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COMMITTEE REPORT
May 28, 2003
S. 477
S. Printed 5/28/03--H. [SEC 6/2/03 11:35 AM]
Read the first time April 16, 2003.
To whom was referred a Bill (S. 477) to enact the "Domestic Violence Prevention Act of 2003"; to amend Section 16-1-60, relating to violent crimes, so as to include criminal domestic violence of, 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 adding the following appropriately numbered SECTIONS:
/SECTION __. Article 1, Chapter 3, Title 16 of the 1976 Code is amended by adding:
"Section 16-3-29. (A) As used in this section:
(1) 'Mental Retardation' means a disability that originated before the age of eighteen and that is characterized by significant limitations both in intellectual functioning and in at least two or more of the following adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work.
(2) 'Life imprisonment' means imprisonment until death.
(B) Notwithstanding any other provision of law, a person convicted of murder pursuant to Section 16-3-20 who has been determined by the court to be a person with mental retardation at the time of the commission of the offense may not be sentenced to death but must be sentenced in accordance with this section.
(C)(1) If the State files notice of intent to seek the death penalty, the court shall, upon request of the defendant or the prosecution, order that a pretrial hearing be held to determine if the defendant is a person with mental retardation. The defendant must give the State notice of the intent to raise the issue of defendant's mental retardation not less than thirty days prior to trial. The court shall consider the findings of court-appointed experts and consider the findings of any other expert and any other relevant evidence including, but not limited to, testimony of lay witnesses offered by the state or the defense on the issue of whether the defendant has mental retardation. At least one of the experts testifying on the issue must be an experienced and trained clinician whose expertise is in the field of mental retardation and who is skilled in the administration and interpretation of psychometric (IQ) tests and in the assessment of adaptive behavior and the impact of intellectual impairment in an individual's life. The defense must establish mental retardation by a preponderance of the evidence and the court must make a finding as to the existence of mental retardation. No statement made by the defendant in the course of any evaluation provided for in this section, whether or not the defendant consents, may be admitted in evidence against the defendant in any criminal proceeding.
(2) If the court determines the defendant to be a person with mental retardation, the court must declare the case noncapital and, upon conviction, the defendant must be sentenced to life imprisonment if a statutory aggravating circumstance is found pursuant to Section 16-3-20(C)(a) or thirty years if no aggravating circumstance is found.
(3) If the court determines that the defendant is not a person with mental retardation, the case may proceed as a capital trial. The jury must not be informed of the prior proceedings or the judge's findings concerning the defendant's claim of mental retardation. If the jury returns a verdict of guilty, the parties are entitled to present evidence to the jury on the issue of whether the defendant has mental retardation if the issue was raised by the defendant prior to trial, proper notice was given, and a pretrial hearing was held on the issue. The jury must be asked to render a special verdict on the issue of mental retardation. The special verdict must ask the jury to answer the question: 'Do you unanimously find, beyond a reasonable doubt, that the defendant does not have mental retardation?' If the jury answers 'yes', the case must proceed to the sentencing phase. If the jury answers 'no', the defendant must be sentenced to life imprisonment if a statutory aggravating circumstance is found pursuant to Section 16-3-20(C)(a) or thirty years if no aggravating circumstance is found. The pretrial determination of the court does not preclude the defendant from offering evidence of diminished capacity as a mitigating circumstance pursuant to Section 16-3-20(C)(b)(6).
(E) Within one hundred and twenty days after January 1, 2004, a defendant sentenced to death prior to January 1, 2004, may seek appropriate relief, pursuant to Chapter 27, Title 17, from the defendant's death sentence upon the ground that the defendant was a person with mental retardation, as defined in this section, at the time of the commission of the offense. The court shall grant a prompt hearing on the request and determine the issues and make findings of fact with respect to the request pursuant to the provisions of this section. If the court finds by a preponderance of the evidence that the defendant was a person with mental retardation, the sentence of death must be vacated and the court shall impose a sentence of life imprisonment."
