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HB 3
DRIVING UNDER THE INFLUENCE PENALTY
ENHANCEMENT
1996 GENERAL SESSION
STATE OF UTAH
Sponsor: Don E. Bush
AN ACT RELATING TO MOTOR VEHICLES; AMENDING THE PENALTY FOR CERTAIN
THIRD DRIVING UNDER THE INFLUENCE CONVICTIONS; MAKING TECHNICAL
CORRECTIONS; PROVIDING AN EFFECTIVE DATE; AND PROVIDING A
COORDINATION CLAUSE.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
41-6-44 , as last amended by Chapters 159 and 263, Laws of Utah 1994
Be it enacted by the Legislature of the state of Utah:
Section 1.
Section
41-6-44
is amended to read:
41-6-44. Driving under the influence of alcohol, drugs, or with specified or unsafe
blood alcohol concentration -- Measurement of blood or breath alcohol -- Criminal
punishment -- Arrest without warrant -- Penalties -- Suspension or revocation of license --
Penalties.
(1) (a) A person may not operate or be in actual physical control of a vehicle within this
state if the person:
(i) has a blood or breath alcohol concentration of .08 grams or greater as shown by a
chemical test given within two hours after the alleged operation or physical control; or
(ii) is under the influence of alcohol, any drug, or the combined influence of alcohol and
any drug to a degree that renders the person incapable of safely operating a vehicle.
(b) The fact that a person charged with violating this section is or has been legally entitled
to use alcohol or a drug is not a defense against any charge of violating this section.
(2) Alcohol concentration in the blood shall be based upon grams of alcohol per 100
milliliters of blood, and alcohol concentration in the breath shall be based upon grams of alcohol
per 210 liters of breath.
(3) (a) A person convicted the first or second time of a violation of Subsection (1) is guilty
of a:
(i) class B misdemeanor; or
(ii) class A misdemeanor if the person:
(A) has also inflicted bodily injury upon another as a proximate result of having operated
the vehicle in a negligent manner; or
(B) had a passenger under 16 years of age in the vehicle at the time of the offense.
(b) In this section, the standard of negligence is that of simple negligence, the failure to
exercise that degree of care that an ordinarily reasonable and prudent person exercises under like or
similar circumstances.
(c) In this section, a reference to this section includes any similar local ordinance adopted
in compliance with Section 41-6-43
.
(4) (a) As part of any sentence imposed the court shall, upon a first conviction, impose a
mandatory jail sentence of not less than 48 consecutive hours nor more than 240 hours.
(b) The court may, as an alternative to jail, require the person to work in a
community-service work program for not less than 24 hours nor more than 50 hours.
(c) (i) In addition to the jail sentence or community-service work program, the court shall
order the person to participate in an assessment and educational series at a licensed alcohol or drug
dependency rehabilitation facility, as appropriate.
(ii) For a violation committed after July 1, 1993, the court may order the person to obtain
treatment at an alcohol or drug dependency rehabilitation facility if the licensed alcohol or drug
dependency rehabilitation facility determines that the person has a problem condition involving
alcohol or drugs.
(5) (a) Upon a second conviction for a violation committed within six years of a prior
violation under this section the court shall as part of any sentence impose a mandatory jail sentence
of not less than 240 consecutive hours nor more than 720 hours.
(b) The court may, as an alternative to jail, require the person to work in a
community-service work program for not less than 80 hours nor more than 240 hours.
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(c) In addition to the jail sentence or community-service work program, the court shall order
the person to participate in an assessment and educational series at a licensed alcohol or drug
dependency rehabilitation facility, as appropriate. The court may, in its discretion, order the person
to obtain treatment at an alcohol or drug dependency rehabilitation facility.
(6) (a) A third or subsequent conviction for a violation committed within six years of two
or more prior violations under this section is a:
(i) class [B] A misdemeanor except as provided in [Subsections] Subsection (ii) [and (7)];
and
[(ii) class A misdemeanor if both of the prior convictions are for violations committed after
April 23, 1990.]
[(b) (i) Under Subsection (a)(i) the court shall as part of any sentence impose a mandatory
jail sentence of not less than 720 nor more than 2,160 hours.]
[(ii) The court may, as an alternative to jail, require the person to work in a
community-service work program for not less than 240 nor more than 720 hours.]
[(iii) In addition to the jail sentence or community-service work program, the court shall
order the person to obtain treatment at an alcohol or drug dependency rehabilitation facility, as
appropriate.]
(ii) third degree felony if at least:
(A) three prior convictions are for violations committed after April 23, 1990; or
(B) two prior convictions are for violations committed after July 1, 1996.
[(c)] (b) (i) Under Subsection (a)[(ii)] (i) the court shall as part of any sentence impose a fine
of not less than $1,000 and impose a mandatory jail sentence of not less than 720 hours nor more
than 2,160 hours.
(ii) The court may, as an alternative to jail, require the person to work in a
community-service work program for not less than 240 nor more than 720 hours, but only if the
court enters in writing on the record the reason it finds the defendant should not serve the jail
sentence. Enrollment in and completion of an alcohol or drug dependency rehabilitation program
approved by the court may be a sentencing alternative to incarceration or community service if the
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program provides intensive care or inpatient treatment and long-term closely supervised
follow-through after the treatment.
(iii) In addition to the jail sentence or community-service work program, the court shall
order the person to obtain treatment at an alcohol or drug dependency rehabilitation facility.
[(7) (a) A fourth or subsequent conviction for a violation committed within six years of the
prior violations under this section is a third degree felony if at least three two prior convictions are
for violations committed after April 23, 1990.]
[(b) The court shall as part of any sentence impose a fine of not less than $1,000 and impose
a mandatory jail sentence of not less than 720 hours nor more than 2,160 hours.]
