2014 -- H 7148

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO MOTOR AND OTHER VEHICLES - MOTOR VEHICLE OFFENSES

     Introduced By: Representative Donna M.Walsh

     Date Introduced: January 21, 2014

     Referred To: House Judiciary

     (Attorney General)

It is enacted by the General Assembly as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

violating this section.

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

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

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

provided in subsection (d) of this section.

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

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

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

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

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

been complied with:

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

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

the defendant elects to testify.

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

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

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

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

following the taking of the test.

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

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

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

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

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

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

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

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

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

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

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

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

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

inadmissible in evidence the original report.

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

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

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

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

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

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

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

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

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

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

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

hundred eighty (180) days.

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

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

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

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

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

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

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

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

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

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

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

administered or approved by the Veterans' Administration.

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

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

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

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

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

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

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

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

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

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

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

Administration.

      (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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2.8.

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

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

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

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

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

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

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

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

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

program administered or approved by the Veterans' Administration.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

completion of the sentence imposed under this subsection.

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

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

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

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

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

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

transferred to the general fund.

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

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

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

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

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

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

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

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

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,

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

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

of section 31-27-2.

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

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

31-27-2.1.

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

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

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

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

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

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

correctional institutions in the discretion of the sentencing judge.

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

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

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

fines authorized by this section.

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

eighty-six dollars ($86).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

hundred dollars ($500).

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

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

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

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

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

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

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

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

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

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

Administration.

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

per one hundred (100) cubic centimeters of blood.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

shall be funded by general revenue appropriations.

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

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

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

of individuals authorized to administer this testing and analysis.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the general fund.

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

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

absorption is considered a chemical test.

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

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

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

controversy giving rise to the judgment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

enforcement officer: that he or she had reasonable grounds to believe the arrested person had

been driving a motor vehicle within this state under the influence of intoxicating liquor, toluene,

or any controlled substance, as defined in chapter 28 of title 21, or any combination of these; that

the person had been informed of his or her rights in accordance with section 31-27-3; that the

person had been informed of the penalties incurred as a result of noncompliance with this section;

and that the person had refused to submit to the tests upon the request of a law enforcement

officer; shall promptly order that the person's operator's license or privilege to operate a motor

vehicle in this state be immediately suspended and that the person's license be surrendered within

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five (5) days of notice of suspension. A traffic tribunal judge or a district court judge pursuant to

the terms of subsection (c) of this section shall order as follows:

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

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

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

period of six (6) months to one year. The traffic tribunal judge shall require attendance at a

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

alcohol or drug treatment for the individual.

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

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

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

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

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

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

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

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

fined eight hundred dollars ($800) to one thousand dollars ($1,000), order the person to perform

not less than one hundred (100) hours of public community restitution, and the person's operator's

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

shall require alcohol or drug treatment for the individual. Provided, that prior to the reinstatement

of a license to a person charged with a third or subsequent violation within a three (3) year period,

a hearing shall be held before a judge. At the hearing the judge shall review the person's driving

record, his or her employment history, family background, and any other pertinent factors that

would indicate that the person has demonstrated behavior which warrants the reinstatement of his

or her license.

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

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

2.

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

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

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

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

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

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

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

deposited as general revenues, not restricted receipts.

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

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

restitution provided for under this section, can be suspended.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

to issue his or her order of suspension.

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

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

is considered a chemical test.

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

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

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

controversy giving rise to the judgment.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO MOTOR AND OTHER VEHICLES - MOTOR VEHICLE OFFENSES

***

     This act would extend the "lookback" period for third and subsequent offenses under the

driving under the influence of liquor or drugs law (section 31-27-2) and the refusal to submit to a

chemical test law (section 31-27-2.1) from five (5) years to ten (10) years.

     This act would take effect upon passage.

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