Second Substitute S.B. 15

Senator Carlene M. Walker proposes the following substitute bill:

1 DRIVING UNDER THE INFLUENCE
2 AMENDMENTS
3 2008 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Carlene M. Walker
6 House Sponsor: Paul Ray
7
8 LONG TITLE
9 General Description:
10 This bill amends provisions relating to driving under the influence.
11 Highlighted Provisions:
12 This bill:
13 . amends definitions;
14 . enacts an impaired driving plea;
15 . provides that a plea to a driving under the influence violation for an offense
16 committed on or after July 1, 2008 may be entered as an impaired driving
17 conviction in certain circumstances;
18 . provides that an impaired driving violation is a class B misdemeanor;
19 . provides requirements for a court entering a conviction of impaired driving in
20 certain circumstances;
21 . requires the court to notify the Driver License Division of an impaired driving
22 conviction;
23 . provides sentencing requirements for impaired driving convictions;
24 . provides that certain plea requirements when the prosecution agrees to a plea of
25 guilty or no contest to an alcohol or drug-related reckless charge in satisfaction or

26 substitute of an original charge of driving under the influence only apply to an offense
27 committed before July 1, 2008;
28 . clarifies that certain license reinstatement provisions only apply to a certain 90 day
29 suspension period imposed by the Driver License Division;
30 . increases the administrative impound fee for a driving under the influence violation
31 impound; and
32 . makes technical changes.
33 Monies Appropriated in this Bill:
34 This bill appropriates:
35 . as an ongoing appropriation subject to future budget constraints, $660,000 from the
36 General Fund for fiscal year 2008-09 to the Department of Public Safety, Utah
37 Highway Patrol; and
38 . as an ongoing appropriation subject to future budget constraints, $660,000 from the
39 General Fund for fiscal year 2008-09 to the Department of Public Safety, Liquor
40 Law Enforcement Program.
41 Other Special Clauses:
42 This bill provides an effective date.
43 Utah Code Sections Affected:
44 AMENDS:
45 41-6a-501, as enacted by Laws of Utah 2005, Chapter 2
46 41-6a-510, as renumbered and amended by Laws of Utah 2005, Chapter 2
47 41-6a-512, as enacted by Laws of Utah 2005, Chapter 2
48 41-6a-518.2, as enacted by Laws of Utah 2006, Chapter 341
49 41-6a-529, as last amended by Laws of Utah 2007, Chapter 261
50 41-6a-1406, as last amended by Laws of Utah 2005, Chapter 56 and renumbered and
51 amended by Laws of Utah 2005, Chapter 2
52 53-3-220, as last amended by Laws of Utah 2007, Chapter 261
53 53-3-223, as last amended by Laws of Utah 2007, Chapter 261
54 76-10-528, as last amended by Laws of Utah 2005, Chapter 2
55 ENACTS:
56 41-6a-502.5, Utah Code Annotated 1953

57
58 Be it enacted by the Legislature of the state of Utah:
59 Section 1. Section 41-6a-501 is amended to read:
60 41-6a-501. Definitions.
61 (1) As used in this part:
62 (a) "Assessment" means an in-depth clinical interview with a licensed mental health
63 therapist:
64 (i) used to determine if a person is in need of:
65 (A) substance abuse treatment that is obtained at a substance abuse program;
66 (B) an educational series; or
67 (C) a combination of Subsections (1)(a)(i)(A) and (B); and
68 (ii) that is approved by the Board of Substance Abuse and Mental Health in accordance
69 with Section 62A-15-105 .
70 (b) "Drug" or "drugs" means any substance that, when taken into the human body, can
71 impair the ability of a person to safely operate a motor vehicle.
72 [(b)] (c) "Educational series" means an educational series obtained at a substance abuse
73 program that is approved by the Board of Substance Abuse and Mental Health in accordance
74 with Section 62A-15-105 .
75 [(c)] (d) "Negligence" means simple negligence, the failure to exercise that degree of
76 care that an ordinarily reasonable and prudent person exercises under like or similar
77 circumstances.
78 [(d)] (e) "Screening" means a preliminary appraisal of a person:
79 (i) used to determine if the person is in need of:
80 (A) an assessment; or
81 (B) an educational series; and
82 (ii) that is approved by the Board of Substance Abuse and Mental Health in accordance
83 with Section 62A-15-105 .
84 [(e)] (f) "Serious bodily injury" means bodily injury that creates or causes:
85 (i) serious permanent disfigurement;
86 (ii) protracted loss or impairment of the function of any bodily member or organ; or
87 (iii) a substantial risk of death.

