2012 -- H 7393

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LC00806

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO MOTOR AND OTHER VEHICLES -- MOTOR VEHICLE OFFENSES

     Introduced By: Representative Rene R. Menard

     Date Introduced: February 02, 2012

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 31-27-2 of the General Laws in Chapter 31-27 entitled "Motor

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Vehicle Offenses" is hereby amended to read as follows:

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     31-27-2. Driving under influence of liquor or drugs. -- (a) Whoever drives or

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otherwise operates any vehicle in the state while under the influence of any intoxicating liquor,

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drugs, toluene, or any controlled substance as defined in chapter 28 of title 21, or any

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combination of these, shall be guilty of a misdemeanor except as provided in subdivision (d)(3)

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and shall be punished as provided in subsection (d) of this section.

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      (b) (1) Any person charged under subsection (a) of this section whose blood alcohol

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concentration is eight one-hundredths of one percent (.08%) or more by weight as shown by a

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chemical analysis of a blood, breath, or urine sample shall be guilty of violating subsection (a) of

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this section. This provision shall not preclude a conviction based on other admissible evidence.

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Proof of guilt under this section may also be based on evidence that the person charged was under

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the influence of intoxicating liquor, drugs, toluene, or any controlled substance defined in chapter

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28 of title 21, or any combination of these, to a degree which rendered the person incapable of

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safely operating a vehicle. The fact that any person charged with violating this section is or has

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been legally entitled to use alcohol or a drug shall not constitute a defense against any charge of

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violating this section.

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      (2) Whoever drives or otherwise operates any vehicle in the state with a blood presence

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of any scheduled controlled substance as defined within chapter 28 of title 21, as shown by

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analysis of a blood or urine sample, shall be guilty of a misdemeanor and shall be punished as

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provided in subsection (d) of this section.

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     (3) The license of any person charged under subsection (a) of this section shall be

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immediately suspended by a bail commissioner, a judge or magistrate of the traffic tribunal or

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district court judge. Upon the receipt of a report from a law enforcement officer that the person

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was charged with a violation of this section that person’s license shall be surrendered within five

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(5) days of notice of suspension.

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      (c) In any criminal prosecution for a violation of subsection (a) of this section, evidence

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as to the amount of intoxicating liquor, toluene, or any controlled substance as defined in chapter

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28 of title 21, or any combination of these, in the defendant's blood at the time alleged as shown

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by a chemical analysis of the defendant's breath, blood, or urine or other bodily substance shall be

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admissible and competent, provided that evidence is presented that the following conditions have

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been complied with:

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      (1) The defendant has consented to the taking of the test upon which the analysis is

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made. Evidence that the defendant had refused to submit to the test shall not be admissible unless

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the defendant elects to testify.

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      (2) A true copy of the report of the test result was mailed within seventy-two (72) hours

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of the taking of the test to the person submitting to a breath test.

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      (3) Any person submitting to a chemical test of blood, urine, or other body fluids shall

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have a true copy of the report of the test result mailed to him or her within thirty (30) days

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following the taking of the test.

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      (4) The test was performed according to methods and with equipment approved by the

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director of the department of health of the state of Rhode Island and by an authorized individual.

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      (5) Equipment used for the conduct of the tests by means of breath analysis had been

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tested for accuracy within thirty (30) days preceding the test by personnel qualified as

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hereinbefore provided, and breathalyzer operators shall be qualified and certified by the

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department of health within three hundred sixty-five (365) days of the test.

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      (6) The person arrested and charged with operating a motor vehicle while under the

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influence of intoxicating liquor, toluene, or any controlled substance as defined in chapter 28 of

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title 21, or, any combination of these in violation of subsection (a) of this section was afforded the

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opportunity to have an additional chemical test. The officer arresting or so charging the person

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shall have informed the person of this right and afforded him or her a reasonable opportunity to

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exercise this right, and a notation to this effect is made in the official records of the case in the

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police department. Refusal to permit an additional chemical test shall render incompetent and

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inadmissible in evidence the original report.

