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H0578.............................................................by TAYLOR DRIVING UNDER INFLUENCE - Amends and adds to existing law to provide for impoundment and forfeiture of vehicles of persons convicted of driving under the influence of alcohol or drugs. 02/02 House intro - 1st rdg - to printing 02/03 Rpt prt - to Transp
H0578|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 578 BY TAYLOR 1 AN ACT 2 RELATING TO IMPOUNDMENT OF VEHICLES OF PERSONS CONVICTED OF DRIVING UNDER THE 3 INFLUENCE OF ALCOHOL, DRUGS OR OTHER INTOXICATING SUBSTANCES; AMENDING 4 CHAPTER 14, TITLE 49, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 5 49-1431, IDAHO CODE, TO PROVIDE FOR SEIZURE AND IMPOUNDMENT OF VEHICLES, 6 TO PROVIDE FOR NOTICE OF IMPOUNDMENT TO THE REGISTERED OWNER, TO PROVIDE 7 FOR IMPOUNDMENT OR RENDERING THE VEHICLE INOPERABLE FOR THIRTY DAYS UPON A 8 CONVICTION OF THE OFFENSE FOR WHICH THE VEHICLE WAS IMPOUNDED, TO PROVIDE 9 FOR TREATMENT OF THE VEHICLE IF IT IS SUBJECT TO FORFEITURE, TO PROVIDE 10 REQUIREMENTS FOR RELEASE OF THE VEHICLE, TO PROVIDE FOR DISPOSITION OF THE 11 VEHICLE IF THE OWNER/OPERATOR IS NOT CONVICTED OF THE OFFENSE FOR WHICH 12 THE VEHICLE IS TO BE IMPOUNDED OR RENDERED INOPERABLE FOR THIRTY DAYS OR 13 FOR WHICH THE VEHICLE IS TO BE FORFEITED, PROVIDING A CAUSE OF ACTION BY 14 THE REGISTERED OWNER AGAINST THE OPERATOR CAUSING THE IMPOUNDMENT AND TO 15 PROVIDE A DEFINITION; AMENDING CHAPTER 14, TITLE 49, IDAHO CODE, BY THE 16 ADDITION OF A NEW SECTION 49-1432, IDAHO CODE, TO PROVIDE FOR FORFEITURE 17 OF THE VEHICLE AND THE GROUNDS FOR FORFEITURE, TO PROVIDE FOR FORFEITURE 18 PROCEEDINGS AND TO PROVIDE FOR SALE OF THE VEHICLE AND DISTRIBUTION OF THE 19 PROCEEDS; AMENDING CHAPTER 14, TITLE 49, IDAHO CODE, BY THE ADDITION OF A 20 NEW SECTION 49-1433, IDAHO CODE, TO PROVIDE FOR IMPOUNDMENT OF A VEHICLE 21 UPON AN ARREST OR CITATION FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, 22 DRUGS OR OTHER INTOXICATING SUBSTANCES, FOR AGGRAVATED DRIVING UNDER THE 23 INFLUENCE OF ALCOHOL, DRUGS OR OTHER INTOXICATING SUBSTANCES, OR FOR 24 VEHICULAR MANSLAUGHTER, TO PROVIDE FOR IMPOUNDMENT OR RENDERING THE VEHI- 25 CLE INOPERABLE FOR THIRTY DAYS UPON CONVICTION OF CERTAIN OFFENSES AND TO 26 PROVIDE FOR FORFEITURE OF THE VEHICLE UPON A FELONY CONVICTION OF DRIVING 27 UNDER THE INFLUENCE OF ALCOHOL, DRUGS OR OTHER INTOXICATING SUBSTANCES, 28 UPON A CONVICTION OF AGGRAVATED DRIVING UNDER THE INFLUENCE AND FOR CER- 29 TAIN VEHICULAR MANSLAUGHTER OFFENSES; AMENDING SECTION 18-4007, IDAHO 30 CODE, TO PROVIDE FOR IMPOUNDMENT AND RENDERING THE VEHICLE INOPERABLE FOR 31 THIRTY DAYS FOR VEHICULAR MANSLAUGHTER WITHOUT GROSS NEGLIGENCE AND FOR 32 FORFEITURE OF THE VEHICLE FOR OTHER VEHICULAR MANSLAUGHTER OFFENSES; 33 AMENDING SECTION 18-8004A, IDAHO CODE, TO PROVIDE FOR IMPOUNDMENT OR REN- 34 DERING THE VEHICLE INOPERABLE FOR THIRTY DAYS UPON CERTAIN CONVICTIONS AND 35 FOR FORFEITURE UPON A CERTAIN CONVICTION UNDER THE SECTION AND TO MAKE A 36 TECHNICAL CORRECTION; AMENDING SECTION 18-8005, IDAHO CODE, TO PROVIDE FOR 37 IMPOUNDMENT OR RENDERING THE VEHICLE INOPERABLE FOR THIRTY DAYS FOR CER- 38 TAIN CONVICTIONS AND FOR FORFEITURE OF THE VEHICLE FOR A FELONY CONVICTION 39 OF DRIVING UNDER THE INFLUENCE OF ALCOHOL, DRUGS OR OTHER INTOXICATING 40 SUBSTANCES AND TO MAKE A TECHNICAL CORRECTION; AND AMENDING SECTION 41 18-8006, IDAHO CODE, TO PROVIDE FOR FORFEITURE OF THE VEHICLE FOR A CON- 42 VICTION OF AGGRAVATED DRIVING UNDER THE INFLUENCE OF ALCOHOL, DRUGS OR 43 OTHER INTOXICATING SUBSTANCES. 44 Be It Enacted by the Legislature of the State of Idaho: 2 1 SECTION 1. That Chapter 14, Title 49, Idaho Code, be, and the same is 2 hereby amended by the addition thereto of a NEW SECTION , to be 3 known and designated as Section 49-1431, Idaho Code, and to read as follows: 4 49-1431. SEIZURE AND IMPOUNDMENT OF VEHICLES -- NOTICE -- LENGTH OF 5 IMPOUNDMENT -- RELEASE OF VEHICLE. (1) If a peace officer arrests or cites the 6 operator of a vehicle for an offense for which impoundment of a vehicle is 7 required under the provisions of section 49-1433, Idaho Code, the officer 8 shall impound the vehicle and remove it to a place of safety. 9 (2) The vehicle shall remain impounded until released to the registered 10 owner as provided in subsections (4) and (5) of this section. 11 (3) The governmental agency impounding the vehicle shall give notice of 12 the impoundment to the registered owner of the vehicle at the address indi- 13 cated in the records of the Idaho transportation department or a similar 14 department of another state if the records are maintained in that state. The 15 notice shall: 16 (a) State the date, time and place of impoundment, the name of the person 17 operating the vehicle at the time of impoundment, if applicable, the rea- 18 son for impoundment and the name of the place where the vehicle is stored; 19 (b) State that the registered owner is responsible for payment of towing, 20 impound and any storage fees charged against the vehicle; and 21 (c) Inform the registered owner of the requirements for release of the 22 vehicle, as provided in subsection (5) of this section. 