2017 -- S 0665 SUBSTITUTE A

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LC002004/SUB 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: Senators Archambault, McCaffrey, Ruggerio, Lombardi, and Jabour

     Date Introduced: March 29, 2017

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 31-27-2, 31-27-2.1 and 31-27-2.8 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.

     (1) Notwithstanding any other sentencing and disposition provisions contained in this

chapter, if the district court judge or magistrate makes a finding that a motorist was operating a

vehicle in the state while under the influence of drugs, toluene, or any controlled substance as

evidenced by the presence of controlled substances on or about the person or vehicle, or other

reliable indicia or articulable conditions thereof, but not intoxicating liquor based on a

preliminary breath test, results from a breathalyzer which indicates no blood alcohol

concentration, or both, the judge or magistrate may exercise their discretion and eliminate the

requirement of an ignition interlock system, provided that blood and/or urine testing is mandated

as a condition to operating a motor vehicle as provided in §31-27-2.8.

     (2) Notwithstanding any other sentencing and disposition provisions contained in this

chapter, if the district court judge or magistrate makes a finding that a motorist was operating a

vehicle in the state while under the influence of drugs, toluene, or any controlled substance as

evidenced by the presence of controlled substances on or about the person or vehicle, or other

reliable indicia or articulable conditions thereof and intoxicating liquor based on a preliminary

breath test, results from a breathalyzer which indicates no blood alcohol concentration, or both,

the judge or magistrate may require an ignition interlock system in addition to blood and/or urine

testing as a condition to operating a motor vehicle as provided in §31-27-2.8.

     (b) (1) Any person charged under subsection (a), 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). 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 that 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).

     (c) In any criminal prosecution for a violation of subsection (a), 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.

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     (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), 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) 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 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.

The sentencing judge or magistrate may prohibit that person from operating a motor vehicle,

pursuant to §31-27-2(a)(1) or (a)(2), that is not equipped with an ignition interlock system and/or

blood and urine testing as provided in § 31-27-2.8.

     (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

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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. The sentencing 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.

     (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. The sentencing judge or magistrate shall prohibit that person from operating a

motor vehicle, pursuant to §31-27-2(a)(1) or (a)(2), that is not equipped with an ignition interlock

system and/or blood and urine testing as provided in § 31-27-2.8.

     (2) (i) Every person convicted of a second violation within a five-year (5) 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 controlled substance as defined in subdivision (b)(2), and every

person convicted of a second violation within a five-year (5) 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

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

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

operating a motor vehicle, pursuant to §31-27-2(a)(1) or (a)(2), that is not equipped with an

ignition interlock system and/or blood and urine testing as provided in § 31-27-2.8.

     (ii) Every person convicted of a second violation within a five-year (5) 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. The

sentencing judge or magistrate shall prohibit that person from operating a motor vehicle, pursuant

to §31-27-2(a)(1) or (a)(2), that is not equipped with an ignition interlock system and/or blood

and urine testing as provided in § 31-27-2.8

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

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

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 shall prohibit that person from operating a motor

vehicle, pursuant to §31-27-2(a)(1) or (a)(2), that is not equipped with an ignition interlock

system and/or blood and urine testing as provided in § 31-27-2.8.

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     (ii) Every person convicted of a third or subsequent violation within a five-year (5) 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. The sentencing judge shall require

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

person from operating a motor vehicle, pursuant to §31-27-2(a)(1) or (a)(2), that is not equipped

with an ignition interlock system and/or blood and urine testing as provided in § 31-27-2.8.

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

subsequent violation within a five-year (5) 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 of 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 § 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 his or her license

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

the individual shall be subject to the provisions of subdivision (d)(2)(i), (d)(2)(ii), (d)(3)(i),

(d)(3)(ii), or (d)(3)(iii) regarding subsequent offenses, and any other applicable provision of this

section.

     (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 § 31-27-

2.1.

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     (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) that 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

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 behavioral healthcare,

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developmental disabilities 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 behavioral healthcare, developmental disabilities 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 that 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.

     (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 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 this testing and analysis.

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     (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 that 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.

     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

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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. :

     (1) At the initial traffic tribunal appearance, the magistrate shall review the incident,

action, and/or arrest reports submitted by the law enforcement officer to determine if there exists

reasonable grounds to believe that the person had been driving a motor vehicle while under the

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

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any combination thereof. The magistrate shall also determine if the person had been informed of

the penalties incurred as a result of failing to submit to a chemical test as provided in this section.

