HOUSE BILL NO. 336

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H0336aa...................................................by WAYS AND MEANS
DRIVING UNDER THE INFLUENCE - Amends existing law to provide that courts
may waive alcohol abuse evaluations in certain cases.
                                                                        
03/06    House intro - 1st rdg - to printing
03/07    Rpt prt - to Jud
03/19    Rpt out - to Gen Ord
03/24    Rpt out amen - to engros
03/25    Rpt engros - 1st rdg - to 2nd rdg as amen
03/26    2nd rdg - to 3rd rdg as amen
03/27    3rd rdg as amen - PASSED - 68-1-1
      AYES -- Andersen, Barraclough, Barrett, Bauer, Bedke, Bell, Bieter,
      Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins,
      Crow, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth,
      Eskridge, Field(18), Field(23), Gagner, Garrett, Harwood,
      Henbest(Bray), Jaquet, Jones, Kellogg, Kulczyk, Lake, Langford,
      Langhorst, Martinez, McGeachin, McKague, Meyer, Miller, Mitchell,
      Moyle, Nacarrato, Nielsen, Raybould, Ridinger, Ring, Ringo, Roberts,
      Robison, Rydalch, Sali, Sayler, Schaefer, Shepherd, Shirley, Skippen,
      Smith(30), Smith(24), Snodgrass, Stevenson, Tilman, Trail, Wills,
      Wood
      NAYS -- Smylie
      Absent and excused -- Mr. Speaker
    Floor Sponsor - Wills
    Title apvd - to Senate
03/28    Senate intro - 1st rdg - to Jud
04/01    Rpt out - rec d/p - to 2nd rdg
04/02    2nd rdg - to 3rd rdg
04/03    3rd rdg - PASSED - 33-0-2
      AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
      Calabretta, Cameron, Compton, Darrington, Davis, Gannon, Geddes,
      Hill, Ingram, Kennedy, Keough, Little, Lodge, Malepeai, Marley,
      McKenzie, Noble, Noh, Pearce, Richardson, Schroeder, Sorensen,
      Stegner, Stennett, Sweet, Werk, Williams
      NAYS -- None
      Absent and excused -- Goedde, McWilliams
    Floor Sponsor - Marley
    Title apvd - to House
04/04    To enrol
04/07    Rpt enrol - Sp signed - Pres signed
04/08    To Governor
04/14    Governor signed
         Session Law Chapter 286
         Effective: 07/01/03

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 336
                                                                        
                                BY WAYS AND MEANS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO DRIVING UNDER THE INFLUENCE OF INTOXICATING  SUBSTANCES;  AMENDING
  3        SECTION  18-8005,  IDAHO  CODE,  TO  PROVIDE THAT COURTS MAY WAIVE ALCOHOL
  4        ABUSE EVALUATIONS IN CERTAIN CASES.
                                                                        
  5    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
  6        SECTION 1.  That Section 18-8005, Idaho Code, be, and the same  is  hereby
  7    amended to read as follows:
                                                                        
  8        18-8005.  PENALTIES.  (1)  Any  person  who  pleads  guilty to or is found
  9    guilty of a violation of the provisions of section 18-8004(1)(a) or (5), Idaho
 10    Code, for the first time is guilty of a misdemeanor; and, except  as  provided
 11    in section 18-8004C, Idaho Code:
 12        (a)  May be sentenced to jail for not to exceed six (6) months;
 13        (b)  May be fined an amount not to exceed one thousand dollars ($1,000);
 14        (c)  Shall be advised by the court in writing at the time of sentencing of
 15        the penalties that will be imposed for subsequent violations of the provi-
 16        sions  of section 18-8004, Idaho Code, which advice shall be signed by the
 17        defendant, and a copy retained by the court and another copy  retained  by
 18        the prosecuting attorney; and
 19        (d)  Shall have his driving privileges suspended by the court for a period
 20        of  thirty  (30)  days  which shall not be reduced and during which thirty
 21        (30) day period absolutely no  driving  privileges  of  any  kind  may  be
 22        granted.  After the thirty (30) day period of absolute suspension of driv-
 23        ing privileges has passed, the defendant  shall  have  driving  privileges
 24        suspended  by  the  court  for an additional period of at least sixty (60)
 25        days, not to exceed one hundred fifty (150) days during which the  defend-
 26        ant  may  request restricted driving privileges which the court may allow,
 27        if the defendant shows by a preponderance of  the  evidence  that  driving
 28        privileges are necessary for his employment or for family health needs.
 29        (2)  Any  person who pleads guilty to or is found guilty of a violation of
 30    the provisions of section 18-8004(1)(b), Idaho Code, for  the  first  time  is
 31    guilty of a misdemeanor and subject to:
 32        (a)  The provisions of section 18-8005(1)(a), (b) and (c), Idaho Code; and
 33        (b)  The provisions of section 49-335, Idaho Code.
 34        (3)  Any  person who pleads guilty to or is found guilty of a violation of
 35    the provisions of section 18-8004(1)(c), Idaho Code, for the  first  time,  is
 36    guilty of a misdemeanor and is subject to:
 37        (a)  The provisions of section 18-8005(1)(a), (b) and (c), Idaho Code; and
 38        (b)  The provisions of section 49-335, Idaho Code.
 39        (4)  Any  person who pleads guilty to or is found guilty of a violation of
 40    the provisions of section 18-8004(1)(a), (b) or (c), Idaho  Code,  who  previ-
 41    ously has been found guilty of or has pled guilty to a violation of the provi-
 42    sions  of  section 18-8004(1)(a), (b) or (c), Idaho Code, or any substantially
 43    conforming foreign criminal violation within five (5)  years,  notwithstanding
                                                                        
