Download Zipped Enrolled WP 9 HB0016.ZIP 20,638 Bytes
[Introduced][Amended][Status][Bill Documents][Fiscal Note][Bills Directory]

H.B. 16 Enrolled

                 

BLOOD AND BREATH ALCOHOL TESTING

                 
2002 GENERAL SESSION

                 
STATE OF UTAH

                 
Sponsor: Paul Ray

                  This act modifies provisions of the Motor Vehicle Code and the Criminal Code relating to
                  testing of blood or breath alcohol levels in driving under the influence cases, automobile
                  homicide cases, flying under the influence cases, and boating under the influence cases.
                  This act affects sections of Utah Code Annotated 1953 as follows:
                  AMENDS:
                      41-6-44, as last amended by Chapters 64, 289, 309 and 355, Laws of Utah 2001
                      41-6-44.5, as last amended by Chapter 161, Laws of Utah 1993
                      41-6-44.12, as enacted by Chapter 157, Laws of Utah 1999
                      53-3-418, as last amended by Chapter 85, Laws of Utah 2001
                      72-10-501, as renumbered and amended by Chapter 270, Laws of Utah 1998
                      72-10-504, as renumbered and amended by Chapter 270, Laws of Utah 1998
                      73-18-12.2, as last amended by Chapter 94, Laws of Utah 1998
                      73-18-12.4, as enacted by Chapter 118, Laws of Utah 1987
                      76-5-207, as last amended by Chapter 161, Laws of Utah 1993
                  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 subsequent 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] at the time of the test;
                      (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[.]; or

- 2 -


                      (iii) has a blood or breath alcohol concentration of .08 grams or greater at the time of
                  operation or actual physical control.
                      (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;
                      (B) had a passenger under 16 years of age in the vehicle at the time of the offense; or
                      (C) was 21 years of age or older and had a passenger under 18 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;

- 3 -


                      (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)(i) Except as provided in Subsection (4)(e)(ii), the court may order probation for the
                  person in accordance with Subsection (14).
                      (ii) If there is admissible evidence that the person had a blood alcohol level of .16 or higher,
                  the court shall order probation for the person in accordance with Subsection (14).
                      (5) (a) If a person is convicted under Subsection (2) within ten 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).
                      (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 shall order probation for the person in accordance with Subsection (14).
                      (6) (a) A conviction for a violation of Subsection (2) is a third degree felony if it is
                  committed:
                      (i) within ten years of two or more prior convictions under this section; or

- 4 -


                      (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
                  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).

- 5 -


                      (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 .
                      (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 ten 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).

- 6 -


                      (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, one year, or two years 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:
                      (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

- 7 -


                  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 Section 41-6-44.6 or 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.
                      (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

- 8 -


                      (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).
                      Section 2. Section 41-6-44.5 is amended to read:
                       41-6-44.5. Admissibility of chemical test results in actions for driving under the
                  influence -- Weight of evidence.
                      (1) (a) In any civil or criminal action or proceeding in which it is material to prove that a
                  person was operating or in actual physical control of a vehicle while under the influence of alcohol
                  or drugs or with a blood or breath alcohol content statutorily prohibited, the results of a chemical test
                  or tests as authorized in Section 41-6-44.10 are admissible as evidence.
                      (b) In a criminal proceeding, noncompliance with Section 41-6-44.10 does not render the
                  results of a chemical test inadmissible. Evidence of a defendant's blood or breath alcohol content or
                  drug content is admissible except when prohibited by Rules of Evidence or the constitution.
                      [(2) If the chemical test was taken more than two hours after the alleged driving or actual
                  physical control, the test result is admissible as evidence of the person's blood or breath alcohol level
                  at the time of the alleged operating or actual physical control, but the trier of fact shall determine
                  what weight is given to the result of the test.]
                      [(3)] (2) This section does not prevent a court from receiving otherwise admissible evidence
                  as to a defendant's blood or breath alcohol level or drug level at the time [of the alleged operating
                  or actual physical control] relevant to the alleged offense.
                      Section 3. Section 41-6-44.12 is amended to read:
                       41-6-44.12. Reporting test results -- Immunity from liability.
                      (1) As used in this section, "health care provider" means a person licensed under Title 58,
                  Chapter 31b, Nurse Practice Act, Title 58, Chapter 67, Utah Medical Practice Act, or Title 58,
                  Chapter 68, Utah Osteopathic Medical Practice Act.
                      (2) A health care provider who is providing medical care to any person involved in a motor