23 (4) (a) If the operator is also the registered owner of the vehicle and 24 the owner/operator is found guilty of or pleads guilty to the offense for 25 which the vehicle was impounded, the sentencing court shall order that the 26 vehicle remain impounded if not previously released or direct the law 27 enforcement agency of the county or city of the person's residence to: 28 (i) Move the vehicle from the place of impoundment and render it 29 inoperable in a manner directed by the court at the 30 owner's/operator's residence or such other place designated by the 31 court; or 32 (ii) Seize and impound the vehicle; or 33 (iii) Render the vehicle inoperable in the manner designated by the 34 court at the owner's/operator's residence or such other place desig- 35 nated by the court; 36 for a period of not less than thirty (30) days, not including any previous 37 period of impoundment. In its order the court shall specify the date on 38 which the vehicle may be released or again rendered operable, subject to 39 the owner's/operator's compliance with the conditions for release provided 40 in subsection (5) of this section. 41 The vehicle may be rendered inoperable by booting, locking the steer- 42 ing wheel or such other reasonable means as the court may order. 43 (b) If the vehicle is subject to forfeiture as provided in section 44 49-1433, Idaho Code, the court shall order that the vehicle remain 45 impounded or rendered inoperable until forfeiture proceedings have been 46 initiated under the provisions of section 49-1432, Idaho Code. 47 (c) The owner/operator is responsible for all costs associated with 48 actions taken pursuant to the provisions of paragraphs (a) and (b) of this 49 subsection. 50 (d) The provisions of this subsection (4) shall apply to the vehicle even 51 if the vehicle is subject to joint ownership or is the only vehicle rea- 52 sonably available to the spouse of the owner/operator; provided however, 53 that upon application to the court having jurisdiction of the underlying 54 criminal offense, the joint owner or spouse of the owner/operator may be 3 1 allowed the use of the vehicle if the person is otherwise authorized to 2 drive a vehicle and the court determines that deprivation of the vehicle 3 would constitute an extreme hardship to the innocent party. The court may 4 impose such other conditions or restrictions as it deems appropriate in 5 the circumstances. 6 (e) If the vehicle has not been released prior to the disposition of the 7 charges against the owner/operator and the charges for which the vehicle 8 was impounded are dismissed or the owner/operator is found not guilty of 9 those charges, or the owner/operator pleads guilty to or is found guilty 10 of an offense for which impoundment is not permitted, the vehicle shall be 11 released to the owner/operator upon compliance with the provisions of sub- 12 section (5) of this section. If the original charges against the 13 owner/operator would require forfeiture of the vehicle under the provi- 14 sions of section 49-1433, Idaho Code, and the owner/operator pleads guilty 15 to a lesser offense to which the thirty (30) day period provided for in 16 subsection (4)(a) of this section would apply, the vehicle shall be 17 ordered impounded or otherwise rendered inoperable for such period. 18 (5) Except as otherwise provided in subsection (4) of this section, the 19 impounded vehicle shall be released to the registered owner or agent of an 20 owner if the person: 21 (a) Makes a claim in person for release of the vehicle; 22 (b) Pays an impound fee of twenty-five dollars ($25.00); 23 (c) Pays all towing and storage fees and provides proof of payment as 24 required by the governmental agency; 25 (d) Presents proof of ownership of the impounded vehicle; 26 (e) Presents a certificate of liability insurance or other proof of 27 financial responsibility as required by Idaho law; and 28 (f) Presents a valid driver's license. 29 (6) Notwithstanding the provisions of section 19-4705, Idaho Code, to the 30 contrary, the impound fees provided in subsection (5)(b) of this section shall 31 be retained by the governmental agency impounding the vehicle to defray the 32 costs of the impoundment. 33 (7) Upon the payment of all fees and charges required to be paid for 34 release of the vehicle, the registered owner of the vehicle shall have a cause 35 of action against the operator of the vehicle whose actions caused the 36 impoundment for all such fees and charges, together with damages, court costs 37 and attorney's fees. 38 (8) For purposes of sections 49-1431 through 49-1433, Idaho Code, 39 "governmental agency" means the state of Idaho, a county or a municipality. 40 SECTION 2. That Chapter 14, Title 49, Idaho Code, be, and the same is 41 hereby amended by the addition thereto of a NEW SECTION , to be 42 known and designated as Section 49-1432, Idaho Code, and to read as follows: 43 49-1432. FORFEITURE OF VEHICLE -- PROCEDURE. (1) An impounded vehicle 44 shall be subject to forfeiture under the provisions of this section: 45 (a) If the vehicle is not claimed by a registered owner other than the 46 operator of the vehicle at the time of impoundment, within sixty (60) days 47 after notice of the impoundment pursuant to section 49-1431, Idaho Code; 48 (b) If the vehicle is not claimed by a registered owner who was the oper- 49 ator of the vehicle at the time of impoundment within sixty (60) days 50 after the vehicle is released by the court pursuant to section 49-1431(4), 51 Idaho Code; 52 (c) If the Idaho transportation department or the