Bill Text: IA HF519 | 2017-2018 | 87th General Assembly | Introduced
Bill Title: A bill for an act relating to public safety on highways, including the use of electronic communication devices while driving where such use results in death and the establishment of a statewide sobriety and drug monitoring program, and providing penalties. (Formerly HSB 109.)
Sponsorship: Committee Bill
Status: (Introduced - Dead) 2017-04-06 - Withdrawn. H.J. 918. [HF519 Detail]
Download: Iowa-2017-HF519-Introduced.html
House File 519 - Introduced HOUSE FILE BY COMMITTEE ON JUDICIARY (SUCCESSOR TO HSB 109) A BILL FOR 1 An Act relating to public safety on highways, including the use 2 of electronic communication devices while driving where such 3 use results in death and the establishment of a statewide 4 sobriety and drug monitoring program, and providing 5 penalties. 6 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: TLSB 1680HV (1) 87 ns/nh PAG LIN 1 1 DIVISION I 1 2 HOMICIDE BY VEHICLE ==== USE OF ELECTRONIC COMMUNICATION DEVICES 1 3 WHILE DRIVING 1 4 Section 1. Section 707.6A, subsection 2, paragraph a, Code 1 5 2017, is amended to read as follows: 1 6 a. Driving a motor vehicle in a reckless manner with willful 1 7 or wanton disregard for the safety of persons or property, in 1 8 violation of section 321.277. 1 9 (1) For the purposes of this paragraph "a", a person's 1 10 hand=held use of an electronic communication device while 1 11 driving a motor vehicle shall be considered prima facie 1 12 evidence that the person was driving the motor vehicle in a 1 13 reckless manner with willful or wanton disregard for the safety 1 14 of persons or property, in violation of section 321.277. 1 15 (2) Subparagraph (1) shall not apply to any of the 1 16 following: 1 17 (a) A member of a public safety agency, as defined in 1 18 section 34.1, performing official duties and acting in a 1 19 reasonable manner. 1 20 (b) A health care professional or emergency medical 1 21 services provider in the course of an emergency situation 1 22 acting in a reasonable manner. 1 23 (c) A person using an electronic communication device in a 1 24 hands=free or voice=operated mode, including but not limited 1 25 to the use of a headset. 1 26 (3) For the purposes of this paragraph "a", the following 1 27 definitions apply: 1 28 (a) "Electronic communication device" means an electronic 1 29 device capable of being used to compose, send, receive, or 1 30 read an electronic message. "Electronic communication device" 1 31 includes but is not limited to telephones, personal digital 1 32 assistants, and portable or mobile computers. 1 33 (b) "Electronic message" means a self=contained piece of 1 34 digital communication designed or intended to be transmitted 1 35 between electronic communication devices. "Electronic message" 2 1 includes but is not limited to video calls, electronic mail, 2 2 text messages, instant messages, and commands or requests to 2 3 access an internet site. 2 4 DIVISION II 2 5 STATEWIDE SOBRIETY AND DRUG MONITORING PROGRAM 2 6 Sec. 2. LEGISLATIVE FINDINGS ==== PURPOSE. 2 7 1. The general assembly finds that operating a motor vehicle 2 8 in this state is a privilege, not a right. A person who wishes 2 9 to enjoy the benefits of this privilege shall accept the 2 10 corresponding responsibilities. 2 11 2. The general assembly declares that the purpose of this 2 12 division of this Act is to do all of the following: 2 13 a. Protect the public health and welfare by reducing the 2 14 number of people on the highways of this state who operate a 2 15 motor vehicle under the influence of alcohol or a controlled 2 16 substance. 2 17 b. Protect the public health and welfare by reducing the 2 18 number of repeat offenders who commit crimes in which the abuse 2 19 of alcohol or a controlled substance is a contributing factor 2 20 in the commission of the crime. 2 21 c. Strengthen the pretrial and post=trial options available 2 22 to prosecutors and judges in responding to repeat offenders who 2 23 commit crimes in which the abuse of alcohol or a controlled 2 24 substance is a contributing factor in the commission of the 2 25 crime. 2 26 d. Assure the timely and sober participation of offenders 2 27 in judicial proceedings. 2 28 3. The general assembly declares that it is important to 2 29 have a centralized repository for all information related to 2 30 alcohol and controlled substance testing required by the laws 2 31 of this state or as a condition of bond, pretrial release, 2 32 sentence, probation, parole, or a temporary restricted license. 