Bulletin 2010-03 Act 2008

S.C. Act March 2010 South Carolina Department of Insurance Car1itol Center 1201 '\1aiu Stret't, Suite 1000 Colnmbia, South Carolina 29201 '\tailing Address: P. 0. Box 100105, Columbia, SC 29202-3105 Telephone: (803) 737-6150 BULLETIN NUMBER 2010-03 (R. H. 3496) I. PURPOSE AND SCOPE OF THIS BULLETIN MARK SANFORD Governor SCOTT RICHARDSON Director of Insurance purpose of this bulletin is to remind insurers ofprovisions of2008 S.C. Act No. 201, effective 2009, that relate to automobile insurance. It has come to the Department's attention that may not be in compliance with the provisions in S.C. Code § restnctmg an increase in premiums and prohibiting cancellation of automobile insurance policies under certain circumstances. That subsection provides: the S.C. to A20l, H3496 ATl S [\FORMA TIO~ Motor South Carolina General Assembly 13,2007 2007 9,2008 A1" ACT TO AMEND SECTION 56-1-10, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DEFINITI01" OF TERMS WITH REGARD TO THE DEPARTMENT OF :\'IOTOR VEHICLES, SO AS TO REVISE THE DEFINITION OF THE TERMS "OPERA TOR", "VEHICLE", AND ''DRIVER"; TO AMEND SECTION 56-l-286, AS RELATING TO THE SUSPENSION OF A DRIVER'S LICENSE OR PER!\HT, OR THE DENIAL OF THE ISSUANCE OF A LICENSE OR A PERlVIIT TO A PERSON UNDER THE AGE OF TWENTY-ONE WHO HAS OPERATED A :\'IOTOR VEHICLE WHILE VNDER THE INFLUENCE OF ALCOHOL, SO AS TO DELETE THE TERM "PROBABLE CAl'SE TO BELIEVE" AND REPLACE IT WITH THE TERM "REASONABLE SUSPICION", TO DELETE THE TERM ··STATE LAW ENFORCEMENT DIVISION" AND REPLACE IT WITH THE TERM "SOUTH CAROLINA CRIMINAL JUSTICE ACADEVIY", TO DELETE THE PROVISION THAT REQlJIRES THE RECORDING OF THE PERIOD PRIOR TO THE ADMINISTRATION OF A BREATH TEST BY A PRIMARY INVESTIGATING OFFICER, TO PROVIDE THAT A PERSON l\IUST PAY FOR THE COST OF A BREATH TEST FOR A CONVICTION OF CERTAIN PROVISIONS OF LAW, TO PROVIDE FOR THE DISBURSEMENT OF THESE FUNDS, TO PROVIDE THAT A TEST TO DETERMINE WHETHER A PERSON IS lJNDER THE INFLUENCE OF ALCOHOL OR ANOTHER ILLEGAL SUBSTANCE MAY NOT BE TAKEN l'NLESS THE TESTING PROCEDURE IS VIDEO RECORDED AND THE PERSON HAS BEEN INFORl\1ED IN A VERBAL AND WRITTEN FORlVI OF CERTAIN RIGHTS THAT HE POSSESSES, TO DELETE THE TERM "ALCOHOL RESTRICTED LICENSE" AND REPLACE IT WITH THE TER:VI "ALCOHOL LICENSE", TO MAKE A TECHNICAL TO DELETE THE PROVISION THAT REQUIRES THAT AN ADMINISTRATIVE HEARING l\llJST BE HELD WITHIN THIRTY DAYS AFTER A REQUEST FOR A HEARING IS RECEIVED BY THE DIVISION OF MOTOR VEHICLE HEARINGS, TO DELETE THE PROVISION THAT THE DIVISION OF MOTOR VEHICLE HEARINGS TO ISSlTE AN ORDER THAT CONTAINS THE REASONS \VHY AN ADMINISTRlt\ TIVE HEARING NOT HELD AND TO REINSTATE A PRIVILEGE TO OPERATE A tiNDER CERTAIN CIRCUMSTANCES, TO REVISE THE SCOI'E OF AN ADMINISTRATIVE HEARING, A:\ll TO DELETE THE PROVISION THAT REQlJIRES THE DIVISION OF MOTOR VEHICLE HEARINGS TO ISSUE ITS \VRITTEN ORDERS WITHIN THIRTY DAYS AFTER THE CONCIXSION OF AN ADMINISTRATIVE HEARING; TO A:VIEND SECTION 56-1-748, RELATING TO PERSONS WHO ARE INELIGIBLE TO RECEIVE A SPECIAL RESTRICTED DRIVER'S LICENSE, SO AS TO PROVIDE THAT A PERSON WHO IS ISSUED A RESTRICTED LICENSE PURSUANT TO SECTION 56-5-2951 MAY NOT OBTAIN A SPECIAL RESTRICTED DRIVER'S LICENSE UNDER THIS PROVISION, AND TO DELETE THE TERM "SPECIAL RESTRICTED DRIVER ·s LICENSE" AND TO REPLACE IT WITH THE TERM ''RESTRICTED DRIVER'S LICENSE"; TO AMEND SECTION 56-5-2930, RELATING TO THE CNLA WFUL OPERATION OF A MOTOR VEHICLE BY A PERSON UNDER THE INFLUENCE OF ALCOHOL OR DRUGS, SO AS TO MAKE TECUNICAL CHANGES, TO PROVIDE THAT A PERSON WHO VIOLATES THE PROVISIONS OF THIS SECTION IS GUILTY OF THE OFFENSE OF DRIVING UNDER THE INFLUENCE AND TO [>ROVIDE PENALTIES FOR VIOLATIONS OF THIS SECTION, TO PROVIDE FOR THE DISBURSEMENT OF FINES I:\ll)OSED PURSUANT TO THIS SECTION, TO REQlHRE A PERSON WHO VIOLATES THIS SECTION TO ENROLL IN AND SUCCESSFULLY COMPLETE AN ALCOHOL AND DRUG SAFETY ACTION PROGRAM WHOSE COSTS MUST BE BORNE BY THE PERSON, TO PROVIDE THAT A PERSON WHO IS UNABLE TO PAY FOR THE ALCOHOL TREATMENT SERVICES SHALL COMPLETE A COMMUNITY SERVICE PROGRAM, TO PROVIDE THAT A PERSON MAY BE HELD IN CONTEMPT OF COURT FOR F AlLURE TO ENROLL IN OR MAKE PROGRESS TOWARD COMPLETING THE PROGRAM, TO PROVIDE THAT A PERSON WHO HAS VIOLATED THIS SECTION ALSO MAY BE PROSECUTED VNDER SECTION 56-5-2933 UNDER CERTAIN CIRCUMSTANCES, TO PROVIDE THAT A PERSON WHO VIOLATES THE PROVISIONS OF THIS SECTION IS ENTITLED TO A JURY TRIAL AND IS AFFORDED THE RIGHT TO CHALLENGE CERTAIN FACTORS AND INTRODUCE CERTAIN TYPES OF TO PROVIDE THAT CERTAIN OFFENSES A PERSON TO A PROGRAIVI OR MAKE ""'V'"''""""''"'w TOWARD COMPLETING THE PROGRAM, TO IN WIDCH A PERSON \VHO '"'"·~'""'J'"'LI' FOR A VIOLATION OF PROSECUTED PURSUANT TO TIDS TO DELETE PROVISION PROviDES THAT TIDS JJ'U'JJU NOT APPLY TO ARISING OUT OF A A TRAFFIC ROADBLOCK OR DRIVER'S L<~._.x.,, YT'r'.r>Tnnr..