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H. 3706
STATUS INFORMATION
General Bill
Sponsors: Rep. Talley
Document Path: l:\council\bills\swb\5231cm03.doc
Introduced in the House on February 26, 2003
Currently residing in the House Committee on Judiciary
Summary: Grossly intoxicated, driving a motor vehicle while is unlawful; provisions, penalties
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 2/26/2003 House Introduced and read first time HJ-117 2/26/2003 House Referred to Committee on Judiciary HJ-120
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND SECTION 56-1-1320, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ISSUANCE OF A PROVISIONAL DRIVER'S LICENSE, SO AS TO PROVIDE THAT A PERSON WHO IS CONVICTED OF DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR, DRUGS, OR NARCOTICS, AND WHOSE ALCOHOL CONCENTRATION WAS SIXTEEN ONE-HUNDREDTHS OF ONE PERCENT OR MORE MAY NOT OBTAIN A PROVISIONAL DRIVER'S LICENSE; BY ADDING SECTION 56-5-2931 SO AS TO PROVIDE THAT IT IS ILLEGAL TO DRIVE A MOTOR VEHICLE WHILE GROSSLY INTOXICATED, AND TO PROVIDE A PENALTY; TO AMEND SECTION 56-5-2934, RELATING TO A PERSON'S RIGHT TO COMPULSORY PROCESS WHEN CHARGED WITH CERTAIN ALCOHOL OR DRUG RELATED MOTOR VEHICLE OFFENSES, SO AS TO PROVIDE THAT A PERSON CHARGED WITH OPERATING A MOTOR VEHICLE WHILE GROSSLY INTOXICATED HAS A RIGHT TO COMPULSORY PROCESS; TO AMEND SECTION 56-5-2935, RELATING TO A PERSON'S RIGHT TO HAVE A JURY TRIAL WHEN CHARGED WITH CERTAIN ALCOHOL OR DRUG RELATED MOTOR VEHICLE OFFENSES, SO AS TO PROVIDE THAT A PERSON CHARGED WITH OPERATING A MOTOR VEHICLE WHILE GROSSLY INTOXICATED IS ENTITLED TO A JURY TRIAL; TO AMEND SECTION 56-5-2941, RELATING TO THE INSTALLATION OF AN IGNITION INTERLOCK DEVICE ON THE VEHICLE OF A PERSON WHO IS CONVICTED OF CERTAIN ALCOHOL OR DRUG RELATED MOTOR VEHICLE OFFENSES, SO AS TO PROVIDE THAT A PERSON CONVICTED OF OPERATING A MOTOR VEHICLE WHILE GROSSLY INTOXICATED MAY HAVE AN IGNITION INTERLOCK DEVICE INSTALLED ON HIS MOTOR VEHICLE; TO AMEND SECTION 56-5-2947, AS AMENDED, RELATING TO THE OFFENSE OF CHILD ENDANGERMENT, SO AS TO PROVIDE THAT UNDER CERTAIN CIRCUMSTANCES WHEN A PERSON OPERATES A MOTOR VEHICLE WHILE GROSSLY INTOXICATED, HE IS GUILTY OF CHILD ENDANGERMENT; TO AMEND SECTION 56-5-2950, AS AMENDED, RELATING TO A PERSON WHO DRIVES A MOTOR VEHICLE GIVING CONSENT TO CHEMICAL TESTS OF HIS BREATH, BLOOD, OR URINE TO DETERMINE THE PRESENCE OF ALCOHOL, DRUGS, OR A COMBINATION OF ALCOHOL AND DRUGS IN A PERSON'S SYSTEM, SO AS TO PROVIDE THAT IF A PERSON OPERATES A MOTOR VEHICLE WITH AN ALCOHOL CONCENTRATION OF SIXTEEN ONE-HUNDREDTHS OF ONE PERCENT OR MORE, IT MAY BE INFERRED THAT THE PERSON IS GROSSLY INTOXICATED; TO AMEND SECTION 56-5-2951, AS AMENDED, RELATING TO THE SUSPENSION OF A PERSON'S DRIVER'S LICENSE WHO REFUSES TO SUBMIT TO CERTAIN TESTS TO DETERMINE THE LEVEL OF HIS ALCOHOL CONCENTRATION, SO AS TO PROVIDE