2012 -- S 2568

=======

LC00201

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

____________

A N A C T

RELATING TO MOTOR AND OTHER VEHICLES - MOTOR VEHICLE OFFENSES

     Introduced By: Senators Sosnowski, Tassoni, Lombardo, and Goodwin

     Date Introduced: February 28, 2012

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Sections 31-27-2, 31-27-2.1 and 31-27-2.8 of the General Laws in Chapter

1-2

31-27 entitled "Motor Vehicle Offenses" are hereby amended to read as follows:

1-3

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

1-4

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

1-5

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

1-6

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

1-7

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

1-8

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

1-9

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

1-10

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

1-11

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

1-12

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

1-13

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

1-14

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

1-15

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

1-16

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

1-17

violating this section.

1-18

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

1-19

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

1-20

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

2-1

provided in subsection (d) of this section.

2-2

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

2-3

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

2-4

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

2-5

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

2-6

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

2-7

been complied with:

2-8

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

2-9

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

2-10

the defendant elects to testify.

2-11

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

2-12

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

2-13

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

2-14

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

2-15

following the taking of the test.

2-16

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

2-17

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

2-18

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

2-19

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

2-20

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

2-21

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

2-22

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

2-23

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

2-24

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

2-25

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

2-26

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

2-27

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

2-28

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

2-29

inadmissible in evidence the original report.

2-30

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

2-31

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

2-32

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

2-33

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

2-34

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

3-1

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

3-2

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

3-3

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

3-4

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

3-5

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

3-6

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

3-7

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

3-8

hundred eighty (180) days. The sentencing judge may prohibit that person from operating a motor

3-9

vehicle that is not equipped with an ignition interlock system as provided in section 31-27-2.8.

3-10

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

3-11

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

3-12

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

3-13

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

3-14

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

3-15

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

3-16

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

3-17

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

3-18

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

3-19

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

3-20

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

3-21

administered or approved by the Veterans' Administration. The sentencing judge may prohibit

3-22

that person from operating a motor vehicle that is not equipped with an ignition interlock system

3-23

as provided in section 31-27-2.8.

3-24

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

3-25

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

3-26

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

3-27

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

3-28

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

3-29

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

3-30

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

3-31

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

3-32

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

3-33

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

3-34

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

4-1

Administration. The sentencing judge may prohibit that person from operating a motor vehicle

4-2

that is not equipped with an ignition interlock system as provided in section 31-27-2.8.

4-3

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

4-4

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

4-5

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

4-6

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

4-7

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

4-8

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

4-9

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

4-10

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

4-11

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

4-12

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

4-13

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

4-14

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

4-15

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

4-16

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

4-17

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

4-18

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

4-19

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

4-20

2.8.

4-21

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

4-22

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

4-23

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

4-24

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

4-25

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

4-26

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

4-27

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

4-28

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

4-29

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

4-30

program administered or approved by the Veterans' Administration. The sentencing judge may

4-31

prohibit that person from operating a motor vehicle that is not equipped with an ignition interlock

4-32

system as provided in section 31-27-2.8.

4-33

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

4-34

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

5-1

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

5-2

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

5-3

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

5-4

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

5-5

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

5-6

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

5-7

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

5-8

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

5-9

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

5-10

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

5-11

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

5-12

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

5-13

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

5-14

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

5-15

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

5-16

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

5-17

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

5-18

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

5-19

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

5-20

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

5-21

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

5-22

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

5-23

completion of the sentence imposed under this subsection. The sentencing judge shall require

5-24

alcohol or drug treatment for the individual. The sentencing judge may prohibit that person from

5-25

operating a motor vehicle that is not equipped with an ignition interlock system as provided in

5-26

section 31-27-2.8.

5-27

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

5-28

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

5-29

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

5-30

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

5-31

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

5-32

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

5-33

to the general fund.

6-34

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

6-35

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

6-36

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

6-37

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

6-38

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

6-39

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

6-40

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

6-41

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

6-42

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

6-43

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

6-44

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

6-45

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

6-46

of section 31-27-2.

6-47

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

6-48

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

6-49

31-27-2.1.

6-50

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

6-51

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

6-52

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

6-53

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

6-54

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

6-55

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

6-56

correctional institutions in the discretion of the sentencing judge.

6-57

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

6-58

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

6-59

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

6-60

fines authorized by this section.