•,.J'T' TO REVISE FACTORS THAT MAY BE CHALLENGED DURING A JURY TRIAL BY A PERSON WHO VIOLATES THE PROVISIONS OF TIDS SECTION, TO MAKE TECHNICAL CHANGES, TO DELETE THE PROviSION THAT A PERSON CIL~RGED WITH A VIOLATION OF THIS SECTION CERTAIN JlJRY TO THE TYPES OF EVIDENCE BY A PERSON WHO viOLATES TillS REVISE THE TIME PERIOD IN WHICH A PERSON CHARGED WITH A VIOLATION OF THIS SECTION BE NOTICE OF TO TO CERTAIN IN THIS SECTION BE TRIED Al~D TO PROVIDE THAT SLED MUST PRODUCE ALL BREATH TESTING SOFTWARE, AND TO DELETE THE PROVISIONS THAT PROVIDE WHEN THE ATTENDANCE AT CERTAIN PROCEEDINGS OF PERSONS CHARGED WITH l\lAINTENANCE OF BREATH TESTING DEVICES MUST BEGlN, AND THE PROVISIONS THAT REQlJIRE AN ARRESTING OFFICER TO INFORM A DEFENDANT OF HIS RIGHT TO ALL HEARINGS PROVlDED BY LAW FOR A VIOLATION OF CERTAIN PROVISIONS THAT MAKE IT ILLEGAL TO OPERATE A MOTOR VEHICLE WHILE l'NDER THE INFLUENCE OF ALCOHOL OR ANOTHER ILLEGAL SUBSTANCE; TO AMEND SECTION 56-5-2942, RELATING TO THE IMMOBILIZATION OF A MOTOR VEHICLE 0\VNED BY A PERSON WHO HAS BEEN CO:'\VICTED OF DRIVING UNDER THE INFLUENCE OF ALCOHOL OR ANOTHER ILLEGAL SUBSTANCE, SO AS TO DELETE THE TER:\1 ''SENTENCING" AND REPLACE IT WITH THE TERM "RECEIPT OF A CONVICTION BY THE DEPARTMENT FROM THE COURT" AND THE TERM •'COURT", AND REPLACE IT WITH THE TER\l ''DEPARTMENT", REVISE THE PROCEDURES IN WHICH VEHICLES THAT BELONG TO A PERSON WHO IS SUBJECT TO THIS PROVISION ARE IDENTIFIED, TO MAKE TECHNICAL CHANGES, TO DELETE THE PROVISION THAT RELATES TO FALSIFYING A REPORT CONCERNING VEHICLES 0\VNED OR REGISTERED TO A PERSON St'BJECT TO THIS SECTION, TO INCREASE THE FEE THAT :\lUST BE ASSESSED AGAINST A PERSON FOR EACH VEHICLE SVBJECT TO THIS SECTION, AND TO PROVIDE THAT CERTAIN CONVICTIONS UNDER SECTION 56-5-2933 :\lUST BE CONSIDERED PRIOR OFFENSES UNDER SECTION 56-5-2930; TO AMEND SECTION 56-5-2945, RELATING TO THE OFFENSE OF CAUSING GREAT BODILY [\,Jl'RY OR DEATH BY OPERATING A VEHICLE WHILE l':'\DER THE INFLUENCE OF DRUGS OR ALCOHOL, SO AS TO :\lAKE TECHNICAL CHANGES, TO DELETE THE TERM "FELONY" AND REPLACE IT WITH THE TER\1 "FELONY DRIVING lJNDER THE INFLUENCE", AND TO REVISE THE PENALTY PROVISIONS; TO AMEND SECTION 56-5-2950, RELATING TO A DRIVER'S IMPLIED CONSENT TO FOR ALCOHOL OR DRlJGS, SO AS TO MAKE TEClE\ICAL CHANGES, TO PROVIDE WHEN BREATH S.UIPLES :VItTST BE COLLECTED UNDER THIS PROVISION, TO DELETE THE PROVISION THAT PROVIDES THAT AN OFFICER MAY NOT REQUIRE ADDITIONAL TESTS OF A PERSON UNDER CERTAIN CIRCUMSTANCES, TO DELETE THE TERM "'DEPARTMENT OF PUBLIC SAFETY" AND REPLACE IT WITH THE TERlvl "SOUTH CAROLINA CRII\UNAL JUSTICE ACADEMY'\ TO REVISE THE PROVISIONS THAT PROviDE THE PROCEDURES FOR ADMINISTERING BREATH TESTS OR OBTAINING SAMPLES, TO REVISE THE INFORMATION THAT A CHARGED WITH VIOLATING THIS PROVISION I\lt:ST BE GIVEN, TO PROVIDE THE CIRCUMSTANCES IN \VHICH A PERSON I\IUST PAY FOR THE COST OF TESTS PERFORMED UNDER THIS SECTION AND PROVIDE FOR THE DISBURSEMENT OF THESE MONIES, TO DELETE THE PROVISION THAT PROVIDES THAT A CERTAIN LEVEL OF ALCOHOL CONCENTRATION IS A VIOLATION OF SECTION 56-5-2933, AND TO REVISE THE CIRCUMSTANCES IN WHICH CERTAIN EVIDENCE MAY BE EXCLUDED IN A PI<OCEEDING THAT OCCURS UNDER THIS SECTION; TO AI\IEND SECTION 56-5-2951, AS AMENDED, RELATING TO THE SUSPENSION OF A PERSON'S PRIVILEGE TO OPERATE A MOTOR VEHICLE, SO AS TO DELETE THE TERM "ALCOHOL RESTRICTED LICENSE" AND REPLACE IT WITH THE TERM "ALCOHOL LICENSE", TO DELETE THE TERM "SPECIAL RESTRICTED LICENSE" AND REPLACE IT WITH THE TERl\1 "RESTRICTED LICENSE", TO REVISE THE PERIOD IN WHICH AN ADMINISTRATIVE HEARING MUST BE HELD, TO DELETE THE PROVISION THAT CONTAINS THE DUTIES OF THE DIVISION OF MOTOR VEHICLE HEARINGS WHEN IT FAILS TO HOLD CERTAIN HEARINGS IN A Til\IEL Y MANNER, TO REVISE THE SCOPE OF A HEARING HELD UNDER THIS SECTION, TO DELETE THE PROVISION THAT PROVIDES A DEADLINE FOR THE ISSUANCE OF AN ORDER BY THE DIVISION OF MOTOR VEHICLE HEARINGS, TO INCREASE THE PERIOI) OF TIME A PERSON'S PRIVILEGE TO ()RIVE I\IA Y BE SUSPENDED UNDER THIS PROVISION, TO PROVIDE THAT AN INSUI<ER MAY NOT CANCEL THE ATTOl\IOBILE INSURANCE OF A PERSON WHO IS CHARGED WITH CERTAIN OFFENSES UNDER THIS AND TO 1\:IAKE TECHNICAL CHANGES; TO AMEND SECTION RELATING TO THE VIDEOTAPING OF A PERSON CHARGED WITH DRIVING UNDER THE INFLUENCE OF ALCOHOL OR ANOTHER ILLEGAL SUBSTANCE AT THE INCIDENT SITE AND THE SITE, SO AS TO MAKE THE TECHNICAL AND REVISE THE