governmental agency is 53 unable to determine the owner of the vehicle through reasonable efforts 4 1 and the vehicle has remained impounded for sixty (60) days or more; or 2 (d) If the vehicle is otherwise subject to forfeiture as provided in sec- 3 tion 49-1333, Idaho Code. 4 (2) Vehicles subject to forfeiture as provided in this section shall not 5 be subject to replevin, but shall be deemed to be in the custody of the prose- 6 cuting attorney of the county in which the vehicle is impounded, subject only 7 to the orders and decrees of the district court, or magistrate's division 8 thereof, having jurisdiction over the forfeiture proceedings. Proceedings to 9 forfeit a vehicle hereunder shall be civil actions against the property and 10 the standard of proof shall be a preponderance of the evidence. The proceed- 11 ings shall be governed by the Idaho rules of civil procedure. 12 (3) Forfeiture proceedings shall be filed in the district court of the 13 county where the vehicle was impounded. The court may order the vehicle for- 14 feited to the appropriate prosecuting attorney upon a determination that one 15 (1) of the conditions provided in subsection (1) of this section exists and 16 all notices required to be sent to the registered owner under section 49-1431, 17 Idaho Code, and this section have been sent. 18 (4) (a) Notice of any forfeiture proceedings shall be given to each owner 19 or party in interest who has a right, title or interest in the vehicle, as 20 determined by the records of the Idaho transportation department or a sim- 21 ilar department of another state if the records are maintained in that 22 state, by service of a copy of the complaint and summons by one (1) of the 23 following methods: 24 (i) Upon each owner or party in interest by mailing a copy of the 25 complaint and summons by certified mail to the address as given upon 26 the records of the department; or 27 (ii) Upon each owner or party in interest whose name and address is 28 known, by mailing a copy of the notice by registered mail to the last 29 known address. 30 (b) Within twenty (20) days after the mailing of the notice, the owner of 31 the vehicle or party in interest may file a verified answer and claim to 32 the property described in the complaint. 33 (5) If at the end of twenty (20) days after the notice has been mailed 34 there is no verified answer on file, the court shall hear evidence supporting 35 the forfeiture of the vehicle and shall order the property forfeited if the 36 plaintiff's burden has been met. 37 (6) If a verified answer is filed, the forfeiture proceedings shall be 38 set for trial before the court without a jury or with a jury, if a jury trial 39 is requested as provided in the Idaho rules of civil procedure. A forfeiture 40 proceeding commenced under the provisions of this subsection shall have prior- 41 ity over other civil cases. 42 (7) At the hearing, any owner having a verified answer on file may show 43 by competent evidence that his interest in the vehicle is not subject to for- 44 feiture. If the court finds that the property is not subject to forfeiture, 45 the court shall order the property released to the owner as his right, title 46 or interest appeared at the time of the impoundment on records of the appro- 47 priate department. Upon proof of a valid interest in the vehicle by a co-owner 48 or claimant of any right, title or interest in the vehicle, whether under a 49 lien, mortgage, conditional sales contract or otherwise, the court may order 50 the vehicle released to the bona fide or innocent owner or co-owner, lien- 51 holder, mortgagee or conditional sales vendor. 52 (8) If the amount due to any bona fide or innocent owner or co-owner, 53 lienholder, mortgagee or conditional sales vendor is less than the value of 54 the vehicle, it may be sold at public auction. Notice of the sale shall be 55 published in at least one (1) publication of the official newspaper of the 5 1 locality in which the vehicle is to be sold at least one (1) week prior to the 2 sale. The proceeds from the sale shall be distributed in the following order: 3 (a) To the bona fide or innocent owner or co-owner, lienholder, mortgagee 4 or conditional sales vendor of the vehicle, if any, up to the value of his 5 interest in the vehicle; 6 (b) The balance to the governmental agency whose law enforcement officer 7 impounded the vehicle for all expenditures made or incurred in connection 8 with the impoundment of the vehicle, and all expenditures made or incurred 9 in connection with the forfeiture proceedings and the sale of the vehicle; 10 (c) The remainder, if any, shall be retained by the governmental agency 11 whose peace officer impounded the vehicle. 12 (9) Notwithstanding any other provision of this section, upon being sat- 13 isfied that the interest of a co-owner or claimant should not be subject to 14 forfeiture because they neither knew nor should have known that the personal 15 property was being used or had been used for the purposes alleged, or that due 16 to preexisting security interests in the property there is no equity which may 17 be forfeited, the attorney general or appropriate prosecuting attorney, with 18 authorization of the court, may release the property to the co-owner, holder 19 of the security interest or other claimant. 