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:

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

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Vehicle Offenses" is hereby amended to read as follows:

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     31-27-2.1. Refusal to submit to chemical test.

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     (a) Any person who operates a motor vehicle within this state shall be deemed to have

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given his or her consent to chemical tests of his or her breath, blood, and/or urine for the purpose

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of determining the chemical content of his or her body fluids or breath. No more than two (2)

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complete tests, one for the presence of intoxicating liquor and one for the presence of toluene or

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any controlled substance, as defined in § 21-28-1.02(7), shall be administered at the direction of a

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law enforcement officer having reasonable grounds to believe the person to have been driving a

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motor vehicle within this state while under the influence of intoxicating liquor, toluene, or any

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controlled substance, as defined in chapter 28 of title 21, or any combination of these. The

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director of the department of health is empowered to make and file, with the secretary of state,

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regulations that prescribe the techniques and methods of chemical analysis of the person's body

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fluids or breath and the qualifications and certification of individuals authorized to administer the

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testing and analysis.

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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privilege to operate a motor vehicle in this state be immediately suspended, however, said

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

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

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subsection (c), shall order as follows:

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

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

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

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

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

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

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

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

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

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with respect to cases of refusal to submit to a blood test, shall be guilty of a misdemeanor; shall

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be imprisoned for not more than six (6) months; and shall pay a fine in the amount of six hundred

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dollars ($600) to one thousand dollars ($1,000), order the person to perform sixty (60) to one

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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

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

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

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as provided in § 31-27-2.8.

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

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period, except with respect to cases of refusal to submit to a blood test, shall be guilty of a

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misdemeanor; and shall be imprisoned for not more than one year; fined eight hundred dollars

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($800) to one thousand dollars ($1,000); shall perform not less than one hundred (100) hours of

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

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for a period of two (2) years to five (5) years. The sentencing judge or magistrate shall prohibit

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

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as provided in § 31-27-2.8. The judge or magistrate shall require alcohol or drug treatment for

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the individual. Provided, that prior to the reinstatement of a license to a person charged with a

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

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

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

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indicate that the person has demonstrated behavior that warrants the reinstatement of his or her

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license.

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

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

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dollars ($1,000), the person shall perform sixty (60) to one hundred (100) hours of public

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

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period of two (2) years. The judicial officer shall require alcohol and/or drug treatment for the

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

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

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

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

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

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

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

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

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

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

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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

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

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

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

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

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

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

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2.

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

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

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

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

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

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

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

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deposited as general revenues, not restricted receipts.

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

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

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restitution provided for under this section can be suspended.

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

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the traffic tribunal or district court shall immediately notify the person involved in writing, and

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upon his or her request, within fifteen (15) days, shall afford the person an opportunity for a

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hearing as early as practical upon receipt of a request in writing. Upon a hearing, the judge may

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

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relevant books and papers. If the judge finds after the hearing that:

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     (1) The law enforcement officer making the sworn report had reasonable grounds to

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believe that the arrested person had been driving a motor vehicle within this state while under the

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

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title 21, or any combination of these;

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     (2) The person, while under arrest, refused to submit to the tests upon the request of a law

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enforcement officer;

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     (3) The person had been informed of his or her rights in accordance with § 31-27-3; and

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     (4) The person had been informed of the penalties incurred as a result of noncompliance

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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

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hearing or it shall be presumed that the judge has refused to issue his or her order of suspension.

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

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

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is considered a chemical test.

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

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

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

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controversy giving rise to the judgment.

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     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

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

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

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

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submit to a blood test.

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     This act would take effect upon passage.

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