(A) It is unlawful for a person to operate or act as a flight crew member of an aircraft in this State:
(1) within eight hours after the consumption of any alcoholic beverage;
(2) while under the influence of alcohol;
(3) while using an illegal drug or controlled substance that affects the person's faculties in a manner contrary to safety; or
(4) with four one-hundredths of one percent or more by weight of alcohol in his blood at the time of the alleged violation.
(B) A person who operates or acts as a flight crew member of an aircraft in this State may consent to a chemical test of his breath for the purpose of determining the alcoholic content of his blood if arrested for violating the provisions of subsection (A). The test must be administered at the direction of a law enforcement officer who has apprehended a person while or after operating or acting as a flight crew member of any aircraft in this State while under the influence of alcohol. The test must be administered by a person trained and certified by and using methods approved by the South Carolina Law Enforcement Division, using methods approved by the division. The arresting officer may not administer the test, and no test may be administered unless the defendant has been informed that he does not have to take the test. A person who refuses to submit to the test violates the provisions of this subsection and is subject to a civil fine of two thousand dollars. The penalties provided for in this subsection are in addition to those provided for in subsection (E).
No person is required to submit to more than one test for any one offense for which he has been charged, and the test must be administered as soon as practicable without undue delay.
The person tested may have a physician, qualified technician, chemist, registered nurse, or other qualified person of his own choosing conduct a test or tests in addition to the test administered by the law enforcement officer. The failure or inability of the person tested to obtain an additional test does not preclude the admission of evidence relating to the test taken at the direction of the law enforcement agency or officer.
The arresting officer and the person conducting the test shall inform the person tested of his right to obtain an additional test, and the arresting officer or the person conducting the chemical test of the person apprehended promptly shall assist that person to contact a qualified person to conduct additional tests.
The division shall administer the provisions of this subsection and may make regulations as may be necessary to carry out its provisions. The Department of Health and Environmental Control and SLED shall cooperate with the division in carrying out its duties.
(C) In a criminal prosecution for the violation of this section, the amount of alcohol in the defendant's blood at the time of the alleged violation, as shown by chemical analysis of the defendant's breath, is admissible as evidence.
The provisions of this subsection do not limit the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of alcohol. Nothing contained in this section prohibits the introduction of:
(1) the results of additional tests of the person's breath or other bodily fluids;
(2) evidence that may corroborate or question the validity of the breath or bodily fluid test result including, but not limited to, evidence of:
(a) field sobriety tests;
(b) the amount of alcohol consumed by the person; and
(c) the person's action while operating an aircraft;
(3) a videotape of the person's conduct at the incident site and breath testing site taken pursuant to Section 56-5-2953 which is subject to redaction under the South Carolina Rules of Evidence; or
(4) any other evidence of the state of a person's faculties to operate an aircraft which would call into question the results of a breath or bodily fluid test.
At trial, a person charged with a violation of this section is entitled to a jury instruction stating that the factors enumerated above and the totality of the evidence produced at trial may be used by the jury to determine guilt or innocence. A person charged with a violation of this section must be given notice of intent to prosecute under the provisions of this section at least fourteen days before his trial date.
(D) The person conducting the chemical test for the law enforcement officer shall record in writing the time of arrest, the time of the test, and the results of the test, a copy of which must be furnished to the person tested or his attorney prior to any trial or other proceedings in which the results of the test are used as evidence. A person administering any additional test shall record in writing the time, type, and results of the test and promptly furnish a copy of the test to the arresting officer. A copy of the results of the test may be furnished to the Federal Aviation Administration and the division by the arresting officer or the agency involved in the arrest.
(E) A person who violates the provisions of subsection (A), upon conviction, must be punished by a fine of one thousand dollars or imprisonment for not less than forty-eight hours or more than one year, or both.
(F) For the purposes of this section "flight crew member" means a pilot, flight engineer, or flight navigator on duty or in an aircraft during flight time.
Notwithstanding another provision of law, a person charged with a violation of this section 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 chapter. 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 SLED is specifically, fully, and adequately funded.
In addition, at the time of arrest for a violation of this section, 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 hearings, depending on the choices made or the breath test results obtained, must provide the defendant with the appropriate form to request the hearing. The defendant must acknowledge receipt of the notice requirements and receipt of the hearing form if a hearing is desired.
HISTORY: 1987 Act No. 105 Section 1; 1993 Act No. 181, Section 1288, eff July 1, 1993; 2012 Act No. 270, Section 1, eff June 18, 2012.
Effect of Amendment
The 1993 amendment substituted "division" for "South Carolina Aeronautics Commission".
The 2012 amendment rewrote the section.