For the purpose of this subsection only "driving a motor vehicle while under the influence of any

controlled substance as defined in chapter 28 of title 21" shall be indicated by the presence or

aroma of a controlled substance on or about the person or vehicle of the individual refusing the

chemical test or other reliable indicia or articulable conditions that the person was impaired due

to their intake of a controlled substance.

     (2) If the magistrate determines that §31-27-2.1(b)(1) has been satisfied they shall

promptly order that the person's operator's license or privilege to operate a motor vehicle in this

state be immediately suspended. Said suspension shall be subject to the hardship provisions

enumerated in §31-27-2.8.

     (c) A traffic tribunal judge or magistrate, or a district court judge or magistrate, pursuant

to the terms of subsection (c) (d) 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 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 and/or blood and urine testing as provided in § 31-27-2.8.

     (2) Every person convicted for a second violation within a five-year (5) 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 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 and/or blood and urine testing as provided in § 31-

27-2.8.

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

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); shall perform not less than

one hundred (100) hours of public community restitution; and the person's operator's license in

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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 and/or blood and urine testing 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 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) 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

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

LC002004/SUB A - Page 12 of 18

noncompliance with this section, the judge shall sustain the violation. The judge shall then

impose the penalties set forth in subsection (b)(c). 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)(e) 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)(f) 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.

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

Ignition interlock system and/or blood and urine testing imposed as part of sentence --

Requirements.

     (a) Any person subject to suspension pursuant to §31-27-2.1(b)(1) and (b)(2) or convicted

under the provisions of §§ 31-27-2(d)(1), 31-27-2(d)(2), 31-27-2(d)(3)(i) or 31-27-2(d)(3)(ii), or

whose violation is sustained under the provisions of § 31-27-2.1(b)(1) §31-27-2.1(b)(1) or (b)(2),

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

not equipped with an ignition interlock system, and/or blood and urine testing by a licensed

physician with knowledge and clinical experience in the diagnosis and treatment of drug related

disorders, a licensed or certified psychologist, social worker, or EAP professional with like

knowledge, or a substance abuse counselor certified by the National Association of Alcohol and

Drug Abuse Counselors (all of whom shall be licensed in Rhode Island), pursuant to this section.

     (1) Notwithstanding any other sentencing and disposition provisions contained in this

chapter, if a Rhode Island traffic tribunal magistrate makes a finding that a motorist was operating

a vehicle in the state while under the influence of drugs, toluene, or any controlled substance as

evidenced by the presence of controlled substances on or about the person or vehicle, or other

reliable indicia or articulable conditions thereof, but not intoxicating liquor based on a

preliminary breath test, results from a breathalyzer which indicates no blood alcohol

concentration or both, the magistrate may exercise their discretion and eliminate the requirement

of an ignition interlock system, provided that blood and/or urine testing is mandated as a

condition to operating a motor vehicle as provided in this section.

     (2) Notwithstanding any other sentencing and disposition provisions contained in this

chapter, if a Rhode Island traffic tribunal magistrate makes a finding that a motorist was operating

LC002004/SUB A - Page 13 of 18

a vehicle in the state while under the influence of drugs, toluene, or any controlled substance as

evidenced by the presence of controlled substances on or about the person or vehicle, or other

reliable indicia or articulable conditions thereof and intoxicating liquor based on a preliminary

breath test, results from a breathalyzer which indicates no blood alcohol concentration or both,

the magistrate may require an ignition interlock system in addition to blood and/or urine testing

as a condition to operating a motor vehicle as provided in this section.

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

eligibility, any mandatory period of license suspension shall, upon request, be reduced by the

imposition of an ignition interlock system and/or blood and urine testing ordered by the court or

traffic tribunal as follows:

     (1) For a violation of § 31-27-2(d)(1), a person shall be subject to a minimum thirty-day

(30) license suspension and an imposition of an ignition interlock system and/or blood and urine

testing for three (3) months to one year.

     (2) For a violation of § 31-27-2.1(b)(1) §31-27-2.1(c)(1), a person shall be subject to a

minimum thirty-day (30) license suspension and an imposition of an ignition interlock system

and/or blood and urine testing for a period of six (6) months to two (2) years.

     (3) For a violation of § 31-27-2(d)(2), a person shall be subject to a minimum forty-five-

day (45) license suspension and an imposition of an ignition interlock system and/or blood and

urine testing for a period of six (6) months to two (2) years.

     (4) For a violation of § 31-27-2.1(b)(2) §31-27-2.1(c)(2), a person shall be subject to a

minimum sixty-day (60) license suspension and an imposition of an ignition interlock system

and/or blood and urine testing for a period of one to four (4) years.

