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H0254......................................................by STATE AFFAIRS
DRIVING UNDER THE INFLUENCE - DRUG COURT - Amends existing law relating to
driving under the influence to provide that certain offenders enrolled in
drug court shall be eligible for restricted driving privileges under
certain conditions; to revise information required to be given to
offenders; to revise penalties for excessive alcohol concentration; and to
revise penalties related to driving under the influence of alcohol, drugs
or other intoxicating substances.
03/01 House intro - 1st rdg - to printing
03/02 Rpt prt - to Jud
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature First Regular Session - 2007
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 254
BY STATE AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO DRIVING UNDER THE INFLUENCE; AMENDING SECTION 18-8002, IDAHO CODE,
3 TO PROVIDE THAT CERTAIN OFFENDERS ENROLLED IN DRUG COURT SHALL BE ELIGIBLE
4 FOR RESTRICTED DRIVING PRIVILEGES UNDER CERTAIN CONDITIONS AND TO MAKE
5 TECHNICAL CORRECTIONS; AMENDING SECTION 18-8002A, IDAHO CODE, TO REVISE
6 INFORMATION REQUIRED TO BE GIVEN TO OFFENDERS, TO PROVIDE THAT CERTAIN
7 OFFENDERS ENROLLED IN DRUG COURT SHALL BE ELIGIBLE FOR RESTRICTED DRIVING
8 PRIVILEGES UNDER CERTAIN CONDITIONS AND TO MAKE TECHNICAL CORRECTIONS;
9 AMENDING SECTION 18-8004A, IDAHO CODE, TO PROVIDE CORRECT CODE REFERENCES
10 AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 18-8004C, IDAHO CODE,
11 TO REVISE PENALTIES FOR EXCESSIVE ALCOHOL CONCENTRATION AND TO MAKE A
12 TECHNICAL CORRECTION; AND AMENDING SECTION 18-8005, IDAHO CODE, TO REVISE
13 PENALTIES RELATED TO DRIVING UNDER THE INFLUENCE OF ALCOHOL, DRUGS OR
14 OTHER INTOXICATING SUBSTANCES AND TO MAKE TECHNICAL CORRECTIONS.
15 Be It Enacted by the Legislature of the State of Idaho:
16 SECTION 1. That Section 18-8002, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 18-8002. TESTS OF DRIVER FOR ALCOHOL CONCENTRATION, PRESENCE OF DRUGS OR
19 OTHER INTOXICATING SUBSTANCES -- PENALTY AND SUSPENSION UPON REFUSAL OF TESTS.
20 (1) Any person who drives or is in actual physical control of a motor vehicle
21 in this state shall be deemed to have given his consent to evidentiary testing
22 for concentration of alcohol as defined in section 18-8004, Idaho Code, and to
23 have given his consent to evidentiary testing for the presence of drugs or
24 other intoxicating substances, provided that such testing is administered at
25 the request of a peace officer having reasonable grounds to believe that per-
26 son has been driving or in actual physical control of a motor vehicle in
27 violation of the provisions of section 18-8004, Idaho Code, or section
28 18-8006, Idaho Code.
29 (2) Such person shall not have the right to consult with an attorney
30 before submitting to such evidentiary testing.
31 (3) At the time evidentiary testing for concentration of alcohol, or for
32 the presence of drugs or other intoxicating substances is requested, the per-
33 son shall be informed that if he refuses to submit to or if he fails to com-
34 plete, evidentiary testing:
35 (a) He is subject to a civil penalty of two hundred fifty dollars ($250)
36 for refusing to take the test;
37 (b) His driver's license will be seized by the peace officer and a tempo-
38 rary permit will be issued; provided, however, that no peace officer shall
39 issue a temporary permit pursuant to this section to a driver whose dri-
40 ver's license or permit has already been and is suspended or revoked
41 because of previous violations, and in no instance shall a temporary per-
42 mit be issued to a driver of a commercial vehicle who refuses to submit to
43 or fails to complete an evidentiary test;
2
1 (c) He has the right to request a hearing within seven (7) days to show
2 cause why he refused to submit to, or complete evidentiary testing;
3 (d) If he does not request a hearing or does not prevail at the hearing,
4 the court shall sustain the civil penalty and his driver's license will be
5 suspended absolutely for one (1) year if this is his first refusal and two
6 (2) years if this is his second refusal within ten (10) years; and
7 (e) Provided however, if he is enrolled in and is an offender in good
8 standing in a drug court, as provided in chapter 56, title 19, Idaho Code,
9 he shall be eligible for restricted driving privileges that may be granted
10 by the drug court judge, provided that the offender drive only a motor
11 vehicle equipped with a functioning ignition interlock system. He shall
12 become eligible for restricted driving privileges only after having served
13 a period of absolute suspension of driving privileges of sixty (60) days;
14 and
15 (f) After submitting to evidentiary testing he may, when practicable, at
16 his own expense, have additional tests made by a person of his own choos-
17 ing.
18 (4) If the motorist refuses to submit to or complete evidentiary testing
19 after the information has been given in accordance with subsection (3) above:
20 (a) He shall be fined a civil penalty of two hundred fifty dollars ($250)
21 and his driver's license or permit shall be seized by the peace officer
22 and forwarded to the court and a temporary permit shall be issued by the
23 peace officer which allows him to operate a motor vehicle until the date
24 of his hearing, if a hearing is requested, but in no event for more than
25 thirty (30) days; provided, however, that no peace officer shall issue a
26 temporary permit pursuant to this section to a driver whose driver's
27 license or permit has already been and is suspended or revoked because of
28 previous violations and in no instance shall a temporary permit be issued
29 to a driver of a commercial vehicle who refuses to submit to or fails to
30 complete an evidentiary test;
31 (b) A written request may be made within seven (7) calendar days for a
32 hearing before the court; if requested, the hearing must be held within
33 thirty (30) days of the seizure unless this period is, for good cause
34 shown, extended by the court for one (1) additional thirty (30) day
35 period. The court, in granting such an extension, may, for good cause
36 shown, extend the defendant's temporary driving privileges for one (1)
37 additional thirty (30) day period. The hearing shall be limited to the
38 question of why the defendant did not submit to, or complete, evidentiary
39 testing, and the burden of proof shall be upon the defendant; the court
40 shall sustain a two hundred fifty dollar ($250) civil penalty immediately
41 and suspend all the defendant's driving privileges immediately for one (1)
42 year for a first refusal and two (2) years for a second refusal within ten
43 (10) years unless it finds that the peace officer did not have legal cause
44 to stop and request him to take the test or that the request violated his
45 civil rights;
46 (c) If a hearing is not requested by written notice to the court con-
47 cerned within seven (7) calendar days, upon receipt of a sworn statement
48 by the peace officer of the circumstances of the refusal, the court shall
49 sustain a two hundred fifty dollar ($250) civil penalty and suspend the
50 defendant's driving privileges for one (1) year for a first refusal and
51 two (2) years for a second refusal within ten (10) years, during which
52 time he shall have absolutely no driving privileges of any kind; and
53 (d) Notwithstanding the provisions of subsection (4)(b) and (c) of this
54 section, any person who is enrolled in and is an offender in good standing
55 in a drug court, as provided in chapter 56, title 19, Idaho Code, shall be
3
1 eligible for restricted driving privileges that may be granted by the drug
2 court judge, provided that the offender drive only a motor vehicle
3 equipped with a functioning ignition interlock system. He shall become
4 eligible for restricted driving privileges only after having served a
5 period of absolute suspension of driving privileges of sixty (60) days;
6 and
7 (e) After submitting to evidentiary testing at the request of the peace
8 officer, he may, when practicable, at his own expense, have additional
9 tests made by a person of his own choosing. The failure or inability to
10 obtain an additional test or tests by a person shall not preclude the
11 admission of results of evidentiary testing for alcohol concentration or
12 for the presence of drugs or other intoxicating substances taken at the
13 direction of the peace officer unless the additional test was denied by
14 the peace officer.