20 SECTION 3. That Chapter 14, Title 49, Idaho Code, be, and the same is 21 hereby amended by the addition thereto of a NEW SECTION , to be 22 known and designated as Section 49-1433, Idaho Code, and to read as follows: 23 49-1433. OFFENSES FOR WHICH VEHICLE MAY BE IMPOUNDED -- FORFEITURE FOR 24 CERTAIN OFFENSES. (1) A motor vehicle shall be impounded at the time of cita- 25 tion or arrest for a violation of section 18-8004(1)(a) or (b), 18-8006, or 26 18-4006 3., Idaho Code. If the operator of the vehicle at the time of arrest 27 or citation is the registered owner of the vehicle, the vehicle shall be sub- 28 ject to impoundment or being rendered inoperable for thirty (30) days under 29 the provisions of section 49-1431, Idaho Code, if the operator is convicted of 30 any of the following offenses: 31 (a) Section 18-8004(1)(a) or (d), Idaho Code, (driving under the influ- 32 ence of alcohol, drugs or other intoxicating substances); or 33 (b) Section 18-8006, Idaho Code, (aggravated driving under the influence 34 of alcohol, drugs, or other intoxicating substances); or 35 (c) Section 18-4006 3.(c), Idaho Code, (vehicular manslaughter not 36 amounting to a felony, without gross negligence). 37 (2) If the operator of the vehicle is the registered owner of the vehi- 38 cle, the vehicle shall be subject to forfeiture under the provisions of sec- 39 tion 49-1432, Idaho Code, if the operator is convicted of any of the following 40 offenses: 41 (a) A felony conviction of driving under the influence of alcohol, drugs 42 or other intoxicating substances for which penalties are imposed pursuant 43 to section 18-8005(5), Idaho Code; or 44 (b) A conviction of aggravated driving under the influence of alcohol, 45 drugs or other intoxicating substances pursuant to section 18-8006, Idaho 46 Code; or 47 (c) A conviction of vehicular manslaughter, as provided in section 48 18-4006 3.(a) or 3.(b), Idaho Code. 49 SECTION 4. That Section 18-4007, Idaho Code, be, and the same is hereby 50 amended to read as follows: 51 18-4007. PUNISHMENT FOR MANSLAUGHTER. Manslaughter is punishable as fol- 6 1 lows: 2 1. Voluntary--by a fine of not more than fifteen thousand dollars 3 ($15,000), or by a sentence to the custody of the state board of correction 4 not exceeding fifteen (15) years, or by both such fine and imprisonment. 5 2. Involuntary--by a fine of not more than ten thousand dollars 6 ($10,000), or by a sentence to the custody of the state board of correction 7 not exceeding ten (10) years, or by both such fine and imprisonment. 8 3. Vehicular--in the operation of a motor vehicle: 9 (a) For a violation of section 18-4006 3. (a) or (b), Idaho Code, by a 10 fine of not more than ten thousand dollars ($10,000), or by a sentence to 11 the custody of the state board of correction not exceeding ten (10) years, 12 or by both such fine and imprisonment. If the person is the regis- 13 tered owner of the vehicle being operated at the time of the offense for 14 which penalties are imposed under the provisions of this subsection 3.(a), 15 the vehicle shall be seized and impounded and forfeited as provided in 16 sections 49-1431 through 49-1433, Idaho Code. 17 (b) For a violation of section 18-4006 3. (c), Idaho Code, by a fine of 18 not more than two thousand dollars ($2,000), or by a jail sentence not 19 exceeding one (1) year, or by both such fine and jail sentence. If 20 the person is the registered owner of the vehicle being operated at the 21 time of the offense for which penalties are imposed under the provisions 22 of this subsection 3.(b), the vehicle shall be impounded or rendered inop- 23 erable for a period of thirty (30) days, as provided in sections 49-1431 24 and 49-1433, Idaho Code. 25 (c) In addition to the foregoing, any person convicted of a violation of 26 section 18-4006 3., Idaho Code, which resulted in the death of the parent 27 or parents of minor children may be ordered by the court to pay support 28 for each such minor child until the child reaches the age of eighteen 29 (18). Support shall be established in accordance with the child support 30 guidelines then in effect, and the nonpayment of such support shall be 31 subject to enforcement and collection by the surviving parent or guardian 32 of the child in the same manner that other child support orders are 33 enforced as provided by law. In no event shall the child support judgment 34 or order imposed by the court under this section be paid or indemnified by 35 the proceeds of any liability insurance policy. 36 (d) In addition to the foregoing, the driver's license of any person con- 37 victed of a violation of section 18-4006 3., Idaho Code, may be suspended 38 for a time determined by the court. 