South Carolina General Assembly
115th Session, 2003-2004

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Bill 466

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Indicates Matter Stricken

Indicates New Matter

COMMITTEE REPORT

May 28, 2003

S. 466

Introduced by Senators McConnell and Ford

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

Read the first time April 30, 2003.

            

THE COMMITTEE ON JUDICIARY

To whom was referred a Bill (S. 466) to amend Section 44-48-50, Code of Laws of South Carolina, 1976, relating to the multidisciplinary team reviewing records to determine if a person is a sexually, etc., respectfully

REPORT:

That they have duly and carefully considered the same and recommend that the same do pass with amendment:

Amend the bill, as and if amended, by adding appropriately numbered SECTIONS to read:

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

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

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

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

(1)    by a fine of three four hundred dollars or imprisonment for not less than forty-eight hours nor more than thirty days, for the first offense; however, in lieu of the forty-eight hour minimum imprisonment, the court may provide for forty-eight hours of public service employment. The minimum forty-eight hour imprisonment or public service employment must be served at a time when the person is off from work and does not interfere with his regular employment under terms and conditions as the court considers proper. However, the court may not compel an offender to perform public service employment in lieu of the minimum sentence;

(2)    by a fine of not less than two thousand one hundred dollars nor more than five thousand one hundred dollars and imprisonment for not less than forty-eight hours nor more than one year for the second offense. However, the fine imposed by this item may not be suspended in an amount less than one thousand one hundred dollars. In lieu of service of imprisonment, the court may require that the individual complete an appropriate term of public service employment of not less than ten days upon terms and conditions the court considers proper;

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

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

No part of the minimum sentences provided in this section must may be suspended. The court may provide instead of service other sentences provided in this section. For a third or subsequent offense or for a violation of Section 56-5-2945 for great bodily injury, the service of the minimum sentence is mandatory. However, the judge may provide for the sentence to be served upon terms and conditions as he considers proper including, but not limited to, weekend service or nighttime service in any fashion he considers necessary.

The fine for a first offense may not be suspended. The court is prohibited from suspending a monetary fine below that of the next preceding minimum monetary fine.

For the purposes of this chapter any conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail for the violation of any law or ordinance of this or any other state or any municipality of this or any other state that prohibits any person from operating a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics shall constitute a prior offense for the purpose of any prosecution for any subsequent violation hereof. Only those violations which occurred within a period of ten years including and immediately preceding the date of the last violation shall constitute prior violations within the meaning of this section.

Upon imposition of a sentence of public service, the defendant may apply to the court to be allowed to perform his public service in his county of residence if he has been sentenced to public service in a county where he does not reside.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(2)    request an administrative hearing.

At the administrative hearing if:

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

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

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

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

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

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

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

(1)    was lawfully arrested or detained;

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

(3)    refused to submit to a test pursuant to Section 56-5-2950; or

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

(a)    reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more;

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

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

(d)    the machine was working properly.

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

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

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

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

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

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

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

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

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

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

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

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

(M)    When a nonresident's privilege to drive a motor vehicle in this State has been suspended under the provisions of this section, the department must give written notice of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which he has a license or permit.

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

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

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

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

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

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

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

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

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

Amend the bill, further by striking Section 44-48-30(11) as contained in SECTION 1, on pages 3 and 4 in its entirety and inserting:

/    (11)    'Victim' means an individual registered with the agency of jurisdiction as a victim or as an intervenor. /

Renumber sections to conform.

Amend title to conform.

JAMES H. HARRISON for Committee.

            

A BILL

TO AMEND SECTION 44-48-50, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE MULTIDISCIPLINARY TEAM REVIEWING RECORDS TO DETERMINE IF A PERSON IS A SEXUALLY VIOLENT PREDATOR, SO AS TO CHANGE THE MEMBERSHIP OF THE TEAM.

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

SECTION    1.    Chapter 48, Title 44 of the 1976 Code is amended to read:

"Section 44-48-10.    This chapter is known and may be cited as the "Sexually Violent Predator Act".

Section 44-48-20.    The General Assembly finds that a mentally abnormal and extremely dangerous group of sexually violent predators exists who require involuntary civil commitment in a secure facility for long-term control, care, and treatment. The General Assembly further finds that the likelihood these sexually violent predators will engage in repeat repeated acts of sexual violence if not treated for their mental conditions is significant. Because the existing civil commitment process is inadequate to address the special needs of sexually violent predators and the risks that they present to society, the General Assembly determines has determined that a separate, involuntary civil commitment process for the long-term control, care, and treatment of sexually violent predators is necessary. The General Assembly also determines that, because of the nature of the mental conditions from which sexually violent predators suffer and the dangers they present, it is necessary to house involuntarily committed involuntarily-committed sexually violent predators in secure facilities separated separate from persons involuntarily committed under traditional civil commitment statutes. The civil commitment of sexually violent predators is not intended to stigmatize the mentally ill community.