15 (5) Any sustained civil penalty or suspension of driving privileges under
16 this section or section 18-8002A, Idaho Code, shall be a civil penalty sepa-
17 rate and apart from any other suspension imposed for a violation of other
18 Idaho motor vehicle codes or for a conviction of an offense pursuant to this
19 chapter, and may be appealed to the district court.
20 (6) No hospital, hospital officer, agent, or employee, or health care
21 professional licensed by the state of Idaho, whether or not such person has
22 privileges to practice in the hospital in which a body fluid sample is
23 obtained or an evidentiary test is made, shall incur any civil or criminal
24 liability for any act arising out of administering an evidentiary test for
25 alcohol concentration or for the presence of drugs or other intoxicating sub-
26 stances at the request or order of a peace officer in the manner described in
27 this section and section 18-8002A, Idaho Code: provided, that nothing in this
28 section shall relieve any such person or legal entity from civil liability
29 arising from the failure to exercise the community standard of care.
30 (a) This immunity extends to any person who assists any individual to
31 withdraw a blood sample for evidentiary testing at the request or order of
32 a peace officer, which individual is authorized to withdraw a blood sample
33 under the provisions of section 18-8003, Idaho Code, regardless of the
34 location where the blood sample is actually withdrawn.
35 (b) A peace officer is empowered to order an individual authorized in
36 section 18-8003, Idaho Code, to withdraw a blood sample for evidentiary
37 testing when the peace officer has probable cause to believe that the sus-
38 pect has committed any of the following offenses:
39 (i) Aggravated driving under the influence of alcohol, drugs or
40 other intoxicating substance as provided in section 18-8006, Idaho
41 Code;
42 (ii) Vehicular manslaughter as provided in subsections (3)(a), (b)
43 and (c) of section 18-4006, Idaho Code;
44 (iii) Aggravated operating of a vessel on the waters of the state
45 while under the influence of alcohol, drugs or other intoxicating
46 substances as provided in section 67-7035, Idaho Code; or
47 (iv) Any criminal homicide involving a vessel on the waters of the
48 state while under the influence of alcohol, drugs or other intoxicat-
49 ing substances.
50 (c) Nothing herein shall limit the discretion of the hospital administra-
51 tion to designate the qualified hospital employee responsible to withdraw
52 the blood sample.
53 (d) The law enforcement agency that requests or orders withdrawal of the
54 blood sample shall pay the reasonable costs to withdraw such blood sample,
55 perform laboratory analysis, preserve evidentiary test results, and tes-
4
1 tify in judicial proceedings.
2 (e) The withdrawal of the blood sample may be delayed or terminated if:
3 (i) In the reasonable judgment of the hospital personnel withdrawal
4 of the blood sample may result in serious bodily injury to hospital
5 personnel or other patients; or
6 (ii) The licensed health care professional treating the suspect
7 believes the withdrawal of the blood sample is contraindicated
8 because of the medical condition of the suspect or other patients.
9 (7) "Actual physical control" as used in this section and section
10 18-8002A, Idaho Code, shall be defined as being in the driver's position of
11 the motor vehicle with the motor running or with the motor vehicle moving.
12 (8) Any written notice required by this section shall be effective upon
13 mailing.
14 (9) For the purposes of this section and section 18-8002A, Idaho Code,
15 "evidentiary testing" shall mean a procedure or test or series of procedures
16 or tests, including the additional test authorized in subsection (10) of this
17 section, utilized to determine the concentration of alcohol or the presence of
18 drugs or other intoxicating substances in a person.
19 (10) A person who submits to a breath test for alcohol concentration, as
20 defined in subsection (4) of section 18-8004, Idaho Code, may also be
21 requested to submit to a second evidentiary test of blood or urine for the
22 purpose of determining the presence of drugs or other intoxicating substances
23 if the peace officer has reasonable cause to believe that a person was driving
24 under the influence of any drug or intoxicating substance or the combined
25 influence of alcohol and any drug or intoxicating substance. The peace officer
26 shall state in his or her report the facts upon which that belief is based.
27 (11) Notwithstanding any other provision of law to the contrary, the civil
28 penalty imposed under the provisions of this section must be paid, as ordered
29 by the court, to the county justice fund or the county current expense fund
30 where the incident occurred. If a person does not pay the civil penalty
31 imposed as provided in this section within thirty (30) days of the imposition,
32 unless this period has been extended by the court for good cause shown, the
33 prosecuting attorney representing the political subdivision where the incident
34 occurred may petition the court in the jurisdiction where the incident
35 occurred to file the order imposing the civil penalty as an order of the
36 court. Once entered, the order may be enforced in the same manner as a final
37 judgment of the court. In addition to the civil penalty, attorney's fees,
38 costs and interest may be assessed against any person who fails to pay the
39 civil penalty.
40 SECTION 2. That Section 18-8002A, Idaho Code, be, and the same is hereby
41 amended to read as follows:
42 18-8002A. TESTS OF DRIVER FOR ALCOHOL CONCENTRATION, PRESENCE OF DRUGS OR
43 OTHER INTOXICATING SUBSTANCES -- SUSPENSION UPON FAILURE OF TESTS. (1) Defini-
44 tions. As used in this section:
45 (a) "Actual physical control" means being in the driver's position of a
46 motor vehicle with the motor running or with the vehicle moving.
47 (b) "Administrative hearing" means a hearing conducted by a hearing offi-
48 cer to determine whether a suspension imposed by the provisions of this
49 section should be vacated or sustained.
50 (c) "Department" means the Idaho transportation department and, as the
51 context requires, shall be construed to include any agent of the depart-
52 ment designated by rule as hereinafter provided.
53 (d) "Director" means the director of the Idaho transportation department.