                                           2
                                                                        
  1    the form of the judgment(s) or withheld judgment(s), and except as provided in
  2    section  18-8004C, Idaho Code, is guilty of a misdemeanor; and, except as pro-
  3    vided in section 18-8004C, Idaho Code:
  4        (a)  Shall be sentenced to jail for a mandatory minimum period of not less
  5        than ten (10) days the first forty-eight (48) hours of which must be  con-
  6        secutive,  and five  (5) days of which must be served in jail, as required
  7        by 23 U.S.C. section 164, and may be sentenced to not more  than  one  (1)
  8        year,  provided  however,  that in the discretion of the sentencing judge,
  9        the judge may authorize the defendant to be assigned to a work detail pro-
 10        gram within the custody of the county sheriff during the period of  incar-
 11        ceration;
 12        (b)  May be fined an amount not to exceed two thousand dollars ($2,000);
 13        (c)  Shall  be  advised by the court in writing at the time of sentencing,
 14        of the penalties that will be imposed for  subsequent  violations  of  the
 15        provisions of section 18-8004, Idaho Code, which advice shall be signed by
 16        the  defendant, and a copy retained by the court and another copy retained
 17        by the prosecuting attorney;
 18        (d)  Shall surrender his driver's license or permit to the court;
 19        (e)  Shall have his driving privileges suspended by the court for an addi-
 20        tional mandatory minimum period of one (1) year after  release  from  con-
 21        finement,  during  which  one (1) year period absolutely no driving privi-
 22        leges of any kind may be granted; and
 23        (f)  Shall, while operating a motor vehicle, be required to drive  only  a
 24        motor  vehicle  equipped  with a functioning ignition interlock system, as
 25        provided in section 18-8008, Idaho Code, following the one (1) year manda-
 26        tory license suspension period.
 27        (g)  If the person has pled guilty or was found guilty for the second time
 28        within five (5)  years  of  a  violation  of  the  provisions  of  section
 29        18-8004(1)(b)  or  (c), Idaho Code, then the provisions of section 49-335,
 30        Idaho Code, shall apply.
 31        (5)  Except as provided in section 18-8004C, Idaho Code,  any  person  who
 32    pleads  guilty  to or is found guilty of a violation of the provisions of sec-
 33    tion 18-8004(1)(a), (b) or (c), Idaho Code,  who  previously  has  been  found
 34    guilty  of  or has pled guilty to two (2) or more violations of the provisions
 35    of section 18-8004(1)(a), (b) or (c), Idaho Code, or  any  substantially  con-
 36    forming  foreign  criminal  violation, or any combination thereof, within five
 37    (5)  years,  notwithstanding  the  form  of  the   judgment(s)   or   withheld
 38    judgment(s), shall be guilty of a felony; and
 39        (a)  Shall  be  sentenced  to the custody of the state board of correction
 40        for not to exceed five (5) years; provided that notwithstanding the provi-
 41        sions of section 19-2601, Idaho Code, should the court impose any sentence
 42        other than incarceration in the state penitentiary, the defendant shall be
 43        sentenced to the county jail for a mandatory minimum period  of  not  less
 44        than  thirty  (30) days, the first forty-eight (48) hours of which must be
 45        consecutive, and ten (10) days  of  which  must  be  served  in  jail,  as
 46        required by 23 U.S.C. section 164; and further provided that notwithstand-
 47        ing  the provisions of section 18-111, Idaho Code, a conviction under this
 48        section shall be deemed a felony;
 49        (b)  May be fined an amount not to exceed five thousand dollars ($5,000);
 50        (c)  Shall surrender his driver's license or permit to the court; and
 51        (d)  Shall have his driving privileges suspended by the court for a manda-
 52        tory minimum period of one (1) year after release from  imprisonment,  and
 53        may  have  his driving privileges suspended by the court for not to exceed
 54        five (5) years after release from imprisonment, during which time he shall
 55        have absolutely no driving privileges of any kind; and
                                                                        