PROCEDURE THAT MUST BE WHEN AN INCIDENT SITE AND BREATH TEST SITE ARE VIDEO RECORDED; TO AMEND SECTION RELATING TO BREATH TESTING SO TO PROVIDE THAT CERTAIN RECORDS CONCERNING (WERATIONS AT A BREATH TEST SITE MUST BE ELECTRONICALLY RECORDED AND MADE AVAILABLE TO SLED; TO AMEND SECTION 1-23-600, AS AMENDED, RELATING TO CERTAIN HEARINGS AND PROCEEDINGS BEFORE THE ADIVHNISTRJ\TIVE LAW COURT, SO AS TO PROVIDE THAT THE STANDARD OF PROOF IN A CONTESTED CASE IS BY A PREPONDERJ\NCE OF THE EVIDENCE, TO DELETE THE TER\1 "PETITION FOR .JFDICIAL REVIEW" AND TO DELETE THE TERM "FILED" AND REPLACE IT WITH THE TERM "APPEALED"; TO AMEND SECTION 1-23-660, AS AMENDED, RELA Tll\'G TO THE DIVISION OF :MOTOR VEHICLE HEARINGS, SO AS TO DELETE THE PROVISION THAT PROVIDES FOR THE HIRING OF A LAW CLERK, THE PROVISION THAT RELATES TO THE STATE BUDGET AND CONTROL BOARD'S ROLE IN CREATING THE DIVISION OF MOTOR VEHICLE HEARINGS, THE PROVISION THAT REQUIRES THE DEI1 ARTMENT OF MOTOR VEHICLES TO PROVIDE LOCATIONS FOR HEARINGS, AND THE PROVISION THAT IVIAKES THE CHIEF JUDGE RESPONSIBLE FOR ADJUDICATING CERTAIN CASES, TO PROVIDE THAT THE STATE ETHICS COMMISSION IS RESPONSIBLE FOR ENFORCEl\IENT AND ADMINISTRATION OF Rt;LES AND ISSL\NCE OF CERTAIN OPINIONS REGARDING ADl\IINISTRA TIVE LAW JUDGES AND HEARING OFFICERS; TO AMEND SECTION 56-1-1090, AS AMENDED, RELATING TO THE ISSUANCE OF DRIVER'S LICENSES TO HABITUAL OFFENDERS, SO AS TO DELETE THE TER\1 "l\1AGISTRATE" AND REPLACE IT WITH THE TERvi ·•OFFICER OF THE DIVISION OF MOTOR VEHICLE HEARINGS", TO MAKE A TECHNICAL CHANGE, AND TO PROVIJ)E THAT THE DEPARTMENT OF l\IOTOR VEHICLES '\ll'ST PROl\IFLGATE CERTAIN REGULATIONS UNDER THIS TO SECTION RELATING TO PROCEDVRES, AND REGULATIONS ON THE SLED INTERNET WEB SITE CONCERc~ING BREATH ALCOHOL TESTING, BREATH SITE VIDEOTAPING, AND IGNITION INTERLOCK, SO AS TO DELETE THE TERc\fS "VIDEOTAPING" AND "IGNITION INTERLOCK", AND TO REI>LACE \VITH THE TERc\I "VIDEO RECORDING"; TO Al\IEND SECTION AS AMENDED, RELATING TO PERSONS WHO Ml!ST NOT BE CONSIDERED FOR INTERVENTION, SO AS TO DELETE THE TERl\I "INTOXICATING LIQUOR OR DRUGS" AND TO INCLUDE THE TERM '"DRIVING WITH AN UNLAWFUL ALCOHOL CONCENTRATION"; TO AMEND SECTION 56-1-365, RELATING TO THE SURRENDER OF A DRIVER'S LICENSE, SO AS TO INCREASE THE PERIOD OF TIME THAT A PERSON \VHO HOLDS A CERTIFICATE MAY OPERATE A l\IOTOR VEHICLE: TO AMEND SECTION 56-1-430, RELATING TO THE APPEAL FROM A CONVICTION OF AN OFFENSE THAT \lAKES THE SPSPENSION OR REVOCATION OF A DRIVER'S LICENSE MANDATORY, SO AS TO PROVIDE THAT AN APPEAL TAKEN FROM THE CONVICTION ACTS AS A SUPERSEDEAS AND PRECLUDES FOR SIX MONTHS FROM THE DATE OF CONVICTION A SlTSPENSION OR REVOCATION; TO AMEND SECTION 56-5-2947, RELATING TO THE OFFENSE OF CHILD ENDANGERMENT, SO AS TO PROVIDE THAT A PERSON WHO VIOLATES SECTION 56-5-2933 IS GUlL TY OF CHILD ENDANGERMENT; AND TO REPEAL SECTIONS 56-5-2940 AND 56-5-3000 RELATING TO PENALTIES FOR OPERATING A l\IOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS, AND THE PUBLICATION OF THE NAMES OF PERSONS WHOSE DRIVER'S LICENSES HAVE BEEN SUSPENDED. Be it South Definitions amended or in actual or of means the entire width between the boundary maintamed \vhen any of it is open to the use purposes of vehicular travel. means every vehicle which is self-propelled, and ~?very which is propelled by electric powl'r obtained from trolley wires but not operated upon rails. 'Motorcycle' means every motor vehicle having no more than two permanent functional wheels in contact with the ground or trailer a saddle for the use of the rider, but excluding a tractor. ·Nonresident' means every person who is not a resident of this means the privilege upon a nonresident the laws of this State pertaining to the the person of a motor or the use of a vehicle owned the person. in this State. (ll) ·conviction· includes the entry of any plea of guilty, the nolo and the forfeiture of any bail or to secure a defendant's appearance in court of driver's means the annulment or action of the Department of Motor Vehicles of a driver's license because some error or detect in the to Division for other bodily fluids. to renewal or a new license may be for each one hundred South Carolina Law Enforcement (I three-wheel means every motor vehicle no more than three permanent functional wheels in contact with to include motorcycles with detachable side cars, having a seat for the operator, and having handlebars or a type steering device but excludmg a tractor or automotive (19) · Lmv vehicle' or · LSV' means a four-wheeled motor other than an all terrain vehicle, whose speed attainable in one more miles an hour and not more than twenty-five miks an hour on a paved. level surface. ·All terrain vehicle' or 'ATV' means a motor vehicle to travel on three or more wheels of a license or permit 976 as amended Motor or nonresident operating to a person under a motor and has an alcohol concentration two one-hundredths of one percent or more. In cases 111 a law enforcement officer initiates suspension proceedings for violation the has elected to pursue a violation section and is subsequently prohibited from prosecuting the for violation of Section 20-7-8920. 