Current Status Bill Number:174 Ratification Number:528 Act Number:434 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19970115 Primary Sponsor:Giese All Sponsors:Giese Drafted Document Number:jic\5269htc.97 Date Bill Passed both Bodies:19980616 Date of Last Amendment:19980616 Governor's Action:S Date of Governor's Action:19980629 Subject:DUI, minor under twenty-one drivers license suspension when certain blood alcohol content; motor vehicle, transportation
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
------ 19980629 Signed by Governor
------ 19980617 Ratified R528
House 19980616 Ordered enrolled for ratification
House 19980616 Free Conference Committee Report 99 HFCC
adopted
House 19980604 Free Conference Powers granted, 99 HFCC Jennings
appointed Reps. to Committee of Simrill
Free Conference Maddox
House 19980604 Free Conference powers rejected
Senate 19980604 Free Conference Committee Report 89 SFCC
adopted
Senate 19980604 Free Conference Powers granted, 89 SFCC Hayes
appointed Senators to Committee Hutto
of Free Conference Jackson
House 19980602 Conference powers granted, 98 HCC Jennings
appointed Reps. to Committee of Simrill
Conference Maddox
Senate 19980602 Conference powers granted, 88 SCC Hutto
appointed Senators to Committee Hayes
of Conference Jackson
Senate 19980602 Insists upon amendment
House 19980602 Non-concurrence in Senate amendment
Senate 19980527 House amendments amended,
returned to House with amendment
House 19980521 Read third time, returned to Senate
with amendment
House 19980520 Amended, read second time
House 19980514 Debate adjourned until
Tuesday, 19980519
House 19980507 Debate adjourned until
Tuesday, 19980512
House 19980506 Debate adjourned until
Thursday, 19980507
House 19980429 Debate adjourned until
Thursday, 19980430
House 19980429 Request for debate by Representative Harrison
Klauber
Fleming
Hawkins
Leach
Altman
Witherspoon
Jennings
Mason
Knotts
Whatley
Hinson
J. Brown
House 19980423 Committee report: Favorable with 25 HJ
amendment
House 19970522 Introduced, read first time, 25 HJ
referred to Committee
Senate 19970521 Amended, read third time,
sent to House
Senate 19970520 Debate interrupted by adjournment
Senate 19970515 Amended
Senate 19970515 Committee amendment amended and adopted
Senate 19970514 Debate interrupted by adjournment
Senate 19970514 Committee amendment amended
Senate 19970513 Debate interrupted by adjournment
Senate 19970513 Committee amendment amended
Senate 19970430 Made Special Order
Senate 19970429 Read second time, ordered to
third reading with notice of
general amendments, carrying
over all amendments to third
reading
Senate 19970417 Made Special Order
Senate 19970408 Debate interrupted by adjournment
Senate 19970408 Committee amendment amended
Senate 19970402 Committee amendment amended
Senate 19970401 Committee report: Favorable with 11 SJ
amendment
Senate 19970115 Introduced, read first time, 11 SJ
referred to Committee
View additional legislative information at the LPITS web site.
(A434, R528, S174)
AN ACT TO AMEND SECTION 56-1-10, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS IN CONNECTION WITH A MOTOR VEHICLE DRIVER'S LICENSE, SO AS TO INCLUDE DEFINITIONS FOR "ALCOHOL" AND "ALCOHOL CONCENTRATION"; TO AMEND ARTICLE 1, CHAPTER 1, TITLE 56, RELATING TO GENERAL PROVISIONS IN CONNECTION WITH A MOTOR VEHICLE DRIVER'S LICENSE, BY ADDING SECTION 56-1-286 SO AS TO REQUIRE THE SUSPENSION OF THE DRIVER'S LICENSE OR OTHER DRIVING PERMIT OF A PERSON UNDER THE AGE OF TWENTY-ONE YEARS WHO IS OPERATING A MOTOR VEHICLE AND WHO HAS AN ALCOHOL CONCENTRATION OF TWO ONE-HUNDREDTHS OF ONE PERCENT OR MORE, TO PROVIDE THAT A LICENSED DRIVER UNDER THE AGE OF TWENTY-ONE CONSENTS TO TESTS FOR THE PRESENCE OF ALCOHOL IN THE INSTANCE OF A TRAFFIC VIOLATION ARREST, TO PRESCRIBE THE METHOD AND PROCEDURE FOR TESTING, TO REQUIRE AN AUTOMATIC SIX-MONTHS' SUSPENSION FOR REFUSAL TO BE TESTED, TO PROVIDE THAT THE SUSPENSION BEGINS UPON ISSUANCE OF THE NOTICE OF SUSPENSION, TO PROVIDE FOR A TEMPORARY ALCOHOL RESTRICTED LICENSE UPON ENROLLMENT IN AN ALCOHOL AND DRUG SAFETY ACTION PROGRAM AND PAYMENT OF A THIRTY-DOLLAR FEE, TO PROVIDE FOR AN ADMINISTRATIVE HEARING ON THE SUSPENSION AT THE DRIVER'S REQUEST, TO PROVIDE FOR WAIVER OF THE ADMINISTRATIVE HEARING UPON FAILURE OF THE DRIVER TO ENROLL IN AN ALCOHOL AND DRUG SAFETY ACTION PROGRAM AND TO TIMELY REQUEST AN ADMINISTRATIVE HEARING, TO PRESCRIBE THE SCOPE OF THE ADMINISTRATIVE HEARING, AND TO PROVIDE THAT A PERSON WHOSE DRIVER'S LICENSE IS SUSPENDED PURSUANT TO THESE PROVISIONS IS NOT REQUIRED TO FILE PROOF OF FINANCIAL RESPONSIBILITY; TO AMEND SECTION 56-1-2030, AS AMENDED, RELATING TO DEFINITIONS IN CONNECTION WITH A COMMERCIAL DRIVER'S LICENSE, SO AS TO DELETE THE REFERENCES TO "ALCOHOL" AND "ALCOHOL CONCENTRATION"; TO AMEND SECTION 56-5-2930, RELATING TO THE PROHIBITION AGAINST OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF LIQUOR AND CERTAIN LISTED DRUGS, SO AS TO PROHIBIT THE OPERATION WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS, OR BOTH OF THEM; TO AMEND SECTION 56-5-2940, AS AMENDED, RELATING TO PENALTIES FOR OPERATION OF A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS, SO AS TO INCREASE THE FINE FROM TWO HUNDRED DOLLARS TO THREE HUNDRED DOLLARS; TO AMEND ARTICLE 23, CHAPTER 5, TITLE 56, RELATING TO DRIVING UNDER THE INFLUENCE BY ADDING SECTION 56-5-2946 SO AS TO REQUIRE SUBMISSION BY A DRIVER TO A TEST FOR THE PRESENCE OF ALCOHOL, DRUGS, OR BOTH OF THEM, IF THERE IS PROBABLE CAUSE OR AN ARREST FOR HIS HAVING CAUSED GREAT BODILY HARM TO OR DEATH OF ANOTHER PERSON WHILE DRIVING UNDER THE INFLUENCE, TO PROVIDE FOR THE METHOD AND PROCEDURE FOR TESTING, TO PROVIDE THAT NONCOOPERATION IN TESTING IS ADMISSIBLE AS EVIDENCE AGAINST THE DRIVER, AND TO REQUIRE THE RELEASE OF TEST RESULTS UPON SUBPOENA OF THOSE