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S1397................................................by JUDICIARY AND RULES
DRIVING UNDER THE INFLUENCE - Amends existing law relating to driving under
the influence of intoxicating substances to increase penalties; to increase
the period of time applicable to repeat refusals to evidentiary testing; to
revise information to be given to persons subject to evidentiary testing;
and to increase the period of time applicable to repeat violations.
02/14 Senate intro - 1st rdg - to printing
02/15 Rpt prt - to Jud
02/23 Rpt out - rec d/p - to 2nd rdg
02/24 2nd rdg - to 3rd rdg
02/27 3rd rdg - PASSED - 34-0-1
AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
Fulcher, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst,
Little, Lodge, Malepeai, Marley, McGee, McKenzie, Pearce, Richardson,
Schroeder, Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- Gannon
Floor Sponsors - Bunderson & McGee
Title apvd - to House
02/28 House intro - 1st rdg - to Jud
03/10 Rpt out - rec d/p - to 2nd rdg
03/13 2nd rdg - to 3rd rdg
03/22 3rd rdg - PASSED - 50-11-9
AYES -- Anderson, Andrus, Barraclough, Bastian, Bayer, Bell, Bilbao,
Black, Brackett, Bradford, Cannon, Chadderdon, Clark, Collins, Deal,
Denney, Edmunson, Ellsworth, Eskridge, Field(18), Field(23), Garrett,
Henbest, Henderson, Jaquet, Kemp, LeFavour, Loertscher, Martinez,
Mathews, Miller, Mitchell, Nielsen, Pasley-Stuart, Pence, Raybould,
Ring, Ringo, Rusche, Rydalch, Sali, Sayler, Shirley, Skippen,
Smith(30), Smylie, Snodgrass, Stevenson, Trail, Wills
NAYS -- Barrett, Bedke, Crow, Harwood, Lake, McKague, Roberts,
Schaefer, Shepherd(8), Smith(24), Mr. Speaker
Absent and excused -- Block, Boe, Bolz, Hart, McGeachin, Moyle,
Nonini, Shepherd(2), Wood
Floor Sponsor - Wills
Title apvd - to Senate
03/23 To enrol
03/24 Rpt enrol - Pres signed - Sp signed
03/27 To Governor
03/30 Governor signed
Session Law Chapter 261
Effective: 07/01/06
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature Second Regular Session - 2006
IN THE SENATE
SENATE BILL NO. 1397
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO DRIVING UNDER THE INFLUENCE OF INTOXICATING SUBSTANCES; AMENDING
3 SECTION 18-8002, IDAHO CODE, TO INCREASE PENALTIES AND TO INCREASE THE
4 PERIOD OF TIME APPLICABLE TO REPEAT REFUSALS TO EVIDENTIARY TESTING;
5 AMENDING SECTION 18-8002A, IDAHO CODE, TO REVISE INFORMATION TO BE GIVEN
6 TO PERSONS SUBJECT TO EVIDENTIARY TESTING; AMENDING SECTION 18-8005, IDAHO
7 CODE, TO PROVIDE CLARIFYING LANGUAGE, TO INCREASE THE PERIOD OF TIME
8 APPLICABLE TO REPEAT VIOLATIONS AND TO INCREASE PENALTIES; AND AMENDING
9 SECTION 18-8006, IDAHO CODE, TO INCREASE A PENALTY.
10 Be It Enacted by the Legislature of the State of Idaho:
11 SECTION 1. That Section 18-8002, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 18-8002. TESTS OF DRIVER FOR ALCOHOL CONCENTRATION, PRESENCE OF DRUGS OR
14 OTHER INTOXICATING SUBSTANCES -- SUSPENSION UPON REFUSAL OF TESTS. (1) Any
15 person who drives or is in actual physical control of a motor vehicle in this
16 state shall be deemed to have given his consent to evidentiary testing for
17 concentration of alcohol as defined in section 18-8004, Idaho Code, and to
18 have given his consent to evidentiary testing for the presence of drugs or
19 other intoxicating substances, provided that such testing is administered at
20 the request of a peace officer having reasonable grounds to believe that per-
21 son has been driving or in actual physical control of a motor vehicle in
22 violation of the provisions of section 18-8004, Idaho Code, or section
23 18-8006, Idaho Code.
24 (2) Such person shall not have the right to consult with an attorney
25 before submitting to such evidentiary testing.
26 (3) At the time evidentiary testing for concentration of alcohol, or for
27 the presence of drugs or other intoxicating substances is requested, the per-
28 son shall be informed that if he refuses to submit to or if he fails to com-
29 plete, evidentiary testing:
30 (a) His driver's license will be seized by the peace officer and a tempo-
31 rary permit will be issued; provided, however, that no peace officer shall
32 issue a temporary permit pursuant to this section to a driver whose dri-
33 ver's license or permit has already been and is suspended or revoked
34 because of previous violations, and in no instance shall a temporary per-
35 mit be issued to a driver of a commercial vehicle who refuses to submit to
36 or fails to complete an evidentiary test;
37 (b) He has the right to request a hearing within seven (7) days to show
38 cause why he refused to submit to, or complete evidentiary testing;
39 (c) If he does not request a hearing or does not prevail at the hearing,
40 his driver's license will be suspended absolutely for one hundred eighty
41 (180) days year if this is his first refusal and one two (12) years if
42 this is his second refusal within five ten (510) years; and
43 (d) After submitting to evidentiary testing he may, when practicable, at
2
1 his own expense, have additional tests made by a person of his own choos-
2 ing.
