H.B. 65

1

DRIVING UNDER THE INFLUENCE AMENDMENTS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Nora B. Stephens
5 AN ACT RELATING TO MOTOR VEHICLES; AMENDING THE ILLEGAL PER SE BLOOD
6 ALCOHOL CONCENTRATION FOR DRIVING UNDER THE INFLUENCE, BOATING
7 UNDER THE INFLUENCE, AND AUTOMOBILE HOMICIDE; AND AMENDING
8 IMPLIED CONSENT PROVISIONS.
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 41-6-44.10, as last amended by Chapter 71, Laws of Utah 1996
13 53-3-223, as last amended by Chapter 180, Laws of Utah 1994
14 73-18-12.2, as last amended by Chapter 183, Laws of Utah 1990
15 76-5-207, as last amended by Chapter 161, Laws of Utah 1993
16 Be it enacted by the Legislature of the state of Utah:
17 Section 1. Section 41-6-44 is amended to read:
18 41-6-44. Driving under the influence of alcohol, drugs, or with specified or unsafe
19 blood alcohol concentration -- Measurement of blood or breath alcohol -- Criminal
20 punishment -- Arrest without warrant -- Penalties -- Suspension or revocation of license.
21 (1) As used in this section:
22 (a) "prior conviction" means any conviction for a violation of:
23 (i) this section;
24 (ii) alcohol-related reckless driving under Subsections (9) and (10);
25 (iii) local ordinances similar to this section or alcohol-related reckless driving adopted in
26 compliance with Section 41-6-43;
27 (iv) automobile homicide under Section 76-5-207; or

1 (v) statutes or ordinances in effect in any other state, the United States, or any district,
2 possession, or territory of the United States which would constitute a violation of this section or
3 alcohol-related reckless driving if committed in this state, including punishments administered
4 under 10 U.S.C. 815;
5 (b) a violation of this section includes a violation under a local ordinance similar to this
6 section adopted in compliance with Section 41-6-43; and
7 (c) the standard of negligence is that of simple negligence, the failure to exercise that
8 degree of care that an ordinarily reasonable and prudent person exercises under like or similar
9 circumstances.
10 (2) (a) A person may not operate or be in actual physical control of a vehicle within this
11 state if the person:
12 (i) has a blood or breath alcohol concentration of [.08] .04 grams or greater as shown by
13 a chemical test given within two hours after the alleged operation or physical control; or
14 (ii) is under the influence of alcohol, any drug, or the combined influence of alcohol and
15 any drug to a degree that renders the person incapable of safely operating a vehicle.
16 (b) The fact that a person charged with violating this section is or has been legally entitled
17 to use alcohol or a drug is not a defense against any charge of violating this section.
18 (c) Alcohol concentration in the blood shall be based upon grams of alcohol per 100
19 milliliters of blood, and alcohol concentration in the breath shall be based upon grams of alcohol
20 per 210 liters of breath.
21 (3) A person convicted the first or second time of a violation of Subsection (2) is guilty
22 of a:
23 (a) class B misdemeanor; or
24 (b) class A misdemeanor if the person:
25 (i) has also inflicted bodily injury upon another as a proximate result of having operated
26 the vehicle in a negligent manner; or
27 (ii) had a passenger under 16 years of age in the vehicle at the time of the offense.
28 (4) (a) As part of any sentence imposed the court shall, upon a first conviction, impose a
29 mandatory jail sentence of not less than 48 consecutive hours nor more than 240 hours.
30 (b) The court may, as an alternative to all or part of a jail sentence, require the person to
31 work in a community-service work program for not less than 24 hours nor more than 50 hours.

