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Indicates Matter Stricken
Indicates New Matter
Indicates Matter Stricken
Indicates New Matter
AMENDED
February 12, 2008
H. 4363
Introduced by Reps. Harrison, G.M. Smith, Delleney, Bales, McLeod, Hart and Weeks
S. Printed 2/12/08--H.
Read the first time January 8, 2008.
TO AMEND SECTION 1-23-660, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ESTABLISHMENT OF THE DIVISION OF MOTOR VEHICLE HEARINGS WITHIN THE ADMINISTRATIVE LAW COURT, SO AS TO MAKE TECHNICAL CHANGES, DELETE THE PROVISION THAT REQUIRES THE ADMINISTRATIVE LAW COURT TO HIRE AND SUPERVISE A LAW CLERK TO ASSIST THE JUDGES WHO HEAR DEPARTMENT OF MOTOR VEHICLE HEARING APPEALS WITH THE ADMINISTRATION OF THOSE APPEALS, TO PROVIDE THAT IF THE DEPARTMENT OF MOTOR VEHICLES ELECTS TO NOT APPEAR AT CERTAIN HEARINGS, IT WAIVES ITS RIGHT TO APPEAL A FINAL DECISION OF A HEARING OFFICER, TO DELETE THE PROVISION THAT REQUIRES THE DEPARTMENT OF MOTOR VEHICLES TO PROVIDE FACILITIES FOR CERTAIN ADMINISTRATIVE HEARINGS, TO PROVIDE THAT THE STATE ETHICS COMMISSION IS RESPONSIBLE FOR THE ENFORCEMENT AND ADMINISTRATION OF CERTAIN APPELLATE COURT RULES AND FOR THE ISSUANCE OF CERTAIN ADVISORY OPINIONS, TO PROVIDE THAT CERTAIN PERSONS MAY ATTEND CERTAIN JUDICIAL-RELATED OR BAR-RELATED FUNCTIONS, AND TO DELETE THE PROVISION THAT ALLOWS THE CHIEF ADMINISTRATIVE LAW JUDGE TO ADJUDICATE CASES UNDER SECTION 1-23-600; TO AMEND SECTION 56-1-10, AS AMENDED, RELATING TO THE DEFINITION OF TERMS RELATING TO MOTOR VEHICLES, SO AS TO MAKE TECHNICAL CHANGES; TO AMEND SECTION 56-1-170, RELATING TO THE ISSUANCE OF RESTRICTED DRIVER'S LICENSES, SO AS TO DELETE THE PROVISION THAT PROVIDES THAT A HOLDER OF A RESTRICTED DRIVER'S LICENSE IS ENTITLED TO A HEARING UPON A SUSPENSION OR REVOCATION OF HIS LICENSE, AND TO PROVIDE THAT A HOLDER OF THE LICENSE MAY REQUEST A HEARING BEFORE THE OFFICE OF MOTOR VEHICLE HEARINGS UNDER CERTAIN CIRCUMSTANCES; TO AMEND SECTION 56-1-820, RELATING TO A DRIVER'S LICENSE HOLDER'S REQUEST FOR A HEARING AFTER HAVING RECEIVED A NOTICE OF SUSPENSION, SO AS TO MAKE TECHNICAL CHANGES; TO AMEND SECTION 56-1-1030, AS AMENDED, RELATING TO THE REVOCATION OF THE LICENSE OF A HABITUAL OFFENDER, SO AS TO MAKE TECHNICAL CHANGES, AND TO PROVIDE THAT THE OFFICE OF MOTOR VEHICLE HEARINGS HAS EXCLUSIVE JURISDICTION TO CONDUCT A HABITUAL OFFENDER DRIVER'S LICENSE REVOCATION HEARING; TO AMEND SECTION 56-1-1090, AS AMENDED, RELATING TO THE ISSUANCE OF A DRIVER'S LICENSE TO A HABITUAL OFFENDER, SO AS TO MAKE TECHNICAL CHANGES; TO AMEND SECTION 56-5-2942, RELATING TO THE IMMOBILIZATION OF A VEHICLE OWNED BY A PERSON WHO HAS BEEN CONVICTED OF CERTAIN DRIVING OFFENSES, SO AS TO REVISE THE PROCEDURE WHEREBY THE DEPARTMENT OF MOTOR VEHICLES PERMITS OR DENIES THE RELEASE OF AN IMMOBILIZED VEHICLE, AND WHEREBY AN OWNER OF A VEHICLE MAY SEEK RELIEF FROM A DECISION TO HAVE A VEHICLE IMMOBILIZED; TO AMEND SECTION 56-5-2951, AS AMENDED, RELATING TO THE SUSPENSION OF THE DRIVER'S LICENSE OF A PERSON WHO REFUSES TO SUBMIT TO TESTING TO DETERMINE HIS LEVEL OF ALCOHOL CONCENTRATION, SO AS TO MAKE TECHNICAL CHANGES; TO AMEND SECTION 56-5-2952, AS AMENDED, RELATING TO THE FILING FEE TO REQUEST AN ADMINISTRATIVE HEARING, SO AS TO MAKE TECHNICAL