3 (4) If the motorist refuses to submit to or complete evidentiary testing
4 after the information has been given in accordance with subsection (3) above:
5 (a) His driver's license or permit shall be seized by the peace officer
6 and forwarded to the court and a temporary permit shall be issued by the
7 peace officer which allows him to operate a motor vehicle until the date
8 of his hearing, if a hearing is requested, but in no event for more than
9 thirty (30) days; provided, however, that no peace officer shall issue a
10 temporary permit pursuant to this section to a driver whose driver's
11 license or permit has already been and is suspended or revoked because of
12 previous violations and in no instance shall a temporary permit be issued
13 to a driver of a commercial vehicle who refuses to submit to or fails to
14 complete an evidentiary test;
15 (b) A written request may be made within seven (7) calendar days for a
16 hearing before the court; if requested, the hearing must be held within
17 thirty (30) days of the seizure unless this period is, for good cause
18 shown, extended by the court for one (1) additional thirty (30) day
19 period. The court, in granting such an extension, may, for good cause
20 shown, extend the defendant's temporary driving privileges for one (1)
21 additional thirty (30) day period. The hearing shall be limited to the
22 question of why the defendant did not submit to, or complete, evidentiary
23 testing, and the burden of proof shall be upon the defendant; the court
24 shall suspend all his driving privileges immediately for one hundred
25 eighty (180) days year for a first refusal and one two (12) years for a
26 second refusal within five ten (510) years unless it finds that the peace
27 officer did not have legal cause to stop and request him to take the test
28 or that the request violated his civil rights;
29 (c) If a hearing is not requested by written notice to the court con-
30 cerned within seven (7) calendar days, upon receipt of a sworn statement
31 by the peace officer of the circumstances of the refusal, the court shall
32 suspend his driving privileges for one hundred eighty (180) days year for
33 a first refusal and one two (12) years for a second refusal within five
34 ten (510) years, during which time he shall have absolutely no driving
35 privileges of any kind; and
36 (d) After submitting to evidentiary testing at the request of the peace
37 officer, he may, when practicable, at his own expense, have additional
38 tests made by a person of his own choosing. The failure or inability to
39 obtain an additional test or tests by a person shall not preclude the
40 admission of results of evidentiary testing for alcohol concentration or
41 for the presence of drugs or other intoxicating substances taken at the
42 direction of the peace officer unless the additional test was denied by
43 the peace officer.
44 (5) Any suspension of driving privileges under this section or section
45 18-8002A, Idaho Code, shall be a civil penalty separate and apart from any
46 other suspension imposed for a violation of other Idaho motor vehicle codes or
47 for a conviction of an offense pursuant to this chapter, and may be appealed
48 to the district court.
49 (6) No hospital, hospital officer, agent, or employee, or health care
50 professional licensed by the state of Idaho, whether or not such person has
51 privileges to practice in the hospital in which a body fluid sample is
52 obtained or an evidentiary test is made, shall incur any civil or criminal
53 liability for any act arising out of administering an evidentiary test for
54 alcohol concentration or for the presence of drugs or other intoxicating sub-
55 stances at the request or order of a peace officer in the manner described in
3
1 this section and section 18-8002A, Idaho Code: provided, that nothing in this
2 section shall relieve any such person or legal entity from civil liability
3 arising from the failure to exercise the community standard of care.
4 (a) This immunity extends to any person who assists any individual to
5 withdraw a blood sample for evidentiary testing at the request or order of
6 a peace officer, which individual is authorized to withdraw a blood sample
7 under the provisions of section 18-8003, Idaho Code, regardless of the
8 location where the blood sample is actually withdrawn.
9 (b) A peace officer is empowered to order an individual authorized in
10 section 18-8003, Idaho Code, to withdraw a blood sample for evidentiary
11 testing when the peace officer has probable cause to believe that the sus-
12 pect has committed any of the following offenses:
13 (i) Aggravated driving under the influence of alcohol, drugs or
14 other intoxicating substance as provided in section 18-8006, Idaho
15 Code;
16 (ii) Vehicular manslaughter as provided in subsections (3)(a), (b)
17 and (c) of section 18-4006, Idaho Code;
18 (iii) Aggravated operating of a vessel on the waters of the state
19 while under the influence of alcohol, drugs or other intoxicating
20 substances as provided in section 67-7035, Idaho Code; or
21 (iv) Any criminal homicide involving a vessel on the waters of the
22 state while under the influence of alcohol, drugs or other intoxicat-
23 ing substances.
