1. (A) The Department of Motor Vehicles shall suspend the driver's license, permit, or nonresident operating privilege of, or deny the issuance of a license or permit to a person under the age of twenty-one who drives a motor vehicle and has an alcohol concentration of two one-hundredths of one percent or more. In cases in which a law enforcement officer initiates suspension proceedings for a violation of this section, the officer has elected to pursue a violation of this section and is subsequently prohibited from prosecuting the person for a violation of Section 63-19-2440, 63-19-2450, 56-5-2930, or 56-5-2933, arising from the same incident.
2. (B) A person under the age of twenty-one who drives a motor vehicle in this State is considered to have given consent to chemical tests of the person's breath or blood for the purpose of determining the presence of alcohol.

3. (C) A law enforcement officer who has arrested a person under the age of twenty-one for a violation of Chapter 5 of this title (Uniform Act Regulating Traffic on Highways), or any other traffic offense established by a political subdivision of this State, and has reasonable suspicion that the person under the age of twenty-one has consumed alcoholic beverages and driven a motor vehicle may order the testing of the person arrested to determine the person's alcohol concentration.

   A law enforcement officer may detain and order the testing of a person to determine the person's alcohol concentration if the officer has reasonable suspicion that a motor vehicle is being driven by a person under the age of twenty-one who has consumed alcoholic beverages.

4. (D) A test must be administered at the direction of the primary investigating law enforcement officer. At the officer's direction, the person first must be offered a breath test to determine the person's alcohol concentration. If the person physically is unable to provide an acceptable breath sample because the person has an injured mouth or is unconscious or dead, or for any other reason considered acceptable by licensed medical personnel, a blood sample may be taken. The breath test must be administered by a person trained and certified by the South Carolina Criminal Justice Academy, pursuant to the State Law Enforcement Division's policies. The primary investigating officer may administer the test. Blood samples must be obtained by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, or other medical personnel trained to obtain these samples in a licensed medical facility. Blood samples must be obtained and handled in accordance with procedures approved by the division. The division shall administer the provisions of this subsection and shall promulgate regulations necessary to carry out the subsection's provisions. The costs of the tests administered at the officer's direction must be paid from the state's general fund. However, if the person is subsequently convicted of violating Section 56-5-2930, 56-5-2933, or 56-5-2945, then, upon conviction, the person shall pay twenty-five dollars for the costs of the tests. The twenty-five dollars must be placed by the Comptroller General into a special restricted account to be used by the State Law Enforcement Division to offset the costs of administration of the breath testing devices, breath testing site video program, and toxicology laboratory.

   The person tested or giving samples for testing may have a qualified person of the person's choice conduct additional tests at the person's expense and must be notified in writing of that right. A person's request or failure to request additional blood tests is not admissible against the person in any proceeding. The person's failure or inability to obtain additional tests does not preclude the admission of evidence relating to the tests or samples taken at the officer's direction. The officer shall provide affirmative assistance to the person to contact a qualified person to conduct and obtain additional tests. Affirmative assistance shall, at a minimum, include 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 to determine the person's alcohol concentration, the State Law Enforcement Division shall test the blood and provide the result to the person and to the officer. Failure to provide affirmative assistance upon request to obtain additional tests bars the admissibility of the breath test result in a judicial or administrative proceeding.

5. (E) A qualified person and the person's employer who obtain samples or administer the tests or assist in obtaining samples or administering of tests at the primary investigating officer's direction are immune from civil and criminal liability unless the obtaining of samples or the administering of tests is performed in a negligent, reckless, or fraudulent manner. A person may not be required by the officer ordering the tests to obtain or take any sample of blood or urine.

6. (F) If a person refuses upon the primary investigating officer's request to submit to chemical tests as provided in subsection (C), the department shall suspend the person's license, permit, or nonresident operating privilege, or deny the issuance of a license or permit to the person for:

   1. (1) six months; or
   2. (2) one year, if the person, within the three years preceding the violation of this section, has been previously convicted of violating Section 56-5-2930, 56-5-2933, 56-5-2945, or a law of another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or other drugs, or the person has had a previous suspension imposed pursuant to Section 56-1-286, 56-5-2951, or 56-5-2990.

7. (G) If a person submits to a chemical test and the test result indicates an alcohol concentration of two one-hundredths of one percent or more, the department shall suspend the person's license, permit, or nonresident operating privilege, or deny the issuance of a license or permit to the person for:

   1. (1) three months; or
   2. (2) six months, if the person, within the three years preceding the violation of this section, has been previously convicted of violating Section 56-5-2930, 56-5-2933, 56-5-2945, or a law of another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or other drugs, or the person has had a previous suspension imposed pursuant to Section 56-1-286, 56-5-2951, or 56-5-2990.
8. (H) A person's driver's license, permit, or nonresident operating privilege must be restored when the person's period of suspension pursuant to subsection (F) or (G) has concluded, even if the person has not yet completed the Alcohol and Drug Safety Action Program in which the person is enrolled. After the person's driving privilege is restored, the person shall continue to participate in the Alcohol and Drug Safety Action Program in which the person 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 must be suspended until the person completes the Alcohol and Drug Safety Action Program. A person shall be attending or have completed an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 before the person's driving privilege may be restored at the conclusion of the suspension period.