5
1 (e) "Evidentiary testing" means a procedure or test or series of proce-
2 dures or tests utilized to determine the concentration of alcohol or the
3 presence of drugs or other intoxicating substances in a person, including
4 additional testing authorized by subsection (6) of this section. An evi-
5 dentiary test for alcohol concentration shall be based on a formula of
6 grams of alcohol per one hundred (100) cubic centimeters of blood, per two
7 hundred ten (210) liters of breath, or sixty-seven (67) milliliters of
8 urine. Analysis of blood, breath or urine for the purpose of determining
9 alcohol concentration shall be performed by a laboratory operated by the
10 Idaho state police or by a laboratory approved by the Idaho state police
11 under the provisions of approval and certification standards to be set by
12 the Idaho state police, or by any other method approved by the Idaho state
13 police. Notwithstanding any other provision of law or rule of court, the
14 results of any test for alcohol concentration and records relating to cal-
15 ibration, approval, certification or quality control performed by a labo-
16 ratory operated and approved by the Idaho state police or by any other
17 method approved by the Idaho state police shall be admissible in any pro-
18 ceeding in this state without the necessity of producing a witness to
19 establish the reliability of the testing procedure for examination.
20 (f) "Hearing officer" means a person designated by the department to con-
21 duct administrative hearings. The hearing officer shall have authority to
22 administer oaths, examine witnesses and take testimony, receive relevant
23 evidence, issue subpoenas, regulate the course and conduct of the hearing
24 and make a final ruling on the issues before him.
25 (g) "Hearing request" means a request for an administrative hearing on
26 the suspension imposed by the provisions of this section.
27 (2) Information to be given. At the time of evidentiary testing for con-
28 centration of alcohol, or for the presence of drugs or other intoxicating sub-
29 stances is requested, the person shall be informed that if the person refuses
30 to submit to or fails to complete evidentiary testing, or if the person sub-
31 mits to and completes evidentiary testing and the test results indicate an
32 alcohol concentration or the presence of drugs or other intoxicating sub-
33 stances in violation of section 18-8004, 18-8004C or 18-8006, Idaho Code, the
34 person shall be informed substantially as follows (but need not be informed
35 verbatim):
36 If you refuse to submit to or if you fail to complete and pass evidentiary
37 testing for alcohol or other intoxicating substances:
38 (a) The peace officer will seize your driver's license and issue a notice
39 of suspension and a temporary driving permit to you, but no peace officer
40 will issue you a temporary driving permit if your driver's license or per-
41 mit has already been and is suspended or revoked. No peace officer shall
42 issue a temporary driving permit to a driver of a commercial vehicle who
43 refuses to submit to or fails to complete and pass an evidentiary test;
44 (b) You have the right to request a hearing within seven (7) days of the
45 notice of suspension of your driver's license to show cause why you
46 refused to submit to or to complete and pass evidentiary testing and why
47 your driver's license should not be suspended;
48 (c) If you refused or failed to complete evidentiary testing and do not
49 request a hearing before the court or do not prevail at the hearing, your
50 driver's license will be suspended. The suspension will be for one (1)
51 year if this is your first refusal. The suspension will be for two (2)
52 years if this is your second refusal within ten (10) years. You will not
53 be able to obtain a temporary restricted license during that period; and
54 (d) If you complete evidentiary testing and fail the testing and do not
55 request a hearing before the department or do not prevail at the hearing,
6
1 your driver's license will be suspended. This suspension will be for
2 ninety (90) days if this is your first failure of evidentiary testing, but
3 you may request restricted noncommercial vehicle driving privileges after
4 the first thirty (30) days. The suspension will be for one (1) year if
5 this is your second failure of evidentiary testing within five (5) years.
6 You will not be able to obtain a temporary restricted license during that
7 period;
8 (e) If you become enrolled in and are an offender in good standing in a
9 court approved drug court, as provided in chapter 56, title 19, Idaho
10 Code, you shall be eligible for restricted driving privileges that may be
11 granted by the drug court judge, provided that you drive only a motor
12 vehicle equipped with a functioning ignition interlock system. You shall
13 become eligible for restricted driving privileges only after having served
14 a period of absolute suspension of driving privileges of sixty (60) days;
15 and
16 (f) After submitting to evidentiary testing you may, when practicable, at
17 your own expense, have additional tests made by a person of your own
18 choosing.
19 (3) Rulemaking authority of the Idaho state police. The Idaho state
20 police may, pursuant to chapter 52, title 67, Idaho Code, prescribe by rule:
21 (a) What testing is required to complete evidentiary testing under this
22 section; and
23 (b) What calibration or checking of testing equipment must be performed
24 to comply with the department's requirements. Any rules of the Idaho state
25 police shall be in accordance with the following: a test for alcohol con-
26 centration in breath as defined in section 18-8004, Idaho Code, and sub-
27 section (1)(e) of this section will be valid for the purposes of this sec-
28 tion if the breath alcohol testing instrument was approved for testing by
29 the Idaho state police in accordance with section 18-8004, Idaho Code, at
30 any time within ninety (90) days before the evidentiary testing. A test
31 for alcohol concentration in blood or urine as defined in section 18-8004,
32 Idaho Code, that is reported by the Idaho state police or by any labora-
33 tory approved by the Idaho state police to perform this test will be valid
34 for the purposes of this section.
35 (4) Suspension.
36 (a) Upon receipt of the sworn statement of a peace officer that there
37 existed legal cause to believe a person had been driving or was in actual
38 physical control of a motor vehicle while under the influence of alcohol,
39 drugs or other intoxicating substances and that the person submitted to a
40 test and the test results indicated an alcohol concentration or the pres-
41 ence of drugs or other intoxicating substances in violation of section
42 18-8004, 18-8004C or 18-8006, Idaho Code, the department shall suspend the
43 person's driver's license, driver's permit, driving privileges or nonresi-
44 dent driving privileges:
45 (i) For a period of ninety (90) days for a first failure of eviden-
46 tiary testing under the provisions of this section. The first thirty
47 (30) days of the suspension shall be absolute and the person shall
48 have absolutely no driving privileges of any kind. Restricted non-
49 commercial vehicle driving privileges applicable during the remaining
50 sixty (60) days of the suspension may be requested as provided in
51 subsection (9) of this section.
52 (ii) For a period of one (1) year for a second and any subsequent
53 failure of evidentiary testing under the provisions of this section
54 within the immediately preceding five (5) years. No driving privi-
55 leges of any kind shall be granted during the suspension imposed pur-
7
1 suant to this subsection.
2 The person may request an administrative hearing on the suspension as pro-
3 vided in subsection (7) of this section. Any right to contest the suspen-
4 sion shall be waived if a hearing is not requested as therein provided.
