First Substitute H.B. 353

Representative Paul Ray proposes to substitute the following bill:

1 DRIVING UNDER THE INFLUENCE
2 AMENDMENTS
3 2001 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Paul Ray
6 This act modifies the Motor Vehicles Code by amending DUI penalty provisions, including
7 an enhancement provision and driver license suspension and revocation provisions. This act
8 takes effect on July 1, 2001.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 41-6-44, as last amended by Chapters 333 and 334, Laws of Utah 2000
12 Be it enacted by the Legislature of the state of Utah:
13 Section 1. Section 41-6-44 is amended to read:
14 41-6-44. Driving under the influence of alcohol, drugs, or with specified or unsafe
15 blood alcohol concentration -- Measurement of blood or breath alcohol -- Criminal
16 punishment -- Arrest without warrant -- Penalties -- Suspension or revocation of license.
17 (1) As used in this section:
18 (a) "educational series" means an educational series obtained at a substance abuse program
19 that is approved by the Board of Substance Abuse in accordance with Section 62A-8-107 ;
20 (b) "prior conviction" means any conviction for a violation of:
21 (i) this section;
22 (ii) alcohol-related reckless driving under Subsections (9) and (10);
23 (iii) local ordinances similar to this section or alcohol-related reckless driving adopted in
24 compliance with Section 41-6-43 ;
25 (iv) automobile homicide under Section 76-5-207 ; or

26 (v) statutes or ordinances in effect in any other state, the United States, or any district,
27 possession, or territory of the United States which would constitute a violation of this section or
28 alcohol-related reckless driving if committed in this state, including punishments administered
29 under 10 U.S.C. Sec. 815;
30 (c) "screening and assessment" means a substance abuse addiction and dependency
31 screening and assessment obtained at a substance abuse program that is approved by the Board of
32 Substance Abuse in accordance with Section 62A-8-107 ;
33 (d) "serious bodily injury" means bodily injury that creates or causes serious permanent
34 disfigurement, protracted loss or impairment of the function of any bodily member or organ, or
35 creates a substantial risk of death;
36 (e) "substance abuse treatment" means treatment obtained at a substance abuse program
37 that is approved by the Board of Substance Abuse in accordance with Section 62A-8-107 ;
38 (f) "substance abuse treatment program" means a state licensed substance abuse program;
39 (g) a violation of this section includes a violation under a local ordinance similar to this
40 section adopted in compliance with Section 41-6-43 ; and
41 (h) the standard of negligence is that of simple negligence, the failure to exercise that
42 degree of care that an ordinarily reasonable and prudent person exercises under like or similar
43 circumstances.
44 (2) (a) A person may not operate or be in actual physical control of a vehicle within this
45 state if the person:
46 (i) has sufficient alcohol in his body that a chemical test given within two hours of the
47 alleged operation or physical control shows that the person has a blood or breath alcohol
48 concentration of .08 grams or greater; or
49 (ii) is under the influence of alcohol, any drug, or the combined influence of alcohol and
50 any drug to a degree that renders the person incapable of safely operating a vehicle.
51 (b) The fact that a person charged with violating this section is or has been legally entitled
52 to use alcohol or a drug is not a defense against any charge of violating this section.
53 (c) Alcohol concentration in the blood shall be based upon grams of alcohol per 100
54 milliliters of blood, and alcohol concentration in the breath shall be based upon grams of alcohol
55 per 210 liters of breath.
56 (3) (a) A person convicted the first or second time of a violation of Subsection (2) is guilty

57 of a:
58 (i) class B misdemeanor; or
59 (ii) class A misdemeanor if the person:
60 (A) has also inflicted bodily injury upon another as a proximate result of having operated
61 the vehicle in a negligent manner; [or]
62 (B) had a passenger under 16 years of age in the vehicle at the time of the offense[.]; or
63 (C) was 21 years of age or older and had a passenger under 18 years of age in the vehicle
64 at the time of the offense.
65 (b) A person convicted of a violation of Subsection (2) is guilty of a third degree felony
66 if the person has also inflicted serious bodily injury upon another as a proximate result of having
67 operated the vehicle in a negligent manner.
68 (4) (a) As part of any sentence imposed the court shall, upon a first conviction, impose a
69 mandatory jail sentence of not less than 48 consecutive hours.
70 (b) The court may, as an alternative to all or part of a jail sentence, require the person to:
71 (i) work in a compensatory-service work program for not less than 24 hours; or
72 (ii) participate in home confinement through the use of electronic monitoring in
73 accordance with Subsection (13).
74 (c) In addition to the jail sentence, compensatory-service work program, or home
75 confinement, the court shall:
76 (i) order the person to participate in a screening and assessment;
77 (ii) order the person to participate in an educational series if the court does not order
78 substance abuse treatment as described under Subsection (4)(d); and
79 (iii) impose a fine of not less than $700.
80 (d) The court may order the person to obtain substance abuse treatment if the substance
81 abuse treatment program determines that substance abuse treatment is appropriate.
82 (e) The court may order probation for the person in accordance with Subsection (14).
83 (5) (a) If a person is convicted under Subsection (2) within six years of a prior conviction
84 under this section, the court shall as part of any sentence impose a mandatory jail sentence of not
85 less than 240 consecutive hours.
86 (b) The court may, as an alternative to all or part of a jail sentence, require the person to:
87 (i) work in a compensatory-service work program for not less than 240 hours; or