9. (I) A test may not be administered or samples taken unless, upon activation of the video recording equipment and prior to the commencement of the testing procedure, the person has been given a written copy of and verbally informed that:

   1. (1) the person does not have to take the test or give the samples but that the person's privilege to drive must be suspended or denied for at least six months if the person refuses to submit to the tests, and that the person's refusal may be used against the person in court;
   2. (2) the person's privilege to drive must be suspended for at least three months if the person takes the test or gives the samples and has an alcohol concentration of two one-hundredths of one percent or more;
   3. (3) the person has the right to have a qualified person of the person's own choosing conduct additional independent tests at the person's expense;
   4. (4) the person has the right to request a contested case hearing within thirty days of the issuance of the notice of suspension; and

   5. (5) the person shall enroll in an Alcohol and Drug Safety Action Program within thirty days of the issuance of the notice of suspension if the person does not request a contested case hearing or within thirty days of the issuance of notice that the suspension has been upheld at the contested case hearing.

      The primary investigating officer promptly shall notify the department of a person's refusal to submit to a test requested pursuant to this section as well as the test result of a person who submits to a test pursuant to this section and registers an alcohol concentration of two one-hundredths of one percent or more. The notification must be in a manner prescribed by the department.

10. (J) If the test registers an alcohol concentration of two one-hundredths of one percent or more or if the person refuses to be tested, the primary investigating officer shall issue a notice of suspension, and the suspension is effective beginning on the date of the alleged violation of this section. The person, within thirty days of the issuance of the notice of suspension, shall enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 if the person does not request an administrative hearing. If the person does not request an administrative hearing and does not enroll in an Alcohol and Drug Safety Action Program within thirty days, the suspension remains in effect, and a temporary alcohol license must not be issued. If the person drives a motor vehicle during the period of suspension without a temporary alcohol license, the person must be penalized for driving while the person's license is suspended pursuant to Section 56-1-460.

11. (K) Within thirty days of the issuance of the notice of suspension the person may:

    1. (1) obtain a temporary alcohol license by filing with the Department of Motor Vehicles a form for this purpose. A one hundred dollar fee must be assessed for obtaining a temporary alcohol license. Twenty-five dollars of the fee collected by the Department of Motor Vehicles must be distributed to the Department of Public Safety for supplying and maintaining all necessary vehicle videotaping equipment. The remaining seventy-five dollars must be placed by the Comptroller General into the State Highway Fund as established by Section 57-11-20, to be distributed as provided in Section 11-43-167. The temporary alcohol license allows the person to drive a motor vehicle without any restrictive conditions pending the outcome of the contested case hearing provided for in this section or the final decision or disposition of the matter; and

    2. (2) request a contested case hearing before the Office of Motor Vehicle Hearings pursuant to its rules of procedure.

       1. (a) the suspension is upheld, the person shall enroll in an Alcohol and Drug Safety Action Program and 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 periods provided for in subsections (F) and (G); or
       2. (b) the suspension is overturned, the person's driver's license, permit, or nonresident operating privilege must be reinstated.

       At the contested case hearing if:

12. (L) The periods of suspension provided for in subsections (F) and (G) begin on the day the notice of suspension is issued, or at the expiration of any other suspensions, and continue until the person applies for a temporary alcohol license and requests an administrative hearing.
13. (M) If a person does not request a contested case hearing, the person has waived the person's right to the hearing and the person's suspension must not be stayed but shall continue for the periods provided for in subsections (F) and (G).
14. (N) The notice of suspension must advise the person of the requirement to enroll in an Alcohol and Drug Safety Action Program and of the person's right to obtain a temporary alcohol license and to request a contested case hearing. The notice of suspension also must advise the person that, if the person does not request a contested case hearing within thirty days of the issuance of the notice of suspension, the person shall enroll in an Alcohol and Drug Safety Action Program, and the person waives the person's right to the contested case hearing, and the suspension continues for the periods provided for in subsections (F) and (G).

15. (O) A contested case hearing must be held after the request for the hearing is received by the Office of Motor Vehicle Hearings. The scope of the hearing is limited to whether the person:

    1. (1) was lawfully arrested or detained;
    2. (2) was given a written copy of and verbally informed of the rights enumerated in subsection (I);
    3. (3) refused to submit to a test pursuant to this section; or

    4. (4) consented to taking a test pursuant to this section, and the:

       1. (a) reported alcohol concentration at the time of testing was two one-hundredths of one percent or more;
       2. (b) individual who administered the test or took samples was qualified pursuant to this section;
       3. (c) test administered and samples taken were conducted pursuant to this section; and

       4. (d) the machine was operating properly.

          Nothing in this section prohibits the introduction of evidence at the contested case hearing on the issue of the accuracy of the breath test result.