5 (b) The suspension shall become effective thirty (30) days after service
6 upon the person of the notice of suspension. The notice shall be in a form
7 provided by the department and shall state:
8 (i) The reason and statutory grounds for the suspension;
9 (ii) The effective date of the suspension;
10 (iii) The suspension periods to which the person may be subject as
11 provided in subsection (4)(a) of this section;
12 (iv) The procedures for obtaining restricted noncommercial vehicle
13 driving privileges;
14 (v) The rights of the person to request an administrative hearing
15 on the suspension and that if an administrative hearing is not
16 requested within seven (7) days of service of the notice of suspen-
17 sion the right to contest the suspension shall be waived;
18 (vi) The procedures for obtaining an administrative hearing on the
19 suspension;
20 (vii) The right to judicial review of the hearing officer's decision
21 on the suspension and the procedures for seeking such review.
22 (c) Notwithstanding the provisions of subsection (4)(a)(i) and (ii)
23 above, any person who is enrolled in and is an offender in good standing
24 in a drug court, as provided in chapter 56, title 19, Idaho Code, shall be
25 eligible for restricted driving privileges that may be granted by the drug
26 court judge, provided that the offender drive only a motor vehicle
27 equipped with a functioning ignition interlock system. He shall become
28 eligible for restricted driving privileges only after having served a
29 period of absolute suspension of driving privileges of sixty (60) days.
30 (5) Service of suspension by peace officer or the department. If the
31 driver submits to evidentiary testing after the information in subsection (2)
32 of this section has been provided and the results of the test indicate an
33 alcohol concentration or the presence of drugs or other intoxicating sub-
34 stances in violation of the provisions of section 18-8004, 18-8004C or
35 18-8006, Idaho Code:
36 (a) The peace officer shall take possession of the person's driver's
37 license, shall issue a temporary permit which shall be valid for a period
38 not to exceed thirty (30) days from the date of issuance, and, acting on
39 behalf of the department, will serve the person with a notice of suspen-
40 sion in the form and containing the information required under subsection
41 (4) of this section. The department may serve the person with a notice of
42 suspension if the peace officer failed to issue the notice of suspension
43 or failed to include the date of service as provided in subsection (4)(b)
44 of this section.
45 (b) Within five (5) business days following service of a notice of sus-
46 pension the peace officer shall forward to the department a copy of the
47 completed notice of suspension form upon which the date of service upon
48 the driver shall be clearly indicated, a copy of any completed temporary
49 permit form along with any confiscated driver's license, a certified copy
50 or duplicate original of the results of all tests for alcohol concentra-
51 tion, as shown by analysis of breath administered at the direction of the
52 peace officer, and a sworn statement of the officer, which may incorporate
53 any arrest or incident reports relevant to the arrest and evidentiary
54 testing setting forth:
55 (i) The identity of the person;
8
1 (ii) Stating the officer's legal cause to stop the person;
2 (iii) Stating the officer's legal cause to believe that the person
3 had been driving or was in actual physical control of a motor vehicle
4 while under the influence of alcohol, drugs or other intoxicating
5 substances in violation of the provisions of section 18-8004,
6 18-8004C or 18-8006, Idaho Code;
7 (iv) That the person was advised of the consequences of taking and
8 failing the evidentiary test as provided in subsection (2) of this
9 section;
10 (v) That the person was lawfully arrested;
11 (vi) That the person was tested for alcohol concentration, drugs or
12 other intoxicating substances as provided in this chapter, and that
13 the results of the test indicated an alcohol concentration or the
14 presence of drugs or other intoxicating substances in violation of
15 the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code.
16 If an evidentiary test of blood or urine was administered rather than a
17 breath test, the peace officer or the department shall serve the notice of
18 suspension once the results are received. The sworn statement required in
19 this subsection shall be made on forms in accordance with rules adopted by
20 the department.
21 (c) The department may serve the person with a notice of suspension if
22 the peace officer failed to issue the notice of suspension or failed to
23 include the date of service as provided in subsection (4)(b) of this sec-
24 tion.
25 (6) Additional tests. After submitting to evidentiary testing at the
26 request of the peace officer, the person may, when practicable, at his own
27 expense, have additional tests for alcohol concentration or for the presence
28 of drugs or other intoxicating substances made by a person of his own choos-
29 ing. The person's failure or inability to obtain additional tests shall not
30 preclude admission of the results of evidentiary tests administered at the
31 direction of the peace officer unless additional testing was denied by the
32 peace officer.
33 (7) Administrative hearing on suspension. A person who has been served
34 with a notice of suspension after submitting to an evidentiary test may
35 request an administrative hearing on the suspension before a hearing officer
36 designated by the department. The request for hearing shall be in writing and
37 must be received by the department within seven (7) calendar days of the date
38 of service upon the person of the notice of suspension, and shall include what
39 issue or issues shall be raised at the hearing. The date on which the hearing
40 request was received shall be noted on the face of the request.
41 If a hearing is requested, the hearing shall be held within twenty (20)
42 days of the date the hearing request was received by the department unless
43 this period is, for good cause shown, extended by the hearing officer for one
44 ten (10) day period. Such extension shall not operate as a stay of the suspen-
45 sion and any temporary permit shall expire thirty (30) days after service of
46 the notice of suspension, notwithstanding an extension of the hearing date
47 beyond such thirty (30) day period. Written notice of the date and time of the
48 hearing shall be sent to the party requesting the hearing at least seven (7)
49 days prior to the scheduled hearing date. The department may conduct all hear-
50 ings by telephone if each participant in the hearing has an opportunity to
51 participate in the entire proceeding while it is taking place.
52 The hearing shall be recorded. The sworn statement of the arresting offi-
53 cer, and the copy of the notice of suspension and any temporary permit issued
54 by the officer shall be admissible at the hearing without further evidentiary
55 foundation. The results of any tests for alcohol concentration or the presence
9
1 of drugs or other intoxicating substances by analysis of blood, urine or
2 breath administered at the direction of the peace officer and the records
3 relating to calibration, certification, approval or quality control pertaining
4 to equipment utilized to perform the tests shall be admissible as provided in
5 section 18-8004(4), Idaho Code. The arresting officer shall not be required
6 to participate unless directed to do so by a subpoena issued by the hearing
7 officer.
8 The burden of proof shall be on the person requesting the hearing. The
9 hearing officer shall not vacate the suspension unless he finds, by a prepon-
10 derance of the evidence, that:
11 (a) The peace officer did not have legal cause to stop the person; or
12 (b) The officer did not have legal cause to believe the person had been
13 driving or was in actual physical control of a vehicle while under the
14 influence of alcohol, drugs or other intoxicating substances in violation
15 of the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code; or
16 (c) The test results did not show an alcohol concentration or the pres-
17 ence of drugs or other intoxicating substances in violation of section
18 18-8004, 18-8004C or 18-8006, Idaho Code; or
19 (d) The tests for alcohol concentration, drugs or other intoxicating sub-
20 stances administered at the direction of the peace officer were not con-
21 ducted in accordance with the requirements of section 18-8004(4), Idaho
22 Code, or the testing equipment was not functioning properly when the test
23 was administered; or
24 (e) The person was not informed of the consequences of submitting to evi-
25 dentiary testing as required in subsection (2) of this section.