6-61

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

6-62

eighty-six dollars ($86).

6-63

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

6-64

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

6-65

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

6-66

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

6-67

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

6-68

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

7-1

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

7-2

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

7-3

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

7-4

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

7-5

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

7-6

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

7-7

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

7-8

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

7-9

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

7-10

hundred dollars ($500).

7-11

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

7-12

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

7-13

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

7-14

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

7-15

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

7-16

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

7-17

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

7-18

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

7-19

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

7-20

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

7-21

Administration.

7-22

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

7-23

per one hundred (100) cubic centimeters of blood.

7-24

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

7-25

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

7-26

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

7-27

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

7-28

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

7-29

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

7-30

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

7-31

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

7-32

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

7-33

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

7-34

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

8-1

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

8-2

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

8-3

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

8-4

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

8-5

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

8-6

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

8-7

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

8-8

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

8-9

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

8-10

shall be funded by general revenue appropriations.

8-11

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

8-12

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

8-13

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

8-14

of individuals authorized to administer this testing and analysis.

8-15

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

8-16

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

8-17

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

8-18

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

8-19

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

8-20

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

8-21

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

8-22

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

8-23

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

8-24

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

8-25

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

8-26

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

8-27

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

8-28

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

8-29

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

8-30

the general fund.

8-31

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

8-32

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

8-33

absorption is considered a chemical test.

9-34

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

9-35

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

9-36

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

9-37

controversy giving rise to the judgment.

9-38

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

9-39

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

9-40

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

9-41

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

9-42

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

9-43

     31-27-2.1. Refusal to submit to chemical test. -- (a) Any person who operates a motor

9-44

vehicle within this state shall be deemed to have given his or her consent to chemical tests of his

9-45

or her breath, blood, and/or urine for the purpose of determining the chemical content of his or

9-46

her body fluids or breath. No more than two (2) complete tests, one for the presence of

9-47

intoxicating liquor and one for the presence of toluene or any controlled substance, as defined in

9-48

section 21-28-1.02(7), shall be administered at the direction of a law enforcement officer having

9-49

reasonable grounds to believe the person to have been driving a motor vehicle within this state

9-50

while under the influence of intoxicating liquor, toluene, or any controlled substance, as defined

9-51

in chapter 28 of title 21, or any combination of these. The director of the department of health is

9-52

empowered to make and file with the secretary of state, regulations which prescribe the

9-53

techniques and methods of chemical analysis of the person's body fluids or breath and the

9-54

qualifications and certification of individuals authorized to administer the testing and analysis.

9-55

      (b) If a person for religious or medical reasons cannot be subjected to blood tests, the

9-56

person may file an affidavit with the division of motor vehicles stating the reasons why he or she

9-57

cannot be required to take blood tests, and a notation to this effect shall be made on his or her

9-58

license. If that person is asked to submit to chemical tests as provided under this chapter, the

9-59

person shall only be required to submit to chemical tests of his or her breath or urine. When a

9-60

person is requested to submit to blood tests, only a physician or registered nurse or a medical

9-61

technician certified under regulations promulgated by the director of the department of health

9-62

may withdraw blood for the purpose of determining the alcoholic content in it. This limitation

9-63

shall not apply to the taking of breath or urine specimens. The person tested shall be permitted to

9-64

have a physician of his or her own choosing and at his or her own expense administer chemical

9-65

tests of his or her breath, blood, and/or urine in addition to the tests administered at the direction

9-66

of a law enforcement officer. If a person having been placed under arrest refuses upon the request

9-67

of a law enforcement officer to submit to the tests, as provided in section 31-27-2, none shall be

9-68

given, but a judge or magistrate of the traffic tribunal or district court judge, upon receipt of a

10-1

report of a law enforcement officer: that he or she had reasonable grounds to believe the arrested

10-2

person had been driving a motor vehicle within this state under the influence of intoxicating

10-3

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

10-4

combination of these; that the person had been informed of his or her rights in accordance with

10-5

section 31-27-3; that the person had been informed of the penalties incurred as a result of

10-6

noncompliance with this section; and that the person had refused to submit to the tests upon the

10-7

request of a law enforcement officer; shall promptly order that the person's operator's license or

10-8

privilege to operate a motor vehicle in this state be immediately suspended and that the person's

