Second Substitute H.B. 128

This document includes Senate Committee Amendments incorporated into the bill on Mon, Feb 23, 2004 at 3:22 PM by smaeser. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Mar 1, 2004 at 11:18 AM by smaeser. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Mar 1, 2004 at 11:28 AM by smaeser. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Mar 1, 2004 at 2:57 PM by smaeser. -->

Representative Dana C. Love proposes the following substitute bill:

1 AMENDMENTS TO OPERATING UNDER THE
2 INFLUENCE
3 2004 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Dana C. Love
6
7 LONG TITLE
8 General Description:
9 This bill modifies the Motor Vehicles Code, the Public Safety Code, and the
10 Transportation Code to amend provisions relating to operating a vehicle or aircraft
11 while under the influence.
12 Highlighted Provisions:
13 This bill:
14 . provides that the illegal per se limit of blood or breath alcohol concentration is .05
15 for a driving under the influence conviction if a person:
16 . is 21 years of age or older;
17 . has a passenger under 16 years of age in the vehicle; and
18 . has had a prior driving under the influence conviction;
19 . provides that chemical analysis of a person's oral fluids is an authorized chemical
20 test under the implied consent provisions;
21 . requires the commissioner of the Department of Public Safety to establish standards
22 for the administration, interpretation, and training of chemical analysis of oral
23 fluids;
24 . provides that a person is guilty of a class B misdemeanor if the person:
25 . is driving while the person's license has been suspended, disqualified, or

26 revoked for a driving under the influence violation; and
27 . has any amount of alcohol in the person's body;
28 . provides sentencing requirements for driving on a license suspended for certain
29 violations with any amount of alcohol in the body;
30 . provides that a driver license can be suspended for an additional period for driving
31 on a license suspended for certain violations with any amount of alcohol in the
32 body;
33 . requires the Commission on Criminal and Juvenile Justice to study child
34 endangerment for driving under the influence violations and report to the
35 Transportation Interim Committee on or before the November 2004 interim
36 meeting; and
37 . makes technical changes.
38 Monies Appropriated in this Bill:
39 None
40 Other Special Clauses:
41 None
42 Utah Code Sections Affected:
43 AMENDS:
44 41-6-44, as last amended by Chapter 8, Laws of Utah 2002, Fifth Special Session
45 41-6-44.3, as last amended by Chapter 138, Laws of Utah 1987
46 41-6-44.10, as last amended by Chapter 185, Laws of Utah 2002
47 41-6-44.12, as last amended by Chapter 106, Laws of Utah 2002
48 53-3-220, as last amended by Chapter 72, Laws of Utah 2003
49 53-3-227, as last amended by Chapter 47, Laws of Utah 1996
50 72-10-502, as renumbered and amended by Chapter 270, Laws of Utah 1998
51 72-10-503, as renumbered and amended by Chapter 270, Laws of Utah 1998
52 76-10-528, as enacted by Chapter 23, Laws of Utah 1995
53 Uncodified Material Affected:
54 ENACTS UNCODIFIED MATERIAL
55
56 Be it enacted by the Legislature of the state of Utah:

57 Section 1. Section 41-6-44 is amended to read:
58 41-6-44. Driving under the influence of alcohol, drugs, or a combination of both
59 or with specified or unsafe blood alcohol concentration -- Measurement of blood or
60 breath alcohol -- Criminal punishment -- Arrest without warrant -- Penalties --
61 Suspension or revocation of license.
62 (1) As used in this section:
63 (a) "conviction" means any conviction for a violation of:
64 (i) this section;
65 (ii) alcohol, any drug, or a combination of both-related reckless driving under
66 Subsections (9) and (10);
67 (iii) Section 41-6-44.6 , driving with any measurable controlled substance that is taken
68 illegally in the body;
69 (iv) local ordinances similar to this section or alcohol, any drug, or a combination of
70 both-related reckless driving adopted in compliance with Section 41-6-43 ;
71 (v) automobile homicide under Section 76-5-207 ; or
72 (vi) a violation described in Subsections (1)(a)(i) through (v), which judgment of
73 conviction is reduced under Section 76-3-402 ; or
74 (vii) statutes or ordinances in effect in any other state, the United States, or any district,
75 possession, or territory of the United States which would constitute a violation of this section
76 or alcohol, any drug, or a combination of both-related reckless driving if committed in this
77 state, including punishments administered under 10 U.S.C. Sec. 815;
78 (b) "educational series" means an educational series obtained at a substance abuse
79 program that is approved by the Board of Substance Abuse and Mental Health in accordance
80 with Section 62A-15-105 ;
81 (c) "screening and assessment" means a substance abuse addiction and dependency
82 screening and assessment obtained at a substance abuse program that is approved by the Board
83 of Substance Abuse and Mental Health in accordance with Section 62A-15-105 ;
84 (d) "serious bodily injury" means bodily injury that creates or causes serious permanent
85 disfigurement, protracted loss or impairment of the function of any bodily member or organ, or
86 creates a substantial risk of death;
87 (e) "substance abuse treatment" means treatment obtained at a substance abuse

88 program that is approved by the Board of Substance Abuse and Mental Health in accordance
89 with Section 62A-15-105 ;
90 (f) "substance abuse treatment program" means a state licensed substance abuse
91 program;
92 (g) a violation of this section includes a violation under a local ordinance similar to this
93 section adopted in compliance with Section 41-6-43 ; and
94 (h) the standard of negligence is that of simple negligence, the failure to exercise that
95 degree of care that an ordinarily reasonable and prudent person exercises under like or similar
96 circumstances.
97 (2) (a) A person may not operate or be in actual physical control of a vehicle within
98 this state if the person:
99 (i) has sufficient alcohol in [his] the person's body that a subsequent chemical test
100 shows that the person has a blood or breath alcohol concentration of .08 grams or greater at the
101 time of the test;
102 (ii) is under the influence of alcohol, any drug, or the combined influence of alcohol
103 and any drug to a degree that renders the person incapable of safely operating a vehicle; [or]
104 (iii) has a blood or breath alcohol concentration of .08 grams or greater at the time of
105 operation or actual physical control[.];
106 (iv) (A) is 21 years of age or older;
107 (B) has sufficient alcohol in the person's body that a subsequent chemical test shows
108 that the person has a blood or breath alcohol concentration of .05 grams or greater at the time
109 of the test;
110 (C) has a passenger under 16 years of age in the vehicle at the time of operation or
111 actual physical control; and
112 (D) committed the offense within ten years of a prior conviction; or
113 (v) (A) is 21 years of age or older;
114 (B) has a blood or breath alcohol concentration of .05 grams or greater at the time of
115 operation or actual physical control;
116 (C) has a passenger under 16 years of age in the vehicle at the time of operation or
117 actual physical control; and
118 (D) committed the offense within ten years of a prior conviction.

