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H. 3593
STATUS INFORMATION
General Bill
Sponsors: Reps. Walker, Wilkins, Littlejohn, Mahaffey and W.D. Smith
Document Path: l:\council\bills\swb\6311cm05.doc
Introduced in the House on February 17, 2005
Currently residing in the House Committee on Judiciary
Summary: Death by vehicle is a misdemeanor offense, penalties
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 2/17/2005 House Introduced and read first time HJ-25 2/17/2005 House Referred to Committee on Judiciary HJ-25
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 56-5-2915 SO AS TO ESTABLISH DEATH BY A VEHICLE AS A MISDEMEANOR OFFENSE AND TO PROVIDE A PENALTY; AND BY ADDING SECTION 56-5-2948, SO AS TO PROVIDE THAT A PERSON WHO DRIVES A MOTOR VEHICLE WHICH IS INVOLVED IN A FATAL MOTOR VEHICLE ACCIDENT MUST SUBMIT TO A CHEMICAL TEST OF HIS BREATH FOR THE PURPOSE OF DETERMINING THE PRESENCE OF ALCOHOL IF THERE ARE REASONABLE GROUNDS TO BELIEVE THAT THE PERSON IS UNDER THE INFLUENCE OF ALCOHOL TO THE EXTENT THAT HIS FACULTIES TO DRIVE ARE MATERIALLY AND APPRECIABLY IMPAIRED.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:
"Section 56-5-2915. A person who operates a vehicle while committing an offense that applies to the operation and use of a vehicle or the regulation of traffic, other than a provision contained in Section 56-5-2930, 56-5-2933, or 56-5-2945, and the commission of the offense proximately causes the death of another person is guilty of death by a vehicle. A person who is convicted of, or pleads guilty or nolo contendere to, death by a vehicle is guilty of a misdemeanor and must be imprisoned for not more than three years and fined not more than one thousand dollars."
SECTION 2. The 1976 Code is amended by adding:
"Section 56-5-2948. (A) Notwithstanding any other provision of law, a person driving a motor vehicle which is involved in a fatal motor vehicle accident must submit to a chemical test of his breath for the purpose of determining the presence of alcohol if there are reasonable grounds to believe that the person is under the influence of alcohol to the extent the person's faculties to drive are materially and appreciably impaired.
(B) The test must be administered at the direction of a law enforcement officer who has reasonable grounds to believe that the person is under the influence of alcohol to the extent the person's faculties to drive are materially and appreciably impaired. The law enforcement officer requesting the test may administer the test if the person's conduct during the twenty-minute pre-test waiting period is videotaped pursuant to Section 56-5-2953(A)(2)(d). The administration of one test does not preclude the administration of other tests. A person who is tested or gives samples for testing may have a qualified person of his choice conduct additional tests at his expense and must be notified of that right. A person's request or failure to request a blood or urine test is not admissible against the person in a criminal trial.
(C) The provisions of Section 56-5-2950, relating to: (1) the administration of tests to determine a person's alcohol concentration, additional tests at the person's expense, (2) the availability of other evidence on the question of whether or not the person was under the influence of alcohol, drugs, or a combination of them, (3) availability of test information to the person or his attorney, and (4) the liability of medical institutions and persons administering the tests, are applicable to this section and also extend to the officer requesting the test, the State or its political subdivisions, or governmental agency or entity which employs the officer making the request, and the agency, institution, or employer, either governmental or private, of persons administering the tests. Notwithstanding any other provision of law pertaining to confidentiality of hospital records or other medical records, information regarding tests performed pursuant to this section must be released, upon subpoena, to a court, prosecuting attorney, defense attorney, or law enforcement officer in connection with an offense relating to the fatal motor vehicle accident for which a person may be charged.
(D) No test 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 thirty days if he refuses to submit to the test and that his refusal may be used against him in court;
(2) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense; and
(3) he has the right to request an administrative hearing within five days of the issuance of the notice of suspension.
(E) The law enforcement officer requesting the test 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 requesting 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.
(F) A person required to submit to a test by a law enforcement officer must be provided with a written report including the time of the incident, the time of the test, and the results of the test before any trial or other proceeding in which the results of the test is used as evidence. A person who obtains additional tests must furnish a copy of the time, method, and results of any 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.
(G) The Department of Motor Vehicles must suspend, for a period of thirty days, 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 the test required in this section. A law enforcement officer who requests a test pursuant to subsection (A) which is subsequently refused must issue a notice of suspension.
(H) The period of suspension provided for in subsection (G) begins on the day the notice of suspension is issued, and at the expiration of any other suspensions, and continues until the person requests an administrative hearing. If a person does not request an administrative hearing, he waives his right to the hearing, and his suspension must not be stayed but continues for the period provided for in subsection (G).
(I) The notice of suspension must advise the person of the right to request an administrative hearing. The notice of suspension also must advise the person that, if the department does not receive a request for an administrative hearing within five days of the issuance of the notice of suspension, the person has waived his right to the administrative hearing, and the suspension continues for the period provided for in subsection (G).
(J) At the administrative hearing if:
(1) 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 (G);
(2) the suspension is overturned, the person must have his driver's license, permit, or nonresident operating privilege reinstated and is not required to complete the remainder of the suspension period.
(K) 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 person of a new hearing, the person must have his driver's license, permit, or nonresident operating privilege reinstated. The scope of the hearing must be limited to whether:
(1) the person tested was advised in writing of his rights as enumerated in this section;
(2) the person refused to submit to a test;
(3) the person who administered the test or took samples was qualified pursuant to Section 56-5-2950;
(4) the test administered and samples obtained were conducted pursuant to Section 56-5-2950; and
(5) 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.
(L) 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 requested the administrative hearing.
(M) 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 stays the suspension until a final decision is issued.
(N) The costs of the tests administered pursuant to this section at the direction of the law enforcement officer must be paid from the general fund of the State."
SECTION 3. This act takes effect upon approval by the Governor.
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