RESULTS; TO AMEND SECTION 56-5-2950, AS AMENDED, RELATING TO IMPLIED CONSENT TO CHEMICAL TESTS FOR THE PRESENCE OF ALCOHOL OR DRUGS, SO AS TO PRESCRIBE THE METHOD AND PROCEDURE FOR TESTING, INCLUDING INFORMING THE DRIVER THAT HIS REFUSAL TO CONSENT MUST RESULT IN A SUSPENSION OF HIS LICENSE AND MAY BE USED AGAINST HIM IN COURT, THAT HE HAS THE RIGHT TO AN ADMINISTRATIVE HEARING AND HE MUST ENROLL IN AN ALCOHOL AND DRUG SAFETY ACTION PROGRAM, AND THAT HE IS ENTITLED TO AFFIRMATIVE ASSISTANCE IN OBTAINING HIS OWN ADDITIONAL TEST RESULTS, AND TO REDUCE THE ALCOHOL CONCENTRATION LEVEL WHICH GIVES RISE TO AN INFERENCE OF BEING UNDER THE INFLUENCE FROM TEN ONE-HUNDREDTHS OF ONE PERCENT TO EIGHT ONE-HUNDREDTHS OF ONE PERCENT, THE LATTER PROVISION TO TAKE EFFECT ONLY UPON THE RATIFICATION OF AN AMENDMENT TO THE CONSTITUTION OF THIS STATE AS PROVIDED HEREIN; TO AMEND ARTICLE 23, CHAPTER 5, TITLE 56, RELATING TO DRIVING UNDER THE INFLUENCE, BY ADDING SECTION 56-5-2951 SO AS TO REQUIRE THE SUSPENSION OF THE DRIVER'S LICENSE OR OTHER DRIVING PERMIT OF A PERSON WHO IS ARRESTED FOR DRIVING A MOTOR VEHICLE IN THIS STATE WHILE UNDER THE INFLUENCE OF ALCOHOL, DRUGS, OR BOTH OF THEM, AND WHO REFUSES TO SUBMIT TO A CHEMICAL TEST OR WHO HAS AN ALCOHOL CONCENTRATION OF FIFTEEN ONE-HUNDREDTHS OF ONE PERCENT OR MORE, TO PROVIDE FOR A TEMPORARY ALCOHOL RESTRICTED LICENSE IN CERTAIN CASES UPON ENROLLMENT IN AN ALCOHOL AND DRUG SAFETY ACTION PROGRAM AND PAYMENT OF A THIRTY-DOLLAR FEE, TO PROVIDE FOR AN ADMINISTRATIVE HEARING ON THE SUSPENSION AT THE DRIVER'S TIMELY REQUEST, TO PROVIDE FOR THE SCOPE OF THE HEARING, TO PROVIDE FOR A SPECIAL RESTRICTED DRIVER'S LICENSE FOR A PERSON WHO IS EMPLOYED OR ENROLLED IN A COLLEGE OR UNIVERSITY FOR PURPOSES OF DRIVING TO AND FROM WORK OR SCHOOL, TO PROVIDE FOR THE PERIODS OF SUSPENSION, TO EXEMPT THE SUSPENDED DRIVER FROM THE REQUIREMENT OF PROOF OF FINANCIAL RESPONSIBILITY, AND TO PROHIBIT AN INSURER FROM INCREASING PREMIUMS FOR OR ADDING SURCHARGES TO THE AUTOMOBILE INSURANCE OF AN INSURED CHARGED WITH A VIOLATION IN CONNECTION WITH DRIVING UNDER THE INFLUENCE UNLESS HE IS CONVICTED OF THE VIOLATION, THE PROVISIONS RELATING TO AN ALCOHOL CONCENTRATION TO CHANGE FROM TEN-HUNDREDTHS OF ONE PERCENT TO EIGHT-HUNDREDTHS OF ONE PERCENT UPON THE RATIFICATION OF AN AMENDMENT TO THE CONSTITUTION OF THIS STATE AS PROVIDED HEREIN; TO AMEND ARTICLE 23, CHAPTER 5, TITLE 56, RELATING TO DRIVING UNDER THE INFLUENCE, BY ADDING SECTION 56-5-2953 SO AS TO REQUIRE VIDEOTAPING OF A PERSON WHO VIOLATES SECTIONS 56-5-2930 OR 56-5-2945 AND TO PRESCRIBE THE METHODS AND PROCEDURES FOR VIDEOTAPING AT THE INCIDENT SITE AND AT THE BREATH SITE, TO REQUIRE THE DEPARTMENT OF PUBLIC SAFETY AND SOUTH CAROLINA LAW ENFORCEMENT DIVISION TO PURCHASE AND MAINTAIN VIDEOTAPING EQUIPMENT FOR INCIDENT AND BREATH SITES, RESPECTIVELY, AND TO PROVIDE FUNDING FOR THOSE EFFORTS THROUGH MUNICIPAL COURT REVENUES; TO AMEND SECTION 56-5-2990, AS AMENDED, RELATING TO SUSPENSION OF A DRIVER'S LICENSE UPON A CONVICTION, PLEA OF GUILTY OR NOLO CONTENDERE, OR BAIL FORFEITURE, SO AS TO PROVIDE FOR NOTICE OF SUSPENSION AND OF REQUIREMENT OF SUCCESSFUL COMPLETION OF AN ALCOHOL AND DRUG SAFETY ACTION PROGRAM; TO CREATE A STUDY COMMITTEE TO EXAMINE THE EFFECTS OF MARKETING AND SALE OF MALT LIQUOR IN CONTAINERS OF MORE THAN ONE LITER, AND TO EXAMINE EXISTING STATE LAW AS TO ALCOHOLIC LIQUORS IN MINIBOTTLES AND PROPOSED AMENDMENTS AS TO ALCOHOLIC LIQUOR BY THE DRINK; TO AMEND SECTION 14-1-208, AS AMENDED, RELATING TO MUNICIPAL COURT FINES, SO AS TO PROVIDE FOR FUNDING OF VIDEOTAPING REQUIREMENTS OF THIS ACT; TO AMEND SECTION 56-5-6240, AS AMENDED, RELATING TO FORFEITURE OF VEHICLES IN CONNECTION WITH DRIVING UNDER SUSPENSION OR DRIVING UNDER THE INFLUENCE CONVICTIONS, SO AS TO REQUIRE FORFEITURE UPON THE THIRD VIOLATION IN TEN YEARS FOR DUI AND TO PROVIDE FOR RECLAIMING OF THE VEHICLE IF THE CRIMINAL CHARGE IS NOT DISPOSED OF WITHIN TWELVE MONTHS; TO REQUIRE SLED TO SUBMIT THE BAC DATAMASTER FOR INDEPENDENT TESTING AS TO ACCURACY AND PRECISION AND TO SUBMIT THE RESULTS TO THE GENERAL ASSEMBLY BY JANUARY 1, 1999; TO PROHIBIT THE SALE OF MALT LIQUOR IN A CONTAINER OF MORE THAN ONE LITER, EFFECTIVE ON JULY 1, 2000, UNLESS THE GENERAL ASSEMBLY ENACTS OTHER LEGISLATION BASED ON THE RESULTS OF THE STUDY COMMITTEE; AND TO PROVIDE FOR VARIOUS EFFECTIVE DATES.
Be it enacted by the General Assembly of the State of South Carolina:
Definitions
SECTION 1. Section 56-1-10 of the 1976 Code, as last amended by Act 459 of 1996, is further amended by adding:
"(16) 'Alcohol' means a substance containing any form of alcohol including, but not limited to, ethanol, methanol, propanol, and isopropanol.
(17) 'Alcohol concentration' means:
(a) the number of grams of alcohol for each one hundred milliliters of blood by weight; or
(b) as determined by the South Carolina Law Enforcement Division for other bodily fluids."
Suspension; under age twenty-one and alcohol concentration of two one-hundredths of one percent; alcohol restricted license; hearing
SECTION 2. Article 1, Chapter 1, Title 56 of the 1976 Code is amended by adding:
"Section 56-1-286. (A) In addition to any other penalty imposed by law unless otherwise prohibited in this section, including additional driver's license suspensions, the Department of Public Safety must suspend the driver's license, permit, or nonresident operating privilege of, or deny the issuance of a license or permit to a person under the age of twenty-one who drives a motor vehicle and has an alcohol concentration of two one-hundredths of one percent or more. The department shall not suspend a person's privilege to drive under this section if the person's privilege to drive has been suspended for a violation of Section 20-7-8920, 20-7-8925, or 56-5-2930 arising from the same incident.