88 [(f)] (g) "Substance abuse treatment" means treatment obtained at a substance abuse
89 program that is approved by the Board of Substance Abuse and Mental Health in accordance
90 with Section 62A-15-105 .
91 [(g)] (h) "Substance abuse treatment program" means a state licensed substance abuse
92 program.
93 [(h)] (i) (i) "Vehicle" or "motor vehicle" means a vehicle or motor vehicle as defined in
94 Section 41-6a-102 ; and
95 (ii) "Vehicle" or "motor vehicle" includes:
96 (A) an off-highway vehicle as defined under Section 41-22-2 ; and
97 (B) a motorboat as defined in Section 73-18-2 .
98 (2) As used in Section 41-6a-503 :
99 (a) "Conviction" means any conviction for a violation of:
100 (i) driving under the influence under Section 41-6a-502 ;
101 (ii) (A) for an offense committed before July 1, 2008, alcohol, any drug, or a
102 combination of both-related reckless driving under [Sections]:
103 (I) Section 41-6a-512 ; and
104 (II) Section 41-6a-528 ; or
105 (B) for an offense committed on or after July 1, 2008, impaired driving under Section
106 41-6a-502.5 ;
107 (iii) driving with any measurable controlled substance that is taken illegally in the body
108 under Section 41-6a-517 ;
109 (iv) local ordinances similar to Section 41-6a-502 [or], alcohol, any drug, or a
110 combination of both-related reckless driving, or impaired driving under Section 41-6a-502.5
111 adopted in compliance with Section 41-6a-510 ;
112 (v) automobile homicide under Section 76-5-207 ;
113 (vi) Subsection 58-37-8 (2)(g);
114 (vii) a violation described in Subsections (2)(a)(i) through (vi), which judgment of
115 conviction is reduced under Section 76-3-402 ; or
116 (viii) statutes or ordinances previously in effect in this state or in effect in any other
117 state, the United States, or any district, possession, or territory of the United States which
118 would constitute a violation of Section 41-6a-502 or alcohol, any drug, or a combination of

119 both-related reckless driving if committed in this state, including punishments administered
120 under 10 U.S.C. Sec. 815.
121 (b) A plea of guilty or no contest to a violation described in Subsections (2)(a)(i)
122 through (viii) which plea [is] was held in abeyance under Title 77, Chapter 2a, Pleas in
123 Abeyance, prior to July 1, 2008, is the equivalent of a conviction, even if the charge has been
124 subsequently reduced or dismissed in accordance with the plea in abeyance agreement, for
125 purposes of:
126 (i) enhancement of penalties under:
127 (A) this Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving; and
128 (B) automobile homicide under Section 76-5-207 ; and
129 (ii) expungement under Section 77-18-12 .
130 Section 2. Section 41-6a-502.5 is enacted to read:
131 41-6a-502.5. Impaired driving -- Penalty -- Sentencing requirements.
132 (1) With the agreement of the prosecutor, a plea to a class B misdemeanor violation of
133 Section 41-6a-502 committed on or after July 1, 2008 may be entered as a conviction of
134 impaired driving under this section if:
135 (a) the defendant completes court ordered probation requirements; or
136 (b) (i) the prosecutor agrees as part of a negotiated plea; and
137 (ii) the court finds the plea to be in the interest of justice.
138 (2) A conviction entered under this section is a class B misdemeanor.
139 (3) (a) (i) If the entry of an impaired driving plea is based on successful completion of
140 probation under Subsection (1)(a), the court shall enter the conviction at the time of plea.
141 (ii) If the defendant fails to appear before the court and establish successful completion
142 of the court ordered probation requirements under Subsection (1)(a), the court shall enter an
143 amended conviction of Section 41-6a-502 .
144 (iii) The date of entry of the amended order under Subsection (3)(a)(ii) is the date of
145 conviction.
146 (b) The court may enter a conviction of impaired driving immediately under
147 Subsection (1)(b).
148 (4) For purposes of Section 76-3-402 , the entry of a plea to a class B misdemeanor
149 violation of Section 41-6a-502 as impaired driving under this section is a reduction of one

