South Carolina General Assembly
113th Session, 1999-2000

Download This Version in Microsoft Word format

Bill 544


Indicates Matter Stricken
Indicates New Matter


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

Indicates Matter Stricken

Indicates New Matter

AMENDED THIRD TIME

February 22, 2000

S. 544

Introduced by Senators Hayes, J. Verne Smith, Alexander, Moore, Drummond, Ravenel, Setzler, Branton, Courson, Fair, Giese, Gregory, Grooms, Jackson, Thomas, Martin, McGill, Mescher, O'Dell, Peeler, Russell, Ryberg, Waldrep, Wilson and Leatherman

S. Printed 2/22/00--S. [SEC 2/23/00 4:03 PM]

Read the first time March 2, 1999.

            

A BILL

TO AMEND SECTION 56-5-2930, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE PROHIBITION AGAINST OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL OR ANOTHER SUBSTANCE, SO AS TO PROVIDE THAT IT IS UNLAWFUL TO OPERATE A MOTOR VEHICLE WITH AN ALCOHOL CONCENTRATION OF TEN ONE-HUNDREDTHS OF ONE PERCENT OR MORE, AND BY AMENDING SECTION 56-5-2950, AS AMENDED, RELATING TO A DRIVER'S IMPLIED CONSENT TO BE TESTED FOR ALCOHOL OR DRUGS, SO AS TO PROVIDE THAT A PERSON WHO HAS AN ALCOHOL CONCENTRATION OF TEN ONE-HUNDREDTHS OF ONE PERCENT OR MORE IS CONCLUSIVELY PRESUMED TO HAVE AN ILLEGAL ALCOHOL CONCENTRATION.

Amend Title To Conform

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

SECTION 1. Section 56-1-286(F)(2) of the 1976 Code, as last amended by Act 434 of 1998, is further amended to read:

"(F)(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, 56-5-2933, 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."

SECTION 2. Section 56-1-286(G)(2) of the 1976 Code, as last amended by Act 434 of 1998, is further amended to read:

"(G)(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, 56-5-2933, 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."

SECTION 3. Section 56-5-2930 of the 1976 Code, as last amended by Act 434 of 1998, is further 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) under the influence of alcohol to the extent that the person's faculties to drive are materially and appreciably impaired;

(2) under the 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) under the 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."

SECTION 4. Chapter 5, Title 56 of the 1976 Code is amended by adding:

"Section 56-5-2933. It is unlawful for a person to drive a motor vehicle within this State while his alcohol concentration is ten one-hundredths of one percent or more. A person who violates the provisions of this section is guilty of the offense of Driving With An Unlawful Alcohol Concentration. A person may be charged for a violation of Section 56-5-2930 but prosecuted pursuant to this section if the original testing of the person's breath or other bodily fluids was performed within one and one-half hours of the time of arrest and probable cause existed to justify the traffic stop. This section shall not apply to cases arising out of a stop at a traffic road block or driver's license check point. A person cannot be prosecuted for both a violation of Section 56-5-2930 and a violation of this section for the same incident. A person who violates the provisions of this section is entitled to a jury trial and is afforded the right to challenge certain factors including, but not limited to, the following:

(1) whether or not the person was lawfully arrested or detained;

(2) whether or not probable cause existed to justify the stop;

(3) the period of time between arrest and testing;

(4) whether or not the person was advised in writing of the rights enumerated in Section 56-5-2950;

(5) whether the person consented to taking a test pursuant to Section 56-5-2950, and the:

(a) reported alcohol concentration at the time of testing was ten 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) machine was working properly.

Nothing in this section prohibits (1) the introduction of the results of any additional tests of the person's breath or other bodily fluids or (2) the introduction of evidence on the issue of the accuracy of the breath test result.

At trial, a person charged with a violation of this section is entitled to a jury instruction stating that the factors enumerated above may be used by the jury to determine guilt or innocence."

