South Carolina General Assembly
110th Session, 1993-1994

Bill 533


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Introducing Body:               Senate
Bill Number:                    533
Primary Sponsor:                J. Verne Smith
Committee Number:               15
Type of Legislation:            GB
Subject:                        DUI, chemical breath test
Residing Body:                  Senate
Current Committee:              Transportation
Companion Bill Number:          3638
Computer Document Number:       NO5/8942SD.93
Introduced Date:                19930310
Last History Body:              Senate
Last History Date:              19930310
Last History Type:              Introduced, read first time,
                                referred to Committee
Scope of Legislation:           Statewide
All Sponsors:                   J. Verne Smith
                                Hayes
                                Thomas
                                Wilson
                                Leatherman
                                Courson
                                Martin
                                Peeler
Type of Legislation:            General Bill



History


Bill  Body    Date          Action Description              CMN  Leg Involved
____  ______  ____________  ______________________________  ___  ____________

533   Senate  19930310      Introduced, read first time,    15
                            referred to Committee

View additional legislative information at the LPITS web site.


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

A BILL

TO AMEND SECTION 56-5-2950, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE IMPLIED CONSENT TO CHEMICAL BREATH TESTS TO DETERMINE THE PRESENCE OF ALCOHOL OR DRUGS IN OPERATORS OF MOTOR VEHICLES, SO AS TO INCREASE FROM NINETY TO ONE HUNDRED TWENTY DAYS THE TIME A DRIVER'S LICENSE MUST BE SUSPENDED FOR REFUSAL TO SUBMIT TO A CHEMICAL BREATH TEST, AND TO AMEND THE 1976 CODE BY ADDING SECTION 56-5-2953 SO AS TO PROVIDE THAT A PERSON CHARGED WITH DRIVING UNDER THE INFLUENCE WHOSE BLOOD ALCOHOL CONCENTRATION IS TEN ONE-HUNDREDTHS OF ONE PERCENT OR MORE MUST HAVE HIS DRIVER'S LICENSE SUSPENDED FOR A PERIOD OF THREE MONTHS WHETHER OR NOT A CRIMINAL CONVICTION RESULTS, TO ESTABLISH CERTAIN PROCEDURAL REQUIREMENTS PERTAINING TO THIS PROVISION, AND TO ESTABLISH CERTAIN PROCEDURES WHEREBY PERSONS WHO REFUSE TO SUBMIT TO CHEMICAL BREATH TESTS OR WHOSE BLOOD ALCOHOL CONCENTRATION IS TEN ONE-HUNDREDTHS OF ONE PERCENT OR MORE SHALL HAVE THEIR DRIVER'S LICENSES IMMEDIATELY SEIZED AND THE REQUIRED SUSPENSION EXPEDITED.

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

SECTION 1. The purposes of this act are:

(1) to provide safety for all persons using the highways of this State by quickly revoking the driving privilege of those persons who have shown themselves to be safety hazards by driving with an excessive concentration of alcohol in their bodies; and

(2) to guard against the potential for any erroneous deprivation of the driving privilege by providing an opportunity for administrative review before the effective date of the suspension and an opportunity for a full hearing as quickly as possible after the suspension becomes effective; and

(3) following the suspension period, to prevent the relicensing of these persons until the department is satisfied that their alcohol problem is under control and that they no longer constitute a safety hazard to other highway users.

SECTION 2. (A) Section 56-5-2950(a) of the 1976 Code is amended to read:

"(a) Any person who operates 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 if arrested for any offense arising out of acts alleged to have been committed while the person was operating a motor vehicle while under the influence of alcohol, drugs, or a combination of them. Any test must be administered at the direction of a law enforcement officer who has apprehended a person for operating 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 alcohol concentration of his blood. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious, dead, or for any other reason considered acceptable by the licensed medical personnel, a blood sample may 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 breathalyzer reading is ten one-hundredths of one percent by weight of alcohol in the person's blood 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 not administer the tests. Blood and urine samples must be taken 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 take the samples in a licensed medical facility. Blood samples or urine samples must be obtained and handled in accordance with procedures approved by SLED. No tests may be administered or samples taken unless the person has been informed that he does not have to take the test or give the samples but that his privilege to drive must be suspended or denied for ninety one hundred twenty days if he refuses to submit to the tests.

A hospital, physician, qualified technician, chemist, or registered nurse who takes the samples or conducts the test or participates in the process of taking the samples or conducting the test in accordance with this section is not subject to a cause of action for assault, battery, or any other 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 taking the samples or conducting the test. This qualified release also applies to the employer of the person who conducts the test or takes 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 of that right. A person's failure to request additional blood or urine tests shall not be 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 taken at the direction of the law enforcement officer.

