Download This Bill in Microsoft Word format

Indicates Matter Stricken
Indicates New Matter

H. 3030

STATUS INFORMATION

General Bill
Sponsors: Reps. J.R. Smith, Clyburn, Perry, D.C. Smith, Spires and Stewart
Document Path: l:\council\bills\dka\3020dw07.doc

Introduced in the House on January 9, 2007
Introduced in the Senate on February 15, 2007
Last Amended on June 5, 2008
Currently residing in the House

Summary: Rural community water district

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
-------------------------------------------------------------------------------
  12/13/2006  House   Prefiled
  12/13/2006  House   Referred to Committee on Education and Public Works
    1/9/2007  House   Introduced and read first time HJ-27
    1/9/2007  House   Referred to Committee on Education and Public Works HJ-27
   2/13/2007  House   Recalled from Committee on Education and Public Works 
                        HJ-32
   2/14/2007  House   Read second time HJ-29
   2/15/2007  House   Read third time and sent to Senate HJ-17
   2/15/2007  Senate  Introduced and read first time SJ-13
   2/15/2007  Senate  Referred to Committee on Judiciary SJ-13
   2/16/2007  Senate  Referred to Subcommittee: Martin (ch), Malloy, Campsen, 
                        Williams
    5/7/2008  Senate  Committee report: Favorable with amendment Judiciary SJ-7
   5/21/2008  Senate  Committee Amendment Amended and Adopted SJ-94
   5/21/2008  Senate  Read second time SJ-94
    6/5/2008  Senate  Amended SJ-53
    6/5/2008  Senate  Read third time and returned to House with amendments 
                        SJ-53

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

12/13/2006
2/13/2007
5/7/2008
5/21/2008
6/5/2008

Indicates Matter Stricken

Indicates New Matter

AS PASSED BY THE SENATE

June 5, 2008

H. 3030

Introduced by Reps. J.R. Smith, Clyburn, Perry, D.C. Smith, Spires and Stewart

S. Printed 6/5/08--S.

Read the first time February 15, 2007.

TO ADD SECTION 23-3-615, PROVIDING DEFINITIONS FOR DNA SAMPLE, DNA PROFILE, AND DNA RECORD; TO AMEND SECTION 23-3-620, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO OFFENDERS BEING REQUIRED TO SUBMIT SAMPLES FOR INCLUSION IN THE DNA DATABASE, SO AS TO REQUIRE SAMPLES UPON LAWFUL CUSTODIAL ARREST, COURTESY SUMMONS, OR DIRECT INDICTMENT FOR A FELONY OFFENSE, OFFENSE THAT CARRIES A SENTENCE OF FIVE YEARS OR MORE, OR AN ARREST FOR EAVESDROPPING, PEEPING, OR STALKING, AND AT THE TIME OF INTAKE AT A JAIL OR PRISON, AND TO REQUIRE SAMPLES TO BE PROVIDED BEFORE A PERSON IS RELEASED ON PAROLE, RELEASED FROM CONFINEMENT, OR RELEASED FROM AN AGENCY'S JURISDICTION; TO AMEND SECTION 23-3-630, RELATING TO PERSONS AUTHORIZED TO TAKE DNA SAMPLES AND THEIR IMMUNITY FROM LIABILITY, SO AS TO DELETE REQUIREMENTS THAT THE PERSONS AUTHORIZED MUST BE CERTAIN TYPES OF HEALTH PROFESSIONALS AND TO PROVIDE THAT THEY MUST BE APPROPRIATELY TRAINED; TO AMEND SECTION 23-3-650, RELATING TO THE CONFIDENTIALITY OF DNA, SO AS TO PROVIDE FOR COORDINATION BETWEEN SLED AND LOCAL LAW ENFORCEMENT AGENCIES TO PREVENT COLLECTION AND PROCESSING OF DUPLICATE DNA SAMPLES AND TO INCREASE FINES AND IMPRISONMENT TERMS FOR WRONGFUL DISCLOSURE OF DNA INFORMATION; TO AMEND SECTIONS 23-3-660 AND 23-3-670, RELATING TO EXPUNGEMENTS AND FEES FOR DNA SAMPLES, SO AS TO PROVIDE FOR EXPUNGEMENT AT NO COST TO THE ACCUSED WHEN CHARGES ARE DISMISSED, NOLLE PROSSED, OR REDUCED BELOW THE REQUIREMENT FOR THE TAKING OF THE DNA SAMPLE, TO PROVIDE THAT THE STATE WILL PAY FOR THE COSTS OF COLLECTING AND PROCESSING A DNA SAMPLE, AND TO PROVIDE THAT FEES COLLECTED FROM CONVICTED PERSONS SHALL BE REMITTED TO THE GENERAL FUND OF THE STATE AND CREDITED TO THE STATE LAW ENFORCEMENT DIVISION, AND TO REQUIRE NOTIFICATION TO THE PERSON OF THESE REMEDIES; TO AMEND SECTION 23-3-120, RELATING TO THE TAKING OF FINGERPRINTS, SO AS TO PROVIDE FOR THE PLACE AND TIMING FOR THE FINGERPRINTING OF A PERSON PLACED UNDER CUSTODIAL ARREST; AND TO AMEND SECTION 23-3-640, RELATING TO DISPOSITION OF DNA SAMPLES SO AS TO PROVIDE THAT ONCE THE DNA PROFILE IS PLACED INTO THE DNA DATABASE, SLED MUST IMMEDIATELY DESTROY THE DNA SAMPLE.

Whereas, DNA evidence has been called the "fingerprint of the 21st century"; and

Whereas, all fifty states and the federal government now collect DNA samples from convicted offenders; and

Whereas, the federal government now collects DNA samples from persons arrested for violating a federal offense; and

Whereas, the more samples a DNA database contains, the more crimes are solved; and

Whereas, a study from the Chicago Mayor's Office demonstrated that if eight offenders had submitted DNA samples when first arrested for a felony offense, sixty violent crimes, including thirty rapes and twenty-two murders, could have been prevented; and

Whereas, a study from Virginia, which began collecting DNA samples from arrestees in 2003, shows that more than 222 crimes have been solved using the DNA samples from arrestees; and

Whereas, there has been no report of a state or federal agency using the DNA information obtained from arrestees for any other purposes other than those allowed by law. Now, therefore,

The South Carolina Senate Criminal Justice System Task Force finds that the South Carolina laws on DNA sampling and collection must be changed to accommodate new technologies and strategies that convict the guilty and exonerate the innocent.

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

SECTION    1.        A.    This SECTION may be cited as the "South Carolina Protection from Violence Against Women and Children Act".

B.        Chapter 3, Title 23 of the 1976 Code is amended by adding:

"Section 23-3-615. As used in this article:

(A)    'DNA sample' means the tissue, saliva, blood, or any other bodily fluid taken at the time of arrest from which identifiable information can be obtained;

(B)    'DNA profile' means the results of any testing performed on a DNA sample; and

(C)    'DNA record' means the tissue or saliva samples and the results of the testing performed on the samples."

C.        Section 23-3-620 of the 1976 Code is amended to read:

"Section 23-3-620.    (A)    Following sentencing and at the time of intake at a jail or prison a lawful custodial arrest, the service of a courtesy summons, or a direct indictment for:

(1)    a felony offense or an offense that is punishable by a sentence of five years or more; or

(2)    eavesdropping, peeping, or stalking, any of which are committed in this State, a person, except for any juvenile, arrested or ordered by a court must provide a saliva or tissue sample from which DNA may be obtained for inclusion in the State DNA Database must be provided by:. Additionally, any person, including any juvenile, ordered to do so by a court, and any juvenile convicted or adjudicated delinquent for an offense contained in items (1) and (2), must provide a saliva or tissue sample from which DNA may be obtained for inclusion in the State DNA Database.

(1)    any person convicted or adjudicated delinquent and incarcerated in a state correctional facility on or after July 1, 2004, for:

(a)    eavesdropping or peeping (Section 16-17-470); or

(b)    any offense classified as a felony in Section 16-1-90 or any other offense that carries a maximum term of imprisonment of five years or more; and

(2)    any criminal offender convicted or adjudicated delinquent on or after July 1, 2004, who is ordered by the court to provide a sample.

(B)    A convicted offender who is required to provide a DNA sample under subsections (A)(1) or (A)(2) but who is not sentenced to a term of confinement must provide a sample as a condition of his sentence. This sample must be taken at a prison, jail, sheriff's office that serves a courtesy summons, courthouse where a direct presentment indictment is served, or other location as specified by the sentencing court detention facility at the time the person is booked and processed into the jail or detention facility following the custodial arrest, or other location when the taking of fingerprints is required prior to a conviction. The sample must be submitted to SLED as directed by SLED. If appropriately trained personnel are not available to take a sample from which DNA may be obtained, the failure of the arrested person to provide a DNA sample shall not be the sole basis for refusal to release the person from custody. An arrested person who is released from custody before providing a DNA sample must provide a DNA sample at a location specified by the law enforcement agency with jurisdiction over the offense on or before the first court appearance.