20- 56-5-2930. or the same incident. A person under the age of t\:venty-one who a motor in this State is considered to have given consent to chemical of his or blood for the purpose of determining presence officer who has arrested a person under the a violation of Chapter 5 of title (Uniform Act any other pursuant to Section chemical test and the test result concentration of two one-hundredths must his or nonresident or deny the issuance of a license or him for: ( 1) three months; or s1x if the person, within the years preceding the violation of this section, has been previously convicted of violating Section or 56-5-2945 or any other law of this State or another state that prohibits a person from driving a motor vehicle \vhile under influence of alcohol or any other drug or has imposed pursuant to Section 56-1 or nonresident operating of cncr.p•"" be restored at '"''"''"""'11. and Drug Safety Action the notice of if of at the must notify promptly the of a person to submit to a test to this section as well as the test result of any person who to a test pursuant to this section and an alcohol concentration of two one-hundredths of one percent or more. The notification must be in a manner prescribed by the department. If the test an alcohol concentration of two one percent or more or if the person to be must issue a notice of on the date of the the privilege must be suspended or the issuance of a license or permit for the provided for in subsections (F) and rs overturned, the person must have his or nonresident operating privilege reinstated. The periods of suspension provided for in subsections (F) and day the notice of suspension is issued, or at the other suspensions, and continue until the person alcohol license and requests an administrative not request an administrative hearing, he shall to the hearing his must not be provided test or the issuance of a w .•. ~u: .... is upheld, the person must receive his license was suspended before he received a alcohol license and requested the administrative An administrative hearing is a contested proceeding under the Procedures Act, and a person a right to appeal the officer pursuant to that act to the Administrative Court in accordance with its appellate rules. The filing of an shall the until a final decision is issued. A person who is unconscious or in a condition is considered to be informed and not withdrawn the consent provided for in subsection (B) of this Issuance of special restricted licenses SECTION 3. Section 56-1-748 the 1976 to 5 6-1-7 48. No person issued a restricted driver's the Section 56-l-170(B), Section 56-I-320(A), Section 56-1-740(B), Section -745(C), Section 56-l-746(D), 56-9-430(B), Section 56-10-260(B), or Section 56-5-2951 (H) shall subsequently be Issuance of a restricted under these Unlawful operation of a vehicle SECTION 4. Section 56-5-2930 of the 1976 Code is amended to read: It 1s unlawful a person to drive a under the inf1uence of alcohol to to drive a motor vehicle are any other substances which cause or service employment must be at a time when the person is not working and does not interfere employment under terms and conditions as the court proper. However, the court may not compel an offender to service employment in lieu of the minimum sentence. alcohol concentration is one-hundredths of one nor more However. in lieu of the thirty-day minimum the court may provide for thirty of public service The minimum thirty days imprisonment or public service must served at a time \vhen the person is not working 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 instead of the Notwithstanding the provisions of than imprisonment for not one year nor more five years. If the alcohol at least ten one-hundredths of one percent but less than of one then the person must be ctw'n"~nr for not than two years nor more than alcohol concentration is sixteen one-hundredths or more, then the person must be punished by for not less than three years nor more than seven years. No part of the sentences provided in this section Instead public service employment the court may m section. For a second or the service of the minimum