10-9

license be surrendered within five (5) days of notice of suspension. A traffic tribunal judge or a

10-10

district court judge pursuant to the terms of subsection (c) of this section shall order as follows:

10-11

      (1) Impose for the first violation a fine in the amount of two hundred dollars ($200) to

10-12

five hundred dollars ($500) and shall order the person to perform ten (10) to sixty (60) hours of

10-13

public community restitution. The person's driving license in this state shall be suspended for a

10-14

period of six (6) months to one year. The traffic tribunal judge or magistrate shall require

10-15

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

10-16

substance and/or alcohol or drug treatment for the individual. The traffic tribunal judge or

10-17

magistrate may prohibit that person from operating a motor vehicle that is not equipped with an

10-18

ignition interlock system as provided in section 31-27-2.8.

10-19

      (2) Every person convicted for a second violation within a five (5) year period shall be

10-20

guilty of a misdemeanor, shall be imprisoned for not more than six (6) months and shall pay a

10-21

fine in the amount of six hundred dollars ($600) to one thousand dollars ($1,000), order the

10-22

person to perform sixty (60) to one hundred (100) hours of public community restitution, and the

10-23

person's driving license in this state shall be suspended for a period of one year to two (2) years.

10-24

The judge shall require alcohol and/or drug treatment for the individual. The judge may prohibit

10-25

that person from operating a motor vehicle that is not equipped with an ignition interlock system

10-26

as provided in section 31-27-2.8.

10-27

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

10-28

period shall be guilty of a misdemeanor and shall be imprisoned for not more than one year, fined

10-29

eight hundred dollars ($800) to one thousand dollars ($1,000), order the person to perform not

10-30

less than one hundred (100) hours of public community restitution, and the person's operator's

10-31

license in this state shall be suspended for a period of two (2) years to five (5) years. The judge

10-32

shall require alcohol or drug treatment for the individual. The judge may prohibit that person

10-33

from operating a motor vehicle that is not equipped with an ignition interlock system as provided

10-34

in section 31-27-2.8. Provided, that prior to the reinstatement of a license to a person charged

11-1

with a third or subsequent violation within a three (3) year period, a hearing shall be held before a

11-2

judge. At the hearing the judge shall review the person's driving record, his or her employment

11-3

history, family background, and any other pertinent factors that would indicate that the person has

11-4

demonstrated behavior which warrants the reinstatement of his or her license.

11-5

      (4) For purposes of determining the period of license suspension, a prior violation shall

11-6

constitute any charge brought and sustained under the provisions of this section or section 31-27-

11-7

2.

11-8

      (5) In addition to any other fines, a highway safety assessment of five hundred dollars

11-9

($500) shall be paid by any person found in violation of this section, the assessment to be

11-10

deposited into the general fund. The assessment provided for by this subsection shall be collected

11-11

from a violator before any other fines authorized by this section.

11-12

      (6) In addition to any other fines and highway safety assessments, a two hundred dollar

11-13

($200) assessment shall be paid by any person found in violation of this section to support the

11-14

department of health's chemical testing programs outlined in section 31-27-2(4), which shall be

11-15

deposited as general revenues, not restricted receipts.

11-16

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

11-17

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

11-18

restitution provided for under this section, can be suspended.

11-19

      (c) Upon suspending or refusing to issue a license or permit as provided in subsection (a)

11-20

of this section, the traffic tribunal or district court shall immediately notify the person involved in

11-21

writing, and upon his or her request, within fifteen (15) days shall afford the person an

11-22

opportunity for a hearing as early as practical upon receipt of a request in writing. Upon a hearing

11-23

the judge may administer oaths and may issue subpoenas for the attendance of witnesses and the

11-24

production of relevant books and papers. If the judge finds after the hearing that: (1) the law

11-25

enforcement officer making the sworn report had reasonable grounds to believe that the arrested

11-26

person had been driving a motor vehicle within this state while under the influence of intoxicating

11-27

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

11-28

combination of these; (2) the person while under arrest refused to submit to the tests upon the

11-29

request of a law enforcement officer; (3) the person had been informed of his or her rights in

11-30

accordance with section 31-27-3; and (4) the person had been informed of the penalties incurred

11-31

as a result of noncompliance with this section; the judge shall sustain the violation. The judge

11-32

shall then impose the penalties set forth in subsection (b) of this section. Action by the judge must

11-33

be taken within seven (7) days after the hearing, or it shall be presumed that the judge has refused

11-34

to issue his or her order of suspension.

