2003-2004 Bill 4973: Driving While Intoxicated - South Carolina Legislature Online

South Carolina General Assembly

115th Session, 2003-2004

H. 4973

STATUS INFORMATION

General Bill

Sponsors: Rep. W.D.Smith

Document Path: l:\council\bills\ms\7141ahb04.doc

Introduced in the House on March 17, 2004

Currently residing in the House Committee on Judiciary

Summary: Driving while intoxicated

HISTORY OF LEGISLATIVE ACTIONS

DateBodyAction Description with journal page number

3/17/2004HouseIntroduced and read first time HJ55

3/17/2004HouseReferred to Committee on JudiciaryHJ57

VERSIONS OF THIS BILL

3/17/2004

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 5652931 SO AS TO CREATE THE OFFENSE OF DRIVING WHILE SERIOUSLY INTOXICATED AND TO PROVIDE PENALTIES; BY ADDING SECTION 5652932 SO AS TO CREATE THE OFFENSE OF DRIVING WHILE GROSSLY INTOXICATED AND TO PROVIDE PENALTIES; BY ADDING SECTION 5652956 SO AS TO REQUIRE BLOOD AND URINE TESTING OF AN OPERATOR OF A MOTOR VEHICLE SUSPECTED TO BE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS WHEN THERE IS AN ACCIDENT RESULTING IN DEATH OR SERIOUS BODILY INJURY; TO AMEND SECTION 2413100, AS AMENDED, RELATING TO THE DEFINITION OF A NO PAROLE OFFENSE, SO AS TO ADD THE OFFENSE OF FELONY DRIVING UNDER THE INFLUENCE CAUSING GREAT BODILY INJURY AS A NO PAROLE OFFENSE; TO AMEND SECTION 5652934, AS AMENDED, RELATING TO THE RIGHT TO COMPULSORY PROCESS AND SECTION 5652935, RELATING TO THE RIGHT TO A JURY TRIAL OF A PERSON CHARGED WITH A DRIVING UNDER THE INFLUENCE OFFENSE, BOTH SO AS TO INCLUDE THE OFFENSES OF DRIVING WHILE SERIOUSLY INTOXICATED AND DRIVING WHILE GROSSLY INTOXICATED; TO AMEND SECTION 5652940, AS AMENDED, RELATING TO THE PENALTIES FOR VIOLATING THE OFFENSES OF DRIVING UNDER THE INFLUENCE AND DRIVING WITH AN UNLAWFUL ALCOHOL CONCENTRATION, SO AS TO INCREASE THE PENALTY FOR A SECOND OFFENSE FROM FIVE TO TEN DAYS AND FOR A THIRD OFFENSE FROM SIXTY DAYS TO SIX MONTHS; TO AMEND SECTION 5652941, RELATING TO THE INSTALLATION OF IGNITION INTERLOCK DEVICES AND SECTION 5652942, RELATING TO VEHICLE IMMOBILIZATION, BOTH SO AS TO INCLUDE THE OFFENSES OF DRIVING WHILE SERIOUSLY INTOXICATED AND DRIVING WHILE GROSSLY INTOXICATED; TO AMEND SECTION 5652947, AS AMENDED, RELATING TO CHILD ENDANGERMENT, SO AS TO INCLUDE THE OFFENSES OF DRIVING WHILE SERIOUSLY INTOXICATED, DRIVING WHILE GROSSLY INTOXICATED, AND DRIVING WITH AN UNLAWFUL ALCOHOL CONCENTRATION; TO AMEND SECTION 5652950, AS AMENDED, RELATING TO IMPLIED CONSENT TO TESTING FOR ALCOHOL OR DRUGS AND INFERENCE OF DRIVING UNDER THE INFLUENCE, SO AS TO CHANGE THE PROVISION REQUIRING WRITTEN NOTICE OF A DRIVER’S LICENSE SUSPENSION FOR FAILURE TO SUBMIT TO TESTING TO REFLECT A SUSPENSION OF ONE YEAR RATHER THAN NINETY DAYS, TO INCLUDE THE OFFENSES OF DRIVING WHILE SERIOUSLY INTOXICATED AND DRIVING WHILE GROSSLY INTOXICATED, TO PROVIDE A PERSON IS INFERRED TO BE UNDER THE INFLUENCE OF ALCOHOL IF THE ALCOHOL CONCENTRATION IS EIGHT ONE HUNDREDTHS OF ONE PERCENT TO TWELVE ONE HUNDREDTHS OF ONE PERCENT, TO PROVIDE A PERSON IS INFERRED TO BE SERIOUSLY INTOXICATED IF THE ALCOHOL CONCENTRATION IS THIRTEEN ONE HUNDREDTHS OF ONE PERCENT TO EIGHTEEN ONE HUNDREDTHS OF ONE PERCENT, AND TO PROVIDE A PERSON IS INFERRED TO BE GROSSLY INTOXICATED IF THE ALCOHOL CONCENTRATION IS NINETEEN ONE HUNDREDTHS OF ONE PERCENT OR MORE; TO AMEND SECTION 5652951, AS AMENDED, RELATING TO SUSPENSION FOR REFUSAL TO SUBMIT TO TESTING, SO AS TO INCREASE THE REQUIRED SUSPENSION FROM NINETY DAYS TO ONE YEAR, TO INCREASE THE SUSPENSION FROM ONE HUNDRED EIGHTY DAYS TO ONE YEAR IF THE PERSON’S LICENSE WAS PREVIOUSLY SUSPENDED FOR A DRIVING UNDER THE INFLUENCE OFFENSE WITHIN THE LAST TEN YEARS, AND TO INCLUDE THE OFFENSES OF DRIVING WHILE SERIOUSLY INTOXICATED AND DRIVING WHILE GROSSLY INTOXICATED; TO AMEND SECTION 5652953, AS AMENDED, RELATING TO INCIDENT SITE AND BREATH SITE VIDEOTAPING, SO AS TO INCLUDE THE OFFENSES OF DRIVING WHILE SERIOUSLY INTOXICATED AND DRIVING WHILE GROSSLY INTOXICATED; AND TO AMEND SECTION 5652970, RELATING TO REPORTS OF CONVICTIONS FOR DRIVING UNDER THE INFLUENCE OFFENSES, SECTION 5652980, RELATING TO COPIES OF REPORTS AS PRIMA FACIE EVIDENCE IN A TRIAL WHEN A PERSON IS CHARGED WITH A DRIVING UNDER THE INFLUENCE OFFENSE, SECTION 5652990, RELATING TO SUSPENSION OF A CONVICTED PERSON’S DRIVER’S LICENSE, AND SECTION 5652995, RELATING TO AN ADDITIONAL ASSESSMENT ON PERSONS CONVICTED OF DRIVING UNDER THE INFLUENCE, ALL AS AMENDED, ALL SO AS TO INCLUDE THE OFFENSES OF DRIVING WHILE SERIOUSLY INTOXICATED, DRIVING WHILE GROSSLY INTOXICATED, AND CAUSING GREAT BODILY INJURY OR DEATH WHILE OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF DRUGS OR ALCOHOL.