88 (ii) participate in home confinement through the use of electronic monitoring in
89 accordance with Subsection (13).
90 (c) In addition to the jail sentence, compensatory-service work program, or home
91 confinement, the court shall:
92 (i) order the person to participate in a screening and assessment;
93 (ii) order the person to participate in an educational series if the court does not order
94 substance abuse treatment as described under Subsection (5)(d); and
95 (iii) impose a fine of not less than $800.
96 (d) The court may order the person to obtain substance abuse treatment if the substance
97 abuse treatment program determines that substance abuse treatment is appropriate.
98 (e) The court may order probation for the person in accordance with Subsection (14).
99 (6) (a) A third or subsequent conviction for a violation committed within six years of two
100 or more prior convictions under this section is a third degree felony.
101 (b) Under Subsection (3)(b) or (6)(a), if the court suspends the execution of a prison
102 sentence and places the defendant on probation the court shall impose:
103 (i) a fine of not less than $1,500; and
104 (ii) a mandatory jail sentence of not less than 1,500 hours.
105 (c) For Subsection (6)(a) or (b), the court shall impose an order requiring the person to
106 obtain a screening and assessment and substance abuse treatment at a substance abuse treatment
107 program providing intensive care or inpatient treatment and long-term closely supervised
108 follow-through after treatment for not less than 240 hours.
109 (d) In addition to the penalties required under Subsection (6)(b), the court may require the
110 person to participate in home confinement through the use of electronic monitoring in accordance
111 with Subsection (13).
112 (7) The mandatory portion of any sentence required under this section may not be
113 suspended and the convicted person is not eligible for parole or probation until any sentence
114 imposed under this section has been served. Probation or parole resulting from a conviction for
115 a violation under this section may not be terminated.
116 (8) (a) (i) The provisions in Subsections (4), (5), and (6) that require a sentencing court to
117 order a convicted person to: participate in a screening and assessment; and an educational series;
118 obtain, in the discretion of the court, substance abuse treatment; obtain, mandatorily, substance

119 abuse treatment; or do a combination of those things, apply to a conviction for a violation of
120 Section 41-6-44.6 or 41-6-45 under Subsection (9).
121 (ii) The court shall render the same order regarding screening and assessment, an
122 educational series, or substance abuse treatment in connection with a first, second, or subsequent
123 conviction under Section 41-6-44.6 or 41-6-45 under Subsection (9), as the court would render in
124 connection with applying respectively, the first, second, or subsequent conviction requirements of
125 Subsections (4), (5), and (6).
126 (b) If a person fails to complete all court ordered screening and assessment, educational
127 series, and substance abuse treatment, or fails to pay all fines and fees, including fees for restitution
128 and treatment costs, the court shall notify the Driver License Division of a failure to comply. Upon
129 receiving the notification, the division shall suspend the person's driving privilege in accordance
130 with Subsections 53-3-221 (2) and (3).
131 (9) (a) (i) When the prosecution agrees to a plea of guilty or no contest to a charge of a
132 violation of Section 41-6-45 , of an ordinance enacted under Section 41-6-43 , or of Section
133 41-6-44.6 in satisfaction of, or as a substitute for, an original charge of a violation of this section,
134 the prosecution shall state for the record a factual basis for the plea, including whether or not there
135 had been consumption of alcohol, drugs, or a combination of both, by the defendant in connection
136 with the violation.
137 (ii) The statement is an offer of proof of the facts that shows whether there was
138 consumption of alcohol, drugs, or a combination of both, by the defendant, in connection with the
139 violation.
140 (b) The court shall advise the defendant before accepting the plea offered under this
141 Subsection (9)(b) of the consequences of a violation of Section 41-6-44.6 or of Section 41-6-45 .
142 (c) The court shall notify the Driver License Division of each conviction of Section
143 41-6-44.6 or 41-6-45 entered under this Subsection (9).
144 (10) A peace officer may, without a warrant, arrest a person for a violation of this section
145 when the officer has probable cause to believe the violation has occurred, although not in his
146 presence, and if the officer has probable cause to believe that the violation was committed by the
147 person.
148 (11) (a) The Driver License Division shall:
149 (i) suspend for 90 days the operator's license of a person convicted for the first time under