26 If the hearing officer finds that the person has not met his burden of proof,
27 he shall sustain the suspension. The hearing officer shall make findings of
28 fact and conclusions of law on each issue and shall enter an order vacating or
29 sustaining the suspension. If the suspension is vacated, the person's driver's
30 license, unless unavailable by reason of an existing suspension, revocation,
31 cancellation, disqualification or denial shall be returned to him. The find-
32 ings of fact, conclusions of law and order entered by the hearing officer
33 shall be considered a final order pursuant to the provisions of chapter 52,
34 title 67, Idaho Code, except that motions for reconsideration of such order
35 shall be allowed and new evidence can be submitted.
36 The facts as found by the hearing officer shall be independent of the
37 determination of the same or similar facts in the adjudication of any criminal
38 charges arising out of the same occurrence. The disposition of those criminal
39 charges shall not affect the suspension required to be imposed under the pro-
40 visions of this section. If a license is suspended under this section and the
41 person is also convicted on criminal charges arising out of the same occur-
42 rence for a violation of the provisions of section 18-8004, 18-8004C or
43 18-8006, Idaho Code, both the suspension under this section and the suspension
44 imposed pursuant to the provisions of section 18-8005 or 18-8006, Idaho Code,
45 shall be imposed, but the periods of suspension shall run concurrently, with
46 the total period of suspension not to exceed the longer of the applicable sus-
47 pension periods, unless the court ordering the suspension in the criminal case
48 orders to the contrary.
49 (8) Judicial review. A party aggrieved by the decision of the hearing
50 officer may seek judicial review of the decision in the manner provided for
51 judicial review of final agency action provided in chapter 52, title 67, Idaho
52 Code.
53 (9) Restricted noncommercial vehicle driving privileges. A person served
54 with a notice of suspension for ninety (90) days pursuant to this section may
55 apply to the department for restricted noncommercial vehicle driving privi-
10
1 leges, to become effective after the thirty (30) day absolute suspension has
2 been completed. The request may be made at any time after service of the
3 notice of suspension. Restricted noncommercial vehicle driving privileges will
4 be issued for the person to travel to and from work and for work purposes not
5 involving operation of a commercial vehicle, to attend an alternative high
6 school, work on a GED, for postsecondary education, or to meet the medical
7 needs of the person or his family if the person is eligible for restricted
8 noncommercial vehicle driving privileges. Any person whose driving privileges
9 are suspended under the provisions of this chapter may be granted privileges
10 to drive a noncommercial vehicle but shall not be granted privileges to oper-
11 ate a commercial motor vehicle.
12 (10) Rules. The department may adopt rules under the provisions of chapter
13 52, title 67, Idaho Code, deemed necessary to implement the provisions of this
14 section.
15 SECTION 3. That Section 18-8004A, Idaho Code, be, and the same is hereby
16 amended to read as follows:
17 18-8004A. PENALTIES -- PERSONS UNDER 21 WITH LESS THAN 0.08 ALCOHOL CON-
18 CENTRATION. (1) Any person found guilty of a violation of subsection (1)(d) of
19 section 18-8004, Idaho Code, shall be guilty of a misdemeanor; and, for a
20 first offense:
21 (a) Shall be fined an amount not to exceed one thousand dollars ($1,000);
22 (b) Shall have his driving privileges suspended by the court for a period
23 of one (1) year, ninety (90) days of which shall not be reduced and during
24 which period absolutely no driving privileges of any kind may be granted.
25 After the period of absolute suspension of driving privileges has passed,
26 the defendant may request restricted driving privileges which the court
27 may allow, if the defendant shows by a preponderance of the evidence that
28 driving privileges are necessary as deemed appropriate by the court;
29 (c) Shall be advised by the court in writing at the time of sentencing of
30 the penalties that will be imposed for any subsequent violation of the
31 provisions of this section or any violation of section 18-8004, Idaho
32 Code, which advice shall be signed by the defendant, and a copy retained
33 by the court and another copy retained by the prosecuting attorney;
34 (d) Shall be required to undergo an alcohol evaluation and otherwise com-
35 ply with the requirements of sections 18-8005(911) and 18-8005(124), Idaho
36 Code, as ordered by the court.
37 (2) Any person who pleads guilty to or is found guilty of a violation of
38 the provisions of subsection (1)(d) of section 18-8004, Idaho Code, who previ-
39 ously has been found guilty of or has pled guilty to a violation of the provi-
40 sions of section 18-8004(1)(a), (b), (c) or (d), Idaho Code, or any substan-
41 tially conforming foreign criminal violation, as defined in section
42 18-8005(810), Idaho Code, notwithstanding the form of the judgment or withheld
43 judgment, is guilty of a misdemeanor; and:
44 (a) Shall be sentenced to jail for a mandatory minimum period of five (5)
45 days, as required by 23 U.S.C. section 164, not to exceed thirty (30)
46 days;
47 (b) Shall be fined an amount of not less than five hundred dollars ($500)
48 nor more than two thousand dollars ($2,000);
49 (c) Shall have his driving privileges suspended by the court for a period
50 not to exceed two (2) years, one (1) year of which shall be absolute and
51 shall not be reduced and during which period absolutely no driving privi-
52 leges of any kind may be granted;
53 (d) Shall, while operating a motor vehicle, be required to drive only a
11
1 motor vehicle equipped with a functioning ignition interlock system, as
2 provided in section 18-8008, Idaho Code, following the mandatory one (1)
3 year license suspension period; and
4 (e) Shall be advised by the court in writing at the time of sentencing of
5 the penalties that will be imposed for subsequent violations of the provi-
6 sions of this section or section 18-8004, Idaho Code, which advice shall
7 be signed by the defendant, and a copy retained by the court and another
8 copy retained by the prosecuting attorney; and
9 (f) Shall undergo an alcohol evaluation and comply with the other
10 requirements of subsections (911) and (124) of section 18-8005, Idaho
11 Code.
12 (3) Any person who pleads guilty to or is found guilty of a violation of
13 the provisions of subsection (1)(d) of section 18-8004, Idaho Code, who previ-
14 ously has been found guilty of or has pled guilty to two (2) or more viola-
15 tions of the provisions of section 18-8004(1)(a), (b), (c) or (d), Idaho Code,
16 or any substantially conforming foreign criminal violation, within five (5)
17 years, notwithstanding the form of the judgment or withheld judgment, shall be
18 guilty of a misdemeanor; and:
19 (a) Shall be sentenced to jail for a mandatory minimum period of ten (10)
20 days, as required by 23 U.S.C. section 164, not to exceed six (6) months;
21 (b) Shall be fined an amount of not less than one thousand dollars
22 ($1,000) nor more than two thousand dollars ($2,000);
23 (c) Shall surrender his driver's license or permit to the court;
24 (d) Shall have his driving privileges suspended by the court for a manda-
25 tory minimum period of one (1) year, during which period absolutely no
26 driving privileges of any kind may be granted, or until such person
27 reaches the age of twenty-one (21) years, whichever is greater; and
28 (e) Shall, while operating a motor vehicle, be required to drive only a
29 motor vehicle equipped with a functioning ignition interlock system, as
30 provided in section 18-8008, Idaho Code, following the mandatory one (1)
31 year license suspension period; and
32 (f) Shall undergo an alcohol evaluation and comply with all other
33 requirements imposed by the court pursuant to sections 18-8005(911) and
34 18-8005(124), Idaho Code.