24 (c) Nothing herein shall limit the discretion of the hospital administra-
25 tion to designate the qualified hospital employee responsible to withdraw
26 the blood sample.
27 (d) The law enforcement agency that requests or orders withdrawal of the
28 blood sample shall pay the reasonable costs to withdraw such blood sample,
29 perform laboratory analysis, preserve evidentiary test results, and tes-
30 tify in judicial proceedings.
31 (e) The withdrawal of the blood sample may be delayed or terminated if:
32 (i) In the reasonable judgment of the hospital personnel withdrawal
33 of the blood sample may result in serious bodily injury to hospital
34 personnel or other patients; or
35 (ii) The licensed health care professional treating the suspect
36 believes the withdrawal of the blood sample is contraindicated
37 because of the medical condition of the suspect or other patients.
38 (7) "Actual physical control" as used in this section and section
39 18-8002A, Idaho Code, shall be defined as being in the driver's position of
40 the motor vehicle with the motor running or with the motor vehicle moving.
41 (8) Any written notice required by this section shall be effective upon
42 mailing.
43 (9) For the purposes of this section and section 18-8002A, Idaho Code,
44 "evidentiary testing" shall mean a procedure or test or series of procedures
45 or tests, including the additional test authorized in subsection (10) of this
46 section, utilized to determine the concentration of alcohol or the presence of
47 drugs or other intoxicating substances in a person.
48 (10) A person who submits to a breath test for alcohol concentration, as
49 defined in subsection (4) of section 18-8004, Idaho Code, may also be
50 requested to submit to a second evidentiary test of blood or urine for the
51 purpose of determining the presence of drugs or other intoxicating substances
52 if the peace officer has reasonable cause to believe that a person was driving
53 under the influence of any drug or intoxicating substance or the combined
54 influence of alcohol and any drug or intoxicating substance. The peace officer
55 shall state in his or her report the facts upon which that belief is based.
4
1 SECTION 2. That Section 18-8002A, Idaho Code, be, and the same is hereby
2 amended to read as follows:
3 18-8002A. TESTS OF DRIVER FOR ALCOHOL CONCENTRATION, PRESENCE OF DRUGS
4 OR OTHER INTOXICATING SUBSTANCES -- SUSPENSION UPON FAILURE OF TESTS. (1) Def-
5 initions. As used in this section:
6 (a) "Actual physical control" means being in the driver's position of a
7 motor vehicle with the motor running or with the vehicle moving.
8 (b) "Administrative hearing" means a hearing conducted by a hearing offi-
9 cer to determine whether a suspension imposed by the provisions of this
10 section should be vacated or sustained.
11 (c) "Department" means the Idaho transportation department and, as the
12 context requires, shall be construed to include any agent of the depart-
13 ment designated by rule as hereinafter provided.
14 (d) "Director" means the director of the Idaho transportation department.
15 (e) "Evidentiary testing" means a procedure or test or series of proce-
16 dures or tests utilized to determine the concentration of alcohol or the
17 presence of drugs or other intoxicating substances in a person, including
18 additional testing authorized by subsection (6) of this section. An evi-
19 dentiary test for alcohol concentration shall be based on a formula of
20 grams of alcohol per one hundred (100) cubic centimeters of blood, per two
21 hundred ten (210) liters of breath, or sixty-seven (67) milliliters of
22 urine. Analysis of blood, breath or urine for the purpose of determining
23 alcohol concentration shall be performed by a laboratory operated by the
24 Idaho state police or by a laboratory approved by the Idaho state police
25 under the provisions of approval and certification standards to be set by
26 the Idaho state police, or by any other method approved by the Idaho state
27 police. Notwithstanding any other provision of law or rule of court, the
28 results of any test for alcohol concentration and records relating to cal-
29 ibration, approval, certification or quality control performed by a labo-
30 ratory operated and approved by the Idaho state police or by any other
31 method approved by the Idaho state police shall be admissible in any pro-
32 ceeding in this state without the necessity of producing a witness to
33 establish the reliability of the testing procedure for examination.
34 (f) "Hearing officer" means a person designated by the department to con-
35 duct administrative hearings. The hearing officer shall have authority to
36 administer oaths, examine witnesses and take testimony, receive relevant
37 evidence, issue subpoenas, regulate the course and conduct of the hearing
38 and make a final ruling on the issues before him.
39 (g) "Hearing request" means a request for an administrative hearing on
40 the suspension imposed by the provisions of this section.