(C)(B)    At such time as possible and before parole or release Unless a sample has already been provided pursuant to the provisions of subsection (A), before a person may be paroled or released from confinement, the person must provide a suitable sample from which DNA may be obtained for inclusion in the State DNA Database must be provided by:

(1)    a person who was convicted or adjudicated delinquent before July 1, 2004, and who was sentenced to and is serving a term of confinement on or after July 1, 2004, for:

(a)    eavesdropping or peeping (Section 16-17-470); or

(b)    any offense classified as a felony in Section 16-1-90 or any other offense that carries a maximum term of imprisonment of five years or more; and

(2)    any criminal offender ordered by the court who was convicted or adjudicated delinquent before July 1, 2004, and who was sentenced to and is serving a term of confinement on or after July 1, 2004.

(D)(C)    An agency having custody of an offender who is required to provide a DNA sample under pursuant to subsection (C)(1) or (C)(2) (B) must notify SLED at least three days, excluding weekends and holidays, before the individual person is paroled or released from confinement.

(E)(D)    At such time as possible and Unless a sample has already been provided pursuant to the provisions of subsection (A), before release a person is released from confinement or release released from the agency's jurisdiction, a suitable sample from which DNA may be obtained for inclusion in the State DNA Database must be provided as a condition of probation or parole by:

(1)    a person convicted or adjudicated delinquent before July 1, 2004, who is serving a probated sentence or is paroled on or after July 1, 2004, for:

(a)    eavesdropping or peeping (Section 16-17-470); or

(b)    any offense classified as a felony in Section 16-1-90 or any other offense that carries a maximum term of imprisonment of five years or more; and

(2)    any criminal offender ordered by the court who was convicted or adjudicated delinquent before July 1, 2004, and who is serving a probated sentence or is paroled on or after July 1, 2004.

(F)    A person who provides a sample pursuant to this article also must provide any other information as may be required by SLED.

(G)(E)    A person required to provide a sample pursuant to this section may be required to provide another sample if the original sample is lost, damaged, contaminated, or unusable for examination prior to the creation of a DNA record or DNA profile suitable for inclusion in the DNA Database.

(H)(F)    The provisions of this section apply to juveniles notwithstanding the provisions of Section 20-7-8510."

D.    Section 23-3-630 of the 1976 Code is amended to read:

"Section 23-3-630.    (A)    Only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory technician, or other an appropriately trained health care worker person may take a sample from which DNA may be obtained.

(B)    A person taking a sample pursuant to this article is immune from liability if the sample was taken according to recognized medical procedures. However, no person is relieved from liability for negligence in the taking of any blood a sample."

E.    Section 23-3-650 of the 1976 Code is amended to read:

"Section 23-3-650.    (A)    The DNA sample record and the results of a DNA profile of an individual provided under this article are confidential and must be securely stored, except that SLED must make available the results to federal, state, and local law enforcement agencies and to approved crime laboratories which serve these agencies and to the solicitor or the solicitor's designee upon a written or electronic request and in furtherance of an official investigation of a criminal offense. These records and results or the DNA sample of an individual also must be made available as required by a court order following a hearing directing SLED to release the record or sample results. However, SLED must not make the DNA record or the DNA profile available to any entity that is not a law enforcement agency unless instructed to do so by order of a court with competent jurisdiction.

(B)    To prevent duplications of DNA samples, SLED must coordinate with any law enforcement agency obtaining a DNA sample to determine whether a DNA sample from the person under lawful custodial arrest has been previously obtained and is in the DNA Database.

(B)(C)    A person who wilfully discloses in any manner individually identifiable DNA information contained in the State DNA Database to a person or agency not entitled to receive this information is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred ten thousand dollars or three times the amount of any financial gain realized by the person, whichever is greater, or imprisoned not more than one year five years, or both.

(C)(D)    A person who, without authorization, wilfully obtains individually identifiable DNA information from the State DNA Database is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred ten thousand dollars or three times the amount of any financial gain realized by the person, whichever is greater, or imprisoned not more than one year five years, or both."

F.        Section 23-3-660 of the 1976 Code is amended to read:

"Section 23-3-660.    (A)    A person whose DNA record or DNA profile has been included in the State DNA Database may request expungement on the grounds that must have his DNA record and his DNA profile expunged if:

(1)    the charges pending against the person who has been arrested or ordered to submit a sample:

(a)    have been nolle prossed;

(b)    have been dismissed; or

(c)    have been reduced below the requirement for inclusion in the State DNA Database; or

(2)    the person has been found not guilty, or the person's conviction or adjudication has been reversed, set aside, or vacated.

(B)    The solicitor in the county in which the person was charged must notify SLED when the person becomes eligible to have his DNA record and DNA profile expunged. Upon receiving this notification, SLED must begin the expungement procedure.

(C)    SLED, at no cost to the person, shall must purge DNA and all other identifiable record information and the DNA profile from the State Database and shall must destroy the person's sample if SLED receives the person's written request for expungement and either:

(1)    a document certified:

(a)    by a circuit court judge,

(b)    by a prosecuting agency, or

(c)    by a clerk of court

that must be produced to the requestor at no charge within fourteen days after the request is made and after one of the events in subsection (A) has occurred, and no new trial has been ordered by a court of competent jurisdiction; or

(2)    a certified copy of the court order finding the person not guilty, or reversing, setting aside, or vacating the conviction or adjudication and proof that the identity of the individual making the request is the person whose record is to be expunged. If the person has more than one entry in the State DNA Database, only the entry covered by the expungement request may be expunged.

(D)    The person's entry in the State DNA Database shall not be removed if the person has another qualifying offense.

(E)    The jail intake officer, sheriff's office employee, courthouse employee, or detention facility intake officer shall provide written notification to the person of his right to have his DNA record and DNA profile expunged and the procedure for the expungement pursuant to this section at the time that the person's saliva or tissue sample is taken. The written notification must include that the person is eligible to have his DNA record and his DNA profile expunged at no cost to the person when:

(1)    the charges pending against the person are:

(a)    nolle prossed;

(b)    dismissed; or

(c)    reduced below the requirement for inclusion in the State DNA Database; or

(2)    when the person has been found not guilty, or the person's conviction has been reversed, set aside, or vacated.

(F)    When SLED completes the expungement process, SLED must notify the person whose DNA record and DNA profile have been expunged and inform him, in writing, that the expungement process has been completed."

G. Section 23-3-670 of the 1976 Code is amended to read:

"Section 23-3-670.    (A)    The cost of collection supplies for processing a sample pursuant to this article must be paid by the general fund of the State. A person who is required to provide a sample pursuant to this article, upon conviction, pleading guilty or nolo contendere, or forfeiting bond, must pay a two hundred and fifty dollar processing fee which may not be waived by the court. However:

(1)    If if the person is incarcerated, the fee must be paid before the person is paroled or released from confinement and may be garnished from wages the person earns while incarcerated.; and

(2)    If if the person is not sentenced to a term of confinement, payment of the fee must be a condition of the person's sentence and may be paid in installments if so ordered by the court.

(B)    The processing fee assessed pursuant to this section must be remitted to the general fund of the State and credited to the State Law Enforcement Division to offset the expenses SLED incurs in carrying out the provisions of this article."

H. Section 23-3-120(B) of the 1976 Code is amended to read:

"(B)    A person subjected to a lawful custodial arrest for a state offense must be fingerprinted at the time the person is booked and processed into a jail or detention facility or other location when the taking of fingerprints is required. Fingerprints taken by a law enforcement agency or detention facility pursuant to this section must be submitted to the State Law Enforcement Division's Central Record Repository within three days, excluding weekends and holidays, for the purposes of identifying record subjects and establishing criminal history record information."

I.    The provisions of this SECTION take effect on January 1, 2009; however, the implementation of the procedures provided for in this act is contingent upon the State Law Enforcement Division's receipt of funds necessary to implement these provisions. Until the provisions of this act are fully funded and executed, implementation of the provisions of this act shall not prohibit the collection and testing of DNA samples by the methods allowed prior to the implementation of this act from persons convicted, adjudicated delinquent, or on probation or parole for those crimes listed in Section 23-3-620.

SECTION    2.        A.    Section 17-15-30 of the 1976 Code is amended to read:

"Section 17-15-30.    (A)    In determining conditions of release that will reasonably assure appearance, or if release would constitute an unreasonable danger to any other person or the community, the court may, on the basis of available information, consider the nature and circumstances of the offense charged, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of flight to avoid prosecution or failure to appear at other court proceedings.

(B)    The court shall consider:

(1)    the accused's criminal record, if any, including, but not limited to, any charges pending against the accused at the time release is requested;

(2)    The court shall consider, if available, all incident reports generated as a result of the offense charged, if available; and

(3)    whether the accused is not lawfully present in the United States in violation of the Federal Immigration and Nationality Act or another federal law relating to illegal immigration and poses a substantial flight risk due to this status.

(C)    If a person has previously been released on bail pending trial and during his release is charged with a violent offense as defined by Section 16-1-60, and the court finds that no condition or combination of conditions will reasonably assure the appearance of the person as required or the safety of any other person and the community, then the court shall deny release of the person pending trial."