35 (4) All provisions of section 18-8005, Idaho Code, not otherwise in con-
36 flict with or provided for in this section shall apply to any sentencing
37 imposed under the provisions of this section.
38 (5) A person violating the provisions of section 18-8004(1)(d), Idaho
39 Code, may be prosecuted under title 20, Idaho Code.
40 (6) Any person whose driving privileges are suspended, revoked, canceled
41 or disqualified under the provisions of this chapter shall not be granted
42 privileges to operate a commercial motor vehicle during the period of suspen-
43 sion, revocation, cancellation or disqualification.
44 SECTION 4. That Section 18-8004C, Idaho Code, be, and the same is hereby
45 amended to read as follows:
46 18-8004C. EXCESSIVE ALCOHOL CONCENTRATION -- PENALTIES. Notwithstanding
47 any provision of section 18-8005, Idaho Code, to the contrary:
48 (1) Any person who pleads guilty to or is found guilty of a violation of
49 the provisions of section 18-8004(1)(a), Idaho Code, for the first time, but
50 who has an alcohol concentration of 0.20, as defined in section 18-8004(4),
51 Idaho Code, or more, as shown by an analysis of his blood, breath or urine by
52 a test requested by a police officer, shall be guilty of a misdemeanor; and:
53 (a) Shall be sentenced to jail for a mandatory minimum period of not less
12
1 than ten (10) days the first forty-eight (48) hours of which must be con-
2 secutive, and may be sentenced to not more than one (1) year;
3 (b) May be fined an amount not to exceed two thousand dollars ($2,000);
4 (c) Shall be advised by the court in writing at the time of sentencing,
5 of the penalties that will be imposed for subsequent violations of the
6 provisions of this section and violations of section 18-8004, Idaho Code,
7 which advice shall be signed by the defendant, and a copy retained by the
8 court and another copy retained by the prosecuting attorney;
9 (d) Shall surrender his driver's license or permit to the court;
10 (e) Shall have his driving privileges suspended by the court for an addi-
11 tional mandatory minimum period of one (1) year after release from con-
12 finement, during which one (1) year period absolutely no driving privi-
13 leges of any kind may be granted; and
14 (2) Any person who pleads guilty to or is found guilty of a violation of
15 the provisions of section 18-8004, Idaho Code, and who has an alcohol concen-
16 tration of 0.20, as defined in section 18-8004(4), Idaho Code, or more, as
17 shown by an analysis of his blood, breath or urine by a test requested by a
18 police officer, and who previously has been found guilty of or has pled guilty
19 to one (1) or more violations of section 18-8004, Idaho Code, in which the
20 person had an alcohol concentration of 0.20 or more, or any substantially con-
21 forming foreign criminal violation wherein the defendant had an alcohol con-
22 centration of 0.20 or more, or any combination thereof, within five (5) years,
23 notwithstanding the form of judgment or withheld judgment shall be guilty of a
24 felony; and:
25 (a) Shall be sentenced to the custody of the state board of correction
26 for not to exceed five (5) years; provided that notwithstanding the provi-
27 sions of section 19-2601, Idaho Code, should the court impose any sentence
28 other than incarceration in the state penitentiary, the defendant shall be
29 sentenced to the county jail for a mandatory minimum period of not less
30 than thirty (30) days; and further provided that notwithstanding the pro-
31 visions of section 18-111, Idaho Code, a conviction under this section
32 shall be deemed a felony;
33 (b) May be fined an amount not to exceed five thousand dollars ($5,000);
34 (c) Shall surrender his driver's license or permit to the court; and
35 (d) Shall have his driving privileges suspended by the court for a manda-
36 tory minimum period of one (1) year after release from imprisonment, and
37 may have his driving privileges suspended by the court for not to exceed
38 five (5) years after release from imprisonment, during which time he shall
39 have absolutely no driving privileges of any kind; and
40 (e) Shall, while operating a motor vehicle, be required to drive only a
41 motor vehicle equipped with a functioning ignition interlock system, as
42 provided in section 18-8008, Idaho Code, following the mandatory license
43 suspension period.
44 (3) Notwithstanding the provisions of subsections (1)(d) and (e) and
45 (2)(c), (d) and (e) of this section, any person who is enrolled in and is an
46 offender in good standing in a drug court, as provided in chapter 56, title
47 19, Idaho Code, shall be eligible for restricted driving privileges that may
48 be granted by the drug court judge, provided that the offender drive only a
49 motor vehicle equipped with a functioning ignition interlock system. He shall
50 become eligible for restricted driving privileges only after having served a
51 period of absolute suspension of driving privileges of sixty (60) days. This
52 subsection (3) shall not apply to those persons who are sentenced to incarcer-
53 ation in a state penitentiary pursuant to subsection (2) of this section.
54 (4) All the provisions of section 18-8005, Idaho Code, not in conflict
55 with or otherwise provided for in this section, shall apply to this section.
13
1 (45) Notwithstanding any other provision of law, any evidence of convic-
2 tion under this section shall be admissible in any civil action for damages
3 resulting from the occurrence. A conviction for the purposes of this section
4 means that the person has pled guilty or has been found guilty, notwithstand-
5 ing the form of the judgment or withheld judgment.
6 SECTION 5. That Section 18-8005, Idaho Code, be, and the same is hereby
7 amended to read as follows:
8 18-8005. PENALTIES. (1) Any person who pleads guilty to or is found
9 guilty of a violation of the provisions of section 18-8004(1)(a) or (5), Idaho
10 Code, for the first time is guilty of a misdemeanor; and, except as provided
11 in section 18-8004C, Idaho Code:
12 (a) May be sentenced to jail for a term not to exceed six (6) months;
13 (b) May be fined an amount not to exceed one thousand dollars ($1,000);
14 (c) Shall be advised by the court in writing at the time of sentencing of
15 the penalties that will be imposed for subsequent violations of the provi-
16 sions of section 18-8004, Idaho Code, which advice shall be signed by the
17 defendant, and a copy retained by the court and another copy retained by
18 the prosecuting attorney; and
19 (d) Shall have his driving privileges suspended by the court for a period
20 of thirty (30) days which shall not be reduced and during which thirty
21 (30) day period absolutely no driving privileges of any kind may be
22 granted. After the thirty (30) day period of absolute suspension of driv-
23 ing privileges has passed, the defendant shall have driving privileges
24 suspended by the court for an additional period of at least sixty (60)
25 days, not to exceed one hundred fifty (150) days during which the defend-
26 ant may request restricted driving privileges which the court may allow,
27 if the defendant shows by a preponderance of the evidence that driving
28 privileges are necessary for his employment or for family health needs.