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      (d) (1) (i) Every person found to have violated subdivision (b)(1) of this section shall be

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sentenced as follows: for a first violation whose blood alcohol concentration is eight one-

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hundredths of one percent (.08%) but less than one-tenth of one percent (.1%) by weight or who

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has a blood presence of any scheduled controlled substance as defined in subdivision (b)(2) shall

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be subject to a fine of not less than one hundred dollars ($100) nor more than three hundred

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dollars ($300), shall be required to perform ten (10) to sixty (60) hours of public community

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restitution, and/or shall be imprisoned for up to one year. The sentence may be served in any unit

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of the adult correctional institutions in the discretion of the sentencing judge and/or shall be

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required to attend a special course on driving while intoxicated or under the influence of a

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controlled substance; provided, however, that the court may permit a servicemember or veteran to

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complete any court-approved counseling program administered or approved by the Veterans'

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Administration, and his or her driver's license shall be suspended for thirty (30) days up to one

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hundred eighty (180) days.

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      (ii) Every person convicted of a first violation whose blood alcohol concentration is one-

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tenth of one percent (.1%) by weight or above but less than fifteen hundredths of one percent

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(.15%) or whose blood alcohol concentration is unknown shall be subject to a fine of not less than

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one hundred ($100) dollars nor more than four hundred dollars ($400) and shall be required to

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perform ten (10) to sixty (60) hours of public community restitution and/or shall be imprisoned

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for up to one year. The sentence may be served in any unit of the adult correctional institutions in

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the discretion of the sentencing judge. The person's driving license shall be suspended for a

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period of three (3) months to twelve (12) months. The sentencing judge shall require attendance

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at a special course on driving while intoxicated or under the influence of a controlled substance

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and/or alcoholic or drug treatment for the individual; provided, however, that the court may

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permit a servicemember or veteran to complete any court-approved counseling program

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administered or approved by the Veterans' Administration.

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      (iii) Every person convicted of a first offense whose blood alcohol concentration is

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fifteen hundredths of one percent (.15%) or above, or who is under the influence of a drug,

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toluene, or any controlled substance as defined in subdivision (b)(1) shall be subject to a fine of

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five hundred dollars ($500) and shall be required to perform twenty (20) to sixty (60) hours of

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public community restitution and/or shall be imprisoned for up to one year. The sentence may be

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served in any unit of the adult correctional institutions in the discretion of the sentencing judge.

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The person's driving license shall be suspended for a period of three (3) months to eighteen (18)

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months. The sentencing judge shall require attendance at a special course on driving while

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intoxicated or under the influence of a controlled substance and/or alcohol or drug treatment for

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the individual; provided, however, that the court may permit a servicemember or veteran to

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complete any court-approved counseling program administered or approved by the Veterans'

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Administration.

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      (2) (i) Every person convicted of a second violation within a five (5) year period with a

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blood alcohol concentration of eight one-hundredths of one percent (.08%) or above but less than

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fifteen hundredths of one percent (.15%) or whose blood alcohol concentration is unknown or

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who has a blood presence of any controlled substance as defined in subdivision (b)(2), and every

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person convicted of a second violation within a five (5) year period regardless of whether the

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prior violation and subsequent conviction was a violation and subsequent conviction under this

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statute or under the driving under the influence of liquor or drugs statute of any other state, shall

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be subject to a mandatory fine of four hundred dollars ($400). The person's driving license shall

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be suspended for a period of one year to two (2) years, and the individual shall be sentenced to

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not less than ten (10) days nor more than one year in jail. The sentence may be served in any unit

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of the adult correctional institutions in the discretion of the sentencing judge; however, not less

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than forty-eight (48) hours of imprisonment shall be served consecutively. The sentencing judge

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shall require alcohol or drug treatment for the individual; provided, however, that the court may

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permit a servicemember or veteran to complete any court-approved counseling program

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administered or approved by the Veterans' Administration and may prohibit that person from

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operating a motor vehicle that is not equipped with an ignition interlock system for a period of

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one year to two (2) years following the completion of the sentence as provided in section 31-27-

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2.8.