150 degree.
151 (5) The court shall notify the Driver License Division of each conviction entered under
152 this section.
153 (6) (a) The provisions in Subsections 41-6a-505 (1), (2), and (3) that require a
154 sentencing court to order a convicted person to participate in a screening, an assessment, or an
155 educational series, or obtain substance abuse treatment or do a combination of those things,
156 apply to a conviction entered under this section.
157 (b) The court shall render the same order regarding screening, assessment, an
158 educational series, or substance abuse treatment in connection with a first, second, or
159 subsequent conviction under this section as the court would render in connection with applying
160 respectively, the first, second, or subsequent conviction requirements of Subsection
161 41-6a-505 (1), (2), or (3).
162 Section 3. Section 41-6a-510 is amended to read:
163 41-6a-510. Local DUI and related ordinances and reckless driving and impaired
164 driving ordinances -- Consistent with code.
165 (1) An ordinance adopted by a local authority that governs the following matters shall
166 be consistent with the provisions in this code which govern the following matters:
167 (a) a person's operating or being in actual physical control of a motor vehicle while
168 having alcohol in the blood or while under the influence of alcohol or any drug or the
169 combined influence of alcohol and any drug; or
170 (b) in relation to any of the matters described in Subsection (1)(a), the use of:
171 (i) a chemical test or chemical tests;
172 (ii) evidentiary presumptions;
173 (iii) penalties; or
174 (iv) any combination of the matters described in Subsection (1).
175 (2) An ordinance adopted by a local authority that governs reckless driving, impaired
176 driving, or operating a vehicle in willful or wanton disregard for the safety of persons or
177 property shall be consistent with the provisions of this code which govern those matters.
178 Section 4. Section 41-6a-512 is amended to read:
179 41-6a-512. Factual basis for alcohol or drug-related reckless driving plea.
180 (1) (a) The prosecution shall state for the record a factual basis for a plea, including

181 whether or not there had been consumption of alcohol, drugs, or a combination of both, by the
182 defendant in connection with the violation when the prosecution agrees to a plea of guilty or no
183 contest to a charge of a violation of the following in satisfaction of, or as a substitute for, an
184 original charge of a violation of Section 41-6a-502 for an offense committed before July 1,
185 2008:
186 (i) reckless driving under Section 41-6a-528 ; or
187 (ii) an ordinance enacted under Section 41-6a-510 .
188 (b) The statement under Subsection (1)(a) is an offer of proof of the facts that shows
189 whether there was consumption of alcohol, drugs, or a combination of both, by the defendant,
190 in connection with the violation.
191 (2) The court shall advise the defendant before accepting the plea offered under this
192 section of the consequences of a violation of Section 41-6a-528 .
193 (3) The court shall notify the Driver License Division of each conviction of Section
194 41-6a-528 entered under this section.
195 (4) (a) The provisions in Subsections 41-6a-505 (1), (2), and (3) that require a
196 sentencing court to order a convicted person to participate in a screening, an assessment, or an
197 educational series or obtain substance abuse treatment or do a combination of those things,
198 apply to a conviction for a violation of Section 41-6a-528 under Subsection (1).
199 (b) The court shall render the same order regarding screening, assessment, an
200 educational series, or substance abuse treatment in connection with a first, second, or
201 subsequent conviction under Section 41-6a-528 under Subsection (1), as the court would
202 render in connection with applying respectively, the first, second, or subsequent conviction
203 requirements of Subsections 41-6a-505 (1), (2), and (3).
204 Section 5. Section 41-6a-518.2 is amended to read:
205 41-6a-518.2. Interlock restricted driver -- Penalties for operation without ignition
206 interlock system.
207 (1) As used in this section:
208 (a) "ignition interlock system" means a constant monitoring device or any similar
209 device that:
210 (i) is in working order at the time of operation or actual physical control; and
211 (ii) is certified by the Commissioner of Public Safety in accordance with Subsection