SECTION __. Section 16-3-20(C)(b) of the 1976 Code, as last amended by Act 488 of 1992, is further amended to read:
"(b) Mitigating circumstances:
(1) The defendant has no significant history of prior criminal conviction involving the use of violence against another person.
(2) The murder was committed while the defendant was under the influence of mental or emotional disturbance.
(3) The victim was a participant in the defendant's conduct or consented to the act.
(4) The defendant was an accomplice in the murder committed by another person and his participation was relatively minor.
(5) The defendant acted under duress or under the domination of another person.
(6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
(7) The age or mentality of the defendant at the time of the crime.
(8) The defendant was provoked by the victim into committing the murder.
(9) The defendant was below the age of eighteen at the time of the crime.
(10) The defendant had mental retardation at the time of the crime. "Mental retardation" means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.
The statutory instructions as to statutory aggravating and mitigating circumstances must be given in charge and in writing to the jury for its deliberation. The jury, if its verdict is a recommendation of death, shall designate in writing, and signed by all members of the jury, the statutory aggravating circumstance or circumstances which it found beyond a reasonable doubt. The jury, if it does not recommend death, after finding a statutory aggravating circumstance or circumstances beyond a reasonable doubt, shall designate in writing, and signed by all members of the jury, the statutory aggravating circumstance or circumstances it found beyond a reasonable doubt. In nonjury cases the judge shall make the designation of the statutory aggravating circumstance or circumstances. Unless at least one of the statutory aggravating circumstances enumerated in this section is found, the death penalty must not be imposed.
Where a statutory aggravating circumstance is found and a recommendation of death is made, the trial judge shall sentence the defendant to death. The trial judge, before imposing the death penalty, shall find as an affirmative fact that the death penalty was warranted under the evidence of the case and was not a result of prejudice, passion, or any other arbitrary factor. Where a statutory aggravating circumstance is found and a sentence of death is not recommended by the jury, the trial judge shall sentence the defendant to life imprisonment as provided in subsection (A). Before dismissing the jury, the trial judge shall question the jury as to whether or not it found a statutory aggravating circumstance or circumstances beyond a reasonable doubt. If the jury does not unanimously find any statutory aggravating circumstances circumstance or circumstances beyond a reasonable doubt, it shall not make a sentencing recommendation. Where a statutory aggravating circumstance is not found, the trial judge shall sentence the defendant to either life imprisonment or a mandatory minimum term of imprisonment for thirty years. No person sentenced to life imprisonment or a mandatory minimum term of imprisonment for thirty years under this section is eligible for parole or to receive any work credits, good conduct credits, education credits, or any other credits that would reduce the sentence required by this section. If the jury has found a statutory aggravating circumstance or circumstances beyond a reasonable doubt, the jury shall designate this finding, in writing, signed by all the members of the jury. The jury shall not recommend the death penalty if the vote for such the death penalty is not unanimous as provided. If members of the jury after a reasonable deliberation cannot agree on a recommendation as to whether or not the death sentence should be imposed on a defendant found guilty of murder, the trial judge shall dismiss such the jury and shall sentence the defendant to life imprisonment as provided in subsection (A)."
SECTION __. 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, except as provided for in Section 16-3-29(E) as added by Section 1 of this act.
SECTION __. Section 22-5-910 of the 1976 Code, as last amended by Act 37 of 1997, is further amended to read:
"Section 22-5-910. Following a first offense conviction in a magistrate's court or a municipal court, the defendant after three years from the date of the conviction may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction. However, this section does not apply to an offense involving the operation of a motor vehicle, to a violation of Title 50 or the regulations promulgated under it for which points are assessed, suspension provided for, or enhanced penalties for subsequent offenses authorized, or to an offense contained in Chapter 25 of Title 16, except first offense criminal domestic violence as contained in Section 16-25-20. If the defendant has had no other conviction during the three-year period following the first offense conviction in a magistrate's court or a municipal court, the circuit court may issue an order expunging the records. No person may have his records expunged under this section more than once. A person may have his record expunged even though the conviction occurred prior to June 1, 1992.