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      (ii) Every person convicted of a second violation within a five (5) year period whose

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blood alcohol concentration is fifteen hundredths of one percent (.15%) or above by weight as

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shown by a chemical analysis of a blood, breath, or urine sample or who is under the influence of

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a drug, toluene, or any controlled substance as defined in subdivision (b)(1) shall be subject to

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mandatory imprisonment of not less than six (6) months nor more than one year, a mandatory fine

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of not less than one thousand dollars ($1,000) and a mandatory license suspension for a period of

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two (2) years from the date of completion of the sentence imposed under this subsection. The

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sentencing judge shall require alcohol or drug treatment for the individual; provided, however,

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that the court may permit a servicemember or veteran to complete any court approved counseling

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program administered or approved by the Veterans' Administration.

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      (3) (i) Every person convicted of a third or subsequent violation within a five (5) year

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period with a blood alcohol concentration of eight one-hundredths of one percent (.08%) or above

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but less than fifteen hundredths of one percent (.15%) or whose blood alcohol concentration is

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unknown or who has a blood presence of any scheduled controlled substance as defined in

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subdivision (b)(2) regardless of whether any prior violation and subsequent conviction was a

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violation and subsequent conviction under this statute or under the driving under the influence of

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liquor or drugs statute of any other state, shall be guilty of a felony and be subject to a mandatory

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fine of four hundred ($400) dollars. The person's driving license shall be suspended for a period

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of two (2) years to three (3) years, and the individual shall be sentenced to not less than one year

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and not more than three (3) years in jail. The sentence may be served in any unit of the adult

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correctional institutions in the discretion of the sentencing judge; however, not less than forty-

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eight (48) hours of imprisonment shall be served consecutively. The sentencing judge shall

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require alcohol or drug treatment for the individual; provided, however, that the court may permit

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a servicemember or veteran to complete any court-approved counseling program administered or

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approved by the Veterans' Administration, and may prohibit that person from operating a motor

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vehicle that is not equipped with an ignition interlock system for a period of two (2) years

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following the completion of the sentence as provided in section 31-27-2.8.

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      (ii) Every person convicted of a third or subsequent violation within a five (5) year

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period whose blood alcohol concentration is fifteen hundredths of one percent (.15%) above by

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weight as shown by a chemical analysis of a blood, breath, or urine sample or who is under the

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influence of a drug, toluene or any controlled substance as defined in subdivision (b)(1) shall be

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subject to mandatory imprisonment of not less than three (3) years nor more than five (5) years, a

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mandatory fine of not less than one thousand dollars ($1,000) nor more than five thousand dollars

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($5,000) and a mandatory license suspension for a period of three (3) years from the date of

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completion of the sentence imposed under this subsection.

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      (iii) In addition to the foregoing penalties, every person convicted of a third or

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subsequent violation within a five (5) year period regardless of whether any prior violation and

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subsequent conviction was a violation and subsequent conviction under this statute or under the

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driving under the influence of liquor or drugs statute of any other state shall be subject, in the

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discretion of the sentencing judge, to having the vehicle owned and operated by the violator

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seized and sold by the state of Rhode Island, with all funds obtained by the sale to be transferred

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to the general fund.

