2003-2004 Bill 3304: Gross Intoxication Under Driving Under the Influence Provisions

1 South Carolina General Assembly 2 115th Session, 2003-2004 3 4 H. 3304 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Reps. Easterday, Harrell and Tripp 10 Document Path: l:\council\bills\swb\5039cm03.doc 11 12 Introduced in the House on January 14, 2003 13 Currently residing in the House Committee on Judiciary 14 15 Summary: Gross intoxication under driving under the influence provisions 16 17 18 HISTORY OF LEGISLATIVE ACTIONS 19 20 Date Body Action Description with journal page number 21 1/14/2003 House Introduced and read first time 22 1/14/2003 House Referred to Committee on Judiciary 23 24 25 VERSIONS OF THIS BILL 26 27 1/14/2003 28 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND SECTION 56-1-1320, AS AMENDED, CODE OF 12 LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE 13 ISSUANCE OF A PROVISIONAL DRIVER’S LICENSE, SO AS 14 TO PROVIDE THAT A PERSON CONVICTED OF AN 15 OFFENSE THAT PROHIBITS A PERSON FROM OPERATING 16 A VEHICLE WHILE UNDER THE INFLUENCE OF 17 INTOXICATING LIQUOR, DRUGS, OR NARCOTICS AND 18 WHO AT THE TIME OF THE OFFENSE, HAD AT LEAST 19 SIXTEEN ONE-HUNDREDTHS OF ONE PERCENT OR MORE 20 BY WEIGHT OF ALCOHOL IN HIS BLOOD MAY NOT 21 OBTAIN A PROVISIONAL DRIVER’S LICENSE; TO AMEND 22 SECTION 56-5-2930, AS AMENDED, RELATING TO THE 23 UNLAWFUL OPERATION OF A MOTOR VEHICLE WHILE 24 UNDER THE INFLUENCE OF ALCOHOL, DRUGS, OR 25 BOTH, SO AS TO ESTABLISH GROSS INTOXICATION AS 26 AN OFFENSE; TO AMEND SECTION 56-5-2940, AS 27 AMENDED, RELATING TO THE PENALTY FOR DRIVING 28 WHILE UNDER THE INFLUENCE OF ALCOHOL, DRUGS, 29 OR BOTH, SO AS TO PROVIDE ENHANCED PENALTIES 30 FOR A PERSON WHO HAS AT LEAST SIXTEEN 31 ONE-HUNDREDTHS OF ONE PERCENT BY WEIGHT OF 32 ALCOHOL IN HIS BLOOD; TO AMEND SECTION 56-5-2950, 33 AS AMENDED, RELATING TO IMPLIED CONSENT TO 34 CHEMICAL TESTS OF BREATH, BLOOD, AND URINE, SO 35 AS TO PROVIDE THAT IT MAY BE INFERRED THAT A 36 PERSON WHO HAS AT LEAST SIXTEEN 37 ONE-HUNDREDTHS OF ONE PERCENT BY WEIGHT OF 38 ALCOHOL IN HIS BLOOD IS GROSSLY INTOXICATED; 39 AND TO AMEND SECTION 56-5-2990, AS AMENDED, 40 RELATING TO THE SUSPENSION OF THE DRIVER’S 41 LICENSE OF A PERSON CONVICTED OF DRIVING WHILE 42 UNDER THE INFLUENCE OF ALCOHOL, DRUGS, OR

1 [3304] 1 1 BOTH, SO AS TO PROVIDE ENHANCED PENALTIES FOR A 2 PERSON WHO IS GROSSLY INTOXICATED. 3 4 Be it enacted by the General Assembly of the State of South 5 Carolina: 6 7 SECTION 1. Section 56-1-1320 of the 1976 Code, as last 8 amended by Act 79 of 2001, is further amended by adding at the 9 end: 10 11 “(C) A person convicted of a municipal ordinance or law of this 12 State that prohibits a person from operating a vehicle under the 13 influence of intoxicating liquor, drugs, or narcotics, and who had 14 at least sixteen one-hundredths of one percent or more by weight 15 of alcohol in his blood at the time of the offense, may not obtain a 16 provisional driver’s license.” 17 18 SECTION 2. Section 56-5-2930 of the 1976 Code, as last 19 amended by Act 390 of 2000, is further amended to read: 20 21 “Section 56-5-2930. (A) It is unlawful for a person to drive a 22 motor vehicle within this State while: 23 (1) under the influence of alcohol to the extent that the 24 person’s faculties to drive are materially and appreciably impaired; 25 (2) under the influence of any other drug or a combination of 26 other drugs or substances which cause impairment to the extent 27 that the person’s faculties to drive are materially and appreciably 28 impaired; or 29 (3) under the combined influence of alcohol and any other 30 drug or drugs or substances which cause impairment to the extent 31 that the person’s faculties to drive are materially and appreciably 32 impaired. 33 (B) A person is grossly intoxicated if he drives a motor vehicle 34 while under the influence of intoxicating liquors, drugs, or a 35 similar substance and one of the following factors is present: 36 (1) his manner, disposition, speech, muscular movement, 37 general appearance, or behavior is affected grossly by the 38 influence of intoxicating liquor, drugs, or a similar substance; or 39 (2) at the time of the offense, there was at least sixteen 40 one - hundredths of one percent by weight of alcohol in his blood. 41 (C) the question of gross intoxication is one of fact that must be 42 determined by a judge or jury.” 43