41 (2) Information to be given. At the time of evidentiary testing for con-
42 centration of alcohol, or for the presence of drugs or other intoxicating sub-
43 stances is requested, the person shall be informed that if the person refuses
44 to submit to or fails to complete evidentiary testing, or if the person sub-
45 mits to and completes evidentiary testing and the test results indicate an
46 alcohol concentration or the presence of drugs or other intoxicating sub-
47 stances in violation of section 18-8004, 18-8004C or 18-8006, Idaho Code, the
48 person shall be informed substantially as follows (but need not be informed
49 verbatim):
50 If you refuse to submit to or if you fail to complete and pass evidentiary
51 testing for alcohol or other intoxicating substances:
52 (a) The peace officer will seize your driver's license and issue a notice
53 of suspension and a temporary driving permit to you, but no peace officer
54 will issue you a temporary driving permit if your driver's license or
5
1 permit has already been and is suspended or revoked. No peace officer
2 shall issue a temporary driving permit to a driver of a commercial vehicle
3 who refuses to submit to or fails to complete and pass an evidentiary
4 test;
5 (b) You have the right to request a hearing within seven (7) days of the
6 notice of suspension of your driver's license to show cause why you
7 refused to submit to or to complete and pass evidentiary testing and why
8 your driver's license should not be suspended;
9 (c) If you refused or failed to complete evidentiary testing and do not
10 request a hearing before the court or do not prevail at the hearing, your
11 driver's license will be suspended. The suspension will be for one hundred
12 eighty (180) days year if this is your first refusal. The suspension will
13 be for one two (12) years if this is your second refusal within five ten
14 (510) years. You will not be able to obtain a temporary restricted license
15 during that period; and
16 (d) If you complete evidentiary testing and fail the testing and do not
17 request a hearing before the department or do not prevail at the hearing,
18 your driver's license will be suspended. This suspension will be for
19 ninety (90) days if this is your first failure of evidentiary testing, but
20 you may request restricted noncommercial vehicle driving privileges after
21 the first thirty (30) days. The suspension will be for one (1) year if
22 this is your second failure of evidentiary testing within five (5) years.
23 You will not be able to obtain a temporary restricted license during that
24 period;
25 (e) After submitting to evidentiary testing you may, when practicable, at
26 your own expense, have additional tests made by a person of your own
27 choosing.
28 (3) Rulemaking authority of the Idaho state police. The Idaho state
29 police may, pursuant to chapter 52, title 67, Idaho Code, prescribe by rule:
30 (a) What testing is required to complete evidentiary testing under this
31 section; and
32 (b) What calibration or checking of testing equipment must be performed
33 to comply with the department's requirements. Any rules of the Idaho state
34 police shall be in accordance with the following: a test for alcohol con-
35 centration in breath as defined in section 18-8004, Idaho Code, and sub-
36 section (1)(e) of this section will be valid for the purposes of this sec-
37 tion if the breath alcohol testing instrument was approved for testing by
38 the Idaho state police in accordance with section 18-8004, Idaho Code, at
39 any time within ninety (90) days before the evidentiary testing. A test
40 for alcohol concentration in blood or urine as defined in section 18-8004,
41 Idaho Code, that is reported by the Idaho state police or by any labora-
42 tory approved by the Idaho state police to perform this test will be valid
43 for the purposes of this section.
44 (4) Suspension.
45 (a) Upon receipt of the sworn statement of a peace officer that there
46 existed legal cause to believe a person had been driving or was in actual
47 physical control of a motor vehicle while under the influence of alcohol,
48 drugs or other intoxicating substances and that the person submitted to a
49 test and the test results indicated an alcohol concentration or the pres-
50 ence of drugs or other intoxicating substances in violation of section
51 18-8004, 18-8004C or 18-8006, Idaho Code, the department shall suspend the
52 person's driver's license, driver's permit, driving privileges or nonresi-
53 dent driving privileges:
54 (i) For a period of ninety (90) days for a first failure of eviden-
55 tiary testing under the provisions of this section. The first thirty
6
1 (30) days of the suspension shall be absolute and the person shall
2 have absolutely no driving privileges of any kind. Restricted non-
3 commercial vehicle driving privileges applicable during the remaining
4 sixty (60) days of the suspension may be requested as provided in
5 subsection (9) of this section.
6 (ii) For a period of one (1) year for a second and any subsequent
7 failure of evidentiary testing under the provisions of this section
8 within the immediately preceding five (5) years. No driving privi-
9 leges of any kind shall be granted during the suspension imposed pur-
10 suant to this subsection.
11 The person may request an administrative hearing on the suspension as pro-
12 vided in subsection (7) of this section. Any right to contest the suspen-
13 sion shall be waived if a hearing is not requested as therein provided.
14 (b) The suspension shall become effective thirty (30) days after service
15 upon the person of the notice of suspension. The notice shall be in a form
16 provided by the department and shall state:
17 (i) The reason and statutory grounds for the suspension;
18 (ii) The effective date of the suspension;
19 (iii) The suspension periods to which the person may be subject as
20 provided in subsection (4)(a) of this section;
21 (iv) The procedures for obtaining restricted noncommercial vehicle
22 driving privileges;
23 (v) The rights of the person to request an administrative hearing
24 on the suspension and that if an administrative hearing is not
25 requested within seven (7) days of service of the notice of suspen-
26 sion the right to contest the suspension shall be waived;
27 (vi) The procedures for obtaining an administrative hearing on the
28 suspension;
29 (vii) The right to judicial review of the hearing officer's decision
30 on the suspension and the procedures for seeking such review.
