§ 50-21-114 — Chemical test or analysis of breath, blood, or urine; implied consent; presumptions arising from blood alcohol content levels.

(A)(1) A person who operates a water device is considered to have given consent to chemical tests or analysis of his breath, blood, or urine to determine the presence of alcohol, drugs, or a combination of both, if arrested for an offense arising out of acts alleged to have been committed while the person was operating or directing the operation of a water device while under the influence of alcohol, drugs, or a combination of both. A test given must be administered at the direction of the arresting law enforcement officer. At the direction of the arresting officer, the person first must be offered a breath test to determine the alcohol concentration of his blood. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious or dead, or for any other reason considered acceptable by licensed medical personnel, a blood sample may be taken. If the officer has reasonable grounds to believe the person is under the influence of drugs other than alcohol, the officer may order that a urine sample be taken for testing. If the breath analysis reading is eight one-hundredths of one percent or above by weight of alcohol in the person's blood, the officer may not require additional tests of the person as provided in this chapter. (2) The breath test must be administered by a person trained and certified by the South Carolina Law Enforcement Division (SLED), using methods approved by SLED. The arresting officer may administer the tests if testing is done in conformity with the standards set out by SLED. Blood and urine samples must be taken 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 take the samples in a licensed medical facility. Blood samples or urine samples must be obtained and handled in accordance with procedures approved by SLED. No tests may be administered or samples taken unless the person has been informed that he does not have to take the test or give the samples, but that his privilege to operate a water device must be suspended or denied for one hundred eighty days if he refuses to submit to the tests. (3) A hospital, physician, qualified technician, chemist, or registered nurse who takes samples or conducts the test or participates in the process of taking the samples or conducting the test in accordance with this section is not subject to a cause of action for assault, battery, or any other cause alleging that the drawing of blood or taking of samples at the request of the arrested person or a law enforcement officer was wrongful. This release from liability does not reduce the standard of medical care required of the person taking the samples or conducting the test. This qualified release also applies to the employer of the person who conducts the test or takes the samples. No person may be required by the arresting officer, or by any other law enforcement officer, to obtain or take any sample of blood or urine. (4) The person tested or giving samples for testing may have a qualified person of his own choosing conduct additional tests at his expense and must be notified of that right. A person's failure to request additional blood or urine tests is not admissible against the person in a criminal trial. The failure or inability of the person tested to obtain additional tests does not preclude the admission of evidence relating to the tests or samples taken at the direction of the law enforcement officer. (5) The arresting officer must provide reasonable assistance to the person to contact a qualified person to conduct additional tests. (6) SLED must administer the provisions of this subsection and may promulgate regulations necessary to carry out its provisions. The cost of the tests administered at the direction of the law enforcement officer must be paid from the general fund of the State. A fee of fifty dollars must be assessed at the time of the sentencing against persons convicted of, pleading guilty or nolo contendere to, or forfeiting bond for violating Section 50-21-112 or Section 50-21-113. This fee must be forwarded by the county treasurer to the State Treasurer and credited to the general fund of the State to defray any costs incurred by SLED and individuals and institutions obtaining the samples forwarded to SLED. (B) In any criminal prosecution where a test or tests were administered pursuant to this chapter, the amount of alcohol in the person's blood at the time of the alleged violation, as shown by chemical analysis of the person's breath or other body fluids, gives rise to the following inferences: (1) If there was at that time five one-hundredths of one percent or less by weight of alcohol in the person's blood, it is presumed conclusively that the person was not under the influence of alcohol. (2) If there was at that time in excess of five one-hundredths of one percent but less than eight one-hundredths of one percent by weight of alcohol in the person's blood, this fact does not give rise to any inference that the person was or was not under the influence of alcohol, but this fact may be considered with other competent evidence in determining the guilt or innocence of the person. (3) If there was at that time eight one-hundredths of one percent or more by weight of alcohol in the person's blood, it may be inferred that the person was under the influence of alcohol. (C) The provisions of this section may not be construed as limiting the introduction of other competent evidence bearing upon the question of whether or not the person was under the influence of alcohol, drugs, or a combination of them. Refusal, resistance, obstruction, or opposition to testing pursuant to this section is admissible as evidence at the trial of a person charged with the offense that precipitated the request for testing. (D) 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 by subsection (A). (E) If a person under arrest refuses, upon the request of a law enforcement officer, to submit to chemical tests provided in subsection (A), none may be given, but the department, on the basis of a report from the law enforcement officer that the arrested person was operating a water device within this State while under the influence of alcohol, drugs, or a combination of them, and that the person had refused to submit to the tests, must suspend his privilege to perform the above-mentioned activities for one hundred eighty days. The one hundred eighty-day period of suspension begins with the day after the date of the notice required to be given, unless a hearing is requested as provided, in which case the one hundred eighty-day period begins with the day after the date of the order sustaining the suspension. The report of the arresting officer must include what grounds he had for believing the arrested person was conducting the above-mentioned activity while under the influence of alcohol, drugs, or a combination of them. (F) Upon suspending the operating privilege of a person, the department immediately shall notify the person in writing and upon his request give him an opportunity for a hearing as provided in Article 3, Chapter 23, Title 1 of the 1976 Code. The review must be scheduled by the Administrative Law Court in accordance with the division's procedural rules. The scope of the hearing is limited to the issues set out by the Administrative Procedures Act and the division's procedural rules. Upon order of the administrative law judge, the department either shall rescind its order of suspension or continue the suspension of the privilege. (G) If a boating accident or marine casualty involves a fatality, the coroner having jurisdiction shall direct that a chemical blood test be performed on the deceased, within forty-eight hours of receiving notification of the death, to determine blood alcohol concentration or the presence of drugs, and that the results of the test be recorded properly in the coroner's report. (H) The suspensions under this section are in addition to and not in lieu of any other civil remedies or civil penalties which may be assessed.

Legislative History

HISTORY: 1991 Act No. 138, SECTION 1; 1993 Act No. 181, SECTION 1269; 1999 Act No. 124, SECTION 2.G; 2003 Act No. 61, SECTION 3.