H.B. 128 Enrolled

AMENDMENTS TO OPERATING UNDER THE
INFLUENCE
2004 GENERAL SESSION
STATE OF UTAH
Sponsor: Dana C. Love
Calvin G. Bird
D. Gregg Buxton
Brad L. DeeJohn Dougall
Ann W. Hardy
Bradley G. LastM. Susan Lawrence
Michael E. Noel
R. Curt Webb
LONG TITLE
General Description:
This bill modifies the Motor Vehicles Code, the Public Safety Code, and the
Transportation Code to amend provisions relating to operating a vehicle or aircraft while
under the influence.
Highlighted Provisions:
This bill:
. provides that the illegal per se limit of blood or breath alcohol concentration is .05
for a driving under the influence conviction if a person:
. is 21 years of age or older;
. has a passenger under 16 years of age in the vehicle; and
. has had a prior driving under the influence conviction;
. provides that chemical analysis of a person's oral fluids is an authorized chemical test
under the implied consent provisions;
. requires the Commissioner of the Department of Public Safety to establish standards
for the administration, interpretation, and training of chemical analysis of oral fluids;
. provides that a person is guilty of a class B misdemeanor if the person:
. is driving while the person's license has been suspended, disqualified, or revoked
for a driving under the influence violation; and
. has any amount of alcohol in the person's body;
. provides sentencing requirements for driving on a license suspended for certain

violations with any amount of alcohol in the body;
. provides that a driver license can be suspended for an additional period for driving on
a license suspended for certain violations with any amount of alcohol in the body;
. requires the Commission on Criminal and Juvenile Justice to study child endangerment
for driving under the influence violations and report to the Transportation Interim
Committee on or before the November 2004 interim meeting; and
. makes technical changes.
Monies Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
41-6-44, as last amended by Chapter 8, Laws of Utah 2002, Fifth Special Session
41-6-44.3, as last amended by Chapter 138, Laws of Utah 1987
41-6-44.10, as last amended by Chapter 185, Laws of Utah 2002
41-6-44.12, as last amended by Chapter 106, Laws of Utah 2002
53-3-220, as last amended by Chapter 72, Laws of Utah 2003
53-3-227, as last amended by Chapter 47, Laws of Utah 1996
72-10-502, as renumbered and amended by Chapter 270, Laws of Utah 1998
72-10-503, as renumbered and amended by Chapter 270, Laws of Utah 1998
76-10-528, as enacted by Chapter 23, Laws of Utah 1995
Uncodified Material Affected:
ENACTS UNCODIFIED MATERIAL

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

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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) "conviction" means any conviction for a violation of:
(i) this section;
(ii) 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;
(iv) local ordinances similar to this section or alcohol, any drug, or a combination of
both-related reckless driving adopted in compliance with Section 41-6-43 ;
(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
(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, 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 and Mental Health in accordance with
Section 62A-15-105 ;
(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 and Mental Health in accordance with Section 62A-15-105 ;
(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;

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(e) "substance abuse treatment" means treatment obtained at a substance abuse program
that is approved by the Board of Substance Abuse and Mental Health in accordance with Section
62A-15-105 ;
(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] the person's 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 or actual physical control[.];
(iv) (A) is 21 years of age or older;
(B) has sufficient alcohol in the person's body that a subsequent chemical test shows that
the person has a blood or breath alcohol concentration of .05 grams or greater at the time of the
test;
(C) has a passenger under 16 years of age in the vehicle at the time of operation or actual
physical control; and
(D) committed the offense within ten years of a prior conviction; or
(v) (A) is 21 years of age or older;
(B) has a blood or breath alcohol concentration of .05 grams or greater at the time of
operation or actual physical control;

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(C) has a passenger under 16 years of age in the vehicle at the time of operation or actual
physical control; and
(D) committed the offense within ten years of a prior conviction.
(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)]
Subsections (2)(a)(i) through (iii) 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.
(c) A person convicted of a violation of Subsection (2)(a)(iv) or (v) is guilty of:
(i) a class B misdemeanor; or
(ii) a class A misdemeanor if the person has also inflicted 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 48 hours; or

