H.B. 226

1

DRIVER LICENSE REINSTATEMENT
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Gerry A. Adair
5 AN ACT RELATING TO MOTOR VEHICLES; S AMENDING CERTAIN DUI PENALTIES; s
5a REQUIRING DRUG DEPENDENCY
6 ASSESSMENT, EDUCATION, REHABILITATION, OR TREATMENT FOR A
7 CONVICTION OF DRIVING WITH A CONTROLLED SUBSTANCE IN THE BODY; S [AND] s
8 REQUIRING CERTAIN COMPLETION PRIOR TO DRIVER LICENSE REINSTATEMENT
8a S ; AND MAKING TECHNICAL AMENDMENTS s .
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 41-6-44, as last amended by Chapters 71, 220 and 223, Laws of Utah 1996
12 41-6-44.6, as enacted by Chapter 180, Laws of Utah 1994
12a S 62A-8-103, AS LAST AMENDED BY CHAPTER 181, LAWS OF UTAH 1990
12b 62A-8-302, AS LAST AMENDED BY CHAPTER 268, LAWS OF UTAH 1991 s
13 Be it enacted by the Legislature of the state of Utah:
14 Section 1. Section 41-6-44 is amended to read:
15 41-6-44. Driving under the influence of alcohol, drugs, or with specified or unsafe
16 blood alcohol concentration -- Measurement of blood or breath alcohol -- Criminal
17 punishment -- Arrest without warrant -- Penalties -- Suspension or revocation of license.
18 (1) As used in this section:
19 (a) "prior conviction" means any conviction for a violation of:
20 (i) this section;
21 (ii) alcohol-related reckless driving under Subsections (9) and (10);
22 (iii) local ordinances similar to this section or alcohol-related reckless driving adopted in
23 compliance with Section 41-6-43;
24 (iv) automobile homicide under Section 76-5-207; or
25 (v) statutes or ordinances in effect in any other state, the United States, or any district,
26 possession, or territory of the United States which would constitute a violation of this section or
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1 under 10 U.S.C. 815;
2 (b) a violation of this section includes a violation under a local ordinance similar to this
3 section adopted in compliance with Section 41-6-43; and
4 (c) the standard of negligence is that of simple negligence, the failure to exercise that
5 degree of care that an ordinarily reasonable and prudent person exercises under like or similar
6 circumstances.
7 (2) (a) A person may not operate or be in actual physical control of a vehicle within this
8 state if the person:
9 (i) has a blood or breath alcohol concentration of .08 grams or greater as shown by a
10 chemical test given within two hours after the alleged operation or physical control; or
11 (ii) is under the influence of alcohol, any drug, or the combined influence of alcohol and
12 any drug to a degree that renders the person incapable of safely operating a vehicle.
13 (b) The fact that a person charged with violating this section is or has been legally entitled
14 to use alcohol or a drug is not a defense against any charge of violating this section.
15 (c) Alcohol concentration in the blood shall be based upon grams of alcohol per 100
16 milliliters of blood, and alcohol concentration in the breath shall be based upon grams of alcohol
17 per 210 liters of breath.
18 (3) A person convicted the first or second time of a violation of Subsection (2) is guilty
19 of a:
20 (a) class B misdemeanor; or
21 (b) class A misdemeanor if the person:
22 (i) has also inflicted bodily injury upon another as a proximate result of having operated
23 the vehicle in a negligent manner; or
24 (ii) had a passenger under 16 years of age in the vehicle at the time of the offense.
25 (4) (a) As part of any sentence imposed the court shall, upon a first conviction, impose a
26 mandatory jail sentence of not less than 48 consecutive hours S [nor more than 240 hours] s.
27 h [ [ ] (b) The court may, as an alternative to all or part of a jail sentence, require the person to
28 work in a community-service work program for not less than 24 hours S [ nor more than 50 hours] s . [ ] ] h
29 (c) In addition to the jail sentence h [ [ ] or community-service work program [ ] ] h , the court
29a shall:
30 (i) order the person to participate in an assessment and educational series at a licensed
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1 (ii) impose a fine of not less than $700 S , but not more than $1,000 s .
2 [(ii)] (d) For a violation committed after July 1, 1993, the court may order the person to
3 obtain treatment at an alcohol or drug dependency rehabilitation facility if the licensed alcohol or
4 drug dependency rehabilitation facility determines that the person has a problem condition
5 involving alcohol or drugs.