After the expungement, the South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of the expungement to ensure that no person takes advantage of the rights of this section more than once. This nonpublic record is not subject to release under Section 34-11-95, the Freedom of Information Act, or any other provision of law except to those authorized law or court officials who need to know this information in order to prevent the rights afforded by this section from being taken advantage of more than once.
As used in this section, "conviction" includes a guilty plea, a plea of nolo contendere, or the forfeiting of bail."/
Amend the bill further, Section 16-25-10 as contained in SECTION 3, page 3, by striking lines 5 through 8 and inserting:
/persons who have a child in common, and a male and female who are cohabiting or formerly have cohabited./
When amended Section 16-25-10 shall read:
/As used in this article, 'household member' means spouses, former spouses, parents and children, persons related by consanguinity or affinity within the second degree, persons who have a child in common, and a male and female who are cohabiting or formerly have cohabited./
Amend the bill further, Section 16-25-20(D) as contained in SECTION 3, page 3, by striking Section 16-25-20(D) in its entirety and inserting:
/(D) A person who violates subsection (A) after previously having been convicted of two violations of subsection (A) within the previous ten years or two violations of Section 16-25-65 within the previous ten years or a violation of subsection (A) and a violation of Section 16-25-65 within the previous ten years is guilty of a misdemeanor and, upon conviction, must be imprisoned not less than ninety days but not more than three years. The court may suspend the imposition or execution of all or part of the sentence, except the mandatory ninety-day minimum sentence, and place the offender on probation conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers. /
Amend the bill further, Section 16-25-65(B) as contained in SECTION 3, page 6 by striking line 30 and inserting:
/guilty of a misdemeanor and, upon conviction, must be /
When amended Section 16-25-65(B) shall read:
/(B) A person who commits the crime of criminal domestic violence of a high and aggravated nature violates subsection (A) is guilty of a misdemeanor and, upon conviction, must be fined not more than three thousand dollars or imprisoned not more than ten years, or both. The court may suspend the imposition or execution of all or part of the sentence, and place the offender on probation conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender must pay a reasonable fee for participation in the treatment program, but no person may be denied treatment due to inability to pay. If the offender suffers from a substance abuse problem, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services. /
Amend the bill further, by striking SECTION 2, as contained on page 2 in its entirety.
Renumber sections to conform.
Amend title to conform.
JAMES H. HARRISON for Committee.
TO ENACT THE "DOMESTIC VIOLENCE PREVENTION ACT OF 2003"; TO AMEND SECTION 16-1-60, RELATING TO VIOLENT CRIMES, SO AS TO INCLUDE CRIMINAL DOMESTIC VIOLENCE OF A HIGH AND AGGRAVATED NATURE AS A VIOLENT CRIME; TO AMEND ARTICLE 1, CHAPTER 25 OF TITLE 16, RELATING TO CRIMINAL DOMESTIC VIOLENCE OFFENSES, SO AS TO REDEFINE "HOUSEHOLD MEMBER"; TO DELETE FINES AS A PENALTY FOR THESE CRIMINAL DOMESTIC VIOLENCE OFFENSES AND TO AUTHORIZE SUSPENSION OF THE SENTENCE IMPOSED, EXCEPT MANDATORY MINIMUM SENTENCES WHERE APPLICABLE; TO REDEFINE CRIMINAL DOMESTIC VIOLENCE OF A HIGH AND AGGRAVATED NATURE; TO PROVIDE THAT A LAW ENFORCEMENT AGENCY MUST INVESTIGATE AN ALLEGATION OF CRIMINAL DOMESTIC VIOLENCE EVEN IF THE AGENCY WAS NOT NOTIFIED AT THE TIME OF THE VIOLATION; TO AMEND SECTION 17-22-50, RELATING TO PRETRIAL INTERVENTION, SO AS TO PROVIDE THAT A PERSON MUST NOT BE CONSIDERED FOR INTERVENTION IF HE HAS BEEN CHARGED WITH AN OFFENSE CONTAINED IN CHAPTER 25 OF TITLE 16; AND TO AMEND SECTION 56-7-15, RELATING TO UNIFORM TRAFFIC TICKETS, SO AS TO REQUIRE THAT AN OFFICER WHO EFFECTS AN ARREST, BY USE OF A UNIFORM TRAFFIC TICKET, FOR A VIOLATION OF CHAPTER 25 OF TITLE 16, MUST SUBSEQUENTLY COMPLETE AND FILE AN INCIDENT REPORT WITHIN FIFTEEN DAYS OF THE ISSUANCE OF THE TICKET.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "Domestic Violence Prevention Act of 2003".