B.        Section 22-5-510 of the 1976 Code is amended to read:

"Section 22-5-510.    (A)    Magistrates may admit to bail a person charged with an offense, the punishment of which is not death or imprisonment for life; provided, however, with respect to violent offenses as defined by the General Assembly pursuant to Section 15, Article I of the Constitution of South Carolina, magistrates may deny bail giving due weight to the evidence and to the nature and circumstances of the event, including, but not limited to, any charges pending against the person requesting bail. 'Violent offenses' as used in this section means the offenses contained in Section 16-1-60. If a person under lawful arrest on a charge not bailable is brought before a magistrate, the magistrate shall commit the person to jail. If the offense charged is bailable, the magistrate shall take recognizance with sufficient surety, if it is offered, in default whereof the person must be incarcerated.

(B)    A person charged with a bailable offense must have a bond hearing within twenty-four hours of his arrest and must be released within a reasonable time, not to exceed four hours, after the bond is delivered to the incarcerating facility."

C.        This SECTION takes effect upon approval of the Governor.

SECTION    3.        A.    This SECTION may be cited as the "South Carolina Reduction of Recidivism Act of 2008". It is the intent of the General Assembly of South Carolina to provide law enforcement officers with the statutory authority to reduce recidivism rates of probationers and parolees, apprehend criminals, and protect potential victims from criminal enterprises.

B.        Section 20-7-8305(A)(1) of the 1976 Code is amended to read:

"(A)(1)    The Board of Juvenile Parole shall meet monthly and at other times as may be necessary to review the records and progress of children committed to the custody of the Department of Juvenile Justice for the purpose of deciding the release or revocation of release of these children. The parole board shall make periodic inspections, at least quarterly, of the records of persons committed to the custody of the Department of Juvenile Justice and may issue temporary and final discharges or release these persons conditionally and prescribe conditions for release into aftercare. Before a juvenile is conditionally released, the juvenile must agree in writing to be subject to search or seizure, with or without a search warrant, with or without cause, of the juvenile's person, any vehicle the juvenile owns or drives, and any of the juvenile's possessions by: (1) the juvenile's aftercare counselor; (2) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (3) any other law enforcement officer. The residence of the juvenile shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions, and the juvenile must agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions. A juvenile must not be conditionally released by the parole board if he fails to comply with this provision.

A law enforcement officer conducting a search or seizure without a warrant pursuant to this subitem shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant shall be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation."

C.        Section 20-7-8320(A) of the 1976 Code is amended to read:

"(A)    A juvenile who shall have been conditionally released from a correctional facility shall remain under the authority of the parole board until the expiration of the specified term imposed in the juvenile's conditional aftercare release. The specified period of conditional release may expire before but not after the twenty-first birthday of the juvenile. Each juvenile conditionally released is subject to the conditions and restrictions of the release and may at any time on the order of the parole board be returned to the custody of a correctional institution for violation of aftercare rules or conditions of release. The conditions of release must include the requirement that the juvenile parolee must permit the search or seizure, with or without a search warrant, with or without cause of the juvenile parolee's person, any vehicle the juvenile parolee owns or drives, and any of the juvenile parolee's possessions by: (1) his aftercare counselor; (2) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (3) any other law enforcement officer. The residence of the juvenile parolee shall be subject to search or seizure with or without a search warrant, based on reasonable suspicions. A juvenile parolee must agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions.

By enacting this provision, the General Assembly intends to provide law enforcement with a means of reducing recidivism and does not authorize law enforcement officers to conduct searches for the sole purpose of harassment. A law enforcement officer conducting a search or seizure without a warrant pursuant to this subsection shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant shall be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation."

D.    Section 24-19-110 of the 1976 Code is amended to read:

"Section 24-19-110.    The division may at any time after reasonable notice to the director release conditionally under supervision a committed youthful offender.     Before a youthful offender may be conditionally released, the youthful offender must agree in writing to be subject to search or seizure, with or without a search warrant, with or without cause of the youthful offender's person, any vehicle the youthful offender owns or drives, and any of the youthful offender's possessions by: (1) his supervisory agent; (2) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (3) any other law enforcement officer. The residence of the youthful offender shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions, and the youthful offender must agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions. A youthful offender must not be conditionally released by the division if he fails to comply with this provision. When, in the judgment of the director, a committed youthful offender should be released conditionally under supervision, he shall so report and recommend to the division. The conditions of release must include the requirement that the youthful offender must permit the search or seizure, with or without a search warrant, with or without cause, of the youthful offender's person, any vehicle the youthful offender owns or drives, and any of the youthful offender's possessions by: (1) his supervisory agent; (2) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (3) any other law enforcement officer. The youthful offender must permit the search or seizure, with or without a search warrant, based on reasonable suspicions, of his residence, and the youthful offender must agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions.

By enacting this provision, the General Assembly intends to provide law enforcement with a means of reducing recidivism and does not authorize law enforcement officers to conduct searches for the sole purpose of harassment. A law enforcement officer conducting a search or seizure without a warrant pursuant to this section shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant shall be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation.

The division may regularly assess a reasonable fee to be paid by the youthful offender who is on conditional release to offset the cost of his supervision.

The division may discharge a committed youthful offender unconditionally at the expiration of one year from the date of conditional release."

E.    Section 24-13-710 of the 1976 Code is amended to read:

"Section 24-13-710.    The Department of Corrections and the Department of Probation, Parole, and Pardon Services shall jointly develop the policies, procedures, guidelines, and cooperative agreement for the implementation of a supervised furlough program which permits carefully screened and selected inmates who have served the mandatory minimum sentence as required by law or have not committed a violent crime as defined in Section 16-1-60, a 'no parole offense' as defined in Section 24-13-100, the crime of criminal sexual conduct in the third degree as defined in Section 16-3-654, or the crime of committing or attempting a lewd act upon a child under the age of fourteen as defined in Section 16-15-140 to be released on furlough prior to parole eligibility and under the supervision of state probation and parole agents with the privilege of residing in an approved residence and continuing treatment, training, or employment in the community until parole eligibility or expiration of sentence, whichever is earlier.

Before an inmate may be released on supervised furlough, the inmate must agree in writing to be subject to search or seizure, with or without a search warrant, with or without cause of the inmate's person, any vehicle the inmate owns or drives, and any of the inmate's possessions by: (1) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (2) any other law enforcement officer. The residence of the inmate shall be subject to search or seizure with or without a search warrant, based on reasonable suspicions, and the inmate must agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions. An inmate must not be granted supervised furlough if he fails to comply with this provision.

The department and the Department of Probation, Parole, and Pardon Services shall assess a fee sufficient to cover the cost of the participant's supervision and any other financial obligations incurred because of his participation in the supervised furlough program as provided by this article. The two departments shall jointly develop and approve written guidelines for the program to include, but not be limited to, the selection criteria and process, requirements for supervision, conditions for participation, and removal.

The conditions for participation must include the requirement that the offender must permit the search or seizure, with or without a search warrant, with or without cause, of the offender's person, any vehicle the offender owns or drives, and any of the offender's possessions by: (1) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (2) any other law enforcement officer. The residence of the offender shall be subject to search or seizure with or without a search warrant, based on reasonable suspicions, and the offender must agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions.

By enacting this provision, the General Assembly intends to provide law enforcement with a means of reducing recidivism and does not authorize law enforcement officers to conduct searches for the sole purpose of harassment. A law enforcement officer conducting a search or seizure without a warrant pursuant to this section shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant shall be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation.

The cooperative agreement between the two departments shall specify the responsibilities and authority for implementing and operating the program. Inmates approved and placed on the program must be under the supervision of agents of the Department of Probation, Parole, and Pardon Services who are responsible for ensuring the inmate's compliance with the rules, regulations, and conditions of the program as well as monitoring the inmate's employment and participation in any of the prescribed and authorized community-based correctional programs such as vocational rehabilitation, technical education, and alcohol/drug treatment. Eligibility criteria for the program include, but are not limited to, all of the following requirements:

(1)    maintain a clear disciplinary record for at least six months prior to consideration for placement on the program;

(2)    demonstrate to Department of Corrections' officials a general desire to become a law-abiding member of society;

(3)    satisfy any other reasonable requirements imposed upon him by the Department of Corrections;

(4)    have an identifiable need for and willingness to participate in authorized community-based programs and rehabilitative services;

(5)    have been committed to the State Department of Corrections with a total sentence of five years or less as the first or second adult commitment for a criminal offense for which the inmate received a sentence of one year or more. The Department of Corrections shall notify victims pursuant to Article 15, Chapter 3, Title 16 as well as the sheriff's office of the place to be released before releasing inmates through any supervised furlough program. These requirements do not apply to the crimes referred to in this section."

F.    Section 24-13-720 of the 1976 Code is amended to read:

"Section 24-13-720.    Unless sentenced to life imprisonment, an inmate under the jurisdiction or control of the Department of Corrections who has not been convicted of a violent crime under the provisions of Section 16-1-60 or a 'no parole offense' as defined in Section 24-13-100 may, within six months of the expiration of his sentence, be placed with the program provided for in Section 24-13-710 and is subject to every rule, regulation, and condition of the program. Before an inmate may be released on supervised furlough, the inmate must agree in writing to be subject to search or seizure, with or without a search warrant, with or without cause, of the inmate's person, any vehicle the inmate owns or drives, and any of the inmate's possessions by: (1) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (2) any other law enforcement officer. The residence of the inmate shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions, and the inmate must agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions. An inmate must not be granted supervised furlough if he fails to comply with this provision.