212 41-6a-518 (8); and
213 (b) (i) "interlock restricted driver" means a person who:
214 (A) has been ordered by a court or the Board of Pardons and Parole as a condition of
215 probation or parole not to operate a motor vehicle without an ignition interlock system;
216 (B) (I) within the last three years has been convicted of an offense that occurred after
217 May 1, 2006 which would be a conviction as defined under Section 41-6a-501 ; and
218 (II) the [conviction] offense described under Subsection (1)(b)(i)(B)(I) is committed
219 within ten years [of one or more prior convictions] from the date that one or more prior
220 offenses was committed if the prior offense resulted in a conviction as defined in Subsection
221 41-6a-501 (2);
222 (C) within the last three years has been convicted of a violation of this section;
223 (D) within the last three years has had the person's driving privilege revoked for refusal
224 to submit to a chemical test under Section 41-6a-520 , which refusal occurred after May 1,
225 2006;
226 (E) within the last three years has been convicted of a violation of Section 41-6a-502
227 and was under the age of 21 at the time the offense was committed;
228 [(E)] (F) within the last six years has been convicted of a felony violation of Section
229 41-6a-502 for an offense that occurred after May 1, 2006; or
230 [(F)] (G) within the last ten years has been convicted of automobile homicide under
231 Section 76-5-207 for an offense that occurred after May 1, 2006; and
232 (ii) "interlock restricted driver" does not include a person if:
233 (A) the person's conviction described in Subsection (1)(b)(i)(B)(I) is a conviction under
234 Section 41-6a-517 ; and
235 (B) all of the person's prior convictions described in Subsection (1)(b)(i)(B)(II) are
236 convictions under Section 41-6a-517 .
237 (2) For purposes of this section, a plea of guilty or no contest to a violation of Section
238 41-6a-502 which plea [is] was held in abeyance under Title 77, Chapter 2a, Pleas in Abeyance,
239 prior to July 1, 2008, is the equivalent of a conviction, even if the charge has been subsequently
240 reduced or dismissed in accordance with the plea in abeyance agreement.
241 (3) An interlock restricted driver that operates or is in actual physical control of a
242 vehicle in this state without an ignition interlock system is guilty of a class B misdemeanor.

243 (4) (a) It is an affirmative defense to a charge of a violation of Subsection (3) if:
244 (i) an interlock restricted driver:
245 (A) operated or was in actual physical control of a vehicle owned by the interlock
246 restricted driver's employer;
247 (B) had given written notice to the employer of the interlock restricted driver's
248 interlock restricted status prior to the operation or actual physical control under Subsection
249 (4)(a)(i); and
250 (C) had on the interlock restricted driver's person or in the vehicle at the time of
251 operation or physical control proof of having given notice to the interlock restricted driver's
252 employer; and
253 (ii) the operation or actual physical control under Subsection (4)(a)(i)(A) was in the
254 scope of the interlock restricted driver's employment.
255 (b) The affirmative defense under Subsection (4)(a) does not apply to:
256 (i) an employer-owned motor vehicle that is made available to an interlock restricted
257 driver for personal use; or
258 (ii) a motor vehicle owned by a business entity that is all or partly owned or controlled
259 by the interlock restricted driver.
260 Section 6. Section 41-6a-529 is amended to read:
261 41-6a-529. Definitions -- Alcohol restricted drivers.
262 (1) As used in this section and Section 41-6a-530 , "alcohol restricted driver" means a
263 person who:
264 (a) within the last two years:
265 (i) has been convicted of:
266 (A) a misdemeanor violation of Section 41-6a-502 ;
267 (B) alcohol, any drug, or a combination of both-related reckless driving under Section
268 41-6a-512 ;
269 (C) impaired driving under Section 41-6a-502.5 ;
270 [(C)] (D) local ordinances similar to Section 41-6a-502 [or], alcohol, any drug, or a
271 combination of both-related reckless driving, or impaired driving adopted in compliance with
272 Section 41-6a-510 ;
273 [(D)] (E) a violation described in Subsections (1)(a)(i)(A) through [(C)] (D), which

274 judgment of conviction is reduced under Section 76-3-402 ; or
275 [(E)] (F) statutes or ordinances previously in effect in this state or in effect in any other
276 state, the United States, or any district, possession, or territory of the United States which
277 would constitute a violation of Section 41-6a-502 [or], alcohol, any drug, or a combination of
278 both-related reckless driving, or impaired driving if committed in this state, including
279 punishments administered under 10 U.S.C. Sec. 815; or
280 (ii) has had the person's driving privilege suspended under Section 53-3-223 for an
281 alcohol-related offense based on an arrest which occurred on or after July 1, 2005;
282 (b) within the last three years has been convicted of a violation of this section or
283 Section 41-6a-518.2 ;
284 (c) within the last five years:
285 (i) has had the person's driving privilege revoked for refusal to submit to a chemical
286 test under Section 41-6a-520 , which refusal occurred on or after July 1, 2005; or
287 (ii) [(A)] has been convicted of [an offense described in Subsection (1)(a)(i); and] a
288 class A misdemeanor violation of Section 41-6a-502 committed on or after July 1, 2008;
289 [(B) at the time of operation or actual physical control of a vehicle the person:]
290 [(I) is 21 years of age or older; and]
291 [(II) has a passenger under 16 years of age in the vehicle;]
292 (d) within the last ten years:
293 (i) has been convicted of an offense described in Subsection (1)(a)(i) which
294 [conviction] offense was committed within ten years of [a prior conviction for an] the
295 commission of a prior offense described in Subsection (1)(a)(i) for which the person was
296 convicted; or
297 (ii) has had the person's driving privilege revoked for refusal to submit to a chemical
298 test and the refusal is within ten years after:
299 (A) a prior refusal to submit to a chemical test under Section 41-6a-520 ; or
300 (B) a prior conviction for an offense described in Subsection (1)(a)(i) which is not
301 based on the same arrest as the refusal; [or]
302 (e) at any time has been convicted of:
303 (i) automobile homicide under Section 76-5-207 for an offense that occurred on or
304 after July 1, 2005; or