29 (2) Any person who pleads guilty to or is found guilty of a violation of
30 the provisions of section 18-8004(1)(b), Idaho Code, for the first time is
31 guilty of a misdemeanor and subject to:
32 (a) The provisions of section 18-8005(1)(a), (b) and (c), Idaho Code; and
33 (b) The provisions of section 49-335, Idaho Code.
34 (3) Any person who pleads guilty to or is found guilty of a violation of
35 the provisions of section 18-8004(1)(c), Idaho Code, for the first time, is
36 guilty of a misdemeanor and is subject to:
37 (a) The provisions of section 18-8005(1)(a), (b) and (c), Idaho Code; and
38 (b) The provisions of section 49-335, Idaho Code.
39 (4) Any person who pleads guilty to or is found guilty of a violation of
40 the provisions of section 18-8004(1)(a), (b) or (c), Idaho Code, who previ-
41 ously has been found guilty of or has pled guilty to a violation of the provi-
42 sions of section 18-8004(1)(a), (b) or (c), Idaho Code, or any substantially
43 conforming foreign criminal violation within ten (10) years, notwithstanding
44 the form of the judgment(s) or withheld judgment(s), and except as provided in
45 section 18-8004C, Idaho Code, is guilty of a misdemeanor; and, except as pro-
46 vided in section 18-8004C, Idaho Code:
47 (a) Shall be sentenced to jail for a mandatory minimum period of not less
48 than ten (10) days the first forty-eight (48) hours of which must be con-
49 secutive, and five (5) days of which must be served in jail, as required
50 by 23 U.S.C. section 164, and may be sentenced to not more than one (1)
51 year, provided however, that in the discretion of the sentencing judge,
52 the judge may authorize the defendant to be assigned to a work detail pro-
53 gram within the custody of the county sheriff during the period of incar-
14
1 ceration;
2 (b) May be fined an amount not to exceed two thousand dollars ($2,000);
3 (c) Shall be advised by the court in writing at the time of sentencing,
4 of the penalties that will be imposed for subsequent violations of the
5 provisions of section 18-8004, Idaho Code, which advice shall be signed by
6 the defendant, and a copy retained by the court and another copy retained
7 by the prosecuting attorney;
8 (d) Shall surrender his driver's license or permit to the court;
9 (e) Shall have his driving privileges suspended by the court for an addi-
10 tional mandatory minimum period of one (1) year after release from con-
11 finement, during which one (1) year period absolutely no driving privi-
12 leges of any kind may be granted; and
13 (f) Shall, while operating a motor vehicle, be required to drive only a
14 motor vehicle equipped with a functioning ignition interlock system, as
15 provided in section 18-8008, Idaho Code, following the one (1) year manda-
16 tory license suspension period.
17 (g5) If the person has pled guilty or was found guilty for the second
18 time within ten (10) years of a violation of the provisions of section
19 18-8004(1)(b) or (c), Idaho Code, then the provisions of section 49-335, Idaho
20 Code, shall apply.
21 (56) Except as provided in section 18-8004C, Idaho Code, any person who
22 pleads guilty to or is found guilty of a violation of the provisions of sec-
23 tion 18-8004(1)(a), (b) or (c), Idaho Code, who previously has been found
24 guilty of or has pled guilty to two (2) or more violations of the provisions
25 of section 18-8004(1)(a), (b) or (c), Idaho Code, or any substantially con-
26 forming foreign criminal violation, or any combination thereof, within ten
27 (10) years, notwithstanding the form of the judgment(s) or withheld
28 judgment(s), shall be guilty of a felony; and
29 (a) Shall be sentenced to the custody of the state board of correction
30 for not to exceed ten (10) years; provided that notwithstanding the provi-
31 sions of section 19-2601, Idaho Code, should the court impose any sentence
32 other than incarceration in the state penitentiary, the defendant shall be
33 sentenced to the county jail for a mandatory minimum period of not less
34 than thirty (30) days, the first forty-eight (48) hours of which must be
35 consecutive, and ten (10) days of which must be served in jail, as
36 required by 23 U.S.C. section 164; and further provided that notwithstand-
37 ing the provisions of section 18-111, Idaho Code, a conviction under this
38 section shall be deemed a felony;
39 (b) May be fined an amount not to exceed five thousand dollars ($5,000);
40 (c) Shall surrender his driver's license or permit to the court; and
41 (d) Shall have his driving privileges suspended by the court for a manda-
42 tory minimum period of one (1) year after release from imprisonment, and
43 may have his driving privileges suspended by the court for not to exceed
44 five (5) years after release from imprisonment, during which time he shall
45 have absolutely no driving privileges of any kind; and
46 (e) Shall, while operating a motor vehicle, be required to drive only a
47 motor vehicle equipped with a functioning ignition interlock system, as
48 provided in section 18-8008, Idaho Code, following the mandatory one (1)
49 year license suspension period.
50 (67) Notwithstanding the provisions of subsections (4)(e) and (f) and
51 (6)(d) and (e) of this section, any person who is enrolled in and is an
52 offender in good standing in a drug court, as provided in chapter 56, title
53 19, Idaho Code, shall be eligible for restricted driving privileges that may
54 be granted by the drug court judge, provided that the offender drive only a
55 motor vehicle equipped with a functioning ignition interlock system. He shall
15
1 become eligible for restricted driving privileges only after having served a
2 period of absolute suspension of driving privileges of sixty (60) days. This
3 subsection (7) shall not apply to those persons who are sentenced to incarcer-
4 ation in a state penitentiary pursuant to subsection (6) of this section.
5 (8) For the purpose of computation of the enhancement period in subsec-
6 tions (4), (56) and (79) of this section, the time that elapses between the
7 date of commission of the offense and the date the defendant pleads guilty or
8 is found guilty for the pending offense shall be excluded. If the determina-
9 tion of guilt against the defendant is reversed upon appeal, the time that
10 elapsed between the date of the commission of the offense and the date the
11 defendant pleads guilty or is found guilty following the appeal shall also be
12 excluded.
13 (79) Notwithstanding the provisions of subsections (4) and (56) of this
14 section, any person who has pled guilty or has been found guilty of a felony
15 violation of the provisions of section 18-8004, Idaho Code, a felony violation
16 of the provisions of section 18-8004C, Idaho Code, a violation of the provi-
17 sions of section 18-8006, Idaho Code, a violation of the provisions of section
18 18-4006 3.(b), Idaho Code, or any substantially conforming foreign criminal
19 felony violation, and within fifteen (15) years pleads guilty or is found
20 guilty of a further violation of the provisions of section 18-8004, Idaho
21 Code, shall be guilty of a felony and shall be sentenced pursuant to subsec-
22 tion (56) of this section.