39 SECTION 5. That Section 18-8004A, Idaho Code, be, and the same is hereby 40 amended to read as follows: 41 18-8004A. PENALTIES -- PERSONS UNDER 21 WITH LESS THAN 0.08 ALCOHOL CON- 42 CENTRATION. (1) Any person found guilty of a violation of subsection (1)(d) of 43 section 18-8004, Idaho Code, shall be guilty of a misdemeanor; and, for a 44 first offense: 45 (a) Shall be fined an amount not to exceed one thousand dollars ($1,000); 46 (b) Shall have his driving privileges suspended by the court for a period 47 of one (1) year, ninety (90) days of which shall not be reduced and dur- 48 ing which period absolutely no driving privileges of any kind may be 49 granted. After the period of absolute suspension of driving privileges 50 has passed, the defendant may request restricted driving privileges which 51 the court may allow, if the defendant shows by a preponderance of the evi- 52 dence that driving privileges are necessary as deemed appropriate by the 53 court.; 7 1 (c) Shall be advised by the court in writing at the time of sentencing of 2 the penalties that will be imposed for any subsequent violation of the 3 provisions of this section or any violation of section 18-8004, Idaho 4 Code, which advice shall be signed by the defendant, and a copy retained 5 by the court and another copy retained by the prosecuting attorney.6; 7 (d) If the person was the registered owner of the vehicle being 8 operated at the time of the offense for which penalties are imposed under 9 the provisions of this subsection, the vehicle shall be impounded or 10 otherwise rendered inoperable for a period of thirty (30) days, as pro- 11 vided in sections 49-1431 and 49-1433, Idaho Code; 12 (e) Shall be required to undergo an alcohol evaluation and 13 otherwise comply with the requirements of sections 18-8005(9) and 14 18-8005(12), Idaho Code, as ordered by the court. 15 (2) Any person who pleads guilty to or is found guilty of a violation of 16 the provisions of subsection (1)(d) of section 18-8004, Idaho Code, who previ- 17 ously has been found guilty of or has pled guilty to a violation of section 18 18-8004(1)(d), Idaho Code, or any substantially conforming foreign criminal 19 violation, as defined in section 18-8005(8), Idaho Code, notwithstanding the 20 form of the judgment or withheld judgment, is guilty of a misdemeanor; and 21 (a) Shall be fined an amount of not less than five hundred dollars ($500) 22 nor more than two thousand dollars ($2,000); 23 (b) Shall have his driving privileges suspended by the court for a period 24 not to exceed two (2) years, one hundred eighty (180) days of which shall 25 be absolute and shall not be reduced and during which period absolutely no 26 driving privileges of any kind may be granted; 27 (c) Shall be advised by the court in writing at the time of sentencing of 28 the penalties that will be imposed for subsequent violations of the provi- 29 sions of this section or section 18-8004, Idaho Code, which advice shall 30 be signed by the defendant, and a copy retained by the court and another 31 copy retained by the prosecuting attorney; 32 (d) Shall undergo an alcohol evaluation and comply with the other 33 requirements of subsections (9) and (12) of section 18-8005, Idaho 34 Code ; 35 (e) If the person was the registered owner of the vehicle being operated 36 at the time of the offense for which penalties are imposed under the pro- 37 visions of this subsection, the vehicle shall be impounded or otherwise 38 rendered inoperable for a period of thirty (30) days, as provided in sec- 39 tions 49-1431 and 49-1433, Idaho Code . 40 (3) Any person who pleads guilty to or is found guilty of a violation of 41 the provisions of subsection (1)(d) of section 18-8004, Idaho Code, who previ- 42 ously has been found guilty of or has pled guilty to two (2) or more viola- 43 tions of the provisions of section 18-8004(1)(d), Idaho Code, or any substan- 44 tially conforming foreign criminal violation, within five (5) years, notwith- 45 standing the form of the judgment or withheld judgment, shall be guilty of a 46 misdemeanor; and 47 (a) May be sentenced to jail for not to exceed six (6) months; 48 (b) Shall be fined an amount of not less than one thousand dollars 49 ($1,000) nor more than two thousand dollars ($2,000); 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, during which period absolutely no 53 driving privileges of any kind may be granted, or until such person 54 reaches the age of twenty-one (21), whichever is greater;and55 (e) Shall undergo an alcohol evaluation and comply with all other 8 1 requirements imposed by the court pursuant to sections 18-8005(9) and 2 18-8005(12), Idaho Code ; and 3 (f) If the person was the registered owner of the vehicle being operated 4 at the time of the offense for which penalties are imposed under the pro- 5 visions of this subsection, the vehicle shall be seized and impounded and 6 forfeited, as provided in sections 49-1431 through 49-1433, Idaho Code 7 . 8 (4) All provisions of section 18-8005, Idaho Code, not otherwise in con- 9 flict with or provided for in this section shall apply to any sentencing 10 imposed under the provisions of this section. 11 (5) A person violating the provisions of section 18-8004(1)(d), Idaho 12 Code, may be prosecuted under chapter 5, title161320 , Idaho Code. 14 SECTION 6. That Section 18-8005, Idaho Code, be, and the same is hereby 15 amended to read as follows: 16 18-8005. PENALTIES. (1) Any person who pleads guilty to or is found 17 guilty of a violation of the provisions of section 18-8004(1)(a) or (5), Idaho 18 Code, for the first time is guilty of a misdemeanor; and, except as provided 19 in section 18-8004C, Idaho Code: 20 (a) May be sentenced to jail for not to exceed six (6) months; 21 (b) May be fined an amount not to exceed one thousand dollars ($1,000); 22 (c) Shall be advised by the court in writing at the time of sentencing of 23 the penalties that will be imposed for subsequent violations of the provi- 24 sions of section 18-8004, Idaho Code, which advice shall be signed by the 25 defendant, and a copy retained by the court and another copy retained by 26 the prosecuting