SECTION 2. Section 16-1-60 of the 1976 Code, as last amended by Act 176 of 2002, is further amended to read:
"Section 16-1-60. For purposes of definition under South Carolina law, a violent crime includes the offenses of: murder (Section 16-3-10); criminal sexual conduct in the first and second degree (Sections 16-3-652 and 16-3-653); criminal sexual conduct with minors, first and second degree (Section 16-3-655); assault with intent to commit criminal sexual conduct, first and second degree (Section 16-3-656); assault and battery with intent to kill (Section 16-3-620); kidnapping (Section 16-3-910); voluntary manslaughter (Section 16-3-50); armed robbery (Section 16-11-330(A)); attempted armed robbery (Section 16-11-330(B)); carjacking (Section 16-3-1075); drug trafficking, as defined in Sections 44-53-370(e) and 44-53-375(C); arson in the first degree (Section 16-11-110(A)); arson in the second degree (Section 16-11-110(B)); burglary in the first degree (Section 16-11-311); burglary in the second degree (Section 16-11-312(B)); engaging a child for a sexual performance (Section 16-3-810); homicide by child abuse (Section 16-3-85(A)(1)); aiding and abetting homicide by child abuse (Section 16-3-85(A)(2)); inflicting great bodily injury upon a child (Section 16-3-95(A)); allowing great bodily injury to be inflicted upon a child (Section 16-3-95(B)); criminal domestic violence of a high and aggravated nature (Section 16-25-65); abuse or neglect of a vulnerable adult resulting in death (Section 43-35-85(F)); abuse or neglect of a vulnerable adult resulting in great bodily injury (Section 43-35-85(E)); accessory before the fact to commit any of the above offenses (Section 16-1-40); attempt to commit any of the above offenses (Section 16-1-80); and taking of a hostage by an inmate (Section 24-13-450). Only those offenses specifically enumerated in this section are considered violent offenses."
SECTION 3. Article 1, Chapter 25 of Title 16 of the 1976 Code is amended to read:
Section 16-25-10. As used in this article, 'household member' means spouses, former spouses, parents and children, persons related by consanguinity or affinity within the second degree, persons who have a child in common, a person under the age of eighteen living in the household, a person who functions cognitively or adaptively under the age of eighteen who lives in the household, and a male and female who are cohabiting or formerly have cohabited.
Section 16-25-20. (A) It is unlawful to: (1) cause physical harm or injury to a person's own household member, (2) offer or attempt to cause physical harm or injury to a person's own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.
(B) Except as otherwise provided in this section, a person who violates subsection (A) is guilty of the misdemeanor of criminal domestic violence and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than thirty days.
(C) A person who violates subsection (A) and who has been convicted of a violation of that subsection or of Section 16-25-65 within the previous ten years is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars and imprisoned not more than thirty days. The court may suspend the imposition or execution of all or part of the sentence conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers.