150 Subsection (2);
151 (ii) revoke for one year the license of a person convicted of any subsequent offense under
152 Subsection (2) if the violation is committed within a period of six years from the date of the prior
153 violation; and
154 (iii) suspend or revoke the license of a person as ordered by the court under Subsection
155 (12).
156 (b) The Driver License Division shall subtract from any suspension or revocation period
157 the number of days for which a license was previously suspended under Section 53-3-223 or
158 53-3-231 , if the previous suspension was based on the same occurrence upon which the record of
159 conviction is based.
160 (12) (a) In addition to any other penalties provided in this section, a court may order the
161 operator's license of a person who is convicted of a violation of Subsection (2) to be suspended
162 or revoked for an additional period of 90 days, 180 days, [or] one year, or two years to remove
163 from the highways those persons who have shown they are safety hazards.
164 (b) If the court suspends or revokes the person's license under this Subsection (12)(b), the
165 court shall prepare and send to the Driver License Division an order to suspend or revoke that
166 person's driving privileges for a specified period of time.
167 (13) (a) If the court orders a person to participate in home confinement through the use of
168 electronic monitoring, the electronic monitoring shall alert the appropriate corrections, probation
169 monitoring agency, law enforcement units, or contract provider of the defendant's whereabouts.
170 (b) The electronic monitoring device shall be used under conditions which require:
171 (i) the person to wear an electronic monitoring device at all times;
172 (ii) that a device be placed in the home or other specified location of the person, so that
173 the person's compliance with the court's order may be monitored; and
174 (iii) the person to pay the costs of the electronic monitoring.
175 (c) The court shall order the appropriate entity described in Subsection (13)(e) to place an
176 electronic monitoring device on the person and install electronic monitoring equipment in the
177 residence of the person or other specified location.
178 (d) The court may:
179 (i) require the person's electronic home monitoring device to include a substance abuse
180 testing instrument;

181 (ii) restrict the amount of alcohol the person may consume during the time the person is
182 subject to home confinement;
183 (iii) set specific time and location conditions that allow the person to attend school
184 educational classes, or employment and to travel directly between those activities and the person's
185 home; and
186 (iv) waive all or part of the costs associated with home confinement if the person is
187 determined to be indigent by the court.
188 (e) The electronic monitoring described in this section may either be administered directly
189 by the appropriate corrections agency, probation monitoring agency, or by contract with a private
190 provider.
191 (f) The electronic monitoring provider shall cover the costs of waivers by the court under
192 Subsection (13)(c)(iv).
193 (14) (a) If supervised probation is ordered under Subsection (4)(e) or (5)(e):
194 (i) the court shall specify the period of the probation;
195 (ii) the person shall pay all of the costs of the probation; and
196 (iii) the court may order any other conditions of the probation.
197 (b) The court shall provide the probation described in this section by contract with a
198 probation monitoring agency or a private probation provider.
199 (c) The probation provider described in Subsection (14)(b) shall monitor the person's
200 compliance with all conditions of the person's sentence, conditions of probation, and court orders
201 received under this article and shall notify the court of any failure to comply with or complete that
202 sentence or those conditions or orders.
203 (d) (i) The court may waive all or part of the costs associated with probation if the person
204 is determined to be indigent by the court.
205 (ii) The probation provider described in Subsection (14)(b) shall cover the costs of waivers
206 by the court under Subsection (14)(d)(i).
207 (15) If a person is convicted of a violation of Subsection (2) and there is admissible
208 evidence that the person had a blood alcohol level of .16 or higher, then if the court does not order:
209 (a) treatment as described under Subsection (4)(d), (5)(d), or (6)(b)(iii), then the court shall
210 enter the reasons on the record; and
211 (b) the following penalties, the court shall enter the reasons on the record:

212 (i) the installation of an ignition interlock system as a condition of probation for the person
213 in accordance with Section 41-6-44.7 ; or
214 (ii) the imposition of home confinement through the use of electronic monitoring in
215 accordance with Subsection (13).
216 Section 2. Effective date.
217 This act takes effect on July 1, 2001.