H.B. 346 Enrolled

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

section adopted in compliance with Section 41-6-43 ; and
(d) the standard of negligence is that of simple negligence, the failure to exercise that degree
of care that an ordinarily reasonable and prudent person exercises under like or similar
circumstances.
(2) (a) A person may not operate or be in actual physical control of a vehicle within this state
if the person:
(i) has sufficient alcohol in his body that a chemical test given within two hours of the
alleged operation or physical control shows that the person has a blood or breath alcohol
concentration of .08 grams or greater [as shown by a chemical test given within two hours after the
alleged operation or physical control]; or
(ii) is under the influence of alcohol, any drug, or the combined influence of alcohol and any
drug to a degree that renders the person incapable of safely operating a vehicle.
(b) The fact that a person charged with violating this section is or has been legally entitled
to use alcohol or a drug is not a defense against any charge of violating this section.
(c) Alcohol concentration in the blood shall be based upon grams of alcohol per 100
milliliters of blood, and alcohol concentration in the breath shall be based upon grams of alcohol per
210 liters of breath.
(3) (a) A person convicted the first or second time of a violation of Subsection (2) is guilty
of a:
(i) class B misdemeanor; or
(ii) class A misdemeanor if the person:
(A) has also inflicted bodily injury upon another as a proximate result of having operated
the vehicle in a negligent manner; or
(B) had a passenger under 16 years of age in the vehicle at the time of the offense.
(b) A person convicted of a violation of Subsection (2) is guilty of a third degree felony if
the person has also inflicted serious bodily injury upon another as a proximate result of having
operated the vehicle in a negligent manner.
(4) (a) As part of any sentence imposed the court shall, upon a first conviction, impose a

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mandatory jail sentence of not less than 48 consecutive hours.
(b) The court may, as an alternative to all or part of a jail sentence, require the person to
work in a compensatory-service work program for not less than 24 hours.
(c) In addition to the jail sentence or compensatory-service work program, the court shall:
(i) order the person to participate in an assessment and educational series at a licensed
alcohol or drug dependency rehabilitation facility, as appropriate; and
(ii) impose a fine of not less than $700.
(d) For a violation committed after July 1, 1993, the court may order the person to obtain
treatment at an alcohol or drug dependency rehabilitation facility if the licensed alcohol or drug
dependency rehabilitation facility determines that the person has a problem condition involving
alcohol or drugs.
(5) (a) If a person is convicted under Subsection (2) within six years of a prior conviction
under this section, the court shall as part of any sentence impose a mandatory jail sentence of not less
than 240 consecutive hours.
(b) The court may, as an alternative to all or part of a jail sentence, require the person to
work in a compensatory-service work program for not less than 80 hours.
(c) In addition to the jail sentence or compensatory-service work program, the court shall:
(i) order the person to participate in an assessment and educational series at a licensed
alcohol or drug dependency rehabilitation facility, as appropriate; and
(ii) impose a fine of not less than $800.
(d) The court may order the person to obtain treatment at an alcohol or drug dependency
rehabilitation facility.
(6) (a) A third or subsequent conviction for a violation committed within six years of two
or more prior convictions under this section is a:
(i) class A misdemeanor except as provided in Subsection (6)(a)(ii); and
(ii) third degree felony if at least:
(A) three prior convictions are for violations committed after April 23, 1990; or
(B) two prior convictions are for violations committed after July 1, 1996.

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(b) (i) Under Subsection (6)(a)(i) the court shall as part of any sentence impose a fine of not
less than $2,000 and impose a mandatory jail sentence of not less than 720 hours.
(ii) The court may, as an alternative to all or part of a jail sentence, require the person to
work in a compensatory-service work program for not less than 240 hours, but only if the court
enters in writing on the record the reason it finds the defendant should not serve the jail sentence.
Enrollment in and completion of an alcohol or drug dependency rehabilitation program approved by
the court may be a sentencing alternative to incarceration or compensatory service if the program
provides intensive care or inpatient treatment and long-term closely supervised follow-through after
the treatment.
(iii) In addition to the jail sentence or compensatory-service work program, the court shall
order the person to obtain treatment at an alcohol or drug dependency rehabilitation facility.
(c) Under Subsection (3)(b) or (6)(a)(ii), if the court suspends the execution of a prison
sentence and places the defendant on probation the court shall impose:
(i) a fine of not less than $1,500;
(ii) a mandatory jail sentence of not less than 1,000 hours; and
(iii) an order requiring the person to obtain treatment at an alcohol or drug dependency
rehabilitation program providing intensive care or inpatient treatment and long-term closely
supervised follow-through after treatment.
(7) (a) The mandatory portion of any sentence required under this section may not be
suspended and the convicted person is not eligible for parole or probation until any sentence imposed
under this section has been served. Probation or parole resulting from a conviction for a violation
under this section may not be terminated.
(b) The department may not reinstate any license suspended or revoked as a result of the
conviction under this section, until the convicted person has furnished evidence satisfactory to the
department that:
(i) all required alcohol or drug dependency assessment, education, treatment, and
rehabilitation ordered for a violation committed after July 1, 1993, have been completed;
(ii) all fines and fees including fees for restitution and rehabilitation costs assessed against

