Bill Text: AZ SB1027 | 2011 | Fiftieth Legislature 1st Regular | Engrossed
Bill Title: Continuous alcohol monitoring program
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2011-03-14 - Referred to House COM Committee [SB1027 Detail]
Download: Arizona-2011-SB1027-Engrossed.html
|
Senate Engrossed |
|
State of Arizona Senate Fiftieth Legislature First Regular Session 2011
|
|
SENATE BILL 1027 |
|
|
|
|
AN ACT
amending sections 5-395.01 and 9-499.07; amending title 11, chapter 2, article 4, Arizona Revised Statutes, by adding section 11‑251.14; amending sections 11-459, 28-1381, 28‑3511 and 31-233, Arizona Revised Statutes; relating to driving under the influence.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 5-395.01, Arizona Revised Statutes, is amended to read:
5-395.01. Operating or in actual physical control of a motorized watercraft while under the influence; classification; penalties
A. A person who is convicted of a violation of section 5‑395 is guilty of a class 1 misdemeanor. The person:
1. Shall be sentenced to serve not less than ten consecutive days in jail and is not eligible for probation or suspension of execution of sentence unless the entire sentence is served.
2. Shall pay a fine of not less than two hundred fifty dollars.
3. May be ordered by a court to perform community restitution.
4. Shall pay an additional assessment of five hundred dollars to be deposited by the state treasurer in the prison construction and operations fund established by section 41‑1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
5. Shall pay an additional assessment of five hundred dollars to be deposited by the state treasurer in the public safety equipment fund established by section 41‑1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
B. In addition to any other penalties under this section, the judge shall order the person to complete alcohol or other drug screening that is provided by a facility approved by the department of health services or a probation department. If a judge determines that the person requires further alcohol or other drug education or treatment, the person may be required pursuant to court order to obtain alcohol or other drug education or treatment under the court's supervision from an approved facility. The judge may review an education or treatment determination at the request of the state or the defendant or on the judge's own initiative. The person shall pay the costs of the screening, education or treatment unless the court waives part or all of the costs. If a person is referred to a screening, education or treatment facility, the facility shall report to the court whether the person has successfully completed the screening, education or treatment program.
C. Notwithstanding subsection A, paragraph 1 of this section and except as provided in section 5‑398.01, the judge may either:
1. Suspend any imposed sentence for a first violation of section 5‑395 if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause to the defendant as to why the remaining jail sentence should not be served.
2. Suspend all but twenty-four consecutive hours of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program and if the court determines the person recklessly endangered another person with a substantial risk of physical injury. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause to the defendant as to why the remaining jail sentence should not be served.
D. If within a period of eighty-four months a person is convicted of a second violation of section 5‑395 or is convicted of a violation of section 5‑395 and has previously been convicted of an act in another jurisdiction that if committed in this state would be a violation of section 5‑395, the person:
1. Shall be sentenced to serve not less than ninety days in jail, thirty days of which shall be served consecutively, and is not eligible for probation or suspension of execution of sentence unless the entire sentence has been served.
2. Shall pay a fine of not less than five hundred dollars.
3. Shall be ordered by the court to perform at least thirty hours of community restitution. If the person fails to complete the community restitution ordered pursuant to this paragraph, the court may order alternative sanctions if the court determines that alternative sanctions are more appropriate.
4. Shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
5. Shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the public safety equipment fund established by section 41‑1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
E. Notwithstanding subsection D, paragraph 1 of this section, at the time of sentencing, except if the court determines the person recklessly endangered another person with a substantial risk of physical injury, the judge may suspend all but thirty days of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause as to why the remaining jail sentence should not be served.
F. In applying the eighty-four month provision of subsection D of this section, the dates of the commission of the offense shall be the determining factor irrespective of the sequence in which the offenses were committed.
G. A second violation for which a conviction occurs as provided in this section shall not include a conviction for an offense arising out of the same series of acts.
H. Any political subdivision processing or utilizing the services of a person ordered to perform community restitution pursuant to this section does not incur any civil liability to the person ordered to perform community restitution as a result of these activities unless the political subdivision or its agent or employee acts with gross negligence.
I. After a person who is sentenced pursuant to subsection A of this section has served twenty‑four consecutive hours in jail or after a person who is sentenced pursuant to subsection D of this section has served forty‑eight consecutive hours in jail and after receiving confirmation that the person is employed or is a student, the court, on pronouncement of any jail sentence under this section, may provide in the sentence that the person may be permitted, if the person is employed or is a student and can continue the person's employment or studies, to continue such employment or studies for not more than twelve hours per day nor more than five days per week, and the remaining day, days or parts of days shall be spent in jail until the sentence is served. The person shall be allowed out of jail only long enough to complete the actual hours of employment or studies and no longer.