sentence the sentence to be proper but of one percent but at least ten one-hundredths of one npt·f'p'" sixteen one-hundredths one percent; or (3) sixteen one hundredths of one or more. Based on the jury's finding of fact, the judge shall the If the cannot reach a unammous verdict as to the of fact then the judge sentence the defendant on the nonenhanced penalties.'' Driving with an unlawful alcohol concentration 5. Section 56-5-2933 of the 1976 Code is amended to read: "Section is unlawful for a person to a alcohol concentration is eight or more. A person the servtce mmrmum ,0V""'~""' the court may provide for of public service minimum thirty imprisonment or public ""'""''r'P must be served at a time when the person is not working not with his employment under terms and as the court proper. However, the court may not to perform public service employment instead of Notvvithstanding the provisions of for for not less than more than five years; or a fourth or by years. If the concentration is at least ten of one percent but less than sixteen one-hundredths of one percent, then the person must be imprisonment for not less than two years nor more than years. If the alcohol concentration is sixteen one-hundredths or more, then the person must be punished by for not less than three years nor more than seven years. of the mmimum sentences provided in this section may Instead of public service employment the court may mvoke another sentence in this section. For a second or of this the service of the minimum sentence may provide the sentence to be upon terms and conditions as proper to. service in any fashion site video program, and A person convicted of violating this or subsequent offense, must enroll in and successfully complete an Alcohol and Drug Safety Action Program certified by the Department Alcohol and Other Drug Abuse Services. An assessment of the extent and nature of the alcohol and drug abuse of the applicant must be prepared and a plan of education or treatment. or both. must be developed tor the applicant. The Alcohol Action Program shall determine if the applicant has completed the services. The applicant must attend the Alcohol Drug Action Program available after the date Department of Alcohol and Other Drug Abuse ServJCes shall determine the cost of services provided by each certified Alcohol and Drug Safety Action Program. Each applicant shall bear cost of services recommended in the plan of education or treatment. hundred dollars for services. t\vo hundred dollars in total and two An applicant to pay or not the person was of time between arrest and person was a written copy enumerated in Section the person consented to a test pursuant to and the: reported alcohol concentration at the time of was one-hundredths of one percent or more; individual who administered the test or took samples was pursuant to 56-5-2950; tests administered and samples obtained were conducted pursuant to Section 56-5-2950 and regulations adopted pursuant to 56-5-2951 (0) and Section 56-5-2953(F): and \vas \vorking properly. in this section prohibits the introduction of: of any additional tests of the person's breath or any that may cotToborate or question the of breath or bodily fluid test result including, but not to: evidence of field tests; the amount of the person; Compulsory process "Section 56-5-2934. a with a or tried in any comi competent jurisdiction in process for witnesses, but not limited to, state employees ofbreath devices in this State and pursuant to this article. This process may be issued under the ofTicial signature of the magistrate. J or other the court of competent jurisdiction. The but is not limited to, a copy of the computer breath devices. SLED must produce all in a manner that with any and all a to from the manufacturer or Vehicle immobilization 56-5-2942 1976 lS conviction for a second or subsequent or 56-5-2945. The must maintain a record of all vehicles immobilized pursuant section. An Immobilized motor vehicle must be released to the holder of bona fide lien on the motor vehicle when possession of the motor as provided by law. the lienholder for the on and the lien. immobilized motor vehicle may be released by the department \vithout or physical restraints to a person who has not convicted of a second or subsequent violation of Section 56-5-2930, or 56-5-2945, if that person is a registered owner of the motor vehicle or a member of the household of a vehicle must be released if an atTidavit is necessary to his or the violation more ( I) A person who fails to surrender to this section must be fined department for any of the suspended may be or the motor to subsection (F). must