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      (4) Whoever drives or otherwise operates any vehicle in the state while under the

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influence of any intoxicating liquor, drugs, toluene, or any controlled substance as defined in

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chapter 28 of title 21, or any combination of these, when his or her license to operate is

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suspended, revoked or cancelled for operating under the influence of a narcotic drug or

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intoxicating liquor shall be guilty of a felony punishable by imprisonment for not more than three

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(3) years and by a fine or not more than three thousand dollars ($3,000). The court shall require

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alcohol and/or drug treatment for the individual; provided, the penalties provided for in

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subdivision 31-27-2(d)(4) shall not apply to an individual who has surrendered his or her license,

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and served the court ordered period of suspension, but who, for any reason, has not had their

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license reinstated after the period of suspension, revocation, or suspension has expired; provided,

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further the individual shall be subject to the provisions of paragraphs 31-27-2(d)(2)(i) or (ii) or

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31-27-22(d)(3)(i), (ii), or (iii) regarding subsequent offenses, and any other applicable provision

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of section 31-27-2.

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      (5) (i) For purposes of determining the period of license suspension, a prior violation

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shall constitute any charge brought and sustained under the provisions of this section or section

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31-27-2.1.

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      (ii) Any person over the age of eighteen (18) who is convicted under this section for

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operating a motor vehicle while under the influence of alcohol, other drugs, or a combination of

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these, while a child under the age of thirteen (13) years was present as a passenger in the motor

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vehicle when the offense was committed may be sentenced to a term of imprisonment of not more

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than one year and further shall not be entitled to the benefit of suspension or deferment of this

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sentence. The sentence imposed under this section may be served in any unit of the adult

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correctional institutions in the discretion of the sentencing judge.

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      (6) (i) Any person convicted of a violation under this section shall pay a highway

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assessment fine of five hundred dollars ($500) which shall be deposited into the general fund. The

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assessment provided for by this subsection shall be collected from a violator before any other

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fines authorized by this section.

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      (ii) Any person convicted of a violation under this section shall be assessed a fee of

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eighty-six dollars ($86).

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      (7) (i) If the person convicted of violating this section is under the age of eighteen (18)

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years, for the first violation he or she shall be required to perform ten (10) to sixty (60) hours of

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public community restitution, and the juvenile's driving license shall be suspended for a period of

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six (6) months, and may be suspended for a period up to eighteen (18) months. The sentencing

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judge shall also require attendance at a special course on driving while intoxicated or under the

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influence of a controlled substance and alcohol or drug education and/or treatment for the

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juvenile. The juvenile may also be required to pay a highway assessment fine of no more than

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five hundred dollars ($500), and the assessment imposed shall be deposited into the general fund.

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      (ii) If the person convicted of violating this section is under the age of eighteen (18)

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years, for a second or subsequent violation regardless of whether any prior violation and

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subsequent conviction was a violation and subsequent under this statute or under the driving

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under the influence of liquor or drugs statute of any other state, he or she shall be subject to a

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mandatory suspension of his or her driving license until such time as he or she is twenty-one (21)

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years of age and may, in the discretion of the sentencing judge, also be sentenced to the Rhode

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Island training school for a period of not more than one year and/or a fine of not more than five

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hundred dollars ($500).

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      (8) Any person convicted of a violation under this section may undergo a clinical

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assessment at the community college of Rhode Island 's center for workforce and community

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education. Should this clinical assessment determine problems of alcohol, drug abuse, or

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psychological problems associated with alcoholic or drug abuse, this person shall be referred to

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an appropriate facility, licensed or approved by the department of mental health, retardation and

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hospitals for treatment placement, case management, and monitoring. In the case of a

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servicemember or veteran, the court may order that the person be evaluated through the Veterans'

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Administration. Should the clinical assessment determine problems of alcohol, drug abuse, or

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psychological problems associated with alcohol or drug abuse, the person may have their

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treatment, case management and monitoring administered or approved by the Veterans'

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Administration.

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      (e) Percent by weight of alcohol in the blood shall be based upon milligrams of alcohol

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per one hundred (100) cubic centimeters of blood.