Section 44-48-30.    For purposes of this chapter:

(1)    'Sexually violent predator' means a person who:

(a)    has been convicted of a sexually violent offense; and

(b)    suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.

(2)    'Sexually violent offense' means:

(a)    criminal sexual conduct in the first degree, as provided in Section 16-3-652;

(b)    criminal sexual conduct in the second degree, as provided in Section 16-3-653;

(c)    criminal sexual conduct in the third degree, as provided in Section 16-3-654;

(d)    criminal sexual conduct with minors in the first degree, as provided in Section 16-3-655(1);

(e)    criminal sexual conduct with minors in the second degree, as provided in Section 16-3-655(2) and (3);

(f)    engaging a child for a sexual performance, as provided in Section 16-3-810;

(g)    producing, directing, or promoting sexual performance by a child, as provided in Section 16-3-820;

(h)    assault with intent to commit criminal sexual conduct, as provided in Section 16-3-656;

(i)        incest, as provided in Section 16-15-20;

(j)        buggery, as provided in Section 16-15-120;

(k)    committing or attempting lewd act upon child under sixteen, as provided in Section 16-15-140;

(l)        violations of Article 3, Chapter 15 of Title 16 involving a minor when the violations are felonies;

(m)    accessory before the fact to commit an offense enumerated in this item and as provided for in Section 16-1-40;

(n)    attempt to commit an offense enumerated in this item as provided by Section 16-1-80; or

(o)    any offense for which the judge makes a specific finding on the record that based on the circumstances of the case, the person's offense should be considered a sexually violent offense.

(3)    'Mental abnormality' means a mental condition affecting a person's emotional or volitional capacity that predisposes the person to commit sexually violent offenses.

(4)    'Sexually motivated' means that one of the purposes for which the person committed the crime was for the purpose of the person's sexual gratification.

(5)    'Agency with jurisdiction' means that agency which, upon lawful order or authority, releases a person serving a sentence or term of confinement and includes the South Carolina Department of Corrections, the South Carolina Department of Probation, Parole, and Pardon Services, the Board of Probation, Parole, and Pardon Services, the Department of Juvenile Justice, the Juvenile Parole Board, and the Department of Mental Health.

(6)    'Convicted of a sexually violent offense' means a person has:

(a)    pled guilty to, pled nolo contendere to, or been convicted of a sexually violent offense;

(b)    been adjudicated delinquent as a result of the commission of a sexually violent offense;

(c)    been charged but determined to be incompetent to stand trial for a sexually violent offense;

(d)    been found not guilty by reason of insanity of a sexually violent offense; or

(e)    been found guilty but mentally ill of a sexually violent offense.

(7)    'Court' means the court of common pleas.

(8)    'Total confinement' means incarceration in a secure state or local correctional facility, and does not mean any type of community supervision.

(9)    'Likely to engage in acts of sexual violence' means the person's propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.

(10)    'Person' means an individual who is a potential or actual subject of proceedings under this act and includes a child under seventeen years of age.

(11)    'Victim' means an individual who suffers or has suffered direct or threatened physical, psychological, or financial harm as the result of the commission or attempted commission of a sexually violent offense. 'Victim' also includes an intervenor or the individual's spouse, parent, child, or the lawful representative of a victim who is:

(a)    deceased;

(b)    a minor;

(c)    incompetent; or

(d)    physically or psychologically incapacitated.

'Victim' does not include an individual who is the subject of an investigation for, who is charged with, or who has been convicted of or pled guilty or nolo contendere to the offense in question. 'Victim' also does not include any individual who was imprisoned or engaged in an unlawful act at the time of the offense.

(12)    'Intervenor' means an individual, other than a law enforcement officer performing his ordinary duties, who provides aid to another individual who is not acting recklessly, in order to prevent the commission of a crime or to lawfully apprehend an individual reasonably suspected of having committed a crime.