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(ii) participate in home confinement through the use of electronic monitoring in
accordance with Subsection (13).
(c) In addition to the jail sentence, compensatory-service work program, or home
confinement, the court shall:
(i) order the person to participate in a screening and assessment;
(ii) order the person to participate in an educational series if the court does not order
substance abuse treatment as described under Subsection (4)(d); and
(iii) impose a fine of not less than $700.
(d) The court may order the person to obtain substance abuse treatment if the substance
abuse treatment program determines that substance abuse treatment is appropriate.
(e) (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

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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:
(i) a third or subsequent conviction under this section within ten years of two or more
prior convictions; 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.
(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.
(d) For Subsection (6)(a) or (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.
(e) In addition to the penalties required under Subsection (6)(c), if the court orders
probation, the probation shall be supervised probation which may include requiring 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

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series; obtain, in the discretion of the court, substance abuse treatment; obtain, mandatorily,
substance abuse treatment; or do a combination of those things, apply to a conviction for a
violation of Section 41-6-44.6 or 41-6-45 under Subsection (9).
(ii) The court shall render the same order regarding screening and assessment, an
educational series, or substance abuse treatment in connection with a first, second, or subsequent
conviction under Section 41-6-44.6 or 41-6-45 under Subsection (9), as the court would render in
connection with applying respectively, the first, second, or subsequent conviction requirements of
Subsections (4), (5), and (6).
(b) The court shall notify the Driver License Division if a person fails to:
(i) complete all court ordered:
(A) screening and assessment;
(B) educational series;
(C) substance abuse treatment; and
(D) hours of work in compensatory-service work program; or
(ii) pay all fines and fees, including fees for restitution and treatment costs.
(c) Upon receiving the notification, the division shall suspend the person's driving
privilege in accordance with Subsections 53-3-221 (2) and (3).
(9) (a) (i) When the prosecution agrees to a plea of guilty or no contest to a charge of a
violation of Section 41-6-45 , of an ordinance enacted under Section 41-6-43 , or of Section
41-6-44.6 in satisfaction of, or as a substitute for, an original charge of a violation of this section,
the prosecution shall state for the record a factual basis for the plea, including whether or not
there had been consumption of alcohol, drugs, or a combination of both, by the defendant in
connection with the violation.
(ii) The statement is an offer of proof of the facts that shows whether there was
consumption of alcohol, drugs, or a combination of both, by the defendant, in connection with the
violation.
(b) The court shall advise the defendant before accepting the plea offered under this
Subsection (9)(b) of the consequences of a violation of Section 41-6-44.6 or of Section 41-6-45 .

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(c) The court shall notify the Driver License Division of each conviction of Section
41-6-44.6 or 41-6-45 entered under this Subsection (9).
(10) A peace officer may, without a warrant, arrest a person for a violation of this section
when the officer has probable cause to believe the violation has occurred, although not in [his] the
officer's 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) 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

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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
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)](d)(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

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(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)(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 41-6-44.3 is amended to read:
41-6-44.3. Standards for chemical breath or oral fluids analysis -- Evidence.
(1) The Commissioner of the Department of Public Safety shall establish standards for the
administration and interpretation of chemical analysis of a person's breath or oral fluids, including
standards of training.
(2) In any 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 any