be the Comptroller General into a special restricted interest account to be used the Department of Motor Vehicles to its expenses. For purposes of this article, a conviction of or plea of nolo contendere to Section 56-5-2933 is considered a prior offense of Section 56-5-2930." Great bodily injury or death SI:CriON 8. Section 56-5-2945(A) and (B) of the 1976 Code is to read: person vvhilc under the of alcohoL or combination of alcohol and drives a motor vehicle and when by nor more than sentence upon a plea of or nolo section for a period to include a incarceration plus three years for a conviction of Section 56-5-2945 when ' bodily injury' occurs and five years when a death occurs. This period of mcarceration shall not include any portion sentence such as probation. parole. supervised furlough, For suspension purposes of this section, incident shall run concurrently." Implied consent to testing for alcohol or drugs SECTION 9. Section 56-5-2950 of the 1976 Code is amended to read: 56-5-2.950. (A) A person who drives a motor vehicle in State IS considered to have giYen consent to chemical tests of his or urine for the purpose of determinmg the presence of or the combmation of alcohol and if arrested for out of acts alleged to have been committed the a motor vehicle the influence of or a combination of alcohol and drugs. A breath test must be administered at the direction of a law enforcement officer who in this \vhile alcohol pnor procedure, the person has been a informed that: the but that must be or denied for at least six to submit to the test and that his refusal may be in court; his privilege to drive must be suspended for at least one if he takes the test or gives the samples and has an alcohol of fifteen one-hundredths of one percent or more; he the right to have a qualified person of his own conduct additional independent tests at his expense; he the to an administrative within ofthe issuance of the notice of he or if or conducts test or and provide the result to the person Failure to provide assistance additional tests the admissibility the in any judicial or administrative proceeding. provtstons this subsection and must necessary to carry out its provisions. The costs of the at the direction of the law enforcement officer must tund of the state. However, if the person is convicted of violating Section 56-5-2930, or 56-5-2945. then. upon conviction, the person must pay twenty-five dollars f()r the costs of the tests. The twenty-five dollars must be the Comptroller General into a special restricted account to the Law Enforcement Division to offset the costs of administration of the breath testing devices, breath site video program. and laboratory. section. {l) A person required to submit to tests the law must be provided with a written report including arrest, the the tests, and the of the tests before in which the results of the tests are used as obtains additional tests must a copy of of any test to officer be tore any trial, in which the person attempts to use the tests as evidence. and or hearing of a driver's license the 1976 U1U\.ct1\"''-'-' to amended \vith the A one hundred General into a special restricted account to the Department of Motor Vehicles to defray its expenses. alcohol allows the person to drive without any restrictive conditions pending the outcome of the administrative provided for in subsection (F) or the final decision or of the matter. If the suspension is upheld at the the temporary alcohol license remains in effect Department of Motor Vehicles issues the hearing officer's notice to the person that he is eligible to receive a to subsection (H); and the trial a person IS administrative or if he does not request an administrative he must in an Alcohol and Drug Safety Action Program. An administrative hearing must be held for the 1s received the Division of Motor The scope the hearing is limited to the person: (I) was arrested or detained: was a written copy of and verbally informed of the enumerated in Section refused to submit to a test pursuant to Section or consented to taking a test pursuant to Section 56-5-2950, and (a) reported alcohol concentration at the time of testing was one-hundredths of one percent or more; (b) individual who administered the test or took samples \Vas pursuant to Section 56-5-2950: tests and samples obtained \\'ere conducted to Section 56-5-2950: and was section the introduction evidence at the on the issue of the accuracy of the test or to and from work and his rnn~~p,~r or education also him to drive Safety Action Program or to a The department may issue the the individual that he is employed or or that he further than one mile