- 9 -


                  vehicle crash may notify, as soon as reasonably possible, the nearest peace officer or law
                  enforcement agency if the health care provider has reason to believe, as a result of any test performed
                  in the course of medical treatment, that the:
                      (a) person's blood alcohol concentration meets or exceeds the limit under Subsection
                  41-6-44 (2)(a)(i) or (iii);
                      (b) person is younger than 21 years of age and has any measurable blood, breath, or urine
                  alcohol concentration in the person's body; or
                      (c) person has any measurable controlled substance or metabolite of a controlled substance
                  in the person's body which could be a violation of Subsection 41-6-44 (2)(a)(ii) or Section 41-6-44.6 .
                      (3) The report under Subsection (2) shall consist of the:
                      (a) name of the person being treated;
                      (b) date and time of the administration of the test; and
                      (c) results disclosed by the test.
                      (4) A health care provider participating in good faith in making a report or assisting an
                  investigator from a law enforcement agency pursuant to this section is immune from any liability,
                  civil or criminal, that otherwise might result by reason of those actions.
                      (5) A report under Subsection (2) may not be used to support a finding of probable cause that
                  a person who is not a driver of a vehicle has committed an offense.
                      Section 4. Section 53-3-418 is amended to read:
                       53-3-418. Prohibited alcohol level for drivers -- Procedures, including hearing.
                      (1) A person who holds or is required to hold a CDL may not drive a commercial motor
                  vehicle in this state if the person:
                      (a) has [a blood, breath, or urine alcohol concentration of .04 grams or greater as shown by
                  a chemical test given within two hours] sufficient alcohol in his body that a subsequent chemical test
                  shows that the person has a blood or breath alcohol concentration of .04 grams or greater at the time
                  of the test after the alleged driving of the commercial motor vehicle; or
                      (b) is under the influence of alcohol, any drug, or the combined influence of alcohol and any
                  drug to [any] degree that renders the person incapable of safely driving a commercial motor

- 10 -


                  vehicle[.]; or
                      (c) has a blood or breath alcohol concentration of .04 grams or greater at the time of driving
                  the commercial motor vehicle.
                      (2) A person who holds or is required to hold a CDL and who drives a commercial motor
                  vehicle in this state is considered to have given his consent to a test or tests of his blood, breath, or
                  urine to determine the concentration of alcohol or the presence of other drugs in his physical system.
                      (3) If a peace officer or port-of-entry agent has reasonable cause to believe that a person may
                  be violating this section, the peace officer or port-of-entry agent may request the person to submit
                  to a chemical test to be administered in compliance with Section 41-6-44.3 .
                      (4) When a peace officer or port-of-entry agent requests a person to submit to a test under
                  this section, he shall advise the person that test results indicating .04 grams or greater alcohol
                  concentration or refusal to submit to any test requested will result in the person's disqualification
                  under Section 53-3-414 from driving a commercial motor vehicle.
                      (5) If test results under this section indicate .04 grams or greater of alcohol concentration or
                  the person refuses to submit to any test requested under this section, the peace officer or port-of-entry
                  agent shall on behalf of the division serve the person with immediate notice of the division's
                  intention to disqualify the person's privilege to drive a commercial motor vehicle.
                      (6) When the peace officer or port-of-entry agent serves notice under Subsection (5) he shall:
                      (a) take any Utah license certificate or permit held by the driver;
                      (b) issue to the driver a temporary license certificate effective for 29 days;
                      (c) provide the driver, in a manner specified by the division, basic information regarding                   how
                  to obtain a prompt hearing before the division; and
                      (d) issue a 24-hour out-of-service order.
                      (7) A notice of disqualification issued under Subsection (6) may serve also as the temporary
                  license certificate under that subsection, if the form is approved by the division.
                      (8) As a matter of procedure, the peace officer or port-of-entry agent serving the notice of
                  disqualification shall, within ten calendar days after the date of service, send to the division the
                  person's license certificate, a copy of the served notice, and a report signed by the peace officer or