The conditions for participation must include the requirement that the offender must permit the search or seizure, with or without a search warrant, with or without cause, of the inmate's person, any vehicle the inmate owns or drives, and any of the inmate's possessions by: (1) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (2) any other law enforcement officer. An inmate must also agree that his residence shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions, and he must agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions.

By enacting this provision, the General Assembly intends to provide law enforcement with a means of reducing recidivism and does not authorize law enforcement officers to conduct searches for the sole purpose of harassment. A law enforcement officer conducting a search or seizure without a warrant pursuant to this section shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant shall be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation.    

No inmate otherwise eligible under the provisions of this section for placement with the program may be so placed unless he has qualified under the selection criteria and process authorized by the provisions of Section 24-13-710. He must also have maintained a clear disciplinary record for at least six months prior to eligibility for placement with the program."

G.    Subsections (D) and (E) of Section 24-13-1330 of the 1976 Code are amended to read:

"(D)    An applicant may not participate in a program unless he agrees to be bound by all of its terms and conditions and indicates this agreement by signing the following:

'I accept the foregoing program and agree to be bound by its terms and conditions. I understand that my participation in the program is a privilege that may be revoked at the sole discretion of the director. I understand that I shall complete the entire program successfully to obtain a certificate of earned eligibility upon the completion of the program, and if I do not complete the program successfully, for any reason, I will be transferred to a nonshock incarceration correctional facility to continue service of my sentence.'

Before an inmate may be released on parole, the inmate must agree in writing to be subject to search or seizure, with or without a search warrant, with or without cause, of the inmate's person, any vehicle the inmate owns or drives, and any of the inmate's possessions by: (1) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (2) any other law enforcement officer. The residence of a shock incarceration inmate shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions, and he must also agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions. A shock incarceration inmate must not be granted parole release by the department if he fails to comply with this provision.

A law enforcement officer conducting a search or seizure without a warrant pursuant to this section shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant shall be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation.    

(E)    An inmate who has completed a shock incarceration program successfully is eligible to receive a certificate of earned eligibility and must be granted parole release if the inmate has executed the agreements described in subsection (D) of this section. The conditions of parole must include the requirement that the parolee must permit the search or seizure, with or without a search warrant, with or without cause, of the parolee's person, any vehicle the parolee owns or drives, and any of the parolee's possessions by: (1) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (2) any other law enforcement officer. The residence of the parolee shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions, and he must also agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions.

By enacting this provision, the General Assembly intends to provide law enforcement with a means of reducing recidivism and does not authorize law enforcement officers to conduct searches for the sole purpose of harassment. A law enforcement officer conducting a search or seizure without a warrant pursuant to this section shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant shall be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation."

H.    Section 24-21-410 of the 1976 Code is amended to read:

"Section 24-21-410.    After conviction or plea for any offense, except a crime punishable by death or life imprisonment, the judge of a court of record with criminal jurisdiction at the time of sentence may suspend the imposition or the execution of a sentence and place the defendant on probation or may impose a fine and also place the defendant on probation. Probation is a form of clemency. Before a defendant may be placed on probation, he must agree in writing to be subject to a search or seizure, with or without a search warrant, based on reasonable suspicions of the defendant's person, any vehicle the defendant owns or drives, and any of the defendant's possessions by: (1) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (2) any other law enforcement officer. The residence of the defendant shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions, and he must also agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions. A defendant must not be placed on probation by the court if he fails to comply with this provision and instead shall be required to serve the suspended portion of the defendant's sentence.

A law enforcement officer conducting a search or seizure without a warrant pursuant to this section shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant shall be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation."

I.        The first unnumbered paragraph of Section 24-21-430 of the 1976 Code is amended to read:

"Section 24-21-430.    The court may impose by order duly entered and may at any time modify the conditions of probation and may include among them any of the following or any other condition not prohibited in this section; however, the conditions imposed must include the requirement that the probationer must permit the search or seizure, with or without a search warrant, based on reasonable suspicions of the probationer's person, any vehicle the probationer owns or drives, and any of the probationer's possessions by: (1) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (2) any other law enforcement officer. The residence of the probationer shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions, and the probationer must also agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions.

By enacting this provision, the General Assembly intends to provide law enforcement with a means of reducing recidivism and does not authorize law enforcement officers to conduct searches for the sole purpose of harassment. A law enforcement officer conducting a search or seizure without a warrant pursuant to this section shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant shall be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation.

To effectively supervise probationers, the director shall develop policies and procedures for imposing conditions of supervision on probationers. These conditions may enhance but must not diminish court imposed conditions."

J.    Section 24-21-560(B) of the 1976 Code is amended to read:

"(B)    A community supervision program operated by the Department of Probation, Parole, and Pardon Services must last no more than two continuous years. The period of time a prisoner is required to participate in a community supervision program and the individual terms and conditions of a prisoner's participation shall be at the discretion of the department based upon guidelines developed by the director; however, the conditions of participation must include the requirement that the offender must permit the search or seizure, with or without a search warrant, with or without cause, of the offender's person, any vehicle the offender owns or drives, and any of the offender's possessions by: (1) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (2) any other law enforcement officer. The residence of the offender shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions, and the offender must also agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions.

By enacting this provision, the General Assembly intends to provide law enforcement with a means of reducing recidivism and does not authorize law enforcement officers to conduct searches for the sole purpose of harassment. A law enforcement officer conducting a search or seizure without a warrant pursuant to this subsection shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant shall be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation.

A prisoner participating in a community supervision program must be supervised by a probation agent of the department. The department must determine when a prisoner completes a community supervision program, violates a term of community supervision, fails to participate in a program satisfactorily, or whether a prisoner should appear before the court for revocation of the community supervision program."

K.    Section 24-21-640 of the 1976 Code is amended to read:

"Section 24-21-640.    The board must carefully consider the record of the prisoner before, during, and after imprisonment, and no such prisoner may be paroled until it appears to the satisfaction of the board: that the prisoner has shown a disposition to reform; that, in the future he will probably obey the law and lead a correct life; that by his conduct he has merited a lessening of the rigors of his imprisonment; that the interest of society will not be impaired thereby; and, that suitable employment has been secured for him.

Before an inmate may be released on parole, he must agree in writing to be subject to search or seizure, with or without a search warrant, with or without cause, of the inmate's person, any vehicle the inmate owns or drives, and any of the inmate's possessions by: (1) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (2) any other law enforcement officer. The residence of the inmate shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions, and he must also agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions. An inmate must not be granted parole release by the board if he fails to comply with this provision.

A law enforcement officer conducting a search or seizure without a warrant pursuant to this section shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant shall be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation.

The board must establish written, specific criteria for the granting of parole and provisional parole. This criteria must reflect all of the aspects of this section and include a review of a prisoner's disciplinary and other records. The criteria must be made available to all prisoners at the time of their incarceration and the general public. The paroled prisoner must, as often as may be required, render a written report to the board giving that information as may be required by the board which must be confirmed by the person in whose employment the prisoner may be at the time. The board must not grant parole nor is parole authorized to any prisoner serving a sentence for a second or subsequent conviction, following a separate sentencing for a prior conviction, for violent crimes as defined in Section 16-1-60. Provided that where more than one included offense shall be committed within a one-day period or pursuant to one continuous course of conduct, such multiple offenses must be treated for purposes of this section as one offense.

Any part or all of a prisoner's in-prison disciplinary records and, with the prisoner's consent, records involving all awards, honors, earned work credits and educational credits, are subject to the Freedom of Information Act as contained in Chapter 4 of Title 30."

L.        Section 24-21-645 of the 1976 Code is amended to read:

"Section 24-21-645.    The board may issue an order authorizing the parole which must be signed either by a majority of its members or by all three members meeting as a parole panel on the case ninety days prior to the effective date of the parole; however, at least two-thirds of the members of the board must authorize and sign orders authorizing parole for persons convicted of a violent crime as defined in Section 16-1-60. A provisional parole order shall include the terms and conditions, if any, to be met by the prisoner during the provisional period and terms and conditions, if any, to be met upon parole.

The conditions of parole must include the requirement that the parolee must permit the search or seizure, with or without a search warrant, with or without cause, of the parolee's person, any vehicle the parolee owns or drives, and any of the parolee's possessions by: (1) any probation agent employed by the Department of Probation, Parole and Pardon Services; or (2) any other law enforcement officer. The residence of the parolee shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions, and he must also agree in writing that he shall notify the owner of the dwelling where he resides that it shall be subject to search or seizure, with or without a search warrant, based on reasonable suspicions.

By enacting this provision, the General Assembly intends to provide law enforcement with a means of reducing recidivism and does not authorize law enforcement officers to conduct searches for the sole purpose of harassment. A law enforcement officer conducting a search or seizure without a warrant pursuant to this section shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant shall be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation.