31 (5) Service of suspension by peace officer or the department. If the
32 driver submits to evidentiary testing after the information in subsection (2)
33 of this section has been provided and the results of the test indicate an
34 alcohol concentration or the presence of drugs or other intoxicating sub-
35 stances in violation of the provisions of section 18-8004, 18-8004C or
36 18-8006, Idaho Code:
37 (a) The peace officer shall take possession of the person's driver's
38 license, shall issue a temporary permit which shall be valid for a period
39 not to exceed thirty (30) days from the date of issuance, and, acting on
40 behalf of the department, will serve the person with a notice of suspen-
41 sion in the form and containing the information required under subsection
42 (4) of this section. The department may serve the person with a notice of
43 suspension if the peace officer failed to issue the notice of suspension
44 or failed to include the date of service as provided in subsection (4)(b)
45 of this section.
46 (b) Within five (5) business days following service of a notice of sus-
47 pension the peace officer shall forward to the department a copy of the
48 completed notice of suspension form upon which the date of service upon
49 the driver shall be clearly indicated, a copy of any completed temporary
50 permit form along with any confiscated driver's license, a certified copy
51 or duplicate original of the results of all tests for alcohol concentra-
52 tion, as shown by analysis of breath administered at the direction of the
53 peace officer, and a sworn statement of the officer, which may incorporate
54 any arrest or incident reports relevant to the arrest and evidentiary
55 testing setting forth:
7
1 (i) The identity of the person;
2 (ii) Stating the officer's legal cause to stop the person;
3 (iii) Stating the officer's legal cause to believe that the person
4 had been driving or was in actual physical control of a motor vehicle
5 while under the influence of alcohol, drugs or other intoxicating
6 substances in violation of the provisions of section 18-8004,
7 18-8004C or 18-8006, Idaho Code;
8 (iv) That the person was advised of the consequences of taking and
9 failing the evidentiary test as provided in subsection (2) of this
10 section;
11 (v) That the person was lawfully arrested;
12 (vi) That the person was tested for alcohol concentration, drugs or
13 other intoxicating substances as provided in this chapter, and that
14 the results of the test indicated an alcohol concentration or the
15 presence of drugs or other intoxicating substances in violation of
16 the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code.
17 If an evidentiary test of blood or urine was administered rather than a
18 breath test, the peace officer or the department shall serve the notice of
19 suspension once the results are received. The sworn statement required in
20 this subsection shall be made on forms in accordance with rules adopted by
21 the department.
22 (c) The department may serve the person with a notice of suspension if
23 the peace officer failed to issue the notice of suspension or failed to
24 include the date of service as provided in subsection (4)(b) of this sec-
25 tion.
26 (6) Additional tests. After submitting to evidentiary testing at the
27 request of the peace officer, the person may, when practicable, at his own
28 expense, have additional tests for alcohol concentration or for the presence
29 of drugs or other intoxicating substances made by a person of his own choos-
30 ing. The person's failure or inability to obtain additional tests shall not
31 preclude admission of the results of evidentiary tests administered at the
32 direction of the peace officer unless additional testing was denied by the
33 peace officer.
34 (7) Administrative hearing on suspension. A person who has been served
35 with a notice of suspension after submitting to an evidentiary test may
36 request an administrative hearing on the suspension before a hearing officer
37 designated by the department. The request for hearing shall be in writing and
38 must be received by the department within seven (7) calendar days of the date
39 of service upon the person of the notice of suspension, and shall include what
40 issue or issues shall be raised at the hearing. The date on which the hearing
41 request was received shall be noted on the face of the request.
42 If a hearing is requested, the hearing shall be held within twenty (20)
43 days of the date the hearing request was received by the department unless
44 this period is, for good cause shown, extended by the hearing officer for one
45 ten (10) day period. Such extension shall not operate as a stay of the suspen-
46 sion and any temporary permit shall expire thirty (30) days after service of
47 the notice of suspension, notwithstanding an extension of the hearing date
48 beyond such thirty (30) day period. Written notice of the date and time of the
49 hearing shall be sent to the party requesting the hearing at least seven (7)
50 days prior to the scheduled hearing date. The department may conduct all hear-
51 ings by telephone if each participant in the hearing has an opportunity to
52 participate in the entire proceeding while it is taking place.
53 The hearing shall be recorded. The sworn statement of the arresting offi-
54 cer, and the copy of the notice of suspension and any temporary permit issued
55 by the officer shall be admissible at the hearing without further evidentiary
8
1 foundation. The results of any tests for alcohol concentration or the presence
2 of drugs or other intoxicating substances by analysis of blood, urine or
3 breath administered at the direction of the peace officer and the records
4 relating to calibration, certification, approval or quality control pertaining
5 to equipment utilized to perform the tests shall be admissible as provided in
6 section 18-8004(4), Idaho Code. The arresting officer shall not be required to
7 participate unless directed to do so by a subpoena issued by the hearing offi-
8 cer.