                                           3
                                                                        
  1        (e)  Shall, while operating a motor vehicle, be required to drive  only  a
  2        motor  vehicle  equipped  with a functioning ignition interlock system, as
  3        provided in section 18-8008, Idaho Code, following the mandatory  one  (1)
  4        year license suspension period.
  5        (6)  For  the  purpose of computation of the enhancement period in subsec-
  6    tions (4), (5) and (7) of this section, the time that elapses between the date
  7    of commission of  the offense and the date the defendant pleads guilty  or  is
  8    found  guilty  for the pending offense shall be excluded. If the determination
  9    of guilt against the defendant is reversed upon appeal, the time that  elapsed
 10    between  the  date of the commission of the offense and the date the defendant
 11    pleads guilty or is found guilty following the appeal shall also be excluded.
 12        (7)  Notwithstanding the provisions of subsections (4)  and  (5)  of  this
 13    section,  any person who has pled guilty or has been found guilty of a  felony
 14    violation of the provisions of section 18-8004, Idaho Code, a felony violation
 15    of the provisions of section 18-8004C, Idaho Code, a violation of  the  provi-
 16    sions of section 18-8006, Idaho Code, a violation of the provisions of section
 17    18-4006  3.(b),  Idaho  Code, or any substantially conforming foreign criminal
 18    felony violation, and within ten (10) years pleads guilty or is  found  guilty
 19    of a further violation of the provisions of section 18-8004, Idaho Code, shall
 20    be  guilty  of  a  felony and shall be sentenced pursuant to subsection (5) of
 21    this section.
 22        (8)  For the purpose of subsections (4), (5) and (7) of this  section  and
 23    the  provisions  of  section  18-8004C, Idaho Code, a substantially conforming
 24    foreign criminal violation exists when a person has pled guilty to or has been
 25    found guilty of a violation of any federal law or law of another state, or any
 26    valid county, city, or town ordinance of another state substantially  conform-
 27    ing  to  the  provisions  of section 18-8004, Idaho Code. The determination of
 28    whether a foreign criminal violation is substantially conforming is a question
 29    of law to be determined by the court.
 30        (9)  Any person who pleads guilty to or is found guilty of a violation  of
 31    the  provisions  of  section  18-8004,  18-8004C or 18-8006, Idaho Code, shall
 32    undergo, at his own expense, (or at county expense through the procedures  set
 33    forth  in chapters 34 and 35, title 31, Idaho Code,) and prior to the sentenc-
 34    ing date, an alcohol evaluation by an alcohol evaluation facility approved  by
 35    the Idaho department of health and welfare; provided however, if the defendant
 36    has  no  prior  or  pending  charges with respect to the provisions of section
 37    18-8004, 18-8004C or 18-8006, Idaho Code, and the court has  the  records  and
 38    information required under subsections (10)(a), (b) and (c) of this section or
 39    possesses  information from other reliable sources relating to the defendant's
 40    use or non-use of alcohol or drugs which does not give the court any reason to
 41    believe that the defendant regularly abuses alcohol or drugs and is in need of
 42    treatment, the court may, in its discretion, waive the evaluation with respect
 43    to sentencing for a violation of section 18-8004 or 18-8004C(1),  Idaho  Code,
 44    and  proceed to sentence the defendant. The court may also, in its discretion,
 45    waive the requirement of an alcohol evaluation with respect to  a  defendant's
 46    violation  of  the  provisions  of section 18-8004, 18-8004C or 18-8006, Idaho
 47    Code, and proceed to sentence the defendant if the  court  has  a  presentence
 48    investigation  report,  substance  abuse assessment, criminogenic risk assess-
 49    ment, or other assessment tool which evaluates the defendant's degree of alco-
 50    hol abuse and need for alcohol treatment conducted within twelve  (12)  months
 51    preceding  the date of the defendant's sentencing. In the event the an alcohol
 52    evaluation indicates the need for alcohol treatment, the evaluation shall con-
 53    tain a recommendation by the evaluator as to the  most  appropriate  treatment
 54    program,  together  with  the  estimated cost thereof, and recommendations for
 55    other suitable alternative treatment programs,  together  with  the  estimated
                                                                        