(B) A person under the age of twenty-one who drives a motor vehicle in this State is considered to have given consent to chemical tests of his breath or blood for the purpose of determining the presence of alcohol.
(C) A law enforcement officer who has arrested a person under the age of twenty-one for a violation of Chapter 5 of this title (Uniform Act Regulating Traffic on Highways), or any other traffic offense established by a political subdivision of this State, and has probable cause to believe that the person under the age of twenty-one has consumed alcoholic beverages and driven a motor vehicle may order the testing of the person arrested to determine the person's alcohol concentration.
A law enforcement officer may detain and order the testing of a person to determine the person's alcohol concentration if the officer has probable cause to believe that a motor vehicle is being driven by a person under the age of twenty-one who has consumed alcoholic beverages.
(D) A test must be administered at the direction of the primary investigating law enforcement officer. At the direction of the officer, the person first must be offered a breath test to determine the person's alcohol concentration. If the person physically is unable to provide an acceptable breath sample because he has an injured mouth or is unconscious or dead, or for any other reason considered acceptable by licensed medical personnel, a blood sample may be taken. The breath test must be administered by a person trained and certified by the State Law Enforcement Division, using methods approved by the division. The primary investigating officer may administer the test if the person's conduct during the twenty-minute pre-test waiting period is videotaped pursuant to Section 56-5-2953(A)(2)(d). Blood samples must be obtained by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, or other medical personnel trained to obtain these samples in a licensed medical facility. Blood samples must be obtained and handled in accordance with procedures approved by the division. The division shall administer the provisions of this subsection and shall promulgate regulations necessary to carry out its provisions. The costs of the tests administered at the direction of the officer must be paid from the general fund of the State.
The person tested or giving samples for testing may have a qualified person of his choice conduct additional tests at the person's expense and must be notified in writing of that right. A person's request or failure to request additional blood tests is not admissible against the person in any proceeding. The failure or inability of the person tested to obtain additional tests does not preclude the admission of evidence relating to the tests or samples taken at the direction of the officer. The officer must provide affirmative assistance to the person to contact a qualified person to conduct and obtain additional tests. Affirmative assistance shall, at a minimum, include providing transportation for the person to the nearest medical facility which provides blood tests to determine a person's alcohol concentration. If the medical facility obtains the blood sample but refuses or fails to test the blood to determine the person's alcohol concentration, SLED must test the blood and provide the result to the person and to the officer. Failure to provide affirmative assistance upon request to obtain additional tests bars the admissibility of the breath test result in any judicial or administrative proceeding.
(E) A qualified person and his employer who obtain samples or administer the tests or assist in obtaining samples or administering of tests at the direction of the primary investigating officer are immune from civil and criminal liability unless the obtaining of samples or the administering of tests is performed in a negligent, reckless, or fraudulent manner. A person may not be required by the officer ordering the tests to obtain or take any sample of blood or urine.
(F) If a person refuses upon the request of the primary investigating officer to submit to chemical tests as provided in subsection (C), the department must suspend his license, permit, or any nonresident operating privilege, or deny the issuance of a license or permit to him for:
(1) six months; or
(2) one year if the person, within the five years preceding the violation of this section, has been previously convicted of violating Section 56-5-2930 or 56-5-2945 or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug or has had a previous suspension imposed pursuant to Section 56-1-286, 56-5-2950, or 56-5-2951.
(G) If a person submits to a chemical test and the test result indicates an alcohol concentration of two one-hundredths of one percent or more, the department must suspend his license, permit, or any nonresident operating privilege, or deny the issuance of a license or permit to him for:
(1) three months; or
(2) six months if the person, within the five years preceding the violation of this section, has been previously convicted of violating Section 56-5-2930 or 56-5-2945 or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or any other drug or has had a previous suspension imposed pursuant to Section 56-1-286, 56-5-2950, or 56-5-2951.
(H) A test may not be administered or samples taken unless the person has been informed in writing that:
(1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least six months if he refuses to submit to the tests and that his refusal may be used against him in court;
(2) his privilege to drive must be suspended for at least three months if he takes the test or gives the samples and has an alcohol concentration of two one-hundredths of one percent or more;
(3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense;
(4) he has the right to request an administrative hearing within ten days of the issuance of the notice of suspension; and
(5) he must enroll in an Alcohol and Drug Safety Action Program within ten days of the issuance of the notice of suspension.
The primary investigating officer must notify promptly the department of the refusal of a person to submit to a test requested pursuant to this section as well as the test result of any person who submits to a test pursuant to this section and registers an alcohol concentration of two one-hundredths of one percent or more. The notification must be in a manner prescribed by the department.
(I) If the test registers an alcohol concentration of two one-hundredths of one percent or more or if the person refuses to be tested, the primary investigating officer must issue a notice of suspension, and the suspension is effective beginning on the date of the alleged violation of this section. The person, within ten days of the issuance of the notice of suspension, must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990. If the person does not enroll in an Alcohol and Drug Safety Action Program within ten days, the suspension remains in effect, a temporary alcohol restricted license must not be issued, and an administrative hearing may not be requested. If the person drives during the period of suspension without a temporary alcohol restricted license, the person must be penalized for driving while his license is suspended pursuant to Section 56-1-460.
(J) Within ten days of the issuance of the notice of suspension the person may:
(1) obtain a temporary alcohol restricted license by filing with the department a form after enrolling in an Alcohol and Drug Safety Action Program. A thirty-dollar fee must be assessed for obtaining a temporary alcohol restricted license. Twenty-five dollars of the fee must be retained by the department for supplying and maintaining all necessary vehicle videotaping equipment. The remaining five dollars must be retained by the department for administrative costs associated with the issuance of the temporary alcohol restricted licenses. The temporary alcohol restricted license allows the person to drive without any restrictive conditions pending the outcome of the administrative hearing provided for in this section, or the final decision or disposition of the matter; and
(2) request an administrative hearing.
At the administrative hearing if:
(a) the suspension is upheld, the person's driver's license, permit, or nonresident operating privilege must be suspended or the person must be denied the issuance of a license or permit for the remainder of the suspension periods provided for in subsections (F) and (G);
(b) the suspension is overturned, the person shall have his driver's license, permit, or nonresident operating privilege reinstated and is not required to complete the Alcohol and Drug Safety Action Program in which he is enrolled. Any costs paid by the person to the certified Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 must be refunded.
(K) The periods of suspension provided for in subsections (F) and (G) begin on the day the notice of suspension is issued, or at the expiration of any other suspensions, and continue until the person applies for a temporary alcohol restricted license and requests an administrative hearing.
(L) If a person does not request an administrative hearing, he shall have waived his right to the hearing, and his suspension must not be stayed but shall continue for the periods provided for in subsections (F) and (G).
(M) The notice of suspension shall advise the person of the requirement to enroll in an Alcohol and Drug Safety Action Program and of his right to obtain a temporary alcohol restricted driver's license and to request an administrative hearing. The notice of suspension also shall advise the person that, if he does not enroll in an Alcohol and Drug Safety Action Program and does not request an administrative hearing within ten days of the issuance of the notice of suspension, he shall have waived his right to the administrative hearing, and the suspension continues for the periods provided for in subsections (F) and (G).
(N) An administrative hearing must be held within ten days after the request for the hearing is received by the department. However, upon a showing of exigent circumstances by either party, a continuance may be granted not to exceed thirty days. The scope of the hearing is limited to whether the person:
(1) was lawfully arrested or detained;
(2) was advised in writing of the rights enumerated in subsection (H);
(3) refused to submit to a test pursuant to this section; or
(4) consented to taking a test pursuant to this section, and the:
(a) reported alcohol concentration at the time of testing was two one-hundredths of one percent or more;
(b) individual who administered the test or took samples was qualified pursuant to this section;
(c) test administered and samples taken were conducted pursuant to this section and division procedures; and
(d) the machine was operating properly.