CHANGES; TO AMEND SECTION 56-9-60, AS AMENDED, RELATING TO SELF-INSURER'S FOR MOTOR VEHICLES, SO AS TO MAKE TECHNICAL CHANGES RELATING TO THE CANCELLATION OF A SELF-INSURER'S STATUS; TO AMEND SECTION 56-9-363, AS AMENDED, RELATING TO CERTAIN FORMS PRESCRIBED BY THE DEPARTMENT OF MOTOR VEHICLES, SO AS TO MAKE TECHNICAL CHANGES; TO AMEND SECTION 56-10-510, RELATING TO THE REGISTRATION OF AN UNINSURED MOTOR VEHICLE, SO AS TO MAKE TECHNICAL CHANGES; TO AMEND SECTION 56-10-530, RELATING TO AN UNINSURED VEHICLE INVOLVED IN CERTAIN ACCIDENTS, SO AS TO MAKE TECHNICAL CHANGES; TO AMEND SECTION 56-15-350 AND SECTION 56-16-180, BOTH AS AMENDED, RELATING TO THE DENIAL OF, THE ISSUANCE OF, SUSPENSION, AND REVOCATION OF A DRIVER'S LICENSE, SO AS TO MAKE TECHNICAL CHANGES.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 1-23-660 of the 1976 Code, as last amended by Act 387 of 2006, is further amended to read:
"Section 1-23-660. (A) There is created within the Administrative Law Court the Division Office of Motor Vehicle Hearings. The chief judge of the Administrative Law Court shall serve as the Director of the Division Office of Motor Vehicle Hearings. The duties, functions, and responsibilities of all hearing officers and associated staff of the Department of Motor Vehicles are devolved upon the Administrative Law Court effective January 1, 2006. The hearing officers and staff positions, together with the appropriations relating to these positions, are transferred to the Division Office of Motor Vehicle Hearings of the Administrative Law Court on January 1, 2006. The hearing officers and staff shall be appointed, hired, contracted, and supervised by the chief judge of the court and shall continue to exercise their present Department of Motor Vehicle adjudicatory functions, duties, and responsibilities under the auspices of the Administrative Law Court as directed by the chief judge and shall perform such other functions and duties as the chief judge of the court prescribes. All employees of the division office shall serve at the will of the chief judge. The chief judge is solely responsible for the administration of the division office, the assignment of cases, and the administrative duties and responsibilities of the hearing officers and staff. Notwithstanding another provision of law, the chief judge also has the authority to promulgate rules governing practice and procedures before the division Office of Motor Vehicle Hearings. These rules are subject to review as are the rules of procedure promulgated by the Supreme Court pursuant to Article V of the South Carolina Constitution. Notwithstanding the foregoing, and in addition to the assistant provided for in Section 1-23-580(B), the Administrative Law Court must hire and supervise a law clerk or other assistant solely to assist the judges who hear Department of Motor Vehicle Hearing appeals with the administration of those appeals. The law clerk or other assistant must be selected by a majority of the judges who hear Department of Motor Vehicle Hearing appeals. The position must be funded from the appropriations to hear cases from the Department of Motor Vehicles and must be filled before the support staff of the division shall assume their functions and duties with the court.