J. A person who is sentenced pursuant to this section is eligible for a home detention program pursuant to the provisions of section 9‑499.07, subsections M through R S or section 11‑459, subsections L through Q R.
K. The court shall allow the allegation of a prior conviction or other pending charge of a violation of section 5‑395 filed twenty or more days before the date the case is actually tried and may allow the allegation of a prior conviction or other pending charge of a violation of section 5‑395 filed any time before the date the case is actually tried, provided that when the allegation is filed this state must make available to the defendant a copy of any information obtained concerning the prior conviction or other pending charge. Any conviction may be used to enhance another conviction irrespective of the dates on which the offenses occurred within the eighty‑four month provision.
L. If a person is placed on probation for violating section 5‑395, the probation shall be supervised unless the court finds that supervised probation is not necessary or the court does not have supervisory probation services.
Sec. 2. Section 9-499.07, Arizona Revised Statutes, is amended to read:
9-499.07. Prisoner work, community restitution work and home detention program; eligibility; monitoring; procedures; continuous alcohol monitoring program; home detention for persons sentenced for driving under the influence of alcohol or drugs
A. A city or town may establish a prisoner work, community restitution work and home detention program for eligible sentenced prisoners, which shall be treated the same as confinement in jail. The presiding judge of the city or town municipal court shall approve the program before its implementation.
B. A prisoner is not eligible for a prisoner work, community restitution work and home detention program or a continuous alcohol monitoring program if any of the following applies:
1. The prisoner is found by the city or town to constitute a risk to either himself or other members of the community.
2. The prisoner has a past history of violent behavior.
3. The sentencing judge states at the time of the sentence that the prisoner may not be eligible for a prisoner work, community restitution work and home detention program or a continuous alcohol monitoring program.
C. For prisoners who are selected for the a program established pursuant to subsection A of this section, the city or town may require electronic monitoring in the prisoner's home whenever the prisoner is not at the prisoner's regular place of employment or while the prisoner is assigned to a community work task. If electronic monitoring is required, the prisoner shall remain under the control of a home detention device that constantly monitors the prisoner's location in order to determine that the prisoner has not left the prisoner's premises. In all other cases, the city or town shall implement a system of monitoring using telephone contact or other appropriate methods to assure compliance with the home detention requirements. The city or town may place appropriate restrictions on prisoners in the program, including testing prisoners for consumption of alcoholic beverages or drugs or prohibiting association with individuals who are determined to be detrimental to the prisoner's successful participation in the program.
D. If a prisoner is placed on electronic monitoring pursuant to subsection C of this section, the prisoner shall pay an the electronic monitoring fee in an amount ranging from zero to full cost and thirty dollars per month while on electronic monitoring, unless, after determining the inability of the prisoner to pay these fees, the city or town assesses a lesser fee. The city or town shall use the fees collected to offset operational costs of the program.
E. Prisoners who are selected for the home detention program shall be employed within the county in which the city or town is located. The city or town shall review the place of employment to determine whether it is appropriate for a home detention prisoner. If the prisoner is terminated from employment or does not come to work, the employer shall notify the city or town. Alternatively, or in addition, a community restitution work assignment may be made by the city or town to a program recommended by the community restitution work committee. If a prisoner is incapable of performing community restitution or being employed, the city or town may exempt the prisoner from these programs.
F. The city or town may require that a prisoner who is employed during the week also participate in community restitution work programs on weekends.
G. The city or town may allow prisoners to be away from home detention for special purposes, including church attendance, medical appointments or funerals.
H. Community restitution work shall include public works projects operated and supervised by the city or town or other public agencies of this state or projects sponsored and supervised by public or private community oriented organizations and agencies.
I. A city or town implementing a program under this section established pursuant to subsection A of this section shall appoint a community restitution work committee. The committee shall recommend to the city or town appropriate community restitution work projects for home detention prisoners. Members are not eligible to receive compensation.
J. At any time the city or town may terminate a prisoner's participation in the prisoner work, community restitution work and home detention program or continuous alcohol monitoring program and require that the prisoner complete the remaining term of the prisoner's sentence in jail confinement.
K. Nothing in this section shall prohibit a city or town from entering into a joint exercise of powers agreement pursuant to section 11‑952 for a prisoner work, community restitution work and home detention program.
L. If authorized by the court, a person who is sentenced pursuant to section 28‑1381 or 28‑1382 shall not be placed under home detention in a prisoner work, community restitution work and home detention program or continuous alcohol monitoring program except as provided in subsections M through R S of this section.