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drug or operating with a blood or breath alcohol content statutorily prohibited, documents offered
as memoranda or records of acts, conditions, or events to prove that the analysis was made and
the instrument used was accurate, according to standards established in Subsection (1), are
admissible if:
(a) the judge finds that they were made in the regular course of the investigation at or
about the time of the act, condition, or event; and
(b) the source of information from which made and the method and circumstances of their
preparation indicate their trustworthiness.
(3) If the judge finds that the standards established under Subsection (1) and the
conditions of Subsection (2) have been met, there is a presumption that the test results are valid
and further foundation for introduction of the evidence is unnecessary.
Section 3. Section 41-6-44.10 is amended to read:
41-6-44.10. Implied consent to chemical tests for alcohol or drugs -- Number of
tests -- Refusal -- Warning, report -- Hearing, revocation of license -- Appeal -- Person
incapable of refusal -- Results of test available -- Who may give test -- Evidence.
(1) (a) A person operating a motor vehicle in this state is considered to have given [his]
the person's consent to a chemical test or tests of [his] the person's breath, blood, [or] urine, or
oral fluids for the purpose of determining whether [he] the person was operating or in actual
physical control of a motor vehicle while having a blood or breath alcohol content statutorily
prohibited under Section 41-6-44 , 53-3-231 , or 53-3-232 , while under the influence of alcohol,
any drug, or combination of alcohol and any drug under Section 41-6-44 , or while having any
measurable controlled substance or metabolite of a controlled substance in the person's body in
violation of Section 41-6-44.6 , if the test is or tests are administered at the direction of a peace
officer having grounds to believe that person to have been operating or in actual physical control
of a motor vehicle while having a blood or breath alcohol content statutorily prohibited under
Section 41-6-44 , 53-3-231 , or 53-3-232 , or while under the influence of alcohol, any drug, or
combination of alcohol and any drug under Section 41-6-44 , or while having any measurable
controlled substance or metabolite of a controlled substance in the person's body in violation of

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Section 41-6-44.6 .
(b) (i) The peace officer determines which of the tests are administered and how many of
them are administered.
(ii) If an officer requests more than one test, refusal by a person to take one or more
requested tests, even though [he] the person does submit to any other requested test or tests, is a
refusal under this section.
(c) (i) A person who has been requested under this section to submit to a chemical test or
tests of [his] the person's breath, blood, [or] urine, or oral fluids may not select the test or tests to
be administered.
(ii) The failure or inability of a peace officer to arrange for any specific chemical test is
not a defense to taking a test requested by a peace officer, and it is not a defense in any criminal,
civil, or administrative proceeding resulting from a person's refusal to submit to the requested test
or tests.
(2) (a) If the person has been placed under arrest, has then been requested by a peace
officer to submit to any one or more of the chemical tests under Subsection (1), and refuses to
submit to any chemical test requested, the person shall be warned by the peace officer requesting
the test or tests that a refusal to submit to the test or tests can result in revocation of the person's
license to operate a motor vehicle.
(b) Following the warning under Subsection (2)(a), if the person does not immediately
request that the chemical test or tests as offered by a peace officer be administered a peace officer
shall serve on the person, on behalf of the Driver License Division, immediate notice of the Driver
License Division's intention to revoke the person's privilege or license to operate a motor vehicle.
When the officer serves the immediate notice on behalf of the Driver License Division, he shall:
(i) take the Utah license certificate or permit, if any, of the operator;
(ii) issue a temporary license effective for only 29 days; and
(iii) supply to the operator, on a form approved by the Driver License Division, basic
information regarding how to obtain a hearing before the Driver License Division.
(c) A citation issued by a peace officer may, if approved as to form by the Driver License

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Division, serve also as the temporary license.
(d) As a matter of procedure, the peace officer shall submit a signed report, within ten
calendar days after the date of the arrest, that [he] the peace officer had grounds to believe the
arrested person had been operating or was in actual physical control of a motor vehicle while
having a blood or breath alcohol content statutorily prohibited under Section 41-6-44 , 53-3-231 ,
or 53-3-232 , or while under the influence of alcohol, any drug, or combination of alcohol and any
drug under Section 41-6-44 , or while having any measurable controlled substance or metabolite of
a controlled substance in the person's body in violation of Section 41-6-44.6 , and that the person
had refused to submit to a chemical test or tests under Subsection (1).
(e) (i) A person who has been notified of the Driver License Division's intention to revoke
his license under this section is entitled to a hearing.
(ii) A request for the hearing shall be made in writing within ten calendar days after the
date of the arrest.
(iii) Upon written request, the division shall grant to the person an opportunity to be
heard within 29 days after the date of arrest.
(iv) If the person does not make a timely written request for a hearing before the division,
[his] the person's privilege to operate a motor vehicle in the state is revoked beginning on the 30th
day after the date of arrest for a period of:
(A) 18 months unless Subsection (2)(e)(iv)(B) applies; or
(B) 24 months if the person has had a previous license sanction after July 1, 1993, under
this section, Section 41-6-44.6 , 53-3-223 , 53-3-231 , 53-3-232 , or a conviction after July 1, 1993,
under Section 41-6-44 .
(f) If a hearing is requested by the person, the hearing shall be conducted by the Driver
License Division in the county in which the offense occurred, unless the division and the person
both agree that the hearing may be held in some other county.
(g) The hearing shall be documented and shall cover the issues of:
(i) whether a peace officer had reasonable grounds to believe that a person was operating
a motor vehicle in violation of Section 41-6-44 , 41-6-44.6 , or 53-3-231 ; and