119 (b) The fact that a person charged with violating this section is or has been legally
120 entitled to use alcohol or a drug is not a defense against any charge of violating this section.
121 (c) Alcohol concentration in the blood shall be based upon grams of alcohol per 100
122 milliliters of blood, and alcohol concentration in the breath shall be based upon grams of
123 alcohol per 210 liters of breath.
124 (3) (a) A person convicted the first or second time of a violation of [Subsection (2)]
125 Subsections (2)(a)(i) through (2)(a)(iii) is guilty of a:
126 (i) class B misdemeanor; or
127 (ii) class A misdemeanor if the person:
128 (A) has also inflicted bodily injury upon another as a proximate result of having
129 operated the vehicle in a negligent manner;
130 (B) had a passenger under 16 years of age in the vehicle at the time of the offense; or
131 (C) was 21 years of age or older and had a passenger under 18 years of age in the
132 vehicle at the time of the offense.
133 (b) A person convicted of a violation of Subsection (2) is guilty of a third degree felony
134 if the person has also inflicted serious bodily injury upon another as a proximate result of
135 having operated the vehicle in a negligent manner.
136 (c) A person convicted of a violation of Subsection (2)(a)(iv) or (2)(a)(v) is guilty of:
137 (i) a class B misdemeanor; or
138 (ii) a class A misdemeanor if the person has also inflicted bodily injury upon another as
139 a proximate result of having operated the vehicle in a negligent manner.
140 (4) (a) As part of any sentence imposed the court shall, upon a first conviction, impose
141 a mandatory jail sentence of not less than 48 consecutive hours.
142 (b) The court may, as an alternative to all or part of a jail sentence, require the person
143 to:
144 (i) work in a compensatory-service work program for not less than 48 hours; or
145 (ii) participate in home confinement through the use of electronic monitoring in
146 accordance with Subsection (13).
147 (c) In addition to the jail sentence, compensatory-service work program, or home
148 confinement, the court shall:
149 (i) order the person to participate in a screening and assessment;

150 (ii) order the person to participate in an educational series if the court does not order
151 substance abuse treatment as described under Subsection (4)(d); and
152 (iii) impose a fine of not less than $700.
153 (d) The court may order the person to obtain substance abuse treatment if the substance
154 abuse treatment program determines that substance abuse treatment is appropriate.
155 (e) (i) Except as provided in Subsection (4)(e)(ii), the court may order probation for the
156 person in accordance with Subsection (14).
157 (ii) If there is admissible evidence that the person had a blood alcohol level of .16 or
158 higher, the court shall order probation for the person in accordance with Subsection (14).
159 (5) (a) If a person is convicted under Subsection (2) within ten years of a prior
160 conviction under this section, the court shall as part of any sentence impose a mandatory jail
161 sentence of not less than 240 consecutive hours.
162 (b) The court may, as an alternative to all or part of a jail sentence, require the person
163 to:
164 (i) work in a compensatory-service work program for not less than 240 hours; or
165 (ii) participate in home confinement through the use of electronic monitoring in
166 accordance with Subsection (13).
167 (c) In addition to the jail sentence, compensatory-service work program, or home
168 confinement, the court shall:
169 (i) order the person to participate in a screening and assessment;
170 (ii) order the person to participate in an educational series if the court does not order
171 substance abuse treatment as described under Subsection (5)(d); and
172 (iii) impose a fine of not less than $800.
173 (d) The court may order the person to obtain substance abuse treatment if the substance
174 abuse treatment program determines that substance abuse treatment is appropriate.
175 (e) The court shall order probation for the person in accordance with Subsection (14).
176 (6) (a) A conviction for a violation of Subsection (2) is a third degree felony if it is:
177 (i) a third or subsequent conviction under this section within ten years of two or more
178 prior convictions; or
179 (ii) at any time after a conviction of:
180 (A) automobile homicide under Section 76-5-207 that is committed after July 1, 2001;

181 or
182 (B) a felony violation under this section that is committed after July 1, 2001.
183 (b) Any conviction described in this Subsection (6) which judgment of conviction is
184 reduced under Section 76-3-402 is a conviction for purposes of this section.
185 (c) Under Subsection (3)(b) or (6)(a), if the court suspends the execution of a prison
186 sentence and places the defendant on probation the court shall impose:
187 (i) a fine of not less than $1,500; and
188 (ii) a mandatory jail sentence of not less than 1,500 hours.
189 (d) For Subsection (6)(a) or (c), the court shall impose an order requiring the person to
190 obtain a screening and assessment and substance abuse treatment at a substance abuse
191 treatment program providing intensive care or inpatient treatment and long-term closely
192 supervised follow-through after treatment for not less than 240 hours.
193 (e) In addition to the penalties required under Subsection (6)(c), if the court orders
194 probation, the probation shall be supervised probation which may include requiring the person
195 to participate in home confinement through the use of electronic monitoring in accordance with
196 Subsection (13).
197 (7) The mandatory portion of any sentence required under this section may not be
198 suspended and the convicted person is not eligible for parole or probation until any sentence
199 imposed under this section has been served. Probation or parole resulting from a conviction for
200 a violation under this section may not be terminated.
201 (8) (a) (i) The provisions in Subsections (4), (5), and (6) that require a sentencing court
202 to order a convicted person to: participate in a screening and assessment; and an educational
203 series; obtain, in the discretion of the court, substance abuse treatment; obtain, mandatorily,
204 substance abuse treatment; or do a combination of those things, apply to a conviction for a
205 violation of Section 41-6-44.6 or 41-6-45 under Subsection (9).
206 (ii) The court shall render the same order regarding screening and assessment, an
207 educational series, or substance abuse treatment in connection with a first, second, or
208 subsequent conviction under Section 41-6-44.6 or 41-6-45 under Subsection (9), as the court
209 would render in connection with applying respectively, the first, second, or subsequent
210 conviction requirements of Subsections (4), (5), and (6).
211 (b) The court shall notify the Driver License Division if a person fails to:

212 (i) complete all court ordered:
213 (A) screening and assessment;
214 (B) educational series;
215 (C) substance abuse treatment; and
216 (D) hours of work in compensatory-service work program; or
217 (ii) pay all fines and fees, including fees for restitution and treatment costs.
218 (c) Upon receiving the notification, the division shall suspend the person's driving
219 privilege in accordance with Subsections 53-3-221 (2) and (3).
220 (9) (a) (i) When the prosecution agrees to a plea of guilty or no contest to a charge of a
221 violation of Section 41-6-45 , of an ordinance enacted under Section 41-6-43 , or of Section
222 41-6-44.6 in satisfaction of, or as a substitute for, an original charge of a violation of this
223 section, the prosecution shall state for the record a factual basis for the plea, including whether
224 or not there had been consumption of alcohol, drugs, or a combination of both, by the
225 defendant in connection with the violation.
226 (ii) The statement is an offer of proof of the facts that shows whether there was
227 consumption of alcohol, drugs, or a combination of both, by the defendant, in connection with
228 the violation.
229 (b) The court shall advise the defendant before accepting the plea offered under this
230 Subsection (9)(b) of the consequences of a violation of Section 41-6-44.6 or of Section
231 41-6-45 .
232 (c) The court shall notify the Driver License Division of each conviction of Section
233 41-6-44.6 or 41-6-45 entered under this Subsection (9).
234 (10) A peace officer may, without a warrant, arrest a person for a violation of this
235 section when the officer has probable cause to believe the violation has occurred, although not
236 in [his] the officer's presence, and if the officer has probable cause to believe that the violation
237 was committed by the person.
238 (11) (a) The Driver License Division shall:
239 (i) suspend for 90 days the operator's license of a person convicted for the first time
240 under Subsection (2);
241 (ii) revoke for one year the license of a person convicted of any subsequent offense
242 under Subsection (2) or if the person has a prior conviction as defined under Subsection (1) if

243 the violation is committed within a period of ten years from the date of the prior violation; and
244 (iii) suspend or revoke the license of a person as ordered by the court under Subsection
245 (12).
246 (b) The Driver License Division shall subtract from any suspension or revocation
247 period the number of days for which a license was previously suspended under Section
248 53-3-223 or 53-3-231 , if the previous suspension was based on the same occurrence upon
249 which the record of conviction is based.
250 (12) (a) In addition to any other penalties provided in this section, a court may order
251 the operator's license of a person who is convicted of a violation of Subsection (2) to be
252 suspended or revoked for an additional period of 90 days, 180 days, one year, or two years to
253 remove from the highways those persons who have shown they are safety hazards.
254 (b) If the court suspends or revokes the person's license under this Subsection (12)(b),
255 the court shall prepare and send to the Driver License Division an order to suspend or revoke
256 that person's driving privileges for a specified period of time.
257 (13) (a) If the court orders a person to participate in home confinement through the use
258 of electronic monitoring, the electronic monitoring shall alert the appropriate corrections,
259 probation monitoring agency, law enforcement units, or contract provider of the defendant's
260 whereabouts.
261 (b) The electronic monitoring device shall be used under conditions which require:
262 (i) the person to wear an electronic monitoring device at all times;
263 (ii) that a device be placed in the home or other specified location of the person, so that
264 the person's compliance with the court's order may be monitored; and
265 (iii) the person to pay the costs of the electronic monitoring.
266 (c) The court shall order the appropriate entity described in Subsection (13)(e) to place
267 an electronic monitoring device on the person and install electronic monitoring equipment in
268 the residence of the person or other specified location.
269 (d) The court may:
270 (i) require the person's electronic home monitoring device to include a substance abuse
271 testing instrument;
272 (ii) restrict the amount of alcohol the person may consume during the time the person
273 is subject to home confinement;

274 (iii) set specific time and location conditions that allow the person to attend school
275 educational classes, or employment and to travel directly between those activities and the
276 person's home; and
277 (iv) waive all or part of the costs associated with home confinement if the person is
278 determined to be indigent by the court.
279 (e) The electronic monitoring described in this section may either be administered
280 directly by the appropriate corrections agency, probation monitoring agency, or by contract
281 with a private provider.
282 (f) The electronic monitoring provider shall cover the costs of waivers by the court
283 under Subsection (13)[(c)](d)(iv).
284 (14) (a) If supervised probation is ordered under Section 41-6-44.6 or Subsection (4)(e)
285 or (5)(e):
286 (i) the court shall specify the period of the probation;
287 (ii) the person shall pay all of the costs of the probation; and
288 (iii) the court may order any other conditions of the probation.
289 (b) The court shall provide the probation described in this section by contract with a
290 probation monitoring agency or a private probation provider.
291 (c) The probation provider described in Subsection (14)(b) shall monitor the person's
292 compliance with all conditions of the person's sentence, conditions of probation, and court
293 orders received under this article and shall notify the court of any failure to comply with or
294 complete that sentence or those conditions or orders.
295 (d) (i) The court may waive all or part of the costs associated with probation if the
296 person is determined to be indigent by the court.
297 (ii) The probation provider described in Subsection (14)(b) shall cover the costs of
298 waivers by the court under Subsection (14)(d)(i).
299 (15) If a person is convicted of a violation of Subsection (2) and there is admissible
300 evidence that the person had a blood alcohol level of .16 or higher, then if the court does not
301 order:
302 (a) treatment as described under Subsection (4)(d), (5)(d), or (6)(d), then the court shall
303 enter the reasons on the record; and
304 (b) the following penalties, the court shall enter the reasons on the record:

305 (i) the installation of an ignition interlock system as a condition of probation for the
306 person in accordance with Section 41-6-44.7 ; or
307 (ii) the imposition of home confinement through the use of electronic monitoring in
308 accordance with Subsection (13).
309 Section 2. Section 41-6-44.3 is amended to read:
310 41-6-44.3. Standards for chemical breath analysis -- Evidence.
311 (1) The commissioner of the Department of Public Safety shall establish standards for
312 the administration and interpretation of chemical analysis of a person's breath or oral fluids,
313 including standards of training.
314 (2) In any action or proceeding in which it is material to prove that a person was
315 operating or in actual physical control of a vehicle while under the influence of alcohol or any
316 drug or operating with a blood or breath alcohol content statutorily prohibited, documents
317 offered as memoranda or records of acts, conditions, or events to prove that the analysis was
318 made and the instrument used was accurate, according to standards established in Subsection
319 (1), are admissible if:
320 (a) the judge finds that they were made in the regular course of the investigation at or
321 about the time of the act, condition, or event; and
322 (b) the source of information from which made and the method and circumstances of
323 their preparation indicate their trustworthiness.
324 (3) If the judge finds that the standards established under Subsection (1) and the
325 conditions of Subsection (2) have been met, there is a presumption that the test results are valid
326 and further foundation for introduction of the evidence is unnecessary.
327 Section 3. Section 41-6-44.10 is amended to read:
328 41-6-44.10. Implied consent to chemical tests for alcohol or drugs -- Number of
329 tests -- Refusal -- Warning, report -- Hearing, revocation of license -- Appeal -- Person
330 incapable of refusal -- Results of test available -- Who may give test -- Evidence.
331 (1) (a) A person operating a motor vehicle in this state is considered to have given [his]
332 S [ that ] THE s person's consent to a chemical test or tests of [his] the person's breath, blood, [or]
332a urine, or
333 oral fluids for the purpose of determining whether [he] the person was operating or in actual
334 physical control of a motor vehicle while having a blood or breath alcohol content statutorily
335 prohibited under Section 41-6-44 , 53-3-231 , or 53-3-232 , while under the influence of alcohol,

336 any drug, or combination of alcohol and any drug under Section 41-6-44 , or while having any
337 measurable controlled substance or metabolite of a controlled substance in the person's body in
338 violation of Section 41-6-44.6 , if the test is or tests are administered at the direction of a peace
339 officer having grounds to believe that person to have been operating or in actual physical
340 control of a motor vehicle while having a blood or breath alcohol content statutorily prohibited
341 under Section 41-6-44 , 53-3-231 , or 53-3-232 , or while under the influence of alcohol, any
342 drug, or combination of alcohol and any drug under Section 41-6-44 , or while having any
343 measurable controlled substance or metabolite of a controlled substance in the person's body in
344 violation of Section 41-6-44.6 .
345 (b) (i) The peace officer determines which of the tests are administered and how many
346 of them are administered.
347 (ii) If an officer requests more than one test, refusal by a person to take one or more
348 requested tests, even though [he] the person does submit to any other requested test or tests, is
349 a refusal under this section.
350 (c) (i) A person who has been requested under this section to submit to a chemical test
351 or tests of [his] S [ that ] THE s person's breath, blood, [or] urine, or oral fluids may not select the
351a test or
352 tests to be administered.
353 (ii) The failure or inability of a peace officer to arrange for any specific chemical test is
354 not a defense to taking a test requested by a peace officer, and it is not a defense in any
355 criminal, civil, or administrative proceeding resulting from a person's refusal to submit to the
356 requested test or tests.
357 (2) (a) If the person has been placed under arrest, has then been requested by a peace
358 officer to submit to any one or more of the chemical tests under Subsection (1), and refuses to
359 submit to any chemical test requested, the person shall be warned by the peace officer
360 requesting the test or tests that a refusal to submit to the test or tests can result in revocation of
361 the person's license to operate a motor vehicle.
362 (b) Following the warning under Subsection (2)(a), if the person does not immediately
363 request that the chemical test or tests as offered by a peace officer be administered a peace
364 officer shall serve on the person, on behalf of the Driver License Division, immediate notice of
365 the Driver License Division's intention to revoke the person's privilege or license to operate a
366 motor vehicle. When the officer serves the immediate notice on behalf of the Driver License

367 Division, he shall:
368 (i) take the Utah license certificate or permit, if any, of the operator;
369 (ii) issue a temporary license effective for only 29 days; and
370 (iii) supply to the operator, on a form approved by the Driver License Division, basic
371 information regarding how to obtain a hearing before the Driver License Division.
372 (c) A citation issued by a peace officer may, if approved as to form by the Driver
373 License Division, serve also as the temporary license.
374 (d) As a matter of procedure, the peace officer shall submit a signed report, within ten
375 calendar days after the date of the arrest, that [he] the peace officer had grounds to believe the
376 arrested person had been operating or was in actual physical control of a motor vehicle while
377 having a blood or breath alcohol content statutorily prohibited under Section 41-6-44 ,
378 53-3-231 , or 53-3-232 , or while under the influence of alcohol, any drug, or combination of
379 alcohol and any drug under Section 41-6-44 , or while having any measurable controlled
380 substance or metabolite of a controlled substance in the person's body in violation of Section
381 41-6-44.6 , and that the person had refused to submit to a chemical test or tests under
382 Subsection (1).
383 (e) (i) A person who has been notified of the Driver License Division's intention to
384 revoke his license under this section is entitled to a hearing.
385 (ii) A request for the hearing shall be made in writing within ten calendar days after the
386 date of the arrest.
387 (iii) Upon written request, the division shall grant to the person an opportunity to be
388 heard within 29 days after the date of arrest.
389 (iv) If the person does not make a timely written request for a hearing before the
390 division, [his] the person's privilege to operate a motor vehicle in the state is revoked beginning
391 on the 30th day after the date of arrest for a period of:
392 (A) 18 months unless Subsection (2)(e)(iv)(B) applies; or
393 (B) 24 months if the person has had a previous license sanction after July 1, 1993,
394 under this section, Section 41-6-44.6 , 53-3-223 , 53-3-231 , 53-3-232 , or a conviction after July
395 1, 1993, under Section 41-6-44 .
396 (f) If a hearing is requested by the person, the hearing shall be conducted by the Driver
397 License Division in the county in which the offense occurred, unless the division and the