- 11 -


                  port-of-entry agent that indicates the results of any chemical test administered or that the person
                  refused a test.
                      (9) (a) The person has the right to a hearing regarding the disqualification.
                      (b) The request for the hearing shall be submitted to the division in a manner specified by
                  the division and shall be made within ten calendar days of the date the notice was issued. If
                  requested, the hearing shall be conducted within 29 days after the notice was issued.
                      (10) (a) A hearing held under this section shall be held before the division and in the county
                  where the notice was issued, unless the division agrees to hold the hearing in another county.
                      (b) The hearing shall be documented and shall determine:
                      (i) whether the peace officer or port-of-entry agent had reasonable grounds to believe the
                  person had been driving a motor vehicle in violation of this section;
                      (ii) whether the person refused to submit to any requested test; and
                      (iii) any test results obtained.
                      (c) In connection with a hearing the division or its authorized agent may administer oaths
                  and may issue subpoenas for the attendance of witnesses and the production of relevant books and
                  documents.
                      (d) One or more members of the division may conduct the hearing.
                      (e) A decision made after a hearing before any number of members of the division is as valid
                  as if the hearing were held before the full membership of the division.
                      (f) After a hearing under this section the division shall indicate by order if the person's CDL
                  is disqualified.
                      (g) If the person for whom the hearing is held fails to appear before the division as required
                  in the notice, the division shall indicate by order if the person's CDL is disqualified.
                      (11) If the division disqualifies a person under this section, the person may petition for a
                  hearing under Section 53-3-224 . The petition shall be filed within 30 days after the division issues
                  the disqualification.
                      (12) (a) A person who violates this section shall be punished in accordance with Section
                  53-3-414 .

- 12 -


                      (b) In accordance with Section 53-3-414 , the first disqualification under this section shall
                  be for one year, and a second disqualification shall be for life.
                      (13) (a) In addition to the fees imposed under Section 53-3-205 for reinstatement of a CDL,
                  a fee under Section 53-3-105 to cover administrative costs shall be paid before the driving privilege
                  is reinstated.
                      (b) The fees under Sections 53-3-105 and 53-3-205 shall be canceled if an unappealed
                  hearing at the division or court level determines the disqualification was not proper.
                      Section 5. Section 72-10-501 is amended to read:
                       72-10-501. Flying under the influence of alcohol, drugs, or with specified or unsafe
                  blood alcohol concentration -- Calculations of blood or breath alcohol -- Criminal punishment
                  -- Arrest without warrant.
                      (1) (a) A person may not operate or be in actual physical control of an aircraft within this
                  state if the person:
                      (i) [has a blood or breath alcohol concentration of .04 grams or greater as shown by a
                  chemical test given within two hours after the alleged operation or physical control; or] has sufficient
                  alcohol in his body that a subsequent chemical test shows that the person has a blood or breath
                  alcohol concentration of .04 grams or greater at the time of the test;
                      (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 an aircraft[.]; or
                      (iii) has a blood or breath alcohol concentration of .04 grams or greater at the time of
                  operation or actual physical control.
                      (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.
                      (2) [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.] Calculations of blood or breath alcohol concentration under this section shall
                  be made in accordance with Subsection 41-6-44 (2).
                      (3) (a) A person convicted of a violation of Subsection (1) is guilty of a:

- 13 -


                      (i) class B misdemeanor; or
                      (ii) class A misdemeanor if the person has also inflicted bodily injury upon another as a
                  proximate result of having operated the aircraft in a negligent manner.
                      (b) In this section, 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.
                      (4) A peace officer may, without a warrant, arrest a person for a violation of this section
                  when the officer has probable cause to believe:
                      (a) the violation has occurred, although not in the officer's presence; and
                      (b) the violation was committed by that person.
                      Section 6. Section 72-10-504 is amended to read:
                       72-10-504. Admissibility of chemical test results in actions for flying under the
                  influence -- Weight of evidence.
                      (1) (a) In any civil or criminal action or proceeding in which it is material to prove that a
                  person was operating or in actual physical control of an aircraft while under the influence of alcohol,
                  drugs, or with a blood or breath alcohol content statutorily prohibited, the results of a chemical test
                  or tests as authorized in Section 72-10-502 are admissible as evidence.
                      (b) (i) In a criminal proceeding, noncompliance with Section 72-10-502 does not render the
                  results of the chemical test inadmissible.
                      (ii) Evidence of a defendant's blood or breath alcohol content or drug content is admissible
                  except when prohibited by Rules of Evidence or the constitution.
                      [(2) If the chemical test was taken more than two hours after the alleged flying or actual
                  physical control, the test result is admissible as evidence of the person's blood or breath alcohol level
                  at the time of the alleged operating or actual physical control, but the trier of fact shall determine
                  what weight is given to the result of the test.]
                      [(3)] (2) This section does not prevent a court from receiving otherwise admissible evidence
                  as to a defendant's blood or breath alcohol level or drug level at the time [of the alleged operating
                  or actual physical control] relevant to the alleged offense.

- 14 -


                      Section 7. Section 73-18-12.2 is amended to read:
                       73-18-12.2. Boating under the influence of alcohol or drugs or with high blood or
                  breath alcohol content -- Criminal punishment -- Arrest without a warrant.
                      (1) (a) [It is unlawful and punishable as provided in this section for any] A person [to] may
                  not operate a vessel on the waters of this state if the person:
                      (i) [the person has a blood or breath alcohol concentration of .08 grams or greater, as shown
                  by any chemical test given within two hours after the alleged operation; or] has sufficient alcohol
                  in his body that a subsequent chemical test shows that the person has a blood or breath alcohol
                  concentration of .08 grams or greater at the time of the test;
                      (ii) [the person] is under the influence of alcohol or any drug or the combined influence of
                  alcohol and any drug to a degree which renders the person incapable of safely operating a vessel[.];
                  or
                      (iii) has a blood or breath alcohol concentration of .08 grams or greater at the time of
                  operation or actual physical control.
                      (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.
                      (2) [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.] Calculations of blood or breath alcohol concentration under this section shall
                  be made in accordance with Subsection 41-6-44 (2).
                      (3) For the purposes of this section, the standard of negligence is that of simple negligence,
                  the failure to exercise that degree of care which an ordinarily reasonable and prudent person
                  exercises under like or similar circumstances.
                      (4) (a) Every person who is convicted of a violation of Subsection (1) is guilty of a class B
                  misdemeanor, however, if the person has inflicted a bodily injury upon another as a proximate result
                  of having operated the vessel in a negligent manner, he is guilty of a class A misdemeanor.
                      (b) No portion of any sentence imposed under Subsection (4)(a) may be suspended.
                      (5) In addition to the penalties provided for in Subsection (4), the court shall, upon a first

