Fourth Substitute S.B. 15

Representative Paul Ray 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 76-5-207, as last amended by Laws of Utah 2006, Chapter 341
55 76-10-528, as last amended by Laws of Utah 2005, Chapter 2
56 ENACTS:

57 41-6a-502.5, Utah Code Annotated 1953
58
59 Be it enacted by the Legislature of the state of Utah:
60 Section 1. Section 41-6a-501 is amended to read:
61 41-6a-501. Definitions.
62 (1) As used in this part:
63 (a) "Assessment" means an in-depth clinical interview with a licensed mental health
64 therapist:
65 (i) used to determine if a person is in need of:
66 (A) substance abuse treatment that is obtained at a substance abuse program;
67 (B) an educational series; or
68 (C) a combination of Subsections (1)(a)(i)(A) and (B); and
69 (ii) that is approved by the Board of Substance Abuse and Mental Health in accordance
70 with Section 62A-15-105 .
71 (b) "Drug" or "drugs" means:
72 (i) a controlled substance as defined in Section 58-37-2 ;
73 (ii) a drug as defined in Section 58-17b-102 ; or
74 (iii) any substance that, when knowingly, intentionally, or recklessly taken into the
75 human body, can impair the ability of a person to safely operate a motor vehicle.
76 [(b)] (c) "Educational series" means an educational series obtained at a substance abuse
77 program that is approved by the Board of Substance Abuse and Mental Health in accordance
78 with Section 62A-15-105 .
79 [(c)] (d) "Negligence" means simple negligence, the failure to exercise that degree of
80 care that an ordinarily reasonable and prudent person exercises under like or similar
81 circumstances.
82 [(d)] (e) "Screening" means a preliminary appraisal of a person:
83 (i) used to determine if the person is in need of:
84 (A) an assessment; or
85 (B) an educational series; and
86 (ii) that is approved by the Board of Substance Abuse and Mental Health in accordance
87 with Section 62A-15-105 .

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

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

150 (b) The court may enter a conviction of impaired driving immediately under
151 Subsection (1)(b).
152 (4) For purposes of Section 76-3-402 , the entry of a plea to a class B misdemeanor
153 violation of Section 41-6a-502 as impaired driving under this section is a reduction of one
154 degree.
155 (5) The court shall notify the Driver License Division of each conviction entered under
156 this section.
157 (6) (a) The provisions in Subsections 41-6a-505 (1), (2), and (3) that require a
158 sentencing court to order a convicted person to participate in a screening, an assessment, or an
159 educational series, or obtain substance abuse treatment or do a combination of those things,
160 apply to a conviction entered under this section.
161 (b) The court shall render the same order regarding screening, assessment, an
162 educational series, or substance abuse treatment in connection with a first, second, or
163 subsequent conviction under this section as the court would render in connection with applying
164 respectively, the first, second, or subsequent conviction requirements of Subsection
165 41-6a-505 (1), (2), or (3).
166 Section 3. Section 41-6a-510 is amended to read:
167 41-6a-510. Local DUI and related ordinances and reckless driving and impaired
168 driving ordinances -- Consistent with code.
169 (1) An ordinance adopted by a local authority that governs the following matters shall
170 be consistent with the provisions in this code which govern the following matters:
171 (a) a person's operating or being in actual physical control of a motor vehicle while
172 having alcohol in the blood or while under the influence of alcohol or any drug or the
173 combined influence of alcohol and any drug; or
174 (b) in relation to any of the matters described in Subsection (1)(a), the use of:
175 (i) a chemical test or chemical tests;
176 (ii) evidentiary presumptions;
177 (iii) penalties; or
178 (iv) any combination of the matters described in Subsection (1).
179 (2) An ordinance adopted by a local authority that governs reckless driving, impaired
180 driving, or operating a vehicle in willful or wanton disregard for the safety of persons or