398 person both agree that the hearing may be held in some other county.
399 (g) The hearing shall be documented and shall cover the issues of:
400 (i) whether a peace officer had reasonable grounds to believe that a person was
401 operating a motor vehicle in violation of Section 41-6-44 , 41-6-44.6 , or 53-3-231 ; and
402 (ii) whether the person refused to submit to the test.
403 (h) (i) In connection with the hearing, the division or its authorized agent:
404 (A) may administer oaths and may issue subpoenas for the attendance of witnesses and
405 the production of relevant books and papers; and
406 (B) shall issue subpoenas for the attendance of necessary peace officers.
407 (ii) The division shall pay witness fees and mileage from the Transportation Fund in
408 accordance with the rates established in Section 78-46-28 .
409 (i) If after a hearing, the Driver License Division determines that the person was
410 requested to submit to a chemical test or tests and refused to submit to the test or tests, or if the
411 person fails to appear before the Driver License Division as required in the notice, the Driver
412 License Division shall revoke [his] the person's license or permit to operate a motor vehicle in
413 Utah beginning on the date the hearing is held for a period of:
414 (i) (A) 18 months unless Subsection (2)(i)(i)(B) applies; or
415 (B) 24 months if the person has had a previous license sanction after July 1, 1993,
416 under this section, Section 41-6-44.6 , 53-3-223 , 53-3-231 , 53-3-232 , or a conviction after July
417 1, 1993, under Section 41-6-44 .
418 (ii) The Driver License Division shall also assess against the person, in addition to any
419 fee imposed under Subsection 53-3-205 (13), a fee under Section 53-3-105 , which shall be paid
420 before the person's driving privilege is reinstated, to cover administrative costs.
421 (iii) The fee shall be cancelled if the person obtains an unappealed court decision
422 following a proceeding allowed under this Subsection (2) that the revocation was improper.
423 (j) (i) Any person whose license has been revoked by the Driver License Division
424 under this section may seek judicial review.
425 (ii) Judicial review of an informal adjudicative proceeding is a trial. Venue is in the
426 district court in the county in which the offense occurred.
427 (3) Any person who is dead, unconscious, or in any other condition rendering him
428 incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn

429 the consent provided for in Subsection (1), and the test or tests may be administered whether
430 the person has been arrested or not.
431 (4) Upon the request of the person who was tested, the results of the test or tests shall
432 be made available to him.
433 (5) (a) Only a physician, registered nurse, practical nurse, or person authorized under
434 Section 26-1-30 , acting at the request of a peace officer, may withdraw blood to determine the
435 alcoholic or drug content. This limitation does not apply to taking a urine [or], breath, or oral
436 fluid specimen.
437 (b) Any physician, registered nurse, practical nurse, or person authorized under Section
438 26-1-30 who, at the direction of a peace officer, draws a sample of blood from any person
439 whom a peace officer has reason to believe is driving in violation of this chapter, or hospital or
440 medical facility at which the sample is drawn, is immune from any civil or criminal liability
441 arising from drawing the sample, if the test is administered according to standard medical
442 practice.
443 (6) (a) The person to be tested may, at [his] the person's own expense, have a physician
444 of [his] the person's own choice administer a chemical test in addition to the test or tests
445 administered at the direction of a peace officer.
446 (b) The failure or inability to obtain the additional test does not affect admissibility of
447 the results of the test or tests taken at the direction of a peace officer, or preclude or delay the
448 test or tests to be taken at the direction of a peace officer.
449 (c) The additional test shall be subsequent to the test or tests administered at the
450 direction of a peace officer.
451 (7) For the purpose of determining whether to submit to a chemical test or tests, the
452 person to be tested does not have the right to consult an attorney or have an attorney, physician,
453 or other person present as a condition for the taking of any test.
454 (8) If a person under arrest refuses to submit to a chemical test or tests or any
455 additional test under this section, evidence of any refusal is admissible in any civil or criminal
456 action or proceeding arising out of acts alleged to have been committed while the person was
457 operating or in actual physical control of a motor vehicle while under the influence of alcohol,
458 any drug, combination of alcohol and any drug, or while having any measurable controlled
459 substance or metabolite of a controlled substance in the person's body.

460 Section 4. Section 41-6-44.12 is amended to read:
461 41-6-44.12. Reporting test results -- Immunity from liability.
462 (1) As used in this section, "health care provider" means a person licensed under Title
463 58, Chapter 31b, Nurse Practice Act, Title 58, Chapter 67, Utah Medical Practice Act, or Title
464 58, Chapter 68, Utah Osteopathic Medical Practice Act.
465 (2) A health care provider who is providing medical care to any person involved in a
466 motor vehicle crash may notify, as soon as reasonably possible, the nearest peace officer or law
467 enforcement agency if the health care provider has reason to believe, as a result of any test
468 performed in the course of medical treatment, that the:
469 (a) person's blood alcohol concentration meets or exceeds the [limit] limits under
470 Subsection 41-6-44 (2)(a)[(i) or (iii)];
471 (b) person is younger than 21 years of age and has any measurable blood, breath, or
472 urine alcohol concentration in the person's body; or
473 (c) person has any measurable controlled substance or metabolite of a controlled
474 substance in the person's body which could be a violation of Subsection 41-6-44 (2)(a)(ii) or
475 Section 41-6-44.6 .
476 (3) The report under Subsection (2) shall consist of the:
477 (a) name of the person being treated;
478 (b) date and time of the administration of the test; and
479 (c) results disclosed by the test.
480 (4) A health care provider participating in good faith in making a report or assisting an
481 investigator from a law enforcement agency pursuant to this section is immune from any
482 liability, civil or criminal, that otherwise might result by reason of those actions.
483 (5) A report under Subsection (2) may not be used to support a finding of probable
484 cause that a person who is not a driver of a vehicle has committed an offense.
485 Section 5. Section 53-3-220 is amended to read:
486 53-3-220. Offenses requiring mandatory revocation, denial, suspension, or
487 disqualification of license -- Offense requiring an extension of period -- Hearing --
488 Limited driving privileges.
489 (1) (a) The division shall immediately revoke or, when this chapter or Title 41, Chapter
490 6, Traffic Rules and Regulations, specifically provides for denial, suspension, or