attorney;and27 (d) Shall have his driving privileges suspended by the court for a period 28 of thirty (30) days which shall not be reduced and during which thirty 29 (30) day period absolutely no driving privileges of any kind may be 30 granted. After the thirty (30) day period of absolute suspension of driv- 31 ing privileges has passed, the defendant shall have driving privileges 32 suspended by the court for an additional period of at least sixty (60) 33 days, not to exceed one hundred fifty (150) days during which the defend- 34 ant may request restricted driving privileges which the court may allow, 35 if the defendant shows by a preponderance of the evidence that driving 36 privileges are necessary for his employment or for family health 37 needs ; and 38 (e) If the person was the registered owner of the vehicle being operated 39 at the time of the offense for which penalties are imposed under the pro- 40 visions of this subsection, the vehicle shall be impounded or otherwise 41 rendered inoperable for a period of thirty (30) days, as provided in sec- 42 tions 49-1431 and 49-1433, Idaho Code . 43 (2) Any person who pleads guilty to or is found guilty of a violation of 44 the provisions of section 18-8004(1)(b), Idaho Code, for the first time is 45 guilty of a misdemeanor and subject to: 46 (a) The provisions of section 18-8005(1), Idaho Code; and 47 (b) The provisions of section 49-335, Idaho Code. 48 (3) Any person who pleads guilty to or is found guilty of a violation of 49 the provisions of section 18-8004(1)(c), Idaho Code, for the first time, is 50 guilty of a misdemeanor and is subject to: 51 (a) The provisions of section 18-8005(1), Idaho Code; and 52 (b) The provisions of section 49-335, Idaho Code. 53 (4) Any person who pleads guilty to or is found guilty of a violation of 9 1 the provisions of section 18-8004(1)(a), (b) or (c), Idaho Code, who previ- 2 ously has been found guilty of or has pled guilty to a violation of the provi- 3 sions of section 18-8004(1)(a), (b) or (c), Idaho Code, or any substantially 4 conforming foreign criminal violation within five (5) years, notwithstanding 5 the form of the judgment(s) or withheld judgment(s), and except as provided in 6 section 18-8004C, Idaho Code, is guilty of a misdemeanor; and, except as pro- 7 vided in section 18-8004C, Idaho Code: 8 (a) Shall be sentenced to jail for a mandatory minimum period of not less 9 than ten (10) days the first forty-eight (48) hours of which must be con- 10 secutive, and may be sentenced to not more than one (1) year, provided 11 however, that in the discretion of the sentencing judge, the judge may 12 authorize the defendant to be assigned to a work detail program within the 13 custody of the county sheriff during the period of incarceration; 14 (b) May be fined an amount not to exceed two thousand dollars ($2,000); 15 (c) Shall be advised by the court in writing at the time of sentencing, 16 of the penalties that will be imposed for subsequent violations of the 17 provisions of section 18-8004, Idaho Code, which advice shall be signed by 18 the defendant, and a copy retained by the court and another copy retained 19 by the prosecuting attorney; 20 (d) Shall surrender his driver's license or permit to the court; 21 (e) Shall have his driving privileges suspended by the court for an addi- 22 tional mandatory minimum period of one (1) year after release from con- 23 finement, during which one (1) year period absolutely no driving privi- 24 leges of any kind may be granted;and25 (f) If the person was the registered owner of the vehicle being 26 operated at the time of the offense for which penalties are imposed under 27 the provisions of this subsection, the vehicle shall be impounded or 28 otherwise rendered inoperable for a period of thirty (30) days, as pro- 29 vided in sections 49-1431 and 49-1433, Idaho Code; and 30 (g) If the person has pled guilty or was found guilty for the sec- 31 ond time within five (5) years of a violation of the provisions of section 32 18-8004(1)(b) or (c), Idaho Code, then the provisions of section 49-335, 33 Idaho Code, shall apply. 34 (5) Except as provided in section 18-8004C, Idaho Code, any person who 35 pleads guilty to or is found guilty of a violation of the provisions of sec- 36 tion 18-8004(1)(a), (b) or (c), Idaho Code, who previously has been found 37 guilty of or has pled guilty to two (2) or more violations of the provisions 38 of section 18-8004(1)(a), (b) or (c), Idaho Code, or any substantially con- 39 forming foreign criminal violation, or any combination thereof, within five 40 (5) years, notwithstanding the form of the judgment(s) or withheld 41 judgment(s), shall be guilty of a felony; and 42 (a) Shall be sentenced to the custody of the state board of correction 43 for not to exceed five (5) years; provided that notwithstanding the provi- 44 sions of section 19-2601, Idaho Code, should the court impose any sentence 45 other than incarceration in the state penitentiary, the defendant shall be 46 sentenced to the county jail for a mandatory minimum period of not less 47 than thirty (30) days, the first forty-eight (48) hours of which must be 48 consecutive; and further provided that notwithstanding the provisions of 49 section 18-111, Idaho Code, a conviction under this section shall be 50 deemed a felony; 51 (b) May be fined an amount not to exceed five thousand dollars ($5,000); 52 (c) Shall surrender his driver's license or permit to the court;53and54 (d) Shall have his driving privileges suspended by the court for a manda- 55 tory minimum period of one (1) year after release from imprisonment, and 10 1 may have his driving privileges suspended by the court for not to exceed 2 five (5) years after release from imprisonment, during which time he shall 3 have absolutely no driving privileges of any kind ; and 4 (e) With respect to a violation of section 18-8004(1)(a), Idaho Code, if 5 the person was the registered owner of the vehicle being operated at the 6 time of the offense for which penalties are imposed under this subsection, 7 the vehicle shall be seized and impounded and forfeited, as provided in 8 sections 49-1431 through 49-1433, Idaho Code . 