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

SECTION1.Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:

“Section 5652931.(A)A person is seriously 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 seriously by the influence of intoxicating liquor, drugs, or a similar substance and, at the time of the offense, the person’s alcohol concentration was thirteen onehundredths of one percent but not more than eighteen onehundredths of one percent.

(B)A person who violates the provisions of this section must, upon conviction, be punished by:

(1)a fine of not less than three thousand dollars or more than five thousand dollars and imprisonment not less than seven days or more than one hundred twenty days for the first offense. In addition to the sevenday minimum imprisonment, the court may provide for up to seven days of public service employment upon terms and conditions the court considers proper;

(2)a fine of not less than six thousand dollars or more than seven thousand five hundred dollars, and imprisonment for not less than ninety days or more than one year for the second offense;

(3)imprisonment for not less than two years or more than five years for the third offense; or

(4)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.”

SECTION2.Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:

“Section 5652932.(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 nineteen onehundredths of one percent or more.

(B)A person who violates the provisions of this section must, upon conviction, be punished by:

(1)a fine of not less than three thousand dollars or more than five thousand dollars and imprisonment not less than thirty days or more than one year for the first offense. In addition to the thirtyday minimum imprisonment, the court may provide for up to thirty days of public service employment upon terms and conditions the court considers proper;

(2)a fine of not less than six thousand dollars or more than seven thousand five hundred dollars, and imprisonment for not less than one year or more than two years for the second offense;

(3)imprisonment for not less than three years or more than five years for the third offense; or

(4)imprisonment for not less than five years or more than ten years for the fourth or subsequent offense.

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.

SECTION3.Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:

“Section 5652956.Notwithstanding another provision of law, when a motor vehicle accident results in the death or serious bodily injury of a pedestrian or a person who is either a passenger in, or the operator of a motor vehicle involved in an accident, and when a law enforcement officer has reasonable suspicion to believe that a person driving a motor vehicle while under the influence of alcohol, drugs, or a combination of both, or that alcohol, drugs, or a combination of both, was present at the scene of the accident, then blood and urine tests must be administered on the operator of the motor vehicle who is involved in the accident and suspected to be under the influence of alcohol, drugs, or a combination of both.”