Upon satisfactory completion of the provisional period, the director or one lawfully acting for him must issue an order which, if accepted by the prisoner, shall provide for his release from custody. However, upon a negative determination of parole, prisoners in confinement for a violent crime as defined in Section 16-1-60 must have their cases reviewed every two years for the purpose of a determination of parole, except that prisoners who are eligible for parole pursuant to Section 16-25-90, and who are subsequently denied parole must have their cases reviewed every twelve months for the purpose of a determination of parole. This section applies retroactively to a prisoner who has had a parole hearing pursuant to Section 16-25-90 prior to the effective date of this act."

M.    This SECTION takes effect upon approval by the Governor.

SECTION    4.    A.    This SECTION may be cited as the "South Carolina Teacher Protection Act of 2007".

B.    Chapter 25, Title 59 of the 1976 Code is amended by adding:

"Section 59-25-900.    (A)    As used in this section:

(1)    'Teacher' means a:

(a)    licensed teacher, principal, administrator, home school educator, or other educational professional who works on school grounds;

(b)    professional or non-professional employee who works on school grounds and has responsibility for maintaining order, discipline, or ensuring safety; or

(c)    school employee who, in an emergency, is called upon to maintain order, discipline, or to ensure safety.

(2)    'School' means a public or private kindergarten, a public or private elementary school, a public or private middle school or junior high, a public or private high school, a secondary school, an adult education school, a home school that includes students not related by blood to the operator, a public or private college or university, and any vocational, technical, or occupational school.

(3)    'Student' means a person:

(a)    enrolled in a school, whether the person is suspended or not suspended; or

(b)    expelled from a school within one year of enrollment.

(B)    In addition to the protections granted under the South Carolina Tort Claims Act, no teacher has civil liability to a student or to a party acting in the interest of a student for an act or omission by the teacher if the:

(1)    teacher was acting within the scope of the teacher's employment;

(2)    actions of the teacher violated no state, local, or federal law including regulations set forth by the individual district or school;

(3)    acts or omissions were not the result of wilful or intentional conduct or gross negligence;

(4)    acts or omissions were not the result of the teacher operating a motor vehicle or watercraft; and

(5)    actions of the teacher do not constitute a violation of the student's civil rights.

(C)    This section does not affect the provisions of the South Carolina Tort Claims Act."

C.    Section 16-3-612 of the 1976 Code is amended to read:

"Section 16-3-612.    (A)    For purposes of this section:

(1)    'Student' means a person currently:

(a)    enrolled in any a school, whether the person is suspended or not suspended; or

(b)    expelled from a school within one year of enrollment.

(2)    'School' includes, but is not limited to, means a public or private kindergarten, a public or private elementary school that contains any grades of kindergarten through twelfth grade, a public or private middle school or junior high, a public or private high school, a secondary school, an adult education school, a home school that includes students not related by blood to the operator, a public or private colleges, universities college or university, and any vocational, technical, or occupational school.

(3)    'Person affiliated with a school in an official capacity' includes, but is not limited to, administrators, teachers, faculty, substitute teachers, teachers' assistants, student teachers, custodial staff, food service staff, volunteers, law enforcement officers, school bus drivers, school crossing guards, or other regularly assigned school-contracted persons.

(B)    A student who commits an assault and battery, other than one that is aggravated, on school grounds or at a school-sponsored event against any person affiliated with the school in an official capacity including, but not limited to, administrators, teachers, faculty, substitute teachers, teachers' assistants, student teachers, custodial staff, food service staff, volunteers, law enforcement officers, school bus drivers, school crossing guards, or other regularly assigned school-contracted persons is guilty of assault and battery against school personnel which is a misdemeanor and, upon conviction, must be fined not more than one thousand dollars, or imprisoned not more than one year, or both. A student who commits simple assault and battery against a person affiliated with a school in an official capacity when the offense occurs on school grounds or at a school-related event, or when the offense is directly related to the school official's professional responsibilities, is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than thirty days, or both.

(C)    A student who commits assault and battery, other than one that is aggravated, against a person affiliated with a school in an official capacity when the offense occurs on school grounds or at a school-related event, or when the offense is directly related to the school official's professional responsibilities, is guilty of a misdemeanor and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than one year, or both.

(D)    A student who commits assault and battery of a high and aggravated nature against a person affiliated with a school in an official capacity when the offense occurs on school grounds or at a school-related event, or when the offense is directly related to the school official's professional responsibilities, is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than ten years, or both. A person is guilty of assault and battery of a high and aggravated nature pursuant to the provisions of this subsection if 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.

(E)    Sentencing pursuant to this section must comply with the requirements of Article 15, Chapter 3, Title 16.

(F)    A person affiliated with a school in an official capacity who is:

(1)    the victim of a violation of this section for which a student was convicted, adjudicated delinquent, or pled guilty or nolo contendere; and

(2)    injured as a result of the violation of this section to the extent that his injury prevents him from returning to his former position within the school district, must be allowed to continue to participate in all retirement, insurance, and deferred compensation programs he was enrolled in at the time of the injury. The district shall continue to make the employer contributions on behalf of the injured school official.

(G)    If a school official reports an incident pursuant to this section to any school principal, vice principal, assistant principal, or other school administrator, the school administrator shall report the incident to law enforcement for investigation."

D.    This SECTION takes effect upon approval by the Governor.

SECTION    5.        A.    Title 17 of the 1976 Code is amended by adding:

Section 17-28-10.    This article may be cited as the 'Access to Justice Post-Conviction DNA Testing Act'.

Section 17-28-20.    For purposes of this article:

(1)    'Biological material' means any blood, tissue, hair, saliva, bone, or semen from which DNA marker groupings may be obtained. This includes material catalogued separately on slides, swabs, or test tubes or present on other evidence including, but not limited to, clothing, ligatures, bedding, other household material, drinking cups, or cigarettes.

(2)    'Custodian of evidence' means an agency or political subdivision of the State including, but not limited to, a law enforcement agency, a solicitor's office, the Attorney General's Office, a county clerk of court, or a state grand jury that possesses and is responsible for the control of evidence during a criminal investigation or proceeding, or a person ordered by a court to take custody of evidence during a criminal investigation or proceeding.

(3)    'DNA' means deoxyribonucleic acid.

(4)    'DNA profile' means the results of any testing performed on a DNA sample.

(5)    'DNA record' means the tissue or saliva samples and the results of the testing performed on the samples.

(6)    'DNA sample' means the tissue, saliva, blood, or any other bodily fluid taken at the time of arrest from which identifiable information can be obtained.

(7)    'Incarceration' means serving a term of confinement in the custody of the South Carolina Department of Corrections or the South Carolina Department of Juvenile Justice and does not include a person on probation, parole, or under a community supervision program.

(8)    'Law enforcement agency' means a lawfully established federal, state, or local public agency that is responsible for the prevention and detection of crime and the enforcement of penal, traffic, regulatory, game, immigration, postal, customs, or controlled substances laws.

(9)    'Physical evidence' means an object, thing, or substance that is or is about to be produced or used or has been produced or used in a criminal proceeding related to an offense enumerated in Section 17-28-30, and that is in the possession of a custodian of evidence.

Section 17-28-30.    (A)    A person who pled not guilty to at least one of the following offenses, was subsequently convicted of or adjudicated delinquent for the offense, is currently incarcerated for the offense, and asserts he is innocent of the offense may apply for forensic DNA testing of his DNA and any physical evidence or biological material related to his conviction or adjudication:

(1)    murder (Section 16-3-10);

(2)    killing by poison (Section 16-3-30);

(3)    killing by stabbing or thrusting (Section 16-3-40);

(4)    voluntary manslaughter (Section 16-3-50);

(5)    homicide by child abuse (Section 16-3-85(A)(1));

(6)    aiding and abetting a homicide by child abuse (Section 16-3-85(A)(2));

(7)    lynching in the first degree (Section 16-3-210);

(8)    killing in a duel (Section 16-3-430);

(9)    spousal sexual battery (Section 16-3-615);

(10)    criminal sexual conduct in the first degree (Section 16-3-652);

(11)    criminal sexual conduct in the second degree (Section 16-3-653);

(12)    criminal sexual conduct in the third degree (Section 16-3-654);

(13)    criminal sexual conduct with a minor (Section 16-3-655);

(14)    arson in the first degree resulting in death (Section 16-11-110(A));

(15)    burglary in the first degree for which the person is sentenced to ten years or more (Section 16-11-311(B));

(16)    armed robbery for which the person is sentenced to ten years or more (Section 16-11-330(A));

(17)    damaging or destroying a building, vehicle, or property by means of an explosive incendiary resulting in death (Section 16-11-540);

(18)    abuse or neglect of a vulnerable adult resulting in death (Section 43-35-85(F));

(19)    sexual misconduct with an inmate, patient, or offender (Section 44-23-1150);

(20)    unlawful removing or damaging of an airport facility or equipment resulting in death (Section 55-1-30(3));

(21)    interference with traffic-control devices or railroad signs or signals resulting in death (Section 56-5-1030(B)(3));

(22)    driving a motor vehicle under the influence of alcohol or drugs resulting in death (Section 56-5-2945);

(23)    obstruction of railroad resulting in death (Section 58-17-4090); or

(24)    accessory before the fact (Section 16-1-40) to any offense enumerated in this subsection.