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

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

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metabolite of a controlled substance in the person's body.
Section 4. 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 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] limits 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 5. Section 53-3-220 is amended to read:
53-3-220. Offenses requiring mandatory revocation, denial, suspension, or

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disqualification of license -- Offense requiring an extension of period -- Hearing -- Limited
driving privileges.
(1) (a) The division shall immediately revoke or, when this chapter or Title 41, Chapter 6,
Traffic Rules and Regulations, specifically provides for denial, suspension, or disqualification, the
division shall deny, suspend, or disqualify the license of a person upon receiving a record of his
conviction for any of the following offenses:
(i) manslaughter or negligent homicide resulting from driving a motor vehicle, or
automobile homicide under Section 76-5-207 ;
(ii) driving or being in actual physical control of a motor vehicle while under the influence
of alcohol, any drug, or combination of them to a degree that renders the person incapable of
safely driving a motor vehicle as prohibited in Section 41-6-44 or as prohibited in an ordinance
that complies with the requirements of Subsection 41-6-43 (1);
(iii) driving or being in actual physical control of a motor vehicle while having a blood or
breath alcohol content prohibited in Section 41-6-44 or as prohibited in an ordinance that
complies with the requirements of Subsection 41-6-43 (1);
(iv) perjury or the making of a false affidavit to the division under this chapter, Title 41,
Motor Vehicles, or any other law of this state requiring the registration of motor vehicles or
regulating driving on highways;
(v) any felony under the motor vehicle laws of this state;
(vi) any other felony in which a motor vehicle is used to facilitate the offense;
(vii) failure to stop and render aid as required under the laws of this state if a motor
vehicle accident results in the death or personal injury of another;
(viii) two charges of reckless driving committed within a period of 12 months; but if upon
a first conviction of reckless driving the judge or justice recommends suspension of the convicted
person's license, the division may after a hearing suspend the license for a period of three months;
(ix) failure to bring a motor vehicle to a stop at the command of a peace officer as
required in Section 41-6-13.5 ;
(x) any offense specified in Part 4 of this chapter that requires disqualification;

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(xi) discharging or allowing the discharge of a firearm from a vehicle in violation of
Subsection 76-10-508 (2);
(xii) using, allowing the use of, or causing to be used any explosive, chemical, or
incendiary device from a vehicle in violation of Subsection 76-10-306 (4)(b);
(xiii) operating or being in actual physical control of a motor vehicle while having any
measurable controlled substance or metabolite of a controlled substance in the person's body in
violation of Section 41-6-44.6 ; and
(xiv) operating or being in actual physical control of a motor vehicle while having any
alcohol in the person's body in violation of Section 53-3-232 .
(b) The division shall immediately revoke the license of a person upon receiving a record
of an adjudication under Title 78, Chapter 3a, Juvenile Courts, for any of the following offenses:
(i) discharging or allowing the discharge of a firearm from a vehicle in violation of
Subsection 76-10-508 (2); and
(ii) using, allowing the use of, or causing to be used any explosive, chemical, or
incendiary device from a vehicle in violation of Subsection 76-10-306 (4)(b).
(c) Except when action is taken under Section 53-3-219 for the same offense, the division
shall immediately suspend for six months the license of a person upon receiving a record of
conviction for any of the following offenses:
(i) any violation of:
(A) Title 58, Chapter 37, Utah Controlled Substances Act;
(B) Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
(C) Title 58, Chapter 37b, Imitation Controlled Substances Act;
(D) Title 58, Chapter 37c, Utah Controlled Substance Precursor Act; or
(E) Title 58, Chapter 37d, Clandestine Drug Lab Act; or
(ii) any criminal offense that prohibits:
(A) possession, distribution, manufacture, cultivation, sale, or transfer of any substance
that is prohibited under the acts described in Subsection (1)(c)(i); or
(B) the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell, or

