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H.B. 128
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DRIVING UNDER THE INFLUENCE
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REVISIONS
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Gerry A. Adair
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AN ACT RELATING TO MOTOR VEHICLES; AMENDING THE DRIVER LICENSE
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REVOCATION PERIOD FOR A PERSON WHO REFUSES TO SUBMIT TO A CHEMICAL
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TEST FOR DRIVING UNDER THE INFLUENCE.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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41-6-44.10, as last amended by Chapter 226, Laws of Utah 1999
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
41-6-44.10
is amended to read:
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41-6-44.10. Implied consent to chemical tests for alcohol or drug -- Number of tests
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-- Refusal -- Warning, report -- Hearing, revocation of license -- Appeal -- Person incapable
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of refusal -- Results of test available -- Who may give test -- Evidence.
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(1) (a) A person operating a motor vehicle in this state is considered to have given his
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consent to a chemical test or tests of his breath, blood, or urine for the purpose of determining
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whether he was operating or in actual physical control of a motor vehicle while having a blood or
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breath alcohol content statutorily prohibited under Section
41-6-44
,
53-3-231
, or
53-3-232
, while
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under the influence of alcohol, any drug, or combination of alcohol and any drug under Section
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41-6-44
, or while having any measurable controlled substance or metabolite of a controlled
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substance in the person's body in violation of Section
41-6-44.6
, if the test is or tests are
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administered at the direction of a peace officer having grounds to believe that person to have been
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operating or in actual physical control of a motor vehicle while having a blood or breath alcohol
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content statutorily prohibited under Section
41-6-44
,
53-3-231
, or
53-3-232
, or while under the
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influence of alcohol, any drug, or combination of alcohol and any drug under Section
41-6-44
, or
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while having any measurable controlled substance or metabolite of a controlled substance in the
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person's body in violation of Section
41-6-44.6
.
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(b) (i) The peace officer determines which of the tests are administered and how many of
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them are administered.
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(ii) If an officer requests more than one test, refusal by a person to take one or more
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requested tests, even though he does submit to any other requested test or tests, is a refusal under
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this section.
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(c) (i) A person who has been requested under this section to submit to a chemical test or
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tests of his breath, blood, or urine, may not select the test or tests to be administered.
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(ii) The failure or inability of a peace officer to arrange for any specific chemical test is
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not a defense to taking a test requested by a peace officer, and it is not a defense in any criminal,
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civil, or administrative proceeding resulting from a person's refusal to submit to the requested test
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or tests.
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(2) (a) If the person has been placed under arrest, has then been requested by a peace
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officer to submit to any one or more of the chemical tests under Subsection (1), and refuses to
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submit to any chemical test requested, the person shall be warned by the peace officer requesting
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the test or tests that a refusal to submit to the test or tests can result in revocation of the person's
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license to operate a motor vehicle.
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(b) Following the warning under Subsection (2)(a), if the person does not immediately
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request that the chemical test or tests as offered by a peace officer be administered a peace officer
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shall serve on the person, on behalf of the Driver License Division, immediate notice of the Driver
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License Division's intention to revoke the person's privilege or license to operate a motor vehicle.
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When the officer serves the immediate notice on behalf of the Driver License Division, he shall:
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(i) take the Utah license certificate or permit, if any, of the operator;
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(ii) issue a temporary license effective for only 29 days; and
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(iii) supply to the operator, on a form approved by the Driver License Division, basic
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information regarding how to obtain a hearing before the Driver License Division.
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(c) A citation issued by a peace officer may, if approved as to form by the Driver License
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Division, serve also as the temporary license.
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(d) As a matter of procedure, the peace officer shall submit a signed report, within ten days
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after the date of the arrest, that he had grounds to believe the arrested person had been operating
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or was in actual physical control of a motor vehicle while having a blood or breath alcohol content
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statutorily prohibited under Section
41-6-44
,
53-3-231
, or
53-3-232
, or while under the influence
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of alcohol, any drug, or combination of alcohol and any drug under Section
41-6-44
, or while
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having any measurable controlled substance or metabolite of a controlled substance in the person's
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body in violation of Section
41-6-44.6
, and that the person had refused to submit to a chemical test
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or tests under Subsection (1).
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(e) (i) A person who has been notified of the Driver License Division's intention to revoke
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his license under this section is entitled to a hearing.
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(ii) A request for the hearing shall be made in writing within ten days after the date of the
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arrest.
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(iii) Upon written request, the division shall grant to the person an opportunity to be heard
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within 29 days after the date of arrest.
