2004 Legislation
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SENATE BILL NO. 1370 – Vessel operatn/under inflnce alcohl

SENATE BILL NO. 1370

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S1370................................................by JUDICIARY AND RULES
VESSELS - OPERATION UNDER INFLUENCE OF ALCOHOL - Adds to and amends
existing law to provide for the evidentiary testing for alcohol, drugs or
other intoxicating substances of persons operating or in actual control of
vessels on waters of the state; to prohibit persons under the age of
twenty-one years with specified alcohol concentrations from operating or
being in actual physical control of vessels on the waters of the state; and
to provide that certain persons authorized to withdraw blood for the
purpose of determining the content of alcohol or other intoxicating
substances shall be immune from criminal liability.
                                                                        
02/16    Senate intro - 1st rdg - to printing
02/17    Rpt prt - to Jud

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-seventh Legislature                 Second Regular Session - 2004
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1370
                                                                        
                              BY JUDICIARY AND RULES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO THE OPERATION OF BOATS; AMENDING CHAPTER 70, TITLE 67, IDAHO CODE,
  3        BY THE ADDITION OF A NEW SECTION 67-7034A, IDAHO CODE, TO PROVIDE FOR  THE
  4        IMPLIED  CONSENT  OF  PERSONS OPERATING OR IN ACTUAL CONTROL OF VESSELS ON
  5        WATERS OF THE STATE RELATING TO EVIDENTIARY TESTING FOR ALCOHOL, DRUGS  OR
  6        OTHER INTOXICATING SUBSTANCES, TO PROVIDE CERTAIN CONDITIONS, RESTRICTIONS
  7        AND  RIGHTS RELATING TO SUCH TESTING, TO PROVIDE FOR CERTAIN IMMUNITIES OF
  8        INDIVIDUALS OR ENTITIES OBTAINING A BODY FLUID SAMPLE OR  PERFORMING  EVI-
  9        DENTIARY  TESTING,  TO  PROVIDE  FOR  THE  WITHDRAWAL OF BLOOD SAMPLES, TO
 10        DEFINE A TERM AND TO PROVIDE FOR SECOND EVIDENTIARY  TESTS;  AND  AMENDING
 11        SECTION  67-7034, IDAHO CODE, TO PROHIBIT PERSONS UNDER THE AGE OF TWENTY-
 12        ONE YEARS WITH SPECIFIED ALCOHOL CONCENTRATIONS FROM OPERATING OR BEING IN
 13        ACTUAL PHYSICAL CONTROL OF VESSELS ON THE WATERS OF THE STATE AND TO  PRO-
 14        VIDE  THAT CERTAIN PERSONS AUTHORIZED TO WITHDRAW BLOOD FOR THE PURPOSE OF
 15        DETERMINING THE CONTENT OF ALCOHOL OR OTHER INTOXICATING SUBSTANCES  SHALL
 16        BE IMMUNE FROM CRIMINAL LIABILITY.
                                                                        
 17    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 18        SECTION  1.  That  Chapter  70,  Title 67, Idaho Code, be, and the same is
 19    hereby amended by the addition thereto of a NEW SECTION, to be known and  des-
 20    ignated as Section 67-7034A, Idaho Code, and to read as follows:
                                                                        
 21        67-7034A.  TESTS  FOR  ALCOHOL  CONCENTRATION,  PRESENCE OF DRUGS OR OTHER
 22    INTOXICATING SUBSTANCES. (1) Any person who operates or is in  actual  control
 23    of  a vessel on the waters of the state of Idaho shall be deemed to have given
 24    his consent to evidentiary testing for concentration of alcohol as defined  in
 25    section  67-7034,  Idaho  Code,  and  to have given his consent to evidentiary
 26    testing for the presence of drugs or other intoxicating  substances,  provided
 27    that  such testing is administered at the request of a law enforcement officer
 28    having reasonable grounds to believe that person  has  been  operating  or  in
 29    actual control of a vessel in violation of the provisions  of section 67-7034,
 30    Idaho Code, or section 67-7035, Idaho Code.
 31        (2)  Such  person  shall  not  have  the right to consult with an attorney
 32    before submitting to such evidentiary testing.
 33        (3)  After submitting to evidentiary testing at the  request  of  the  law
 34    enforcement  officer, he may, when practicable, at his own expense, have addi-
 35    tional tests made by a person of his own choosing. The failure or inability to
 36    obtain an additional test or tests by a person shall not preclude  the  admis-
 37    sion  of  results  of evidentiary testing for alcohol concentration or for the
 38    presence of drugs or other intoxicating substances taken at the  direction  of
 39    the  law  enforcement officer unless the additional test was denied by the law
 40    enforcement officer.
 41        (4)  No hospital, hospital officer, agent, or  employee,  or  health  care
 42    professional  licensed  by  the state of Idaho, whether or not such person has
 43    privileges to practice in the  hospital  in  which  a  body  fluid  sample  is
                                                                        