(B)    A person who pled guilty or nolo contendere to at least one of the offenses enumerated in subsection (A), was subsequently convicted of or adjudicated delinquent for the offense, is currently incarcerated for the offense, and asserts he is innocent of the offense may apply for forensic DNA testing of his DNA and any physical evidence or biological material related to his conviction or adjudication no later than seven years from the date of sentencing.

Section 17-28-40.    (A)    The application must be made on such form as prescribed by the Supreme Court.

(B)    The application must be verified by the applicant and filed under the original indictment number or petition with the clerk of court of the general sessions court or family court in which the conviction or adjudication took place. Facts within the personal knowledge of the applicant and the authenticity of all documents and exhibits included in or attached to the application must be sworn to affirmatively as true and correct.

(C)    The application must, under penalty of perjury:

(1)    identify the proceedings in which the applicant was convicted or adjudicated;

(2)    give the date of the entry of the judgment and sentence and identify the applicant's current place of incarceration;

(3)    identify all previous or ongoing proceedings, together with the grounds therein asserted, taken by the applicant to secure relief from his conviction or adjudication;

(4)    make a reasonable attempt to identify the physical evidence or biological material that should be tested and the specific type of DNA testing that is sought;

(5)    explain why the identity of the applicant was or should have been a significant issue during the original court proceedings, notwithstanding the fact that the applicant may have pled guilty or nolo contendere or made or is alleged to have made an incriminating statement or admission as to identity;

(6)    explain why the physical evidence or biological material sought to be tested was not previously subjected to DNA testing, or, if the physical evidence or biological material sought to be tested was previously subjected to DNA testing, provide the results of the testing and explain how the requested DNA test would provide a substantially more probative result;

(7)    explain why if the DNA testing produces exculpatory results, the testing will constitute new evidence that will probably change the result of the applicant's conviction or adjudication if a new trial is granted and is not merely cumulative or impeaching; and

(8)    provide that the application is made to demonstrate innocence and not solely to delay the execution of a sentence or the administration of justice.

Section 17-28-50.    (A)    The clerk shall file the application upon its receipt and promptly bring it to the attention of the court and deliver for docketing a copy to the solicitor of the circuit in which the applicant was convicted or adjudicated. The Attorney General and the appropriate custodian of evidence shall be notified by the solicitor. The victim shall be notified pursuant to the provisions of Article 15, Chapter 3, Title 16.

(B)    Within ninety days after the forwarding of the application, or upon any further time the court may fix, the solicitor of the circuit in which the applicant was convicted or adjudicated, or the Attorney General if the Attorney General prosecuted the case, shall respond to the application. Within ninety days after the docketing of the application, or within any further time the court may fix, the victim may respond as provided in Article 15, Chapter 3, Title 16. The court may proceed with a hearing if the solicitor or Attorney General, as applicable, or the victim does not respond to the application.

(C)    At any time prior to entry of judgment the court may, when appropriate, issue orders for amendment of the application and for any documents related to the application including, but not limited to, pleadings, motions, and requests for extensions of time. In considering the application and related documents, the court shall take account of substance, regardless of defects of form. When the court is satisfied, on the basis of the application, the responses, or the motion of the solicitor or Attorney General, as applicable, that the applicant is not entitled to DNA testing and no purpose would be served by any further proceedings, it may indicate to the applicant and the solicitor or Attorney General, as applicable, its intention to summarily dismiss the application and its reasons for so doing. The victim shall be notified of the proposed dismissal pursuant to the provisions of Article 15, Chapter 3, Title 16. The court shall make specific findings of fact and expressly state its conclusions of law. The applicant shall be given an opportunity to reply to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed, grant leave to file an amended application, or direct that the proceedings otherwise continue.

(D)    If the applicant has filed a previous application for DNA testing, the applicant may file a successive application, provided the applicant asserts a grounds for DNA testing which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.

Section 17-28-60.    If the applicant is unable to pay court costs and expenses of counsel, these costs and expenses shall be made available to the applicant in amounts and to the extent provided pursuant to Section 17-27-60. The applicant must request counsel at the time he files his application. The court must appoint counsel for an indigent applicant after the court has determined that the application is sufficient to proceed to a hearing but prior to the actual hearing. If counsel has been appointed for the applicant in an ongoing post-conviction relief proceeding, then the counsel appointed in the post-conviction relief proceeding shall also serve as counsel for purposes of this article. The performance of counsel pursuant to this article shall not form the basis for relief in any post-conviction relief proceeding.

Section 17-28-70.    (A)    The court shall order a custodian of evidence to preserve all physical evidence and biological material related to the applicant's conviction or adjudication pursuant to the provisions of Article 3, Chapter 28, Title 17.

(B)    The custodian of evidence shall prepare an inventory of the physical evidence and biological material and issue a copy of the inventory to the applicant, the solicitor or Attorney General, as applicable, and the court.

(C)    For physical evidence or biological material that the custodian of evidence asserts has been lost or destroyed, the court shall order a custodian of evidence to locate and provide the applicant and the solicitor or Attorney General, as applicable, with a copy of any document, note, log, or report relating to the physical evidence or biological material.

(D)    If no physical evidence or biological material is discovered, the court may order a custodian of evidence, in collaboration with law enforcement, to search physical evidence and biological material in the custodian of evidence's possession that would reasonably be expected to produce relevant physical evidence or biological material. The order shall provide that any physical evidence and biological material subject to this search must be adequately protected by the custodian of evidence, in collaboration with law enforcement, from interference by a third party, including, but not limited to, alteration, contamination, destruction, or tampering with the physical evidence and biological material and any chain of custody related to the physical evidence and biological material.

(E)    A person who willfully and maliciously destroys, alters, conceals, or tampers with physical evidence or biological material that is required to be preserved pursuant to this section with the intent to impair the integrity of the physical evidence or biological material, prevent the physical evidence or biological material from being subjected to DNA testing, or prevent the production or use of the physical evidence or biological material in an official proceeding, is subject to the provisions of Section 17-28-350.

Section 17-28-80.    For any physical evidence or biological material previously subjected to DNA testing whether by the applicant or the solicitor or Attorney General, as applicable, the court shall order the production of all written reports and laboratory reports prepared in connection with the DNA testing, including the underlying data and laboratory notes.

Section 17-28-90.    (A)    The application must be heard in, and before a judge of, the general sessions court or family court in which the conviction or adjudication took place.    A record of the proceedings must be made and preserved. All rules and statutes applicable in criminal proceedings are available to the applicant and the solicitor or Attorney General, as applicable.

(B)    The court shall order DNA testing of the applicant's DNA and the physical evidence or biological material upon a finding that the applicant has established each of the following factors by a preponderance of the evidence:

(1)    the physical evidence or biological material to be tested is available and is potentially in a condition that would permit the requested DNA testing;

(2)    the physical evidence or biological material to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced, or altered in any material aspect, or the testing itself may establish the integrity of the physical evidence or biological material;

(3)    the physical evidence or biological material sought to be tested is material to the issue of the applicant's identity as the perpetrator of, or accomplice to, the offense notwithstanding the fact that the applicant may have pled guilty or nolo contendere or made or is alleged to have made an incriminating statement or admission as to identity;

(4)    the DNA results of the physical evidence or biological material sought to be tested would be material to the issue of the applicant's identity as the perpetrator of, or accomplice to, the offense notwithstanding the fact that the applicant may have pled guilty or nolo contendere or made or is alleged to have made an incriminating statement or admission as to identity;

(5)    if the requested DNA testing produces exculpatory results, the testing will constitute new evidence that will probably change the result of the applicant's conviction or adjudication if a new trial is granted and is not merely cumulative or impeaching;

(6)    the physical evidence or biological material sought to be tested was not previously subjected to DNA testing, or, if the physical evidence or biological material sought to be tested was previously subjected to DNA testing, the requested DNA test would provide a substantially more probative result; and

(7)    the application is made to demonstrate innocence and not solely to delay the execution of a sentence or the administration of justice.

(C)    The court shall order that any sample taken of the applicant's DNA for purposes of DNA testing pursuant to this article or for submission to SLED pursuant to subsection (F) be taken by a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory technician, or other appropriately trained health care worker. The applicant's counsel, if any, and the solicitor or Attorney General, as applicable, must be allowed to observe the taking of any sample.

(D)    The court shall order that the applicant's DNA sample and the physical evidence or biological material be tested by SLED, a local Combined DNA Index System (CODIS) laboratory, or, prior to any testing, any other laboratory approved by SLED, in an effort to ensure that the results may be entered into the State DNA Database and Combined DNA Index System. Any other type of DNA testing ordered by the court shall be conducted in consultation with SLED or a local CODIS laboratory.

(E)    The court shall order that the applicant pay the costs of the DNA testing. If the applicant is indigent, the costs of the DNA testing shall be paid by the State.