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1 (c) In addition to the jail sentence or community-service work program, the court shall:
2 (i) order the person to participate in an assessment and educational series at a licensed
3 alcohol or drug dependency rehabilitation facility, as appropriate; and
4 (ii) impose a fine of not less than $700, but not more than $1,000.
5 [(ii)] (d) For a violation committed after July 1, 1993, the court may order the person to
6 obtain treatment at an alcohol or drug dependency rehabilitation facility if the licensed alcohol or
7 drug dependency rehabilitation facility determines that the person has a problem condition
8 involving alcohol or drugs.
9 (5) (a) If a person is convicted under Subsection (2) within six years of a prior conviction
10 under this section, the court shall as part of any sentence impose a mandatory jail sentence of not
11 less than 240 consecutive hours nor more than 720 hours.
12 (b) The court may, as an alternative to all or part of a jail sentence, require the person to
13 work in a community-service work program for not less than 80 hours nor more than 240 hours.
14 (c) In addition to the jail sentence or community-service work program, the court shall:
15 (i) order the person to participate in an assessment and educational series at a licensed
16 alcohol or drug dependency rehabilitation facility, as appropriate; and
17 (ii) impose a fine of not less than $800, but not more than $1,000.
18 (d) The court may order the person to obtain treatment at an alcohol or drug dependency
19 rehabilitation facility.
20 (6) (a) A third or subsequent conviction for a violation committed within six years of two
21 or more prior convictions under this section is a:
22 (i) class A misdemeanor except as provided in Subsection (ii); and
23 (ii) third degree felony if at least:
24 (A) three prior convictions are for violations committed after April 23, 1990; or
25 (B) two prior convictions are for violations committed after July 1, 1996.
26 (b) (i) Under Subsection (a) (i) the court shall as part of any sentence impose a fine of not
27 less than $2,000, but not more than $5,000 and impose a mandatory jail sentence of not less than
28 720 hours nor more than 2,160 hours.
29 (ii) The court may, as an alternative to all or part of a jail sentence, require the person to
30 work in a community-service work program for not less than 240 nor more than 720 hours, but
31 only if the court enters in writing on the record the reason it finds the defendant should not serve

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1 the jail sentence. Enrollment in and completion of an alcohol or drug dependency rehabilitation
2 program approved by the court may be a sentencing alternative to incarceration or community
3 service if the program provides intensive care or inpatient treatment and long-term closely
4 supervised follow-through after the treatment.
5 (iii) In addition to the jail sentence or community-service work program, the court shall
6 order the person to obtain treatment at an alcohol or drug dependency rehabilitation facility.
7 (c) Under Subsection (a)(ii) if the court suspends the execution of a prison sentence and
8 places the defendant on probation the court shall impose:
9 (i) a fine of not less than $1,500;
10 (ii) a mandatory jail sentence of not less than 1,000 hours; and
11 (iii) an order requiring the person to obtain treatment at an alcohol or drug dependency
12 rehabilitation program providing intensive care or inpatient treatment and long-term closely
13 supervised follow-through after treatment.
14 (7) (a) The mandatory portion of any sentence required under this section may not be
15 suspended and the convicted person is not eligible for parole or probation until any sentence
16 imposed under this section has been served. Probation or parole resulting from a conviction for
17 a violation under this section may not be terminated.
18 (b) The department may not reinstate any license suspended or revoked as a result of the
19 conviction under this section, until the convicted person has furnished evidence satisfactory to the
20 department that:
21 (i) all required alcohol or drug dependency assessment, education, treatment, and
22 rehabilitation ordered for a violation committed after July 1, 1993, have been completed;
23 (ii) all fines and fees including fees for restitution and rehabilitation costs assessed against
24 the person have been paid, if the conviction is a second or subsequent conviction for a violation
25 committed within six years of a prior violation; and
26 (iii) the person does not use drugs in any abusive or illegal manner as certified by a
27 licensed alcohol or drug dependency rehabilitation facility, if the conviction is for a third or
28 subsequent conviction for a violation committed within six years of two prior violations committed
29 after July 1, 1993.
30 (8) (a) (i) The provisions in Subsections (4), (5), and (6) that require a sentencing court
31 to order a convicted person to: participate in an assessment and educational series at a licensed