                                           2
                                                                        
  1    obtained  or  an  evidentiary  test is made, shall incur any civil or criminal
  2    liability for any act arising out of administering  an  evidentiary  test  for
  3    alcohol  concentration or for the presence of drugs or other intoxicating sub-
  4    stances at the request or order of a law enforcement  officer  in  the  manner
  5    described  in  this  section,  provided  however, that nothing in this section
  6    shall relieve any such person or legal entity  from  civil  liability  arising
  7    from the failure to exercise the community standard of care.
  8        (a)  This  immunity  extends  to  any person who assists any individual to
  9        withdraw  a blood sample for evidentiary testing at the request  or  order
 10        of a law enforcement officer, which individual is authorized to withdraw a
 11        blood  sample under the provisions of section 18-8003, Idaho Code, regard-
 12        less of the location where the blood sample is actually withdrawn.
 13        (b)  A law enforcement officer is empowered to order an individual  autho-
 14        rized  in section 18-8003, Idaho Code, to withdraw a blood sample for evi-
 15        dentiary testing when the officer has probable cause to believe  that  the
 16        suspect has committed any of the following offenses:
 17             (i)   Aggravated  operation  of  a  vessel on the waters of the state
 18             while under the influence of alcohol, drugs or any other intoxicating
 19             substance as provided in section 67-7035, Idaho Code;
 20             (ii)  Manslaughter by vessel as provided in subsection (3) of section
 21             18-4006, Idaho Code;
 22             (iii) Any criminal homicide involving a vessel on the waters  of  the
 23             state while under the influence of alcohol, drugs or other intoxicat-
 24             ing substances.
 25        (c)  Nothing herein shall limit the discretion of the hospital administra-
 26        tion  to designate the qualified hospital employee responsible to withdraw
 27        the blood sample.
 28        (d)  The law enforcement agency that requests or orders withdrawal of  the
 29        blood sample shall pay the reasonable costs to withdraw such blood sample,
 30        perform  laboratory  analysis, preserve evidentiary test results, and tes-
 31        tify in judicial proceedings.
 32        (e)  The withdrawal of the blood sample may be delayed or terminated if:
 33             (i)   In the reasonable judgment of the hospital personnel withdrawal
 34             of the blood sample may result in serious bodily injury  to  hospital
 35             personnel or other patients; or
 36             (ii)  The  licensed  health  care  professional  treating the suspect
 37             believes the  withdrawal  of  the  blood  sample  is  contraindicated
 38             because of the medical condition of the suspect or other patients.
 39        (5)  For purposes of this section, "evidentiary testing" shall mean a pro-
 40    cedure or test or series of procedures or tests, including the additional test
 41    authorized  in  subsection (6) of this section, utilized to determine the con-
 42    centration of alcohol or the presence of  drugs  or  other  intoxicating  sub-
 43    stances in a person.
 44        (6)  A  person  who submits to a breath test for alcohol concentration, as
 45    defined in subsection  (5)  of  section  67-7034,  Idaho  Code,  may  also  be
 46    requested  to  submit  to  a second evidentiary test of blood or urine for the
 47    purpose of determining the presence of drugs or other intoxicating  substances
 48    if  the  law enforcement officer has reasonable cause to believe that a person
 49    was driving under the influence of any drug or intoxicating substance  or  the
 50    combined  influence  of  alcohol  and  any drug or intoxicating substance. The
 51    officer shall state in his or her report the facts upon which that  belief  is
 52    based.
                                                                        