The State Budget and Control Board shall assist with all necessary actions to be taken to accomplish this transfer in consultation with the agency head of the transferring and receiving agencies.
(B) Notwithstanding another provision of law, the hearing officers shall conduct hearings in accordance with Chapter 23 of Title 1, the Administrative Procedures Act, and the rules of procedure for the Administrative Law Court Office of Motor Vehicle Hearings, at suitable locations as determined by the chief judge. For purposes of this section, any law enforcement agency that employs an officer who requested a breath test and any law enforcement agency that employs a person who acted as a breath test operator resulting in a suspension pursuant to Section 56-1-286 or 56-5-2951 is a party to the hearing and shall be served with appropriate notice, afforded the opportunity to request continuances and participate in the hearing, and provided a copy of all orders issued in the action. Representatives of the Department of Motor Vehicles are not required to appear at implied consent, habitual offender, financial responsibility, or point suspension hearings. However, if the Department of Motor Vehicles elects not to appear through a representative at any implied consent hearing, or through the submission of documentary evidence at any habitual offender, financial responsibility, or point suspension hearing, it must first file a motion for reconsideration with the Office of Motor Vehicle Hearings within ten days after receipt of the hearing officer's decision. The hearing officer must issue a written order upon the motion for reconsideration. If, upon consideration of the motion, the hearing officer determines that a rehearing concerning a question of fact is necessary, the Department of Motor Vehicles must appear at the rehearing in order to have the right to appeal the hearing officer's decision. If no rehearing is held, the Department of Motor Vehicles may file a notice of appeal with the Administrative Law Court within thirty days after receipt of the hearing officer's order on the motion for reconsideration. The Administrative Law Court must dismiss any appeal which does not meet the requirements of this subsection. The Department of Motor Vehicles shall continue to provide the existing locations within their facilities for such hearings as prescribed by the chief judge.
(C) The hearing officers are bound by the Code of Judicial Conduct, as contained in Rule 501 of the South Carolina Appellate Court Rules. The State Ethics Commission is responsible for the enforcement and administration of those rules and for the issuance of advisory opinions on the requirements of those rules for administrative law judges and hearing officers pursuant to the procedures contained in Section 8-13-320. Notwithstanding another provision of law, an administrative law judge or hearing officer, and the judge's or hearing officer's spouse or guest, may accept an invitation to and attend a judicial-related or bar-related function, or an activity devoted to the improvement of the law, the legal system, or the administration of justice.
(D) Appeals from decisions of the hearing officers must be taken to the Administrative Law Court pursuant to the court's appellate rules of procedure. Tape recordings Recordings of all hearings will be made part of the record on appeal, along with all evidence introduced at hearings, and copies will be provided to parties to those appeals at no charge. The chief judge shall not hear any appeals from these decisions. Nonetheless, the chief judge is not disqualified from, and remains responsible for, adjudicating cases under Section 1-23-600."
SECTION 2. Section 56-1-1030 of the 1976 Code, as last amended by Act 381 of 2006, is further amended to read:
"Section 56-1-1030. (A) When a person is convicted of one or more of the offenses listed in Section 56-1-1020(a), (b), or (c), the Department of Motor Vehicles must review its records for that person. If the department determines after review of its records that the person is an habitual offender as defined in Section 56-1-1020, the department must revoke or suspend the person's driver's license.