SECTION 5. Section 56-5-2940 of the 1976 Code, as last amended by Act 434 of 1998, is amended to read:

"Section 56-5-2940. A person violating who violates a provision of Section 56-5-2930 or 56-5-2933, upon conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail, must be punished in accordance with the following:

(1)(a) By 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 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.

(2)(a) By by a fine of not less than two thousand dollars nor more than five thousand dollars and imprisonment for not less than forty-eight hours nor more than one year for the second offense. However, the fine imposed by this item may not be suspended in an amount less than one thousand dollars. In lieu of service of imprisonment, the court may require that the individual complete an appropriate term of public service employment of not less than ten days upon terms and conditions the court considers proper.

(3)(a) By by a fine of not less than three thousand, five hundred dollars nor more than six thousand dollars and imprisonment for not less than sixty days nor more than three years, for the third offense.

(4)(a) Imprisonment by imprisonment for not less than one year nor more than five years for a fourth offense or subsequent offense.

No part of the minimum sentences provided in this section must be suspended. The court may provide instead of service other sentences provided in this section. For a third or subsequent offense or for a violation of Section 56-5-2945 for great bodily injury, the service of the minimum sentence is mandatory. However, the judge may provide for the sentence to be served upon terms and conditions as he considers proper including, but not limited to, weekend service or nighttime service in any fashion he considers necessary.

The fine for a first offense may not be suspended. The court is prohibited from suspending a monetary fine below that of the next preceding minimum monetary fine.

For the purposes of this chapter any conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail, for the violation of any law or ordinance of this or any other state or any municipality of this or any other state that prohibits any person from operating a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics shall constitute a prior offense for the purpose of any prosecution for any subsequent violation hereof. Only those offenses violations which occurred within a period of ten years including and immediately preceding the date of the last offense violation shall constitute prior offenses violations within the meaning of this section.

Upon imposition of a sentence of public service, the defendant may apply to the court to be allowed to perform his public service in his county of residence if he has been sentenced to public service in a county where he does not reside."

SECTION 6. Section 56-5-2950(b) of the 1976 Code, as last amended by Act 434 of 1998, is further amended to read:

"(b) In the criminal prosecution for a violation of Section 56-5-2930, 56-5-2933, 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.

(4) If the alcohol concentration was at that time ten one-hundredths of one percent or more and the original testing of the person's breath or other bodily fluids was performed within one and one-half hours of the time of arrest, the person has violated Section 56-5-2933.

Except for item (4), The 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."

SECTION 7. Section 56-5-2951(A) of the 1976 Code, as last amended by Act 115 of 1999, is further amended to read:

"(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, 56-5-2933, or Section 56-5-2945."

SECTION 8. Section 56-5-2951(D) of the 1976 Code, as last amended by Act 115 of 1999, is further amended to read:

"(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. If the suspension is upheld at the administrative hearing, the temporary alcohol restricted license shall remain in effect until the department issues the hearing officer's decision and sends notice to the person that he is eligible to receive a special restricted license pursuant to subsection (J); 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, 56-5-2933, or Section 56-5-2945."

SECTION 9. Section 56-5-2951(K)(1) and (2) of the 1976 Code, as last amended by Act 115 of 1999, is further amended to read:

"(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, 56-5-2933, 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, 56-5-2933, 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."

SECTION 10. Section 56-5-2951(P) of the 1976 Code, as last amended by Act 115 of 1999, is further amended to read:

"(P) 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, 56-5-2933, 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."

SECTION 11. Section 56-5-2953(A) and (B) of the 1976 Code, as added by Act 434 of 1998, are further amended to read:

"(A) A person who violates Section 56-5-2930, 56-5-2933, 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, 56-5-2933, 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, 56-5-2933, 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."