     (5) For a violation of § 31-27-2(d)(3), a person shall be subject to a minimum sixty-day

(60) license suspension and imposition of an ignition interlock system and/or blood and urine

testing for a period of one to four (4) years.

     (6) For a violation of § 31-27-2.1(b)(3) §31-27-2.1(c)(3), a person shall be subject to a

minimum ninety-day (90) license suspension and imposition of an ignition interlock system

and/or blood and urine testing for a period of two (2) to ten (10) years.

     (7)(i) In any case where a person is convicted of a first offense under the provisions of §

31-27-2(d)(1) or under § 31-27-2.1(b)(1), the sentencing judge or magistrate shall, upon request,

grant the person a conditional hardship license immediately upon a plea or admission of guilt, or

an initial suspension under § 31-27-2.1(b), and after a finding of need under this section;

provided, however, that in a case where a conditional hardship license shall be granted by the

sentencing judge or magistrate upon an initial suspension under § 31-27-2.1(b) and prior to the

LC002004/SUB A - Page 14 of 18

installation of an ignition interlock device, said hardship license shall be issued to the motorist

upon proof of installation of an ignition interlock device. If a conviction pursuant to §31-27-

2(d)(l) or §31-27-2.l(c)(l) is a first offense, or upon an initial suspension pursuant to §31-27-

2.1(b)(ii), where there has been a finding or determination that the motorist was under the

influence of intoxicating liquor only, the magistrate shall, upon request, immediately grant a

conditional hardship license after a finding of need pursuant to this section and upon proof of the

installation of an ignition interlock device.

     (ii) If a conviction pursuant to §31-27-2(d)(l) or §31-27-2.l(c)(l) is a first offense, or upon

an initial suspension pursuant to §31-27-2.1(b)(ii), where there has been a finding or

determination that the motorist was under the influence of drugs, toluene, or a controlled

substance, but not intoxicating liquor, the judge or magistrate shall, upon request immediately

grant a conditional hardship license after a finding of need pursuant to this section and upon proof

of blood and urine testing pursuant to this section.

     (iii) If a conviction pursuant to §31-27-2(d)(1) or §31-27-2.1(c)(1) is a first offense, or

upon an initial suspension pursuant to §31-27-2.1(b)(ii), where there has been a finding or

determination that the motorist was under the influence of intoxicating liquor, toluene, a

controlled substance or any combination thereof, the magistrate shall, upon request immediately

grant a conditional hardship license after a finding of need pursuant to this section and upon proof

of the installation of an ignition interlock device, subject also to the following testing:

     (A) The testing of either blood or urine is being performed by or monitored by a licensed

physician with knowledge and clinical experience in the diagnosis and treatment of drug related

disorders, a licensed or certified psychologist, social worker, or EAP professional with like

knowledge, or a substance abuse counselor certified by the National Association of Alcohol and

Drug Abuse Counselors (all of whom shall be licensed in Rhode Island).

     (B) The motorist is require to pay for the substance abuse professional, any testing,

retesting, monitoring and reporting costs of the blood and urine testing.

     (C) Samples are to be collected, tested and confirmed by a federally certified laboratory

by means of gas chromatography/mass spectrometry or technology recognized as being at least as

scientifically accurate.

     (D) Samples are to be taken weekly for the first sixty (60) days, thereafter in accordance

with the recommendation of the substance abuse professional. The samples taken thereafter may

be ordered randomly but must be provided by the motorist within twenty-four (24) hours of the

request. The substance abuse professional shall report to the department of the attorney general

within twenty-four (24) hours any failure by the motorist to comply with a request for a sample.

LC002004/SUB A - Page 15 of 18

     (E) A positive test of urine or blood which evidences any controlled substances shall be

reported by the substance abuse professional to the motorist and to the department of the attorney

general within twenty-four (24) hours of receipt of the results. The motorist may, at their own

expense, have an opportunity to have the sample retested or reevaluated by an independent testing

facility which shall provide the result directly to the substance abuse professional. The attorney

general may request, at any time, a copy of any or all test results from the substance abuse

professional, which shall forward the requested results within forty-eight (48) hours.

     (F) Upon completion of the license suspension, conditional hardship, ignition interlock

and substance abuse testing periods, a finalized report shall be presented to the department of

motor vehicles prior to any license reinstatement.