 53        SECTION  2.  That  Section 67-7034, Idaho Code, be, and the same is hereby
 54    amended to read as follows:
                                                                        
                                           3
                                                                        
  1        67-7034.  PERSONS UNDER THE INFLUENCE  OF  ALCOHOL,  DRUGS  OR  ANY  OTHER
  2    INTOXICATING SUBSTANCES.
  3        (1)  (a) It is unlawful for any person who is under the influence of alco-
  4        hol,  drugs  or  any  other intoxicating substances, or who has an alcohol
  5        concentration of 0.08,  as defined in subsection (5) of this  section,  or
  6        more,  as  shown  by analysis of his blood, urine, breath, or other bodily
  7        substance, to operate or be in actual physical control of a vessel on  the
  8        waters of the state of Idaho.
  9        (b)  It  is unlawful for any person under twenty-one (21) years of age who
 10        has an alcohol concentration of at least 0.02  but  less  than  0.108,  as
 11        defined  in  subsection  (5)  of  this section, to operate or be in actual
 12        physical control of a vessel on the waters of the state.
 13        (2)  Any person having an alcohol concentration  of  less  than  0.08,  as
 14    defined  in subsection (5) of this section, as shown by analysis of his blood,
 15    urine, breath, or other bodily substance, by a test requested by an authorized
 16    law enforcement officer shall not be prosecuted for operating under the influ-
 17    ence of alcohol, except as provided in subsection (1)(a) and subsection (3) of
 18    this section. Any person who does not take a test to determine alcohol concen-
 19    tration or whose test result is determined by the court to  be  unreliable  or
 20    inadmissible  against  him, may be prosecuted for operating or being in actual
 21    physical control of a vessel while under the influence of alcohol,  drugs,  or
 22    any other intoxicating substances, or other competent evidence.
 23        (3)  If the results of the test requested by an authorized law enforcement
 24    officer show a person's alcohol concentration of less than 0.08, as defined in
 25    subsection  (5) of this section, such fact may be considered with other compe-
 26    tent evidence of drug use other than alcohol in determining the guilt or inno-
 27    cence of the defendant. This subsection  does  not  preclude  prosecution  for
 28    alcohol  intoxication  for persons described in subsection (1)(b) of this sec-
 29    tion.
 30        (4)  Persons authorized to withdraw blood for the purposes of  determining
 31    content  of  alcohol or other intoxicating substances are those persons autho-
 32    rized in section 18-8003, Idaho Code. Immunity from liability in any civil  or
 33    criminal  proceeding  for specified causes of action shall be extended to per-
 34    sonnel as provided in section 18-8002, Idaho Code.
 35        (5)  For purposes of this chapter, an evidentiary test for alcohol concen-
 36    tration is a determination of the percent by weight of alcohol  in  blood  and
 37    shall  be based upon a formula of grams of alcohol per one hundred (100) cubic
 38    centimeters of blood, per two hundred ten (210) liters  of  breath  or  sixty-
 39    seven  (67)  milliliters  of urine. Analysis of blood, urine or breath for the
 40    purpose of determining the blood alcohol concentration shall be performed by a
 41    laboratory operated by the Idaho state police or by a laboratory  approved  by
 42    the  Idaho  state  police  under  the provisions of approval and certification
 43    standards to be set by that department, or by any other method approved by the
 44    Idaho state police. Notwithstanding any other provision  of  law  or  rule  of
 45    court,  the results of any test for alcohol concentration and records relating
 46    to calibration, approval, certification or quality control performed by a lab-
 47    oratory operated or approved by the Idaho state police or by any other  method
 48    approved  by  the  Idaho state police shall be admissible in any proceeding in
 49    this state without the necessity of producing a witness to establish the reli-
 50    ability of the testing procedure for examination.
 51        (6)  It is unlawful for any person who is an habitual user  of,  or  under
 52    the influence of any narcotic drug, or who is under the influence of any other
 53    drug  or any combination of alcohol and any drug to a degree which renders him
 54    incapable of safely operating a vessel to operate or  be  in  actual  physical
 55    control  of  a  vessel  on the waters of the state of Idaho. The fact that any
                                                                        
                                           4
                                                                        
  1    person charged with a violation of the provisions of this subsection is or has
  2    been entitled to use such drug under the laws of this state shall not  consti-
  3    tute  a  defense  against  any charge of a violation of the provisions of this
  4    subsection.
  5        (7)  Notwithstanding any other provision of law, any evidence  of  convic-
  6    tion  under  this  section shall be admissible in any civil action for damages
  7    resulting from the occurrence. A conviction for the purposes of  this  section
  8    means  that the person has pled guilty or has been found guilty, notwithstand-
  9    ing the form of the judgment or withheld judgment.

Statement of Purpose / Fiscal Impact


                       STATEMENT OF PURPOSE

                             RS 13799

To provide that an extension of the consent standards as defined
in Idaho Code 67-7034 shall be adopted for the operation of a
vessel on waters of the state for alcohol concentrate.
Additionally the immunity from liability is expanded to criminal
proceedings for those individuals authorized to withdraw blood
for the purposes of determination of content of alcohol or other
intoxicating substances.




                           FISCAL IMPACT

No fiscal impact as required by joint rules.





Contact
Name:     Senator Bart M. Davis
Phone:    (208)     332-1305

STATEMENT OF PURPOSE/FISCAL NOTE                        S 1370