H.B. 346

1

DRIVING UNDER THE INFLUENCE TESTING
2 REQUIREMENTS
3 1999 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Nora B. Stephens
6 AN ACT RELATING TO MOTOR VEHICLES; CLARIFYING THE ELEMENTS OF DRIVING
7 UNDER THE INFLUENCE.
8 This act affects sections of Utah Code Annotated 1953 as follows:
9 AMENDS:
10 41-6-44, as last amended by Chapters 13, 94 and 168, Laws of Utah 1998
11 Be it enacted by the Legislature of the state of Utah:
12 Section 1. Section 41-6-44 is amended to read:
13 41-6-44. Driving under the influence of alcohol, drugs, or with specified or unsafe
14 blood alcohol concentration -- Measurement of blood or breath alcohol -- Criminal
15 punishment -- Arrest without warrant -- Penalties -- Suspension or revocation of license.
16 (1) As used in this section:
17 (a) "prior conviction" means any conviction for a violation of:
18 (i) this section;
19 (ii) alcohol-related reckless driving under Subsections (9) and (10);
20 (iii) local ordinances similar to this section or alcohol-related reckless driving adopted in
21 compliance with Section 41-6-43 ;
22 (iv) automobile homicide under Section 76-5-207 ; or
23 (v) statutes or ordinances in effect in any other state, the United States, or any district,
24 possession, or territory of the United States which would constitute a violation of this section or
25 alcohol-related reckless driving if committed in this state, including punishments administered
26 under 10 U.S.C. Sec. 815;
27 (b) "serious bodily injury" means bodily injury that creates or causes serious permanent

28 disfigurement, protracted loss or impairment of the function of any bodily member or organ, or
29 creates a substantial risk of death;
30 (c) a violation of this section includes a violation under a local ordinance similar to this
31 section adopted in compliance with Section 41-6-43 ; and
32 (d) the standard of negligence is that of simple negligence, the failure to exercise that
33 degree of care that an ordinarily reasonable and prudent person exercises under like or similar
34 circumstances.
35 (2) (a) A person may not operate or be in actual physical control of a vehicle within this
36 state if the person:
37 (i) has h [ ingested ] h sufficient alcohol h IN HIS BODY h that a chemical test given within
37a two hours of the alleged
38 operation or physical control shows that the person has a blood or breath alcohol concentration of
39 .08 grams or greater [as shown by a chemical test given within two hours after the alleged
40 operation or physical control]; or
41 (ii) is under the influence of alcohol, any drug, or the combined influence of alcohol and
42 any drug to a degree that renders the person incapable of safely operating a vehicle.
43 (b) The fact that a person charged with violating this section is or has been legally entitled
44 to use alcohol or a drug is not a defense against any charge of violating this section.
45 (c) Alcohol concentration in the blood shall be based upon grams of alcohol per 100
46 milliliters of blood, and alcohol concentration in the breath shall be based upon grams of alcohol
47 per 210 liters of breath.
48 (3) (a) A person convicted the first or second time of a violation of Subsection (2) is guilty
49 of a:
50 (i) class B misdemeanor; or
51 (ii) class A misdemeanor if the person:
52 (A) has also inflicted bodily injury upon another as a proximate result of having operated
53 the vehicle in a negligent manner; or
54 (B) had a passenger under 16 years of age in the vehicle at the time of the offense.
55 (b) A person convicted of a violation of Subsection (2) is guilty of a third degree felony
56 if the person has also inflicted serious bodily injury upon another as a proximate result of having
57 operated the vehicle in a negligent manner.
58 (4) (a) As part of any sentence imposed the court shall, upon a first conviction, impose a

59 mandatory jail sentence of not less than 48 consecutive hours.
60 (b) The court may, as an alternative to all or part of a jail sentence, require the person to
61 work in a compensatory-service work program for not less than 24 hours.
62 (c) In addition to the jail sentence or compensatory-service work program, the court shall:
63 (i) order the person to participate in an assessment and educational series at a licensed
64 alcohol or drug dependency rehabilitation facility, as appropriate; and
65 (ii) impose a fine of not less than $700.
66 (d) For a violation committed after July 1, 1993, the court may order the person to obtain
67 treatment at an alcohol or drug dependency rehabilitation facility if the licensed alcohol or drug
68 dependency rehabilitation facility determines that the person has a problem condition involving
69 alcohol or drugs.
70 (5) (a) If a person is convicted under Subsection (2) within six years of a prior conviction
71 under this section, the court shall as part of any sentence impose a mandatory jail sentence of not
72 less than 240 consecutive hours.
73 (b) The court may, as an alternative to all or part of a jail sentence, require the person to
74 work in a compensatory-service work program for not less than 80 hours.
75 (c) In addition to the jail sentence or compensatory-service work program, the court shall:
76 (i) order the person to participate in an assessment and educational series at a licensed
77 alcohol or drug dependency rehabilitation facility, as appropriate; and
78 (ii) impose a fine of not less than $800.
79 (d) The court may order the person to obtain treatment at an alcohol or drug dependency
80 rehabilitation facility.
81 (6) (a) A third or subsequent conviction for a violation committed within six years of two
82 or more prior convictions under this section is a:
83 (i) class A misdemeanor except as provided in Subsection (6)(a)(ii); and
84 (ii) third degree felony if at least:
85 (A) three prior convictions are for violations committed after April 23, 1990; or
86 (B) two prior convictions are for violations committed after July 1, 1996.
87 (b) (i) Under Subsection (6)(a)(i) the court shall as part of any sentence impose a fine of
88 not less than $2,000 and impose a mandatory jail sentence of not less than 720 hours.
89 (ii) The court may, as an alternative to all or part of a jail sentence, require the person to