2 33 Sec. 3. NEW SECTION. 901D.1 Short title. 2 34 This chapter shall be known and may be cited as the "Iowa 2 35 Sobriety and Drug Monitoring Program Act". 3 1 Sec. 4. NEW SECTION. 901D.2 Definitions. 3 2 As used in this chapter, unless the context otherwise 3 3 requires: 3 4 1. "Alcohol" means an alcoholic beverage as defined in 3 5 section 321J.1. 3 6 2. "Controlled substance" means as defined in section 3 7 124.101. 3 8 3. "Department" means the department of public safety. 3 9 4. "Eligible offense" means a criminal offense in which the 3 10 abuse of alcohol or a controlled substance was a contributing 3 11 factor in the commission of the offense, as determined by the 3 12 court or governmental entity of the participating jurisdiction. 3 13 "Eligible offense" includes but is not limited to a first 3 14 offense of operating while intoxicated in violation of section 3 15 321J.2 where the person's alcohol concentration exceeded .15 3 16 and an accident resulting in personal injury or property damage 3 17 occurred, and a second or subsequent offense of operating while 3 18 intoxicated in violation of section 321J.2. 3 19 5. "Immediate sanction" means a sanction that is applied 3 20 within minutes of a failed test result. 3 21 6. "Law enforcement agency" means a law enforcement agency 3 22 charged with enforcement of the program created under this 3 23 chapter. 3 24 7. "Participating jurisdiction" means a county or other 3 25 governmental entity that chooses to participate in the program 3 26 created under this chapter. 3 27 8. "Sobriety and drug monitoring program" or "program" means 3 28 the program established pursuant to section 901D.3. 3 29 9. "Testing" means a procedure or set of procedures 3 30 performed to determine the presence of alcohol or a controlled 3 31 substance in a person's breath or bodily fluid, including 3 32 blood, urine, saliva, and perspiration, and includes any 3 33 combination of breath testing, drug patch testing, urine 3 34 analysis testing, saliva testing, and continuous or transdermal 3 35 alcohol monitoring. Subject to section 901D.3, the department 4 1 may approve additional testing methodologies or the testing of 4 2 alternative bodily fluids. 4 3 10. "Timely sanction" means a sanction that is applied 4 4 within hours or days after a failed test result. A timely 4 5 sanction shall be applied as soon as possible, but the period 4 6 between the failed test result and the application of the 4 7 timely sanction shall not exceed five days. 4 8 Sec. 5. NEW SECTION. 901D.3 Program created. 4 9 1. The department of public safety shall establish a 4 10 statewide sobriety and drug monitoring program to be used 4 11 by participating jurisdictions, which shall be available 4 12 twenty=four hours per day, seven days per week. Pursuant to 4 13 the provisions of this chapter, a court or governmental entity, 4 14 or an authorized officer thereof, within a participating 4 15 jurisdiction may, as a condition of bond, pretrial release, 4 16 sentence, probation, parole, or a temporary restricted license, 4 17 do all of the following: 4 18 a. Require a person who has been charged with, pled guilty 4 19 to, or been convicted of an eligible offense to abstain from 4 20 alcohol and controlled substances for a period of time. 4 21 b. Require the person to be subject to testing to determine 4 22 whether alcohol or a controlled substance is present in the 4 23 person's body in the following manner: 4 24 (1) At least twice per day at a central location where an 4 25 immediate sanction can be effectively applied. 4 26 (2) Where testing under subparagraph (1) creates a 4 27 documented hardship or is geographically impractical, by an 4 28 alternative method approved by the department and consistent 4 29 with this section where a timely sanction can be effectively 4 30 applied. 4 31 2. a. A person who has been required to participate in the 4 32 program by a court or governmental entity and whose driver's 4 33 license is suspended or revoked shall not begin participation 4 34 in the program or be subject to the testing required by the 4 35 program until the person is eligible for a temporary restricted 5 1 license under applicable law. 5 2 b. In order to participate in the program, a person shall be 5 3 required to install an approved ignition interlock device on 5 4 all motor vehicles owned or operated by the person. 