181 property shall be consistent with the provisions of this code which govern those matters.
182 Section 4. Section 41-6a-512 is amended to read:
183 41-6a-512. Factual basis for alcohol or drug-related reckless driving plea.
184 (1) (a) The prosecution shall state for the record a factual basis for a plea, including
185 whether or not there had been consumption of alcohol, drugs, or a combination of both, by the
186 defendant in connection with the violation when the prosecution agrees to a plea of guilty or no
187 contest to a charge of a violation of the following in satisfaction of, or as a substitute for, an
188 original charge of a violation of Section 41-6a-502 for an offense committed before July 1,
189 2008:
190 (i) reckless driving under Section 41-6a-528 ; or
191 (ii) an ordinance enacted under Section 41-6a-510 .
192 (b) The statement under Subsection (1)(a) is an offer of proof of the facts that shows
193 whether there was consumption of alcohol, drugs, or a combination of both, by the defendant,
194 in connection with the violation.
195 (2) The court shall advise the defendant before accepting the plea offered under this
196 section of the consequences of a violation of Section 41-6a-528 .
197 (3) The court shall notify the Driver License Division of each conviction of Section
198 41-6a-528 entered under this section.
199 (4) (a) The provisions in Subsections 41-6a-505 (1), (2), and (3) that require a
200 sentencing court to order a convicted person to participate in a screening, an assessment, or an
201 educational series or obtain substance abuse treatment or do a combination of those things,
202 apply to a conviction for a violation of Section 41-6a-528 under Subsection (1).
203 (b) The court shall render the same order regarding screening, assessment, an
204 educational series, or substance abuse treatment in connection with a first, second, or
205 subsequent conviction under Section 41-6a-528 under Subsection (1), as the court would
206 render in connection with applying respectively, the first, second, or subsequent conviction
207 requirements of Subsections 41-6a-505 (1), (2), and (3).
208 Section 5. Section 41-6a-518.2 is amended to read:
209 41-6a-518.2. Interlock restricted driver -- Penalties for operation without ignition
210 interlock system.
211 (1) As used in this section:

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

243 prior to July 1, 2008, is the equivalent of a conviction, even if the charge has been subsequently
244 reduced or dismissed in accordance with the plea in abeyance agreement.
245 (3) An interlock restricted driver that operates or is in actual physical control of a
246 vehicle in this state without an ignition interlock system is guilty of a class B misdemeanor.
247 (4) (a) It is an affirmative defense to a charge of a violation of Subsection (3) if:
248 (i) an interlock restricted driver:
249 (A) operated or was in actual physical control of a vehicle owned by the interlock
250 restricted driver's employer;
251 (B) had given written notice to the employer of the interlock restricted driver's
252 interlock restricted status prior to the operation or actual physical control under Subsection
253 (4)(a)(i); and
254 (C) had on the interlock restricted driver's person or in the vehicle at the time of
255 operation or physical control proof of having given notice to the interlock restricted driver's
256 employer; and
257 (ii) the operation or actual physical control under Subsection (4)(a)(i)(A) was in the
258 scope of the interlock restricted driver's employment.
259 (b) The affirmative defense under Subsection (4)(a) does not apply to:
260 (i) an employer-owned motor vehicle that is made available to an interlock restricted
261 driver for personal use; or
262 (ii) a motor vehicle owned by a business entity that is all or partly owned or controlled
263 by the interlock restricted driver.
264 Section 6. Section 41-6a-529 is amended to read:
265 41-6a-529. Definitions -- Alcohol restricted drivers.
266 (1) As used in this section and Section 41-6a-530 , "alcohol restricted driver" means a
267 person who:
268 (a) within the last two years:
269 (i) has been convicted of:
270 (A) a misdemeanor violation of Section 41-6a-502 ;
271 (B) alcohol, any drug, or a combination of both-related reckless driving under Section
272 41-6a-512 ;
273 (C) impaired driving under Section 41-6a-502.5 ;