491 disqualification, the division shall deny, suspend, or disqualify the license of a person upon
492 receiving a record of his conviction for any of the following offenses:
493 (i) manslaughter or negligent homicide resulting from driving a motor vehicle, or
494 automobile homicide under Section 76-5-207 ;
495 (ii) driving or being in actual physical control of a motor vehicle while under the
496 influence of alcohol, any drug, or combination of them to a degree that renders the person
497 incapable of safely driving a motor vehicle as prohibited in Section 41-6-44 or as prohibited in
498 an ordinance that complies with the requirements of Subsection 41-6-43 (1);
499 (iii) driving or being in actual physical control of a motor vehicle while having a blood
500 or breath alcohol content prohibited in Section 41-6-44 or as prohibited in an ordinance that
501 complies with the requirements of Subsection 41-6-43 (1);
502 (iv) perjury or the making of a false affidavit to the division under this chapter, Title
503 41, Motor Vehicles, or any other law of this state requiring the registration of motor vehicles or
504 regulating driving on highways;
505 (v) any felony under the motor vehicle laws of this state;
506 (vi) any other felony in which a motor vehicle is used to facilitate the offense;
507 (vii) failure to stop and render aid as required under the laws of this state if a motor
508 vehicle accident results in the death or personal injury of another;
509 (viii) two charges of reckless driving committed within a period of 12 months; but if
510 upon a first conviction of reckless driving the judge or justice recommends suspension of the
511 convicted person's license, the division may after a hearing suspend the license for a period of
512 three months;
513 (ix) failure to bring a motor vehicle to a stop at the command of a peace officer as
514 required in Section 41-6-13.5 ;
515 (x) any offense specified in Part 4 of this chapter that requires disqualification;
516 (xi) discharging or allowing the discharge of a firearm from a vehicle in violation of
517 Subsection 76-10-508 (2);
518 (xii) using, allowing the use of, or causing to be used any explosive, chemical, or
519 incendiary device from a vehicle in violation of Subsection 76-10-306 (4)(b);
520 (xiii) operating or being in actual physical control of a motor vehicle while having any
521 measurable controlled substance or metabolite of a controlled substance in the person's body in

522 violation of Section 41-6-44.6 ; and
523 (xiv) operating or being in actual physical control of a motor vehicle while having any
524 alcohol in the person's body in violation of Section 53-3-232 .
525 (b) The division shall immediately revoke the license of a person upon receiving a
526 record of an adjudication under Title 78, Chapter 3a, Juvenile Courts, for any of the following
527 offenses:
528 (i) discharging or allowing the discharge of a firearm from a vehicle in violation of
529 Subsection 76-10-508 (2); and
530 (ii) using, allowing the use of, or causing to be used any explosive, chemical, or
531 incendiary device from a vehicle in violation of Subsection 76-10-306 (4)(b).
532 (c) Except when action is taken under Section 53-3-219 for the same offense, the
533 division shall immediately suspend for six months the license of a person upon receiving a
534 record of conviction for any of the following offenses:
535 (i) any violation of:
536 (A) Title 58, Chapter 37, Utah Controlled Substances Act;
537 (B) Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
538 (C) Title 58, Chapter 37b, Imitation Controlled Substances Act;
539 (D) Title 58, Chapter 37c, Utah Controlled Substance Precursor Act; or
540 (E) Title 58, Chapter 37d, Clandestine Drug Lab Act; or
541 (ii) any criminal offense that prohibits:
542 (A) possession, distribution, manufacture, cultivation, sale, or transfer of any substance
543 that is prohibited under the acts described in Subsection (1)(c)(i); or
544 (B) the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell, or
545 transfer any substance that is prohibited under the acts described in Subsection (1)(c)(i).
546 (2) (a) The division shall extend the period of the first denial, suspension, revocation,
547 or disqualification for an additional like period, to a maximum of one year, upon receiving:
548 [(a)] (i) a record of the conviction of any person on a charge of driving a motor vehicle
549 while the person's license is denied, suspended, revoked, or disqualified;
550 [(b)] (ii) a record of a conviction of the person for any violation of the motor vehicle
551 law in which the person was involved as a driver;
552 [(c)] (iii) a report of an arrest of the person for any violation of the motor vehicle law in

