2017 -- H 5520 SUBSTITUTE A

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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A N   A C T

RELATING TO MOTOR AND OTHER VEHICLES -- MOTOR VEHICLE OFFENSES

     Introduced By: Representatives McEntee, and Craven

     Date Introduced: February 15, 2017

     Referred To: House Judiciary

     (Attorney General)

It is enacted by the General Assembly as follows:

     SECTION 1. Section 31-27-2.1 of the General Laws in Chapter 31-27 entitled "Motor

Vehicle Offenses" is hereby amended to read as follows:

     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 § 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 that 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 § 31-27-2, none shall be

given, but a judge or magistrate of the traffic tribunal or district court judge or magistrate, 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 § 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, however, said

suspension shall be subject to the hardship provisions enumerated in § 31-27-2.8. A traffic

tribunal judge or magistrate, or a district court judge or magistrate, pursuant to the terms of

subsection (c), 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 or magistrate 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. The traffic tribunal judge or

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

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

     (2) Every person convicted for a second violation within a five-year (5) period, except

with respect to cases of refusal to submit to a blood test, 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

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shall be suspended for a period of one year to two (2) years. The judge or magistrate shall require

alcohol and/or drug treatment for the individual. The sentencing judge or magistrate shall prohibit

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

as provided in § 31-27-2.8.

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

period, except with respect to cases of refusal to submit to a blood test, 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); shall 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 sentencing judge or magistrate shall prohibit

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

as provided in § 31-27-2.8. The judge or magistrate 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-year (3) period, a hearing shall be held before a judge

or magistrate. At the hearing, the judge or magistrate 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 that warrants the reinstatement of his or her

license.

     (4) For a second violation within a five-year (5) period with respect to a case of a refusal

to submit to a blood test, a fine in the amount of six hundred dollars ($600) to one thousand

dollars ($1,000), the person shall 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 two (2) years. The judicial officer shall require alcohol and/or drug treatment for the

individual. The sentencing judicial officer shall prohibit that person from operating a motor

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

violation with respect to refusal to submit to a chemical blood test shall be a civil offense.

     (5) For a third or subsequent violation within a five-year (5) period with respect to a case

of a refusal to submit to a blood test, a fine in the amount of eight hundred dollars ($800) to one

thousand dollars ($1,000), the person shall perform not less than one hundred (100) hours of

public community restitution; and the person's driving license in this state shall be suspended for

a period of two (2) to five (5) years. The sentencing judicial officer shall prohibit that person from

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

§31-27-2.8. The judicial officer shall require alcohol and/or drug treatment for the individual.

Such a violation with respect to refusal to submit to a chemical test of blood shall be a civil

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offense. Provided, that prior to the reinstatement of a license to a person charged with a third or

subsequent violation within a three-year (3) period, a hearing shall be held before a judicial

officer. At the hearing, the judicial officer shall review the person's driving record, their

employment history, family background, and any other pertinent factors that would indicate that

the person has demonstrated behavior that warrants the reinstatement of their license.

     (4)(6) 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 § 31-27-

2.

     (5)(7) 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)(8) 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 department of health's chemical testing programs outlined in § 31-27-2(4), that shall be

deposited as general revenues, not restricted receipts.

     (7)(9) 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),

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 § 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

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set forth in subsection (b). 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 that 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

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     This act would decriminalize second, third and subsequent violations of §31-27-2.1

("refusal to submit to chemical test") in cases of refusal to submit to a blood test in light of

Birchfield v. North Dakota but would also set forth new civil penalties for second, third and

subsequent violations. This act would reinstate non-criminal penalties for subsequent refusals to

submit to a blood test.

     This act would take effect upon passage.

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