9 (6) For the purpose of computation of the enhancement period in subsec- 10 tions (4), (5) and (7) of this section, the time that elapses between the date 11 of commission of the offense and the date the defendant pleads guilty or is 12 found guilty for the pending offense shall be excluded. If the determination 13 of guilt against the defendant is reversed upon appeal, the time that elapsed 14 between the date of the commission of the offense and the date the defendant 15 pleads guilty or is found guilty following the appeal shall also be excluded. 16 (7) Notwithstanding the provisions of subsections (4) and (5) of this 17 section, any person who has pled guilty or has been found guilty of a felony 18 violation of the provisions of section 18-8004, Idaho Code, a felony violation 19 of the provisions of section 18-8004C, Idaho Code, a violation of the provi- 20 sions of section 18-8006, Idaho Code, or a violation of the provisions of sec- 21 tion 18-4006 3. (b), Idaho Code, and within ten (10) years pleads guilty or is 22 found guilty of a further violation of the provisions of section 18-8004, 23 Idaho Code, shall be guilty of a felony and shall be sentenced pursuant to 24 subsection (5) of this section. 25 (8) For the purpose of subsections (4) and (5) of this section and the 26 provisions of section 18-8004C, Idaho Code, a substantially conforming foreign 27 criminal violation exists when a person has pled guilty to or has been found 28 guilty of a violation of any federal law or law of another state, or any valid 29 county, city, or town ordinance of another state substantially conforming to 30 the provisions of section 18-8004, Idaho Code. The determination of whether a 31 foreign criminal violation is substantially conforming is a question of law to 32 be determined by the court. 33 (9) Any person who pleads guilty to or is found guilty of a violation of 34 the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code, shall 35 undergo, at his own expense, (or at county expense through the procedures set 36 forth in chapters 34 and 35, title 31, Idaho Code,) and prior to the sentenc- 37 ing date, an alcohol evaluation by an alcohol evaluation facility approved by 38 the Idaho department of health and welfare. In the event the alcohol evalua- 39 tion indicates the need for alcohol treatment, the evaluation shall contain a 40 recommendation by the evaluator as to the most appropriate treatment program, 41 together with the estimated cost thereof, and recommendations for other suit- 42 able alternative treatment programs, together with the estimated costs 43 thereof. The person shall request that a copy of the completed evaluation be 44 forwarded to the court. The court shall take the evaluation into consideration 45 in determining an appropriate sentence. If a copy of the completed evaluation 46 has not been provided to the court, the court may proceed to sentence the 47 defendant; however, in such event, it shall be presumed that alcohol treatment 48 is required unless the defendant makes a showing by a preponderance of evi- 49 dence that treatment is not required. If the defendant has not made a good 50 faith effort to provide the completed copy of the evaluation to the court, the 51 court may consider the failure of the defendant to provide the report as an 52 aggravating circumstance in determining an appropriate sentence. If treatment 53 is ordered, in no event shall the person or facility doing the evaluation be 54 the person or facility that provides the treatment unless this requirement is 55 waived by the sentencing court, with the exception of federally recognized 11 1 Indian tribes or federal military installations, where diagnosis and treatment 2 are appropriate and available. Nothing herein contained shall preclude the use 3 of funds authorized pursuant to the provisions of chapter 3, title 39, Idaho 4 Code, for court-ordered alcohol treatment for indigent defendants. 