H.B. 17 Enrolled

MULTIPLE DRIVING UNDER THE
INFLUENCE OFFENSES
2002 GENERAL SESSION
STATE OF UTAH
Sponsor: A. Lamont Tyler
This act modifies the Motor Vehicle Code by amending Driving Under the Influence (DUI)
prior conviction definition to include driving with drugs or a combination of both in the
body. The act includes original DUI related offenses that are reduced by the court as prior
convictions in subsequent DUI cases and in driver license suspensions.
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
41-6-44.6, as last amended by Chapter 355, Laws of Utah 2001
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 a combination of both 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] (a) "conviction" means any conviction for a violation of:
(i) this section;
(ii) [alcohol-related] alcohol, any drug, or a combination of both-related reckless driving
under Subsections (9) and (10);
(iii) Section 41-6-44.6 , driving with any measurable controlled substance that is taken
illegally in the body;

[(iii)] (iv) local ordinances similar to this section or [alcohol-related] alcohol, any drug, or
a combination of both-related reckless driving adopted in compliance with Section 41-6-43 ;
[(iv)] (v) automobile homicide under Section 76-5-207 ; or
(vi) a violation described in Subsections (1)(a)(i) through (v), which judgment of conviction
is reduced under Section 76-3-402 ; or
[(v)] (vii) 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] alcohol, any drug, or a combination of both-related reckless driving if committed
in this state, including punishments administered under 10 U.S.C. Sec. 815;
(b) "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 ;
(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

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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;
(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

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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)(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

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[committed]:
(i) a third or subsequent conviction under this section within ten years of two or more prior
convictions [under this section]; 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) Any conviction described in this Subsection (6) which judgment of conviction is reduced
under Section 76-3-402 is a conviction for purposes of this section.
[(b)] (c) 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)] (d) For Subsection (6)(a) or [(b)] (c), 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)] (e) In addition to the penalties required under Subsection (6)[(b)](c), 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).

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(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 .
(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

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Subsection (2);
(ii) revoke for one year the license of a person convicted of any subsequent offense under
Subsection (2) or if the person has a prior conviction as defined under Subsection (1) 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).
(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:

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(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 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

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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)](d), 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).
Section 2. Section 41-6-44.6 is amended to read:
41-6-44.6. Definitions -- Driving with any measurable controlled substance in the body
-- Penalties -- Arrest without warrant.
(1) As used in this section:
(a) "Controlled substance" means any substance scheduled under Section 58-37-4 .
(b) "Practitioner" has the same meaning as provided in Section 58-37-2 .
(c) "Prescribe" has the same meaning as provided in Section 58-37-2 .
(d) "Prescription" has the same meaning as provided in Section 58-37-2 .
(2) In cases not amounting to a violation of Section 41-6-44 , a person may not operate or be
in actual physical control of a motor vehicle within this state if the person has any measurable
controlled substance or metabolite of a controlled substance in the person's body.
(3) It is an affirmative defense to prosecution under this section that the controlled substance
was involuntarily ingested by the accused or prescribed by a practitioner for use by the accused.
(4) A person convicted of a violation of Subsection (2) is guilty of a class B misdemeanor.
(5) 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 the
officer's presence, and if the officer has probable cause to believe that the violation was committed
by the person.

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(6) The Driver License Division shall:
(a) suspend, for 90 days, the driver license of a person convicted under Subsection (2);
(b) revoke, for one year, the driver license of a person convicted of a second or subsequent
offense under Subsection (2) or if the person has a prior conviction as defined under Subsection
41-6-44 (1), if the violation is committed within a period of [six] ten years after the date of the prior
violation; and
(c) 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.
(7) 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).
(8) The court shall order supervised probation in accordance with Subsection 41-6-44 (14)
for a person convicted under Subsection (2).

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