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transfer any substance that is prohibited under the acts described in Subsection (1)(c)(i).
(2) (a) The division shall extend the period of the first denial, suspension, revocation, or
disqualification for an additional like period, to a maximum of one year, upon receiving:
[(a)] (i) a record of the conviction of any person on a charge of driving a motor vehicle
while the person's license is denied, suspended, revoked, or disqualified;
[(b)] (ii) a record of a conviction of the person for any violation of the motor vehicle law
in which the person was involved as a driver;
[(c)] (iii) a report of an arrest of the person for any violation of the motor vehicle law in
which the person was involved as a driver; or
[(d)] (iv) a report of an accident in which the person was involved as a driver.
(b) For a violation of Subsection 53-3-227 (4), the division shall extend the period of the
first suspension, revocation, or disqualification for an additional one-year period.
(3) When the division receives a report under Subsection (2)[(c)] (a)(iii) or [(d)] (iv) that
a person is driving while the person's license is denied, suspended, disqualified, or revoked, the
person is entitled to a hearing regarding the extension of the time of denial, suspension,
disqualification, or revocation originally imposed under Section 53-3-221 .
(4) (a) The division may extend to a person the limited privilege of driving a motor
vehicle to and from the person's place of employment or within other specified limits on
recommendation of the trial judge in any case where a person is convicted of any of the offenses
referred to in Subsections (1) and (2) except:
(i) automobile homicide under Subsection (1)(a)(i);
(ii) those offenses referred to in Subsections (1) (a)(ii), (a)(iii), (a)(xi), (a)(xii), (a)(xiii),
(1)(b), and (1)(c); and
(iii) those offenses referred to in Subsection (2) when the original denial, suspension,
revocation, or disqualification was imposed because of a violation of Section 41-6-44 , Section
41-6-44.6 , a local ordinance which complies with the requirements of Subsection 41-6-43 (1),
Section 41-6-44.10 , or Section 76-5-207 , or a criminal prohibition that the person was charged
with violating as a result of a plea bargain after having been originally charged with violating one

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or more of these sections or ordinances.
(b) This discretionary privilege is limited to when undue hardship would result from a
failure to grant the privilege and may be granted only once to any individual during any single
period of denial, suspension, revocation, or disqualification, or extension of that denial,
suspension, revocation, or disqualification.
(c) A limited CDL may not be granted to an individual disqualified under Part 4, Uniform
Commercial Driver License Act, or whose license has been revoked, suspended, cancelled, or
denied under this chapter.
Section 6. Section 53-3-227 is amended to read:
53-3-227. Driving a motor vehicle prohibited while driving privilege denied,
suspended, disqualified, or revoked -- Penalties.
(1) A person whose driving privilege has been denied, suspended, disqualified, or revoked
under this chapter or under the laws of the state in which the person's driving privilege was
granted and who drives any motor vehicle upon the highways of this state while that driving
privilege is denied, suspended, disqualified, or revoked shall be punished as provided in this
section.
(2) A person convicted of a violation of Subsection (1), other than a violation specified in
Subsection (3) or (4), is guilty of a class C misdemeanor.
(3) (a) A person is guilty of a class B misdemeanor [whose] if the person's conviction
under Subsection (1) is based on [his] the person driving a motor vehicle while the person's
driving privilege is suspended, disqualified, or revoked for:
(i) a refusal to submit to a chemical test under Section 41-6-44.10 ;
(ii) a violation of Section 41-6-44 ;
(iii) a violation of a local ordinance that complies with the requirements of Section
41-6-43 ;
(iv) a violation of Section 41-6-44.6 ;
(v) a violation of Section 76-5-207 ;
(vi) a criminal action that the person plead guilty to as a result of a plea bargain after