SECTION 12. Section 56-5-2970 of the 1976 Code is amended to read:

"Section 56-5-2970. All clerks of court, magistrates, city recorders, and other public officers in this State having charge or responsibility with respect to convictions or of the entry of pleas of guilty or of nolo contendere or of the forfeitures of bail posted for violation of Section 56-5-2930, 56-5-2933, or for convictions or of the entry of pleas of guilty or of nolo contendere or of the forfeitures of bail posted for violations of any other laws or ordinances of this State that prohibit any person from operating a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics are required to report to the motor vehicle division of the Department department every such conviction, plea of guilty or of nolo contendere or bail forfeiture within ten days after such conviction, entry of a plea of guilty or of nolo contendere or forfeiture or after the receipt of such report, as the case may be. Such reports shall be made upon forms to be provided by the Department department, arranged in duplicate, and the director of the motor vehicle division of the Department department shall acknowledge the filing of each such report by signing the duplicate of such report and returning it to the officer making it, to be kept by such officer as evidence of his compliance with the requirement that he make such report.

Any person violating the provisions of this section shall be subject to a penalty of twenty-five dollars for each such failure, to be collected by the Attorney General or the solicitors of the State under the direction of the Attorney General and paid into the general funds fund of the State."

SECTION 13. Section 56-5-2980 of the 1976 Code is amended to read:

"Section 56-5-2980. In all trials and proceedings in any court of this State, in which the defendant is charged with a violation of Section 56-5-2920 or , 56-5-2930, or 56-5-2933 which forbid the operation of a vehicle in a reckless manner or by one while under the influence of intoxicants, drugs or narcotics, photostatic, optical disk, or other copies of the reports required to be filed with the department pursuant to Section 56-5-2970, when such copies are duly certified by the director of the department or his designee as true copies of the original on file therewith, shall be deemed prima facie evidence of the information contained on such reports for the purpose of showing any previous conviction, of the defendant in any other court. Copies of the reports must be duly certified by the director of the department or his designee as true copies. But, the accused may stipulate with the solicitor If the defendant stipulates that the charge constitutes a second or further subsequent offense, in which event the indictment shall not contain allegations of prior offenses, nor shall and evidence of such prior offenses must not be introduced."

SECTION 14. Section 56-5-2990(A) of the 1976 Code is amended to read:

"(A) 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, 56-5-2933, 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."

SECTION 15. Section 56-5-2990(F) of the 1976 Code is amended to read:

"(F) 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, 56-5-2933, 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)."

SECTION 16. Section 56-5-2995 of the 1976 Code is amended to read:

"Section 56-5-2995. (A) In addition to the penalties imposed for a first offense violation of Section 56-5-2930 or 56-5-2933 in magistrate's or municipal court, an additional assessment of twelve dollars must be added to any punishment imposed which must be remitted to the State Treasurer who shall then distribute the twelve dollar assessments in the manner provided in Section 14-1-201.

(B) In addition to the penalties and assessments imposed for a second or subsequent violation of Section 56-5-2930, 56-5-2933, or a violation of Section 56-5-2945 in general sessions court, an additional assessment of twelve dollars must be added to any punishment imposed which must be remitted to the State Treasurer who shall then distribute these twelve-dollar assessments in the manner provided in Section 14-1-201."

SECTION 17. Section 56-1-460 of the 1976 Code is amended to read:

"Section 56-1-460. (A) (1) Except as provided in subsection (A)(2), A a person who drives a motor vehicle on any public highway of this State when his license to drive is canceled, suspended, or revoked must, upon conviction, be punished as follows:

(a) for a first offense, be fined two hundred dollars or imprisoned for thirty days; for the first violation,

(b) for the a second violation offense, fined five hundred dollars and imprisoned for sixty consecutive days,; and

(c) for the a third and subsequent violation offense, imprisoned for not less than ninety days nor more than six months, no portion of which may be suspended by the trial judge.

Notwithstanding the provisions of Sections 22-3-540, 22-3-545, and 22-3-550, an offense punishable under this item must be tried exclusively in magistrate's court.

(2) A person who drives a motor vehicle on any public highway of this State when his license has been suspended or revoked pursuant to the provisions of Section 56-5-2990 must, upon conviction, be punished as follows:

(a) for a first offense, imprisoned for not less than ten nor more than thirty days;

(b) for a second offense, imprisoned for not less than sixty days nor more than six months;

(c) for a third and subsequent offense, not less than six months nor more than three years.

