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S1331................................................by JUDICIARY AND RULES
DRIVING UNDER THE INFLUENCE - MARIJUANA - Amends existing law to clarify
that it is unlawful for any person who is under the influence of marijuana
to drive a motor vehicle.
01/29 Senate intro - 1st rdg - to printing
01/30 Rpt prt - to Jud
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE SENATE
SENATE BILL NO. 1331
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS; AMENDING SECTION
3 18-8004, IDAHO CODE, TO PROVIDE THAT IT IS UNLAWFUL FOR ANY PERSON WHO IS
4 UNDER THE INFLUENCE OF MARIJUANA OR ALCOHOL AND MARIJUANA TO DRIVE OR BE
5 IN ACTUAL PHYSICAL CONTROL OF A MOTOR VEHICLE.
6 Be It Enacted by the Legislature of the State of Idaho:
7 SECTION 1. That Section 18-8004, Idaho Code, be, and the same is hereby
8 amended to read as follows:
9 18-8004. PERSONS UNDER THE INFLUENCE OF ALCOHOL, DRUGS OR ANY OTHER
10 INTOXICATING SUBSTANCES.
11 (1) (a) It is unlawful for any person who is under the influence of
12 alcohol, drugs or any other intoxicating substances, or who has an alcohol
13 concentration of 0.08, as defined in subsection (4) of this section, or
14 more, as shown by analysis of his blood, urine, or breath, to drive or be
15 in actual physical control of a motor vehicle within this state, whether
16 upon a highway, street or bridge, or upon public or private property open
17 to the public.
18 (b) It is unlawful for any person who is under the influence of alcohol,
19 drugs or any other intoxicating substances, or who has an alcohol concen-
20 tration of 0.04 or higher but less than 0.08, as defined in subsection (4)
21 of this section, as shown by analysis of his blood, urine, or breath, to
22 drive or be in actual physical control of a commercial motor vehicle
23 within this state, whether upon a highway, street or bridge, or upon pub-
24 lic or private property open to the public.
25 (c) It is unlawful for any person who is under the influence of alcohol,
26 drugs or any other intoxicating substances, or who has an alcohol concen-
27 tration of 0.08 or higher, as defined in subsection (4) of this section,
28 as shown by analysis of his blood, urine, or breath, to drive or be in
29 actual physical control of a commercial motor vehicle within this state,
30 whether upon a highway, street or bridge, or upon public or private prop-
31 erty open to the public.
32 (d) It is unlawful for any person under the age of twenty-one (21) who
33 has an alcohol concentration of at least 0.02 but less than 0.08, as
34 defined in subsection (4) of this section, to drive or be in actual physi-
35 cal control of a motor vehicle within this state, whether upon a highway,
36 street or bridge, or upon public or private property open to the public.
37 Any person violating this subsection shall be subject to the penalties
38 provided in section 18-8004A, Idaho Code.
39 (2) Any person having an alcohol concentration of less than 0.08, as
40 defined in subsection (4) of this section, as shown by analysis of his blood,
41 urine, or breath, by a test requested by a police officer shall not be prose-
42 cuted for driving under the influence of alcohol, except as provided in sub-
43 section (3), subsection (1)(b) or subsection (1)(d) of this section. Any per-
2
1 son who does not take a test to determine alcohol concentration or whose test
2 result is determined by the court to be unreliable or inadmissible against
3 him, may be prosecuted for driving or being in actual physical control of a
4 motor vehicle while under the influence of alcohol, drugs, or any other
5 intoxicating substances, on other competent evidence.
6 (3) If the results of the test requested by a police officer show a
7 person's alcohol concentration of less than 0.08, as defined in subsection
8 (4) of this section, such fact may be considered with other competent evidence
9 of drug use other than alcohol in determining the guilt or innocence of the
10 defendant.
11 (4) For purposes of this chapter, an evidentiary test for alcohol concen-
12 tration shall be based upon a formula of grams of alcohol per one hundred
13 (100) cubic centimeters of blood, per two hundred ten (210) liters of breath
14 or sixty-seven (67) milliliters of urine. Analysis of blood, urine or breath
15 for the purpose of determining the alcohol concentration shall be performed by
16 a laboratory operated by the Idaho state police or by a laboratory approved by
17 the Idaho state police under the provisions of approval and certification
18 standards to be set by that department, or by any other method approved by the
19 Idaho state police. Notwithstanding any other provision of law or rule of
20 court, the results of any test for alcohol concentration and records relating
21 to calibration, approval, certification or quality control performed by a lab-
22 oratory operated or approved by the Idaho state police or by any other method
23 approved by the Idaho state police shall be admissible in any proceeding in
24 this state without the necessity of producing a witness to establish the reli-
25 ability of the testing procedure for examination.
26 (5) It is unlawful for any person who is an habitual user of, or under
27 the influence of any narcotic drug, or who is under the influence of marijuana
28 or any other drug or any combination of alcohol and marijuana or any drug to a
29 degree which impairs the driver's ability to safely operate a motor vehicle,
30 to drive or be in actual physical control of a motor vehicle within this
31 state, whether upon a highway, street or bridge, or upon public or private
32 property open to public use. The fact that any person charged with a violation
33 of the provisions of this subsection is or has been entitled to use such drug
34 under the laws of this state shall not constitute a defense against any charge
35 of a violation of the provisions of this subsection.
36 (6) "Actual physical control" as used in this section, shall be defined
37 as being in the driver's position of the motor vehicle with the motor running
38 or with the motor vehicle moving.
39 (7) Notwithstanding any other provision of law, any evidence of convic-
40 tion under this section shall be admissible in any civil action for damages
41 resulting from the occurrence. A conviction for the purposes of this section
42 means that the person has pled guilty or has been found guilty, notwithstand-
43 ing the form of the judgment(s) or withheld judgment(s).
STATEMENT OF PURPOSE
RS11709
This proposed legislation will make technical changes to Section
18-8004, Idaho Code, as it relates driving a vehicle under the
influence of intoxicating substances and declares an emergency.
In United States v. Patzer, the United States Court of Appeals for
the Ninth Circuit ruled that under subsection (5) of Section 18-8004
of the Idaho Code, anyone under the influence of marijuana can
lawfully operate a motor vehicle in the State of Idaho provided the
driver’s ability to operate the vehicle is not impaired. This
statutory interpretation has created an internal inconsistency with
Section 18-8004(1), which prohibits the operation of a motor vehicle
under the influence of drugs or intoxicating substances.
The legislation will clarify that under Idaho law, merely driving
or being in actual physical control of a motor vehicle under the
influence of drugs or intoxicating substances, including marijuana,
is a crime. The legislation eliminates former subsection (5) of
18-8004 which requires proof of impairment of the driver’s ability
to safely operate the vehicle, notwithstanding evidence that the
operator is under the influence of drugs or alcohol.
FISCAL IMPACT
No financial impact.
Contact
Name: Michael Bogert
Office of the Governor
Phone: (208) 334-2100
S 1331