H.B. 128 Enrolled

DRIVING UNDER THE INFLUENCE REVISIONS
2000 GENERAL SESSION
STATE OF UTAH
Sponsor: Gerry A. Adair
AN ACT RELATING TO MOTOR VEHICLES; AMENDING THE DRIVER LICENSE
REVOCATION PERIOD FOR A PERSON WHO REFUSES TO SUBMIT TO A CHEMICAL
TEST FOR DRIVING UNDER THE INFLUENCE.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
41-6-44.10, as last amended by Chapter 226, Laws of Utah 1999
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 41-6-44.10 is amended to read:
41-6-44.10. Implied consent to chemical tests for alcohol or drug -- Number of tests
-- Refusal -- Warning, report -- Hearing, revocation of license -- Appeal -- Person incapable
of refusal -- Results of test available -- Who may give test -- Evidence.
(1) (a) A person operating a motor vehicle in this state is considered to have given his
consent to a chemical test or tests of his breath, blood, or urine for the purpose of determining
whether he was operating or in actual physical control of a motor vehicle while having a blood or
breath alcohol content statutorily prohibited under Section 41-6-44 , 53-3-231 , or 53-3-232 , while
under the influence of alcohol, any drug, or combination of alcohol and any drug under Section
41-6-44 , or while having any measurable controlled substance or metabolite of a controlled
substance in the person's body in violation of Section 41-6-44.6 , if the test is or tests are
administered at the direction of a peace officer having grounds to believe that person to have been
operating or in actual physical control of a motor vehicle while having a blood or breath alcohol
content statutorily prohibited under Section 41-6-44 , 53-3-231 , or 53-3-232 , or while under the
influence of alcohol, any drug, or combination of alcohol and any drug under Section 41-6-44 , or
while having any measurable controlled substance or metabolite of a controlled substance in the
person's body in violation of Section 41-6-44.6 .
(b) (i) The peace officer determines which of the tests are administered and how many of

them are administered.
(ii) If an officer requests more than one test, refusal by a person to take one or more
requested tests, even though he does submit to any other requested test or tests, is a refusal under
this section.
(c) (i) A person who has been requested under this section to submit to a chemical test or
tests of his breath, blood, or urine, may not select the test or tests to be administered.
(ii) The failure or inability of a peace officer to arrange for any specific chemical test is not
a defense to taking a test requested by a peace officer, and it is not a defense in any criminal, civil,
or administrative proceeding resulting from a person's refusal to submit to the requested test or tests.
(2) (a) If the person has been placed under arrest, has then been requested by a peace officer
to submit to any one or more of the chemical tests under Subsection (1), and refuses to submit to any
chemical test requested, the person shall be warned by the peace officer requesting the test or tests
that a refusal to submit to the test or tests can result in revocation of the person's license to operate
a motor vehicle.
(b) Following the warning under Subsection (2)(a), if the person does not immediately
request that the chemical test or tests as offered by a peace officer be administered a peace officer
shall serve on the person, on behalf of the Driver License Division, immediate notice of the Driver
License Division's intention to revoke the person's privilege or license to operate a motor vehicle.
When the officer serves the immediate notice on behalf of the Driver License Division, he shall:
(i) take the Utah license certificate or permit, if any, of the operator;
(ii) issue a temporary license effective for only 29 days; and
(iii) supply to the operator, on a form approved by the Driver License Division, basic
information regarding how to obtain a hearing before the Driver License Division.
(c) A citation issued by a peace officer may, if approved as to form by the Driver License
Division, serve also as the temporary license.
(d) As a matter of procedure, the peace officer shall submit a signed report, within ten days
after the date of the arrest, that he had grounds to believe the arrested person had been operating or
was in actual physical control of a motor vehicle while having a blood or breath alcohol content