THAT THIS PROVISION APPLIES TO A PERSON CHARGED WITH OPERATING A MOTOR VEHICLE WHILE GROSSLY INTOXICATED; TO AMEND SECTION 56-5-2953, AS AMENDED, RELATING TO THE VIDEOTAPING OF THE INCIDENT AND BREATH TEST SITE AND THE ADMISSIBILITY OF EVIDENCE WHEN A PERSON IS CHARGED WITH AN ALCOHOL OR DRUG RELATED MOTOR VEHICLE OFFENSE, SO AS TO PROVIDE THAT THIS PROVISION APPLIES TO A PERSON WHO IS CHARGED WITH OPERATING A MOTOR VEHICLE WHILE GROSSLY INTOXICATED; TO AMEND SECTION 56-5-2970, AS AMENDED, RELATING TO CERTAIN COURT OFFICIALS WHO ARE CHARGED WITH REPORTING VIOLATIONS OF CERTAIN ALCOHOL OR DRUG RELATED MOTOR VEHICLE OFFENSES TO THE MOTOR VEHICLE DIVISION, SO AS TO PROVIDE THAT THIS PROVISION APPLIES TO THE OFFENSE OF OPERATING A MOTOR VEHICLE WHILE GROSSLY INTOXICATED; TO AMEND SECTION 56-5-2980, AS AMENDED, RELATING TO COPIES OF CERTAIN REPORTS THAT RELATE TO A PERSON'S PREVIOUS CONVICTIONS FOR VIOLATING CERTAIN ALCOHOL OR DRUG RELATED MOTOR VEHICLE OFFENSES TO BE CONSIDERED PRIMA FACIE EVIDENCE, SO AS TO PROVIDE THAT THIS PROVISION APPLIES TO THE OFFENSE OF OPERATING A MOTOR VEHICLE WHILE GROSSLY INTOXICATED; TO AMEND SECTION 56-5-2990, AS AMENDED, RELATING TO THE SUSPENSION OF THE DRIVER'S LICENSE OF A PERSON CONVICTED OF CERTAIN ALCOHOL OR DRUG RELATED MOTOR VEHICLE OFFENSES, SO AS TO PROVIDE THAT THIS PROVISION APPLIES TO A PERSON CONVICTED OF OPERATING A MOTOR VEHICLE WHILE GROSSLY INTOXICATED, AND TO PROVIDE PERIODS OF DRIVER'S LICENSE SUSPENSIONS FOR PERSONS CONVICTED OF OPERATING A MOTOR VEHICLE WHILE GROSSLY INTOXICATED; AND TO AMEND SECTION 56-5-2995, AS AMENDED, RELATING TO THE ADDITIONAL ASSESSMENT THAT MUST BE IMPOSED UPON A PERSON CONVICTED OF CERTAIN ALCOHOL OR DRUG RELATED MOTOR VEHICLE OFFENSES, SO AS TO PROVIDE THAT THIS PROVISION APPLIES TO A PERSON CONVICTED OF OPERATING A MOTOR VEHICLE WHILE GROSSLY INTOXICATED.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 56-1-1320 of the 1976 Code, as last amended by Act 79 of 2001, is further amended by adding at the end:
"(C) A person convicted of a municipal ordinance or law of this State that prohibits a person from operating a vehicle under the influence of intoxicating liquor, drugs, or narcotics, and whose alcohol concentration was sixteen one-hundredths of one percent or more at the time of the offense, may not obtain a provisional driver's license."
SECTION 2. Article 32, Chapter 5, Title 56 of the 1976 Code is amended by adding:
"Section 56-5-2931. (A) A person is grossly intoxicated if he drives a motor vehicle while under the influence of intoxicating liquors, drugs, or a similar substance and his manner, disposition, speech, muscular movement, general appearance, or behavior is affected grossly by the influence of intoxicating liquor, drugs, or a similar substance and, at the time of the offense, the person's alcohol concentration was sixteen one-hundredths of one percent or more.