(D) A person who violates subsection (A) after previously having been convicted of two violations of subsection (A) or two violations of Section 16-25-65 or a violation of subsection (A) and a violation of Section 16-25-65 is guilty of a misdemeanor and, upon conviction, must be imprisoned not less than ninety days but not more than three years. The court may suspend the imposition or execution of all or part of the sentence, except the mandatory ninety-day minimum sentence, and place the offender on probation conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers.
(E) A person who violates the terms and conditions of an order of protection issued in this State under Chapter 4, Title 20, the 'Protection from Domestic Abuse Act', or a valid protection order related to domestic or family violence issued by a court of another state, tribe, or territory is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than thirty days and fined not more than five hundred dollars. The court may suspend the imposition or execution of all or part of the sentence conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers.
A person convicted of a violation of subsection (A) and this subsection must not be sentenced under both sections for the same offense. A person convicted of a violation of Section 16-25-65 and this subsection for the same offense must be imprisoned for not more than ten years as provided for in Section 16-25-65.
(F) Unless the complaint is voluntarily dismissed or the charge is dropped prior to the scheduled trial date, a person charged with a violation provided in this chapter must appear before a judge for disposition of the case.
(G) When a person is convicted of a violation of Section 16-25-65 or sentenced pursuant to subsection (D), the court may suspend execution of all or part of the sentence, except for the mandatory minimum sentence, and place the offender on probation, conditioned upon:
(1) the offender completing, to the satisfaction of the court, a program designed to treat batterers;
(2) fulfillment of all the obligations arising under court order pursuant to this section and this Section 16-25-65; and
(3) other reasonable terms and conditions of probation as the court may determine necessary to ensure the protection of the victim.
(H) In determining whether or not to suspend the imposition or execution of all or part of a sentence as provided in this section, the court must consider the nature and severity of the offense, the number of times the offender has repeated the offense, and the best interests and safety of the victim.
An offender who participates in a batterer treatment program pursuant to this section, must participate in a program offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender must pay a reasonable fee for participation in the treatment program but no person may be denied treatment due to inability to pay. If the offender suffers from a substance abuse problem, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services.
Section 16-25-30.    Any person who violates Section 16-25-20 is guilty of the misdemeanor of criminal domestic violence and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than thirty days.
Section 16-25-40. Any person who violates Section 16-25-20 after having previously been convicted of two violations of Section 16-25-20 or two violations of Section 16-25-65 or a violation of Section 16-25-20 and a violation of Section 16-25-65 is guilty of a misdemeanor and, upon conviction, must be fined not more than three thousand dollars or imprisoned not more than three years, or both.
Section 16-25-50. A person violating the terms and conditions of an order of protection issued in this State under Chapter 4, Title 20, the "Protection from Domestic Abuse Act", or a valid protection order related to domestic or family violence issued by a court of another state, tribe, or territory is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than thirty days or fined not more than five hundred dollars. A person found guilty of a violation of Section 16-25-20 and this section may not be sentenced under both sections for the same offense.
Section 16-25-60. (A) Unless the complaint is voluntarily dismissed or the charge is dropped prior to the scheduled trial date, a person charged with a violation provided in this chapter shall appear before a judge for disposition of the case.
(B) When a person is convicted of a violation of Section 16-25-20 or 16-25-50, the court may suspend the imposition or execution of all or part of the sentence conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat battering spouses where available or in other appropriate psychiatric or therapeutic treatment or counseling.
(C) When a person is convicted of a violation of Section 16-25-40 or 16-25-65, the court may suspend execution of all or part of the sentence and place the offender on probation, conditioned upon:
(1) the offender completing, to the satisfaction of the court, a program designed to treat battering spouses where available or in other appropriate psychiatric or therapeutic treatment or counseling;
(2) fulfillment of all the obligations arising under court order pursuant to Section 20-4-60 and this section;
(3) other reasonable terms and conditions of probation as the court may determine necessary to ensure the protection of the victim.
