H.B. 353

1

DRIVING UNDER THE INFLUENCE
2 AMENDMENTS
3 2001 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Paul Ray
6 This act modifies the Motor Vehicles Code by amending DUI penalty provisions, including
7 an enhancement provision, jail and prison sentences, and driver license suspension and
8 revocation provisions. This act takes effect on July 1, 2001.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 41-6-44, as last amended by Chapters 333 and 334, Laws of Utah 2000
12 Be it enacted by the Legislature of the state of Utah:
13 Section 1. Section 41-6-44 is amended to read:
14 41-6-44. Driving under the influence of alcohol, drugs, or with specified or unsafe
15 blood alcohol concentration -- Measurement of blood or breath alcohol -- Criminal
16 punishment -- Arrest without warrant -- Penalties -- Suspension or revocation of license.
17 (1) As used in this section:
18 (a) "educational series" means an educational series obtained at a substance abuse program
19 that is approved by the Board of Substance Abuse in accordance with Section 62A-8-107 ;
20 (b) "prior conviction" means any conviction for a violation of:
21 (i) this section;
22 (ii) alcohol-related reckless driving under Subsections (9) and (10);
23 (iii) local ordinances similar to this section or alcohol-related reckless driving adopted in
24 compliance with Section 41-6-43 ;
25 (iv) automobile homicide under Section 76-5-207 ; or
26 (v) statutes or ordinances in effect in any other state, the United States, or any district,
27 possession, or territory of the United States which would constitute a violation of this section or

28 alcohol-related reckless driving if committed in this state, including punishments administered
29 under 10 U.S.C. Sec. 815;
30 (c) "screening and assessment" means a substance abuse addiction and dependency
31 screening and assessment obtained at a substance abuse program that is approved by the Board of
32 Substance Abuse in accordance with Section 62A-8-107 ;
33 (d) "serious bodily injury" means bodily injury that creates or causes serious permanent
34 disfigurement, protracted loss or impairment of the function of any bodily member or organ, or
35 creates a substantial risk of death;
36 (e) "substance abuse treatment" means treatment obtained at a substance abuse program
37 that is approved by the Board of Substance Abuse in accordance with Section 62A-8-107 ;
38 (f) "substance abuse treatment program" means a state licensed substance abuse program;
39 (g) a violation of this section includes a violation under a local ordinance similar to this
40 section adopted in compliance with Section 41-6-43 ; and
41 (h) the standard of negligence is that of simple negligence, the failure to exercise that
42 degree of care that an ordinarily reasonable and prudent person exercises under like or similar
43 circumstances.
44 (2) (a) A person may not operate or be in actual physical control of a vehicle within this
45 state if the person:
46 (i) has sufficient alcohol in his body that a chemical test given within two hours of the
47 alleged operation or physical control shows that the person has a blood or breath alcohol
48 concentration of .08 grams or greater; or
49 (ii) is under the influence of alcohol, any drug, or the combined influence of alcohol and
50 any drug to a degree that renders the person incapable of safely operating a vehicle.
51 (b) The fact that a person charged with violating this section is or has been legally entitled
52 to use alcohol or a drug is not a defense against any charge of violating this section.
53 (c) Alcohol concentration in the blood shall be based upon grams of alcohol per 100
54 milliliters of blood, and alcohol concentration in the breath shall be based upon grams of alcohol
55 per 210 liters of breath.
56 (3) (a) A person convicted the first or second time of a violation of Subsection (2) is guilty
57 of a:
58 (i) class B misdemeanor; or

59 (ii) class A misdemeanor if the person:
60 (A) has also inflicted bodily injury upon another as a proximate result of having operated
61 the vehicle in a negligent manner; or
62 (B) had a passenger under [16] 18 years of age in the vehicle at the time of the offense.
63 (b) A person convicted of a violation of Subsection (2) is guilty of a third degree felony
64 if the person has also inflicted serious bodily injury upon another as a proximate result of having
65 operated the vehicle in a negligent manner.
66 (4) (a) As part of any sentence imposed the court shall, upon a first conviction, impose a
67 mandatory jail sentence of not less than [48] 30 consecutive [hours] days.
68 (b) The court may, as an alternative to all or part of a jail sentence, require the person to:
69 (i) work in a compensatory-service work program for not less than 24 hours; or
70 (ii) participate in home confinement through the use of electronic monitoring in
71 accordance with Subsection (13).
72 (c) In addition to the jail sentence, compensatory-service work program, or home
73 confinement, the court shall:
74 (i) order the person to participate in a screening and assessment;
75 (ii) order the person to participate in an educational series if the court does not order
76 substance abuse treatment as described under Subsection (4)(d); and
77 (iii) impose a fine of not less than $700.
78 (d) The court may order the person to obtain substance abuse treatment if the substance
79 abuse treatment program determines that substance abuse treatment is appropriate.
80 (e) The court may order probation for the person in accordance with Subsection (14).
81 (5) (a) If a person is convicted under Subsection (2) within six years of a prior conviction
82 under this section, the court shall as part of any sentence impose a mandatory jail sentence of not
83 less than [240] 60 consecutive [hours] days.
84 (b) The court may, as an alternative to all or part of a jail sentence, require the person to:
85 (i) work in a compensatory-service work program for not less than 240 hours; or
86 (ii) participate in home confinement through the use of electronic monitoring in
87 accordance with Subsection (13).
88 (c) In addition to the jail sentence, compensatory-service work program, or home
89 confinement, the court shall:

90 (i) order the person to participate in a screening and assessment;
91 (ii) order the person to participate in an educational series if the court does not order
92 substance abuse treatment as described under Subsection (5)(d); and
93 (iii) impose a fine of not less than $800.
94 (d) The court may order the person to obtain substance abuse treatment if the substance
95 abuse treatment program determines that substance abuse treatment is appropriate.
96 (e) The court may order probation for the person in accordance with Subsection (14).
97 (6) (a) A third or subsequent conviction for a violation committed within six years of two
98 or more prior convictions under this section is a third degree felony.
99 (b) Under Subsection (3)(b) or (6)(a), if the court suspends the execution of a prison
100 sentence and places the defendant on probation the court shall impose:
101 (i) a fine of not less than $1,500; and
102 (ii) a mandatory jail sentence of not less than [1,500 hours] 90 days.
103 (c) For Subsection (6)(a) or (b), the court shall impose an order requiring the person to
104 obtain a screening and assessment and substance abuse treatment at a substance abuse treatment
105 program providing intensive care or inpatient treatment and long-term closely supervised
106 follow-through after treatment for not less than 240 hours.
107 (d) In addition to the penalties required under Subsection (6)(b), the court may require the
108 person to participate in home confinement through the use of electronic monitoring in accordance
109 with Subsection (13).
110 (7) The mandatory portion of any sentence required under this section may not be
111 suspended and the convicted person is not eligible for parole or probation until any sentence
112 imposed under this section has been served. Probation or parole resulting from a conviction for
113 a violation under this section may not be terminated.
114 (8) (a) (i) The provisions in Subsections (4), (5), and (6) that require a sentencing court to
115 order a convicted person to: participate in a screening and assessment; and an educational series;
116 obtain, in the discretion of the court, substance abuse treatment; obtain, mandatorily, substance
117 abuse treatment; or do a combination of those things, apply to a conviction for a violation of
118 Section 41-6-44.6 or 41-6-45 under Subsection (9).
119 (ii) The court shall render the same order regarding screening and assessment, an
120 educational series, or substance abuse treatment in connection with a first, second, or subsequent

121 conviction under Section 41-6-44.6 or 41-6-45 under Subsection (9), as the court would render in
122 connection with applying respectively, the first, second, or subsequent conviction requirements of
123 Subsections (4), (5), and (6).
124 (b) If a person fails to complete all court ordered screening and assessment, educational
125 series, and substance abuse treatment, or fails to pay all fines and fees, including fees for restitution
126 and treatment costs, the court shall notify the Driver License Division of a failure to comply. Upon
127 receiving the notification, the division shall suspend the person's driving privilege in accordance
128 with Subsections 53-3-221 (2) and (3).
129 (9) (a) (i) When the prosecution agrees to a plea of guilty or no contest to a charge of a
130 violation of Section 41-6-45 , of an ordinance enacted under Section 41-6-43 , or of Section
131 41-6-44.6 in satisfaction of, or as a substitute for, an original charge of a violation of this section,
132 the prosecution shall state for the record a factual basis for the plea, including whether or not there
133 had been consumption of alcohol, drugs, or a combination of both, by the defendant in connection
134 with the violation.
135 (ii) The statement is an offer of proof of the facts that shows whether there was
136 consumption of alcohol, drugs, or a combination of both, by the defendant, in connection with the
137 violation.
138 (b) The court shall advise the defendant before accepting the plea offered under this
139 Subsection (9)(b) of the consequences of a violation of Section 41-6-44.6 or of Section 41-6-45 .
140 (c) The court shall notify the Driver License Division of each conviction of Section
141 41-6-44.6 or 41-6-45 entered under this Subsection (9).
142 (10) A peace officer may, without a warrant, arrest a person for a violation of this section
143 when the officer has probable cause to believe the violation has occurred, although not in his
144 presence, and if the officer has probable cause to believe that the violation was committed by the
145 person.
146 (11) (a) The Driver License Division shall:
147 (i) suspend for [90] 180 days the operator's license of a person convicted for the first time
148 under Subsection (2);
149 (ii) revoke for one year the license of a person convicted of any subsequent offense under
150 Subsection (2) if the violation is committed within a period of six years from the date of the prior
151 violation; and