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

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1 (ii) revoke for one year the license of a person convicted of any subsequent offense under
2 Subsection (2) if the violation is committed within a period of six years from the date of the prior
3 violation; and
4 (iii) suspend or revoke the license of a person as ordered by the court under Subsection
5 (12).
6 (b) The department shall subtract from any suspension or revocation period the number
7 of days for which a license was previously suspended under Section 53-3-223, if the previous
8 suspension was based on the same occurrence upon which the record of conviction is based.
9 (12) (a) In addition to any other penalties provided in this section, a court may order the
10 operator's license of a person who is convicted of a violation of Subsection (2) to be suspended
11 or revoked for an additional period of 90 days, 180 days, or one year to remove from the highways
12 those persons who have shown they are safety hazards.
13 (b) If the court suspends or revokes the person's license under this subsection, the court
14 shall prepare and send to the Driver License Division of the Department of Public Safety an order
15 to suspend or revoke that person's driving privileges for a specified period of time.
16 Section 2. Section 41-6-44.10 is amended to read:
17 41-6-44.10. Implied consent to chemical tests for alcohol or drug -- Number of tests
18 -- Refusal -- Warning, report -- Hearing, revocation of license -- Appeal -- Person incapable
19 of refusal -- Results of test available -- Who may give test -- Evidence.
20 (1) (a) A person operating a motor vehicle in this state is considered to have given his
21 consent to a chemical test or tests of his breath, blood, or urine for the purpose of determining
22 whether he was operating or in actual physical control of a motor vehicle while having a blood or
23 breath alcohol content statutorily prohibited under Section 41-6-44 or 53-3-231, while under the
24 influence of alcohol, any drug, or combination of alcohol and any drug under Section 41-6-44, or
25 while having any measurable controlled substance or metabolite of a controlled substance in the
26 person's body in violation of Section 41-6-44.6, if the test is or tests are administered at the
27 direction of a peace officer having reasonable grounds to believe that person to have been
28 operating or in actual physical control of a motor vehicle while having a blood or breath alcohol
29 content statutorily prohibited under Section 41-6-44 or 53-3-231, or while under the influence of
30 alcohol, any drug, or combination of alcohol and any drug under Section 41-6-44, or while having
31 any measurable controlled substance or metabolite of a controlled substance in the person's body

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1 in violation of Section 41-6-44.6.
2 (b) (i) The peace officer determines which of the tests are administered and how many of
3 them are administered.
4 (ii) If an officer requests more than one test, refusal by a person to take one or more
5 requested tests, even though he does submit to any other requested test or tests, is a refusal under
6 this section.
7 (c) (i) A person who has been requested under this section to submit to a chemical test or
8 tests of his breath, blood, or urine, may not select the test or tests to be administered.
9 (ii) The failure or inability of a peace officer to arrange for any specific chemical test is
10 not a defense to taking a test requested by a peace officer, and it is not a defense in any criminal,
11 civil, or administrative proceeding resulting from a person's refusal to submit to the requested test
12 or tests.
13 (2) (a) If the person [has been placed under arrest,] is reasonably believed by a peace
14 officer to have been operating a motor vehicle in violation of Section 41-6-44, 41-6-44.6, or
15 53-3-231, and has then been requested by a peace officer to submit to any one or more of the
16 chemical tests under Subsection (1), and refuses to submit to any chemical test requested, the
17 person shall be warned by the peace officer requesting the test or tests that a refusal to submit to
18 the test or tests [can] shall result in revocation of the person's license to operate a motor vehicle.
19 (b) Following the warning under Subsection (a), if the person does not immediately
20 request that the chemical test or tests as offered by a peace officer be administered a peace officer
21 shall serve on the person, on behalf of the Driver License Division, immediate notice of the Driver
22 License Division's intention to revoke the person's privilege or license to operate a motor vehicle.
23 When the officer serves the immediate notice on behalf of the Driver License Division, he shall:
24 (i) take the Utah license certificate or permit, if any, of the operator;
25 (ii) issue a temporary license effective for only 29 days; and
26 (iii) supply to the operator, on a form approved by the Driver License Division, basic
27 information regarding how to obtain a hearing before the Driver License Division.
28 (c) A citation issued by a peace officer may, if approved as to form by the Driver License
29 Division, serve also as the temporary license.
30 (d) The peace officer shall submit a signed report, within five days after the date of the
31 refusal to submit to the test or tests or the arrest, that he had grounds to believe the [arrested]

