First Substitute H.B. 65

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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.
8 This act affects sections of Utah Code Annotated 1953 as follows:
9 AMENDS:
10 41-6-44, as last amended by Chapters 71, 220 and 223, Laws of Utah 1996
11 73-18-12.2, as last amended by Chapter 183, Laws of Utah 1990
12 76-5-207, as last amended by Chapter 161, Laws of Utah 1993
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
27 alcohol-related reckless driving if committed in this state, including punishments administered

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] .04 grams or greater as shown by
10 a 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 nor more than 240 hours.
27 (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 nor more than 50 hours.
29 (c) In addition to the jail sentence or community-service work program, the court shall:
30 (i) order the person to participate in an assessment and educational series at a licensed
31 alcohol or drug dependency rehabilitation facility, as appropriate; and

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1 (ii) impose a fine of not less than $700, but not more than $1,000.
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 nor more than 720 hours.
9 (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 nor more than 240 hours.
11 (c) In addition to the jail sentence or community-service work program, the court 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, but not more than $1,000.
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, but not more than $5,000 and impose a mandatory jail sentence of not less than
25 720 hours nor more than 2,160 hours.
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 nor more than 720 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
31 service if the program provides intensive care or inpatient treatment and long-term closely

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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 41-6-45 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 41-6-45 under Subsection (9), as the court would render in
5 connection with applying respectively, the first, second, or subsequent conviction requirements
6 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 in satisfaction of,
12 or as a substitute for, an original charge of a violation of this section, the prosecution shall state
13 for the record a factual basis for the plea, including whether or not there had been consumption of
14 alcohol, drugs, or a combination of both, by the defendant in connection with the violation.
15 (ii) The statement is an offer of proof of the facts that shows whether there was
16 consumption of alcohol, drugs, or a combination of both, by the defendant, in connection with the
17 violation.
18 (b) The court shall advise the defendant before accepting the plea offered under this
19 subsection of the consequences of a violation of Section 41-6-45.
20 (c) The court shall notify the department of each conviction of Section 41-6-45 entered
21 under this subsection.
22 (10) A peace officer may, without a warrant, arrest a person for a violation of this section
23 when the officer has probable cause to believe the violation has occurred, although not in his
24 presence, and if the officer has probable cause to believe that the violation was committed by the
25 person.
26 (11) (a) The Department of Public Safety shall:
27 (i) suspend for 90 days the operator's license of a person convicted for the first time under
28 Subsection (2);
29 (ii) revoke for one year the license of a person convicted of any subsequent offense under
30 Subsection (2) if the violation is committed within a period of six years from the date of the prior
31 violation; and

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1 (iii) suspend or revoke the license of a person as ordered by the court under Subsection
2 (12).
3 (b) The department shall subtract from any suspension or revocation period the number
4 of days for which a license was previously suspended under Section 53-3-223, if the previous
5 suspension was based on the same occurrence upon which the record of conviction is based.
6 (12) (a) In addition to any other penalties provided in this section, a court may order the
7 operator's license of a person who is convicted of a violation of Subsection (2) to be suspended
8 or revoked for an additional period of 90 days, 180 days, or one year to remove from the highways
9 those persons who have shown they are safety hazards.
10 (b) If the court suspends or revokes the person's license under this subsection, the court
11 shall prepare and send to the Driver License Division of the Department of Public Safety an order
12 to suspend or revoke that person's driving privileges for a specified period of time.
13 Section 2. Section 73-18-12.2 is amended to read:
14 73-18-12.2. Boating under the influence of alcohol or drugs or with high blood or
15 breath alcohol content -- Criminal punishment -- Arrest without a warrant.
16 (1) (a) It is unlawful and punishable as provided in this section for any person to operate
17 a vessel on the waters of this state if:
18 (i) the person has a blood or breath alcohol concentration of [.08] .04 grams or greater, as
19 shown by any chemical test given within two hours after the alleged operation; or
20 (ii) the person is under the influence of alcohol or any drug or the combined influence of
21 alcohol and any drug to a degree which renders the person incapable of safely operating a vessel.
22 (b) The fact that a person charged with violating this section is or has been legally entitled
23 to use alcohol or a drug is not a defense against any charge of violating this section.
24 (2) Alcohol concentration in the blood shall be based upon grams of alcohol per 100
25 milliliters of blood, and alcohol concentration in the breath shall be based upon grams of alcohol
26 per 210 liters of breath.
27 (3) For the purposes of this section, the standard of negligence is that of simple negligence,
28 the failure to exercise that degree of care which an ordinarily reasonable and prudent person
29 exercises under like or similar circumstances.
30 (4) (a) Every person who is convicted of a violation of Subsection (1) is guilty of a class
31 B misdemeanor, however, if the person has inflicted a bodily injury upon another as a proximate