(B) If the department finds determines the person to be is an habitual offender, the department shall give notice of its determination to the person and direct the person not to operate a motor vehicle on the highways of this State and to surrender his driver's license or permit to the department. A resident of South Carolina found to be an habitual offender The notice must provide that a person aggrieved by the department determination may appeal the decision to file a request for a contested case hearing with the Division Office of Motor Vehicle Hearings in accordance with its rules of procedure to prove that the department's determination is incorrect. The Office of Motor Vehicle Hearings has exclusive jurisdiction to conduct these hearings."
SECTION 3. Section 56-1-1090 of the 1976 Code, as last amended by Act 381 of 2006, is further amended to read:
"Section 56-1-1090. No license to operate motor vehicles in this State may be issued to an habitual offender nor shall a nonresident habitual offender operate a motor vehicle in this State:
(a)(1) for a period of five years from the date of a final decision determination by the Department of Motor Vehicles that a person is an habitual offender and if, upon appeal after a contested case hearing, the finding determination is sustained upheld by a magistrate the Office of Motor Vehicle Hearings, unless the period is reduced to two years as permitted in item (c)(3);
(b)(2) until financial responsibility requirements are met;
(c)(3) until, upon petition to the Division of Motor Vehicle Hearings department on a form prescribed by it and for good cause shown, the hearing officer department may restore to the person the privilege to operate a motor vehicle in this State upon terms and conditions as the department may prescribe, subject to other provisions of law relating to the issuance of drivers' licenses. The petition permitted by this item may be filed after two years have expired from the beginning date of the decision of the department finding the person to be an habitual offender suspension and if the following conditions are met:
(a) the person must not have had a previous habitual offender suspension in this or another state;
(b) the person must not have driven a motor vehicle during the habitual offender suspension period;
(c) the person must not have been convicted of or have charges pending for any alcohol or drug violations committed during the habitual offender suspension period;
(d) the person must not have been convicted of or have charges pending for any offense listed in Section 56-1-1020 committed during the habitual offender suspension period; and
(e) the person must not have any other mandatory driver's license suspension that has not yet reached its end date. At this time and after hearing, the hearing officer The department may reduce the five-year period of item (a)(1) to a two-year period for good cause shown. If the two-year period is granted, it must run from the date of the final decision of the hearing officer department's determination. If the two-year period is not granted, no petition may be filed again until after five years have expired from the date of the decision of the hearing officer. However, a petition or court order is not required for the restoration of driving privileges, and the issuance of a license after the five-year waiting suspension period has expired and all financial responsibilities other conditions of law have been fulfilled. If the department denies the petition, the person may seek relief from the department's determination by filing a request for a de novo contested case hearing with the Office of Motor Vehicle Hearings pursuant to the Administrative Procedures Act and the rules of procedure for the Office of Motor Vehicle Hearings.
(4) If a person's privilege to operate a motor vehicle is restored pursuant to this section but the department subsequently determines that the person failed to give the required or correct information in his petition or during a hearing, or committed any fraud in making the petition or during his hearing, the department must suspend the person's driver's license pursuant to Section 56-1-240 for the remaining balance of the habitual offender suspension period. The person may seek relief from the department's determination by filing a request for a contested case hearing with the Office of Motor Vehicle Hearings pursuant to the Administrative Procedures Act and the rules of procedure for the Office of Motor Vehicle Hearings.
(5) If a person's privilege to operate a motor vehicle is restored pursuant to item (3), and if the person is convicted of a violation of any offense listed in Section 56-1-1020 that occurred during the original five-year habitual offender suspension period, the department must suspend the person's driver's license for the time period by which the habitual offender suspension had been reduced. The person may seek relief from the department's determination by filing a request for a contested case hearing with the Office of Motor Vehicle Hearings pursuant to the Administrative Procedures Act and the rules of procedure for the Office of Motor Vehicle Hearings."
SECTION 4. This act takes effect upon approval by the Governor.
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