                                           4
                                                                        
  1    costs  thereof.  The person shall request that a copy of the completed evalua-
  2    tion be forwarded to the court. The court shall take the evaluation into  con-
  3    sideration  in determining an appropriate sentence. If a copy of the completed
  4    evaluation has not been provided to the court, the court may proceed  to  sen-
  5    tence the defendant; however, in such event, it shall be presumed that alcohol
  6    treatment  is required unless the defendant makes a showing by a preponderance
  7    of evidence that treatment  is not required. If the defendant has not  made  a
  8    good  faith  effort  to  provide  the  completed copy of the evaluation to the
  9    court, the court may consider the failure of  the  defendant  to  provide  the
 10    report  as an aggravating circumstance in determining an appropriate sentence.
 11    If treatment is ordered, in no event shall the person or  facility  doing  the
 12    evaluation  be  the person or facility that provides the treatment unless this
 13    requirement is waived by the sentencing court, with the exception of federally
 14    recognized Indian tribes or federal military  installations,  where  diagnosis
 15    and  treatment  are  appropriate and available. Nothing herein contained shall
 16    preclude the use of funds authorized pursuant to the provisions of chapter  3,
 17    title 39, Idaho Code, for court-ordered alcohol treatment for indigent defend-
 18    ants.
 19        (10) At  the time of sentencing, the court shall be provided with the fol-
 20    lowing information:
 21        (a)  The results, if administered, of any  evidentiary  test  for  alcohol
 22        and/or drugs;
 23        (b)  A computer or teletype or other acceptable copy of the person's driv-
 24        ing record;
 25        (c)  Information  as  to  whether the defendant has pled guilty to or been
 26        found guilty of violation of the provisions of section  18-8004,  18-8004C
 27        or  18-8006,  Idaho  Code,  or  a similar offense within the past five (5)
 28        years,  notwithstanding  the  form  of   the   judgment(s)   or   withheld
 29        judgment(s); and
 30        (d)  The alcohol evaluation required in subsection (9) of this section, if
 31        any.
 32        (11) A  minor  may be prosecuted for a violation of the provisions of sec-
 33    tion 18-8004 or 18-8004C, Idaho Code, under chapter 5, title 20,  Idaho  Code.
 34    In   addition  to  any  other penalty, if a minor pleads guilty to or is found
 35    guilty of a violation of the provisions of section 18-8004(1)(a), (b)  or  (c)
 36    or  18-8004C,  Idaho  Code,  he shall have his driving privileges suspended or
 37    denied for an additional one (1) year following the end of any period of  sus-
 38    pension  or  revocation  existing  at  the  time of the violation, or until he
 39    reaches the age of twenty-one (21) years, whichever period is greater.  During
 40    the  period  of  additional suspension or denial, absolutely no driving privi-
 41    leges shall be allowed.
 42        (12) In the event that the alcohol evaluation required in  subsection  (9)
 43    of this section recommends alcohol treatment, the court shall order the person
 44    to complete a treatment program in addition to any other sentence which may be
 45    imposed,  unless the court determines that alcohol treatment would be inappro-
 46    priate or undesirable, in which event, the court shall enter findings  articu-
 47    lating the reasons for such determination on the record. The court shall order
 48    the  defendant  to  complete  the preferred treatment program set forth in the
 49    evaluation, or a comparable alternative, unless it appears that the  defendant
 50    cannot  reasonably  obtain adequate financial resources for such treatment. In
 51    that event, the court may order the defendant to complete a less costly alter-
 52    native set forth in the evaluation, or a comparable  program.  Such  treatment
 53    shall, to the greatest extent possible, be at the expense of the defendant. In
 54    the  event  that  funding  is provided for or on behalf of the defendant by an
 55    entity of state government, restitution shall be ordered to such  governmental
                                                                        
                                           5
                                                                        
  1    entity  in  accordance  with  the  restitution procedure for crime victims, as
  2    specified under chapter 53, title 19, Idaho  Code.  Nothing  contained  herein
  3    shall  be  construed  as requiring a court to order that a governmental entity
  4    shall  provide  alcohol  treatment  at  government  expense  unless  otherwise
  5    required by law.
  6        (13) Any person who is disqualified shall not be granted restricted  driv-
  7    ing privileges to operate a commercial motor vehicle.