The arresting officer shall provide reasonable assistance to the person to contact a qualified person to conduct additional tests.

SLED shall administer the provisions of this subsection and may 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 fee of fifty dollars is assessed at the time of sentencing persons convicted of, pleading guilty or nolo contendere to, or forfeiting bond for violating Section 56-5-2930 or 56-5-2945. This fee must be forwarded by the county treasurer to the general fund of the State to defray any costs incurred by SLED and individuals and institutions obtaining the samples forwarded to SLED.

A qualified person who obtains samples or administers the tests or assists in obtaining samples or 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 manner. No person may be required by the arresting officer, or by any other law enforcement officer, to obtain or take any sample of blood or urine."

(B) Section 56-5-2950(d) of the 1976 Code is amended to read:

"(d) If a person under arrest refuses, upon the request of a law enforcement officer, to submit to chemical tests as provided in subsection (a) of this section, none may be given, but the South Carolina Department of Highways and Public Transportation, on the basis of a report of the law enforcement officer that the arrested person was operating a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of them and that the person had refused to submit to the tests shall suspend his license or permit to drive, or any nonresident operating privilege for a period of ninety one hundred twenty days. If the person is a resident without a license or permit to operate a motor vehicle in this State, the Department of Highways and Public Transportation shall deny to the person the issuance of a license or permit for a period of ninety one hundred twenty days after the date of the alleged violation. The ninety-day one hundred twenty-day period of suspension begins with the day after the date of the notice required to be given, unless a hearing is requested as provided, in which case the ninety-day one hundred twenty-day period begins with the day after the date of the order sustaining the suspension or denial of issuance. The report of the arresting officer must include what grounds he had for believing that the arrested person had been operating a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of them. If the arrested person took the chemical breath test but refused to provide a blood or urine sample, the report of the arresting officer must include what were his grounds for believing that the arrested person was under the influence of drugs other than alcohol. If a person who refuses, upon the request of a law enforcement officer, to submit to chemical tests as provided in subsection (a) of this section, pleads guilty or nolo contendere to, or forfeits bond for a first offense violation of Section 56-5-2930, within thirty days of arrest, the period of the suspension of driving privileges under this section must be canceled and any suspension of driving privileges under Section 56-5-2990 for a first conviction may not exceed six months."

SECTION 3. The 1976 Code is amended by adding:

"Section 59-5-2953. (A) The department must suspend the license of a person upon its determination that the person operated a motor vehicle while the alcohol concentration in the person's blood, urine, or breath was ten one-hundredths of one percent or more. For purposes of this section, `alcohol concentration' means either grams of alcohol per one hundred milliliters of blood or urine or grams of alcohol per two hundred ten liters of breath.

The department must make a determination of these facts on the basis of the report of a law enforcement officer pursuant to subsection (B), and this determination is final unless an administrative review is conducted under subsection (F) or a hearing is held under subsection (G).

The determination of these facts by the department is independent of the determination of the same or similar facts in the adjudication of any criminal charge arising out of the same occurrence. The disposition of a criminal charge does not affect a suspension under this section.

(B) A law enforcement officer who arrests a person for a violation of Section 56-5-2930 or 56-5-2945 immediately shall forward to the department a sworn report of all information relevant to the enforcement action, including information adequately identifying the arrested person, a statement of the officer's grounds for belief that the person violated Section 56-5-2930 or 56-5-2945, and a report of the results of any tests conducted on the person's breath, blood or urine or the person's refusal to submit to a test.

The report required by this subsection must be made on forms supplied by the South Carolina Law Enforcement Division or in a manner approved by the South Carolina Law Enforcement Division.

(C) Upon receipt of the report of the law enforcement officer, the department shall make the determination described in subsection (A). If the department determines that the person is subject to license suspension, and if Notice of Suspension has not already been served upon the person by the officer as required in subsection (D), the department shall issue a notice of suspension.

This notice of suspension must be mailed to the person at the last known address in the department's driver records and to the address provided by the officer's report if that address differs from the address of record. The notice is deemed received three days after mailing.

The Notice of Suspension shall clearly specify the reason and statutory grounds for the suspension, the effective date of the suspension, the right of the person to request an administrative review and a hearing, the procedure for requesting an administrative review and a hearing, and the date by which a request for an administrative review must be made in order to receive a determination before the effective date of the suspension.