from his of employment place of education, or location of his Alcohol and Drug Safety Action Program classes, or the location of his drug program, and that there is no adequate public bet\veen his residence and his place of employment, his the location of his Alcohol and Drug Safety Action or the location of his court-ordered drug program. If the department issues a restricted license, it must desi~:,>nate reasonable on the times during vvhich and routes on which the may drive a motor vehicle. A change in the employment of employment, status as a student, status of attendance of ,\Jcohol and Drug Safety Action Program classes, status of attendance his court-ordered drug program, or residence must be reported to the department by the licensee. The fee for a restricted license is one hundred dollars, but no fee because in the place and dollars this a takes a test Section 56-5-2950 and has an alcohol concentration of one-hundredths of one percent or more: a third offense, twelve months if he refuses to submit to or three months if he takes a test and has an alcohol concentration of nc>rTc>t.r or more; and or subsequent fifteen months if he to Section or months takes a test to Section 56-5-2950 and an alcohol concentration of fifteen one-hundredths of one section license or IS section is not to tile proof of financial An insurer may not increase on, add to, or cancel the automobile insurance of a person charged with a violation of Section 56-1 or 56-5-2945, or another law State or another state that prohibits a person from driving a vehicle under the influence of alcohol or any other drug on the violation unless he is convicted of the violation. department must administer the provisions of this section and must promulgate regulations necessary to ealTY out its provisions. (P) If a person does not request an administrative hearing within the as authorized pursuant to this section, the person may file with the department a form after enrolling in a certified Alcohol and Safety Action Program to apply for a restricted license. The restricted license him to drive only to and from work and his of education and in the course of his employment or education period suspension. The restricted license also to drive to and Alcohol and Drug Action Program or a court-ordered program. The department may issue the license at any time following the he Incident site and breath test site videotaping 11 . Section 1976 to "Section (A) A person who violates Section 56-5-2930, or 56-5-2945 must have his conduct at the incident site and the breath test site video recorded. (I )(a) The video recording at the incident must: (i) not begin later than the activation of the officer's blue include any field tests administered; and mclude the arrest a person for a violation of Section ()r Section or a probable cause determination in that the p~.:rson violated Section 56-5-2945, and show the person being advised of Miranda rights. A refusal to take a field sobriety test does not constitute a police command. at the to submits to produce because the person needed emergency circumstances In circumstances limited to, road blocks, traftlc accident where an arrest has been made and has not been activated by blue lights, the officer to produce the video recordings required th1s section is not alone a ground for dismissal. However, as soon as video recording is practicable in these circumstances, video recording must and conform with the provisions of this section. Nothing in secmm prohibits the court from considering any other valid reason for lure to the video recording based upon the totality of cm:umstances: nor do the provisions of this section prohibit the person evidence to the arresting law enforcement officer's failure to produce the video recording. A recording must not be disposed of in any manner except for consolidation purposes until the in \vhich it may be involved are finally of video equipment. The Safety SLED must report the revenue CM"'""'" and the expenditures tor which revenue as in the department's and SLED's annual request to the General Assembly. The Department of Public Safety and SLED must promulgate necessary to the provisions of section. The provisions contained in Section 56-5-2953(A), (B), and (C) each law enforcement vehicle used tor traffic once the law vehicle is equipped with a video The provisions contained in Section 56-5-2953(A), Breath testing sites SECTION 12. a breath test site once the breath test site is device." 