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1 result of having operated the vessel in a negligent manner, he is guilty of a class A misdemeanor.
2 (b) No portion of any sentence imposed under Subsection (4)(a) may be suspended.
3 (5) In addition to the penalties provided for in Subsection (4), the court shall, upon a first
4 conviction of a violation of this section:
5 (a) impose a mandatory jail sentence of not less than 48 consecutive hours nor more than
6 240 hours, with emphasis on serving in the drunk tank of the jail, or require the person to work in
7 a community-service work program for not less than 24 nor more than 50 hours; and
8 (b) order the person to participate in an assessment and educational series at a licensed
9 alcohol rehabilitation facility.
10 (6) Upon a second conviction within five years after a first conviction under this section
11 or under a local ordinance similar to this section adopted in compliance with Section 73-18-12.1,
12 the court shall, in addition to the penalties provided for in Subsection (4):
13 (a) impose a mandatory jail sentence of not less than 240 consecutive hours nor more than
14 720 hours, with emphasis on serving in the drunk tank of the jail, or require the person to work in
15 a community-service work program for not less than 80 nor more than 240 hours; and
16 (b) order the person to participate in an assessment and educational series at a licensed
17 alcohol rehabilitation facility. The court may, in its discretion, order the person to obtain treatment
18 at an alcohol rehabilitation facility.
19 (7) Upon a subsequent conviction within five years after a second conviction under this
20 section or under a local ordinance similar to this section adopted in compliance with Section
21 73-18-12.1, the court shall, in addition to the penalties provided for in Subsection (4):
22 (a) impose a mandatory jail sentence of not less than 720 consecutive hours nor more than
23 2,160 hours with emphasis on serving in the drunk tank of the jail, or require the person to work
24 in a community-service work program for not less than 240 nor more than 720 hours; and
25 (b) order the person to obtain treatment at an alcohol rehabilitation facility.
26 (8) A person convicted of a violation of this section is not eligible for parole or probation
27 until any sentence imposed under this section has been served. Probation or parole resulting from
28 a conviction for a violation of this section or a local ordinance similar to this section adopted in
29 compliance with Section 73-18-12.1 may not be terminated until all fines and fees, including fees
30 for restitution and rehabilitation costs, assessed against the convicted person, have been paid.
31 (9) (a) The provisions in Subsections (5), (6), and (7) requiring a sentencing court to order

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1 a convicted person to participate in an assessment and educational series at a licensed alcohol
2 rehabilitation facility or to obtain treatment at an alcohol rehabilitation facility apply to a
3 conviction for a violation of Section 73-18-12 that qualifies as a prior offense under Subsection
4 (10). A court shall render the same order regarding education or treatment at an alcohol
5 rehabilitation facility for a first, second, or subsequent conviction under Section 73-18-12 that
6 qualifies as a prior offense under Subsection (10), as the court would render for a first, second, or
7 subsequent conviction of a violation of Subsection (1).
8 (b) For purposes of determining whether a conviction under Section 73-18-12 which
9 qualified as a prior conviction under Subsection (10) is a first, second, or subsequent conviction
10 under this Subsection (9), a previous conviction under either Section 73-18-12 or 73-18-12.2 is
11 considered a prior conviction. Any alcohol rehabilitation program and any community-based or
12 other education program provided for in this section shall be approved by the Department of
13 Human Services.
14 (10) (a) When the prosecution agrees to a plea of guilty or no contest to a charge of a
15 violation of Section 73-18-12 or of a local ordinance similar to that section adopted in compliance
16 with Section 73-18-12.1, the prosecution shall state for the record a factual basis for the plea,
17 including whether there had been consumption of alcohol or drugs by the defendant in connection
18 with the offense. The statement shall be an offer of proof of the facts which shows whether there
19 was consumption of alcohol or drugs in connection with the offense.
20 (b) The court shall advise the defendant before accepting the plea offered under this
21 subsection of the consequences of a violation of Section 73-18-12 as follows. If the court accepts
22 the defendant's plea of guilty or no contest to a charge of violating Section 73-18-12, and the
23 prosecutor states for the record that there was consumption of alcohol or drugs by the defendant
24 in connection with the offense, the resulting conviction is a prior offense for the purposes of
25 Subsection (9).
26 (11) A peace officer may, without a warrant, arrest a person for a violation of this section
27 when the peace officer has probable cause to believe the violation has occurred, although not in
28 his presence, and if the peace officer has probable cause to believe that the violation was
29 committed by the person.
30 Section 3. Section 76-5-207 is amended to read:
31 76-5-207. Automobile homicide.

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1 (1) (a) Criminal homicide is automobile homicide, a third degree felony, if the actor
2 operates a motor vehicle while having a blood alcohol content of [.08%] .04% or greater by
3 weight, or while under the influence of alcohol, any drug, or the combined influence of alcohol
4 and any drug, to a degree that renders the actor incapable of safely operating the vehicle, and
5 causes the death of another by operating the vehicle in a negligent manner.
6 (b) For the purpose of this subsection, "negligent" means simple negligence, the failure
7 to exercise that degree of care that reasonable and prudent persons exercise under like or similar
8 circumstances.
9 (2) (a) Criminal homicide is automobile homicide, a second degree felony, if the actor
10 operates a motor vehicle while having a blood alcohol content of [.08%] .04% or greater by
11 weight, or while under the influence of alcohol, any drug, or the combined influence of alcohol
12 and any drug, to a degree that renders the actor incapable of safely operating the vehicle, and
13 causes the death of another by operating the motor vehicle in a criminally negligent manner.
14 (b) For the purpose of this subsection, "criminally negligent" means criminal negligence
15 as defined by Subsection 76-2-103 (4).
16 (3) The standards for chemical breath analysis as provided by Section 41-6-44.3 and the
17 provisions for the admissibility of chemical test results as provided by Section 41-6-44.5 apply to
18 determination and proof of blood alcohol content under this section.
19 (4) Percent by weight of alcohol in the blood is based upon grams of alcohol per one
20 hundred cubic centimeters of blood.
21 (5) The fact that a person charged with violating this section is on or has been legally
22 entitled to use alcohol or a drug is not a defense to any charge of violating this section.
23 (6) Evidence of a defendant's blood or breath alcohol content or drug content is admissible
24 except when prohibited by Rules of Evidence or the constitution.
25 (7) For purposes of this section, "motor vehicle" means any self-propelled vehicle and
26 includes any automobile, truck, van, motorcycle, train, engine, watercraft, or aircraft.

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