Section 44-48-40.    (A)    When a person has been convicted of a sexually violent offense, the agency with jurisdiction shall must give written notice to the multidisciplinary team established in Section 44-48-50, the victim, and the Attorney General at least ninety days before:

(1)    the anticipated release from total confinement of a person who has been convicted of a sexually violent offense, except that in the case of a person who is returned to prison for no more than ninety days as a result of a revocation of any type of community supervision program, written notice must be given as soon as practicable following the person's readmission to prison;

(2)    the anticipated hearing on fitness to stand trial following notice under Section 44-23-460 of a person who has been charged with a sexually violent offense but who was found unfit to stand trial for the reasons set forth in Section 44-23-410 following a hearing held pursuant to Section 44-23-430;

(3)    the anticipated hearing pursuant to Section 17-24-40(C) of a person who has been found not guilty by reason of insanity of a sexually violent offense; or

(4)    release of a person who has been found guilty of a sexually violent offense but mentally ill pursuant to Section 17-24-20.

(B)    When a person has been convicted of a sexually violent offense and the Board of Probation, Parole, and Pardon Services or the Board of Juvenile Parole intends to grant the person a parole or the South Carolina Department of Corrections or the Board of Juvenile Parole intends to grant the person a conditional release, the parole or the conditional release shall must be granted to be effective ninety days after the date of the order of parole or conditional release. The Board of Probation, Parole, and Pardon Services, the Juvenile Parole Board, or the South Carolina Department of Corrections shall must immediately send notice of the parole or conditional release of the person to the multidisciplinary team, the victim, and the Attorney General. If the person is determined to be a sexually violent predator pursuant to this chapter, the person shall is be subject to the provisions of this chapter even though the person has been released on parole or conditional release.

(C)    The agency with jurisdiction shall must inform the multidisciplinary team, the victim, and the Attorney General of:

(1)    the person's name, identifying factors, anticipated future residence, and offense history; and

(2)    documentation of institutional adjustment and any treatment received.

(D)    The agency with jurisdiction, its employees, officials, individuals contracting, appointed, or volunteering to perform services under this chapter, the multidisciplinary team, and the prosecutor's review committee established in Section 44-48-60 are immune from civil or criminal liability for any good-faith conduct under this act.

Section 44-48-50.    The Director of the Department of Corrections shall must appoint a multidisciplinary team to review the records of each person referred to the team pursuant to Section 44-48-40. These records may include, but are not limited to, the person's criminal offense record, any relevant medical and psychological records, treatment records, victim's impact statement, and any disciplinary or other records formulated during confinement or supervision. The team, within thirty days of receiving notice as provided for in Section 44-48-40, shall must assess whether or not the person satisfies the definition of a sexually violent predator. If it is determined that the person satisfies the definition of a sexually violent predator, the multidisciplinary team must forward a report of the assessment to the prosecutor's review committee and notify the victim. The assessment must be accompanied by all records relevant to the assessment. Membership of the team must include:

(1)    a representative from the Department of Corrections;

(2)    a representative from the Department of Probation, Parole, and Pardon Services;

(3)    a representative from the Department of Mental Health who is a trained, qualified mental health clinician with expertise in treating sexually violent offenders;

(4)    a retired judge appointed by the Chief Justice who is eligible for continued judicial service pursuant to Section 2-19-100; and

(5)    the Chief Attorney of the Office of Appellate Defense or his designee an attorney with substantial experience in the practice of criminal defense law to be appointed by the Chief Justice to serve a term of one year.

The Director of the Department of Corrections or his designee appointed pursuant to subsection (1) shall be the chairman of the team.

Section 44-48-60.    The Attorney General shall must appoint a prosecutor's review committee to review the report and records of each person referred to the committee by the multidisciplinary team. The prosecutor's review committee shall must determine whether or not probable cause exists to believe the person is a sexually violent predator. The prosecutor's review committee shall must make the probable cause determination within thirty days of receiving the report and records from the multidisciplinary team. The prosecutor's review committee shall must include, but is not be limited to, a member of the staff of the Attorney General, an elected circuit solicitor, and a victim's representative. The Attorney General or his designee shall be the chairman of the committee. In addition to the records and reports considered pursuant to Section 44-48-50, the committee shall must also consider information provided by the circuit solicitor who prosecuted the person.

Section 44-48-70.    When the prosecutor's review committee has determined that probable cause exists to support the allegation that the person is a sexually violent predator, the Attorney General may must file a petition with the court in the jurisdiction where the person committed the offense and must notify the victim that the committee found that probable cause exists. The Attorney General must also notify the victim of the time, date, and location of the probable cause hearing before the court. The petition, which must be filed within thirty days of the probable cause determination by the prosecutor's review committee, shall must request that the court make a probable cause determination as to whether the person is a sexually violent predator. The petition must allege that the person is a sexually violent predator and must state sufficient facts that would support a probable cause allegation.