9 The burden of proof shall be on the person requesting the hearing. The
10 hearing officer shall not vacate the suspension unless he finds, by a prepon-
11 derance of the evidence, that:
12 (a) The peace officer did not have legal cause to stop the person; or
13 (b) The officer did not have legal cause to believe the person had been
14 driving or was in actual physical control of a vehicle while under the
15 influence of alcohol, drugs or other intoxicating substances in violation
16 of the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code; or
17 (c) The test results did not show an alcohol concentration or the pres-
18 ence of drugs or other intoxicating substances in violation of section
19 18-8004, 18-8004C or 18-8006, Idaho Code; or
20 (d) The tests for alcohol concentration, drugs or other intoxicating sub-
21 stances administered at the direction of the peace officer were not con-
22 ducted in accordance with the requirements of section 18-8004(4), Idaho
23 Code, or the testing equipment was not functioning properly when the test
24 was administered; or
25 (e) The person was not informed of the consequences of submitting to evi-
26 dentiary testing as required in subsection (2) of this section.
27 If the hearing officer finds that the person has not met his burden of proof,
28 he shall sustain the suspension. The hearing officer shall make findings of
29 fact and conclusions of law on each issue and shall enter an order vacating or
30 sustaining the suspension. If the suspension is vacated, the person's driver's
31 license, unless unavailable by reason of an existing suspension, revocation,
32 cancellation, disqualification or denial shall be returned to him. The find-
33 ings of fact, conclusions of law and order entered by the hearing officer
34 shall be considered a final order pursuant to the provisions of chapter 52,
35 title 67, Idaho Code, except that motions for reconsideration of such order
36 shall be allowed and new evidence can be submitted.
37 The facts as found by the hearing officer shall be independent of the
38 determination of the same or similar facts in the adjudication of any criminal
39 charges arising out of the same occurrence. The disposition of those criminal
40 charges shall not affect the suspension required to be imposed under the pro-
41 visions of this section. If a license is suspended under this section and the
42 person is also convicted on criminal charges arising out of the same occur-
43 rence for a violation of the provisions of section 18-8004, 18-8004C or
44 18-8006, Idaho Code, both the suspension under this section and the suspension
45 imposed pursuant to the provisions of section 18-8005 or 18-8006, Idaho Code,
46 shall be imposed, but the periods of suspension shall run concurrently, with
47 the total period of suspension not to exceed the longer of the applicable sus-
48 pension periods, unless the court ordering the suspension in the criminal case
49 orders to the contrary.
50 (8) Judicial review. A party aggrieved by the decision of the hearing
51 officer may seek judicial review of the decision in the manner provided for
52 judicial review of final agency action provided in chapter 52, title 67, Idaho
53 Code.
54 (9) Restricted noncommercial vehicle driving privileges. A person served
55 with a notice of suspension for ninety (90) days pursuant to this section may
9
1 apply to the department for restricted noncommercial vehicle driving privi-
2 leges, to become effective after the thirty (30) day absolute suspension has
3 been completed. The request may be made at any time after service of the
4 notice of suspension. Restricted noncommercial vehicle driving privileges will
5 be issued for the person to travel to and from work and for work purposes not
6 involving operation of a commercial vehicle, to attend an alternative high
7 school, work on a GED, for postsecondary education, or to meet the medical
8 needs of the person or his family if the person is eligible for restricted
9 noncommercial vehicle driving privileges. Any person whose driving privileges
10 are suspended under the provisions of this chapter may be granted privileges
11 to drive a noncommercial vehicle but shall not be granted privileges to oper-
12 ate a commercial motor vehicle.
13 (10) Rules. The department may adopt rules under the provisions of chapter
14 52, title 67, Idaho Code, deemed necessary to implement the provisions of this
15 section.
16 SECTION 3. That Section 18-8005, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 18-8005. PENALTIES. (1) Any person who pleads guilty to or is found
19 guilty of a violation of the provisions of section 18-8004(1)(a) or (5), Idaho
20 Code, for the first time is guilty of a misdemeanor; and, except as provided
21 in section 18-8004C, Idaho Code:
22 (a) May be sentenced to jail for a term not to exceed six (6) months;
23 (b) May be fined an amount not to exceed one thousand dollars ($1,000);
24 (c) Shall be advised by the court in writing at the time of sentencing of
25 the penalties that will be imposed for subsequent violations of the provi-
26 sions of section 18-8004, Idaho Code, which advice shall be signed by the
27 defendant, and a copy retained by the court and another copy retained by
28 the prosecuting attorney; and
29 (d) Shall have his driving privileges suspended by the court for a period
30 of thirty (30) days which shall not be reduced and during which thirty
31 (30) day period absolutely no driving privileges of any kind may be
32 granted. After the thirty (30) day period of absolute suspension of driv-
33 ing privileges has passed, the defendant shall have driving privileges
34 suspended by the court for an additional period of at least sixty (60)
35 days, not to exceed one hundred fifty (150) days during which the defend-
36 ant may request restricted driving privileges which the court may allow,
37 if the defendant shows by a preponderance of the evidence that driving
38 privileges are necessary for his employment or for family health needs.