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1 person had been operating or was in actual physical control of a motor vehicle while having a
2 blood or breath alcohol content statutorily prohibited under Section 41-6-44 or 53-3-231, while
3 under the influence of alcohol, any drug, or combination of alcohol and any drug under Section
4 41-6-44, or while having any measurable controlled substance or metabolite of a controlled
5 substance in the person's body in violation of Section 41-6-44.6, and that the person had refused
6 to submit to a chemical test or tests under Subsection (1).
7 (e) (i) A person who has been notified of the Driver License Division's intention to revoke
8 his license under this section is entitled to a hearing.
9 (ii) A request for the hearing shall be made in writing within ten days after the date of the
10 arrest.
11 (iii) Upon written request, the division shall grant to the person an opportunity to be heard
12 within 29 days after the date of arrest.
13 (iv) If the person does not make a timely written request for a hearing before the division,
14 his privilege to operate a motor vehicle in the state is revoked beginning on the 30th day after the
15 date of arrest for a period of:
16 (A) one year unless Subsection (B) applies; or
17 (B) 18 months if the person has had a previous license sanction after July 1, 1993, under
18 this section, Section, 41-6-44.6, 53-3-223, or 53-3-231 or a conviction after July 1, 1993, under
19 Section 41-6-44.
20 (f) If a hearing is requested by the person and conducted by the Driver License Division,
21 the hearing shall be documented and shall cover the issues of:
22 (i) whether a peace officer had reasonable grounds to believe that a person was operating
23 a motor vehicle in violation of Section 41-6-44, [44-6-44.6] 41-6-44.6, or 53-3-231; and
24 (ii) whether the person refused to submit to the test.
25 (g) (i) In connection with the hearing, the division or its authorized agent:
26 (A) may administer oaths and may issue subpoenas for the attendance of witnesses and
27 the production of relevant books and papers; and
28 (B) shall issue subpoenas for the attendance of necessary peace officers.
29 (ii) The division shall pay witness fees and mileage from the Transportation Fund in
30 accordance with the rates established in Section 21-5-4.
31 (h) If after a hearing, the Driver License Division determines that the person was requested

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1 to submit to a chemical test or tests and refused to submit to the test or tests, or if the person fails
2 to appear before the Driver License Division as required in the notice, the Driver License Division
3 shall revoke his license or permit to operate a motor vehicle in Utah beginning on the date the
4 hearing is held for a period of:
5 (i) (A) one year unless Subsection (B) applies; or
6 (B) 18 months if the person has had a previous license sanction after July 1, 1993, under
7 this section, Section 53-3-223, 41-6-44.6, or 53-3-231 or a conviction after July 1, 1993, under
8 Section 41-6-44.
9 (ii) The Driver License Division shall also assess against the person, in addition to any fee
10 imposed under Subsection 53-3-205(14), a fee under Section 53-3-105, which shall be paid before
11 the person's driving privilege is reinstated, to cover administrative costs.
12 (iii) The fee shall be cancelled if the person obtains an unappealed court decision
13 following a proceeding allowed under this subsection that the revocation was improper.
14 (i) (i) Any person whose license has been revoked by the Driver License Division under
15 this section may seek judicial review.
16 (ii) Judicial review of an informal adjudicative proceeding is a trial. Venue is in the district
17 court in the county in which the person resides.
18 (3) Any person who is dead, unconscious, or in any other condition rendering him
19 incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the
20 consent provided for in Subsection (1), and the test or tests may be administered whether the
21 person has been arrested or not.
22 (4) Upon the request of the person who was tested, the results of the test or tests shall be
23 made available to him.
24 (5) (a) Only a physician, registered nurse, practical nurse, or person authorized under
25 Section 26-1-30, acting at the request of a peace officer, may withdraw blood to determine the
26 alcoholic or drug content. This limitation does not apply to taking a urine or breath specimen.
27 (b) Any physician, registered nurse, practical nurse, or person authorized under Section
28 26-1-30 who, at the direction of a peace officer, draws a sample of blood from any person whom
29 a peace officer has reason to believe is driving in violation of this chapter, or hospital or medical
30 facility at which the sample is drawn, is immune from any civil or criminal liability arising from
31 drawing the sample, if the test is administered according to standard medical practice.