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having been originally charged with violating one or more of the sections or ordinances under this
Subsection (3);
(vii) a revocation or suspension which has been extended under Subsection 53-3-220 (2);
or
(viii) where disqualification is the result of driving a commercial motor vehicle while the
person's CDL is disqualified, suspended, canceled, or revoked under Subsection 53-3-414 (1).
(b) A person is guilty of a class B misdemeanor [whose] if the person's conviction under
Subsection (1) is based [upon] on the person driving a motor vehicle while the person's driving
privilege is suspended, disqualified, or revoked [in] by any state, the United States, or any district,
possession, or territory of the United States for violations corresponding to the violations listed in
[Subsection (a)] Subsections (3)(a)(i) through (viii).
(c) A fine imposed under this Subsection (3) shall be at least the maximum fine for a class
C misdemeanor under Section 76-3-301 .
(4) (a) A person is guilty of a class B misdemeanor if:
(i) the person's conviction under Subsection (1) is based on the person driving a motor
vehicle while the person's driving privilege is suspended, disqualified, or revoked for:
(A) any violations listed in Subsections (3)(a)(i) through (vi); or
(B) a violation listed in Subsection (3)(a)(vii) if the original revocation or suspension was
based on any violations listed in Subsections (3)(a)(i) through (vi); and
(ii) the person had any alcohol in the person's body at the time of the violation under
Subsection (1).
(b) A person is guilty of a class B misdemeanor if:
(i) the person's conviction under Subsection (1) is based on the person driving a motor
vehicle while the person's driving privilege is suspended, disqualified, or revoked by any state, the
United States, or any district, possession, or territory of the United States for violations
corresponding to:
(A) the violations listed in Subsections (3)(a)(i) through (vi); or
(B) a violation listed in Subsection (3)(a)(vii) if the original revocation or suspension was

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based on any violation corresponding to the violations listed in Subsections (3)(a)(i) through (vi);
and
(ii) the person had any alcohol in the person's body at the time of the violation under
Subsection (1).
(c) (i) As part of any sentence imposed for a violation of this Subsection (4), the court
shall order:
(A) a jail sentence of not less than 48 consecutive hours;
(B) a compensatory-service work program for not less than 48 hours; or
(C) home confinement through the use of electronic monitoring in accordance with
Subsection 41-6-44 (13).
(ii) In addition to the penalties under Subsection (4)(c)(i), the court shall impose a fine of
not less than $750.
Section 7. Section 72-10-502 is amended to read:
72-10-502. Implied consent to chemical tests for alcohol or drugs -- Number of tests
-- Refusal -- Person incapable of refusal -- Results of test available -- Who may give test --
Evidence.
(1) (a) A person operating an aircraft in this state consents to a chemical test or tests of
[his] the person's breath, blood, [or] urine, or oral fluids:
(i) for the purpose of determining whether the person was operating or in actual physical
control of an aircraft while having a blood or breath alcohol content statutorily prohibited under
Section 72-10-501 , or while under the influence of alcohol, any drug, or combination of alcohol
and any drug under Section 72-10-501 , if the test is or tests are administered at the direction of a
peace officer having grounds to believe that person to have been operating or in actual physical
control of an aircraft in violation of Section 72-10-501 ; or
(ii) if the person operating the aircraft is involved in an accident that results in death,
serious injury, or substantial aircraft damage.
(b) (i) The peace officer determines which of the tests are administered and how many of
them are administered.

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(ii) The peace officer may order any or all tests of the person's breath, blood, [or] urine,
or oral fluids.
(iii) If an officer requests more than one test, refusal by a person to take one or more
requested tests, even though the person does submit to any other requested test or tests, is a
refusal under this section.
(c) (i) A person who has been requested under this section to submit to a chemical test or
tests of the person's breath, blood, [or] urine, or oral fluids may not select the test or tests to be
administered.
(ii) The failure or inability of a peace officer to arrange for any specific chemical test is
not a defense to taking a test requested by a peace officer, and it is not a defense in any criminal,
civil, or administrative proceeding resulting from a person's refusal to submit to the requested test
or tests.
(2) (a) If the person has been placed under arrest and has then been requested by a peace
officer to submit to any one or more of the chemical tests provided in Subsection (1) and refuses
to submit to any chemical test, the person shall be warned by the peace officer requesting the test
that a refusal to submit to the test is admissible in civil or criminal proceedings as provided under
Subsection (8).
(b) Following this warning, unless the person immediately requests that the chemical test
offered by a peace officer be administered, a test may not be given.
(3) Any person who is dead, unconscious, or in any other condition rendering the person
incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn
the consent provided for in Subsection (1), and the test or tests may be administered whether the
person has been arrested or not.
(4) Upon the request of the person who was tested, the results of the test or tests shall be
made available to [him] that person.
(5) (a) Only a physician, registered nurse, practical nurse, or person authorized under
Section 26-1-30 to draw blood under Section 41-6-44.10 , acting at the request of a peace officer,
may withdraw blood to determine the alcohol or drug content. This limitation does not apply to