1 [3304] 2 1 SECTION 3. Section 56-5-2940 of the 1976 Code, as last 2 amended by Act 390 of 2000, is further amended to read: 3 4 “Section 56-5-2940. A person who violates a provision of 5 Section 56-5-2930 or 56-5-2933, upon conviction, entry of a plea 6 of guilty or of nolo contendere, or forfeiture of bail must be 7 punished: 8 (1)(a) by a fine of three hundred dollars or imprisonment for 9 not less than forty-eight hours nor more than thirty days, for the 10 first offense; if he is grossly intoxicated. However, in lieu of the 11 forty-eight hour minimum imprisonment, the court may provide 12 for forty-eight hours of public service employment. The minimum 13 forty-eight hour imprisonment or public service employment must 14 be served at a time when the person is off from work and does not 15 interfere with his regular employment under terms and conditions 16 as the court considers proper. However, the court may not compel 17 an offender to perform public service employment in lieu of the 18 minimum sentence.; 19 (b) by a fine of not less than two thousand dollars or more 20 than five thousand dollars and imprisonment not less than 21 forty - eight hours or more than one year for the first offense if he 22 was grossly intoxicated pursuant to Section 56 - 5 - 2930. In addition 23 to the forty - eight hour minimum imprisonment, the court may 24 provide for forty - eight hours of public service employment upon 25 terms and conditions the court considers proper. 26 (2)(a) by a fine of not less than two thousand dollars nor more 27 than five thousand dollars and imprisonment for not less than 28 forty-eight hours nor more than one year for the second offense if 29 the person was not grossly intoxicated. However, the fine imposed 30 by this item may not be suspended in an amount less than one 31 thousand dollars. In lieu of service of addition to imprisonment, 32 the court may require that the individual complete an appropriate 33 term of public service employment of not less than ten days upon 34 terms and conditions the court considers proper.; 35 (b) by a fine of not less than three thousand five hundred 36 dollars or more than six thousand dollars, and imprisonment for 37 not less that sixty days or more than three years for the second 38 offense if he was grossly intoxicated pursuant to Section 39 56 - 5 - 2930. 40 (3)(a) by a fine of not less than three thousand five hundred 41 dollars nor more than six thousand dollars and imprisonment for 42 not less than sixty days nor more than three years for the third 43 offense. if the person was grossly intoxicated;

1 [3304] 3 1 (b) by imprisonment for not less than one year or more than 2 five years for the third offense if he was grossly intoxicated 3 pursuant to Section 56 - 5 - 2930; 4 (4)(a) by imprisonment for not less than one year nor more than 5 five years for a fourth offense or subsequent offense. if the person 6 was grossly intoxicated; 7 (b) by imprisonment for not less than five years or more than 8 ten years for the fourth or subsequent offense if the person was 9 grossly intoxicated pursuant to Section 56 - 5 - 2930. 10 No part of the minimum sentences provided in this section must 11 may be suspended. The court may provide instead of service other 12 sentences provided in this section. For a third or subsequent 13 offense or for a violation of Section 56-5-2945 for great bodily 14 injury, the service of the minimum sentence is mandatory. 15 However, the judge may provide for the sentence to be served 16 upon terms and conditions as he considers proper including, but 17 not limited to, weekend service or nighttime service in any fashion 18 he considers necessary. 19 The fine for a first offense may not be suspended. The court is 20 prohibited from suspending a monetary fine below that of the next 21 preceding minimum monetary fine. 22 For the purposes of this chapter any conviction, entry of a plea 23 of guilty or of nolo contendere, or forfeiture of bail for the 24 violation of any law or ordinance of this or any other state or any 25 municipality of this or any other state that prohibits any person 26 from operating a motor vehicle while under the influence of 27 intoxicating liquor, drugs, or narcotics shall constitute a prior 28 offense for the purpose of any prosecution for any subsequent 29 violation hereof. Only those violations which occurred within a 30 period of ten years including and immediately preceding the date 31 of the last violation shall constitute prior violations within the 32 meaning of this section. 33 Upon imposition of a sentence of public service, the defendant 34 may apply to the court to be allowed to perform his public service 35 in his county of residence if he has been sentenced to public 36 service in a county where he does not reside.” 37 38 SECTION 4. Section 56-5-2950(b) of the 1976 Code, as last 39 amended by Act 390 of 2000, is further amended to read: 40 41 “(b) In the criminal prosecution for a violation of Section 42 56-5-2930, 56-5-2933, or 56-5-2945 relating to driving a vehicle 43 under the influence of alcohol, drugs, or a combination of them,