     (G) If a judge or magistrate determines that a motorist either failed, without good cause,

to comply with a sample request or tested positive for any controlled substance, they may

exercise their discretion and revoke the conditional hardship license, extend the time period for

the ignition interlock system and/or substance abuse testing for an additional period of up to

twelve (12) months and/or impose an additional loss of license for up to twenty-four (24) months.

     (H) A motorist who has failed, without good cause, to comply with a sample request or

tested positive for any controlled substance for a second time within twelve (12) months of the

first failure and/or positive test determination shall be guilty of a misdemeanor punishable by up

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

     (c) However, in any case where a motorist has a prior alcohol-related offense or a prior

reckless driving conviction under § 31-27-4 or reckless eluding conviction under § 31-27-4.1,

within the prior ten (10) years of the offense, or when the instant offense involves a motor vehicle

accident, the judge or magistrate may exercise their discretion in the granting of the hardship

license by imposing up to a ninety (90) day loss of license prior to any imposition of the hardship

license. If the instant matter involves a blood alcohol level of fifteen hundredths (.15) BAC or

above, the judge or magistrate may exercise his or her discretion in the granting of the hardship

license by imposing up to a six (6) month loss of license prior to any imposition of the hardship

license. Said hardship license shall be valid only for twelve (12) hours per day to get to and from

employment, necessary medical appointments, job training, schooling, or any other valid reason

approved in advance by the sentencing judge or magistrate. A hardship license shall only be

granted in conjunction with the installation of an ignition interlock device and/or blood and urine

testing. Any conditional driving privileges must be set by the sentencing judge or magistrate after

a hearing in which the motorist must provide proof of employment status and hours of

employment, or any other legitimate reasons justifying a hardship license. These shall include,

LC002004/SUB A - Page 16 of 18

but not be limited to, any unemployment training, schooling, medical appointments, therapy

treatments, or any other valid requests set forth by sworn affidavit. Once said hardship period has

concluded, the motorist must still be subject to the conditions of the ignition interlock system

and/or blood and urine testing as set forth under this section for the period of time as directed by

the court. Any individual who violates the requirements of this subsection shall be subject to the

penalties enumerated in § 31-11-18.1.

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

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

serious bodily injury, § 31-27-2.6; driving to endanger resulting in death, § 31-27-1; or driving to

endanger resulting in serious bodily injury, § 31-27-1.1; may, in addition to any other penalties

provided by law, be prohibited from operating a motor vehicle that is not equipped with an

approved ignition interlock system and/or blood and urine testing for one to five (5) years.

     (d)(e) Any person who operates a motor vehicle with a suspended license during the

period of suspension, and the reason for the suspension was due to a conviction of driving under

the influence of drugs or alcohol or a sustained violation or conviction of refusal to submit to a

chemical test, shall be subject to the further use of the ignition interlock system and/or blood and

urine testing for a period of six (6) months subsequent to the penalties enumerated in § 31-11-

18.1.

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

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

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

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

traffic tribunal shall:

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

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

interlock system;

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

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

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

require; and

     (3) Require the person to pay the reasonable cost of leasing or buying, monitoring, and

maintenance of the ignition interlock system.

     (4) The requirements under subsection (f)(g) of this section shall be the responsibility of

the probation department or justice assistance, if the individual is under their control, or the

LC002004/SUB A - Page 17 of 18

division of motor vehicles if the individual is not monitored as a condition of the individual's plea

or finding of guilt.

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

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

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

system if the court makes specific findings expressly permitting the person to operate, in the

course of the person's employment, a motor vehicle that is not equipped with an ignition interlock

system.

     (h)(i)(1) Any person subject to an ignition interlock order and/or blood and urine testing

who violates such order shall be guilty of a misdemeanor punishable by up to one year

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

     (2) For a second violation within six (6) months from entry of the order, the person

violating the order shall be imprisoned for a term of not less than ten (10) days and not more than

one year.

     (j) For the purposes of this subsection, a violation of the interlock order, includes, but is

not limited to:

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

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

section;

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

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

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

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

system.

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

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

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

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

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

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

     SECTION 2. This act shall take effect upon passage.

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LC002004/SUB A

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LC002004/SUB A - Page 18 of 18

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO MOTOR AND OTHER VEHICLES -- MOTOR VEHICLE OFFENSES

***

     This act would grant a judge or magistrate discretion to impose the requirement of blood

and/or urine testing or the use of an ignition interlock system or both upon those persons seeking

the issuance of a conditional hardship license after conviction of driving under the influence of

alcohol or illegal substances or the refusal to submit to a chemical test for same.

     This act would take effect upon passage.

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LC002004/SUB A

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LC002004/SUB A - Page 19 of 18