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TO AMEND SECTION 56-5-2933, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DRIVING WITH AN UNLAWFUL ALCOHOL CONCENTRATION, SO AS TO SUBSTITUTE THE TERM "ARREST" FOR THE TERM "TRAFFIC STOP", CONFORM APPLICABILITY PROVISIONS TO ARRESTS ONLY, DELETE THE PROHIBITION OF ARRESTS PURSUANT TO TRAFFIC ROADBLOCKS OR DRIVER'S LICENSE CHECKPOINTS, DELETE THE SPECIFIC ENUMERATION OF CERTAIN TYPES OF EVIDENCE THAT MAY BE INTRODUCED RELATING TO A PERSON'S ALCOHOL CONCENTRATION, AND TO DELETE A PROVISION PERTAINING TO JURY INSTRUCTIONS; TO AMEND SECTION 56-5-2950, AS AMENDED, RELATING TO A DRIVER'S IMPLIED CONSENT TO BE ADMINISTERED CERTAIN CHEMICAL TESTS, AND THE ADMINISTRATION OF CERTAIN TESTS AND THEIR RESULTS AND INFERENCES, SO AS TO DELETE A PROVISION THAT PROVIDES THAT THE FAILURE TO COMPLY WITH POLICIES, PROCEDURES, AND REGULATIONS PROMULGATED BY SLED RESULTS IN THE EXCLUSION FROM EVIDENCE OF TEST RESULTS UNDER CERTAIN CIRCUMSTANCES; AND TO AMEND SECTION 56-5-2953, AS AMENDED, RELATING TO VIDEOTAPING OF THE INCIDENT SITE AND BREATH SITE, SO AS TO DELETE THE REQUIREMENT THAT A PERSON MUST BE ADVISED OF HIS MIRANDA RIGHTS BEFORE A FIELD SOBRIETY TEST MAY BE ADMINISTERED AND TO DELETE THE REQUIREMENT THAT THE READING OF THE MIRANDA RIGHTS MUST BE VIDEOTAPED AT THE BREATH SITE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 56-5-2933 of the 1976 Code, as last amended by Act 61 of 2003, is further amended to read:
"Section 56-5-2933. It is unlawful for a person to drive a motor vehicle within this State while his alcohol concentration is eight one-hundredths of one percent or more. A person who violates the provisions of this section is guilty of the offense of Driving With An Unlawful Alcohol Concentration. A person may be charged for a violation of Section 56-5-2930 but prosecuted pursuant to this section if the original testing of the person's breath or collection of other bodily fluids was performed within two hours of the time of arrest and articulable suspicion existed to justify the traffic stop arrest. This section does not apply to cases arising out of a stop at a traffic roadblock or driver's license checkpoint. A person shall must not be prosecuted for both a violation of Section 56-5-2930 and a violation of this section for the same incident. A person who violates the provisions of this section is entitled to a jury trial and is afforded the right to challenge certain factors including, but not limited to, the following:
(1) whether or not the person was lawfully arrested or detained;
(2) whether or not articulable suspicion existed to justify the stop;
(3)(2) the period of time between arrest and testing;
(4)(3) whether or not the person was advised in writing of the rights enumerated in Section 56-5-2950;
(5)(4) whether the person consented to taking a test pursuant to Section 56-5-2950, and the:
(a) reported alcohol concentration at the time of testing was eight one-hundredths of one percent or more;
(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950 and regulations adopted pursuant to Section 56-5-2951(Q) and Section 56-5-2953(F); and
(d) machine was working properly.
Nothing contained in this section prohibits the introduction of:
(1) the results of any additional tests of the person's breath or other bodily fluids;
(2) any evidence that may corroborate or question the validity of the breath or bodily fluid test result including, but not limited to:
(a) evidence of field sobriety tests;
(b) evidence of the amount of alcohol consumed by the person; and
(c) evidence of the person's driving;
(3) a videotape of the person's conduct at the incident site and breath testing site taken pursuant to Section 56-5-2953 which is subject to redaction under the South Carolina Rules of Evidence; or
(4) any other evidence of the state of a person's faculties to drive which would call into question the results of a breath or bodily fluid test.
At trial, a person charged with a violation of this section is entitled to a jury instruction stating that the factors enumerated above and the totality of the evidence produced at trial may be used by the jury to determine guilt or innocence.
A person charged with a violation of this section must be given notice of intent to prosecute under the provisions of this section at least fourteen days before his trial date."
SECTION 2. Section 56-5-2950(e) and (f) of the 1976 Code, as last amended by Act 61 of 2003, is further amended to read:
"(e) Policies, procedures, and regulations promulgated by SLED may be reviewed by the trial judge or hearing officer on motion of either party. The failure to follow any of these policies, procedures, and regulations, or the provisions of this section, shall result in the exclusion from evidence any tests results, if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.
(f) If a state employee charged with the maintenance of breath testing devices in this State and the administration of breath testing policy is required to testify at an administrative hearing or court proceeding, the entity employing the witness may charge a reasonable fee to the defendant for these services."
SECTION 3. Section 56-5-2953(A) of the 1976 Code, as last amended by Act 61 of 2003, is further amended to read:
"(A) A person who violates Section 56-5-2930, 56-5-2933, or 56-5-2945 must have his conduct at the incident site and the breath test site videotaped.
(1) The videotaping at the incident site must: (a) begin not later than the activation of the officer's blue lights and conclude after the arrest of the person for a violation of Section 56-5-2930, 56-5-2933, or a probable cause determination that the person violated Section 56-5-2945; and (b) include the person being advised of his Miranda rights before any field sobriety tests are administered, if the tests are administered.
(2) The videotaping at the breath site must:
(a) must be completed within three hours of the person's arrest for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 or a probable cause determination that the person violated Section 56-5-2945, unless compliance is not possible because the person needs emergency medical treatment considered necessary by licensed medical personnel;
(b) must include the reading of Miranda rights, the entire breath test procedure, the person being informed that he is being videotaped, and that he has the right to refuse the test;
(c) must include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test; and
(d) must also include the person's conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to videotape this waiting period. However, if the arresting officer administers the breath test, the person's conduct during the twenty-minute pre-test waiting period must be videotaped.
The videotapes of the incident site and of the breath test site are admissible pursuant to the South Carolina Rules of Evidence in a criminal, administrative, or civil proceeding by any party to the action."
SECTION 4. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 5. This act takes effect upon approval by the Governor.
This web page was last updated on Thursday, June 25, 2009 at 9:49 A.M.