12-1

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

12-2

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

12-3

is considered a chemical test.

12-4

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

12-5

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

12-6

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

12-7

controversy giving rise to the judgment.

12-8

     31-27-2.8. Ignition interlock system imposed as part of sentence -- Requirements. –

12-9

(a) Any person convicted under the provisions of section 31-27-2(d)(1)(2) or (3) or section 31-27-

12-10

2.1(b)(2) on (3) or whose violation is sustained under the provisions of section 31-27-2.1(b)(1)

12-11

may be prohibited by the sentencing judge or magistrate from operating a motor vehicle that is

12-12

not equipped with an ignition interlock system. for a period of not more than two (2) years

12-13

following the completion of any sentence imposed pursuant to that section.

12-14

     (b) Notwithstanding any other provisions contained in this chapter, after a finding of

12-15

eligibility, any mandatory period of license suspension may be reduced by the imposition of an

12-16

ignition interlock system ordered by the court or traffic tribunal as follows:

12-17

     (1) For a violation of sections 31-27-2(d)(1) or section 31-27-2.1(b)(1), a person shall be

12-18

subject to a minimum thirty (30) day license suspension and an imposition of an ignition interlock

12-19

system for six (6) months to one year.

12-20

     (2) For a violation of sections 31-27-2(d)(2) or section 31-27-2.1(b)(2), a person shall be

12-21

subject to a minimum sixty (60) day license suspension and an imposition of an ignition interlock

12-22

system for one to two (2) years.

12-23

     (3) For a violation of sections 31-27-2(d)(3) or section 31-27-2.1(b)(3), a person shall be

12-24

subject to a minimum ninety (90) day license suspension and imposition of an ignition interlock

12-25

system for two (2) to four (4) years.

12-26

     (c) Any person convicted of an offense of driving under the influence of liquor or drugs

12-27

resulting in death, section 31-27-2.2, driving under the influence of liquor or drugs resulting in

12-28

serious bodily injury, section 31-27-2.6, driving to endanger resulting in death, section 31-27-1,

12-29

or driving to endanger resulting in serious bodily injury, section 31-27-1.1 may, in addition to any

12-30

other penalties provided by law, be prohibited from operating a motor vehicle which is not

12-31

equipped with an approved ignition interlock system for one to five (5) years.

12-32

     (d) Any person who operates a motor vehicle with a suspended license and the reason for

12-33

the suspension was due to a conviction of driving under the influence of drugs or alcohol or a

12-34

sustained violation or conviction of refusal to submit to a chemical test, shall be subject to the

13-1

imposition of an additional six (6) months use of the ignition interlock system ordered by the

13-2

court.

13-3

     (e) When the court orders the use of an ignition interlock system, the judge or magistrate

13-4

shall cause an appropriate notation to be made on the person’s record which clearly sets forth the

13-5

requirement for and the period of the use of the ignition interlock system.

13-6

     (f) In addition to the requirements of subsection (e) of this section, the court or traffic

13-7

tribunal shall:

13-8

     (1) Require proof of the installation of the ignition interlock system and periodic

13-9

reporting by the person for the purpose of verification of the proper operation of the ignition

13-10

interlock system;

13-11

     (2) Require the person to have the ignition interlock system monitored for the proper use

13-12

and accuracy by a person, firm, corporation or other association to be approved by the division of

13-13

motor vehicles at least once every six (6) months, or more frequently as the circumstances may

13-14

require; and

13-15

     (3) Shall require the person to pay the reasonable cost of leasing or buying, monitoring

13-16

and maintenance of the ignition interlock system.

13-17

     (g) If a person is required, in the course of the person’s employment, to operate a motor

13-18

vehicle owned or provided by the person’s employer, the person may operate that motor vehicle

13-19

in the course of the person’s employment without installation of an ignition interlock system if

13-20

the court makes specific findings expressly permitting the person to operate in the course of the

13-21

person’s employment a motor vehicle that is not equipped with an ignition interlock system.