(D) In determining whether or not to suspend the imposition or execution of all or part of a sentence as provided in this section, the court must consider the nature and severity of the offense, the number of times the offender has repeated the offense, and the best interests and safety of the victim. A court may require an offender to pay for participation in a program or treatment or counseling as an appropriate term or condition for suspending the imposition or execution of all or part of a sentence.
Section 16-25-65. (A) The elements of the common law crime of assault and battery of a high and aggravated nature are incorporated in and made a part of the offense of criminal domestic violence of a high and aggravated nature when a person violates the provisions of Section 16-25-20 and the elements of assault and battery of a high and aggravated nature are present. A person who violates Section 16-25-20(A) is guilty of the offense of criminal domestic violence of a high and aggravated nature when one of the following occurs:
(1) the person intentionally commits an assault and battery which involves the use of a deadly weapon or results in serious bodily injury to the victim; or
(2) the person intentionally commits an assault, with or without an accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death.
(B) A person who commits the crime of criminal domestic violence of a high and aggravated nature violates subsection (A) is guilty of a misdemeanor felony and, upon conviction, must be fined not more than three thousand dollars or imprisoned not more than ten years, or both. The court may suspend the imposition or execution of all or part of the sentence, and place the offender on probation conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender must pay a reasonable fee for participation in the treatment program, but no person may be denied treatment due to inability to pay. If the offender suffers from a substance abuse problem, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services.
(C) The provisions of this section subsection (A) create a statutory offense of criminal domestic violence of a high and aggravated nature and must not be construed to codify the common law crime of assault and battery of a high and aggravated nature.
Section 16-25-70. (A) A law enforcement officer may arrest, with or without a warrant, a person at the person's place of residence or elsewhere if the officer has probable cause to believe that the person is committing or has freshly committed a misdemeanor or felony under the provisions of Section 16-25-20, 16-25-50 16-25-20(A) or (E), or 16-25-65 even if the act did not take place in the presence of the officer. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate law enforcement agency. A law enforcement agency must complete an investigation of an alleged violation of this chapter even if the law enforcement agency was not notified at the time the alleged violation occurred. If an arrest warrant is sought, the law enforcement agency must present the results of the investigation and any other relevant evidence to a magistrate who may issue an arrest warrant if probable cause is established.
(B) A law enforcement officer must arrest, with or without a warrant, a person at the person's place of residence or elsewhere if physical manifestations of injury to the alleged victim are present and the officer has probable cause to believe that the person is committing or has freshly committed a misdemeanor or felony under the provisions of Section 16-25-20, 16-25-50 16-25-30(A) or (E), or 16-25-65 even if the act did not take place in the presence of the officer. A law enforcement officer is not required to make an arrest if he determines probable cause does not exist after consideration of the factors set forth in subsection (D) and observance that no physical manifestation of injury is present. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate law enforcement agency.
(C) In effecting a warrantless arrest under this section, a law enforcement officer may enter the residence of the person to be arrested in order to effect the arrest where the officer has probable cause to believe that the action is reasonably necessary to prevent physical harm or danger to a family or household member.
(D) If a law enforcement officer receives conflicting complaints of domestic or family violence from two or more household members involving an incident of domestic or family violence, the officer must evaluate each complaint separately to determine who was the primary aggressor. If the officer determines that one person was the primary physical aggressor, the officer must not arrest the other person accused of having committed domestic or family violence. In determining whether a person is the primary aggressor, the officer must consider the following factors and any other factors he considers relevant:
(1) prior complaints of domestic or family violence;
(2) the relative severity of the injuries inflicted on each person taking into account injuries alleged which may not be easily visible at the time of the investigation;
(3) the likelihood of future injury to each person;
(4) whether one of the persons acted in self-defense; and
(5) household member accounts regarding the history of domestic violence.
(E) A law enforcement officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage a party's requests for intervention by law enforcement.
(F) A law enforcement officer who arrests two or more persons for a crime involving domestic or family violence must include the grounds for arresting both parties in the written incident report, and must include a statement in the report that the officer attempted to determine which party was the primary aggressor pursuant to this section and was unable to make a determination based upon the evidence available at the time of the arrest.