6 (5) (a) If a person is convicted under Subsection (2) within six years of a prior conviction
7 under this section, the court shall as part of any sentence impose a mandatory jail sentence of not
8 less than 240 consecutive hours S [nor more than 720 hours] s .
9 h [ [ ](b) The court may, as an alternative to all or part of a jail sentence, require the person to
10 work in a community-service work program for not less than 80 hours S [nor more than 240 hours] s . [ ] ] h
11 (c) In addition to the jail sentence h [ [ ] or community-service work program [ ] ] h , the court
11a shall:
12 (i) order the person to participate in an assessment and educational series at a licensed
13 alcohol or drug dependency rehabilitation facility, as appropriate; and
14 (ii) impose a fine of not less than $800 S [, but not more than $1,000] s .
15 (d) The court may order the person to obtain treatment at an alcohol or drug dependency
16 rehabilitation facility.
17 (6) (a) A third or subsequent conviction for a violation committed within six years of two
18 or more prior convictions under this section is a:
19 (i) class A misdemeanor except as provided in Subsection (ii); and
20 (ii) third degree felony if at least:
21 (A) three prior convictions are for violations committed after April 23, 1990; or
22 (B) two prior convictions are for violations committed after July 1, 1996.
23 (b) (i) Under Subsection (a) (i) the court shall as part of any sentence impose a fine of not
24 less than $2,000 S [, but not more than $5,000] s and impose a mandatory jail sentence of not less
24a than
25 720 hours S [nor more than 2,160 hours] s .
26 (ii) The court may, as an alternative to all or part of a jail sentence, require the person to
27 work in a community-service work program for not less than 240 S [nor more than 720] s s hours, but
28 only if the court enters in writing on the record the reason it finds the defendant should not serve
29 the jail sentence. Enrollment in and completion of an alcohol or drug dependency rehabilitation
30 program approved by the court may be a sentencing alternative to incarceration or community
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1 supervised follow-through after the treatment.
2 (iii) In addition to the jail sentence or community-service work program, the court shall
3 order the person to obtain treatment at an alcohol or drug dependency rehabilitation facility.
4 (c) Under Subsection (a)(ii) if the court suspends the execution of a prison sentence and
5 places the defendant on probation the court shall impose:
6 (i) a fine of not less than $1,500;
7 (ii) a mandatory jail sentence of not less than 1,000 hours; and
8 (iii) an order requiring the person to obtain treatment at an alcohol or drug dependency
9 rehabilitation program providing intensive care or inpatient treatment and long-term closely
10 supervised follow-through after treatment.
11 (7) (a) The mandatory portion of any sentence required under this section may not be
12 suspended and the convicted person is not eligible for parole or probation until any sentence
13 imposed under this section has been served. Probation or parole resulting from a conviction for
14 a violation under this section may not be terminated.
15 (b) The department may not reinstate any license suspended or revoked as a result of the
16 conviction under this section, until the convicted person has furnished evidence satisfactory to the
17 department that:
18 (i) all required alcohol or drug dependency assessment, education, treatment, and
19 rehabilitation ordered for a violation committed after July 1, 1993, have been completed;
20 (ii) all fines and fees including fees for restitution and rehabilitation costs assessed against
21 the person have been paid, if the conviction is a second or subsequent conviction for a violation
22 committed within six years of a prior violation; and
23 (iii) the person does not use drugs in any abusive or illegal manner as certified by a
24 licensed alcohol or drug dependency rehabilitation facility, if the conviction is for a third or
25 subsequent conviction for a violation committed within six years of two prior violations committed
26 after July 1, 1993.
27 (8) (a) (i) The provisions in Subsections (4), (5), and (6) that require a sentencing court
28 to order a convicted person to: participate in an assessment and educational series at a licensed
29 alcohol or drug dependency rehabilitation facility; obtain, in the discretion of the court, treatment
30 at an alcohol or drug dependency rehabilitation facility; obtain, mandatorily, treatment at an
31 alcohol or drug dependency rehabilitation facility; or do a combination of those things, apply to

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1 a conviction for a violation of Section 41-6-44.6 or 41-6-45 under Subsection (9).