553 which the person was involved as a driver; or
554 [(d)] (iv) a report of an accident in which the person was involved as a driver.
555 (b) For a violation of Subsection 53-3-227 (4), the division shall extend the period of
556 the first suspension, revocation, or disqualification for an additional one-year period.
557 (3) When the division receives a report under Subsection (2)[(c)] (a)(iii) or [(d)] (a)(iv)
558 that a person is driving while the person's license is denied, suspended, disqualified, or
559 revoked, the person is entitled to a hearing regarding the extension of the time of denial,
560 suspension, disqualification, or revocation originally imposed under Section 53-3-221 .
561 (4) (a) The division may extend to a person the limited privilege of driving a motor
562 vehicle to and from the person's place of employment or within other specified limits on
563 recommendation of the trial judge in any case where a person is convicted of any of the
564 offenses referred to in Subsections (1) and (2) except:
565 (i) automobile homicide under Subsection (1)(a)(i);
566 (ii) those offenses referred to in Subsections (1) (a)(ii), (a)(iii), (a)(xi), (a)(xii), (a)(xiii),
567 (1)(b), and (1)(c); and
568 (iii) those offenses referred to in Subsection (2) when the original denial, suspension,
569 revocation, or disqualification was imposed because of a violation of Section 41-6-44 , Section
570 41-6-44.6 , a local ordinance which complies with the requirements of Subsection 41-6-43 (1),
571 Section 41-6-44.10 , or Section 76-5-207 , or a criminal prohibition that the person was charged
572 with violating as a result of a plea bargain after having been originally charged with violating
573 one or more of these sections or ordinances.
574 (b) This discretionary privilege is limited to when undue hardship would result from a
575 failure to grant the privilege and may be granted only once to any individual during any single
576 period of denial, suspension, revocation, or disqualification, or extension of that denial,
577 suspension, revocation, or disqualification.
578 (c) A limited CDL may not be granted to an individual disqualified under Part 4,
579 Uniform Commercial Driver License Act, or whose license has been revoked, suspended,
580 cancelled, or denied under this chapter.
581 Section 6. Section 53-3-227 is amended to read:
582 53-3-227. Driving a motor vehicle prohibited while driving privilege denied,
583 suspended, disqualified, or revoked -- Penalties.

584 (1) A person whose driving privilege has been denied, suspended, disqualified, or
585 revoked under this chapter or under the laws of the state in which the person's driving privilege
586 was granted and who drives any motor vehicle upon the highways of this state while that
587 driving privilege is denied, suspended, disqualified, or revoked shall be punished as provided
588 in this section.
589 (2) A person convicted of a violation of Subsection (1), other than a violation specified
590 in Subsection (3) or (4), is guilty of a class C misdemeanor.
591 (3) (a) A person is guilty of a class B misdemeanor [whose] if the person's conviction
592 under Subsection (1) is based on [his] the person driving a motor vehicle while the person's
593 driving privilege is suspended, disqualified, or revoked for:
594 (i) a refusal to submit to a chemical test under Section 41-6-44.10 ;
595 (ii) a violation of Section 41-6-44 ;
596 (iii) a violation of a local ordinance that complies with the requirements of Section
597 41-6-43 ;
598 (iv) a violation of Section 41-6-44.6 ;
599 (v) a violation of Section 76-5-207 ;
600 (vi) a criminal action that the person plead guilty to as a result of a plea bargain after
601 having been originally charged with violating one or more of the sections or ordinances under
602 this Subsection (3);
603 (vii) a revocation or suspension which has been extended under Subsection 53-3-220
604 (2); or
605 (viii) where disqualification is the result of driving a commercial motor vehicle while
606 the person's CDL is disqualified, suspended, canceled, or revoked under Subsection 53-3-414
607 (1).
608 (b) A person is guilty of a class B misdemeanor [whose] if the person's conviction
609 under Subsection (1) is based [upon] on the person driving a motor vehicle while the person's
610 driving privilege is suspended, disqualified, or revoked [in] by any state, the United States, or
611 any district, possession, or territory of the United States for violations corresponding to the
612 violations listed in [Subsection (a)] Subsections (3)(a)(i) through (3)(a)(viii).
613 (c) A fine imposed under this Subsection (3) shall be at least the maximum fine for a
614 class C misdemeanor under Section 76-3-301 .

615 (4) (a) A person is guilty of a class B misdemeanor if:
616 (i) the person's conviction under Subsection (1) is based on the person driving a motor
617 vehicle while the person's driving privilege is suspended, disqualified, or revoked for S :
617a (A) s any
618 violations listed in Subsections (3)(a)(i) through (3)(a) S [ (viii) ] (vi); OR
618a (B) A VIOLATION LISTED IN SUBSECTION (3)(a)(vii) IF THE ORIGINAL REVOCATION OR
618b SUSPENSION WAS BASED ON ANY VIOLATIONS LISTED IN SUBSECTIONS (3)(a)(i) THROUGH
618c (3)(a)(vi) s ; and
619 (ii) the person had any alcohol in the person's body at the time of the violation under
620 Subsection (1).
621 (b) A person is guilty of a class B misdemeanor if:
622 (i) the person's conviction under Subsection (1) is based on the person driving a motor
623 vehicle while the person's driving privilege is suspended, disqualified, or revoked by any state,
624 the United States, or any district, possession, or territory of the United States for violations
625 corresponding to S ;
625a (A) s the violations listed in S [ Subsection ] SUBSECTIONS s (3)(a)(i) through (3)(a) S [ (viii) ]
625b (vi); OR
625c (B) A VIOLATION LISTED IN SUBSECTION (3)(a)(vii) IF THE ORIGINAL REVOCATION OR
625d SUSPENSION WAS BASED ON ANY VIOLATION CORRESPONDING TO THE VIOLATIONS LISTED IN
625e SUBSECTIONS (3)(a)(i) THROUGH (3)(a)(vi) s ; and
626 (ii) the person had any alcohol in the person's body at the time of the violation under
627 Subsection (1).
628 (c) (i) As part of any sentence imposed for a violation of this Subsection (4), the court
629 shall order:
630 (A) a jail sentence of not less than 48 consecutive hours;
631 (B) a compensatory-service work program for not less than 48 hours; or
632 (C) home confinement through the use of electronic monitoring in accordance with
633 Subsection 41-6-44 (13).
634 (ii) In addition to the penalties under Subsection (4)(c)(i), the court shall impose a fine
635 of not less than $750.
636 Section 7. Section 72-10-502 is amended to read:
637 72-10-502. Implied consent to chemical tests for alcohol or drugs -- Number of
638 tests -- Refusal -- Person incapable of refusal -- Results of test available -- Who may give
639 test -- Evidence.
640 (1) (a) A person operating an aircraft in this state consents to a chemical test or tests of

641 [his] the person's breath, blood, [or] urine, or oral fluids:
642 (i) for the purpose of determining whether the person was operating or in actual
643 physical control of an aircraft while having a blood or breath alcohol content statutorily
644 prohibited under Section 72-10-501 , or while under the influence of alcohol, any drug, or
645 combination of alcohol and any drug under Section 72-10-501 , if the test is or tests are