(B) A person who violates the provisions of this section must, upon conviction, be punished in the following manner:
(1) by a fine of not less than three thousand dollars or more than five thousand dollars and imprisonment not less than forty-eight hours or more than one year for the first offense. In addition to the forty-eight hour minimum imprisonment, the court may provide for forty-eight hours of public service employment upon terms and conditions the court considers proper;
(2) by a fine of not less than six thousand dollars or more than seven thousand five hundred dollars, and imprisonment for not less than sixty days or more than three years for the second offense;
(3) by imprisonment for not less than one year or more than five years for the third offense; or
(4) by imprisonment for not less than five years or more than ten years for the fourth or subsequent offense.
No part of the minimum sentences provided in this section may be suspended. The court may provide instead of service other sentences provided in this section. For a third or subsequent offense 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 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. Only those violations which occurred within a period of ten years including and immediately preceding the date of the last violation shall constitute prior 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 3. Section 56-5-2934 of the 1976 Code, as added by Act 390 of 2000, is amended to read:
"Section 56-5-2934. Notwithstanding any other provision of law, a person charged with a violation of Section 56-5-2930, 56-5-2931, 56-5-2933, or 56-5-2945 who is being tried in any court of competent jurisdiction in this State shall have the right to compulsory process for obtaining witnesses, documents, or both, including, but not limited to, state employees charged with the maintenance of breath testing devices in this State and the administration of breath testing pursuant to this article. Such process may be issued under the official signature of the magistrate, judge, clerk, or other officer of the court of competent jurisdiction. The term 'documents' includes, but is not limited to, a copy of the computer software program of breath testing devices.
In addition, at the time of arrest for a violation of Section 56-5-2930, 56-5-2931, 56-5-2933, or 56-5-2945, the arresting officer, in addition to other notice requirements, must inform the defendant of his right to all hearings provided by law to include those if a breath test is refused or taken with a result that would require license suspension. The arresting officer, if the defendant wishes to avail himself of any such hearings, depending on the choices made or the breath test results obtained, shall then provide the defendant with the appropriate form to request the hearing or hearings. The defendant shall acknowledge receipt of the notice requirements and receipt of the hearing form if such a hearing or hearings are desired. The defendant may at this time complete the hearing request form and give it to the officer who shall in turn forward it to the department."
SECTION 4. Section 56-5-2935 of the 1976 Code, as added by Act 390 of 2000, is amended to read:
"Section 56-5-2935. Notwithstanding any other provision of law, a person charged with a violation of Section 56-5-2930, 56-5-2931, 56-5-2933, or 56-5-2945 who is being tried in any court of competent jurisdiction in this State must have the right of trial by jury. A person charged with one or more of these offenses shall enjoy the right to a speedy and public trial by an impartial jury, to be fully informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses, documents, or both, and the right to be fully heard in his defense by himself or by his counsel or, by both."
SECTION 5. Section 56-5-2941 of the 1976 Code, as added by Act 390 of 2000, is amended to read:
"Section 56-5-2941. In addition to the penalties required and authorized to be imposed against a person violating the provisions of Section 56-5-2930, 56-5-2931, 56-5-2933, or 56-5-2945, the court may require such person, whether or not he is a first or subsequent offender and if he is a resident of this State, to have installed on the vehicle he was operating if it is registered and licensed in his name or in the name of a member of his immediate family an ignition interlock device designed to prevent the operation of the motor vehicle if the operator has consumed alcoholic beverages. The court in imposing the requirements of this section shall specify the length of time which the interlock device is required to be affixed to the vehicle, shall provide that the cost of the interlock device must be borne by the offender, and shall require the offender to periodically report to appropriate law enforcement or probation authorities for the purpose of verifying that the interlock device is affixed to the vehicle and operational during the time required by the court. The State Law Enforcement Division, in consultation with the department, shall develop regulations including, but not limited to, regulations governing the use, maintenance, and operation of ignition interlock devices.
If the offender is determined to be indigent by the court and cannot afford the cost of the ignition interlock device, the court may order an interlock device to be affixed to the vehicle and paid for by the jurisdiction making the arrest from fines paid pursuant to Sections 56-5-2930, 56-5-2931, 56-5-2933, and 56-5-2945."