90 work in a compensatory-service work program for not less than 240 hours, but only if the court
91 enters in writing on the record the reason it finds the defendant should not serve the jail sentence.
92 Enrollment in and completion of an alcohol or drug dependency rehabilitation program approved
93 by the court may be a sentencing alternative to incarceration or compensatory service if the
94 program provides intensive care or inpatient treatment and long-term closely supervised
95 follow-through after the treatment.
96 (iii) In addition to the jail sentence or compensatory-service work program, the court shall
97 order the person to obtain treatment at an alcohol or drug dependency rehabilitation facility.
98 (c) Under Subsection (3)(b) or (6)(a)(ii), if the court suspends the execution of a prison
99 sentence and places the defendant on probation the court shall impose:
100 (i) a fine of not less than $1,500;
101 (ii) a mandatory jail sentence of not less than 1,000 hours; and
102 (iii) an order requiring the person to obtain treatment at an alcohol or drug dependency
103 rehabilitation program providing intensive care or inpatient treatment and long-term closely
104 supervised follow-through after treatment.
105 (7) (a) The mandatory portion of any sentence required under this section may not be
106 suspended and the convicted person is not eligible for parole or probation until any sentence
107 imposed under this section has been served. Probation or parole resulting from a conviction for
108 a violation under this section may not be terminated.
109 (b) The department may not reinstate any license suspended or revoked as a result of the
110 conviction under this section, until the convicted person has furnished evidence satisfactory to the
111 department that:
112 (i) all required alcohol or drug dependency assessment, education, treatment, and
113 rehabilitation ordered for a violation committed after July 1, 1993, have been completed;
114 (ii) all fines and fees including fees for restitution and rehabilitation costs assessed against
115 the person have been paid, if the conviction is a second or subsequent conviction for a violation
116 committed within six years of a prior violation; and
117 (iii) the person does not use drugs in any abusive or illegal manner as certified by a
118 licensed alcohol or drug dependency rehabilitation facility, if the conviction is for a third or
119 subsequent conviction for a violation committed within six years of two prior violations committed
120 after July 1, 1993.

121 (8) (a) (i) The provisions in Subsections (4), (5), and (6) that require a sentencing court to
122 order a convicted person to: participate in an assessment and educational series at a licensed
123 alcohol or drug dependency rehabilitation facility; obtain, in the discretion of the court, treatment
124 at an alcohol or drug dependency rehabilitation facility; obtain, mandatorily, treatment at an
125 alcohol or drug dependency rehabilitation facility; or do a combination of those things, apply to
126 a conviction for a violation of Section 41-6-44.6 or 41-6-45 under Subsection (9).
127 (ii) The court shall render the same order regarding education or treatment at an alcohol
128 or drug dependency rehabilitation facility, or both, in connection with a first, second, or subsequent
129 conviction under Section 41-6-44.6 or 41-6-45 under Subsection (9), as the court would render in
130 connection with applying respectively, the first, second, or subsequent conviction requirements of
131 Subsections (4), (5), and (6).
132 (b) Any alcohol or drug dependency rehabilitation program and any community-based or
133 other education program provided for in this section shall be approved by the Department of
134 Human Services.
135 (9) (a) (i) When the prosecution agrees to a plea of guilty or no contest to a charge of a
136 violation of Section 41-6-45 , of an ordinance enacted under Section 41-6-43 , or of Section
137 41-6-44.6 in satisfaction of, or as a substitute for, an original charge of a violation of this section,
138 the prosecution shall state for the record a factual basis for the plea, including whether or not there
139 had been consumption of alcohol, drugs, or a combination of both, by the defendant in connection
140 with the violation.
141 (ii) The statement is an offer of proof of the facts that shows whether there was
142 consumption of alcohol, drugs, or a combination of both, by the defendant, in connection with the
143 violation.
144 (b) The court shall advise the defendant before accepting the plea offered under this
145 Subsection (9)(b) of the consequences of a violation of Section 41-6-44.6 or of Section 41-6-45 .
146 (c) The court shall notify the department of each conviction of Section 41-6-44.6 or
147 41-6-45 entered under this Subsection (9)(c).
148 (10) A peace officer may, without a warrant, arrest a person for a violation of this section
149 when the officer has probable cause to believe the violation has occurred, although not in his
150 presence, and if the officer has probable cause to believe that the violation was committed by the
151 person.

152 (11) (a) The Department of Public Safety shall:
153 (i) suspend for 90 days the operator's license of a person convicted for the first time under
154 Subsection (2);
155 (ii) revoke for one year the license of a person convicted of any subsequent offense under
156 Subsection (2) if the violation is committed within a period of six years from the date of the prior
157 violation; and
158 (iii) suspend or revoke the license of a person as ordered by the court under Subsection
159 (12).
160 (b) The department shall subtract from any suspension or revocation period the number
161 of days for which a license was previously suspended under Section 53-3-223 , if the previous
162 suspension was based on the same occurrence upon which the record of conviction is based.
163 (12) (a) In addition to any other penalties provided in this section, a court may order the
164 operator's license of a person who is convicted of a violation of Subsection (2) to be suspended
165 or revoked for an additional period of 90 days, 180 days, or one year to remove from the highways
166 those persons who have shown they are safety hazards.
167 (b) If the court suspends or revokes the person's license under this Subsection (12)(b), the
168 court shall prepare and send to the Driver License Division of the Department of Public Safety an
169 order to suspend or revoke that person's driving privileges for a specified period of time.




Legislative Review Note
as of 1-29-99 3:59 PM

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

Office of Legislative Research and General Counsel