Amendment


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                                                     Moved by    Wills               
                                                                        
                                                     Seconded by Ridinger            
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                              HOUSE AMENDMENT TO H.B. NO. 336
                                                                        
                                                                        
  1                                AMENDMENT TO SECTION 1
  2        On page 3 of the printed bill, in line 49, delete "tool".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                               HOUSE BILL NO. 336, As Amended
                                                                        
                                BY WAYS AND MEANS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO DRIVING UNDER THE INFLUENCE OF INTOXICATING  SUBSTANCES;  AMENDING
  3        SECTION  18-8005,  IDAHO  CODE,  TO  PROVIDE THAT COURTS MAY WAIVE ALCOHOL
  4        ABUSE EVALUATIONS IN CERTAIN CASES.
                                                                        
  5    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
  6        SECTION 1.  That Section 18-8005, Idaho Code, be, and the same  is  hereby
  7    amended to read as follows:
                                                                        
  8        18-8005.  PENALTIES.  (1)  Any  person  who  pleads  guilty to or is found
  9    guilty of a violation of the provisions of section 18-8004(1)(a) or (5), Idaho
 10    Code, for the first time is guilty of a misdemeanor; and, except  as  provided
 11    in section 18-8004C, Idaho Code:
 12        (a)  May be sentenced to jail for not to exceed six (6) months;
 13        (b)  May be fined an amount not to exceed one thousand dollars ($1,000);
 14        (c)  Shall be advised by the court in writing at the time of sentencing of
 15        the penalties that will be imposed for subsequent violations of the provi-
 16        sions  of section 18-8004, Idaho Code, which advice shall be signed by the
 17        defendant, and a copy retained by the court and another copy  retained  by
 18        the prosecuting attorney; and
 19        (d)  Shall have his driving privileges suspended by the court for a period
 20        of  thirty  (30)  days  which shall not be reduced and during which thirty
 21        (30) day period absolutely no  driving  privileges  of  any  kind  may  be
 22        granted.  After the thirty (30) day period of absolute suspension of driv-
 23        ing privileges has passed, the defendant  shall  have  driving  privileges
 24        suspended  by  the  court  for an additional period of at least sixty (60)
 25        days, not to exceed one hundred fifty (150) days during which the  defend-
 26        ant  may  request restricted driving privileges which the court may allow,
 27        if the defendant shows by a preponderance of  the  evidence  that  driving
 28        privileges are necessary for his employment or for family health needs.
 29        (2)  Any  person who pleads guilty to or is found guilty of a violation of
 30    the provisions of section 18-8004(1)(b), Idaho Code, for  the  first  time  is
 31    guilty of a misdemeanor and subject to:
 32        (a)  The provisions of section 18-8005(1)(a), (b) and (c), Idaho Code; and
 33        (b)  The provisions of section 49-335, Idaho Code.
 34        (3)  Any  person who pleads guilty to or is found guilty of a violation of
 35    the provisions of section 18-8004(1)(c), Idaho Code, for the  first  time,  is
 36    guilty of a misdemeanor and is subject to:
 37        (a)  The provisions of section 18-8005(1)(a), (b) and (c), Idaho Code; and
 38        (b)  The provisions of section 49-335, Idaho Code.
 39        (4)  Any  person who pleads guilty to or is found guilty of a violation of
 40    the provisions of section 18-8004(1)(a), (b) or (c), Idaho  Code,  who  previ-
 41    ously has been found guilty of or has pled guilty to a violation of the provi-
 42    sions  of  section 18-8004(1)(a), (b) or (c), Idaho Code, or any substantially
 43    conforming foreign criminal violation within five (5)  years,  notwithstanding
                                                                        