SECTION4.Section 2413100 of the 1976 Code, as last amended by Act 83 of 1995, is further amended to read:

“Section 2413100.For purposes of definition under South Carolina law, a ‘no parole offense’ means a class A, B, or C felony or, an offense exempt from classification as enumerated in Section 16110(d), which is punishable by a maximum term of imprisonment for twenty years or more, and the offense of felony driving under the influence causing great bodily injury pursuant to Section 5652945(A)(1).”

SECTION5.Section 5652934 of the 1976 Code, as last amended by Act 61 of 2003, is further amended to read:

“Section 5652934.Notwithstanding any other provision of law, a person charged with a violation of Section 5652930, 5652931, 5652932, 5652933, or 5652945 who is being tried in any court of competent jurisdiction in this State has 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. This 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. The portion of compulsory process provided for in this section that requires the attendance, at any administrative hearing or court proceeding, of state employees charged with the maintenance of breath testing devices in this State and the administration of breath testing pursuant to this article, takes effect once the compulsory process program at the State Law Enforcement Division is specifically, fully, and adequately funded.

In addition, at the time of arrest for a violation of Section 5652930, 5652931, 5652932, 5652933, or 5652945, 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, must provide the defendant with the appropriate form to request the hearing or hearings. The defendant must acknowledge receipt of the notice requirements and receipt of the hearing form if such a hearing or hearings are desired.”

SECTION6.Section 5652935 of the 1976 Code, as added by Act 390 of 2000, is amended to read:

“Section 5652935.Notwithstanding any other provision of law, a person charged with a violation of Section 5652930, 5652931, 5652932, 5652933, or 5652945 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.”

SECTION7.Section 5652940(2) and (3) of the 1976 Code, as last amended by Act 61 of 2003, is further amended to read:

“(2)by a fine of not less than two thousand one hundred dollars nor more than five thousand one hundred dollars and imprisonment for not less than fiveten days nor more than one year for the second offense. However, the fine imposed by this item shall not be suspended in an amount less than one thousand one hundred 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 thirty days upon terms and conditions the court considers proper;

(3)by a fine of not less than three thousand eight hundred dollars nor more than six thousand three hundred dollars and imprisonment for not less than sixty dayssix months nor more than three years for the third offense;”

SECTION8.Section 5652941 of the 1976 Code, as added by Act 390 of 2000, is amended to read:

“Section 5652941.In addition to the penalties required and authorized to be imposed against a person violating the provisions of Section 5652930, 5652931, 5652932, 5652933, or 5652945, 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 5652930, 5652931, 5652932, 5652933, and 5652945.”

SECTION9.Section 5652942 of the 1976 Code, as added by Act 61 of 2003, is amended to read:

“Section 5652942.(A)A person who is convicted of or pleads guilty or nolo contendere to a second or subsequent violation of Section 5652930, 5652931, 5652932, 5652933, or 5652945 must have all motor vehicles owned by or registered to him immobilized if the person is a resident of this State, unless the vehicle has been confiscated pursuant to Section 5656240.

(B)For purposes of this section, ‘immobilized’ and ‘immobilization’ mean suspension and surrender of the registration and motor vehicle license plate.

(C)Upon sentencing for a second or subsequent violation of Section 5652930, 5652931, 5652932, 5652933, or 5652945, the court must ascertain the registration numbers or other information to determine the identity of the vehicles to be immobilized. The court must notify the department of a person’s conviction for a second or subsequent violation of Section 5652930, 5652931, 5652932, 5652933, or 5652945 and the identity of the vehicles to be immobilized.

(D)Upon notification by a court in this State or by any other state of a conviction for a second or subsequent violation of Section 5652930, 5652931, 5652932, 5652933, or 5652945, the department must require the person convicted to surrender all license plates and vehicle registrations subject to immobilization pursuant to this section. The immobilization is for a period of thirty days to take place during the driver’s license suspension pursuant to a conviction for a second or subsequent violation of Section 5652930, 5652931, 5652932, 5652933, or 5652945. The department must maintain a record of all vehicles immobilized pursuant to this section.

(E)An immobilized motor vehicle must be released to the holder of a bona fide lien on the motor vehicle when possession of the motor vehicle is requested, as provided by law, by the lienholder for the purpose of foreclosing on and satisfying the lien.

(F)An immobilized motor vehicle may be released by the department without legal or physical restraints to a person who has not been convicted of a second or subsequent violation of Section 5652930, 5652931, 5652932, 5652933, or 5652945, if that person is a registered owner of the motor vehicle or a member of the household of a registered owner. The vehicle must be released if an affidavit is submitted by that person to the department stating that: