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H.B. 196
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DUI - PROBATION AMENDMENTS
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2001 GENERAL SESSION
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STATE OF UTAH
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Sponsor: A. Lamont Tyler
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This act modifies the Motor Vehicle Code to require court ordered supervised probation for
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certain offenders.
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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, as last amended by Chapters 333 and 334, Laws of Utah 2000
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41-6-44.6, as last amended by Chapter 334, Laws of Utah 2000
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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
is amended to read:
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41-6-44. Driving under the influence of alcohol, drugs, or with specified or unsafe
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blood alcohol concentration -- Measurement of blood or breath alcohol -- Criminal
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punishment -- Arrest without warrant -- Penalties -- Suspension or revocation of license.
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(1) As used in this section:
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(a) "educational series" means an educational series obtained at a substance abuse program
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that is approved by the Board of Substance Abuse in accordance with Section
62A-8-107
;
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(b) "prior conviction" means any conviction for a violation of:
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(i) this section;
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(ii) alcohol-related reckless driving under Subsections (9) and (10);
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(iii) local ordinances similar to this section or alcohol-related reckless driving adopted in
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compliance with Section
41-6-43
;
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(iv) automobile homicide under Section
76-5-207
; or
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(v) statutes or ordinances in effect in any other state, the United States, or any district,
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possession, or territory of the United States which would constitute a violation of this section or
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alcohol-related reckless driving if committed in this state, including punishments administered
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under 10 U.S.C. Sec. 815;
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(c) "screening and assessment" means a substance abuse addiction and dependency
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screening and assessment obtained at a substance abuse program that is approved by the Board of
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Substance Abuse in accordance with Section
62A-8-107
;
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(d) "serious bodily injury" means bodily injury that creates or causes serious permanent
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disfigurement, protracted loss or impairment of the function of any bodily member or organ, or
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creates a substantial risk of death;
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(e) "substance abuse treatment" means treatment obtained at a substance abuse program
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that is approved by the Board of Substance Abuse in accordance with Section
62A-8-107
;
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(f) "substance abuse treatment program" means a state licensed substance abuse program;
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(g) a violation of this section includes a violation under a local ordinance similar to this
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section adopted in compliance with Section
41-6-43
; and
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(h) the standard of negligence is that of simple negligence, the failure to exercise that
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degree of care that an ordinarily reasonable and prudent person exercises under like or similar
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circumstances.
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(2) (a) A person may not operate or be in actual physical control of a vehicle within this
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state if the person:
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(i) has sufficient alcohol in his body that a chemical test given within two hours of the
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alleged operation or physical control shows that the person has a blood or breath alcohol
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concentration of .08 grams or greater; or
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(ii) is under the influence of alcohol, any drug, or the combined influence of alcohol and
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any drug to a degree that renders the person incapable of safely operating a vehicle.
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(b) The fact that a person charged with violating this section is or has been legally entitled
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to use alcohol or a drug is not a defense against any charge of violating this section.
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(c) Alcohol concentration in the blood shall be based upon grams of alcohol per 100
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milliliters of blood, and alcohol concentration in the breath shall be based upon grams of alcohol
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per 210 liters of breath.
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(3) (a) A person convicted the first or second time of a violation of Subsection (2) is guilty
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of a:
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(i) class B misdemeanor; or
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(ii) class A misdemeanor if the person:
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(A) has also inflicted bodily injury upon another as a proximate result of having operated
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the vehicle in a negligent manner; or
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(B) had a passenger under 16 years of age in the vehicle at the time of the offense.
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(b) A person convicted of a violation of Subsection (2) is guilty of a third degree felony
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if the person has also inflicted serious bodily injury upon another as a proximate result of having
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operated the vehicle in a negligent manner.
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(4) (a) As part of any sentence imposed the court shall, upon a first conviction, impose a
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mandatory jail sentence of not less than 48 consecutive hours.
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(b) The court may, as an alternative to all or part of a jail sentence, require the person to:
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(i) work in a compensatory-service work program for not less than 24 hours; or
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(ii) participate in home confinement through the use of electronic monitoring in
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accordance with Subsection (13).
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(c) In addition to the jail sentence, compensatory-service work program, or home
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confinement, the court shall:
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(i) order the person to participate in a screening and assessment;
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(ii) order the person to participate in an educational series if the court does not order
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substance abuse treatment as described under Subsection (4)(d); and
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(iii) impose a fine of not less than $700.
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(d) The court may order the person to obtain substance abuse treatment if the substance
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abuse treatment program determines that substance abuse treatment is appropriate.
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(e) [The] (i) Except as provided in Subsection (4)(e)(ii), the court may order probation for
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the person in accordance with Subsection (14).
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(ii) If there is admissible evidence that the person had a blood alcohol level of .16 or
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higher, the court shall order probation for the person in accordance with Subsection (14).
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(5) (a) If a person is convicted under Subsection (2) within six years of a prior conviction
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under this section, the court shall as part of any sentence impose a mandatory jail sentence of not
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less than 240 consecutive hours.
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(b) The court may, as an alternative to all or part of a jail sentence, require the person to:
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(i) work in a compensatory-service work program for not less than 240 hours; or
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(ii) participate in home confinement through the use of electronic monitoring in
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accordance with Subsection (13).
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(c) In addition to the jail sentence, compensatory-service work program, or home
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confinement, the court shall:
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(i) order the person to participate in a screening and assessment;
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(ii) order the person to participate in an educational series if the court does not order
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substance abuse treatment as described under Subsection (5)(d); and
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(iii) impose a fine of not less than $800.
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(d) The court may order the person to obtain substance abuse treatment if the substance
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abuse treatment program determines that substance abuse treatment is appropriate.
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(e) The court [may] shall order probation for the person in accordance with Subsection
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(14).
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(6) (a) A third or subsequent conviction for a violation committed within six years of two
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or more prior convictions under this section is a third degree felony.
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(b) Under Subsection (3)(b) or (6)(a), if the court suspends the execution of a prison
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sentence and places the defendant on probation the court shall impose:
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(i) a fine of not less than $1,500; and
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(ii) a mandatory jail sentence of not less than 1,500 hours.
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(c) For Subsection (6)(a) or (b), the court shall impose an order requiring the person to
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obtain a screening and assessment and substance abuse treatment at a substance abuse treatment
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program providing intensive care or inpatient treatment and long-term closely supervised
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follow-through after treatment for not less than 240 hours.
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(d) In addition to the penalties required under Subsection (6)(b), the court may require the
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person to participate in home confinement through the use of electronic monitoring in accordance
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with Subsection (13).
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(7) The mandatory portion of any sentence required under this section may not be
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suspended and the convicted person is not eligible for parole or probation until any sentence
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imposed under this section has been served. Probation or parole resulting from a conviction for
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a violation under this section may not be terminated.
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(8) (a) (i) The provisions in Subsections (4), (5), and (6) that require a sentencing court to
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order a convicted person to: participate in a screening and assessment; and an educational series;
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obtain, in the discretion of the court, substance abuse treatment; obtain, mandatorily, substance
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abuse treatment; or do a combination of those things, apply to a conviction for a violation of
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Section
41-6-44.6
or
41-6-45
under Subsection (9).
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(ii) The court shall render the same order regarding screening and assessment, an
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educational series, or substance abuse treatment in connection with a first, second, or subsequent
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conviction under Section
41-6-44.6
or
41-6-45
under Subsection (9), as the court would render in
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connection with applying respectively, the first, second, or subsequent conviction requirements of
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Subsections (4), (5), and (6).
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(b) If a person fails to complete all court ordered screening and assessment, educational
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series, and substance abuse treatment, or fails to pay all fines and fees, including fees for restitution
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and treatment costs, the court shall notify the Driver License Division of a failure to comply. Upon
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receiving the notification, the division shall suspend the person's driving privilege in accordance
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with Subsections
53-3-221
(2) and (3).
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(9) (a) (i) When the prosecution agrees to a plea of guilty or no contest to a charge of a
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violation of Section
41-6-45
, of an ordinance enacted under Section
41-6-43
, or of Section
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41-6-44.6
in satisfaction of, or as a substitute for, an original charge of a violation of this section,
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the prosecution shall state for the record a factual basis for the plea, including whether or not there
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had been consumption of alcohol, drugs, or a combination of both, by the defendant in connection
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with the violation.
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(ii) The statement is an offer of proof of the facts that shows whether there was
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consumption of alcohol, drugs, or a combination of both, by the defendant, in connection with the
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violation.
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(b) The court shall advise the defendant before accepting the plea offered under this
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Subsection (9)(b) of the consequences of a violation of Section
41-6-44.6
or of Section
41-6-45
.
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(c) The court shall notify the Driver License Division of each conviction of Section
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41-6-44.6
or
41-6-45
entered under this Subsection (9).
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(10) A peace officer may, without a warrant, arrest a person for a violation of this section
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when the officer has probable cause to believe the violation has occurred, although not in his
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presence, and if the officer has probable cause to believe that the violation was committed by the
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person.
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(11) (a) The Driver License Division shall:
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(i) suspend for 90 days the operator's license of a person convicted for the first time under
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Subsection (2);
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(ii) revoke for one year the license of a person convicted of any subsequent offense under
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Subsection (2) if the violation is committed within a period of six years from the date of the prior
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violation; and
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(iii) suspend or revoke the license of a person as ordered by the court under Subsection
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(12).
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(b) The Driver License Division shall subtract from any suspension or revocation period
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the number of days for which a license was previously suspended under Section
53-3-223
or
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53-3-231
, if the previous suspension was based on the same occurrence upon which the record of
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conviction is based.
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(12) (a) In addition to any other penalties provided in this section, a court may order the
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operator's license of a person who is convicted of a violation of Subsection (2) to be suspended
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or revoked for an additional period of 90 days, 180 days, or one year to remove from the highways
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those persons who have shown they are safety hazards.
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(b) If the court suspends or revokes the person's license under this Subsection (12)(b), the
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court shall prepare and send to the Driver License Division an order to suspend or revoke that
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person's driving privileges for a specified period of time.
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(13) (a) If the court orders a person to participate in home confinement through the use of
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electronic monitoring, the electronic monitoring shall alert the appropriate corrections, probation
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monitoring agency, law enforcement units, or contract provider of the defendant's whereabouts.
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(b) The electronic monitoring device shall be used under conditions which require:
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(i) the person to wear an electronic monitoring device at all times;
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(ii) that a device be placed in the home or other specified location of the person, so that
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the person's compliance with the court's order may be monitored; and
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(iii) the person to pay the costs of the electronic monitoring.
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(c) The court shall order the appropriate entity described in Subsection (13)(e) to place an
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electronic monitoring device on the person and install electronic monitoring equipment in the
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residence of the person or other specified location.
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(d) The court may:
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(i) require the person's electronic home monitoring device to include a substance abuse
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testing instrument;
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(ii) restrict the amount of alcohol the person may consume during the time the person is
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subject to home confinement;
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(iii) set specific time and location conditions that allow the person to attend school
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educational classes, or employment and to travel directly between those activities and the person's
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home; and
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(iv) waive all or part of the costs associated with home confinement if the person is
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determined to be indigent by the court.
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(e) The electronic monitoring described in this section may either be administered directly
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by the appropriate corrections agency, probation monitoring agency, or by contract with a private
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provider.
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(f) The electronic monitoring provider shall cover the costs of waivers by the court under
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Subsection (13)(c)(iv).
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(14) (a) If supervised probation is ordered under Section
41-6-44.6
or Subsection (4)(e)
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or (5)(e):
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(i) the court shall specify the period of the probation;
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(ii) the person shall pay all of the costs of the probation; and
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(iii) the court may order any other conditions of the probation.
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(b) The court shall provide the probation described in this section by contract with a
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probation monitoring agency or a private probation provider.
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(c) The probation provider described in Subsection (b) shall monitor the person's
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compliance with all conditions of the person's sentence, conditions of probation, and court orders
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received under this article and shall notify the court of any failure to comply with or complete that
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sentence or those conditions or orders.
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(d) (i) The court may waive all or part of the costs associated with probation if the person
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is determined to be indigent by the court.
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(ii) The probation provider described in Subsection (14)(b) shall cover the costs of waivers
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by the court under Subsection (14)(d)(i).
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(15) If a person is convicted of a violation of Subsection (2) and there is admissible
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evidence that the person had a blood alcohol level of .16 or higher, then if the court does not order:
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(a) treatment as described under Subsection (4)(d), (5)(d), or (6)(b)(iii), then the court shall
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enter the reasons on the record; and
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(b) the following penalties, the court shall enter the reasons on the record:
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(i) the installation of an ignition interlock system as a condition of probation for the person
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in accordance with Section
41-6-44.7
; or
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(ii) the imposition of home confinement through the use of electronic monitoring in
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accordance with Subsection (13).
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Section 2.
Section
41-6-44.6
is amended to read:
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41-6-44.6. Definitions -- Driving with any measurable controlled substance in the
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body -- Penalties -- Arrest without warrant.
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(1) As used in this section:
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(a) "Controlled substance" means any substance scheduled under Section
58-37-4
.
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(b) "Practitioner" has the same meaning as provided in Section
58-37-2
.
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(c) "Prescribe" has the same meaning as provided in Section
58-37-2
.
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(d) "Prescription" has the same meaning as provided in Section
58-37-2
.
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(2) In cases not amounting to a violation of Section
41-6-44
, a person may not operate or
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be in actual physical control of a motor vehicle within this state if the person has any measurable
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controlled substance or metabolite of a controlled substance in the person's body.
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(3) It is an affirmative defense to prosecution under this section that the controlled
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substance was involuntarily ingested by the accused or prescribed by a practitioner for use by the
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accused.
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(4) A person convicted of a violation of Subsection (2) is guilty of a class B misdemeanor.
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(5) A peace officer may, without a warrant, arrest a person for a violation of this section
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when the officer has probable cause to believe the violation has occurred, although not in the
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officer's presence, and if the officer has probable cause to believe that the violation was committed
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by the person.
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(6) The Driver License Division shall:
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(a) suspend, for 90 days, the driver license of a person convicted under Subsection (2);
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(b) revoke, for one year, the driver license of a person convicted of a second or subsequent
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offense under Subsection (2) if the violation is committed within a period of six years after the date
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of the prior violation; and
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(c) subtract from any suspension or revocation period the number of days for which a
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license was previously suspended under Section
53-3-223
or
53-3-231
, if the previous suspension
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was based on the same occurrence upon which the record of conviction is based.
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(7) If a person fails to complete all court ordered screening and assessment, educational
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series, and substance abuse treatment, or fails to pay all fines and fees, including fees for restitution
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and treatment costs, the court shall notify the Driver License Division of a failure to comply. Upon
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receiving the notification, the division shall suspend the person's driving privilege in accordance
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with Subsections
53-3-221
(2) and (3).
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(8) The court shall order supervised probation in accordance with Subsection
41-6-44
(14)
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for a person convicted under Subsection (2).
Legislative Review Note
as of 11-22-00 9:22 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.