2013 -- S 0470

=======

LC00237

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

____________

A N A C T

RELATING TO MOTOR AND OTHER VEHICLES -- DRIVING UNDER THE INFLUENCE

OF LIQUOR OR DRUGS

     Introduced By: Senators Raptakis, Lombardi, Cote, DiPalma, and Kettle

     Date Introduced: February 28, 2013

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

1-1

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

1-2

Vehicle Offenses" is 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

2-1

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

2-2

provided in subsection (d) of this section.

2-3

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

2-4

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

2-5

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

2-6

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

2-7

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

2-8

been complied with:

2-9

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

2-10

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

2-11

the defendant elects to testify.

2-12

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

2-13

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

2-14

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

2-15

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

2-16

following the taking of the test.

2-17

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

2-18

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

2-19

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

2-20

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

2-21

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

2-22

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

2-23

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

2-24

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

2-25

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

2-26

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

2-27

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

2-28

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

2-29

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

2-30

inadmissible in evidence the original report.

2-31

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

2-32

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

2-33

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

2-34

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

3-1

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

3-2

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

3-3

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

3-4

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

3-5

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

3-6

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

3-7

one hundred eighty (180) days.

3-8

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

3-9

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

3-10

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

3-11

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

3-12

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

3-13

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

3-14

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

3-15

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

3-16

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

3-17

and/or alcoholic or drug treatment for the individual.

3-18

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

3-19

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

3-20

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

3-21

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

3-22

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

3-23

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

3-24

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

3-25

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

3-26

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

3-27

the individual.

3-28

      (2) (i) Every person convicted of a second violation within a five (5) ten (10) year period

3-29

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

3-30

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

3-31

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

3-32

(b)(2), and every person convicted of a second violation within a five (5) ten (10) year period

3-33

regardless of whether the prior violation and subsequent conviction was a violation and

3-34

subsequent conviction under this statute or under the driving under the influence of liquor or

4-1

drugs statute of any other state, shall be subject to a mandatory fine of four hundred dollars

4-2

($400). The person's driving license shall be suspended for a period of one year to two (2) years,

4-3

and the individual shall be sentenced to not less than ten (10) days nor more than one year in jail.

4-4

The sentence may be served in any unit of the adult correctional institutions in the discretion of

4-5

the sentencing judge; however, not less than forty-eight (48) hours of imprisonment shall be

4-6

served consecutively. The sentencing judge shall require alcohol or drug treatment for the

4-7

individual, and may prohibit that person from operating a motor vehicle that is not equipped with

4-8

an ignition interlock system for a period of one year to two (2) years following the completion of

4-9

the sentence as provided in section 31-27-2.8.

4-10

      (ii) Every person convicted of a second violation within a five (5) ten (10) year period

4-11

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

4-12

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

4-13

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

4-14

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

4-15

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

4-16

for a period of two (2) years from the date of completion of the sentence imposed under this

4-17

subsection.

4-18

      (3) (i) Every person convicted of a third or subsequent violation within a five (5) ten (10)

4-19

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

4-20

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

4-21

concentration is unknown or who has a blood presence of any scheduled controlled substance as

4-22

defined in subdivision (b)(2) regardless of whether any prior violation and subsequent conviction

4-23

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

4-24

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

4-25

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

4-26

for a period of two (2) years to three (3) years, and the individual shall be sentenced to not less

4-27

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

4-28

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

4-29

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

4-30

require alcohol or drug treatment for the individual, and may prohibit that person from operating

4-31

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

4-32

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

4-33

      (ii) Every person convicted of a third or subsequent violation within a five (5) ten (10)

4-34

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

5-1

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

5-2

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

5-3

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

5-4

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

5-5

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

5-6

completion of the sentence imposed under this subsection.

5-7

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

5-8

subsequent violation within a five (5) ten (10) year period regardless of whether any prior

5-9

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

5-10

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

5-11

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

5-12

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

5-13

transferred to the general fund.

5-14

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

5-15

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

5-16

31-27-2.1.

5-17

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

5-18

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

5-19

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

5-20

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

5-21

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

5-22

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

5-23

correctional institutions in the discretion of the sentencing judge.

5-24

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

5-25

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

5-26

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

5-27

fines authorized by this section.

5-28

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

5-29

fee shall be as follows:

5-30

      FISCAL YEAR FISCAL YEAR FISCAL YEAR

5-31

      1993-1995 1996-1999 2000-2010

5-32

      $147 $173 $86

5-33

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

5-34

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

6-1

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

6-2

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

6-3

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

6-4

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

6-5

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

6-6

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

6-7

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

6-8

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

6-9

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

6-10

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

6-11

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

6-12

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

6-13

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

6-14

hundred dollars ($500).

6-15

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

6-16

assessment at a facility approved by the department of mental health, retardation and hospitals.

6-17

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

6-18

problems associated with alcoholic or drug abuse, this person shall be referred to the T.A.S.C.

6-19

(treatment alternatives to street crime) program for treatment placement, case management, and

6-20

monitoring.

6-21

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

6-22

per one hundred (100) cubic centimeters of blood.

6-23

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

6-24

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

6-25

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

6-26

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

6-27

programs within the department of mental health, retardation and hospitals.

6-28

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

6-29

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

6-30

and/or participate in an alcohol or drug treatment program. The course shall take into

6-31

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

6-32

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

6-33

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

6-34

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

7-1

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

7-2

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

7-3

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

7-4

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

7-5

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

7-6

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

7-7

shall be funded by general revenue appropriations.

7-8

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

7-9

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

7-10

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

7-11

of individuals authorized to administer this testing and analysis.

7-12

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

7-13

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

7-14

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

7-15

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

7-16

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

7-17

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

7-18

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

7-19

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

7-20

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

7-21

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

7-22

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

7-23

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

7-24

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

7-25

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

7-26

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

7-27

the general fund.

7-28

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

7-29

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

7-30

absorption is considered a chemical test.

7-31

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

7-32

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

7-33

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

7-34

controversy giving rise to the judgment.

8-1

     SECTION 2. This act shall take effect upon passage.

=======

LC00237

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO MOTOR AND OTHER VEHICLES -- DRIVING UNDER THE INFLUENCE

OF LIQUOR OR DRUGS

***

9-1

     This act would increase the penalties for persons convicted of driving under the influence

9-2

from five (5) years to ten (10) years for a first conviction.

9-3

     This act would take effect upon passage.

=======

LC00237

=======