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1 (6) (a) The person to be tested may, at his own expense, have a physician of his own
2 choice administer a chemical test in addition to the test or tests administered at the direction of a
3 peace officer.
4 (b) The failure or inability to obtain the additional test does not affect admissibility of the
5 results of the test or tests taken at the direction of a peace officer, or preclude or delay the test or
6 tests to be taken at the direction of a peace officer.
7 (c) The additional test shall be subsequent to the test or tests administered at the direction
8 of a peace officer.
9 (7) For the purpose of determining whether to submit to a chemical test or tests, the person
10 to be tested does not have the right to consult an attorney or have an attorney, physician, or other
11 person present as a condition for the taking of any test.
12 (8) If a person [under arrest] refuses to submit to a chemical test or tests or any additional
13 test under this section, evidence of any refusal is admissible in any civil or criminal action or
14 proceeding arising out of acts alleged to have been committed while the person was operating or
15 in actual physical control of a motor vehicle while under the influence of alcohol, any drug,
16 combination of alcohol and any drug, or while having any measurable controlled substance or
17 metabolite of a controlled substance in the person's body.
18 Section 3. Section 53-3-223 is amended to read:
19 53-3-223. Chemical test for driving under the influence -- Temporary license --
20 Hearing and decision -- Suspension and fee -- Judicial review.
21 (1) (a) If a peace officer has reasonable grounds to believe that a person may be violating
22 or has violated Section 41-6-44, prohibiting the operation of a vehicle with a certain blood or
23 breath alcohol concentration and driving under the influence of any drug, alcohol, or combination
24 of a drug and alcohol or while having any measurable controlled substance or metabolite of a
25 controlled substance in the person's body in violation of Section 41-6-44.6, the peace officer may[,
26 in connection with arresting the person,] request that the person submit to a chemical test or tests
27 to be administered in compliance with the standards under Section 41-6-44.10.
28 (b) In this section, a reference to Section 41-6-44 includes any similar local ordinance
29 adopted in compliance with Subsection 41-6-43 (1).
30 (2) The peace officer shall advise a person prior to the person's submission to a chemical
31 test that a test result indicating a violation of Section 41-6-44 or 41-6-44.6 shall, and the existence

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1 of a blood alcohol content sufficient to render the person incapable of safely driving a motor
2 vehicle may, result in suspension or revocation of the person's license to drive a motor vehicle.
3 (3) If the person submits to a chemical test and the test results indicate a blood or breath
4 alcohol content in violation of Section 41-6-44 or 41-6-44.6, or if the officer makes a
5 determination, based on reasonable grounds, that the person is otherwise in violation of Section
6 41-6-44, the officer directing administration of the test or making the determination shall serve on
7 the person, on behalf of the division, immediate notice of the division's intention to suspend the
8 person's license to drive a motor vehicle.
9 (4) (a) When the officer serves immediate notice on behalf of the division he shall:
10 (i) take the Utah license certificate or permit, if any, of the driver;
11 (ii) issue a temporary license certificate effective for only 29 days; and
12 (iii) supply to the driver, on a form to be approved by the division, basic information
13 regarding how to obtain a prompt hearing before the division.
14 (b) A citation issued by the officer may, if approved as to form by the division, serve also
15 as the temporary license certificate.
16 (5) The peace officer serving the notice shall send to the division within five days after the
17 date of arrest and service of the notice:
18 (a) the person's license certificate;
19 (b) a copy of the citation issued for the offense;
20 (c) a signed report on a form approved by the division indicating the chemical test results,
21 if any; and
22 (d) any other basis for the officer's determination that the person has violated Section
23 41-6-44 or 41-6-44.6.
24 (6) (a) Upon written request, the division shall grant to the person an opportunity to be
25 heard within 29 days after the date of arrest. The request to be heard shall be made within ten days
26 of the date of the arrest.
27 (b) A hearing, if held, shall be before the division in the county in which the arrest
28 occurred, unless the division and the person agree that the hearing may be held in some other
29 county.
30 (c) The hearing shall be documented and shall cover the issues of:
31 (i) whether a peace officer had reasonable grounds to believe the person was driving a

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1 motor vehicle in violation of Section 41-6-44 or 41-6-44.6;
2 (ii) whether the person refused to submit to the test; and
3 (iii) the test results, if any.
4 (d) (i) In connection with a hearing the division or its authorized agent:
5 (A) may administer oaths and may issue subpoenas for the attendance of witnesses and
6 the production of relevant books and papers;
7 (B) may issue subpoenas for the attendance of necessary peace officers.
8 (ii) The division shall pay witness fees and mileage from the Transportation Fund in
9 accordance with the rates established in Section 21-5-4.
10 (e) One or more members of the division may conduct the hearing.
11 (f) Any decision made after a hearing before any number of the members of the division
12 is as valid as if made after a hearing before the full membership of the division.
13 (g) After the hearing, the division shall order whether the person's license to drive a motor
14 vehicle is suspended or not.
15 (h) If the person for whom the hearing is held fails to appear before the division as
16 required in the notice, the division shall order whether the person's license to drive a motor vehicle
17 is suspended or not.
18 (7) (a) A first suspension, whether ordered or not challenged under this subsection, is for
19 a period of 90 days, beginning on the 30th day after the date of the arrest.
20 (b) A second or subsequent suspension under this subsection is for a period of one year,
21 beginning on the 30th day after the date of arrest.
22 (8) (a) The division shall assess against a person, in addition to any fee imposed under
23 Subsection 53-3-205(14) for driving under the influence, a fee under Section 53-3-105 to cover
24 administrative costs, which shall be paid before the person's driving privilege is reinstated. This
25 fee shall be cancelled if the person obtains an unappealed division hearing or court decision that
26 the suspension was not proper.
27 (b) A person whose license has been suspended by the division under this subsection may
28 file a petition within 30 days after the suspension for a hearing on the matter which, if held, is
29 governed by Section 53-3-224.
30 Section 4. Section 73-18-12.2 is amended to read:
31 73-18-12.2. Boating under the influence of alcohol or drugs or with high blood or