1 [3304] 4 1 the alcohol concentration at the time of the test, as shown by 2 chemical analysis of the person’s breath or other body fluids, gives 3 rise to the following: 4 (1) If the alcohol concentration was at that time five 5 one-hundredths of one percent or less, it is conclusively presumed 6 that the person was not under the influence of alcohol. 7 (2) If the alcohol concentration was at that time in excess of 8 five one-hundredths of one percent but less than ten 9 one-hundredths of one percent, that fact does not give rise to any 10 inference that the person was or was not under the influence of 11 alcohol, but that fact may be considered with other evidence in 12 determining the guilt or innocence of the person. 13 (3) If the alcohol concentration was at that time ten 14 one-hundredths of one percent or more, it may be inferred that the 15 person was under the influence of alcohol. 16 (4) If the alcohol concentration was at that time ten 17 one-hundredths of one percent or more and the original testing of 18 the person’s breath or collection of other bodily fluids was 19 performed within two hours of the time of arrest, the person has 20 violated Section 56-5-2933. 21 (5) If there was at the time at least sixteen one - hundredths 22 by weight of alcohol in the person’s blood, it may be inferred that 23 the person was grossly intoxicated. 24 The provisions of this section must not be construed as limiting 25 the introduction of any other evidence bearing upon the question of 26 whether or not the person was under the influence of alcohol, 27 drugs, or a combination of them.” 28 29 SECTION 5. Section 56-5-2990(A) of the 1976 Code, as last 30 amended by Act 390 of 2000, is further amended to read: 31 32 “(A) The department shall suspend the driver’s license of a 33 person who is convicted, receives sentence upon a plea of guilty or 34 of nolo contendere, or forfeits bail posted for a violation of Section 35 56-5-2930, 56-5-2933, or for the violation of another law or 36 ordinance of this State or of a municipality of this State that 37 prohibits a person from driving a motor vehicle while under the 38 influence of intoxicating liquor, drugs, or narcotics for six months 39 for the first conviction, plea of guilty or of nolo contendere, or 40 forfeiture of bail; one year for the second conviction, plea of guilty 41 or of nolo contendere, or forfeiture of bail; two years for the third 42 conviction, plea of guilty or of nolo contendere, or forfeiture of 43 bail; and a permanent revocation of the driver’s license for the

1 [3304] 5 1 fourth or subsequent conviction, plea of guilty or of nolo 2 contendere, or forfeiture of bail. A person who was grossly 3 intoxicated pursuant to Section 56 - 5 - 2930 must have his driver’s 4 license suspended for one year for the first conviction, plea of nolo 5 contendere or forfeiture of bail; two years for the second 6 conviction, plea of guilty or nolo contendere, or forfeiture of bail; 7 three years for the third conviction, plea of guilty or nolo 8 contendere, or forfeiture of bail; and a permanent revocation of the 9 driver’s license for fourth and subsequent offenses. Only those 10 violations which occurred within ten years including and 11 immediately preceding the date of the last violation shall constitute 12 prior violations within the meaning of this section. However, if 13 the third conviction occurs within five years from the date of the 14 first offense, then the department shall suspend the driver’s license 15 for four years. A person whose license is revoked following 16 conviction for a fourth offense as provided in this section is 17 forever barred from being issued any license by the Department of 18 Public Safety to operate a motor vehicle except as provided in 19 Section 56-1-385.” 20 21 SECTION 6. This act takes effect upon approval by the 22 Governor. 23 ----XX---- 24

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