- 15 -


                  conviction of a violation of this section:
                      (a) impose a mandatory jail sentence of not less than 48 consecutive hours nor more than 240
                  hours, with emphasis on serving in the drunk tank of the jail, or require the person to work in a
                  compensatory-service work program for not less than 24 nor more than 50 hours; and
                      (b) order the person to participate in an assessment and educational series at a licensed
                  alcohol rehabilitation facility.
                      (6) Upon a second conviction within five years after a first conviction under this section or
                  under a local ordinance similar to this section adopted in compliance with Section 73-18-12.1 , the
                  court shall, in addition to the penalties provided for in Subsection (4):
                      (a) impose a mandatory jail sentence of not less than 240 consecutive hours nor more than
                  720 hours, with emphasis on serving in the drunk tank of the jail, or require the person to work in
                  a compensatory-service work program for not less than 80 nor more than 240 hours; and
                      (b) order the person to participate in an assessment and educational series at a licensed
                  alcohol rehabilitation facility. The court may, in its discretion, order the person to obtain treatment
                  at an alcohol rehabilitation facility.
                      (7) Upon a subsequent conviction within five years after a second conviction under this
                  section or under a local ordinance similar to this section adopted in compliance with Section
                  73-18-12.1 , the court shall, in addition to the penalties provided for in Subsection (4):
                      (a) impose a mandatory jail sentence of not less than 720 consecutive hours nor more than
                  2,160 hours with emphasis on serving in the drunk tank of the jail, or require the person to work in
                  a compensatory-service work program for not less than 240 nor more than 720 hours; and
                      (b) order the person to obtain treatment at an alcohol rehabilitation facility.
                      (8) A person convicted of a violation of this section 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 of this section or a local ordinance similar to this section adopted in
                  compliance with Section 73-18-12.1 may not be terminated until all fines and fees, including fees
                  for restitution and rehabilitation costs, assessed against the convicted person, have been paid.
                      (9) (a) The provisions in Subsections (5), (6), and (7) requiring a sentencing court to order

- 16 -


                  a convicted person to participate in an assessment and educational series at a licensed alcohol
                  rehabilitation facility or to obtain treatment at an alcohol rehabilitation facility apply to a conviction
                  for a violation of Section 73-18-12 that qualifies as a prior offense under Subsection (10). A court
                  shall render the same order regarding education or treatment at an alcohol rehabilitation facility for
                  a first, second, or subsequent conviction under Section 73-18-12 that qualifies as a prior offense
                  under Subsection (10), as the court would render for a first, second, or subsequent conviction of a
                  violation of Subsection (1).
                      (b) For purposes of determining whether a conviction under Section 73-18-12 which
                  qualified as a prior conviction under Subsection (10) is a first, second, or subsequent conviction
                  under this Subsection (9), a previous conviction under either Section 73-18-12 or 73-18-12.2 is
                  considered a prior conviction. Any alcohol rehabilitation program and any community-based or
                  other education program provided for in this section shall be approved by the Department of Human
                  Services.
                      (10) (a) When the prosecution agrees to a plea of guilty or no contest to a charge of a
                  violation of Section 73-18-12 or of a local ordinance similar to that section adopted in compliance
                  with Section 73-18-12.1 , the prosecution shall state for the record a factual basis for the plea,
                  including whether there had been consumption of alcohol or drugs by the defendant in connection
                  with the offense. The statement shall be an offer of proof of the facts which shows whether there
                  was consumption of alcohol or drugs in connection with the offense.
                      (b) The court shall advise the defendant before accepting the plea offered under this
                  subsection of the consequences of a violation of Section 73-18-12 as follows. If the court accepts
                  the defendant's plea of guilty or no contest to a charge of violating Section 73-18-12 , and the
                  prosecutor states for the record that there was consumption of alcohol or drugs by the defendant in
                  connection with the offense, the resulting conviction is a prior offense for the purposes of Subsection
                  (9).
                      (11) A peace officer may, without a warrant, arrest a person for a violation of this section
                  when the peace officer has probable cause to believe the violation has occurred, although not in his
                  presence, and if the peace officer has probable cause to believe that the violation was committed by