305 (ii) a felony violation of Section 41-6a-502 for an offense that occurred on or after July
306 1, 2005[.]; or
307 (f) at the time of operation of a vehicle is under 21 years of age.
308 (2) For purposes of this section and Section 41-6a-530 , a plea of guilty or no contest to
309 a violation described in Subsection (1)(a)(i) which plea [is] was held in abeyance under Title
310 77, Chapter 2a, Pleas in Abeyance, prior to July 1, 2008, is the equivalent of a conviction, even
311 if the charge has been subsequently reduced or dismissed in accordance with the plea in
312 abeyance agreement.
313 Section 7. Section 41-6a-1406 is amended to read:
314 41-6a-1406. Removal and impoundment of vehicles -- Reporting and notification
315 requirements -- Administrative impound fee -- Refunds -- Possessory lien -- Rulemaking.
316 (1) If a vehicle, vessel, or outboard motor is removed or impounded as provided under
317 Section 41-1a-1101 , 41-6a-527 , 41-6a-1405 , 41-6a-1408 , or 73-18-20.1 by an order of a peace
318 officer or by an order of a person acting on behalf of a law enforcement agency or highway
319 authority, the removal or impoundment of the vehicle, vessel, or outboard motor shall be at the
320 expense of the owner.
321 (2) The vehicle, vessel, or outboard motor under Subsection (1) shall be removed or
322 impounded to:
323 (a) a state impound yard; or
324 (b) if none, a garage, docking area, or other place of safety.
325 (3) The peace officer may move a vehicle, vessel, or outboard motor or cause it to be
326 removed by a tow truck motor carrier that meets standards established:
327 (a) under Title 72, Chapter 9, Motor Carrier Safety Act; and
328 (b) by the department under Subsection (10).
329 (4) (a) Immediately after the removal of the vehicle, vessel, or outboard motor, a report
330 of the removal shall be sent to the Motor Vehicle Division by:
331 (i) the peace officer or agency by whom the peace officer is employed; and
332 (ii) the tow truck operator or the tow truck motor carrier by whom the tow truck
333 operator is employed.
334 (b) The report shall be in a form specified by the Motor Vehicle Division and shall
335 include:

336 (i) the operator's name, if known;
337 (ii) a description of the vehicle, vessel, or outboard motor;
338 (iii) the vehicle identification number or vessel or outboard motor identification
339 number;
340 (iv) the license number or other identification number issued by a state agency;
341 (v) the date, time, and place of impoundment;
342 (vi) the reason for removal or impoundment;
343 (vii) the name of the tow truck motor carrier who removed the vehicle, vessel, or
344 outboard motor; and
345 (viii) the place where the vehicle, vessel, or outboard motor is stored.
346 (c) Until the tow truck operator or tow truck motor carrier reports the removal as
347 required under this Subsection (4), a tow truck motor carrier or impound yard may not:
348 (i) collect any fee associated with the removal; and
349 (ii) begin charging storage fees.
350 (5) (a) Upon receipt of the report, the Motor Vehicle Division shall give notice to the
351 registered owner of the vehicle, vessel, or outboard motor and any lien holder in the manner
352 prescribed by Section 41-1a-114 .
353 (b) The notice shall:
354 (i) state the date, time, and place of removal, the name, if applicable, of the person
355 operating the vehicle, vessel, or outboard motor at the time of removal, the reason for removal,
356 and the place where the vehicle, vessel, or outboard motor is stored;
357 (ii) state that the registered owner is responsible for payment of towing, impound, and
358 storage fees charged against the vehicle, vessel, or outboard motor;
359 (iii) inform the registered owner of the vehicle, vessel, or outboard motor of the
360 conditions that must be satisfied before the vehicle, vessel, or outboard motor is released; and
361 (iv) inform the registered owner and lienholder of the division's intent to sell the
362 vehicle, vessel, or outboard motor, if within 30 days from the date of the removal or
363 impoundment under this section, the owner, lien holder, or the owner's agent fails to make a
&