[(c) (i) The court may, as an alternative to jail, require the person to work in a
community-service work program for not less than 240 nor more than 720 hours, but only if the
court enters in writing on the record the reason it finds the defendant should not serve the jail
sentence.]
[(ii) Enrollment in and completion of an alcohol or drug dependency rehabilitation program
approved by the court may be a sentencing alternative to incarceration or community service if the
program provides intensive care or inpatient treatment and long-term closely supervised follow
through after the treatment.]
[(d) In addition to the jail sentence or community-service work program, the court shall
order the person to obtain treatment at an alcohol or drug dependency rehabilitation facility.]
(c) Under Subsection (a)(ii) if the court suspends the execution of a prison sentence and
places the defendant on probation the court shall impose:
(i) a fine of not less than $1,500;
(ii) a mandatory jail sentence of not less than 1,000 hours; and
(iii) an order requiring the person to obtain treatment at an alcohol or drug dependency
rehabilitation program providing intensive care or inpatient treatment and long-term closely
supervised follow-through after treatment.
[(8)] (7) (a) The mandatory portion of any sentence required under this section may not be
suspended and the convicted person is not eligible for parole or probation until any sentence imposed
- 4 -
under this section has been served. Probation or parole resulting from a conviction for a violation
under this section may not be terminated.
(b) The department may not reinstate any license suspended or revoked as a result of the
conviction under this section, until the convicted person has furnished evidence satisfactory to the
department that:
(i) all required alcohol or drug dependency assessment, education, treatment, and
rehabilitation ordered for a violation committed after July 1, 1993, have been completed;
(ii) all fines and fees including fees for restitution and rehabilitation costs assessed against
the person have been paid, if the conviction is a second or subsequent conviction for a violation
committed within six years of a prior violation; and
(iii) the person does not use drugs in any abusive or illegal manner as certified by a licensed
alcohol or drug dependency rehabilitation facility, if the conviction is for a third or subsequent
conviction for a violation committed within six years of two prior violations committed after July
1, 1993.
[(9)] (8) (a) (i) The provisions in Subsections (4), (5), and (6)[, and (7)] that require a
sentencing court to order a convicted person to: participate in an assessment and educational series
at a licensed alcohol or drug dependency rehabilitation facility; obtain, in the discretion of the court,
treatment at an alcohol or drug dependency rehabilitation facility; obtain, mandatorily, treatment at
an alcohol or drug dependency rehabilitation facility; or do any combination of those things, apply
to a conviction for a violation of Section 41-6-45
that qualifies as a prior conviction under
Subsection [(10)] (9).
(ii) The court shall render the same order regarding education or treatment at an alcohol or
drug dependency rehabilitation facility, or both, in connection with a first, second, or subsequent
conviction under Section 41-6-45
that qualifies as a prior conviction under Subsection [(10)] (9), as
the court would render in connection with applying respectively, the first, second, or subsequent
conviction requirements of Subsections (4), (5), and (6)[, and (7)].
(b) For purposes of determining whether a conviction under Section 41-6-45
that qualified
as a prior conviction under Subsection [(10),] (9) is a first, second, or subsequent conviction under
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this subsection, a previous conviction under either this section or Section 41-6-45
is considered a
prior conviction.
(c) Any alcohol or drug dependency rehabilitation program and any community-based or
other education program provided for in this section shall be approved by the Department of Human
Services.
[(10)] (9) (a) (i) When the prosecution agrees to a plea of guilty or no contest to a charge of
a violation of Section 41-6-45
or of an ordinance enacted under Section 41-6-43
in satisfaction of,
or as a substitute for, an original charge of a violation of this section, the prosecution shall state for
the record a factual basis for the plea, including whether or not there had been consumption of
alcohol, drugs, or a combination of both, by the defendant in connection with the violation.
(ii) The statement is an offer of proof of the facts that shows whether there was consumption
of alcohol, drugs, or a combination of both, by the defendant, in connection with the violation.
(b) (i) The court shall advise the defendant before accepting the plea offered under this
subsection of the consequences of a violation of Section 41-6-45
as follows.
(ii) If the court accepts the defendant's plea of guilty or no contest to a charge of violating
Section 41-6-45
, and the prosecutor states for the record that there was consumption of alcohol,
drugs, or a combination of both, by the defendant in connection with the violation, the resulting
conviction is a prior conviction for the purposes of Subsections (5)[,] and (6)[, and (7)].
(c) The court shall notify the department of each conviction of Section 41-6-45
that is a prior
offense for the purposes of Subsections (5)[,] and (6)[, and (7)].
[(11)] (10) A peace officer may, without a warrant, arrest a person for a violation of this
section when the officer has probable cause to believe the violation has occurred, although not in his
presence, and if the officer has probable cause to believe that the violation was committed by the
person.
[(12)] (11) (a) The Department of Public Safety shall:
(i) suspend for 90 days the operator's license of a person convicted for the first time under
Subsection (1); and
(ii) revoke for one year the license of a person convicted of any subsequent offense under
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Subsection (1) if the violation is committed within a period of six years from the date of the prior
violation.
(b) The department shall subtract from any suspension or revocation period the number of
days for which a license was previously suspended under Section 53-3-223
, if the previous
suspension was based on the same occurrence upon which the record of conviction is based.
Section 2. Effective date.
This act takes effect on July 1, 1996.
Section 3. Coordination clause.
If this bill and S.B. 4, DUI Amendments, both pass, it is the intent of the Legislature that the
amendments in Subsection
41-6-44
(6) in this bill supersede the amendments to Subsections
41-6-44
(6) and (7) in S.B. 4.
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