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S.B. 56 Enrolled

                 

DRIVING UNDER THE INFLUENCE PENALTY AMENDMENTS

                 
2001 GENERAL SESSION

                 
STATE OF UTAH

                 
Sponsor: Karen Hale

                  This act modifies the Motor Vehicles Code by expanding the felony driving while intoxicated
                  violations.
                  This act affects sections of Utah Code Annotated 1953 as follows:
                  AMENDS:
                      41-6-44, as last amended by Chapters 333 and 334, Laws of Utah 2000
                  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) "educational series" means an educational series obtained at a substance abuse program
                  that is approved by the Board of Substance Abuse in accordance with Section 62A-8-107 ;
                      (b) "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;
                      (c) "screening and assessment" means a substance abuse addiction and dependency
                  screening and assessment obtained at a substance abuse program that is approved by the Board of


                  Substance Abuse in accordance with Section 62A-8-107 ;
                      (d) "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;
                      (e) "substance abuse treatment" means treatment obtained at a substance abuse program that
                  is approved by the Board of Substance Abuse in accordance with Section 62A-8-107 ;
                      (f) "substance abuse treatment program" means a state licensed substance abuse program;
                      (g) 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
                      (h) 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:

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                      (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
                  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 a screening and assessment;
                      (ii) order the person to participate in an educational series if the court does not order
                  substance abuse treatment as described under Subsection (4)(d); and
                      (iii) impose a fine of not less than $700.
                      (d) The court may order the person to obtain substance abuse treatment if the substance abuse
                  treatment program determines that substance abuse treatment is appropriate.
                      (e) The court may order probation for the person in accordance with Subsection (14).
                      (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 240 hours; or
                      (ii) participate in home confinement through the use of electronic monitoring in accordance
                  with Subsection (13).

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                      (c) In addition to the jail sentence, compensatory-service work program, or home
                  confinement, the court shall:
                      (i) order the person to participate in a screening and assessment;
                      (ii) order the person to participate in an educational series if the court does not order
                  substance abuse treatment as described under Subsection (5)(d); and
                      (iii) impose a fine of not less than $800.
                      (d) The court may order the person to obtain substance abuse treatment if the substance
                  abuse treatment program determines that substance abuse treatment is appropriate.
                      (e) The court may order probation for the person in accordance with Subsection (14).
                      (6) (a) A [third or subsequent] conviction for a violation of Subsection (2) is a third degree
                  felony if it is committed:
                      (i) within six years of two or more prior convictions under this section [is a third degree
                  felony.]; or
                      (ii) at any time after a conviction of:
                      (A) automobile homicide under Section 76-5-207 that is committed after July 1, 2001; or
                      (B) a felony violation under this section that is committed after July 1, 2001.
                      (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; and
                      (ii) a mandatory jail sentence of not less than 1,500 hours.
                      (c) For Subsection (6)(a) or (b), the court shall impose an order requiring the person to
                  obtain a screening and assessment and substance abuse treatment at a substance abuse treatment
                  program providing intensive care or inpatient treatment and long-term closely supervised
                  follow-through after treatment for not less than 240 hours.
                      (d) 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) The mandatory portion of any sentence required under this section may not be suspended

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                  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.
                      (8) (a) (i) The provisions in Subsections (4), (5), and (6) that require a sentencing court to
                  order a convicted person to: participate in a screening and assessment; and an educational series;
                  obtain, in the discretion of the court, substance abuse treatment; obtain, mandatorily, substance abuse
                  treatment; 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 screening and assessment, an educational
                  series, or substance abuse treatment 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) If a person fails to complete all court ordered screening and assessment, educational
                  series, and substance abuse treatment, or fails to pay all fines and fees, including fees for restitution
                  and treatment costs, the court shall notify the Driver License Division of a failure to comply. Upon
                  receiving the notification, the division shall suspend the person's driving privilege in accordance with
                  Subsections 53-3-221 (2) and (3).
                      (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 .

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                      (c) The court shall notify the Driver License Division 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
                  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 Driver License Division 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 Driver License Division 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 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:

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                      (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.
                      (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 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) (a) If supervised probation is ordered under Subsection (4)(e) or (5)(e):
                      (i) the court shall specify the period of the probation;
                      (ii) the person shall pay all of the costs of the probation; and
                      (iii) the court may order any other conditions of the probation.
                      (b) The court shall provide the probation described in this section by contract with a
                  probation monitoring agency or a private probation provider.

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                      (c) The probation provider described in Subsection (14)(b) shall monitor the person's
                  compliance with all conditions of the person's sentence, conditions of probation, and court orders
                  received under this article and shall notify the court of any failure to comply with or complete that
                  sentence or those conditions or orders.
                      (d) (i) The court may waive all or part of the costs associated with probation if the person
                  is determined to be indigent by the court.
                      (ii) The probation provider described in Subsection (14)(b) shall cover the costs of waivers
                  by the court under Subsection (14)(d)(i).
                      (15) 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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