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statutorily prohibited under Section 41-6-44 , 53-3-231 , or 53-3-232 , or while under the influence of
alcohol, any drug, or combination of alcohol and any drug under Section 41-6-44 , or while having
any measurable controlled substance or metabolite of a controlled substance in the person's body in
violation of Section 41-6-44.6 , and that the person had refused to submit to a chemical test or tests
under Subsection (1).
(e) (i) A person who has been notified of the Driver License Division's intention to revoke
his license under this section is entitled to a hearing.
(ii) A request for the hearing shall be made in writing within ten days after the date of the
arrest.
(iii) Upon written request, the division shall grant to the person an opportunity to be heard
within 29 days after the date of arrest.
(iv) If the person does not make a timely written request for a hearing before the division,
his privilege to operate a motor vehicle in the state is revoked beginning on the 30th day after the date
of arrest for a period of:
(A) [one year] 18 months unless Subsection (2)(e)(iv)(B) applies; or
(B) [18] 24 months if the person has had a previous license sanction after July 1, 1993, under
this section, Section 41-6-44.6 , 53-3-223 , 53-3-231 , 53-3-232 , or a conviction after July 1, 1993,
under Section 41-6-44 .
(f) If a hearing is requested by the person, the hearing shall be conducted by the Driver
License Division in the county in which the offense occurred, unless the division and the person both
agree that the hearing may be held in some other county.
(g) The hearing shall be documented and shall cover the issues of:
(i) whether a peace officer had reasonable grounds to believe that a person was operating a
motor vehicle in violation of Section 41-6-44 , 41-6-44.6 , or 53-3-231 ; and
(ii) whether the person refused to submit to the test.
(h) (i) In connection with the hearing, the division or its authorized agent:
(A) may administer oaths and may issue subpoenas for the attendance of witnesses and the
production of relevant books and papers; and

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(B) shall issue subpoenas for the attendance of necessary peace officers.
(ii) The division shall pay witness fees and mileage from the Transportation Fund in
accordance with the rates established in Section 21-5-4 .
(i) If after a hearing, the Driver License Division determines that the person was requested
to submit to a chemical test or tests and refused to submit to the test or tests, or if the person fails
to appear before the Driver License Division as required in the notice, the Driver License Division
shall revoke his license or permit to operate a motor vehicle in Utah beginning on the date the hearing
is held for a period of:
(i) (A) [one year] 18 months unless Subsection (2)(i)(i)(B) applies; or
(B) [18] 24 months if the person has had a previous license sanction after July 1, 1993, under
this section, Section 41-6-44.6 , 53-3-223 , 53-3-231 , 53-3-232 , or a conviction after July 1, 1993,
under Section 41-6-44 .
(ii) The Driver License Division shall also assess against the person, in addition to any fee
imposed under Subsection 53-3-205 (14), a fee under Section 53-3-105 , which shall be paid before
the person's driving privilege is reinstated, to cover administrative costs.
(iii) The fee shall be cancelled if the person obtains an unappealed court decision following
a proceeding allowed under this Subsection (2) that the revocation was improper.
(j) (i) Any person whose license has been revoked by the Driver License Division under this
section may seek judicial review.
(ii) Judicial review of an informal adjudicative proceeding is a trial. Venue is in the district
court in the county in which the offense occurred.
(3) Any person who is dead, unconscious, or in any other condition rendering him incapable
of refusal to submit to any chemical test or tests is considered to not have withdrawn the consent
provided for in Subsection (1), and the test or tests may be administered whether the person has been
arrested or not.
(4) Upon the request of the person who was tested, the results of the test or tests shall be
made available to him.
(5) (a) Only a physician, registered nurse, practical nurse, or person authorized under Section

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26-1-30 , acting at the request of a peace officer, may withdraw blood to determine the alcoholic or
drug content. This limitation does not apply to taking a urine or breath specimen.
(b) Any physician, registered nurse, practical nurse, or person authorized under Section
26-1-30 who, at the direction of a peace officer, draws a sample of blood from any person whom a
peace officer has reason to believe is driving in violation of this chapter, or hospital or medical facility
at which the sample is drawn, is immune from any civil or criminal liability arising from drawing the
sample, if the test is administered according to standard medical practice.
(6) (a) The person to be tested may, at his own expense, have a physician of his own choice
administer a chemical test in addition to the test or tests administered at the direction of a peace
officer.
(b) The failure or inability to obtain the additional test does not affect admissibility of the
results of the test or tests taken at the direction of a peace officer, or preclude or delay the test or
tests to be taken at the direction of a peace officer.
(c) The additional test shall be subsequent to the test or tests administered at the direction
of a peace officer.
(7) For the purpose of determining whether to submit to a chemical test or tests, the person
to be tested does not have the right to consult an attorney or have an attorney, physician, or other
person present as a condition for the taking of any test.
(8) If a person under arrest refuses to submit to a chemical test or tests or any additional test
under this section, evidence of any refusal is admissible in any civil or criminal action or proceeding
arising out of acts alleged to have been committed while the person was operating or in actual
physical control of a motor vehicle while under the influence of alcohol, any drug, combination of
alcohol and any drug, or while having any measurable controlled substance or metabolite of a
controlled substance in the person's body.

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