M. By a majority vote of the full membership of the governing body of the municipality after a public hearing and a finding of necessity, a city or town may establish a home detention program for persons who are sentenced to jail confinement pursuant to section 28‑1381 or 28‑1382. A prisoner who is placed under the program established pursuant to this subsection shall bear the cost of all testing, monitoring and enrollment in alcohol or substance abuse programs unless, after determining the inability of the prisoner to pay the cost, the court assesses a lesser amount. The city or town shall use the collected monies to offset operational costs of the program.
N. A city or town may establish a continuous alcohol monitoring program for persons who are sentenced to jail confinement pursuant to section 28-1381 or 28-1382, which shall be treated the same as confinement in jail. A prisoner who is placed under a continuous alcohol monitoring program established pursuant to this subsection shall be monitored by global positioning system tracking and bear the cost of all testing, monitoring and enrollment in the program unless, after determining the inability of the prisoner to pay the cost, the court assesses a lesser amount. The city or town shall use the collected monies to offset operational costs of the program.
N. O. If the city or town establishes a home detention or continuous alcohol monitoring program under subsection M or N of this section, a prisoner must meet the following eligibility requirements for the program:
1. Subsection B of this section applies in determining eligibility for the program.
2. If the prisoner is sentenced under section 28‑1381, subsection I, the prisoner first serves a minimum of twenty‑four consecutive hours in jail.
3. 2. Notwithstanding section 28‑1387, subsection C, if the prisoner is sentenced under section 28‑1381, subsection K or section 28‑1382, subsection D or E, the prisoner first serves a minimum of fifteen consecutive days twenty per cent of the initial term of incarceration in jail before being placed under home detention or continuous alcohol monitoring.
4. 3. If placed under home detention, the prisoner is required to comply with all of the following provisions for the duration of the prisoner's participation in the home detention program:
(a) All of the provisions of subsections C through H of this section.
(b) Testing at least once a day for the use of alcoholic beverages or drugs by a scientific method that is not limited to urinalysis or a breath or intoxication test in the prisoner's home or at the office of a person designated by the court to conduct these tests.
(c) Participation in an alcohol or drug program, or both. These programs shall be accredited by the department of health services or a county probation department.
(d) Prohibition of association with any individual determined to be detrimental to the prisoner's successful participation in the program.
(e) All other provisions of the sentence imposed.
5. 4. Any additional eligibility criteria that the city or town may impose.
O. P. If a city or town establishes a home detention program under subsection M of this section, the court, on placing the prisoner in the program, shall require electronic monitoring in the prisoner's home and, if consecutive hours of jail time are ordered, shall require the prisoner to remain at home during the consecutive hours ordered. The detention device shall constantly monitor the prisoner's location to ensure that the prisoner does not leave the premises. Nothing in this subsection shall be deemed to waive the minimum jail confinement requirements under subsection N, paragraph 2 of this section.
P. Q. The court shall terminate a prisoner's participation in the home detention or continuous alcohol monitoring program and require the prisoner to complete the remaining term of the jail sentence by jail confinement if:
1. The prisoner fails to successfully complete a court ordered alcohol or drug screening, counseling, education and treatment program pursuant to subsection N O, paragraph 4 3, subdivision (c) of this section or section 28‑1381, subsection J or L.
2. If placed under home detention, the court finds that the prisoner left the premises without permission of the court or supervising authority during a time the prisoner is ordered to be on the premises.
Q. R. At any other time the court may terminate a prisoner's participation in the home detention or continuous alcohol monitoring program and require the prisoner to complete the remaining term of the jail sentence by jail confinement.
R. S. The governing body of the city or town may terminate the program established under subsection M of this section by a majority vote of the full membership of the governing body.
Sec. 3. Title 11, chapter 2, article 4, Arizona Revised Statutes, is amended by adding section 11-251.14, to read:
11-251.14. Prisoner home detention program; eligibility; monitoring; procedures; continuous alcohol monitoring program; home detention for persons sentenced for driving under the influence of alcohol or drugs
A. A county may establish a home detention program for eligible sentenced prisoners, which shall be treated the same as confinement in jail. The presiding justice of the peace of the county justice court shall approve the program before its implementation.
B. A prisoner is not eligible for a home detention program or a continuous alcohol monitoring program if any of the following applies:
1. The prisoner is found by the court to constitute a risk to either himself or other members of the community.
2. The prisoner has a past history of violent behavior.
3. The sentencing judge states at the time of the sentence that the prisoner may not be eligible for a home detention program or a continuous alcohol monitoring program.
C. For prisoners who are selected for a program established pursuant to subsection a of this section, the court may require electronic monitoring in the prisoner's home whenever the prisoner is not at the prisoner's regular place of employment or while the prisoner is assigned to a community work task. If electronic monitoring is required, the prisoner shall remain under the control of a home detention device that constantly monitors the prisoner's location in order to determine that the prisoner has not left the prisoner's premises. In all other cases, the court shall implement a system of monitoring using telephone contact or other appropriate methods to assure compliance with the home detention requirements. The court may place appropriate restrictions on prisoners in the program, including testing prisoners for consumption of alcoholic beverages or drugs or prohibiting association with individuals who are determined to be detrimental to the prisoner's successful participation in the program.
D. If a prisoner is placed on electronic monitoring pursuant to subsection C of this section, the prisoner shall pay the electronic monitoring fee in an amount ranging from zero to full cost and thirty dollars per month while on electronic monitoring, unless, after determining the inability of the prisoner to pay these fees, the court assesses a lesser fee. The county shall use the fees collected to offset operational costs of the program.
E. Prisoners who are selected for the home detention program shall be employed in the county in which they are incarcerated. The court shall review the place of employment to determine whether it is appropriate for a home detention prisoner. If the prisoner is terminated from employment or does not come to work, the employer shall notify the court.
F. The court may allow prisoners to be away from home detention for special purposes, including church attendance, medical appointments or funerals.
G. At any time the court may terminate a prisoner's participation in the home detention program or continuous alcohol monitoring program and require that the prisoner complete the remaining term of the prisoner's sentence in jail confinement.
H. If authorized by the court, a person who is sentenced pursuant to section 28-1381 or 28-1382 shall not be placed under home detention or a continuous alcohol monitoring program except as provided in subsections I through N of this section.
I. By a majority vote of the full membership of the board of supervisors after a public hearing and a finding of necessity, a county may establish a home detention program for persons who are sentenced to jail confinement pursuant to section 28-1381 or 28-1382. A prisoner who is placed under the program established pursuant to this subsection shall bear the cost of all testing, monitoring and enrollment in alcohol or substance abuse programs unless, after determining the inability of the prisoner to pay the cost, the court assesses a lesser amount. The county shall use the collected monies to offset operational costs of the program.
J. A county may establish a continuous alcohol monitoring program for persons who are sentenced to jail confinement pursuant to section 28-1381 or 28-1382, which shall be treated the same as confinement in jail. A prisoner who is placed under a continuous alcohol monitoring program established pursuant to this section may be monitored by global positioning system tracking and bear the cost of all testing, monitoring and enrollment in the program unless, after determining the inability of the prisoner to pay the cost, the court assesses a lesser amount. The county shall use the collected monies to offset operational costs of the program.
K. If the county establishes a home detention or continuous alcohol monitoring program under subsection I or J of this section, a prisoner must meet the following eligibility requirements for the program:
1. Subsection B of this section applies in determining eligibility for the program.
2. Notwithstanding section 28-1387, subsection C, if the prisoner is sentenced under section 28-1381, subsection K or section 28-1382, subsection D or E, the prisoner first serves a minimum of twenty per cent of the initial term of incarceration in jail before being placed under home detention or continuous alcohol monitoring.
3. If placed under home detention, the prisoner is required to comply with all of the following provisions for the duration of the prisoner's participation in the home detention program:
(a) All of the provisions of subsections C through F of this section.
(b) Testing at least once a day for the use of alcoholic beverages or drugs by a scientific method that is not limited to urinalysis or a breath or intoxication test in the prisoner's home or at the office of a person designated by the court to conduct these tests.
(c) Participation in an alcohol or drug program, or both. These programs shall be accredited by the department of health services or a county probation department.
(d) Prohibition of association with any individual determined to be detrimental to the prisoner's successful participation in the program.
(e) All other provisions of the sentence imposed.
5. Any additional eligibility criteria that the court may impose.
L. If a county establishes a home detention program under subsection I of this section, the court, on placing the prisoner in the program, shall require electronic monitoring in the prisoner's home and, if consecutive hours of jail time are ordered, shall require the prisoner to remain at home during the consecutive hours ordered. The detention device shall constantly monitor the prisoner's location to ensure that the prisoner does not leave the premises.
M. The court shall terminate a prisoner's participation in the home detention or continuous alcohol monitoring program and require the prisoner to complete the remaining term of the jail sentence by jail confinement if:
1. The prisoner fails to successfully complete a court ordered alcohol or drug screening, counseling, education and treatment program pursuant to subsection K, paragraph 3, subdivision (c) of this section or section 28‑1381, subsection J or L.
2. If placed under home detention, the court finds that the prisoner left the premises without permission of the court or supervising authority during a time the prisoner is ordered to be on the premises.
N. At any other time the court may terminate a prisoner's participation in the home detention or continuous alcohol monitoring program and require the prisoner to complete the remaining term of the jail sentence by jail confinement.
O. The county board of supervisors may terminate the program established under subsection I of this section by a majority vote of the full membership of the governing body.
Sec. 4. Section 11-459, Arizona Revised Statutes, is amended to read:
11-459. Prisoner work, community restitution work and home detention program; eligibility; monitoring; procedures; continuous alcohol monitoring program; home detention for persons sentenced for driving under the influence of alcohol or drugs; community restitution work committee; members; duties
A. The sheriff may establish a prisoner work, community restitution work and home detention program for eligible sentenced prisoners, which shall be treated the same as confinement in jail and shall fulfill the sheriff's duty to take charge of and keep the county jail and prisoners.
B. A prisoner is not eligible for a prisoner work, community restitution work and home detention program or a continuous alcohol monitoring program if any of the following applies:
1. After independent review and determination of the jail's classification program, the prisoner is found by the sheriff to constitute a risk to either himself or other members of the community.
2. The prisoner has a past history of violent behavior.
3. The prisoner has been convicted of a serious offense as defined in section 13‑706 or has been determined to be sentenced as a dangerous and offender pursuant to section 13-704 or repetitive offender pursuant to section 13-703.
4. Jail time is being served as a result of a felony conviction.
5. The sentencing judge states at the time of the sentence that the prisoner may not be eligible for a prisoner work, community restitution work and home detention program or a continuous alcohol monitoring program.
6. The prisoner is sentenced to a county jail and is being held for another jurisdiction.
C. If a prisoner is selected for the a program established pursuant to subsection A of this section, the sheriff may require electronic monitoring in the prisoner's home whenever the prisoner is not at the prisoner's regular place of employment or while the prisoner is assigned to a community work task. If electronic monitoring is required, the prisoner shall remain under the control of a home detention device that constantly monitors the prisoner's location in order to determine that the prisoner has not left the prisoner's premises. In all other cases, the sheriff shall implement a system of monitoring using visitation, telephone contact or other appropriate methods to assure compliance with the home detention requirements. The sheriff may place appropriate restrictions on prisoners in the program, including testing prisoners for consumption of alcoholic beverages or drugs or prohibiting association with individuals who are determined to be detrimental to the prisoner's successful participation in the program.
D. If a prisoner is placed on electronic monitoring pursuant to subsection C of this section, the prisoner shall pay an the electronic monitoring fee in an amount ranging from zero to full cost and thirty dollars per month while on electronic monitoring, unless, after determining the inability of the prisoner to pay these fees, the sheriff assesses a lesser fee. The sheriff shall use the fees collected to offset operational costs of the program.
E. Prisoners who are selected for the home detention program shall be employed in the county in which they are incarcerated. The sheriff shall review the place of employment to determine whether it is appropriate for a home detention prisoner. If the prisoner is terminated from employment or does not come to work, the employer shall notify the sheriff's office. Alternatively, or in addition, a community restitution work assignment may be made by the sheriff to a program recommended to the sheriff by the community restitution work committee. If a prisoner is incapable of performing community restitution or being employed, the sheriff may exempt the prisoner from these programs.
F. The sheriff may require that a prisoner who is employed during the week also participate in community restitution work programs on weekends.
G. The sheriff may allow prisoners to be away from home detention for special purposes, including church attendance, medical appointments or funerals. The standard for review and determination of such leave is the same as that implemented to decide transportation requests for similar purposes made by prisoners who are confined in the county jail.
H. Community restitution work shall include public works projects operated and supervised by public agencies of this state or counties, cities or towns on recommendation of the community restitution work committee and approval of the sheriff. The community restitution work committee may also recommend and the sheriff may approve other forms of community restitution work sponsored and supervised by public or private community oriented organizations and agencies.
I. The community restitution work committee is established in each county and is composed of two designees of the sheriff, a representative of the county attorney's office selected by the county attorney, a representative of a local police agency selected by the police chief of the largest city in the county and three persons selected by the county board of supervisors from the private sector. A sheriff's designee shall serve as committee chairman and schedule all meetings. The committee shall meet as often as necessary, but no less than once every three months, for the purpose of considering and recommending appropriate community restitution work projects for home detention prisoners. The committee shall make its recommendations to the sheriff. Members are not eligible to receive compensation.
J. At any time the sheriff may terminate a prisoner's participation in the prisoner work, community restitution work and home detention program or continuous alcohol monitoring program and require that the prisoner complete the remaining term of the prisoner's sentence in jail confinement.
K. If authorized by the court, a person who is sentenced pursuant to section 28‑1381 or 28‑1382 shall not be placed under home detention in a prisoner work, community restitution work and home detention program or a continuous alcohol monitoring program except as provided in subsections L through Q R of this section.
L. By a majority vote of the full membership of the board of supervisors after a public hearing and a finding of necessity a county may authorize the sheriff to establish a home detention program for persons who are sentenced to jail confinement pursuant to section 28‑1381 or 28‑1382. If the board authorizes the establishment of a home detention program, a county sheriff may establish the program. A prisoner who is placed under the program established pursuant to this subsection shall bear the cost of all testing, monitoring and enrollment in alcohol or substance abuse programs unless, after determining the inability of the prisoner to pay the cost, the court assesses a lesser amount. The county shall use the collected monies to offset operational costs of the program.
M. A county sheriff may establish a continuous alcohol monitoring program for persons who are sentenced to jail confinement pursuant to section 28-1381 or 28-1382, which shall be treated the same as confinement in jail and shall fulfill the sheriff's duty to take charge of and keep the county jail and prisoners. A prisoner who is placed under a continuous alcohol monitoring program established pursuant to this subsection shall be monitored by global positioning system tracking and bear the cost of all testing, monitoring and enrollment in the program unless, after determining the inability of the prisoner to pay the cost, the court assesses a lesser amount. The county shall use the collected monies to offset operational costs of the program.
M. N. If a county sheriff establishes a home detention or continuous alcohol monitoring program under subsection L or M of this section, a prisoner must meet the following eligibility requirements for the program:
1. Subsection B of this section applies in determining eligibility for the program.
2. If the prisoner is sentenced under section 28‑1381, subsection I, the prisoner first serves a minimum of twenty-four consecutive hours in jail.
3. 2. Notwithstanding section 28‑1387, subsection C, if the prisoner is sentenced under section 28‑1381, subsection K or section 28‑1382, subsection D or E, the prisoner first serves a minimum of fifteen consecutive days twenty per cent of the initial term of incarceration in jail before being placed under home detention or continuous alcohol monitoring.
4. 3. If placed under home detention, the prisoner is required to comply with all of the following requirements for the duration of the prisoner's participation in the home detention program:
(a) All of the provisions of subsections C through H of this section.
(b) Testing at least once a day for the use of alcoholic beverages or drugs by a scientific method that is not limited to urinalysis or a breath or intoxication test in the prisoner's home or at the office of a person designated by the court to conduct these tests.
(c) Participation in an alcohol or drug program, or both. These programs shall be accredited by the department of health services or a county probation department.
(d) Prohibition of association with any individual determined to be detrimental to the prisoner's successful participation in the program.
(e) All other provisions of the sentence imposed.
5. 4. Any additional eligibility criteria that the county may impose.
N. o. If a county sheriff establishes a home detention program under subsection L of this section, the court, on placing the prisoner in the program, shall require electronic monitoring in the prisoner's home and, if consecutive hours of jail time are ordered, shall require the prisoner to remain at home during the consecutive hours ordered. The detention device shall constantly monitor the prisoner's location to ensure that the prisoner does not leave the premises. Nothing in this subsection shall be deemed to waive the minimum jail confinement requirements under subsection M, paragraph 2 of this section.
O. P. The court shall terminate a prisoner's participation in the home detention or continuous alcohol monitoring program and shall require the prisoner to complete the remaining term of the jail sentence by jail confinement if either:
1. The prisoner fails to successfully complete a court ordered alcohol or drug screening, counseling, education and treatment program pursuant to subsection M N, paragraph 4 3, subdivision (c) of this section or section 28‑1381, subsection J or L.
2. If placed under home detention, the prisoner leaves the premises during a time that the prisoner is ordered to be on the premises without permission of the court or supervising authority.
P. Q. At any other time the court may terminate a prisoner's participation in the home detention or continuous alcohol monitoring program and require the prisoner to complete the remaining term of the jail sentence by jail confinement.
Q. R. The sheriff may terminate the a program established pursuant to this section at any time.
R. A person who is sentenced pursuant to section 28‑1383 shall not be placed under home detention in a prisoner work, community restitution work and home detention program.
Sec. 5. Section 28-1381, Arizona Revised Statutes, is amended to read:
28-1381. Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing; classification
A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.
2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.
3. While there is any drug defined in section 13‑3401 or its metabolite in the person's body.
4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28‑3001 and the person has an alcohol concentration of 0.04 or more.
B. It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state.
C. A person who is convicted of a violation of this section is guilty of a class 1 misdemeanor.
D. A person using a drug, as prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 is not guilty of violating subsection A, paragraph 3 of this section.
E. In any prosecution for a violation of this section, the state shall allege, for the purpose of classification and sentencing pursuant to this section, all prior convictions of violating this section, section 28‑1382 or section 28‑1383 occurring within the past thirty‑six months, unless there is an insufficient legal or factual basis to do so.
F. At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted.
G. In a trial, action or proceeding for a violation of this section or section 28‑1383 other than a trial, action or proceeding involving driving or being in actual physical control of a commercial vehicle, the defendant's alcohol concentration within two hours of the time of driving or being in actual physical control as shown by analysis of the defendant's blood, breath or other bodily substance gives rise to the following presumptions:
1. If there was at that time 0.05 or less alcohol concentration in the defendant's blood, breath or other bodily substance, it may be presumed that the defendant was not under the influence of intoxicating liquor.
2. If there was at that time in excess of 0.05 but less than 0.08 alcohol concentration in the defendant's blood, breath or other bodily substance, that fact shall not give rise to a presumption that the defendant was or was not under the influence of intoxicating liquor, but that fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
3. If there was at that time 0.08 or more alcohol concentration in the defendant's blood, breath or other bodily substance, it may be presumed that the defendant was under the influence of intoxicating liquor.
H. Subsection G of this section does not limit the introduction of any other competent evidence bearing on the question of whether or not the defendant was under the influence of intoxicating liquor.
I. A person who is convicted of a violation of this section:
1. Shall be sentenced to serve not less than ten consecutive days in jail and is not eligible for probation or suspension of execution of sentence unless the entire sentence is served.
2. Shall pay a fine of not less than two hundred fifty dollars.
3. May be ordered by a court to perform community restitution.
4. Shall pay an additional assessment of five hundred dollars to be deposited by the state treasurer in the prison construction and operations fund established by section 41‑1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
5. Shall pay an additional assessment of five hundred dollars to be deposited by the state treasurer in the public safety equipment fund established by section 41‑1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
6. Shall be required by the department, on report of the conviction, to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28‑3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date of reinstatement of the person's driving privilege following a suspension or revocation or on the date of the department's receipt of the report of conviction, whichever occurs later. The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.
J. Notwithstanding subsection I, paragraph 1 of this section, at the time of sentencing the judge may suspend all but twenty‑four consecutive hours of the sentence imposed pursuant to subsection I, paragraph 1 of this section if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause to the defendant as to why the remaining jail sentence should not be served.
K. If within a period of eighty-four months a person is convicted of a second violation of this section or is convicted of a violation of this section and has previously been convicted of a violation of section 28‑1382 or 28‑1383 or an act in another jurisdiction that if committed in this state would be a violation of this section or section 28‑1382 or 28‑1383, the person:
1. Shall be sentenced to serve not less than ninety days in jail, thirty days of which shall be served consecutively, and is not eligible for probation or suspension of execution of sentence unless the entire sentence has been served.
2. Shall pay a fine of not less than five hundred dollars.
3. Shall be ordered by a court to perform at least thirty hours of community restitution.
4. Shall have the person's driving privilege revoked for one year. The court shall report the conviction to the department. On receipt of the report, the department shall revoke the person's driving privilege and shall require the person to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28‑3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date of reinstatement of the person's driving privilege following a suspension or revocation or on the date of the department's receipt of the report of conviction, whichever occurs later. The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.
5. Shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the prison construction and operations fund established by section 41‑1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
6. Shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the public safety equipment fund established by section 41‑1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
L. Notwithstanding subsection K, paragraph 1 of this section, at the time of sentencing, the judge may suspend all but thirty days of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause as to why the remaining jail sentence should not be served.
M. In applying the eighty-four month provision of subsection K of this section, the dates of the commission of the offense shall be the determining factor, irrespective of the sequence in which the offenses were committed.
N. A second violation for which a conviction occurs as provided in this section shall not include a conviction for an offense arising out of the same series of acts.
Sec. 6. Section 28-3511, Arizona Revised Statutes, is amended to read:
28-3511. Removal and immobilization or impoundment of vehicle
A. A peace officer shall cause the removal and either immobilization or impoundment of a vehicle if the peace officer determines that a person is driving the vehicle while any of the following applies:
1. The person's driving privilege is suspended or revoked for any reason.
2. The person has not ever been issued a valid driver license or permit by this state and the person does not produce evidence of ever having a valid driver license or permit issued by another jurisdiction. This paragraph does not apply to the operation of an implement of husbandry.
3. The person is subject to an ignition interlock device requirement pursuant to chapter 4 of this title and the person is operating a vehicle without a functioning certified ignition interlock device. This paragraph does not apply to a person operating an employer's vehicle or the operation of a vehicle due to a substantial emergency as defined in section 28‑1464.
4. In furtherance of the illegal presence of an alien in the United States and in violation of a criminal offense, the person is transporting or moving or attempting to transport or move an alien in this state in a vehicle if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.
5. The person is concealing, harboring or shielding or attempting to conceal, harbor or shield from detection an alien in this state in a vehicle if the person knows or recklessly disregards the fact that the alien has come to, entered or remains in the United States in violation of law.