152 (iii) suspend or revoke the license of a person as ordered by the court under Subsection
153 (12).
154 (b) The Driver License Division shall subtract from any suspension or revocation period
155 the number of days for which a license was previously suspended under Section 53-3-223 or
156 53-3-231 , if the previous suspension was based on the same occurrence upon which the record of
157 conviction is based.
158 (12) (a) In addition to any other penalties provided in this section, a court may order the
159 operator's license of a person who is convicted of a violation of Subsection (2) to be suspended
160 or revoked for an additional period of [90 days,] 180 days, [or] one year, or two years to remove
161 from the highways those persons who have shown they are safety hazards.
162 (b) If the court suspends or revokes the person's license under this Subsection (12)(b), the
163 court shall prepare and send to the Driver License Division an order to suspend or revoke that
164 person's driving privileges for a specified period of time.
165 (13) (a) If the court orders a person to participate in home confinement through the use of
166 electronic monitoring, the electronic monitoring shall alert the appropriate corrections, probation
167 monitoring agency, law enforcement units, or contract provider of the defendant's whereabouts.
168 (b) The electronic monitoring device shall be used under conditions which require:
169 (i) the person to wear an electronic monitoring device at all times;
170 (ii) that a device be placed in the home or other specified location of the person, so that
171 the person's compliance with the court's order may be monitored; and
172 (iii) the person to pay the costs of the electronic monitoring.
173 (c) The court shall order the appropriate entity described in Subsection (13)(e) to place an
174 electronic monitoring device on the person and install electronic monitoring equipment in the
175 residence of the person or other specified location.
176 (d) The court may:
177 (i) require the person's electronic home monitoring device to include a substance abuse
178 testing instrument;
179 (ii) restrict the amount of alcohol the person may consume during the time the person is
180 subject to home confinement;
181 (iii) set specific time and location conditions that allow the person to attend school
182 educational classes, or employment and to travel directly between those activities and the person's

183 home; and
184 (iv) waive all or part of the costs associated with home confinement if the person is
185 determined to be indigent by the court.
186 (e) The electronic monitoring described in this section may either be administered directly
187 by the appropriate corrections agency, probation monitoring agency, or by contract with a private
188 provider.
189 (f) The electronic monitoring provider shall cover the costs of waivers by the court under
190 Subsection (13)(c)(iv).
191 (14) (a) If supervised probation is ordered under Subsection (4)(e) or (5)(e):
192 (i) the court shall specify the period of the probation;
193 (ii) the person shall pay all of the costs of the probation; and
194 (iii) the court may order any other conditions of the probation.
195 (b) The court shall provide the probation described in this section by contract with a
196 probation monitoring agency or a private probation provider.
197 (c) The probation provider described in Subsection (14)(b) shall monitor the person's
198 compliance with all conditions of the person's sentence, conditions of probation, and court orders
199 received under this article and shall notify the court of any failure to comply with or complete that
200 sentence or those conditions or orders.
201 (d) (i) The court may waive all or part of the costs associated with probation if the person
202 is determined to be indigent by the court.
203 (ii) The probation provider described in Subsection (14)(b) shall cover the costs of waivers
204 by the court under Subsection (14)(d)(i).
205 (15) If a person is convicted of a violation of Subsection (2) and there is admissible
206 evidence that the person had a blood alcohol level of .16 or higher, then if the court does not order:
207 (a) treatment as described under Subsection (4)(d), (5)(d), or (6)(b)(iii), then the court shall
208 enter the reasons on the record; and
209 (b) the following penalties, the court shall enter the reasons on the record:
210 (i) the installation of an ignition interlock system as a condition of probation for the person
211 in accordance with Section 41-6-44.7 ; or
212 (ii) the imposition of home confinement through the use of electronic monitoring in
213 accordance with Subsection (13).

214 Section 2. Effective date.
215 This act takes effect on July 1, 2001.




Legislative Review Note
as of 1-30-01 3:19 PM

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

Office of Legislative Research and General Counsel