13-22

     (h) Any person subject to an ignition interlock order who violates such order shall be

13-23

guilty of a misdemeanor punishable by up to one year imprisonment or a fine of up to one

13-24

thousand dollars ($1,000), or both. For the purposes of this subsection, a violation of the interlock

13-25

order, includes, but is not limited to:

13-26

     (1) Altering, tampering or in any way attempting to circumvent the operation of an

13-27

ignition interlock system that has been installed in the motor vehicle of a person under this

13-28

section;

13-29

     (2) Operating a motor vehicle that is not equipped with an ignition interlock system;

13-30

     (3) Soliciting or attempting to have another person start a motor vehicle equipped with an

13-31

ignition interlock system for the purpose of providing an operable motor vehicle to a person who

13-32

is prohibited from operating a motor vehicle that is not equipped with an ignition interlock

13-33

system; or

14-34

     (4) Operating a motor vehicle with a blood alcohol level above the mandated interlock

14-35

blood alcohol level.

14-36

     (i) Any person who attempts to start or starts a motor vehicle equipped with an ignition

14-37

interlock system, tampers with or in any way attempts to circumvent, the operation of an ignition

14-38

interlock system that has been installed in the motor vehicle for the purpose of providing an

14-39

operable motor vehicle to a person who is prohibited from operating a motor vehicle that is not

14-40

equipped with an ignition interlock system shall be guilty of a misdemeanor punishable by up to

14-41

one year imprisonment or a fine of up to one thousand dollars ($1,000), or both.

14-42

14-43

     SECTION 2. Sections 31-49-2, 31-49-3, 31-49-4, 31-49-5 and 31-49-6 of the General

14-44

Laws in Chapter 31-49 entitled "Ignition Interlock Systems" are hereby amended to read as

14-45

follows:

14-46

     31-49-2. Certification of ignition interlock systems. -- The division of motor vehicles

14-47

shall certify or cause to be certified ignition interlock systems for use in the state, and adopt rules

14-48

and regulations for the certification and requirements for participation of the ignition interlock

14-49

systems. All costs associated with the installation of the interlock ignition system shall be borne

14-50

by the person required to install said system and the division shall charge an administrative fee of

14-51

one hundred dollars ($100) to the person ordered to install said system unless the defendant is

14-52

indigent as defined by sections 12-20-10 and 12-21-20.

14-53

     31-49-3. Rules and regulations. -- The rules and regulations adopted pursuant to section

14-54

31-49-2 shall include requirements that ignition interlock systems:

14-55

     (a) Requirements that ignition interlock systems:

14-56

     (1) Do not impede the safe operation of the vehicle;

14-57

     (2) Minimize opportunities to be bypassed;

14-58

     (3) Correlate accurately with established measures of blood alcohol levels;

14-59

     (4) Work accurately and reliably in an unsupervised environment;

14-60

     (5) Require a proper and accurate measure of blood alcohol levels;

14-61

     (6) Resist tampering and provide evidence of attempted tampering;

14-62

     (7) Are difficult to circumvent, and require premeditation to circumvent;

14-63

     (8) Minimize inconvenience to a sober user;

14-64

     (9) Are manufactured by a party responsible for installation, user training, service and

14-65

maintenance;

14-66

     (10) Operate reliably over the range of motor vehicle environments or motor vehicle

14-67

manufacturing standards;

15-68

     (11) Are manufactured by a person who is adequately insured for products liability; and

15-69

     (12) Provide the option for an electronic log of the driver's experience with the system.

15-70

     (b) Prior to the reinstatement of a non-restricted license, the division of motor vehicles

15-71

shall review the person’s driving record and compliance with the ignition interlock order to

15-72

ensure that the person demonstrated behavior which warrants the reinstatement of his or her

15-73

license.

15-74

     31-49-4. Warning label. -- (a) (1) The division of motor vehicles shall design and adopt

15-75

a warning label to be affixed to an ignition interlock system on installation. The warning label

15-76

shall state that a person tampering with, circumventing, or otherwise misusing the ignition

15-77

interlock system is guilty of a misdemeanor, and on conviction, is subject to a fine up to five

15-78

hundred dollars ($500), or one thousand dollars ($1,000), one year imprisonment, or both.

15-79

      (2) If the court imposes the use of an ignition interlock system, the sentencing judge

15-80

shall cause an appropriate notation to be made on the person's record which clearly sets forth the

15-81

requirement for and the period of the use of the system.