39 (2) Any person who pleads guilty to or is found guilty of a violation of
40 the provisions of section 18-8004(1)(b), Idaho Code, for the first time is
41 guilty of a misdemeanor and subject to:
42 (a) The provisions of section 18-8005(1)(a), (b) and (c), Idaho Code; and
43 (b) The provisions of section 49-335, Idaho Code.
44 (3) Any person who pleads guilty to or is found guilty of a violation of
45 the provisions of section 18-8004(1)(c), Idaho Code, for the first time, is
46 guilty of a misdemeanor and is subject to:
47 (a) The provisions of section 18-8005(1)(a), (b) and (c), Idaho Code; and
48 (b) The provisions of section 49-335, Idaho Code.
49 (4) Any person who pleads guilty to or is found guilty of a violation of
50 the provisions of section 18-8004(1)(a), (b) or (c), Idaho Code, who previ-
51 ously has been found guilty of or has pled guilty to a violation of the provi-
52 sions of section 18-8004(1)(a), (b) or (c), Idaho Code, or any substantially
53 conforming foreign criminal violation within five ten (510) years, notwith-
10
1 standing the form of the judgment(s) or withheld judgment(s), and except as
2 provided in section 18-8004C, Idaho Code, is guilty of a misdemeanor; and,
3 except as provided 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 ten (510) 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 ten (510) 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 ten (510) years; provided that notwithstanding the
41 provisions of section 19-2601, Idaho Code, should the court impose any
42 sentence other than incarceration in the state penitentiary, the defendant
43 shall be sentenced to the county jail for a mandatory minimum period of
44 not less than thirty (30) days, the first forty-eight (48) hours of which
45 must be 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
11
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 fifteen (105) years pleads guilty or is
19 found guilty of a further violation of the provisions of section 18-8004,
20 Idaho Code, shall be guilty of a felony and shall be sentenced pursuant to
21 subsection (5) of 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 nonuse 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 an alcohol evalua-
52 tion indicates the need for alcohol treatment, the evaluation shall contain a
53 recommendation by the evaluator as to the most appropriate treatment program,
54 together with the estimated cost thereof, and recommendations for other suit-
55 able alternative treatment programs, together with the estimated costs
12
1 thereof. The person shall request that a copy of the completed evaluation be
2 forwarded to the court. The court shall take the evaluation into consideration
3 in determining an appropriate sentence. If a copy of the completed evaluation
4 has not been provided to the court, the court may proceed to sentence the
5 defendant; however, in such event, it shall be presumed that alcohol treatment
6 is required unless the defendant makes a showing by a preponderance of evi-
7 dence that treatment is not required. If the defendant has not made a good
8 faith effort to provide the completed copy of the evaluation to the court, the
9 court may consider the failure of the defendant to provide the report as an
10 aggravating circumstance in determining an appropriate sentence. If treatment
11 is ordered, in no event shall the person or facility doing the evaluation be
12 the person or facility that provides the treatment unless this requirement is
13 waived by the sentencing court, with the exception of federally recognized
14 Indian tribes or federal military installations, where diagnosis and treatment
15 are appropriate and available. Nothing herein contained shall preclude the use
16 of funds authorized pursuant to the provisions of chapter 3, title 39, Idaho
17 Code, for court-ordered alcohol treatment for indigent defendants.
18 (10) At the time of sentencing, the court shall be provided with the fol-
19 lowing information:
20 (a) The results, if administered, of any evidentiary test for alcohol
21 and/or drugs;
22 (b) A computer or teletype or other acceptable copy of the person's driv-
23 ing record;
24 (c) Information as to whether the defendant has pled guilty to or been
25 found guilty of violation of the provisions of section 18-8004, 18-8004C
26 or 18-8006, Idaho Code, or a similar offense within the past five (5)
27 years, notwithstanding the form of the judgment(s) or withheld
28 judgment(s); and
29 (d) The alcohol evaluation required in subsection (9) of this section, if
30 any.
31 (11) A minor may be prosecuted for a violation of the provisions of sec-
32 tion 18-8004 or 18-8004C, Idaho Code, under chapter 5, title 20, Idaho Code.
33 In addition to any other penalty, if a minor pleads guilty to or is found
34 guilty of a violation of the provisions of section 18-8004(1)(a), (b) or (c)
35 or 18-8004C, Idaho Code, he shall have his driving privileges suspended or
36 denied for an additional one (1) year following the end of any period of sus-
37 pension or revocation existing at the time of the violation, or until he
38 reaches the age of twenty-one (21) years, whichever period is greater. During
39 the period of additional suspension or denial, absolutely no driving privi-
40 leges shall be allowed.