Section 44-48-80.    (A)    Upon filing of a petition, the court shall must determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the court determines that probable cause exists to believe that the person is a sexually violent predator, the person must be taken into custody if he is not already confined in a secure facility.

(B)    Immediately upon being taken into custody pursuant to subsection (A), the person must be provided with notice of the opportunity to appear in person at a hearing to contest probable cause as to whether the detained person is a sexually violent predator. This hearing must be held within seventy-two hours after a person is taken into custody pursuant to subsection (A). At this hearing the court shall must:

(1)    verify the detainee's identity;

(2)    receive evidence and hear argument arguments from the person and the Attorney General; and

(3)    determine whether probable cause exists to believe that the person is a sexually violent predator.

The State may rely upon the petition and supplement the petition with additional documentary evidence or live testimony.

(C)    At the probable cause hearing as provided in subsection (B), the detained person has the following rights in addition to any rights previously specified:

(1)    to be represented by counsel;

(2)    to present evidence on the person's behalf;

(3)    to cross-examine witnesses who testify against the person; and

(4)    to view and copy all petitions and reports in the court file.

(D)    If the probable cause determination is made, the court shall must direct that the person be transferred to an appropriate secure facility including, but not limited to, a local or regional detention facility for an evaluation as to whether the person is a sexually violent predator. The evaluation must be conducted by a qualified expert approved by the court at the probable cause hearing.

Section 44-48-90.    Within sixty days after the completion of a hearing held pursuant to Section 44-48-80, the court shall must conduct a trial to determine whether the person is a sexually violent predator. Within thirty days after the determination of probable cause by the court pursuant to Section 44-48-80, the person or the Attorney General may request, in writing, that the trial be before a jury. If such a request is made, the court shall must schedule a trial before a jury at the next available date in the court of common pleas in the county where the offense was committed. If no request is made, the trial must be before a judge in the county where the offense was committed. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and only if the respondent will not be substantially prejudiced. The Attorney General must notify the victim, in a timely manner, of the time, date, and location of the trial. At all stages of the proceedings under this chapter, a person subject to this chapter is entitled to the assistance of counsel, and if the person is indigent, the court shall must appoint counsel to assist the person. If a person is subjected to an examination under this chapter, the person may retain a qualified expert of his own choosing to perform the examination. All examiners are permitted to have reasonable access to the person for the purpose of the examination, as well as access to all relevant medical, psychological, criminal offense, and disciplinary records and reports. In the case of an indigent person who would like an expert of his own choosing, the court shall must determine whether the services are necessary. If the court determines that the services are necessary and the expert's requested compensation for the services is reasonable, the court shall must assist the person in obtaining the expert to perform an examination or participate in the trial on the person's behalf. The court shall must approve payment for the services upon the filing of a certified claim for compensation supported by a written statement specifying the time expended, services rendered, expenses incurred on behalf of the person, and compensation received in the case or for the same services from any other source.

Section 44-48-100.    (A)    The court or jury shall must determine whether, beyond a reasonable doubt, the person is a sexually violent predator. If a jury determines that the person is a sexually violent predator, the determination must be by unanimous verdict. If the court or jury determines that the person is a sexually violent predator, the person must be committed to the custody of the Department of Mental Health for control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and has been released pursuant to this chapter. The control, care, and treatment must be provided at a facility operated by the Department of Mental Health. At all times, a person committed for control, care, and treatment by the Department of Mental Health pursuant to this chapter must be kept in a secure facility, and the person must be segregated at all times from other patients under the supervision of the Department of Mental Health. The Department of Mental Health may enter into an interagency agreement with the Department of Corrections for the control, care, and treatment of these persons. A person who is in the confinement of the Department of Corrections pursuant to an interagency agreement authorized by this chapter must be kept in a secure facility and must, if practical and to the degree possible, be housed and managed separately from offenders in the custody of the Department of Corrections. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall must direct the person's release. Upon a mistrial, the court shall must direct that the person be held at an appropriate secure facility including, but not limited to, a local or regional detention facility until another trial is conducted. A subsequent trial following a mistrial must be held within ninety days of the previous trial, unless the subsequent trial is continued. The court or jury's determination that a person is a sexually violent predator may be appealed. The person must be committed to the custody of the Department of Mental Health pending his appeal.