646 administered at the direction of a peace officer having grounds to believe that person to have
647 been operating or in actual physical control of an aircraft in violation of Section 72-10-501 ; or
648 (ii) if the person operating the aircraft is involved in an accident that results in death,
649 serious injury, or substantial aircraft damage.
650 (b) (i) The peace officer determines which of the tests are administered and how many
651 of them are administered.
652 (ii) The peace officer may order any or all tests of the person's breath, blood, [or] urine,
653 or oral fluids.
654 (iii) If an officer requests more than one test, refusal by a person to take one or more
655 requested tests, even though the person does submit to any other requested test or tests, is a
656 refusal under this section.
657 (c) (i) A person who has been requested under this section to submit to a chemical test
658 or tests of the person's breath, blood, [or] urine, or oral fluids may not select the test or tests to
659 be administered.
660 (ii) The failure or inability of a peace officer to arrange for any specific chemical test is
661 not a defense to taking a test requested by a peace officer, and it is not a defense in any
662 criminal, civil, or administrative proceeding resulting from a person's refusal to submit to the
663 requested test or tests.
664 (2) (a) If the person has been placed under arrest and has then been requested by a
665 peace officer to submit to any one or more of the chemical tests provided in Subsection (1) and
666 refuses to submit to any chemical test, the person shall be warned by the peace officer
667 requesting the test that a refusal to submit to the test is admissible in civil or criminal
668 proceedings as provided under Subsection (8).
669 (b) Following this warning, unless the person immediately requests that the chemical
670 test offered by a peace officer be administered, a test may not be given.
671 (3) Any person who is dead, unconscious, or in any other condition rendering the
672 person incapable of refusal to submit to any chemical test or tests is considered to not have
673 withdrawn the consent provided for in Subsection (1), and the test or tests may be administered
674 whether the person has been arrested or not.
675 (4) Upon the request of the person who was tested, the results of the test or tests shall
676 be made available to [him] that person.

677 (5) (a) Only a physician, registered nurse, practical nurse, or person authorized under
678 Section 26-1-30 to draw blood under Section 41-6-44.10 , acting at the request of a peace
679 officer, may withdraw blood to determine the alcohol or drug content. This limitation does not
680 apply to the taking of a urine [or], breath, or oral fluid specimen.
681 (b) Any physician, registered nurse, practical nurse, or person authorized under Section
682 26-1-30 to draw blood under Section 41-6-44.10 who, at the direction of a peace officer, draws
683 a sample of blood from any person whom a peace officer has reason to believe is flying in
684 violation of this chapter, or hospital or medical facility at which the sample is drawn, is
685 immune from any civil or criminal liability arising from drawing the sample, if the test is
686 administered according to standard medical practice.
687 (6) (a) The person to be tested may, at the person's own expense, have a physician of
688 the person's own choice administer a chemical test in addition to the test or tests administered
689 at the direction of a peace officer.
690 (b) The failure or inability to obtain the additional test does not affect admissibility of
691 the results of the test or tests taken at the direction of a peace officer, or preclude or delay the
692 test or tests to be taken at the direction of a peace officer.
693 (c) The additional test shall be subsequent to the test or tests administered at the
694 direction of a peace officer.
695 (7) For the purpose of determining whether to submit to a chemical test or tests, the
696 person to be tested does not have the right to consult an attorney or have an attorney, physician,
697 or other person present as a condition for the taking of any test.
698 (8) If a person under arrest refuses to submit to a chemical test or tests or any
699 additional test under this section, evidence of any refusal is admissible in any civil or criminal
700 action or proceeding arising out of acts alleged to have been committed while the person was
701 operating or in actual physical control of an aircraft while under the influence of alcohol, any
702 drug, or combination of alcohol and any drug.
703 (9) The results of any test taken under this section or the refusal to be tested shall be
704 reported to the Federal Aviation Administration by the peace officer requesting the test.
705 Section 8. Section 72-10-503 is amended to read:
706 72-10-503. Standards for chemical breath analysis or oral fluids -- Evidence.
707 (1) The commissioner of the Department of Public Safety shall establish standards for

708 the administration and interpretation of chemical analysis of a person's breath or oral fluids,
709 including standards of training.
710 (2) In any action or proceeding in which it is material to prove that a person was
711 operating or in actual physical control of an aircraft while under the influence of alcohol or any
712 drug or operating with a blood or breath alcohol content statutorily prohibited, documents
713 offered as memoranda or records of acts, conditions, or events to prove that the analysis was
714 made and the instrument used was accurate, according to standards established in Subsection
715 (1), are admissible if:
716 (a) the judge finds that they were made in the regular course of the investigation at or
717 about the time of the act, condition, or event; and
718 (b) the source of information from which made and the method and circumstances of
719 their preparation indicate their trustworthiness.
720 (3) If the judge finds that the standards established under Subsection (1) and the
721 conditions of Subsection (2) have been met, there is a presumption that the test results are valid
722 and further foundation for introduction of the evidence is unnecessary.
723 Section 9. Section 76-10-528 is amended to read:
724 76-10-528. Carrying a dangerous weapon while under influence of alcohol or
725 drugs unlawful.
726 (1) Any person who carries a dangerous weapon while under the influence of alcohol
727 or a controlled substance as defined in Section 58-37-2 is guilty of a class B misdemeanor.
728 Under the influence means the same level of influence or blood or breath alcohol concentration
729 as provided in [Section] Subsections 41-6-44 (2)(a)(i) through (2)(a)(iii).
730 (2) It is not a defense to prosecution under this section that the person:
731 (a) is licensed in the pursuit of wildlife of any kind; or
732 (b) has a valid permit to carry a concealed firearm.
733 Section 10. Study.
734 The Commission on Criminal and Juvenile Justice shall study child endangerment for
735 driving under the influence violations and report to the Transportation Interim Committee S AND
735a THE UTAH SUBSTANCE ABUSE AND ANTI-VIOLENCE DUI SUBCOMMITTEE s on or
736 before the November 2004 interim meeting.