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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
]]]] 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
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