(B)    If the person charged with a sexually violent offense has been found incompetent to stand trial and is about to be released and the person's commitment is sought pursuant to subsection (A), the court first shall hear evidence and determine whether the person committed the act or acts with which he is charged. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, apply. After hearing evidence on this issue, the court shall must make specific findings on whether the person committed the act or acts with which he is charged; the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on the person's own behalf; the extent to which the evidence could be reconstructed without the assistance of the person; and the strength of the prosecution's case. If, after the conclusion of the hearing on this issue, the court finds beyond a reasonable doubt that the person committed the act or acts with which he is charged, the court shall must enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this chapter.

Section 44-48-110.    A person committed pursuant to this chapter shall must have an examination of his mental condition performed once every year. The person may retain or, if the person is indigent and so requests, the court may appoint a qualified expert to examine the person, and the expert shall must have access to all medical, psychological, criminal offense, and disciplinary records and reports concerning the person. The annual report must be provided to the court which committed the person pursuant to this chapter, the Attorney General, the solicitor who prosecuted the person, and the multidisciplinary team. The court shall must conduct an annual hearing to review the status of the committed person. The committed person shall is not be prohibited from petitioning the court for release at this hearing. The Director of the Department of Mental Health shall must provide the committed person with an annual written notice of the person's right to petition the court for release over the director's objection; the notice shall must contain a waiver of rights. The director shall must forward the notice and waiver form to the court with the annual report. The committed person has a right to have an attorney represent him at the hearing, but the committed person is not entitled to be present at the hearing. If the court determines that probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and, if released, is not likely to commit acts of sexual violence, the court shall must schedule a trial on the issue. At the trial, the committed person is entitled to be present and is entitled to the benefit of all constitutional protections that were afforded the person at the initial commitment proceeding. The Attorney General must notify the victim of all proceedings. The Attorney General shall must represent the State and has the right to have the committed person evaluated by qualified experts chosen by the State. The trial must be before a jury if requested by either the person, the Attorney General, or the solicitor. The committed person also has the right to have qualified experts evaluate the person on the person's behalf, and the court shall must appoint an expert if the person is indigent and requests the appointment. The burden of proof at the trial is upon the State to prove beyond a reasonable doubt that the committed person's mental abnormality or personality disorder remains such that the person is not safe to be at large and, if released, is likely to engage in acts of sexual violence.

Section 44-48-120.    If the Director of the Department of Mental Health determines that the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and, if released, is not likely to commit acts of sexual violence, the director shall must authorize the person to petition the court for release. The petition shall must be served upon the court and the Attorney General. The Attorney General must notify the victim of the proceeding. The court, upon receipt of the petition for release, shall must order a hearing within thirty days. The Attorney General shall must represent the State, and has the right to have the petitioner examined by experts chosen by the State. The hearing must be before a jury if requested by either the petitioner or the Attorney General. The burden of proof is upon the Attorney General to show beyond a reasonable doubt that the petitioner's mental abnormality or personality disorder remains such that the petitioner is not safe to be at large and, that if released, is likely to commit acts of sexual violence.

Section 44-48-130.    Nothing in this chapter shall prohibit prohibits a person from filing a petition for release pursuant to this chapter. However, if a person has previously filed a petition for release without the approval of the Director of the Department of Mental Health, and the court determined either upon review of the petition or following a hearing that the petitioner's petition was frivolous or that the petitioner's condition had not changed so that the petitioner was not safe to be at large continued to be a threat and, if released, would commit acts of sexual violence, then the court shall must deny the subsequent petition unless the petition contains facts upon which a court could find the condition of the petitioner had so changed that a hearing was warranted. Upon receipt of a first or subsequent petition from a committed person without the director's approval, the court shall must, whenever possible, review the petition and determine if the petition is based upon frivolous grounds and, if so, shall must deny the petition without a hearing.

Section 44-48-140.    In order to protect the public, relevant information and records which otherwise are confidential or privileged must be released to the agency with jurisdiction and the Attorney General for the purpose of meeting the notice requirements of Section 44-48-40 and determining whether a person is or continues to be a sexually violent predator.

Section 44-48-150.    Psychological reports, drug and alcohol reports, treatment records, reports of the diagnostic center, medical records, or victim impact statements which have been submitted to the court or admitted into evidence under this chapter must be part of the record, but must be sealed and opened only on order of the court.

Section 44-48-160.    A person released from commitment pursuant to this chapter must register pursuant to and comply with the requirements of Article 7, Chapter 3 of Title 23.

Section 44-48-170.    The involuntary detention or commitment of a person pursuant to this chapter shall must conform to constitutional requirements for care and treatment."

SECTION    2.    This act takes effect upon approval by the Governor.

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This web page was last updated on Thursday, June 25, 2009 at 9:53 A.M.