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the taking of a urine [or], breath, or oral fluid specimen.
(b) Any physician, registered nurse, practical nurse, or person authorized under Section
26-1-30 to draw blood under Section 41-6-44.10 who, at the direction of a peace officer, draws a
sample of blood from any person whom a peace officer has reason to believe is flying in violation
of this chapter, or hospital or medical facility at which the sample is drawn, is immune from any
civil or criminal liability arising from drawing the sample, if the test is administered according to
standard medical practice.
(6) (a) The person to be tested may, at the person's own expense, have a physician of the
person's own choice administer a chemical test in addition to the test or tests administered at the
direction of a peace officer.
(b) The failure or inability to obtain the additional test does not affect admissibility of the
results of the test or tests taken at the direction of a peace officer, or preclude or delay the test or
tests to be taken at the direction of a peace officer.
(c) The additional test shall be subsequent to the test or tests administered at the direction
of a peace officer.
(7) For the purpose of determining whether to submit to a chemical test or tests, the
person to be tested does not have the right to consult an attorney or have an attorney, physician,
or other person present as a condition for the taking of any test.
(8) If a person under arrest refuses to submit to a chemical test or tests or any additional
test under this section, evidence of any refusal is admissible in any civil or criminal action or
proceeding arising out of acts alleged to have been committed while the person was operating or
in actual physical control of an aircraft while under the influence of alcohol, any drug, or
combination of alcohol and any drug.
(9) The results of any test taken under this section or the refusal to be tested shall be
reported to the Federal Aviation Administration by the peace officer requesting the test.
Section 8. Section 72-10-503 is amended to read:
72-10-503. Standards for chemical breath analysis or oral fluids -- Evidence.
(1) The Commissioner of the Department of Public Safety shall establish standards for the

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administration and interpretation of chemical analysis of a person's breath or oral fluids, including
standards of training.
(2) In any 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 or any
drug or operating with a blood or breath alcohol content statutorily prohibited, documents offered
as memoranda or records of acts, conditions, or events to prove that the analysis was made and
the instrument used was accurate, according to standards established in Subsection (1), are
admissible if:
(a) the judge finds that they were made in the regular course of the investigation at or
about the time of the act, condition, or event; and
(b) the source of information from which made and the method and circumstances of their
preparation indicate their trustworthiness.
(3) If the judge finds that the standards established under Subsection (1) and the
conditions of Subsection (2) have been met, there is a presumption that the test results are valid
and further foundation for introduction of the evidence is unnecessary.
Section 9. Section 76-10-528 is amended to read:
76-10-528. Carrying a dangerous weapon while under influence of alcohol or drugs
unlawful.
(1) Any person who carries a dangerous weapon while under the influence of alcohol or a
controlled substance as defined in Section 58-37-2 is guilty of a class B misdemeanor. Under the
influence means the same level of influence or blood or breath alcohol concentration as provided
in [Section] Subsections 41-6-44 (2)(a)(i) through (iii).
(2) It is not a defense to prosecution under this section that the person:
(a) is licensed in the pursuit of wildlife of any kind; or
(b) has a valid permit to carry a concealed firearm.
Section 10. Study.
The Commission on Criminal and Juvenile Justice shall study child endangerment for
driving under the influence violations and report to the Transportation Interim Committee and the

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Utah Substance Abuse and Anti-violence DUI Subcommittee on or before the November 2004
interim meeting.

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