                                           2
                                                                        
  1    the form of the judgment(s) or withheld judgment(s), and except as provided in
  2    section  18-8004C, Idaho Code, is guilty of a misdemeanor; and, except as pro-
  3    vided in section 18-8004C, Idaho Code:
  4        (a)  Shall be sentenced to jail for a mandatory minimum period of not less
  5        than ten (10) days the first forty-eight (48) hours of which must be  con-
  6        secutive,  and five  (5) days of which must be served in jail, as required
  7        by 23 U.S.C. section 164, and may be sentenced to not more  than  one  (1)
  8        year,  provided  however,  that in the discretion of the sentencing judge,
  9        the judge may authorize the defendant to be assigned to a work detail pro-
 10        gram within the custody of the county sheriff during the period of  incar-
 11        ceration;
 12        (b)  May be fined an amount not to exceed two thousand dollars ($2,000);
 13        (c)  Shall  be  advised by the court in writing at the time of sentencing,
 14        of the penalties that will be imposed for  subsequent  violations  of  the
 15        provisions of section 18-8004, Idaho Code, which advice shall be signed by
 16        the  defendant, and a copy retained by the court and another copy retained
 17        by the prosecuting attorney;
 18        (d)  Shall surrender his driver's license or permit to the court;
 19        (e)  Shall have his driving privileges suspended by the court for an addi-
 20        tional mandatory minimum period of one (1) year after  release  from  con-
 21        finement,  during  which  one (1) year period absolutely no driving privi-
 22        leges of any kind may be granted; and
 23        (f)  Shall, while operating a motor vehicle, be required to drive  only  a
 24        motor  vehicle  equipped  with a functioning ignition interlock system, as
 25        provided in section 18-8008, Idaho Code, following the one (1) year manda-
 26        tory license suspension period.
 27        (g)  If the person has pled guilty or was found guilty for the second time
 28        within five (5)  years  of  a  violation  of  the  provisions  of  section
 29        18-8004(1)(b)  or  (c), Idaho Code, then the provisions of section 49-335,
 30        Idaho Code, shall apply.
 31        (5)  Except as provided in section 18-8004C, Idaho Code,  any  person  who
 32    pleads  guilty  to or is found guilty of a violation of the provisions of sec-
 33    tion 18-8004(1)(a), (b) or (c), Idaho Code,  who  previously  has  been  found
 34    guilty  of  or has pled guilty to two (2) or more violations of the provisions
 35    of section 18-8004(1)(a), (b) or (c), Idaho Code, or  any  substantially  con-
 36    forming  foreign  criminal  violation, or any combination thereof, within five
 37    (5)  years,  notwithstanding  the  form  of  the   judgment(s)   or   withheld
 38    judgment(s), shall be guilty of a felony; and
 39        (a)  Shall  be  sentenced  to the custody of the state board of correction
 40        for not to exceed five (5) years; provided that notwithstanding the provi-
 41        sions of section 19-2601, Idaho Code, should the court impose any sentence
 42        other than incarceration in the state penitentiary, the defendant shall be
 43        sentenced to the county jail for a mandatory minimum period  of  not  less
 44        than  thirty  (30) days, the first forty-eight (48) hours of which must be
 45        consecutive, and ten (10) days  of  which  must  be  served  in  jail,  as
 46        required by 23 U.S.C. section 164; and further provided that notwithstand-
 47        ing  the provisions of section 18-111, Idaho Code, a conviction under this
 48        section shall be deemed a felony;
 49        (b)  May be fined an amount not to exceed five thousand dollars ($5,000);
 50        (c)  Shall surrender his driver's license or permit to the court; and
 51        (d)  Shall have his driving privileges suspended by the court for a manda-
 52        tory minimum period of one (1) year after release from  imprisonment,  and
 53        may  have  his driving privileges suspended by the court for not to exceed
 54        five (5) years after release from imprisonment, during which time he shall
 55        have absolutely no driving privileges of any kind; and
                                                                        