2 (ii) The court shall render the same order regarding education or treatment at an alcohol
3 or drug dependency rehabilitation facility, or both, in connection with a first, second, or
4 subsequent conviction under Section 41-6-44.6 or 41-6-45 under Subsection (9), as the court
5 would render in connection with applying respectively, the first, second, or subsequent conviction
6 requirements of Subsections (4), (5), and (6).
7 (b) Any alcohol or drug dependency rehabilitation program and any community-based or
8 other education program provided for in this section shall be approved by the Department of
9 Human Services.
10 (9) (a) (i) When the prosecution agrees to a plea of guilty or no contest to a charge of a
11 violation of Section 41-6-45 [or], of an ordinance enacted under Section 41-6-43, or of 41-6-44.6
12 in satisfaction of, or as a substitute for, an original charge of a violation of this section, the
13 prosecution shall state for the record a factual basis for the plea, including whether or not there had
14 been consumption of alcohol, drugs, or a combination of both, by the defendant in connection with
15 the violation.
16 (ii) The statement is an offer of proof of the facts that shows whether there was
17 consumption of alcohol, drugs, or a combination of both, by the defendant, in connection with the
18 violation.
19 (b) The court shall advise the defendant before accepting the plea offered under this
20 subsection of the consequences of a violation of Section 41-6-44.6, or of 41-6-45.
21 (c) The court shall notify the department of each conviction of Section 41-6-44.6 or
22 41-6-45 entered under this subsection.
23 (10) A peace officer may, without a warrant, arrest a person for a violation of this section
24 when the officer has probable cause to believe the violation has occurred, although not in his
25 presence, and if the officer has probable cause to believe that the violation was committed by the
26 person.
27 (11) (a) The Department of Public Safety shall:
28 (i) suspend for h [ [ ] 90 [ ] ] [ 180 ] h days the operator's license of a person convicted for
28a the first time under
29 Subsection (2);
30 (ii) revoke for h [ [ ] one [ ] ] [ TWO ] h year the license of a person convicted of any
30a subsequent offense under
31 Subsection (2) if the violation is committed within a period of six years from the date of the prior

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1 violation; and
2 (iii) suspend or revoke the license of a person as ordered by the court under Subsection
3 (12).
4 (b) The department shall subtract from any suspension or revocation period the number
5 of days for which a license was previously suspended under Section 53-3-223, if the previous
6 suspension was based on the same occurrence upon which the record of conviction is based.
7 (12) (a) In addition to any other penalties provided in this section, a court may order the
8 operator's license of a person who is convicted of a violation of Subsection (2) to be suspended
9 or revoked for an additional period of 90 days, 180 days, or one year to remove from the highways
10 those persons who have shown they are safety hazards.
11 (b) If the court suspends or revokes the person's license under this subsection, the court
12 shall prepare and send to the Driver License Division of the Department of Public Safety an order
13 to suspend or revoke that person's driving privileges for a specified period of time.
14 Section 2. Section 41-6-44.6 is amended to read:
15 41-6-44.6. Definitions -- Driving with any measurable controlled substance in the
16 body -- Penalties -- Arrest without warrant.
17 (1) As used in this section:
18 (a) "Controlled substance" means any substance scheduled under Section 58-37-4.
19 (b) "Practitioner" has the same meaning as provided in Section 58-37-2.
20 (c) "Prescribe" has the same meaning as provided in Section 58-37-2.
21 (d) "Prescription" has the same meaning as provided in Section 58-37-2.
22 (2) In cases not amounting to a violation of Section 41-6-44, a person may not operate or
23 be in actual physical control of a motor vehicle within this state if the person has any measurable
24 controlled substance or metabolite of a controlled substance in the person's body.
25 (3) It is an affirmative defense to prosecution under this section that the controlled
26 substance was involuntarily ingested by the accused or prescribed by a practitioner for use by the
27 accused.
28 (4) A person convicted of a violation of Subsection (2) is guilty of a class B misdemeanor.
29 (5) A peace officer may, without a warrant, arrest a person for a violation of this section
30 when the officer has probable cause to believe the violation has occurred, although not in the
31 officer's presence, and if the officer has probable cause to believe that the violation was committed

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1 by the person.
