South Carolina General Assembly
116th Session, 2005-2006

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Bill 3099


Indicates Matter Stricken
Indicates New Matter


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND SECTION 44-23-410, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DETERMINATION OF CAPACITY TO STAND TRIAL OF PERSONS CHARGED WITH A CRIME OR CIVIL CONTEMPT, SO AS TO PROVIDE THAT THIS PROVISION APPLIES TO MAGISTRATES' COURT, TO PROVIDE A PROCEDURE TO SUSPEND AND REINSTATE A PERSON'S DRIVER'S LICENSE OR PRIVILEGE TO DRIVE WHO IS UNABLE TO STAND TRIAL BECAUSE OF A MENTAL CONDITION, AND TO PROVIDE A PROCEDURE TO SUSPEND AND REINSTATE A PERSON'S DRIVER'S LICENSE OR PRIVILEGE TO DRIVE WHO HAS SUFFERED A RELAPSE OF A MENTAL CONDITION BEFORE HIS TRIAL DATE.

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

SECTION    1.    Section 44-23-410 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:

"Section 44-23-410.    (A)    Whenever a judge of the circuit court, or family court, or magistrates' court has reason to believe that a person on trial before him, charged with the commission of a criminal offense or civil contempt, is not fit to stand trial because the person lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity, the judge shall:

(1)    order examination of the person by two examiners designated by the Department of Mental Health if the person is suspected of having a mental illness or designated by the Department of Disabilities and Special Needs if the person is suspected of being mentally retarded or having a related disability or by both sets of examiners if the person is suspected of having both mental illness and mental retardation or a related disability;. The examination must be made within fifteen days after the receipt of the court's order and may be conducted in any suitable place unless otherwise designated by the court; or

(2)    order the person committed for examination and observation to an appropriate facility of the Department of Mental Health or the Department of Disabilities and Special Needs for a period not to exceed fifteen days. If at the end of fifteen days the examiners have been unable to determine whether the person is fit to stand trial, the director of the facility shall request in writing an additional period for observation not to exceed fifteen days. If the person or his counsel requests, the person may be examined additionally by a designated examiner of his choice. The report of the examination is admissible as evidence in subsequent hearings pursuant to Section 44-23-430. However, the court may prescribe the time and conditions under which the independent examination is conducted. If the examiners designated by the Department of Mental Health find indications of mental retardation or a related disability but not mental illness, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person is 'not mentally ill' and recommend that the person should be evaluated for competency to stand trial by the Department of Disabilities and Special Needs. If the examiners designated by the Department of Disabilities and Special Needs find indications of mental illness but not mental retardation or a related disability, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person does 'not have mental retardation or a related disability' and recommend that the person should be evaluated for competency to stand trial by the Department of Mental Health. If either the Department of Mental Health or the Department of Disabilities and Special Needs finds a preliminary indication of a dual diagnosis of mental illness and mental retardation or a related disability, this preliminary finding must be reported to the court with the recommendation that one examiner from the Department of Mental Health and one examiner from the Department of Disabilities and Special Needs be designated to further evaluate the person and render a final report on his mental capacity.

(B)    When a person, his attorney, or both, notifies the court or the court determines that the person is unable to stand trial because of a mental condition, the court shall confiscate the person's driver's license. The court, within five days, must notify the Department of Public Safety of this action. The department immediately shall suspend the person's driver's license or privilege to drive. The department must notify the person of his suspension pursuant to Section 56-1-350. The person's driver's license or privilege to drive shall remain under suspension until the court disposes of his case. If the person does not possess a driver's license, the court shall obtain a signed affidavit from him stating that he does not possess a driver's license.

(C)    If a person is mentally able to stand trial and subsequently has a relapse of a mental condition before the trial date, or he, his attorney, or both notify the court that he is unable to stand trial or the court determines he is unable to stand trial, the court shall confiscate his driver's license. The court, within five days, shall notify the Department of Public Safety of this action. The department shall notify the person of his suspension pursuant to Section 56-1-350. The person's driver's license or privilege to drive shall remain under suspension until the court disposes of his case. If the person does not possess a driver's license, the court shall obtain a signed affidavit from him stating that he does not possess a driver's license."

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

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