5 (10) At the time of sentencing, the court shall be provided with the fol- 6 lowing information: 7 (a) The results, if administered, of any evidentiary test for alcohol 8 and/or drugs; 9 (b) A computer or teletype or other acceptable copy of the person's driv- 10 ing record; 11 (c) Information as to whether the defendant has pled guilty to or been 12 found guilty of violation of the provisions of section 18-8004, 18-8004C 13 or 18-8006, Idaho Code, or a similar offense within the past five (5) 14 years, notwithstanding the form of the judgment(s) or withheld 15 judgment(s); and 16 (d) The alcohol evaluation required in subsection (9) of this section, if 17 any. 18 (11) A minor may be prosecuted for a violation of the provisions of sec- 19 tion 18-8004 or 18-8004C, Idaho Code, under chapter 5, title 201620 , Idaho Code. In addition to any other penalty, 21 if a minor pleads guilty to or is found guilty of a violation of the provi- 22 sions of section 18-8004(1)(a), (b) or (c) or 18-8004C, Idaho Code, he shall 23 have his driving privileges suspended or denied for an additional one (1) year 24 following the end of any period of suspension or revocation existing at the 25 time of the violation, or until he reaches the age of twenty-one (21) years, 26 whichever period is greater. During the period of additional suspension or 27 denial, absolutely no driving privileges shall be allowed. 28 (12) In the event that the alcohol evaluation required in subsection (9) 29 of this section recommends alcohol treatment, the court shall order the person 30 to complete a treatment program in addition to any other sentence which may be 31 imposed, unless the court determines that alcohol treatment would be inappro- 32 priate or undesirable, in which event, the court shall enter findings articu- 33 lating the reasons for such determination on the record. The court shall order 34 the defendant to complete the preferred treatment program set forth in the 35 evaluation, or a comparable alternative, unless it appears that the defendant 36 cannot reasonably obtain adequate financial resources for such treatment. In 37 that event, the court may order the defendant to complete a less costly alter- 38 native set forth in the evaluation, or a comparable program. Such treatment 39 shall, to the greatest extent possible, be at the expense of the defendant. In 40 the event that funding is provided for or on behalf of the defendant by an 41 entity of state government, restitution shall be ordered to such governmental 42 entity in accordance with the restitution procedure for crime victims, as 43 specified under chapter 53, title 19, Idaho Code. Nothing contained herein 44 shall be construed as requiring a court to order that a governmental entity 45 shall provide alcohol treatment at government expense unless otherwise 46 required by law. 47 (13) Any person who is disqualified shall not be granted restricted driv- 48 ing privileges to operate a commercial motor vehicle. 49 SECTION 7. That Section 18-8006, Idaho Code, be, and the same is hereby 50 amended to read as follows: 51 18-8006. AGGRAVATED DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL, DRUGS 52 OR ANY OTHER INTOXICATING SUBSTANCES. (1) Any person causing great bodily 53 harm, permanent disability or permanent disfigurement to any person other than 12 1 himself in committing a violation of the provisions of section 18-8004(1)(a) 2 or (1)(c), Idaho Code, is guilty of a felony, and upon conviction: 3 (a) Shall be sentenced to the state board of correction for not to exceed 4 five (5) years, provided that notwithstanding the provisions of section 5 19-2601, Idaho Code, should the court impose any sentence other than 6 incarceration in the state penitentiary, the defendant shall be sentenced 7 to the county jail for a mandatory minimum period of not less than thirty 8 (30) days, the first forty-eight (48) hours of which must be consecutive; 9 and further provided that notwithstanding the provisions of section 10 18-111, Idaho Code, a conviction under this section shall be deemed a fel- 11 ony; 12 (b) May be fined an amount not to exceed five thousand dollars ($5,000); 13 (c) Shall surrender his driver's license or permit to the court; and 14 (d) Shall have his driving privileges suspended by the court for a manda- 15 tory minimum period of one (1) year after release from imprisonment, and 16 may have his driving privileges suspended by the court for not to exceed 17 five (5) years after release from imprisonment, during which time he 18 shall have absolutely no driving privileges of any kind;and19 (e) Shall be ordered by the court to pay restitution in accordance with 20 chapter 53, title 19, Idaho Code ; and 21 (f) If the person was the registered owner of the vehicle being operated 22 at the time of the offense for which penalties are imposed under the pro- 23 visions of this subsection, the vehicle shall be seized and impounded and 24 forfeited, as provided in sections 49-1431 through 49-1433, Idaho Code 25 . 26 (2) Notwithstanding any other provision of law, any evidence of convic- 27 tion under this section shall be admissible in any civil action for damages 28 resulting from the occurrence. A conviction for the purposes of this section 29 means that the person has pled guilty or has been found guilty, notwithstand- 30 ing the form of the judgment(s) or withheld judgment(s).
STATEMENT OF PURPOSE
RS 07394
This legislation provides for seizure and impoundment or
rendering the vehicle inoperable for 30 days for driving
under the influence of alcohol, drugs or other intoxicating
substances upon arrest. This legislation further provides for
forfeiture of the vehicle upon conviction of aggravated
(Idaho code 18-8006) driving under the influence of alcohol,
drugs or other intoxicating substances.
FISCAL NOTE
No fiscal impact, except regular enforcement. All towing,
impounding and storage costs will be the responsibility of
the arrested or cited citizen.
Contact: Rep. W.O. "Bill" Taylor
332-1139
STATEMENT OF PURPOSE/FISCAL
NOTE
H 578