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H.B. 208 Enrolled

                 

ENHANCED PENALTIES FOR HIGH BLOOD

                 
ALCOHOL CONTENT IN DRIVERS

                 
2000 GENERAL SESSION

                 
STATE OF UTAH

                 
Sponsor: Nora B. Stephens

                  Duane E. Bourdeaux
                  Susan J. Koehn
                  DeMar Bud Bowman
Carl R. Saunders
David L. Hogue
Perry L. Buckner
Trisha S. Beck
Jack A. Seitz


                  AN ACT RELATING TO MOTOR VEHICLES; AMENDING DRIVING UNDER THE
                  INFLUENCE PENALTY PROVISIONS.
                  This act affects sections of Utah Code Annotated 1953 as follows:
                  AMENDS:
                      41-6-44, as last amended by Chapters 33, 226 and 258, Laws of Utah 1999
                  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; 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.

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                      (4) (a) As part of any sentence imposed the court shall, upon a first conviction, impose a
                  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:
                      (i) work in a compensatory-service work program for not less than 24 hours; or
                      (ii) participate in home confinement through the use of electronic monitoring in accordance
                  with Subsection (13).
                      (c) In addition to the jail sentence, compensatory-service work program, or home
                  confinement, 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:
                      (i) work in a compensatory-service work program for not less than 80 hours; or
                      (ii) participate in home confinement through the use of electronic monitoring in accordance
                  with Subsection (13).
                      (c) In addition to the jail sentence, compensatory-service work program, or home
                  confinement, 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

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                  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 third degree felony.
                      (b) Under Subsection (3)(b) or (6)(a), 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.
                      (c) In addition to the penalties required under Subsection (6)(b), the court may require the
                  person to participate in home confinement through the use of electronic monitoring in accordance
                  with Subsection (13).
                      (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 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,

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                  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.
                      (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).
                      (10) A peace officer may, without a warrant, arrest a person for a violation of this section

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                  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 or 53-3-231 , 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.
                      (13) (a) If the court orders a person to participate in home confinement through the use of
                  electronic monitoring, the electronic monitoring shall alert the appropriate corrections, probation
                  monitoring agency, law enforcement units, or contract provider of the defendant's whereabouts.
                      (b) The electronic monitoring device shall be used under conditions which require:
                      (i) the person to wear an electronic monitoring device at all times;
                      (ii) that a device be placed in the home or other specified location of the person, so that the
                  person's compliance with the court's order may be monitored; and
                      (iii) the person to pay the costs of the electronic monitoring.

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                      (c) The court shall order the appropriate entity described in Subsection (13)(e) to place an
                  electronic monitoring device on the person and install electronic monitoring equipment in the
                  residence of the person or other specified location.
                      (d) The court may:
                      (i) require the person's electronic home monitoring device to include [an alcohol detection
                  breathalyzer] a substance abuse testing instrument;
                      (ii) restrict the amount of alcohol the person may consume during the time the person is
                  subject to home confinement;
                      (iii) set specific time and location conditions that allow the person to attend school
                  educational classes, or employment and to travel directly between those activities and the person's
                  home; and
                      (iv) waive all or part of the costs associated with home confinement if the person is
                  determined to be indigent by the court.
                      (e) The electronic monitoring described in this section may either be administered directly
                  by the appropriate corrections agency, probation monitoring agency, or by contract with a private
                  provider.
                      (f) The electronic monitoring provider shall cover the costs of waivers by the court under
                  Subsection (13)(c)(iv).
                      (14) If a person is convicted of a violation of Subsection (2) and there is admissible evidence
                  that the person had a blood alcohol level of .16 or higher, then if the court does not order:
                      (a) treatment as described under Subsection (4)(d), (5)(d), or (6)(b)(iii), then the court shall
                  enter the reasons on the record; and
                      (b) the following penalties, the court shall enter the reasons on the record:
                      (i) the installation of an ignition interlock system as a condition of probation for the person
                  in accordance with Section 41-6-44.7 ; or
                      (ii) the imposition of home confinement through the use of electronic monitoring in
                  accordance with Subsection (13).

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