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      (f) (1) There is established an alcohol and drug safety unit within the division of motor

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vehicles to administer an alcohol safety action program. The program shall provide for placement

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and follow-up for persons who are required to pay the highway safety assessment. The alcohol

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and drug safety action program will be administered in conjunction with alcohol and drug

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programs licensed by the department of mental health retardation and hospitals.

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      (2) Persons convicted under the provisions of this chapter shall be required to attend a

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special course on driving while intoxicated or under the influence of a controlled substance,

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and/or participate in an alcohol or drug treatment program; provided, however, that the court may

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permit a servicemember or veteran to complete any court-approved counseling program

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administered or approved by the Veterans' Administration. The course shall take into

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consideration any language barrier which may exist as to any person ordered to attend, and shall

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provide for instruction reasonably calculated to communicate the purposes of the course in

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accordance with the requirements of the subsection. Any costs reasonably incurred in connection

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with the provision of this accommodation shall be borne by the person being retrained. A copy of

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any violation under this section shall be forwarded by the court to the alcohol and drug safety

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unit. In the event that persons convicted under the provisions of this chapter fail to attend and

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complete the above course or treatment program, as ordered by the judge, then the person may be

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brought before the court, and after a hearing as to why the order of the court was not followed,

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may be sentenced to jail for a period not exceeding one year.

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      (3) The alcohol and drug safety action program within the division of motor vehicles

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shall be funded by general revenue appropriations.

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      (g) The director of the health department of the state of Rhode Island is empowered to

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make and file with the secretary of state regulations which prescribe the techniques and methods

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of chemical analysis of the person's body fluids or breath, and the qualifications and certification

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of individuals authorized to administer this testing and analysis.

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      (h) Jurisdiction for misdemeanor violations of this section shall be with the district court

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for persons eighteen (18) years of age or older and to the family court for persons under the age

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of eighteen (18) years. The courts shall have full authority to impose any sentence authorized and

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to order the suspension of any license for violations of this section. All trials in the district court

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and family court of violations of the section shall be scheduled within thirty (30) days of the

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arraignment date. No continuance or postponement shall be granted except for good cause shown.

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Any continuances that are necessary shall be granted for the shortest practicable time. Trials in

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superior court are not required to be scheduled within thirty (30) days of the arraignment date.

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      (i) No fines, suspensions, assessments, alcohol or drug treatment programs, course on

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driving while intoxicated or under the influence of a controlled substance, public community

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restitution, or jail provided for under this section can be suspended.

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      (j) An order to attend a special course on driving while intoxicated that shall be

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administered in cooperation with a college or university accredited by the state, shall include a

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provision to pay a reasonable tuition for the course in an amount not less than twenty-five dollars

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($25.00), and a fee of one hundred seventy-five dollars ($175), which fee shall be deposited into

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the general fund.

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      (k) For the purposes of this section, any test of a sample of blood, breath, or urine for the

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presence of alcohol, which relies in whole or in part upon the principle of infrared light

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absorption is considered a chemical test.

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      (l) If any provision of this section or the application of any provision shall for any reason

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be judged invalid, such a judgment shall not affect, impair, or invalidate the remainder of the

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section, but shall be confined in this effect to the provision or application directly involved in the

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controversy giving rise to the judgment.

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      (m) For the purposes of this section, "servicemember" means a person who is presently

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serving in the armed forces of the United States including the Coast Guard, a reserve component

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thereof, or the National Guard. "Veteran" means a person who has served in the armed forces,

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including the Coast Guard of the United States, a reserve component thereof, or the National

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Guard, and has been discharged under other than dishonorable conditions.

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     SECTION 2. This act shall take effect upon passage.

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LC00806

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO MOTOR AND OTHER VEHICLES -- MOTOR VEHICLE OFFENSES

***

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     This act would require a bail commissioner, a judge or magistrate of the traffic tribunal or

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district court judge to immediately suspend a person’s license upon that person being charged

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with DUI.

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     This act would take effect upon passage.

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LC00806

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