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1 breath alcohol content -- Criminal punishment -- Arrest without a warrant.
2 (1) (a) It is unlawful and punishable as provided in this section for any person to operate
3 a vessel on the waters of this state if:
4 (i) the person has a blood or breath alcohol concentration of [.08] .04 grams or greater, as
5 shown by any chemical test given within two hours after the alleged operation; or
6 (ii) the person is under the influence of alcohol or any drug or the combined influence of
7 alcohol and any drug to a degree which renders the person incapable of safely operating a vessel.
8 (b) The fact that a person charged with violating this section is or has been legally entitled
9 to use alcohol or a drug is not a defense against any charge of violating this section.
10 (2) Alcohol concentration in the blood shall be based upon grams of alcohol per 100
11 milliliters of blood, and alcohol concentration in the breath shall be based upon grams of alcohol
12 per 210 liters of breath.
13 (3) For the purposes of this section, the standard of negligence is that of simple negligence,
14 the failure to exercise that degree of care which an ordinarily reasonable and prudent person
15 exercises under like or similar circumstances.
16 (4) (a) Every person who is convicted of a violation of Subsection (1) is guilty of a class
17 B misdemeanor, however, if the person has inflicted a bodily injury upon another as a proximate
18 result of having operated the vessel in a negligent manner, he is guilty of a class A misdemeanor.
19 (b) No portion of any sentence imposed under Subsection (4)(a) may be suspended.
20 (5) In addition to the penalties provided for in Subsection (4), the court shall, upon a first
21 conviction of a violation of this section:
22 (a) impose a mandatory jail sentence of not less than 48 consecutive hours nor more than
23 240 hours, with emphasis on serving in the drunk tank of the jail, or require the person to work in
24 a community-service work program for not less than 24 nor more than 50 hours; and
25 (b) order the person to participate in an assessment and educational series at a licensed
26 alcohol rehabilitation facility.
27 (6) Upon a second conviction within five years after a first conviction under this section
28 or under a local ordinance similar to this section adopted in compliance with Section 73-18-12.1,
29 the court shall, in addition to the penalties provided for in Subsection (4):
30 (a) impose a mandatory jail sentence of not less than 240 consecutive hours nor more than
31 720 hours, with emphasis on serving in the drunk tank of the jail, or require the person to work in

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1 a community-service work program for not less than 80 nor more than 240 hours; and
2 (b) order the person to participate in an assessment and educational series at a licensed
3 alcohol rehabilitation facility. The court may, in its discretion, order the person to obtain treatment
4 at an alcohol rehabilitation facility.
5 (7) Upon a subsequent conviction within five years after a second conviction under this
6 section or under a local ordinance similar to this section adopted in compliance with Section
7 73-18-12.1, the court shall, in addition to the penalties provided for in Subsection (4):
8 (a) impose a mandatory jail sentence of not less than 720 consecutive hours nor more than
9 2,160 hours with emphasis on serving in the drunk tank of the jail, or require the person to work
10 in a community-service work program for not less than 240 nor more than 720 hours; and
11 (b) order the person to obtain treatment at an alcohol rehabilitation facility.
12 (8) A person convicted of a violation of this section is not eligible for parole or probation
13 until any sentence imposed under this section has been served. Probation or parole resulting from
14 a conviction for a violation of this section or a local ordinance similar to this section adopted in
15 compliance with Section 73-18-12.1 may not be terminated until all fines and fees, including fees
16 for restitution and rehabilitation costs, assessed against the convicted person, have been paid.
17 (9) (a) The provisions in Subsections (5), (6), and (7) requiring a sentencing court to order
18 a convicted person to participate in an assessment and educational series at a licensed alcohol
19 rehabilitation facility or to obtain treatment at an alcohol rehabilitation facility apply to a
20 conviction for a violation of Section 73-18-12 that qualifies as a prior offense under Subsection
21 (10). A court shall render the same order regarding education or treatment at an alcohol
22 rehabilitation facility for a first, second, or subsequent conviction under Section 73-18-12 that
23 qualifies as a prior offense under Subsection (10), as the court would render for a first, second, or
24 subsequent conviction of a violation of Subsection (1).
25 (b) For purposes of determining whether a conviction under Section 73-18-12 which
26 qualified as a prior conviction under Subsection (10) is a first, second, or subsequent conviction
27 under this Subsection (9), a previous conviction under either Section 73-18-12 or 73-18-12.2 is
28 considered a prior conviction. Any alcohol rehabilitation program and any community-based or
29 other education program provided for in this section shall be approved by the Department of
30 Human Services.
31 (10) (a) When the prosecution agrees to a plea of guilty or no contest to a charge of a