Nothing in this section prohibits the introduction of evidence at the administrative hearing on the issue of the accuracy of the breath test result.
A written order must be issued to the person upholding the suspension of the person's license, permit, or nonresident's operating privilege, or denying the issuance of a license or permit within thirty days after the conclusion of the administrative hearing. If the suspension is upheld, the person must receive credit for the number of days his license was suspended before he received a temporary alcohol restricted license and requested the administrative hearing.
(O) An administrative hearing is a contested proceeding under the Administrative Procedures Act, and a person has a right to judicial review pursuant to that act. The filing of a petition for review shall stay the suspension until a final decision is issued.
(P) A person who is unconscious or otherwise in a condition rendering him incapable of refusal is considered to be informed and not to have withdrawn the consent provided for in subsection (B) of this section.
(Q) When a nonresident's privilege to drive a motor vehicle in this State has been suspended under the procedures of this section, the department shall give written notice of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which he has a license or permit.
(R) A person required to submit to a test must be provided with a written report including the time of arrest, the time of the tests, and the results of the tests before any proceeding in which the results of the tests are used as evidence. A person who obtains additional tests shall furnish a copy of the time, method, and results of any additional tests to the officer before any trial, hearing, or other proceeding in which the person attempts to use the results of the additional tests as evidence.
(S) A person whose driver's license or permit is suspended under this section is not required to file proof of financial responsibility.
(T) The department shall administer the provisions of this section, not including subsection (D), and shall promulgate regulations necessary to carry out its provisions.
(U) Notwithstanding any other provision of law, no suspension imposed pursuant to this section is counted as a demerit or result in any insurance penalty for automobile insurance purposes if at the time he was stopped, the person whose license is suspended had an alcohol concentration that was less than ten one-hundredths of one percent."
Definitions
SECTION 3. Section 56-1-2030 of the 1976 Code, as last amended by an act of 1998 bearing ratification number 457, is further amended to read:
"Section 56-1-2030. As used in this article:
(1) 'Commercial driver's license' means a license issued in accordance with the requirements of the Commercial Motor Vehicle Safety Act of 1986 (Title XII of Public Law 99-570) to an individual which authorizes the individual to drive a class of commercial motor vehicle.
(2) 'Commercial Driver's License Information System' means the information system established pursuant to the Commercial Motor Vehicle Safety Act of 1986 to serve as a clearinghouse for locating information related to the licensing and identification of commercial motor vehicle drivers.
(3) 'Commercial driver's instruction permit' means a permit issued pursuant to Section 56-1-2080(D) of this article.
(4) 'Commercial motor vehicle' means a motor vehicle designed or used to transport passengers or property if the vehicle:
(a) has a gross vehicle weight rating of twenty-six thousand one or more pounds;
(b) is designed to transport sixteen or more persons, including the driver; or
(c) is transporting hazardous materials and is required to be placarded in accordance with 49 C.F.R. part 172, subpart F.
(5) 'CMVSA' means the Commercial Motor Vehicle Safety Act of 1986 (Title XII of Public Law 99-570).
(6) 'Controlled substance' means a substance classified under Section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)) listed on Schedules I through V of 21 C.F.R. part 1308, as revised.
(7) 'Conviction' means an unvacated adjudication of guilty, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person's appearance in court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.
(8) 'Disqualification' means a withdrawal of the privilege to drive a commercial motor vehicle.
(9) 'Drive' means to drive, operate, or be in physical control of a motor vehicle.
(10) 'Driver' means a person who drives a commercial motor vehicle or who is required to hold a commercial driver's license.
(11) 'Driver's license' means a license issued to an individual which authorizes the individual to drive a motor vehicle.
(12) 'Employer' means a person, including the United States, a state, or a political subdivision of a state who owns or leases a commercial motor vehicle or assigns a person to drive a commercial motor vehicle.
(13) 'Endorsement' means a special authorization to drive certain types of vehicles or to transport certain types of property or a certain number of passengers.
(14) 'Felony' means an offense under state or federal law that is punishable by death or imprisonment for more than one year.
(15) 'Foreign jurisdiction' means a jurisdiction other than a state of the United States.
(16) 'Gross vehicle weight rating' means the weight or the value specified by the manufacturer as the maximum loaded weight of a single or a combination vehicle. The gross vehicle weight rating of a combination vehicle (commonly referred to as the 'gross combination weight rating') is the gross vehicle weight rating of the power unit plus the gross vehicle weight rating of a towed unit.
(17) 'Hazardous materials' has the meaning as that found in Section 103 of the Hazardous Materials Transportation Act (49 U.S.C. 1801, et seq.).
(18) 'Motor vehicle' means a vehicle which is self-propelled and a vehicle which is propelled by electric power obtained from overhead trolley wires but not operated upon rails, except a vehicle moved solely by human power and motorized wheelchairs.
(19) 'Out-of-service order' means declaration by an authorized enforcement officer of a federal, state, Canadian, Mexican, or local jurisdiction that a person, a commercial motor vehicle, or a motor carrier operation is out of service pursuant to 49 CFR Sections 386.72, 390.5, 392.5, 395.13, 396.9, or compatible laws, or the North American Uniform Out-of-Service Criteria. For purposes of this article, regulations requiring disqualifications for violations of out-of-service orders affect all vehicles with a gross combination weight rating or gross vehicle weight rating greater than 10,000 pounds, as contained in 49 CFR Sections 383, 390.5, and 393 of the Federal Motor Carrier Regulations.
(20) 'Recreational vehicle' means a self-propelled or towed vehicle that is equipped to serve as temporary living quarters for recreational, camping, or travel purposes and is used solely as a family/personal conveyance.
(21) 'Restriction' means a prohibition against driving certain types of vehicles or a requirement that the driver comply with certain conditions when driving a motor vehicle.
(22) 'Serious traffic violation' means a conviction when operating a commercial motor vehicle of:
(a) excessive speeding, involving a single charge for a speed fifteen miles an hour or more above the speed limit;
(b) reckless driving, including charges of driving a commercial motor vehicle in a wilful or wanton disregard for the safety of persons or property;
(c) improper or erratic traffic lane changes;
(d) following the vehicle ahead too closely; or
(e) a violation of a state or local law related to motor vehicle traffic control, other than a parking violation, arising in connection with an accident or collision resulting in death or serious bodily injury to a person.
(23) 'State' means a state or territory of the United States and the District of Columbia and the federal government and a province or territory of Canada.
(24) 'Tank vehicle' means a vehicle that is designed to transport a liquid or gaseous material within a tank that either is attached permanently or temporarily to the vehicle and which has a capacity of one thousand gallons or more.
(25) 'United States' means the fifty states and the District of Columbia.
(26) 'Farm related vehicle' means a vehicle used:
(a) in custom harvester operations;
(b) in livestock feeding operations; or
(c) by an agri-chemical business or a company which hauls agri-chemical products to a farm.
(27) 'Seasonal restricted commercial driver's license' means a commercial driver's license issued under the authority of the waiver promulgated by the Federal Department of Transportation (57 Federal Register 13650) by the department to an individual who has not passed the knowledge or skill test required of other commercial driver's license holders. This license authorizes operation of a commercial motor vehicle only on a seasonal basis, stated on the license, by a seasonal employee of a custom harvester, livestock feeder, agri-chemical operation, and company hauling agri-chemical products to a farm within one hundred fifty miles of the place of business."
Unlawful to operate motor vehicle while under the influence
SECTION 4. Section 56-5-2930 of the 1976 Code is amended to read:
"Section 56-5-2930. It is unlawful for a person to drive a motor vehicle within this State while under the:
(1) influence of alcohol to the extent that the person's faculties to drive are materially and appreciably impaired;
(2) influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person's faculties to drive are materially and appreciably impaired; or
(3) combined influence of alcohol and any other drug or drugs, or substances which cause impairment to the extent that the person's faculties to drive are materially and appreciably impaired."