No portion of the minimum sentence imposed under this item may be suspended.

(B) The department upon receiving a record of the conviction of any person under this section upon a charge of driving a vehicle while his license was suspended for a definite period of time shall extend the period of the suspension for an additional like period. If the original period of suspension has expired or terminated before trial and conviction, the department shall again suspend the license of the person for an additional like period of time. If the suspension is not for a definite period of time, the suspension must be for an additional three months. If the license of a person cited for a violation of this section is suspended solely pursuant to the provisions of Section 56-25-20, then the additional period of suspension pursuant to this section is thirty days and the person does not have to offer proof of financial responsibility as required under Section 56-9-500 prior to his license being reinstated. If the conviction was upon for a charge of driving while a license was revoked, the department shall not issue a new license for an additional period of one year from the date the person could otherwise have applied for a new license. Only those violations which occurred within a period of five years including and immediately preceding the date of the last violation constitute prior violations within the meaning of this section.

If the license of the person convicted was suspended pursuant to the provisions of Section 56-5-2990, then he must be punished as follows and no part of the minimum sentence may be suspended:

(1) for a first offense, imprisoned for not less than ten nor more than thirty days;

(2) for a second offense, imprisoned for not less than sixty days nor more than six months;

(3) for a third and subsequent offense, not less than six months nor more than three years."

SECTION 18. However, in the event the alcohol concentration level for driving under the influence of alcohol or other intoxicating substance offenses changes from ten one-hundredths of one percent or more to eight one-hundredths of one percent or more as provided by law, Sections 56-5-2933 and 56-5-2950(b)(4) of the 1976 Code do not apply to alcohol concentration levels between eight one-hundredths of one percent up to ten one-hundredths of one percent and instead, for this range, there is an inference that the person was under the influence of alcohol or other such substances.

SECTION 19. Section 56-1-286 (H) through (U) of the 1976 Code, as last amended by Act 434, is amended to read:

"(H) A person's driver's license, permit, or nonresident operating privilege must be restored when the person's period of suspension under subsection (F) or (G) has concluded, even if the person has not yet completed the Alcohol and Drug Safety Action Program in which he is enrolled. After the person's driving privilege is restored, he must continue to participate in the Alcohol and Drug Safety Action Program in which he is enrolled. If the person withdraws from or in any way stops making satisfactory progress toward the completion of the Alcohol and Drug Safety Action Program, the person's license shall be suspended until he completes the Alcohol and Drug Safety Action Program. A person must be attending or have completed an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 before his driving privilege can be restored at the conclusion of the suspension period.

(I) 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)(J) 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)(K) 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)(L) 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)(M) 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)(N) 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)(O) An administrative hearing must be held within ten thirty 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. If the department does not schedule the hearing within thirty days, a written order must be issued by the department within ten days. The order must set forth the reasons why the hearing was not held within thirty days, and a new hearing must be scheduled. If the department does not issue a written order within ten days or fails to schedule or hold a subsequent hearing, the person shall have his driver's license, permit, or nonresident operating privilege reinstated. 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 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)(P) 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)(Q) 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)(R) When a nonresident's privilege to drive a motor vehicle in this State has been suspended under the provisions 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)(S) 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)(T) A person whose driver's license or permit is suspended under this section is not required to file proof of financial responsibility.

(T)(U) The department shall administer the provisions of this section, not including subsection (D), and shall promulgate regulations necessary to carry out its provisions.

(U)(V) 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."

SECTION 20. If any provision of this act or application thereof to any person or circumstance is held invalid, such invalidity shall not affect the other provisions or applications of the act which can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.

SECTION 21. The provisions of this act shall not take effect until the Chief of the State Law Enforcement Division certifies to the President Pro Tempore of the Senate and the Speaker of the House of Representatives that all breath test sites in the State have been equipped with video cameras so that a person's conduct may be videotaped pursuant to Section 56-5-2953(A)(2).

----XX----

This web page was last updated on Friday, June 26, 2009 at 3:09 P.M.