23 (810) For the purpose of subsections (4), (56) and (79) of this section
24 and the provisions of section 18-8004C, Idaho Code, a substantially conforming
25 foreign criminal violation exists when a person has pled guilty to or has been
26 found guilty of a violation of any federal law or law of another state, or any
27 valid county, city, or town ordinance of another state substantially conform-
28 ing to the provisions of section 18-8004, Idaho Code. The determination of
29 whether a foreign criminal violation is substantially conforming is a question
30 of law to be determined by the court.
31 (911) Any person who pleads guilty to or is found guilty of a violation of
32 the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code, shall
33 undergo, at his own expense, (or at county expense through the procedures set
34 forth in chapters 34 and 35, title 31, Idaho Code,) and prior to the sentenc-
35 ing date, an alcohol evaluation by an alcohol evaluation facility approved by
36 the Idaho department of health and welfare; provided however, if the defendant
37 has no prior or pending charges with respect to the provisions of section
38 18-8004, 18-8004C or 18-8006, Idaho Code, and the court has the records and
39 information required under subsections (102)(a), (b) and (c) of this section
40 or possesses information from other reliable sources relating to the
41 defendant's use or nonuse of alcohol or drugs which does not give the court
42 any reason to believe that the defendant regularly abuses alcohol or drugs and
43 is in need of treatment, the court may, in its discretion, waive the evalua-
44 tion with respect to sentencing for a violation of section 18-8004 or
45 18-8004C(1), Idaho Code, and proceed to sentence the defendant. The court may
46 also, in its discretion, waive the requirement of an alcohol evaluation with
47 respect to a defendant's violation of the provisions of section 18-8004,
48 18-8004C or 18-8006, Idaho Code, and proceed to sentence the defendant if the
49 court has a presentence investigation report, substance abuse assessment,
50 criminogenic risk assessment, or other assessment which evaluates the
51 defendant's degree of alcohol abuse and need for alcohol treatment conducted
52 within twelve (12) months preceding the date of the defendant's sentencing. In
53 the event an alcohol evaluation indicates the need for alcohol treatment, the
54 evaluation shall contain a recommendation by the evaluator as to the most
55 appropriate treatment program, together with the estimated cost thereof, and
16
1 recommendations for other suitable alternative treatment programs, together
2 with the estimated costs thereof. The person shall request that a copy of the
3 completed evaluation be forwarded to the court. The court shall take the eval-
4 uation into consideration in determining an appropriate sentence. If a copy of
5 the completed evaluation has not been provided to the court, the court may
6 proceed to sentence the defendant; however, in such event, it shall be pre-
7 sumed that alcohol treatment is required unless the defendant makes a showing
8 by a preponderance of evidence that treatment is not required. If the defend-
9 ant has not made a good faith effort to provide the completed copy of the
10 evaluation to the court, the court may consider the failure of the defendant
11 to provide the report as an aggravating circumstance in determining an appro-
12 priate sentence. If treatment is ordered, in no event shall the person or
13 facility doing the evaluation be the person or facility that provides the
14 treatment unless this requirement is waived by the sentencing court, with the
15 exception of federally recognized Indian tribes or federal military installa-
16 tions, where diagnosis and treatment are appropriate and available. Nothing
17 herein contained shall preclude the use of funds authorized pursuant to the
18 provisions of chapter 3, title 39, Idaho Code, for court-ordered alcohol
19 treatment for indigent defendants.
20 (102) At the time of sentencing, the court shall be provided with the fol-
21 lowing information:
22 (a) The results, if administered, of any evidentiary test for alcohol
23 and/or drugs;
24 (b) A computer or teletype or other acceptable copy of the person's driv-
25 ing record;
26 (c) Information as to whether the defendant has pled guilty to or been
27 found guilty of violation of the provisions of section 18-8004, 18-8004C
28 or 18-8006, Idaho Code, or a similar offense within the past five (5)
29 years, notwithstanding the form of the judgment(s) or withheld
30 judgment(s); and
31 (d) The alcohol evaluation required in subsection (911) of this section,
32 if any.
33 (113) A minor may be prosecuted for a violation of the provisions of sec-
34 tion 18-8004 or 18-8004C, Idaho Code, under chapter 5, title 20, Idaho Code.
35 In addition to any other penalty, if a minor pleads guilty to or is found
36 guilty of a violation of the provisions of section 18-8004(1)(a), (b) or (c)
37 or 18-8004C, Idaho Code, he shall have his driving privileges suspended or
38 denied for an additional one (1) year following the end of any period of sus-
39 pension or revocation existing at the time of the violation, or until he
40 reaches the age of twenty-one (21) years, whichever period is greater. During
41 the period of additional suspension or denial, absolutely no driving privi-
42 leges shall be allowed.
43 (124) In the event that the alcohol evaluation required in subsection
44 (911) of this section recommends alcohol treatment, the court shall order the
45 person to complete a treatment program in addition to any other sentence which
46 may be imposed, unless the court determines that alcohol treatment would be
47 inappropriate or undesirable, in which event, the court shall enter findings
48 articulating the reasons for such determination on the record. The court shall
49 order the defendant to complete the preferred treatment program set forth in
50 the evaluation, or a comparable alternative, unless it appears that the
51 defendant cannot reasonably obtain adequate financial resources for such
52 treatment. In that event, the court may order the defendant to complete a less
53 costly alternative set forth in the evaluation, or a comparable program. Such
54 treatment shall, to the greatest extent possible, be at the expense of the
55 defendant. In the event that funding is provided for or on behalf of the
17
1 defendant by an entity of state government, restitution shall be ordered to
2 such governmental entity in accordance with the restitution procedure for
3 crime victims, as specified under chapter 53, title 19, Idaho Code. Nothing
4 contained herein shall be construed as requiring a court to order that a gov-
5 ernmental entity shall provide alcohol treatment at government expense unless
6 otherwise required by law.
7 (135) Any person who is disqualified, or whose driving privileges have
8 been suspended, revoked or canceled under the provisions of this chapter,
9 shall not be granted restricted driving privileges to operate a commercial
10 motor vehicle.
STATEMENT OF PURPOSE
RS 17095
The legislation would give drug court judges, including DUI court
judges, authority to grant driving privileges to an offender in
good standing who is participating in a drug court program,
provided that the offender drive a motor vehicle equipped with a
functioning ignition interlock system. The offender would only
be eligible for restricted driving privileges after the offender
has served a period of absolute suspension of driving privileges
of sixty days.
FISCAL NOTE
This legislation would have no fiscal impact.
Contact
Name: Representative Les Bock
Phone: 332-1258
STATEMENT OF PURPOSE/FISCAL NOTE H 254