Penalties for operating motor vehicle while under the influence
SECTION 5. Section 56-5-2940(1) of the 1976 Code is amended to read:
"(1) By a fine of three hundred dollars or imprisonment for not less than forty-eight hours nor more than thirty days, for the first offense. However, in lieu of the forty-eight hour minimum imprisonment the court may provide for forty-eight hours of public service employment. The minimum forty-eight hour imprisonment or public service employment must be served at a time when the person is off from work and does not interfere with his regular employment under terms and conditions as the court considers proper. However, the court may not compel an offender to perform public service employment in lieu of the minimum sentence."
Submission to testing for alcohol or drugs
SECTION 6. Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:
"Section 56-5-2946. Notwithstanding any other provision of law, a person must submit to either one or a combination of chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol, drugs, or a combination of alcohol and drugs if there is probable cause to believe that the person violated or is under arrest for a violation of Section 56-5-2945.
The tests must be administered at the direction of a law enforcement officer who has probable cause to believe that the person violated or is under arrest for a violation of Section 56-5-2945. The administration of one test does not preclude the administration of other tests. The resistance, obstruction, or opposition to testing pursuant to this section is evidence admissible at the trial of the offense which precipitated the requirement for testing. A person who is tested or gives samples for testing may have a qualified person of his choice conduct additional tests at his expense and must be notified of that right. A person's request or failure to request additional blood or urine tests is not admissible against the person in the criminal trial.
The provisions of Section 56-5-2950, relating to the administration of tests to determine a person's alcohol concentration, additional tests at the person's expense, the availability of other evidence on the question of whether or not the person was under the influence of alcohol, drugs, or a combination of them, availability of test information to the person or his attorney, and the liability of medical institutions and persons administering the tests are applicable to this section and also extend to the officer requesting the test, the State or its political subdivisions, or governmental agency, or entity which employs the officer making the request, and the agency, institution, or employer, either governmental or private, of persons administering the tests. Notwithstanding any other provision of state law pertaining to confidentiality of hospital records or other medical records, information regarding tests performed pursuant to this section must be released, upon subpoena, to a court, prosecuting attorney, defense attorney, or law enforcement officer in connection with an alleged violation of Section 56-5-2945."
Implied consent to testing for alcohol or drugs; the concentration at which inference of DUI arises
SECTION 7. Section 56-5-2950 of the 1976 Code, as last amended by Act 497 of 1994, is further amended to read:
"Section 56-5-2950. (a) A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs or the combination of alcohol and drugs if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of them. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of them. At the direction of the arresting officer, the person first must be offered a breath test to determine the person's alcohol concentration. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth or is unconscious or dead, or for any other reason considered acceptable by the licensed medical personnel, the arresting officer may request a blood sample to be taken. If the officer has reasonable grounds to believe that the person is under the influence of drugs other than alcohol, the officer may order that a urine sample be taken for testing. If the alcohol concentration is ten one-hundredths of one percent or above, the officer may not require additional tests of the person as provided in this chapter. The breath test must be administered by a person trained and certified by SLED, using methods approved by SLED. The arresting officer may administer the tests if the person's conduct during the twenty-minute pre-test waiting period is videotaped pursuant to Section 56-5-2953(A)(2)(d). Before the breath test is administered, a ten one-hundredths of one percent simulator test must be performed and the result must reflect a reading between 0.095 percent and 0.105 percent. Blood and urine samples must be obtained by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, and other medical personnel trained to obtain the samples in a licensed medical facility. Blood and urine samples must be obtained and handled in accordance with procedures approved by SLED.
No tests may be administered or samples obtained unless the person has been informed in writing that:
(1) he does not have to take the test or give the samples but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court;
(2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one-hundredths of one percent or more;
(3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense;
(4) he has the right to request an administrative hearing within ten days of the issuance of the notice of suspension; and
(5) he must enroll in an Alcohol and Drug Safety Action Program within ten days of the issuance of the notice of suspension.
A hospital, physician, qualified technician, chemist, or registered nurse who obtains the samples or conducts the test or participates in the process of obtaining the samples or conducting the test in accordance with this section is not subject to a cause of action for assault, battery, or another cause contending that the drawing of blood or taking samples at the request of the arrested person or a law enforcement officer was wrongful. This release from liability does not reduce the standard of medical care required of the person obtaining the samples or conducting the test. This qualified release also applies to the employer of the person who conducts the test or obtains the samples.
The person tested or giving samples for testing may have a qualified person of his own choosing conduct additional tests at his expense and must be notified in writing of that right. A person's failure to request additional blood or urine tests is not admissible against the person in the criminal trial. The failure or inability of the person tested to obtain additional tests does not preclude the admission of evidence relating to the tests or samples obtained at the direction of the law enforcement officer.
The arresting officer must provide affirmative assistance to the person to contact a qualified person to conduct and obtain additional tests. Affirmative assistance, at a minimum, includes providing transportation for the person to the nearest medical facility which provides blood tests to determine a person's alcohol concentration. If the medical facility obtains the blood sample but refuses or fails to test the blood sample to determine the person's alcohol concentration, SLED must test the blood sample and provide the result to the person and to the arresting officer. Failure to provide affirmative assistance upon request to obtain additional tests bars the admissibility of the breath test result in any judicial or administrative proceeding.
SLED shall administer the provisions of this subsection and shall make regulations necessary to carry out its provisions. The costs of the tests administered at the direction of the law enforcement officer must be paid from the general fund of the State.
A qualified person who obtains samples or administers the tests or assists in obtaining samples or the administration of tests at the direction of a law enforcement officer is released from civil and criminal liability unless the obtaining of samples or tests is performed in a negligent, reckless, or fraudulent manner. No person may be required by the arresting officer, or by another law enforcement officer, to obtain or take any sample of blood or urine.
(b) In the criminal prosecution for a violation of Section 56-5-2930 or 56-5-2945 relating to driving a vehicle under the influence of alcohol, drugs, or a combination of them, the alcohol concentration at the time of the test, as shown by chemical analysis of the person's breath or other body fluids, gives rise to the following:
(1) If the alcohol concentration was at that time five one-hundredths of one percent or less, it is conclusively presumed that the person was not under the influence of alcohol.
(2) If the alcohol concentration was at that time in excess of five one-hundredths of one percent but less than ten one-hundredths of one percent, that fact does not give rise to any inference that the person was or was not under the influence of alcohol, but that fact may be considered with other evidence in determining the guilt or innocence of the person.
(3) If the alcohol concentration was at that time ten one-hundredths of one percent or more, it may be inferred that the person was under the influence of alcohol.
The provisions of this section must not be construed as limiting the introduction of any other evidence bearing upon the question of whether or not the person was under the influence of alcohol, drugs, or a combination of them.
(c) A person who is unconscious or otherwise in a condition rendering him incapable of refusal is considered to be informed and not to have withdrawn the consent provided by subsection (a) of this section.
(d) A person required to submit to tests by the arresting law enforcement officer must be provided with a written report including the time of arrest, the time of the tests, and the results of the tests before any trial or other proceeding in which the results of the tests are used as evidence. A person who obtains additional tests must furnish a copy of the time, method, and results of any test to the officer before any trial, hearing, or other proceeding in which the person attempts to use the results of the additional tests as evidence."
Suspension of license; refusal to submit to testing; alcohol concentration levels; alcohol restricted license; special restricted license; insurance increases prohibited
SECTION 8. Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:
"Section 56-5-2951. (A) The Department of Public Safety shall suspend the driver's license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950 or has an alcohol concentration of fifteen one-hundredths of one percent or more. The arresting officer shall issue a notice of suspension which is effective beginning on the date of the alleged violation of Section 56-5-2930 or Section 56-5-2945.