1976 IS to ntfW'f'i~m.Pnt Division web site. to process State and are any costs involved. are open to the confidentiality law. The presiding administrative law judge in a written order. The decisions or orders of are not required to be published but are inspection unless confidentiality is allowed or judge shall preside over all of contested cases as defined in Section 1 10 or Article I, Section 22, Constitution of State of South Carolina. 1895, involving the of the executive branch of government as defined in Section 1-30-10 in which a hearing or an administrative law is authorized or permitted by law or regulation to hear and decide these cases, except those under the Occupational Safety and Health Act, those matters arising under the Consolidated Procurement Code, those matters heard by the Public Service the Security Workers' other cases or federal unless to the common to the another provision of law, the Administrative La\v Court has jurisdiction to review and an administrative process issued by a department of the executive branch of government, defined in Section 1-30-10, such as a subpoena, administrative search warrant, cease and desist order, or other administrative order or process. A of the branch of government authorized law to seek an administrative process may apply to administrative law judge or to issue or enforce an A by an administrative process of the branch of may the process La\v Court is not appealed 1 upon of the Administrative Law Court copy of the final order with a clerk of the circuit or coun of competent jurisdiction, as requested. After the certified order has the same effect as a judgment of the court where filed and may be recorded, enforced, or satisfied in the same manner as a judgment of that court." Disposition of pending cases 14. Section 1-23-660 of the 1976 Code, as last amended 2006, is amended to read: ··section 1-23-660. There is Law at purposes of this any an officer who requested a breath test any law agency that employs a person who acted as a breath test resulting in a suspension pursuant to Section 56-1-286 or 56-5-2951 to the hearing and shall be served with appropriate the opportunity to request continuances and participate and provided a copy of all orders issued in the action. of the Department Motor Vehicles are not required to appear at Implied consent, habitual offender, financial responsibility, suspension The hearing otTicers are bound by the Judicial Conduct, as contained in Rule 501 of the South Appellate Court Rules. The State Ethics Commission is for and administration of those rules and for the issuance advisory opinions on the requirements of those rules for admmistratiw law and officers pursuant to the Section 8-13-230. another officer. and The not hear any from Habitual offenders permitted this item may be filed after two years have from the date of the decision of the department finding the person to be an habitual offender. At this time and after the may reduce five-year period of item (a) to a for good cause shown. If the t\vo-year period is it must run trom the date of the final decision of the hearing If the two-year period is not granted, no petition may be filed until after years haYe expired from the date of the decision of However. a petition or court order is not required for the restoration of privileges, and the issuance of a license to implement the provisions 23 of Title 1. The under which the SLED Internet web site expired and all financial must promulgate this section as provided by must set forth the Appeal from a conviction SECTION I Section 56- 1976 is amended to an such conviction so as to preclude for a period of six months of conviction any such suspension or revocation." Child endangerment SECTION 20. Section reaJ: ofthe 1976 Code IS amended to person eighteen years of age or over is guilty of child \vhen: person is in violation of: Section 56-5- Section 56-5-2930; Section 56-5-2933; or Section and the person has one or more passengers under sixteen years of m the motor the Yiolation occurs. If more than one passenger under sixteen years of age is in the when a violation 1) occurs, person may Penalties 2 Severability clause Savings clause act of any or civil or does not affect or liabilities founded thereon, or alter, release or any penalty, torfeiture, or liability under the repealed or amended law, unless the repealed or provision shall so expressly provide. the effective date act, all laws repealed or amended by this act must be taken and treated as remammg m force and effect tor the purpose of any pending or vested right, civil action, special proceeding, or appeal existing as of the date of this and for the enforcement of duties, penalties, forfeitures, and as stood under the repealed or amended laws. Time effective 24. act takes effect at 12:00 p.m. on February 10, 2009. 2008.