SECTION 6. Section 56-5-2947(A) of the 1976 Code, as last amended by Act 14 of 1997, is further amended to read:
"(A) A person eighteen years of age or over is guilty of child endangerment when:
(1) the person is in violation of:
(a) Section 56-5-750;
(b) Section 56-5-2930; or
(c) Section 56-5-2931;
(d) Section 56-5-2933; or
(e) Section 56-5-2945; and
(2) the person has one or more passengers under sixteen years of age in the motor vehicle when the violation occurs.
If more than one passenger under sixteen years of age is in the vehicle when a violation of subsection (A)(1) occurs, the person may be charged with only one violation of this section."
SECTION 7. Section 56-5-2950 of the 1976 Code, as last amended by Act 390 of 2000, is further amended to read:
"Section 56-5-2950. (a)(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 the department, pursuant to SLED policies. 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 thirty days of the issuance of the notice of suspension; and
(5) he must enroll in an Alcohol and Drug Safety Action Program within thirty 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 request or 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)(B) In the criminal prosecution for a violation of Section 56-5-2930, 56-5-2931, 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 collection of other bodily body fluids was performed within two hours of the time of arrest, the person has violated Section 56-5-2933.
(5) If the alcohol concentration was at the time sixteen one-hundredths of one percent or more, it may be inferred that the person was grossly intoxicated and has violated the provisions contained in Section 56-5-2931.
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)(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) (A) of this section.
(d)(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."
SECTION 8. Section 56-5-2951 of the 1976 Code, as last amended by Act 354 of 2002, is further amended to read:
"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, 56-5-2931, 56-5-2933, or 56-5-2945.
(B) If the test registers an alcohol concentration of ten one-hundredths of one percent or more, the person, within thirty 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 thirty 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 thirty 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 one hundred 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 seventy-five dollars must be placed by the Comptroller General into a special restricted account to be used by the department to defray the expenses of the Division of Motor Vehicles. 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, 56-5-2931, 56-5-2933, or 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 thirty 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 thirty days after the request for the hearing is received by the department. If the department does not hold the hearing within thirty days, a written order must be issued by the department within thirty 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 thirty days or fails within thirty days to notify the defendant of a new 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 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
(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 special restricted license also shall permit him to drive to and from the Alcohol Drug Safety Action Program classes or to a court-ordered drug program. 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, place of education, or location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program.
(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, status of attendance of Alcohol and Drug Safety Action Program classes, status of attendance of his court-ordered drug program, or residence must be reported immediately to the department by the licensee.
(3) The fee for a special restricted driver's license is one hundred dollars, but no additional fee is due because of changes in the place and hours of employment, education, or residence. Twenty dollars of this fee must be deposited in the state general fund and eighty dollars must be placed by the Comptroller General into a special restricted account to be used by the department to defray the expenses of the Division of Motor Vehicles.
(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, 56-5-2931, 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, 56-5-2931, 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.
(L) A person's driver's license, permit, or nonresident operating privilege must be restored when the person's period of suspension under subsection (K) 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 the services of 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 the completion of 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.
(M) 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.
(N) 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.
(O) A person whose driver's license or permit is suspended pursuant to this section is not required to file proof of financial responsibility.
(P) An insurer may not increase premiums on or add surcharges to the automobile insurance of a person charged with a violation of Section 56-1-286, 56-5-2930, 56-5-2931, 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.
(Q) The department shall administer the provisions of this section and shall promulgate regulations necessary to carry out its provisions.
(R) If a person does not request an administrative hearing within the ten-day period as authorized pursuant to this section, the person may file with the department a form after enrolling in an approved Alcohol and Drug Safety Action Program to apply for a special restricted driver's license. 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 special restricted license also shall permit him to drive to and from Alcohol and Drug Safety Action Program classes or a court-ordered drug program. The department may issue the special restricted driver's license at any time following the suspension upon a 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, place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program. The department 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, status of attendance of Alcohol and Drug Safety Action Program classes, status of his court-ordered drug program, or residence must be reported immediately to the department by the licensee. The route restrictions, requirements, and fees imposed by the department for the issuance of the special restricted driver's license issued pursuant to this item are the same as those provided in this section had the person requested an administrative hearing. A special restricted driver's license is valid until the person successfully completes an approved Alcohol and Drug Safety Action Program, unless the person fails to complete or make satisfactory progress to complete the program."