(B) If the test registers an alcohol concentration of ten one-hundredths of one percent or more, the person, within ten days of the issuance of the notice of suspension, must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990.
(C) If the person does not enroll in an Alcohol and Drug Safety Action Program within ten days, the suspension remains in effect, a temporary alcohol restricted license must not be issued, and an administrative hearing may not be requested. If the person drives during the period of suspension without a temporary alcohol restricted license, the person must be penalized for driving while his license is suspended pursuant to Section 56-1-460.
(D) Within ten days of the issuance of the notice of suspension the person may:
(1) obtain a temporary alcohol restricted license by filing with the department a form after enrolling in an Alcohol and Drug Safety Action Program. A thirty-dollar fee must be assessed for obtaining a temporary alcohol restricted license. Twenty-five dollars of the fee must be retained by the department for supplying and maintaining all necessary vehicle videotaping equipment. The remaining five dollars must be retained by the department for administrative costs associated with the issuance of the temporary alcohol restricted licenses. The temporary alcohol restricted license allows the person to drive without any restrictive conditions pending the outcome of the administrative hearing provided for in subsection (H), or the final decision or disposition of the matter; and
(2) request an administrative hearing.
At the administrative hearing if:
(a) the suspension is upheld, the person's driver's license, permit, or nonresident operating privilege must be suspended or the person must be denied the issuance of a license or permit for the remainder of the suspension period provided for in subsection (K);
(b) the suspension is overturned, the person shall have his driver's license, permit, or nonresident operating privilege reinstated and is not required to complete the Alcohol and Drug Safety Action Program in which he is enrolled. Any costs paid by the person to the certified Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 must be refunded.
The provisions of this subsection do not affect the trial for a violation of Section 56-5-2930 or Section 56-5-2945.
(E) The period of suspension provided for in subsection (K) begins on the day the notice of suspension is issued, or at the expiration of any other suspensions, and continues until the person applies for a temporary alcohol restricted license and requests an administrative hearing.
(F) If a person does not request an administrative hearing, he shall have waived his right to the hearing and his suspension must not be stayed but continues for the period provided for in subsection (K).
(G) The notice of suspension shall advise the person of the requirement to enroll in an Alcohol and Drug Safety Action Program and of his right to obtain a temporary alcohol restricted driver's license and request an administrative hearing. The notice of suspension also shall advise the person that, if he does not request an administrative hearing within ten days of the issuance of the notice of suspension, he shall have waived his right to the administrative hearing, and the suspension continues for the period provided for in subsection (K).
(H) An administrative hearing must be held within ten days after the request for the hearing is received by the department. However, upon a showing of exigent circumstances by either party, a continuance may be granted not to exceed thirty days. The scope of the hearing must be limited to whether the person:
(1) was lawfully arrested or detained;
(2) was advised in writing of the rights enumerated in Section 56-5-2950;
(3) refused to submit to a test pursuant to Section 56-5-2950; or
(4) consented to taking a test pursuant to Section 56-5-2950, and the:
(a) reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more;
(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950 and division procedures; and
(d) the machine was working properly.
Nothing in this section prohibits the introduction of evidence at the administrative hearing on the issue of the accuracy of the breath test result.
A written order must be issued to the person upholding the suspension of the person's license, permit, or nonresident's operating privilege, or denying the issuance of a license or permit within thirty days after the conclusion of the administrative hearing. If the suspension is upheld, the person must receive credit for the number of days his license was suspended before he received a temporary alcohol restricted license and requested the administrative hearing.
(I) An administrative hearing is a contested proceeding under the Administrative Procedures Act, and a person has a right to judicial review pursuant to that act. The filing of a petition for review shall stay the suspension until a final decision is issued.
(J)(1) If the suspension is upheld at the administrative hearing, the person may apply for a special restricted driver's license if he is employed or enrolled in a college or university. The special restricted license shall permit him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The department may issue the special restricted driver's license only upon showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment or education, and that there is no adequate public transportation between his residence and his place of employment or his place of education.
(2) If the department issues a special restricted driver's license, it shall designate reasonable restrictions on the times during which and routes on which the individual may operate a motor vehicle. A change in the employment hours, place of employment, status as a student, or residence must be reported immediately to the department by the licensee.
(3) The fee for each special restricted driver's license, including a reissue caused by changes in the place and hours of employment, education, or residence is twenty dollars.
(4) The operation of a motor vehicle outside the time limits and route imposed by a special restricted license by the person issued that license is a violation of Section 56-1-460.
(K)(1) The period of a driver's license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to an arrested person who has no previous convictions for violating Section 56-5-2930 or 56-5-2945 or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug within the ten years preceding a violation of this section, and who has had no previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:
(a) ninety days for a person who refuses to submit to a test pursuant to Section 56-5-2950; or
(b) thirty days for a person who takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.
(2) The period of a driver's license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to an arrested person who has been convicted previously for violating Section 56-5-2930 or 56-5-2945 or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or any other drug within the ten years preceding a violation of this section, or who has had a previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is one hundred eighty days if he refuses to submit to a test pursuant to Section 56-5-2950 or sixty days if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.
(L) When a nonresident's privilege to drive a motor vehicle in this State has been suspended under the provisions of this section, the department must give written notice of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which he has a license or permit.
(M) The department shall not suspend the privilege to drive of a person under the age of twenty-one pursuant to Section 56-1-286 if the person's privilege to drive has been suspended under this section arising from the same incident.
(N) A person whose driver's license or permit is suspended pursuant to this section is not required to file proof of financial responsibility.
(O) An insurer may not increase premiums on or add surcharges to the automobile insurance of a person charged with a violation of Sections 56-1-286, 56-5-2930, or 56-5-2945 or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or any other drug unless he is convicted of the violation.
(P) The department shall administer the provisions of this section and shall promulgate regulations necessary to carry out its provisions."
Incident site and breath site videotaping
SECTION 9. Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:
"Section 56-5-2953. (A) A person who violates Section 56-5-2930 or 56-5-2945 shall have his conduct at the incident site and the breath test site videotaped.
(1) The videotaping at the incident site must:
(a) begin not later than the activation of the officer's blue lights and conclude after the arrest of the person for a violation of Section 56-5-2930 or a probable cause determination that the person violated Section 56-5-2945; and
(b) include the person being advised of his Miranda rights, if required by state or federal law, before any field sobriety tests are administered, if the tests are administered.
(2) The videotaping at the breath site:
(a) must be completed within three hours of the person's arrest for a violation of Section 56-5-2930 or 56-5-2945 or a probable cause determination that the person violated Section 56-5-2945, unless compliance is not possible because the person needs emergency medical treatment considered necessary by licensed medical personnel;
(b) shall include the reading of Miranda rights, if required by state or federal law, the entire breath test procedure, the person being informed that he is being videotaped, and that he has the right to refuse the test;
(c) shall include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test;
(d) shall also include the person's conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to videotape this waiting period. However, if the arresting officer administers the breath test, then the person's conduct during the twenty-minute pre-test waiting period must be videotaped.
The videotapes of the incident site and of the breath test site are admissible pursuant to the South Carolina Rules of Evidence in a criminal, administrative, or civil proceeding by any party to the action.
(B) Nothing in this section may be construed as prohibiting the introduction of other evidence in the trial of a violation of Section 56-5-2930 or 56-5-2945. Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930 or 56-5-2945 if the arresting officer submits a sworn affidavit certifying that the videotape equipment at the time of the arrest, probable cause determination, or breath test device was in an inoperable condition, stating reasonable efforts have been made to maintain the equipment in an operable condition, and certifying that there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the videotape because the person needed emergency medical treatment, or exigent circumstances existed. Further, in circumstances including, but not limited to, road blocks, traffic accident investigations, and citizens' arrests, where an arrest has been made and the videotaping equipment has not been activated by blue lights, the failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal. However, as soon as videotaping is practicable in these circumstances, videotaping should begin and conform with the provisions of this section. Nothing in this section prohibits the court from considering any other valid reason for the failure to produce the videotape based upon the totality of the circumstances, nor do the provisions of this section prohibit the person from offering evidence relating to the arresting law enforcement officer's failure to produce the videotape.