If the department determines that the person is not subject to driver license suspension, the department shall notify the person of its determination and shall rescind any order of suspension served upon the person by the law enforcement officer or by the department.

(D) If the test results for a person who is being charged with a violation of Section 56-5-2930 or 56-5-2945 show an alcohol concentration of ten one-hundredths of one percent or more or if the person refuses to submit to a test in accordance with Section 56-5-2950, the officer, acting on behalf of the department, shall serve the notice of suspension personally on the arrested person.

When the law enforcement officer serves the notice of suspension, the officer shall take possession of any driver's license issued by this State which is held by the person. When the officer takes possession of a valid driver's license issued by this State, the officer, acting on behalf of the department, shall issue a temporary permit which is valid for fifteen days after its date of issuance.

A copy of the completed notice of suspension form, a copy of a completed temporary permit form, and any driver's license taken into possession under this section, must be forwarded to the department by the officer within two days of the date of arrest.

The department shall provide forms for notice of suspension and for temporary permits to law enforcement agencies.

(E) The license suspension becomes effective fifteen days after the subject person has received the notice of suspension as provided in subsection (D) or is deemed to have received the notice of suspension by mail as provided in subsection (C). The period of license suspension under this section is three months. Where a license is suspended under this section and the person is also convicted on criminal charges arising out of the same occurrence for a violation of Section 56-5-2945 or 56-5-2990, both the suspension under this section and the suspension under Section 56-5-2930 or 56-5-2945 must be imposed consecutively.

(F) A person who has received a notice of suspension under this section may request an administrative review. The request may be accompanied by a sworn statement and any other relevant evidence that the person wants the department to consider in reviewing the determination made pursuant to subsection (A).

When a request for administrative review is made, the department shall review the determination made pursuant to subsection (A). In the review, the department shall consider any relevant sworn statement or other evidence accompanying the request for the review and the sworn report of the law enforcement officer required by subsection (B). If the department determines, by a preponderance of the evidence, that the person operated a motor vehicle while having an alcohol concentration of ten one-hundredths of one percent or more, the department shall sustain the order of suspension. If the evidence does not support that determination, the department must rescind the order of suspension. The determination of the department upon administrative review is final unless a hearing is requested under subsection (G).

The department shall make a determination upon administrative review before the effective date of the suspension order if the request for the review is received by the department within eight days following service of the notice of suspension. If the request for administrative review is received by the department more than eight days following service of the notice of suspension, the department shall make its determination within seven days following the receipt of the request for review.

A request for administrative review does not stay the license suspension unless the department is unable to make a determination within seven days following the receipt of the request for review, in which case the department shall stay the suspension pending that determination.

The request for administrative review may be made by mail or in person at any motor vehicle office of the department. The department shall provide forms that the person may use to request an administrative review and to submit a sworn statement, but use of the forms is not required.

A person may request and be granted a hearing under subsection (G) without first requesting administrative review under this subsection. Administrative review is not available after a hearing is held.

(G) A person who has received a notice of suspension may make a written request for a review of the department's determination at a hearing. The request may, but need not, be made on a form available at each office of the department. If the person's driver's license has not been surrendered at the time the request for a hearing is made, the person must submit his driver's license along with the hearing request. Failure to surrender the license, if not previously surrendered, shall nullify the person's request for a hearing, and the department's earlier determination is final. A request for a hearing does not stay the license suspension.

The hearing must be scheduled to be held as quickly as practicable and no later than thirty days after receiving the request for a hearing. If the department is unable to schedule a hearing within thirty days of receiving the request for a hearing, the suspension must be stayed until the hearing is scheduled. The hearing must be held in the county where the arrest occurred unless the parties agree to a different location. The department shall provide a written notice of the time and place of the hearing to the party requesting the hearing at least ten days before the scheduled hearing unless the parties agree to waive this requirement. If the person who requested the hearing fails to appear without just cause, the right to a hearing is waived, and the department's earlier determination is final.

The only issues to be considered in an administrative hearing on the operation of a motor vehicle while the person's alcohol concentration was ten one-hundredths of one percent or greater is limited to whether:

(1) the person was placed under arrest;

(2) the person was advised of the consequences of registering an alcohol concentration of ten one-hundredths of one percent or greater;

(3) the person registered an alcohol concentration of ten one-hundredths of one percent or greater;

(4) the individual taking samples or administering tests was certified in accordance with this section; and

(5) samples given and tests administered were given in accordance in SLED procedure.

(H) The Administrative Procedures Act applies to this section except the time requirements specified in this section shall supersede those of the Administrative Procedures Act."

SECTION 4. This act takes effect January 1, 1994.

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