15-82

      (b) In addition to the requirements of subsection (a) of this section, the court shall:

15-83

      (1) Require proof of the installation of the system and periodic reporting by the person

15-84

for the purpose of verification of the proper operation of the system; and

15-85

      (2) Require the person to have the system monitored for the proper use and accuracy by

15-86

a person, firm, corporation or other association to be approved by the department of revenue at

15-87

least once every six (6) months, or more frequently as the circumstances may require; and

15-88

      (3) Shall require the person to pay the reasonable cost of leasing or buying, monitoring

15-89

and maintenance of the system.

15-90

      (c) A person prohibited under this section from operating a motor vehicle that is not

15-91

equipped with an ignition interlock system may not solicit or have another person attempt to start

15-92

or start a motor vehicle equipped with an ignition interlock system.

15-93

      (d) A person may not attempt to start or start a motor vehicle equipped with an ignition

15-94

interlock system for the purpose of providing an operable motor vehicle to a person who is

15-95

prohibited under this section from operating a motor vehicle that is not equipped with an ignition

15-96

interlock system.

15-97

      (e) A person may not tamper with, or in any way attempt to circumvent, the operation of

15-98

an ignition interlock system that has been installed in the motor vehicle of a person under this

15-99

section.

15-100

      (f) (1) Subject to the provisions of subdivision (2) of this subsection, a person may not

15-101

knowingly furnish a motor vehicle not equipped with a functioning ignition interlock system to

15-102

another person who the person knows is prohibited under subsection (b) of this section from

16-1

operating a motor vehicle not equipped with an ignition interlock system.

16-2

      (2) If a person is required, in the course of the person's employment, to operate a motor

16-3

vehicle owned or provided by the person's employer, the person may operate that motor vehicle

16-4

in the course of the person's employment without installation of an ignition interlock system if the

16-5

court has expressly permitted the person to operate in the course of the person's employment a

16-6

motor vehicle that is not equipped with an ignition interlock system.

16-7

      (g) Any person who shall violate the provisions of this section shall be guilty of a

16-8

misdemeanor.

16-9

     31-49-5. List of certified ignition interlock systems. -- (a) The administration division

16-10

of motor vehicles shall publish a list of certified ignition interlock systems which shall be

16-11

included on the division of motor vehicles’ website.

16-12

      (b) A manufacturer of an ignition interlock system that seeks to sell or lease the ignition

16-13

interlock system to persons subject to the provisions of section 31-27-2 shall pay the costs of

16-14

obtaining the required certification.

16-15

     (c) Said manufacturer who shall install and monitor said systems shall be approved by the

16-16

division of motor vehicles every year. Said manufacturer shall also submit quarterly reports

16-17

concerning proof of installation and proper use of said ignition interlock systems to the division

16-18

of motor vehicles, which will be aggregated by the division of motor vehicles and sent to the

16-19

appropriate court.

16-20

     31-49-6. Selling or leasing ignition interlock systems. -- (a) A person may not sell or

16-21

lease or offer to sell or lease an ignition interlock system to a person subject to the provisions of

16-22

section 31-27-2 31-27-2.8 unless:

16-23

      (1) The system has been certified by the department division of motor vehicles; and

16-24

      (2) A warning label approved by the department division of motor vehicles is affixed to

16-25

the system stating that a person who tampers, circumvents, or otherwise misuses the system is

16-26

guilty of a misdemeanor, and on conviction is subject to a fine up to five hundred dollars ($500)

16-27

one thousand dollars ($1,000), or one year imprisonment, or both.

16-28

      (b) A person who sells or leases ignition interlock systems in the state shall:

16-29

      (1) Monitor the use of the system as required by the court courts and the traffic tribunal;

16-30

and

16-31

      (2) Issue a report of the results of the monitoring to the appropriate office of the courts,

16-32

the traffic tribunal and the division of parole and probation.

17-33

     SECTION 3. This act shall take effect on January 1, 2013.

=======

LC00201

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO MOTOR AND OTHER VEHICLES - MOTOR VEHICLE OFFENSES

***

18-1

     This act would grant judges and magistrates the authority to prohibit drivers adjudicated

18-2

of certain motor vehicle offenses from operating a motor vehicle not equipped with an ignition

18-3

interlock system.

18-4

     This act would take effect on January 1, 2013.

=======

LC00201

=======