                                           3
                                                                        
  1        (e)  Shall, while operating a motor vehicle, be required to drive  only  a
  2        motor  vehicle  equipped  with a functioning ignition interlock system, as
  3        provided in section 18-8008, Idaho Code, following the mandatory  one  (1)
  4        year license suspension period.
  5        (6)  For  the  purpose of computation of the enhancement period in subsec-
  6    tions (4), (5) and (7) of this section, the time that elapses between the date
  7    of commission of  the offense and the date the defendant pleads guilty  or  is
  8    found  guilty  for the pending offense shall be excluded. If the determination
  9    of guilt against the defendant is reversed upon appeal, the time that  elapsed
 10    between  the  date of the commission of the offense and the date the defendant
 11    pleads guilty or is found guilty following the appeal shall also be excluded.
 12        (7)  Notwithstanding the provisions of subsections (4)  and  (5)  of  this
 13    section,  any person who has pled guilty or has been found guilty of a  felony
 14    violation of the provisions of section 18-8004, Idaho Code, a felony violation
 15    of the provisions of section 18-8004C, Idaho Code, a violation of  the  provi-
 16    sions of section 18-8006, Idaho Code, a violation of the provisions of section
 17    18-4006  3.(b),  Idaho  Code, or any substantially conforming foreign criminal
 18    felony violation, and within ten (10) years pleads guilty or is  found  guilty
 19    of a further violation of the provisions of section 18-8004, Idaho Code, shall
 20    be  guilty  of  a  felony and shall be sentenced pursuant to subsection (5) of
 21    this section.
 22        (8)  For the purpose of subsections (4), (5) and (7) of this  section  and
 23    the  provisions  of  section  18-8004C, Idaho Code, a substantially conforming
 24    foreign criminal violation exists when a person has pled guilty to or has been
 25    found guilty of a violation of any federal law or law of another state, or any
 26    valid county, city, or town ordinance of another state substantially  conform-
 27    ing  to  the  provisions  of section 18-8004, Idaho Code. The determination of
 28    whether a foreign criminal violation is substantially conforming is a question
 29    of law to be determined by the court.
 30        (9)  Any person who pleads guilty to or is found guilty of a violation  of
 31    the  provisions  of  section  18-8004,  18-8004C or 18-8006, Idaho Code, shall
 32    undergo, at his own expense, (or at county expense through the procedures  set
 33    forth  in chapters 34 and 35, title 31, Idaho Code,) and prior to the sentenc-
 34    ing date, an alcohol evaluation by an alcohol evaluation facility approved  by
 35    the Idaho department of health and welfare; provided however, if the defendant
 36    has  no  prior  or  pending  charges with respect to the provisions of section
 37    18-8004, 18-8004C or 18-8006, Idaho Code, and the court has  the  records  and
 38    information required under subsections (10)(a), (b) and (c) of this section or
 39    possesses  information from other reliable sources relating to the defendant's
 40    use or non-use of alcohol or drugs which does not give the court any reason to
 41    believe that the defendant regularly abuses alcohol or drugs and is in need of
 42    treatment, the court may, in its discretion, waive the evaluation with respect
 43    to sentencing for a violation of section 18-8004 or 18-8004C(1),  Idaho  Code,
 44    and  proceed to sentence the defendant. The court may also, in its discretion,
 45    waive the requirement of an alcohol evaluation with respect to  a  defendant's
 46    violation  of  the  provisions  of section 18-8004, 18-8004C or 18-8006, Idaho
 47    Code, and proceed to sentence the defendant if the  court  has  a  presentence
 48    investigation  report,  substance  abuse assessment, criminogenic risk assess-
 49    ment, or other assessment which evaluates the defendant's  degree  of  alcohol
 50    abuse  and need for alcohol treatment conducted within twelve (12) months pre-
 51    ceding the date of the defendant's sentencing. In the  event  the  an  alcohol
 52    evaluation indicates the need for alcohol treatment, the evaluation shall con-
 53    tain  a  recommendation  by the evaluator as to the most appropriate treatment
 54    program, together with the estimated cost  thereof,  and  recommendations  for
 55    other  suitable  alternative  treatment  programs, together with the estimated
                                                                        