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(iv) If the person does not make a timely written request for a hearing before the division,
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his privilege to operate a motor vehicle in the state is revoked beginning on the 30th day after the
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date of arrest for a period of:
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(A) [one year] 18 months unless Subsection (2)(e)(iv)(B) applies; or
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(B) [18] 24 months if the person has had a previous license sanction after July 1, 1993,
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under this section, Section
41-6-44.6
,
53-3-223
,
53-3-231
,
53-3-232
, or a conviction after July 1,
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1993, under Section
41-6-44
.
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(f) If a hearing is requested by the person, the hearing shall be conducted by the Driver
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License Division in the county in which the offense occurred, unless the division and the person
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both agree that the hearing may be held in some other county.
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(g) The hearing shall be documented and shall cover the issues of:
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(i) whether a peace officer had reasonable grounds to believe that a person was operating
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a motor vehicle in violation of Section
41-6-44
,
41-6-44.6
, or
53-3-231
; and
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(ii) whether the person refused to submit to the test.
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(h) (i) In connection with the hearing, the division or its authorized agent:
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(A) may administer oaths and may issue subpoenas for the attendance of witnesses and the
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production of relevant books and papers; and
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(B) shall issue subpoenas for the attendance of necessary peace officers.
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(ii) The division shall pay witness fees and mileage from the Transportation Fund in
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accordance with the rates established in Section
21-5-4
.
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(i) If after a hearing, the Driver License Division determines that the person was requested
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to submit to a chemical test or tests and refused to submit to the test or tests, or if the person fails
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to appear before the Driver License Division as required in the notice, the Driver License Division
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shall revoke his license or permit to operate a motor vehicle in Utah beginning on the date the
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hearing is held for a period of:
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(i) (A) [one year] 18 months unless Subsection (2)(i)(i)(B) applies; or
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(B) [18] 24 months if the person has had a previous license sanction after July 1, 1993,
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under this section, Section
41-6-44.6
,
53-3-223
,
53-3-231
,
53-3-232
, or a conviction after July 1,
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1993, under Section
41-6-44
.
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(ii) The Driver License Division shall also assess against the person, in addition to any fee
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imposed under Subsection
53-3-205
(14), a fee under Section
53-3-105
, which shall be paid before
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the person's driving privilege is reinstated, to cover administrative costs.
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(iii) The fee shall be cancelled if the person obtains an unappealed court decision
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following a proceeding allowed under this Subsection (2) that the revocation was improper.
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(j) (i) Any person whose license has been revoked by the Driver License Division under
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this section may seek judicial review.
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(ii) Judicial review of an informal adjudicative proceeding is a trial. Venue is in the
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district court in the county in which the offense occurred.
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(3) Any person who is dead, unconscious, or in any other condition rendering him
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incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the
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consent provided for in Subsection (1), and the test or tests may be administered whether the
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person has been arrested or not.
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(4) Upon the request of the person who was tested, the results of the test or tests shall be
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made available to him.
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(5) (a) Only a physician, registered nurse, practical nurse, or person authorized under
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Section
26-1-30
, acting at the request of a peace officer, may withdraw blood to determine the
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alcoholic or drug content. This limitation does not apply to taking a urine or breath specimen.
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(b) Any physician, registered nurse, practical nurse, or person authorized under Section
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26-1-30
who, at the direction of a peace officer, draws a sample of blood from any person whom
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a peace officer has reason to believe is driving in violation of this chapter, or hospital or medical
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facility at which the sample is drawn, is immune from any civil or criminal liability arising from
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drawing the sample, if the test is administered according to standard medical practice.
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(6) (a) The person to be tested may, at his own expense, have a physician of his own
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choice administer a chemical test in addition to the test or tests administered at the direction of a
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peace officer.
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(b) The failure or inability to obtain the additional test does not affect admissibility of the
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results of the test or tests taken at the direction of a peace officer, or preclude or delay the test or
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tests to be taken at the direction of a peace officer.
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(c) The additional test shall be subsequent to the test or tests administered at the direction
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of a peace officer.
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(7) For the purpose of determining whether to submit to a chemical test or tests, the person
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to be tested does not have the right to consult an attorney or have an attorney, physician, or other
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person present as a condition for the taking of any test.
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(8) If a person under arrest refuses to submit to a chemical test or tests or any additional
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test under this section, evidence of any refusal is admissible in any civil or criminal action or
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proceeding arising out of acts alleged to have been committed while the person was operating or
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in actual physical control of a motor vehicle while under the influence of alcohol, any drug,
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combination of alcohol and any drug, or while having any measurable controlled substance or
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metabolite of a controlled substance in the person's body.
Legislative Review Note
as of 2-3-00 3:07 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.