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the person have been paid, if the conviction is a second or subsequent conviction for a violation
committed within six years of a prior violation; and
(iii) the person does not use drugs in any abusive or illegal manner as certified by a licensed
alcohol or drug dependency rehabilitation facility, if the conviction is for a third or subsequent
conviction for a violation committed within six years of two prior violations committed after July
1, 1993.
(8) (a) (i) The provisions in Subsections (4), (5), and (6) that require a sentencing court to
order a convicted person to: participate in an assessment and educational series at a licensed alcohol
or drug dependency rehabilitation facility; obtain, in the discretion of the court, treatment at an
alcohol or drug dependency rehabilitation facility; obtain, mandatorily, treatment at an alcohol or
drug dependency rehabilitation facility; or do a combination of those things, apply to a conviction
for a violation of Section 41-6-44.6 or 41-6-45 under Subsection (9).
(ii) The court shall render the same order regarding education or treatment at an alcohol or
drug dependency rehabilitation facility, or both, in connection with a first, second, or subsequent
conviction under Section 41-6-44.6 or 41-6-45 under Subsection (9), as the court would render in
connection with applying respectively, the first, second, or subsequent conviction requirements of
Subsections (4), (5), and (6).
(b) Any alcohol or drug dependency rehabilitation program and any community-based or
other education program provided for in this section shall be approved by the Department of Human
Services.
(9) (a) (i) When the prosecution agrees to a plea of guilty or no contest to a charge of a
violation of Section 41-6-45 , of an ordinance enacted under Section 41-6-43 , or of Section 41-6-44.6
in satisfaction of, or as a substitute for, an original charge of a violation of this section, the
prosecution shall state for the record a factual basis for the plea, including whether or not there had
been consumption of alcohol, drugs, or a combination of both, by the defendant in connection with
the violation.
(ii) The statement is an offer of proof of the facts that shows whether there was consumption
of alcohol, drugs, or a combination of both, by the defendant, in connection with the violation.

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(b) The court shall advise the defendant before accepting the plea offered under this
Subsection (9)(b) of the consequences of a violation of Section 41-6-44.6 or of Section 41-6-45 .
(c) The court shall notify the department of each conviction of Section 41-6-44.6 or 41-6-45
entered under this Subsection (9)(c).
(10) A peace officer may, without a warrant, arrest a person for a violation of this section
when the officer has probable cause to believe the violation has occurred, although not in his
presence, and if the officer has probable cause to believe that the violation was committed by the
person.
(11) (a) The Department of Public Safety shall:
(i) suspend for 90 days the operator's license of a person convicted for the first time under
Subsection (2);
(ii) revoke for one year the license of a person convicted of any subsequent offense under
Subsection (2) if the violation is committed within a period of six years from the date of the prior
violation; and
(iii) suspend or revoke the license of a person as ordered by the court under Subsection (12).
(b) The department shall subtract from any suspension or revocation period the number of
days for which a license was previously suspended under Section 53-3-223 , if the previous
suspension was based on the same occurrence upon which the record of conviction is based.
(12) (a) In addition to any other penalties provided in this section, a court may order the
operator's license of a person who is convicted of a violation of Subsection (2) to be suspended or
revoked for an additional period of 90 days, 180 days, or one year to remove from the highways
those persons who have shown they are safety hazards.
(b) If the court suspends or revokes the person's license under this Subsection (12)(b), the
court shall prepare and send to the Driver License Division of the Department of Public Safety an
order to suspend or revoke that person's driving privileges for a specified period of time.

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