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1 violation of Section 73-18-12 or of a local ordinance similar to that section adopted in compliance
2 with Section 73-18-12.1, the prosecution shall state for the record a factual basis for the plea,
3 including whether there had been consumption of alcohol or drugs by the defendant in connection
4 with the offense. The statement shall be an offer of proof of the facts which shows whether there
5 was consumption of alcohol or drugs in connection with the offense.
6 (b) The court shall advise the defendant before accepting the plea offered under this
7 subsection of the consequences of a violation of Section 73-18-12 as follows. If the court accepts
8 the defendant's plea of guilty or no contest to a charge of violating Section 73-18-12, and the
9 prosecutor states for the record that there was consumption of alcohol or drugs by the defendant
10 in connection with the offense, the resulting conviction is a prior offense for the purposes of
11 Subsection (9).
12 (11) A peace officer may, without a warrant, arrest a person for a violation of this section
13 when the peace officer has probable cause to believe the violation has occurred, although not in
14 his presence, and if the peace officer has probable cause to believe that the violation was
15 committed by the person.
16 Section 5. Section 76-5-207 is amended to read:
17 76-5-207. Automobile homicide.
18 (1) (a) Criminal homicide is automobile homicide, a third degree felony, if the actor
19 operates a motor vehicle while having a blood alcohol content of [.08%] .04% or greater by
20 weight, or while under the influence of alcohol, any drug, or the combined influence of alcohol
21 and any drug, to a degree that renders the actor incapable of safely operating the vehicle, and
22 causes the death of another by operating the vehicle in a negligent manner.
23 (b) For the purpose of this subsection, "negligent" means simple negligence, the failure
24 to exercise that degree of care that reasonable and prudent persons exercise under like or similar
25 circumstances.
26 (2) (a) Criminal homicide is automobile homicide, a second degree felony, if the actor
27 operates a motor vehicle while having a blood alcohol content of [.08%] .04% or greater by
28 weight, or while under the influence of alcohol, any drug, or the combined influence of alcohol
29 and any drug, to a degree that renders the actor incapable of safely operating the vehicle, and
30 causes the death of another by operating the motor vehicle in a criminally negligent manner.
31 (b) For the purpose of this subsection, "criminally negligent" means criminal negligence

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1 as defined by Subsection 76-2-103 (4).
2 (3) The standards for chemical breath analysis as provided by Section 41-6-44.3 and the
3 provisions for the admissibility of chemical test results as provided by Section 41-6-44.5 apply to
4 determination and proof of blood alcohol content under this section.
5 (4) Percent by weight of alcohol in the blood is based upon grams of alcohol per one
6 hundred cubic centimeters of blood.
7 (5) The fact that a person charged with violating this section is on or has been legally
8 entitled to use alcohol or a drug is not a defense to any charge of violating this section.
9 (6) Evidence of a defendant's blood or breath alcohol content or drug content is admissible
10 except when prohibited by Rules of Evidence or the constitution.
11 (7) For purposes of this section, "motor vehicle" means any self-propelled vehicle and
12 includes any automobile, truck, van, motorcycle, train, engine, watercraft, or aircraft.




Legislative Review Note
as of 1-3-97 10:04 AM

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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