274 [(C)] (D) local ordinances similar to Section 41-6a-502 [or], alcohol, any drug, or a
275 combination of both-related reckless driving, or impaired driving adopted in compliance with
276 Section 41-6a-510 ;
277 [(D)] (E) a violation described in Subsections (1)(a)(i)(A) through [(C)] (D), which
278 judgment of conviction is reduced under Section 76-3-402 ; or
279 [(E)] (F) statutes or ordinances previously in effect in this state or in effect in any other
280 state, the United States, or any district, possession, or territory of the United States which
281 would constitute a violation of Section 41-6a-502 [or], alcohol, any drug, or a combination of
282 both-related reckless driving, or impaired driving if committed in this state, including
283 punishments administered under 10 U.S.C. Sec. 815; or
284 (ii) has had the person's driving privilege suspended under Section 53-3-223 for an
285 alcohol-related offense based on an arrest which occurred on or after July 1, 2005;
286 (b) within the last three years has been convicted of a violation of this section or
287 Section 41-6a-518.2 ;
288 (c) within the last five years:
289 (i) has had the person's driving privilege revoked for refusal to submit to a chemical
290 test under Section 41-6a-520 , which refusal occurred on or after July 1, 2005; or
291 (ii) [(A)] has been convicted of [an offense described in Subsection (1)(a)(i); and] a
292 class A misdemeanor violation of Section 41-6a-502 committed on or after July 1, 2008;
293 [(B) at the time of operation or actual physical control of a vehicle the person:]
294 [(I) is 21 years of age or older; and]
295 [(II) has a passenger under 16 years of age in the vehicle;]
296 (d) within the last ten years:
297 (i) has been convicted of an offense described in Subsection (1)(a)(i) which
298 [conviction] offense was committed within ten years of [a prior conviction for an] the
299 commission of a prior offense described in Subsection (1)(a)(i) for which the person was
300 convicted; or
301 (ii) has had the person's driving privilege revoked for refusal to submit to a chemical
302 test and the refusal is within ten years after:
303 (A) a prior refusal to submit to a chemical test under Section 41-6a-520 ; or
304 (B) a prior conviction for an offense described in Subsection (1)(a)(i) which is not

305 based on the same arrest as the refusal; [or]
306 (e) at any time has been convicted of:
307 (i) automobile homicide under Section 76-5-207 for an offense that occurred on or
308 after July 1, 2005; or
309 (ii) a felony violation of Section 41-6a-502 for an offense that occurred on or after July
310 1, 2005[.]; or
311 (f) at the time of operation of a vehicle is under 21 years of age.
312 (2) For purposes of this section and Section 41-6a-530 , a plea of guilty or no contest to
313 a violation described in Subsection (1)(a)(i) which plea [is] was held in abeyance under Title
314 77, Chapter 2a, Pleas in Abeyance, prior to July 1, 2008, is the equivalent of a conviction, even
315 if the charge has been subsequently reduced or dismissed in accordance with the plea in
316 abeyance agreement.
317 Section 7. Section 41-6a-1406 is amended to read:
318 41-6a-1406. Removal and impoundment of vehicles -- Reporting and notification
319 requirements -- Administrative impound fee -- Refunds -- Possessory lien -- Rulemaking.
320 (1) If a vehicle, vessel, or outboard motor is removed or impounded as provided under
321 Section 41-1a-1101 , 41-6a-527 , 41-6a-1405 , 41-6a-1408 , or 73-18-20.1 by an order of a peace
322 officer or by an order of a person acting on behalf of a law enforcement agency or highway
323 authority, the removal or impoundment of the vehicle, vessel, or outboard motor shall be at the
324 expense of the owner.
325 (2) The vehicle, vessel, or outboard motor under Subsection (1) shall be removed or
326 impounded to:
327 (a) a state impound yard; or
328 (b) if none, a garage, docking area, or other place of safety.
329 (3) The peace officer may move a vehicle, vessel, or outboard motor or cause it to be
330 removed by a tow truck motor carrier that meets standards established:
331 (a) under Title 72, Chapter 9, Motor Carrier Safety Act; and
332 (b) by the department under Subsection (10).
333 (4) (a) Immediately after the removal of the vehicle, vessel, or outboard motor, a report
334 of the removal shall be sent to the Motor Vehicle Division by:
335 (i) the peace officer or agency by whom the peace officer is employed; and

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