(G) When two or more household members are charged with a crime involving domestic or family violence arising from the same incident and the court finds that one party was the primary aggressor pursuant to this section, the court, if appropriate, may dismiss charges against the other party or parties.
(H) Evidence discovered as a result of a warrantless search administered pursuant to a complaint filed under this article is admissible in a court of law:
(1) if it is found:
(a) in plain view of a law enforcement officer in a room in which the officer is interviewing, detaining, or pursuing a suspect; or
(b) pursuant to a search incident to a lawful arrest for a violation of this article or for a violation of Chapter 3, Title 16; or
(2) if it is evidence of a violation of this article.
An officer may arrest and file criminal charges against a suspect for any offense that arises from evidence discovered pursuant to this section.
Unless otherwise provided for in this section, no evidence of a crime found as a result of a warrantless search administered pursuant to a complaint filed under this article is admissible in any court of law.
(I) In addition to the protections granted to the law enforcement officer and law enforcement agency under the South Carolina Tort Claims Act, a law enforcement officer is not liable for an act, omission, or exercise of discretion under this section unless the act, omission, or exercise of discretion constitutes gross negligence, recklessness, wilfulness, or wantonness.
Section 16-24-80. Nothing in this article affects or limits the powers of any court to enforce its own orders by civil or criminal contempt or the powers of the police to make other lawful arrests.
Nothing in this article may be construed to repeal, replace, or preclude application of any other provisions of law pertaining to assault, assault and battery, assault and battery of a high and aggravated nature, or other criminal offenses.
Section 16-25-90. Notwithstanding any provision of Chapters 13 and 21 of Title 24, and notwithstanding any other provision of law, an inmate who was convicted of, or pled guilty or nolo contendere to, an offense against a household member shall be is eligible for parole after serving one-fourth of his prison term when the inmate at the time he pled guilty to, nolo contendere to, or was convicted of an offense against the household member, or in post-conviction proceedings pertaining to the plea or conviction, presented credible evidence of a history of criminal domestic violence, as provided in Section 16-25-20, suffered at the hands of the household member. This section shall not affect the provisions of Section 17-27-45."
SECTION 4. Section 17-22-50 of the 1976 Code is amended to read:
"Section 17-22-50. (A) A person may must not be considered for intervention if:
(1) he has previously has been accepted into an intervention program nor may intervention be considered for those individuals; or
(2) the person is charged with:
(a) blackmail,;
(b) driving under the influence of intoxicating liquor or drugs,;
(c) any a traffic-related offense which is punishable only by fine or loss of points,; or
(d) any a fish, game, wildlife, or commercial fishery-related offense which is punishable by a loss of eighteen points as provided in Section 50-9-1020,; or
(e) any a crime of violence as defined in Section 16-1-60; or
(f) an offense contained in Chapter 25 of Title 16 if the offender has been convicted previously of a violation of that chapter or a similar offense in another jurisdiction.
(B) However, this section does not apply if the solicitor determines the elements of the crime do not fit the charge."
SECTION 5. Section 56-7-15 of the 1976 Code is amended to read:
"Section 56-7-15. (A) The uniform traffic ticket, established under the provisions of Section 56-7-10, may be used by law enforcement officers to arrest a person for an offense committed in the presence of a law enforcement officer if the punishment is within the jurisdiction of magistrate's magistrates court and municipal court. A law enforcement agency processing an arrest made pursuant to this section must furnish such information to the State Law Enforcement Division as required in Chapter 3 of Title 23.
(B) An officer who effects an arrest, by use of a uniform traffic ticket, for a violation of Chapter 25 of Title 16, must subsequently complete and file an incident report within fifteen days of the issuance of the ticket."
SECTION 6. 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 7. This act takes effect January 1, 2004, and applies to all offenses occurring on or after that date.
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