SECTION 9. Section 56-5-2953(A) and (B) of the 1976 Code, as last amended by Act 390 of 2000, is further amended to read:
"(A) A person who violates Section 56-5-2930, 56-5-2931, 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, 56-5-2931, 56-5-2933, 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, 56-5-2931, 56-5-2933, 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, 56-5-2931, 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, 56-5-2931, 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 10. Section 56-5-2970 of the 1976 Code, as last amended by Act 390 of 2000, is further 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, 56-5-2931, 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 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, arranged in duplicate, and the director of the motor vehicle division of the 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 fund of the State."
SECTION 11. Section 56-5-2980 of the 1976 Code, as last amended by Act 390 of 2000, is further 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, 56-5-2930, 56-5-2931, or 56-5-2933, photostatic, optical disk, or other copies of the reports required to be filed with the department pursuant to Section 56-5-2970 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. If the defendant stipulates that the charge constitutes a second or subsequent offense, the indictment shall not contain allegations of prior offenses and evidence of such prior offenses must not be introduced."
SECTION 12. Section 56-5-2990 of the 1976 Code, as last amended by Act 354 of 2002, is further amended to read:
"Section 56-5-2990. (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, 56-5-2931, 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. A person who was grossly intoxicated pursuant to Section 56-5-2931 must have his driver's license suspended for: one year for the first conviction, plea of guilty or nolo contendere, or forfeiture of bail; two years for the second conviction, plea of guilty or nolo contendere, or forfeiture of bail; three years for the third conviction, plea of guilty or nolo contendere, or forfeiture of bail; and permanent revocation of the driver's license for a fourth or subsequent offense. 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.
(B) A person whose license is suspended under the provisions of this section, Section 56-1-286, or Section 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. A person who must complete an Alcohol and Drug Safety Action Program as a condition of reinstatement of his driving privileges or a court-ordered drug program may use the route restricted or special restricted driver's license to attend the Alcohol and Drug Safety Action Program classes or court-ordered drug program in addition to the other permitted uses of a route restricted driver's license or a special restricted driver's 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 whose license is suspended pursuant to this section. The Alcohol and Drug Safety Action Program shall determine if the applicant has successfully completed the services. Alcohol and Drug Safety Action Programs shall meet at least once a month. The person whose license is suspended must attend the first Alcohol and Drug Safety Action Program available after the date of enrollment.
(C) The Department of Alcohol and Other Drug Abuse Services shall determine the cost of services provided by each certified Alcohol and Drug Safety Action Program. Each applicant shall bear the cost of services recommended in the applicant's plan of education or treatment. The cost may not exceed five hundred dollars for education services, two thousand dollars for treatment services, and two thousand five hundred dollars in total for all services. No applicant may be denied services due to an inability to pay. Inability to pay for services may not be used as a factor in determining if the applicant has successfully completed services. An applicant who is unable to pay for services shall perform fifty hours of community service as arranged by the Alcohol and Drug Safety Action Program, which may use the completion of this community service as a factor in determining if the applicant has successfully completed services. The Department of Alcohol and Other Drug Abuse Services will report annually to the House Ways and Means Committee and Senate Finance Committee on the number of first and multiple offenders completing the Alcohol and Drug Safety Action Program, the amount of fees collected and expenses incurred by each Alcohol and Drug Safety Action Program, and the number of community service hours performed in lieu of payment.
(D) If the applicant has not successfully completed the services as directed by the Alcohol and Drug Safety Action Program within one year 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.
(E) 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. If the drivers 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.
(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, 56-5-2931, 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 13. Section 56-5-2995 of the 1976 Code, as last amended by Act 390 of 2000, is further amended to read:
"Section 56-5-2995. (A) In addition to the penalties imposed for a first offense violation of Section 56-5-2930, 56-5-2931, 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, 56-5-2931, 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 14. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 15. This act takes effect upon approval by the Governor.
This web page was last updated on Monday, December 7, 2009 at 10:28 A.M.