          The Department of Motor Vehicles and the arresting officer shall have the burden of proof in contested case hearings conducted pursuant to this section. If neither the Department of Motor Vehicles nor the arresting officer appears at the contested case hearing, the hearing officer shall rescind the suspension of the person's license, permit, or nonresident's operating privilege regardless of whether the person requesting the contested case hearing or the person's attorney appears at the contested case hearing.

          A written order must be issued to all parties either reversing or upholding the suspension of the person's license, permit, or nonresident's operating privilege, or denying the issuance of a license or permit. If the suspension is upheld, the person must receive credit for the number of days the person's license was suspended before the person received a temporary alcohol license and requested the contested case hearing.

16. (P) A contested case hearing is a contested proceeding under the Administrative Procedures Act, and a person has a right to appeal the decision of the hearing officer pursuant to that act to the Administrative Law Court in accordance with its appellate rules. The filing of an appeal shall stay the suspension until a final decision is issued.
17. (Q) 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 for in subsection (B) of this section.
18. (R) When a nonresident's privilege to drive a motor vehicle in this State has been suspended under the procedures of this section, the department shall 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.
19. (S) A person required to submit to a test 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 proceeding in which the results of the tests are used as evidence. A person who obtains additional tests shall furnish a copy of the time, method, and results of any additional 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.
20. (T) A person whose driver's license or permit is suspended under this section is not required to file proof of financial responsibility.
21. (U) The department shall administer the provisions of this section, not including subsection (D), and shall promulgate regulations necessary to carry out its provisions.
22. (V) Notwithstanding any other provision of law, no suspension imposed pursuant to this section is counted as a demerit or result in any insurance penalty for automobile insurance purposes if at the time the person was stopped, the person whose license is suspended had an alcohol concentration that was less than eight one-hundredths of one percent.

HISTORY: 1998 Act No. 434, Section 2; 2000 Act No. 390, Sections 3-5; 2001 Act No. 79, Section 2.C; 2003 Act No. 61, Section 4; 2006 Act No. 381, Section 8, eff June 13, 2006; 2008 Act No. 201, Section 2, eff February 10, 2009; 2012 Act No. 212, Section 2, eff June 7, 2012; 2012 Act No. 264, Section 2, eff June 18, 2012; 2014 Act No. 158 (S.137), Section 2, eff October 1, 2014; 2016 Act No. 275 (S.1258), Section 17, eff July 1, 2016.

Code Commissioner's Note

At the direction of the Code Commissioner, the references, in subsection (A), to former Children's Code Sections 20-7-8920 and 20-7-8925 were changed to new South Carolina Children's Code Sections 63-19-2440 and 63-19-2450 enacted by 2008 Act No 361.

Effect of Amendment

The 2006 amendment, in subsection (O), rewrote the first undesignated paragraph to substitute "Division of Motor Vehicle Hearings" for "Department of Motor Vehicles" and make conforming and nonsubstantive changes, and in the third undesignated paragraph in the first sentence substituted "all parties either reversing or" for "the person"; and, in subsection (P), in the first sentence substituted "appeal the decision of the hearing officer" for "judicial review" and added "to the Administrative Law Court in accordance with its appellate rules", and in the second sentence substituted "an appeal" for "a petition for review".

The 2008 amendment, in subsection (C), substituted "reasonable suspicion" for "probable cause to believe" in two places; in subsection (D) in the fourth sentence substituted "South Carolina Criminal Justice Academy, pursuant to SLED policies" for "State Law Enforcement Division, using methods approved by the division", in the fifth sentence deleted "if the person's conduct during the twenty minute pre-test waiting period is videotaped pursuant to Section 56-5-2953(A)(2)(d), and added the tenth and eleventh sentences; in subsection (I), added the provision relating to videotaping verbal warning; in subsections (J), (K)(1), (L) and the undesignated paragraph at the end of (O), deleted "restricted" preceding "license"; rewrote the introductory paragraph of subsection (O), in paragraph (2) added the requirement as to verbal warning of rights, and in the last undesignated paragraph at the end of the first sentence deleted "within thirty days after the conclusion of the administrative hearing"; and made nonsubstantive language changes.

The first 2012 amendment substituted "contested case" for "administrative" throughout; added "before the Office of Motor Vehicle Hearings pursuant to its rules of procedure" in subsection (K)(2); and substituted "Office" for "Division" and inserted language regarding burden of proof and failure to appear for a hearing in subsection (O).

The second 2012 amendment, in subsection (K)(1), substituted "Department of Motor Vehicles" for "department", and substituted "collected by the Department of Motor Vehicles must be distributed to" for "must be retained by".

2014 Act No. 158, Section 2, in subsections (F)(2) and (G)(2), substituted "three years" for "five years", substituted ", or a law of another state" for "or any other law of this State or another state", substituted "or other drugs" for "or another drug", deleted reference to Section 56-5-2950, and added reference to Section 56-5-2990; in subsections (I)(4) and (I)(5), substituted "contested case hearing" for "administrative hearing"; and made other nonsubstantive and gender neutral changes throughout.

2016 Act No. 275, Section 17, amended (K)(1), providing that all or a portion of the fees or fines collected by the department of motor vehicles shall be credited to the state highway fund.