(F)    The court shall order that a sample of the applicant's DNA be submitted to SLED to compare with profiles in the State DNA Database and any federal or other law enforcement DNA database in compliance with National DNA Index System (NDIS) procedures. The sample must be submitted regardless of any previous samples submitted by the applicant. If the comparison matches a DNA profile for the offense for which the applicant was convicted or adjudicated, the DNA profile may be retained in the State DNA Database. If the comparison does not match a DNA profile for the offense for which the applicant was convicted or adjudicated, but results in a match with a DNA profile for any other offense, the DNA profile may be retained in the State DNA Database. SLED shall notify the appropriate law enforcement agency. If the comparison does not match a DNA profile for any offense, the DNA record must be destroyed. Any previous profiles must be maintained by SLED subject to the State DNA Database Act. SLED shall report to the court, the applicant, and the solicitor or Attorney General, as applicable, the results of all DNA database comparisons. The victim must be notified of the results of all DNA database comparisons pursuant to Article 15, Chapter 3, Title 16.

(G)    The applicant and the solicitor or Attorney General, as applicable, shall have the right to appeal a final order denying or granting DNA testing by a writ of certiorari to the Court of Appeals or the Supreme Court as provided by the South Carolina Appellate Court Rules.

Section 17-28-100.    (A)    The results of the DNA test must be fully disclosed to the court, the applicant, and the solicitor or Attorney General, as applicable. The victim shall be notified of the results of the DNA test pursuant to Article 15, Chapter 3, Title 16. The court shall order the production of any written reports and laboratory reports prepared in connection with the DNA testing, including underlying data and notes.

(B)    The results of the DNA test may be used by the applicant, solicitor, or Attorney General in any post-conviction proceeding or trial. If the results of the DNA test are exculpatory, the applicant may use the exculpatory results of the DNA test as grounds for filing a motion for new trial pursuant to the South Carolina Rules of Criminal Procedure. If the results of the DNA test are inconclusive, the court may allow for additional DNA testing or may dismiss the application. If the results of the DNA test are inculpatory, the court shall dismiss the application and shall, on motion of the solicitor or Attorney General, as applicable:

(1)    make a determination whether the applicant's assertion of actual innocence was intentionally false, and, as a result, hold the applicant in contempt of court;

(2)    assess against the applicant the cost of any DNA testing not already paid by the applicant;

(3)    forward the findings to the South Carolina Department of Corrections, who may use such finding to deny good conduct credit; and

(4)    forward the findings to the Department of Probation, Parole and Pardon Services, who may use the findings to deny parole.

(C)    Except as otherwise provided in this article, DNA records, results, and information taken from the applicant are exempt from any law requiring disclosure of information to the public.

Section 17-28-110.    (A)    Nothing in this article prohibits a person and a solicitor or the Attorney General, as applicable, from consenting to and conducting post-conviction DNA testing by agreement of the parties. The person may use the exculpatory results of the DNA test as the grounds for filing a motion for new trial pursuant to the South Carolina Rules of Criminal Procedure.

(B)    Nothing in this article prohibits a person from filing an application for post-conviction relief pursuant to Chapter 27, Title 17.

(C)    Unless there is an act of gross negligence or intentional misconduct this article may not be construed to give rise to a claim for damages against the State of South Carolina, a political subdivision of the State, or an employee of the State or a political subdivision of the State. Failure of a custodian of evidence to preserve physical evidence or biological material pursuant to this article does not entitle the applicant to any relief from conviction or adjudication but does not prohibit a person from presenting this information at a subsequent hearing or trial.

Section 17-28-120.    No more than one hundred fifty thousand dollars may be expended from the general fund in any fiscal year to administer the provisions of this article."

B.        Title 17 of the 1976 Code is amended by adding:

Section 17-28-300.    This article shall be cited as the 'Preservation of Evidence Act'.

Section 17-28-310.    (1)    'Biological material' means any blood, tissue, hair, saliva, bone, or semen from which DNA marker groupings may be obtained. This includes material catalogued separately on slides, swabs, or test tubes or present on other evidence including, but not limited to, clothing, ligatures, bedding, other household material, drinking cups, or cigarettes.

(2)    'Custodian of evidence' means an agency or political subdivision of the State including, but not limited to, a law enforcement agency, a solicitor's office, the Attorney General's Office, a county clerk of court, or a state grand jury that possesses and is responsible for the control of evidence during a criminal investigation or proceeding, or a person ordered by a court to take custody of evidence during a criminal investigation or proceeding.

(3)    'DNA' means deoxyribonucleic acid.

(4)    'DNA profile' means the results of any testing performed on a DNA sample.

(5)    'DNA record' means the tissue or saliva samples and the results of the testing performed on the samples.

(6)    'DNA sample' means the tissue, saliva, blood, or any other bodily fluid taken at the time of arrest from which identifiable information can be obtained.

(7)    'Incarceration' means serving a term of confinement in the custody of the South Carolina Department of Corrections or the South Carolina Department of Juvenile Justice and does not include a person on probation, parole, or under a community supervision program.

(8)    'Law enforcement agency' means a lawfully established federal, state, or local public agency that is responsible for the prevention and detection of crime and the enforcement of penal, traffic, regulatory, game, immigration, postal, customs, or controlled substances laws.

(9)    'Physical evidence' means an object, thing, or substance that is or is about to be produced or used or has been produced or used in a criminal proceeding related to an offense enumerated in Section 17-28-320, and that is in the possession of a custodian of evidence.

Section 17-28-320.    (A)    A custodian of evidence must preserve all physical evidence and biological material related to the conviction or adjudication of a person for at least one of the following offenses:

(1)    murder (Section 16-3-10);

(2)    killing by poison (Section 16-3-30);

(3)    killing by stabbing or thrusting (Section 16-3-40);

(4)    voluntary manslaughter (Section 16-3-50);

(5)    homicide by child abuse (Section 16-3-85(A)(1));

(6)    aiding and abetting a homicide by child abuse (Section 16-3-85(A)(2));

(7)    lynching in the first degree (Section 16-3-210);

(8)    killing in a duel (Section 16-3-430);

(9)    spousal sexual battery (Section 16-3-615);

(10)    criminal sexual conduct in the first degree (Section 16-3-652);

(11)    criminal sexual conduct in the second degree (Section 16-3-653);

(12)    criminal sexual conduct in the third degree (Section 16-3-654);

(13)    criminal sexual conduct with a minor (Section 16-3-655);

(14)    arson in the first degree resulting in death (Section 16-11-110(A));

(15)    burglary in the first degree for which the person is sentenced to ten years or more (Section 16-11-311(B));

(16)    armed robbery for which the person is sentenced to ten years or more (Section 16-11-330(A));

(17)    damaging or destroying a building, vehicle, or property by means of an explosive incendiary resulting in death (Section 16-11-540);

(18)    abuse or neglect of a vulnerable adult resulting in death (Section 43-35-85(F));

(19)    sexual misconduct with an inmate, patient, or offender (Section 44-23-1150);

(20)    unlawful removing or damaging of an airport facility or equipment resulting in death (Section 55-1-30(3));

(21)    interference with traffic-control devices or railroad signs or signals resulting in death (Section 56-5-1030(B)(3));

(22)    driving a motor vehicle under the influence of alcohol or drugs resulting in death (Section 56-5-2945);

(23)    obstruction of railroad resulting in death (Section 58-17-4090); or

(24)    accessory before the fact (Section 16-1-40) to any offense enumerated in this subsection.

(B)    The physical evidence and biological material must be preserved:

(1)    subject to a chain of custody as required by South Carolina law;

(2)    with sufficient documentation to locate the physical evidence and biological material; and

(3)    under conditions reasonably designed to preserve the forensic value of the physical evidence and biological material.

(C)    The physical evidence and biological material must be preserved until the person is released from incarceration, dies while incarcerated, or is executed for the offense enumerated in subsection (A). However, if the person is convicted or adjudicated on a guilty or nolo contendere plea for the offense enumerated in subsection (A), the physical evidence and biological material must be preserved for seven years from the date of sentencing, or until the person is released from incarceration, dies while incarcerated, or is executed for the offense enumerated in subsection (A), whichever comes first.

Section 17-28-330.    (A)    After a person is convicted or adjudicated for at least one of the offenses enumerated in Section 17-28-320, a custodian of evidence shall register with the South Carolina Department of Corrections or the South Carolina Department of Juvenile Justice, as applicable, as a custodian of evidence for physical evidence or biological material related to the person's conviction or adjudication.

(B)    The South Carolina Department of Corrections or the South Carolina Department of Juvenile Justice, as applicable, shall notify a custodian of evidence registered pursuant to subsection (A) if the person is released from incarceration, dies while incarcerated, or is executed for the offense enumerated in Section 17-28-320.

Section 17-28-340.    (A)    After a person is convicted or adjudicated for at least one of the offenses enumerated in Section 17-28-320, a custodian of evidence may petition the general sessions court or family court in which the person was convicted or adjudicated for an order allowing for disposition of the physical evidence or biological material prior to the period of time described in Section 17-28-320 if:

(1)    the physical evidence or biological material must be returned to its rightful owner, is of such size, bulk, or physical character as to make retention impracticable, or is otherwise required to be disposed of by law; or

(2)    DNA evidence was previously introduced at trial, was found to be inculpatory, and all appeals and post-conviction procedures have been exhausted.