B. A peace officer shall cause the removal and impoundment of a vehicle if the peace officer determines that a person is driving the vehicle and if all of the following apply:
1. The person's driving privilege is canceled, suspended or revoked for any reason or the person has not ever been issued a driver license or permit by this state and the person does not produce evidence of ever having a driver license or permit issued by another jurisdiction.
2. The person is not in compliance with the financial responsibility requirements of chapter 9, article 4 of this title.
3. The person is driving a vehicle that is involved in an accident that results in either property damage or injury to or death of another person.
C. Except as provided in subsection D of this section, while a peace officer has control of the vehicle the peace officer shall cause the removal and either immobilization or impoundment of the vehicle if the peace officer has probable cause to arrest the driver of the vehicle for a violation of section 4‑244, paragraph 34 or section 28-1381, 28‑1382 or 28‑1383.
D. A peace officer shall not cause the removal and either the immobilization or impoundment of a vehicle pursuant to subsection C of this section if all of the following apply:
1. The peace officer determines that the vehicle is currently registered and that the driver or the vehicle is in compliance with the financial responsibility requirements of chapter 9, article 4 of this title.
2. The spouse of the driver is with the driver at the time of the arrest.
3. The peace officer has reasonable grounds to believe that the spouse of the driver:
(a) Has a valid driver license.
(b) Is not impaired by intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances.
(c) Does not have any spirituous liquor in the spouse's body if the spouse is under twenty‑one years of age.
4. The spouse notifies the peace officer that the spouse will drive the vehicle from the place of arrest to the driver's home or other place of safety.
5. The spouse drives the vehicle as prescribed by paragraph 4 of this subsection.
E. Except as otherwise provided in this article, a vehicle that is removed and either immobilized or impounded pursuant to subsection A, B or C of this section shall be immobilized or impounded for thirty days. An insurance company does not have a duty to pay any benefits for charges or fees for immobilization or impoundment.
F. The owner of a vehicle that is removed and either immobilized or impounded pursuant to subsection A, B or C of this section, the spouse of the owner and each person identified on the department's record with an interest in the vehicle shall be provided with an opportunity for an immobilization or poststorage hearing pursuant to section 28‑3514.
Sec. 7. Section 31-233, Arizona Revised Statutes, is amended to read:
31-233. Order for removal; purposes; duration; continuous alcohol monitoring program; failure to return; classification
A. The director may authorize the temporary removal under custody from prison or any other institution for the detention of adults under the jurisdiction of the department of any inmate for the purpose of employing the inmate in any work directly connected with the administration, management or maintenance of the prison or institution in which the inmate is confined, for purposes of cooperating voluntarily in medical research that cannot be performed at the prison or institution, or for participating in community action activities directed toward delinquency prevention and community betterment programs. The removal shall not be for a period longer than one day.
B. Under specific rules established by the director for the selection of inmates, the director may also authorize furlough, temporary removal or temporary release of any inmate for compassionate leave, for the purpose of furnishing to the inmate medical treatment not available at the prison or institution, for purposes preparatory to a return to the community within ninety days of the inmate's release date or for disaster aid, including local mutual aid and state emergencies. When an inmate is temporarily removed or temporarily released for a purpose preparatory to return to the community or for compassionate leave, the director may require the inmate to reimburse the state, in whole or part, for expenses incurred by the state in connection with the inmate's temporary removal or release.
C. Under specific rules established by the director for the selection of inmates, the director also may authorize release under a continuous alcohol monitoring program for any inmate who is sentenced pursuant to section 28-1383, subsection D or E and who is placed on probation. The director may require an inmate who is released under a continuous alcohol monitoring program to reimburse the state, in whole or part, for expenses incurred by the state in connection with the inmate's release.
D. An inmate who is released under a continuous alcohol monitoring program shall meet the following program eligibility requirements:
1. Serve an initial minimum term of twenty per cent of the inmate's term of incarceration.
2. Maintain compliance during the period of monitoring with all of the following requirements:
(a) At a minimum, once a day testing for the use of alcoholic beverages or drugs by a scientific method that is chosen by the director.
(b) Global positioning system tracking.
(c) Participation in an alcohol or drug program, or both. These programs shall be accredited by the department of health services or a county probation department.
(d) Prohibition of association with any person who is determined to be detrimental to the inmate's successful participation in the program.
(e) All other provisions of the inmate's sentence.
3. Any additional eligibility criteria that the director may impose.
C. D. Except if community supervision is waived pursuant to section 13‑603, subsection K, the department shall add the amount of time the director approves for the inmate's temporary release to the inmate's term of community supervision imposed by the court pursuant to section 13‑603. While the person is on temporary release the person is not on inmate status and is under the jurisdiction of the department until the terms of community supervision are met.
D. E. Any inmate who knowingly fails to return from furlough, temporary removal or temporary release granted under this section is guilty of a class 5 felony.