41 (12) In the event that the alcohol evaluation required in subsection (9)
42 of this section recommends alcohol treatment, the court shall order the person
43 to complete a treatment program in addition to any other sentence which may be
44 imposed, unless the court determines that alcohol treatment would be inappro-
45 priate or undesirable, in which event, the court shall enter findings articu-
46 lating the reasons for such determination on the record. The court shall order
47 the defendant to complete the preferred treatment program set forth in the
48 evaluation, or a comparable alternative, unless it appears that the defendant
49 cannot reasonably obtain adequate financial resources for such treatment. In
50 that event, the court may order the defendant to complete a less costly alter-
51 native set forth in the evaluation, or a comparable program. Such treatment
52 shall, to the greatest extent possible, be at the expense of the defendant. In
53 the event that funding is provided for or on behalf of the defendant by an
54 entity of state government, restitution shall be ordered to such governmental
55 entity in accordance with the restitution procedure for crime victims, as
13
1 specified under chapter 53, title 19, Idaho Code. Nothing contained herein
2 shall be construed as requiring a court to order that a governmental entity
3 shall provide alcohol treatment at government expense unless otherwise
4 required by law.
5 (13) Any person who is disqualified, or whose driving privileges have been
6 suspended, revoked or canceled under the provisions of this chapter, shall not
7 be granted restricted driving privileges to operate a commercial motor vehi-
8 cle.
9 SECTION 4. That Section 18-8006, Idaho Code, be, and the same is hereby
10 amended to read as follows:
11 18-8006. AGGRAVATED DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL, DRUGS
12 OR ANY OTHER INTOXICATING SUBSTANCES. (1) Any person causing great bodily
13 harm, permanent disability or permanent disfigurement to any person other than
14 himself in committing a violation of the provisions of section 18-8004(1)(a)
15 or (1)(c), Idaho Code, is guilty of a felony, and upon conviction:
16 (a) Shall be sentenced to the state board of correction for not to exceed
17 ten fifteen (105) years, provided that notwithstanding the provisions of
18 section 19-2601, Idaho Code, should the court impose any sentence other
19 than incarceration in the state penitentiary, the defendant shall be sen-
20 tenced to the county jail for a mandatory minimum period of not less than
21 thirty (30) days, the first forty-eight (48) hours of which must be con-
22 secutive; and further provided that notwithstanding the provisions of sec-
23 tion 18-111, Idaho Code, a conviction under this section shall be deemed a
24 felony;
25 (b) May be fined an amount not to exceed five thousand dollars ($5,000);
26 (c) Shall surrender his driver's license or permit to the court; and
27 (d) Shall have his driving privileges suspended by the court for a manda-
28 tory minimum period of one (1) year after release from imprisonment, and
29 may have his driving privileges suspended by the court for not to exceed
30 five (5) years after release from imprisonment, during which time he shall
31 have absolutely no driving privileges of any kind; and
32 (e) Shall be ordered by the court to pay restitution in accordance with
33 chapter 53, title 19, Idaho Code.
34 (2) Notwithstanding any other provision of law, any evidence of convic-
35 tion under this section shall be admissible in any civil action for damages
36 resulting from the occurrence. A conviction for the purposes of this section
37 means that the person has pled guilty or has been found guilty, notwithstand-
38 ing the form of the judgment(s) or withheld judgment(s).
STATEMENT OF PURPOSE
RS 15920
This legislation is designed to reduce the number of motor
vehicle drivers choosing to drive while under the influence of
drugs and alcohol; thereby making our roads safer for law-abiding
citizens. Specifically this legislation accomplishes two things:
1. Drivers pulled-over by law enforcement officials for
suspected DUI who refuse to provide specimens for
evidentiary testing: The legislation increases the potential
administrative license suspension from 180 days to one year
for the first refusal and from one year to two years for a
second or more refusals within ten (increased from five)
years.
2. For multiple DUI offenders: The legislation increases the
maximum sentence a judge may impose upon conviction for a
felony DUI from five years, not to exceed to ten years and
for aggravated DUI from ten years to fifteen years. In
addition, this legislation increases the time period for
charging a subsequent enhanced DUI from five years to 10
years and a felony from 10 years to fifteen years.
FISCAL NOTE
The fiscal impact cannot be determined as it depends on the
future number of violators and the exact ruling of the courts in
each case. It is likely that there will be an increase in the
number of DUI violators that will be impacted by this
legislation. Accordingly, this legislation will likely have the
fiscal effect of increasing the costs of local and state law
enforcement, prosecution, jail, courts and prisons. However, it
will likely have a positive fiscal impact because it should
decrease citizen and taxpayer costs associated with the injury
and death of our law-abiding citizens as they travel on our
roads.
Contact Persons:
Representative Rich Wills (208-332-1218
Senator Hal Bunderson, (208) 332-1320
Heather Riley, Idaho Prosecuting Attorneys (208) 287-7700
Mike Kane, Idaho Sheriffs Association (208) 342-4545
Aleshea Lind, MADD (208) 853-3700
STATEMENT OF PURPOSE/FISCAL NOTES S 1397