(B)    The petition must:

(1)    be made on such form as prescribed by the Supreme Court;

(2)    identify the proceedings in which the person was convicted or adjudicated;

(3)    give the date of the entry of the judgment and sentence;

(4)    specifically set forth the physical evidence or biological material to be disposed of; and

(5)    specifically set forth the reason for the disposition.

(C)    The clerk of court shall file the petition upon its receipt and promptly bring it to the attention of the court and deliver a copy to the convicted or adjudicated person and the solicitor or Attorney General, as applicable. The victim shall be notified of the petition pursuant to Article 15, Chapter 3, Title 16.

(D)    The convicted or adjudicated person and the solicitor or Attorney General, as applicable, shall have one hundred and eighty days to respond to the petition. The victim may respond within one hundred and eighty days in accordance with the provisions of Article 15, Chapter 3, Title 16.

(E)    After a hearing, the court may order that the custodian of evidence may dispose of the physical evidence or biological material if the court determines by preponderance of evidence that:

(1)    the physical evidence or biological material must be returned to its rightful owner, is of such size, bulk, or physical character as to make retention impracticable, or is otherwise required to be disposed of by law, or DNA evidence was previously introduced at trial, was found to be inculpatory, and all appeals and post-conviction procedures have been exhausted;

(2)    the convicted or adjudicated person, the solicitor or Attorney General, as applicable, and the victim have been notified of the petition for an order to dispose of the physical evidence or biological material;

(3)    the convicted or adjudicated person did not file an affidavit declaring, under penalty of perjury, the person's intent to file an application for post-conviction DNA testing of the physical evidence or biological material pursuant to Article 1, Chapter 28, Title 17 within ninety days followed by the actual filing of the application;

(4)    the solicitor or the Attorney General, as applicable, and the victim have not filed a response requesting that the physical evidence or biological material not be disposed of; and

(5)    no other provision of federal or state law, regulation, or court rule requires preservation of the physical evidence or biological material.

(F)    If the court issues an order for the disposition of the physical evidence or biological material, the court may require a custodian of evidence to take reasonable measures to remove and preserve portions of the physical evidence or biological material in a quantity sufficient to:

(1)    permit future DNA testing or other scientific analysis; or

(2)    for other reasons, upon request and good cause shown, by the solicitor or Attorney General, as applicable, or the victim.

Section 17-28-350.    A person who wilfully and maliciously destroys, alters, conceals, or tampers with physical evidence or biological material that is required to be preserved pursuant to this article with the intent to impair the integrity of the physical evidence or biological material, prevent the physical evidence or biological material from being subjected to DNA testing, or prevent the production or use of the physical evidence or biological material in an official proceeding, is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars for a first offense, and not more than five thousand dollars or imprisoned for not more than one year, or both, for each subsequent violation.

Section 17-28-360.    Unless there is an act of gross negligence or intentional misconduct this article may not be construed to give rise to a claim for damages against the State of South Carolina, a political subdivision of the State, an employee of the State, or a political subdivision of the State. Failure of a custodian of evidence to preserve physical evidence or biological material pursuant to this article does not entitle a person to any relief from conviction or adjudication but does not prohibit a person from presenting this information at a subsequent hearing or trial."

C.        The provisions of Section 17-28-350 become effective upon the signature of the Governor. All other provisions in this SECTION become effective January 1, 2009. The enactment of these provisions prior to the effective date indicates the intent of the General Assembly that statewide laws or practices shall exist to ensure additional procedures for post-conviction DNA testing, and proper preservation of biological evidence connected to murder, rape, and non-negligent homicide in order that application for available federal funds shall be made by the appropriate agencies and considered by the appropriate federal agencies prior to the effective date.

SECTION    5.        A.        This SECTION may be referred to and cited as the "Unidentified Human Remains DNA Database Act".

B.    Article 9, Chapter 3, Title 23 of the 1976 Code is amended by adding:

"Section 23-3-625.    Family members of a missing person may submit DNA samples to the State Law Enforcement Division (SLED). If the person is missing thirty days after a missing person report has been submitted to the Missing Person Information Center, SLED must conduct DNA identification, typing, and testing on the family members' samples. SLED may, within its discretion, conduct DNA identification, typing, and testing on the family members' samples prior to thirty days if SLED determines that such DNA identification, typing, and testing is necessary. If SLED does not have the technology necessary for a particular method of DNA identification, typing, or testing, SLED may submit the DNA samples to a Combined DNA Indexing System (CODIS) laboratory that has the appropriate technology. The results of the identification, typing, and testing must be entered into CODIS."

C.    Article 9, Chapter 3, Title 23 of the 1976 Code is amended by adding:

"Section 23-3-635.    Upon notification by the Medical University of South Carolina or other facility preserving the body of an unidentified person that the body remains unidentified after thirty days, the State Law Enforcement Division (SLED) must conduct DNA identification, typing, and testing of the unidentified person's tissue and fluid samples provided to SLED pursuant to Section 17-7-25. SLED may, within its discretion, conduct DNA identification, typing, and testing of the unidentified person's tissue and fluid samples prior to thirty days if SLED determines that such DNA identification, typing, and testing is necessary. The results of the identification, typing, and testing must be entered into the Combined DNA Indexing System."

D.    Article 1, Chapter 7, Title 17 of the 1976 Code is amended by adding:

"Section 17-7-25.    A coroner performing an autopsy on an unidentified body must obtain tissue and fluid samples suitable for DNA identification, typing, and testing. The samples must be transmitted to the State Law Enforcement Division."

E.        Section 17-5-570(B) of the 1976 Code is amended to read:

"(B)    If the body cannot be identified through reasonable efforts, the coroner must forward the body to the Medical University of South Carolina or other suitable facility for preservation. The body must be preserved for not less than thirty days, unless the body is identified within that time. If the body remains unidentified thirty days after the coroner forwarded the body, the Medical University of South Carolina or other facility preserving the body must immediately notify the State Law Enforcement Division (SLED). If the body has not been identified at the end of that time within thirty days after SLED has entered the unidentified person's DNA profile into the Combined DNA Indexing System pursuant to Section 23-3-635, the Medical University may retain possession of the body for its use and benefit or return the body to the coroner of the county where death occurred for disposition as provided by law. A facility other than the Medical University utilized by the coroner for storage of an unidentified body may dispose of the body as provided by law or return the body to the coroner of the county where death occurred for disposition."

F.        The provisions of this SECTION take effect upon approval by the Governor.

SECTION    6.    Article 7, Chapter 11, Title 16 of the 1976 Code is amended by adding:

"Section 16-11-745.    (A)    For purposes of this section:

(1)    'Communication device' means a telegraph, telephone, satellite phone, global positioning system, pager, hand-held radio, two-way communication device, beeper, fax machine, computer keyboard, computer, monitor, printer, wireless router, telephone lines, satellite dish, a sound, light or signal receiver, or transmitting device, cable television equipment, or another piece of electronic or associated equipment designed or intended to be used to allow one person to communicate with another person. 'Communication device' does not mean a cellular or mobile telephone.

(2)    'Communication system' means a telegraph system, a telephone system, a global positioning system, a cable television system, a satellite dish system, an electric utility system, a security system, including a video security system, a computer or electronic mail system, including the Internet or equipment to connect to the Internet, poles, cables, wires, fixtures, antennas, amplifiers, or other apparatus, equipment, or appliances designed or intended to be used to allow one person to communicate with another person, or to send, receive, use, store, or record a message, signal, light, sound, image, or electrical energy.

(B)    It is unlawful for a person, with the intent to commit a criminal offense or with the intent to facilitate the commission of a criminal offense, to interrupt, cut, break, disable, destroy, or in another way injure a communication device, a communication system, or any piece, part, or component of a communication device or system.

(C)    It is unlawful for a person, with the intent to commit a criminal offense or with the intent to facilitate the commission of a criminal offense, to obstruct, impede, or impair the service or transmission of a communication device or communication system during the commission of a crime, or to facilitate the commission of a criminal offense.

(D)    Except as provided in Section 16-11-740 and subsection (E) of this section, a person who violates a provision of this section with the intent to commit or to facilitate the commission of a crime classified as a misdemeanor is guilty of a misdemeanor and, upon conviction, must be fined not less than one thousand dollars nor more than five thousand dollars or imprisoned for not more than three years, or both.

(E)    A person who violates a provision of this section with the intent to commit or to facilitate the commission of a crime classified as a felony or in which the damage to property protected by this section exceeds five thousand dollars, is guilty of a felony and, upon conviction, must be fined not less than three thousand dollars nor more than twenty-five thousand dollars or imprisoned for not more than ten years, or both.

(F)    In addition to the criminal penalties provided in this section, a sentencing court may order a person convicted of a violation of this section to pay restitution to the owner of the property damaged or destroyed in the amount of the actual damages sustained."

SECTION    7.        The repeal or amendment by the provisions of this act or 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    8.        If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION    9.        Except as otherwise provided in this act, the provisions of this act become effective upon approval of the Governor.

This web page was last updated on Monday, October 10, 2011 at 1:32 P.M.