- 17 -


                  the person.
                      Section 8. Section 73-18-12.4 is amended to read:
                       73-18-12.4. Operating under the influence -- Admissibility of chemical test -- Other
                  evidence.
                      (1) In any action or proceeding in which it is material to prove that a person was operating
                  a vessel while under the influence of alcohol or with a blood or breath alcohol content statutorily
                  prohibited, the results of any chemical test as authorized in Section 73-18-12.6 are admissible as
                  evidence.
                      [(2) If the chemical test was taken more than two hours after the alleged operation, the test
                  result is admissible as evidence of the person's blood or breath alcohol level at the time of the alleged
                  operation, but the trier of fact shall determine what weight shall be given to the test results.]
                      [(3)] (2) The provisions of this section do not prevent a court from receiving any other
                  admissible evidence as to a defendant's blood or breath alcohol level at the time [of the alleged
                  operation] relevant to the alleged offense.
                      Section 9. Section 76-5-207 is amended to read:
                       76-5-207. Automobile homicide.
                      (1) (a) Criminal homicide is automobile homicide, a third degree felony, if the [actor] person
                  operates a motor vehicle [while having a blood alcohol content of .08% or greater by weight, or
                  while under the influence of alcohol, any drug, or the combined influence of alcohol and any drug,
                  to a degree that renders the actor incapable of safely operating the vehicle, and causes the death of
                  another by operating the vehicle] in a negligent manner[.] causing the death of another and:
                      (i) has sufficient alcohol in his body that a subsequent chemical test shows that the person
                  has a blood or breath alcohol concentration of .08 grams or greater at the time of the test;
                      (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; or
                      (iii) has a blood or breath alcohol concentration of .08 grams or greater at the time of
                  operation.
                      (b) For the purpose of this subsection, "negligent" means simple negligence, the failure to

- 18 -


                  exercise that degree of care that reasonable and prudent persons exercise under like or similar
                  circumstances.
                      (2) (a) Criminal homicide is automobile homicide, a second degree felony, if the [actor]
                  person operates a motor vehicle [while having a blood alcohol content of .08% or greater by weight,
                  or while under the influence of alcohol, any drug, or the combined influence of alcohol and any drug,
                  to a degree that renders the actor incapable of safely operating the vehicle, and causes the death of
                  another by operating the motor vehicle] in a criminally negligent manner[.] causing the death of
                  another and:
                      (i) has sufficient alcohol in his body that a subsequent chemical test shows that the person
                  has a blood or breath alcohol concentration of .08 grams or greater at the time of the test;
                      (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; or
                      (iii) has a blood or breath alcohol concentration of .08 grams or greater at the time of
                  operation.
                      (b) For the purpose of this [subsection] section, "criminally negligent" means criminal
                  negligence as defined by Subsection 76-2-103 (4).
                      (3) The standards for chemical breath analysis as provided by Section 41-6-44.3 and the
                  provisions for the admissibility of chemical test results as provided by Section 41-6-44.5 apply to
                  determination and proof of blood alcohol content under this section.
                      (4) [Percent by weight of alcohol in the blood is based upon grams of alcohol per one
                  hundred cubic centimeters of blood.] Calculations of blood or breath alcohol concentration under
                  this section shall be made in accordance with Subsection 41-6-44 (2).
                      (5) The fact that a person charged with violating this section is [on] or has been legally
                  entitled to use alcohol or a drug is not a defense to any charge of violating this section.
                      (6) Evidence of a defendant's blood or breath alcohol content or drug content is admissible
                  except when prohibited by Rules of Evidence or the constitution.
                      (7) For purposes of this section, "motor vehicle" means any self-propelled vehicle and
                  includes any automobile, truck, van, motorcycle, train, engine, watercraft, or aircraft.

- 19 -


                 

- 20 -


[Bill Documents][Bills Directory]