                                           4
                                                                        
  1    costs thereof. The person shall request that a copy of the  completed  evalua-
  2    tion  be forwarded to the court. The court shall take the evaluation into con-
  3    sideration in determining an appropriate sentence. If a copy of the  completed
  4    evaluation  has  not been provided to the court, the court may proceed to sen-
  5    tence the defendant; however, in such event, it shall be presumed that alcohol
  6    treatment is required unless the defendant makes a showing by a  preponderance
  7    of  evidence  that treatment  is not required. If the defendant has not made a
  8    good faith effort to provide the completed  copy  of  the  evaluation  to  the
  9    court,  the  court  may  consider  the failure of the defendant to provide the
 10    report as an aggravating circumstance in determining an appropriate  sentence.
 11    If  treatment  is  ordered, in no event shall the person or facility doing the
 12    evaluation be the person or facility that provides the treatment  unless  this
 13    requirement is waived by the sentencing court, with the exception of federally
 14    recognized  Indian  tribes  or federal military installations, where diagnosis
 15    and treatment are appropriate and available. Nothing  herein  contained  shall
 16    preclude  the use of funds authorized pursuant to the provisions of chapter 3,
 17    title 39, Idaho Code, for court-ordered alcohol treatment for indigent defend-
 18    ants.
 19        (10) At the time of sentencing, the court shall be provided with the  fol-
 20    lowing information:
 21        (a)  The  results,  if  administered,  of any evidentiary test for alcohol
 22        and/or drugs;
 23        (b)  A computer or teletype or other acceptable copy of the person's driv-
 24        ing record;
 25        (c)  Information as to whether the defendant has pled guilty  to  or  been
 26        found  guilty  of violation of the provisions of section 18-8004, 18-8004C
 27        or 18-8006, Idaho Code, or a similar offense  within  the  past  five  (5)
 28        years,   notwithstanding   the   form   of  the  judgment(s)  or  withheld
 29        judgment(s); and
 30        (d)  The alcohol evaluation required in subsection (9) of this section, if
 31        any.
 32        (11) A minor may be prosecuted for a violation of the provisions  of  sec-
 33    tion  18-8004  or 18-8004C, Idaho Code, under chapter 5, title 20, Idaho Code.
 34    In  addition to any other penalty, if a minor pleads guilty  to  or  is  found
 35    guilty  of  a violation of the provisions of section 18-8004(1)(a), (b) or (c)
 36    or 18-8004C, Idaho Code, he shall have his  driving  privileges  suspended  or
 37    denied  for an additional one (1) year following the end of any period of sus-
 38    pension or revocation existing at the time  of  the  violation,  or  until  he
 39    reaches  the age of twenty-one (21) years, whichever period is greater. During
 40    the period of additional suspension or denial, absolutely  no  driving  privi-
 41    leges shall be allowed.
 42        (12) In  the  event that the alcohol evaluation required in subsection (9)
 43    of this section recommends alcohol treatment, the court shall order the person
 44    to complete a treatment program in addition to any other sentence which may be
 45    imposed, unless the court determines that alcohol treatment would be  inappro-
 46    priate  or undesirable, in which event, the court shall enter findings articu-
 47    lating the reasons for such determination on the record. The court shall order
 48    the defendant to complete the preferred treatment program  set  forth  in  the
 49    evaluation,  or a comparable alternative, unless it appears that the defendant
 50    cannot reasonably obtain adequate financial resources for such  treatment.  In
 51    that event, the court may order the defendant to complete a less costly alter-
 52    native  set  forth  in the evaluation, or a comparable program. Such treatment
 53    shall, to the greatest extent possible, be at the expense of the defendant. In
 54    the event that funding is provided for or on behalf of  the  defendant  by  an
 55    entity  of state government, restitution shall be ordered to such governmental
                                                                        
                                           5
                                                                        
  1    entity in accordance with the restitution  procedure  for  crime  victims,  as
  2    specified  under  chapter  53,  title 19, Idaho Code. Nothing contained herein
  3    shall be construed as requiring a court to order that  a  governmental  entity
  4    shall  provide  alcohol  treatment  at  government  expense  unless  otherwise
  5    required by law.
  6        (13) Any  person who is disqualified shall not be granted restricted driv-
  7    ing privileges to operate a commercial motor vehicle.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE
                             RS 13107
Prior to the sentencing of a defendant for a violation of driving
under the influence of alcohol, Section 18-8005, Idaho Code,
provides that the defendant shall obtain an alcohol abuse
evaluation for the assistance of the sentencing judge in deciding
whether alcohol treatment is indicated.

Presently, the evaluation is mandatory in all DUI cases.  The
Judiciary believes that in appropriate circumstances the
sentencing judge should have the option of waiving these
evaluations.  In many cases, the sentencing judge already has
sufficient information through other records and reports relating
to the defendant's degree of alcohol abuse to make an informed
decision concerning whether an alcohol treatment program should
be ordered.

The amendment to Section 18-8005, Idaho Code, contemplated by
this bill provides that the sentencing judge has discretionary
authority to determine that an evaluation is unnecessary with
respect to certain DUI offenses committed by persons who have no
prior violations of the DUI laws if the judge has the defendant's
criminal history, driving record and evidentiary test of the
defendant's degree of alcohol concentration and has no reason to
believe that the offender regularly abuses alcohol and may be in
need of treatment.  This legislation also grants a judge
discretion to waive an evaluation in any case where the court has
a similar assessment relating to the defendant's degree of
alcohol abuse and/or need for treatment which has been conducted
within twelve months of the sentencing.
                          FISCAL IMPACT
This bill will have a positive impact on state and local funds
through a savings of court time and the avoidance of unnecessary
delays in case processing.



Contact
Name:     Rep. Richard Wills
Phone:    (208) 332-1000




STATEMENT OF PURPOSE/FISCAL NOTE               H 336