2 (6) The Driver License Division shall:
3 (a) suspend, for h [[ ] 90 [ ]] [ 180 ] h days, the driver license of a person convicted under
3a Subsection (2); and
4 (b) revoke, for h [[ ] one [ ]] [ TWO ] h year, the driver license of a person convicted of a
4a second or subsequent
5 offense under Subsection (2) if the violation is committed within a period of six years after the date
6 of the prior violation.
7 (7) The Driver License Division may not reinstate any license suspended or revoked as
8 a result of a conviction under this section, until the convicted person has complied with the
9 requirements of Subsection 41-6-44(7)(b).
9a S Section 3. Section 62A-8-103 is amended to read:
9b 62A-8-103 . Division -- Creation -- Responsibilities.
9c (1) There is created the Division of Substance Abuse within the department, under the
9d administration and general supervision of the executive director, and, with regard to its programs, under
9e the policy direction of the board. The division is the substance abuse authority for this state.
9f (2) The division shall:
9g (a) educate the general public regarding the nature and consequences of substance
9h abuse by promoting school and community-based prevention programs;
9i (b) render support and assistance to public schools through approved school-based
9j substance abuse education programs aimed at prevention of substance abuse;
9k (c) promote or establish programs for the prevention of substance abuse within the
9l community setting through community-based prevention programs;
9m (d) promote or establish cooperative relationships with courts, hospitals, clinics,
9n medical and social agencies, public health authorities, law enforcement agencies, education and
9o research organizations, and other related groups;
9p (e) provide consultation and other assistance to public and private agencies and groups;
9q (f) cooperate and assist other organizations and private treatment centers for substance
9r abusers, by providing them with essential materials for furthering programs of prevention and
9s rehabilitation of actual and potential substance abusers;
9t (g) promote or conduct research on substance abuse issues, and submit to the governor
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9u and the Legislature recommendations for changes in policy and legislation;
9v (h) receive and disburse state and federal funds for substance abuse services;
9w (i) promote or establish programs for education and certification of instructors to
9x educate persons convicted of driving under the influence of [ intoxicating liquor ]
9y ALCOHOL OR DRUGS OR DRIVING WITH ANY MEASURABLE CONTROLLED SUBSTANCE IN THE
9z BODY ;
9aa (j) monitor and evaluate programs provided by local substance abuse authorities, and
9bb examine expenditures of any local, state, and federal funds;
9cc (k) contract with local substance abuse authorities to provide a comprehensive
9dd continuum of services in accordance with board policy and the local plan;
9ee (l) contract with private and public entities for special statewide or nonclinical services
9ff according to board policy;
9gg (m) review and approve plans submitted by local substance abuse authorities in order to
9hh assure a statewide comprehensive continuum of substance abuse services;
9ii (n) monitor and assure compliance with board policy; and
9jj (o) withhold funds from local substance abuse authorities and public and private
9kk providers for contract noncompliance.
9ll (3) In carrying out its duties and responsibilities, the division may not duplicate
9mm treatment or educational facilities that exist in other divisions or departments of the state, but shall work
9nn in conjunction with those divisions and departments in rendering the treatment or educational services
9oo that those divisions and departments are competent and able to provide.
9pp (4) (a) The division may accept in the name of and on behalf of the state donations, gifts,
9qq devises, or bequests of real or personal property or services to be used as specified by the donor.
9rr (b) Those donations, gifts, devises, or bequests shall be used by the division in
9ss performing its powers and duties. Any money so obtained shall be considered private nonlapsing funds
9tt and shall be deposited into an interest-bearing expendable trust fund to be used by the division for
9uu substance abuse services. The state treasurer may invest the fund and all interest shall remain with the
9vv fund.
9ww Section 4. Section 62A-8-302 is amended to read:
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9xx 62A-8-302 . Penalty for DUI conviction -- Amounts.
9yy (1) Courts of record and not of record may at sentencing assess against the defendant,
9zz in addition to any fine, an amount that will fully compensate agencies that treat the defendant for their
9aaa costs in each case where a defendant is convicted of violating:
9bbb (a) Section 41-6-44 or 41-6-44.6 ;
9ccc (b) a criminal prohibition resulting from a plea bargain after an original charge of
9ddd violating Section 41-6-44; or
9eee (c) an ordinance that complies with the requirements of Subsection 41-6-43 (1).
9fff (2) The fee assessed shall be collected by the court or an entity appointed by the court.





Legislative Review Note
as of 1-3-97 3:52 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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