(C) A videotape must not be disposed of in any manner except for its transfer to a master tape for consolidation purposes until the results of any legal proceeding in which it may be involved finally are determined.
(D) SLED is responsible for purchasing, maintaining, and supplying all necessary videotaping equipment for use at the breath test sites. SLED also is responsible for monitoring all breath test sites to ensure the proper maintenance of videotaping equipment. The Department of Public Safety is responsible for purchasing, maintaining, and supplying all videotaping equipment for use in all law enforcement vehicles used for traffic enforcement. The Department of Public Safety also is responsible for monitoring all law enforcement vehicles used for traffic enforcement to ensure proper maintenance of videotaping equipment.
(E) Beginning one month from the effective date of this act, all of the funds received in accordance with Section 14-1-208(C)(9) must be expended by SLED to equip all breath test sites with videotaping devices and supplies. Once all breath test sites have been equipped fully with videotaping devices and supplies, eighty-seven and one-half (87.5) percent of the funds received in accordance with Section 14-1-208(C)(9) must be expended by the Department of Public Safety to purchase, maintain, and supply videotaping equipment for vehicles used for traffic enforcement. The remaining twelve and one-half (12.5) percent of the funds received in accordance with Section 14-1-208(C)(9) must be expended by SLED to purchase, maintain, and supply videotaping equipment for the breath test sites. Funds must be distributed by the State Treasurer to the Department of Public Safety and SLED on a monthly basis. The Department of Public Safety and SLED are authorized to carry forward any unexpended funds received in accordance with Section 14-1-208(C)(9) as of June thirtieth of each year and to expend these carried forward funds for the purchase, maintenance, and supply of videotaping equipment. The Department of Public Safety and SLED shall report the revenue received under this section and the expenditures for which the revenue was used as required in the department's and SLED's annual appropriation request to the General Assembly.
(F) The Department of Public Safety and SLED shall promulgate regulations necessary to implement the provisions of this section."
Suspension of license; period of suspension
SECTION 10. Section 56-5-2990 of the 1976 Code, as last amended by an act of 1998 bearing ratification number 511, is further amended to read:
"Section 56-5-2990. The department shall suspend the driver's license of a person who is convicted, receives sentence upon a plea of guilty or of nolo contendere, or forfeits bail posted for a violation of Section 56-5-2930 or for the violation of another law or ordinance of this State or of a municipality of this State that prohibits a person from driving a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics for six months for the first conviction, plea of guilty or of nolo contendere, or forfeiture of bail; one year for the second conviction, plea of guilty or of nolo contendere, or forfeiture of bail; two years for the third conviction, plea of guilty or of nolo contendere, or forfeiture of bail; and a permanent revocation of the driver's license for the fourth or subsequent conviction, plea of guilty or of nolo contendere, or forfeiture of bail. Only those violations which occurred within ten years including and immediately preceding the date of the last violation shall constitute prior violations within the meaning of this section. However, if the third conviction occurs within five years from the date of the first offense, then the department shall suspend the driver's license for four years. A person whose license is revoked following conviction for a fourth offense as provided in this section is forever barred from being issued any license by the Department of Public Safety to operate a motor vehicle except as provided in Section 56-1-385.
Any person whose license is suspended under the provisions of this section, Section 56-1-286, or 56-5-2951 must be notified by the department of the suspension and of the requirement to enroll in and successfully complete an Alcohol and Drug Safety Action Program certified by the Department of Alcohol and Other Drug Abuse Services prior to reinstatement of the license. An assessment of the extent and nature of the alcohol and drug abuse problem, if any, of the applicant must be prepared and a plan of education or treatment, or both, must be developed for the applicant. Entry into and successful completion of the services, if the services are necessary, recommended in the plan of education or treatment, or both, developed for the applicant is a mandatory requirement of the restoration of driving privileges to the applicant. The applicant shall bear the cost of the services to be determined by the Alcohol and Drug Safety Action Program and approved by the Department of Alcohol and Other Drug Abuse Services. The cost may not exceed seventy-five dollars for assessment, one hundred twenty-five dollars for education services, two hundred twenty-five dollars for treatment services, and three hundred dollars in total for any and all services. No applicant may be denied services due to an inability to pay. The Alcohol and Drug Safety Action Program shall determine if the applicant has successfully completed services within six months of the date of enrollment or shall certify that the person is making satisfactory progress toward completion of the program. If the applicant has not successfully completed the services as directed by the Alcohol and Drug Safety Action Program within six months of enrollment, a hearing must be provided by the Alcohol and Drug Safety Action Program whose decision is appealable to the Department of Alcohol and Other Drug Abuse Services. If the applicant is unsuccessful in the Alcohol and Drug Safety Action Program, the department may restore the privilege to drive a motor vehicle upon the recommendation of the Medical Advisory Board as utilized by the department if it determines public safety and welfare of the petitioner may not be endangered.
The department and the Department of Alcohol and Other Drug Abuse Services shall develop procedures necessary for the communication of information pertaining to relicensing, or otherwise. These procedures must be consistent with the confidentiality laws of the State and the United States. Successful completion of education, treatment services, or both, for purposes of receiving a provisional driver's license as stipulated in Section 56-1-1330 may be substituted in lieu of services received under the authority of this section at the discretion of the applicant. If the driver's license of any person is suspended by authority of this section, no insurance company may refuse to issue insurance to cover the remaining members of his family, but the insurance company is not liable for any actions of the person whose license has been suspended or who has voluntarily turned his license in to the department.
Except as provided for in Section 56-1-365(D) and (E), the driver's license suspension periods under this section begin on the date the person is convicted, receives sentence upon a plea of guilty or of nolo contendere, or forfeits bail posted for the violation of Section 56-5-2930, or for the violation of any other law of this State or ordinance of a county or municipality of this State that prohibits a person from operating a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics; however, a person is not prohibited from filing a notice of appeal and receiving a certificate which entitles him to operate a motor vehicle for a period of sixty days after the conviction, plea of guilty or nolo contendere, or bail forfeiture pursuant to Section 56-1-365(F)."
Study committee; malt liquor, minibottle, liquor by the drink
SECTION 11. A study committee is created to examine the effects of the marketing and sale of malt liquor in containers of more than one liter, to examine the state law relating to the requirements for the transportation, possession, and consumption of alcoholic liquors in minibottles, and to examine amendments to state law pertaining to alcoholic liquor by the drink. The committee shall consist of eleven voting members as follows:
(1) four members from the Senate to be appointed by the President Pro Tempore of the Senate, at least one of whom must be a member of the Senate Judiciary Committee and one of whom must be a member of the Senate Finance Committee;
(2) four members of the House of Representatives to be appointed by the Speaker of the House, at least one of whom must be a member of the House Judiciary Committee and one of whom must be a member of the House Ways and Means Committee;
(3) three members to be appointed by the Governor.
In addition seven nonvoting members are to be appointed by the Governor as follows:
(1) one member from the Department of Public Safety;
(2) one member from the Department of Revenue;
(3) one member chosen from a list of recommendations made by MADD;
(4) one member from the Department of Alcohol and Other Drug Abuse Services;
(5) one member from SLED;
(6) one member chosen from a list of recommendations made by the Hospitality Association of South Carolina; and
(7) one member chosen from a list of recommendations made by the South Carolina Council of Alcohol Authorities.
The voting members of the study committee shall elect a chairman and shall meet at times and places as the chairman determines to be necessary. The expenses of the legislative members of the study committee must be paid from the approved accounts of their respective bodies. The expenses of the gubernatorial appointees must be paid by the Governor's Office.
