add surcharges to the automobile insurance of a person charged with a violation of Section 56-1-286, 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or any other drug unless he is convicted of the violation.
(Q)(O) The department shall must administer the provisions of this section and shall must promulgate regulations necessary to carry out its provisions.
(R)(P) If a person does not request an administrative hearing within the ten-day period as authorized pursuant to this section, the person may file with the department a form after enrolling in an approved Alcohol and Drug Safety Action Program to apply for a special restricted driver's license. The special restricted license shall permit permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The special restricted license also shall permit permits him to drive to and from Alcohol and Drug Safety Action Program classes or a court-ordered drug program. The department may issue the special restricted driver's license at any time following the suspension upon a showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program. The department shall must designate reasonable restrictions on the times during which and routes on which the individual may operate a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of his court-ordered drug program, or residence must be reported immediately to the department by the licensee. The route restrictions, requirements, and fees imposed by the department for the issuance of the special restricted driver's license issued pursuant to this item are the same as those provided in this section had the person requested an administrative hearing. A special restricted driver's license is valid until the person successfully completes an approved Alcohol and Drug Safety Action Program, unless the person fails to complete or make satisfactory progress to complete the program."
SECTION 7. 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, anything in the constitution or laws of any state to the contrary notwithstanding, 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 directs 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. Upon successful challenge of this practice, the law of the State of South Carolina in connection with the legal blood alcohol content must revert to the legal limit in effect immediately before the effective date of this act.
SECTION 8. Section 30 of Act 390 of 2000 is repealed.
SECTION 9. 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.
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