The committee must be staffed by personnel assigned by the Chairman of the Senate and House Judiciary Committees. The findings of the study committee as to the effects of the marketing and sale of malt liquor in containers of more than one liter shall be utilized by the General Assembly in formulating any change to the law before December 31, 1999. The committee shall report its findings to the General Assembly no later than the first day of the 1999 legislative session and upon this report is terminated.
Municipal court assessment, remittance, and disposition
SECTION 12. Section 14-1-208 (A), (B), and (C) of the 1976 Code, as last amended by Act 141 of 1997, is further amended to read:
"(A) Beginning January 1, 1995, and continuously after that date, a person who is convicted of, or pleads guilty or nolo contendere to, or forfeits bond for an offense tried in municipal court must pay an amount equal to 74 percent of the fine imposed as an assessment. This assessment must be paid to the municipal clerk of court and deposited with the city treasurer for remittance to the State Treasurer. The assessment is based upon that portion of the fine that is not suspended, and assessments must not be waived, reduced, or suspended.
(B) The city treasurer must remit 16.22 percent of the revenue generated by the assessment imposed in subsection (A) to the municipality to be used for the purposes set forth in subsection (D) and remit the balance of the assessment revenue to the State Treasurer on a monthly basis by the fifteenth day of each month and make reports on a form and in a manner prescribed by the State Treasurer. Assessments paid in installments must be remitted as received.
(C) The State Treasurer shall deposit the assessments received as follows:
(1) 21.63 percent for programs established pursuant to Chapter 21 of Title 24 and the Shock Incarceration Program as provided in Article 13, Chapter 13 of Title 24;
(2) 21.39 percent to the Department of Public Safety program of training in the fields of law enforcement and criminal justice;
(3) .56 percent to the Department of Public Safety to defray the cost of erecting and maintaining the South Carolina Law Enforcement Hall of Fame. When funds collected pursuant to this item exceed the necessary costs and expenses of the Hall of Fame operation and maintenance as determined by the Department of Public Safety, the department may retain the surplus for use in its law enforcement training programs;
(4) 15.98 percent for the State Office of Victim Assistance;
(5) 5.84 percent to the general fund;
(6) 16.26 percent to the Office of Indigent Defense for the defense of indigents;
(7) 1.37 percent to the Department of Mental Health to be used exclusively for the treatment and rehabilitation of drug addicts within the department's addiction center facilities;
(8) .84 percent to the Attorney General's Office for a fund to provide support for counties involved in complex criminal litigation. For the purposes of this item, 'complex criminal litigation' means criminal cases in which the State is seeking the death penalty and has served notice as required by law upon the defendant's counsel and the county involved has expended more than one hundred thousand dollars for a particular case in direct support of operating the court of general sessions and for prosecution-related expenses. The Attorney General shall develop guidelines for determining what expenses are reimbursable from the fund and shall approve all disbursements from the fund. Funds must be paid to a county for all expenditures authorized for reimbursement under this item except for the first one hundred thousand dollars the county expended in satisfying the requirements for reimbursement from the fund; however, money disbursed from this fund must be disbursed on a 'first received, first paid' basis. When revenue in the fund reaches five hundred thousand dollars, all revenue in excess of five hundred thousand dollars must be credited to the general fund of the State. Unexpended revenue in the fund at the end of the fiscal year carries over and may be expended in the next fiscal year;
(9) 16.13 percent for the programs established pursuant to Section 56-5-2953(E)."
Forfeiture of vehicle; reclaiming procedure
SECTION 13. Section 56-5-6240(A) of the 1976 Code, as last amended by Act 465 of 1992, is further amended to read:
"(A) In addition to the penalties for persons convicted of a fourth or subsequent violation within the last five years of operating a motor vehicle while his license is canceled, suspended, or revoked (DUS), or a third or subsequent violation within the last ten years of operating a motor vehicle while under the influence of intoxicating liquor or drugs (DUI), the persons must have the motor vehicle they drove during this offense forfeited if the offender is the owner of record, or a resident of the household of the owner of record under the terms and conditions as provided in subsections (B) and (C) and must be confiscated by the arresting officer or other law enforcement officer of that agency at the time of arrest, which officer shall deliver it immediately to the sheriff or chief of police of the jurisdiction where the motor vehicle was seized or his authorized agent who by certified mail shall notify the registered owner of the confiscation within seventy-two hours. Upon notification of the confiscation, the registered owner has ten days to request a hearing before the presiding judge of the judicial circuit or his designated hearing officer within ten days from the date of receipt of the request. The vehicle must be returned to the owner of record if he can show by a preponderance of the evidence that (1) the use of the vehicle was not either expressly or impliedly authorized, or (2) the owner of record did not know that the driver had no valid license. Forfeiture of a vehicle is subordinate in priority to all valid liens.
The vehicle seized pursuant to this section may be returned to the owner upon petition to the court by the law enforcement agency seizing the vehicle if the criminal charge has not been disposed of within twelve months of the date of seizure. If the owner of the vehicle does not remove the vehicle from law enforcement's possession within ten days of service of the court order allowing the return, law enforcement may dispose of the vehicle as provided by Section 56-5-5640. The sheriff or chief of police in possession of the vehicle shall provide notice by certified mail of the confiscation to all lienholders of record within ten days of the confiscation."
Savings clause
SECTION 14. All proceedings pending and all rights and liabilities existing, acquired, or accrued at the time this act takes effect are saved. The provisions of this act apply prospectively to crimes and offenses committed on or after the effective date of this act.
Independent testing of BAC Datamaster
SECTION 15. The State Law Enforcement Division must submit the BAC Datamaster to an independent facility with expertise in breath alcohol testing and software analysis, designated by the Chairmen of the House and Senate Judiciary Committees acting jointly, in order that the instrument may be tested to determine its accuracy and precision. SLED must submit the results of the tests to the General Assembly by January 1, 1999.
Sale of malt liquor in greater than one-liter container prohibited July 1, 2000
SECTION 16. (A) No holder of a retail permit issued pursuant to Title 61 which authorizes the sale of beer may sell or offer to sell any container of more than one liter of malt liquor. This provision does not apply to the sale of a keg or box of malt liquor or to alcohol labeled as beer or scotch liquor.
(B) A person who violates the provisions of subsection (A) is subject to a civil penalty of not more than five hundred dollars for a first offense and not more than one thousand dollars for a second offense. In addition to a civil penalty, upon a third offense violation of subsection (A), a person shall have his license or permit revoked or suspended in accordance with Section 61-2-140. Each day of violation constitutes a separate offense.
Severability clause
SECTION 17. If any provision of this act or the application thereof to any person is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application and to this end the provisions of this act are severable.
Time effective
SECTION 18. The provisions in Sections 56-5-2950 and 56-5-2951 take effect upon approval by the Governor, except that the provisions in Sections 56-5-2950 and 56-5-2951 pertaining to an alcohol concentration of ten one-hundredths of one percent or more will change to eight one-hundredths of one percent or more, effective upon the ratification of an amendment to Section 1, Article VIII-A of the Constitution of South Carolina, 1895, relating to the sale of alcoholic liquors and beverages in sealed containers of two ounces or less. The provisions in Section 56-5-2953(A), (B), and (C) take effect for each law enforcement vehicle used for traffic enforcement as soon as the law enforcement vehicle used for traffic enforcement is equipped with a videotaping device. The provisions in Section 56-5-2953(A), (B), and (C) take effect for each breath test site as soon as the breath test site is equipped with a videotaping device. The provisions in Section 56-5-2953(D) and (E) take effect upon approval by the Governor. The provisions in Section 56-5-2953(F) take effect one year after approval by the Governor. The Chief of SLED and the Director of the Department of Public Safety shall report to the General Assembly when all breath test sites and law enforcement vehicles used for traffic enforcement are equipped. SECTION 16 takes effect July 1, 2000, unless the General Assembly passes a resolution or bill related to the subject matter of the study committee established in SECTION 11 of this act. All remaining provisions take effect upon approval by the Governor.
Approved the 29th day of June, 1998.