5 5 c. A person wishing to participate in the program who has 5 6 been charged with, pled guilty to, or been convicted of an 5 7 eligible offense, but has not been required by a court or 5 8 governmental entity to participate in the program, may apply 5 9 to the court or governmental entity of the participating 5 10 jurisdiction on a form created by the participating 5 11 jurisdiction, and the court or governmental entity may order 5 12 the person to participate in the program as a condition 5 13 of bond, pretrial release, sentence, probation, parole, 5 14 or a temporary restricted license. The application form 5 15 shall include an itemization of all costs associated with 5 16 participation in the program. 5 17 3. The program shall be evidence=based and shall satisfy at 5 18 least two of the following requirements: 5 19 a. The program is included in the United States substance 5 20 abuse and mental health services administration's national 5 21 registry of evidence=based programs and practices. 5 22 b. The program has been reported in a peer=reviewed journal 5 23 as having positive effects on the primary targeted outcome. 5 24 c. The program has been documented as effective by informed 5 25 experts and other sources. 5 26 4. a. The core components of the program shall include 5 27 the use of a primary testing methodology for determining the 5 28 presence of alcohol or a controlled substance in a person that 5 29 best facilitates the ability of a law enforcement agency to 5 30 apply immediate sanctions for failed test results and that is 5 31 available at an affordable cost. 5 32 b. In cases of documented hardship or geographic 5 33 impracticality, or in cases where a program participant 5 34 has received less stringent testing requirements, testing 5 35 methodologies that best facilitate the ability of a law 6 1 enforcement agency to apply timely sanctions for noncompliant 6 2 test results may be utilized. For purposes of this section, 6 3 hardship or geographic impracticality shall be determined by 6 4 documentation and consideration of the following factors: 6 5 (1) Whether a testing device is available. 6 6 (2) Whether the participant is capable of paying the fees 6 7 and costs associated with the testing device. 6 8 (3) Whether the participant is capable of wearing the 6 9 testing device. 6 10 (4) Whether the participant fails to qualify for testing 6 11 twice per day because of one or more of the following: 6 12 (a) The participant lives in a rural area and submitting to 6 13 testing twice per day would be unduly burdensome. 6 14 (b) The participant's employment requires the participant's 6 15 presence at a location remote from the testing location and 6 16 submitting to testing twice per day would be unduly burdensome. 6 17 (c) The participant has repeatedly violated the 6 18 requirements of the program while submitting to testing twice 6 19 per day and poses a substantial risk of continuing to violate 6 20 the requirements of the program. 6 21 5. A jurisdiction wishing to participate in the program 6 22 shall submit an application to the department. A jurisdiction 6 23 shall not participate in the program unless the jurisdiction's 6 24 application for participation has been approved by the 6 25 department. If a jurisdiction is approved for participation in 6 26 the program, the department shall assist the jurisdiction in 6 27 setting up and administering the program in that jurisdiction 6 28 in compliance with this chapter. 6 29 6. a. If a jurisdiction participates in the program, the 6 30 participating jurisdiction or a law enforcement agency of the 6 31 participating jurisdiction may designate a third party to 6 32 provide testing services or to take any other action required 6 33 or authorized to be provided by the participating jurisdiction 6 34 or law enforcement agency under this chapter, except a 6 35 third=party designee shall not determine whether to participate 7 1 in the program. 7 2 b. The participating jurisdiction, in consultation with the 7 3 law enforcement agency of the participating jurisdiction, shall 7 4 establish testing locations for the program. 7 5 7. Any efforts by the department to alter or modify a core 7 6 component of the program shall include a documented strategy 7 7 for achieving and measuring the effectiveness of the planned 7 8 alteration or modification. Before the department alters or 7 9 modifies a core component of the program, a pilot program 7 10 with defined objectives and timelines shall be initiated, and 7 11 measurements of the effectiveness and impact of the proposed 7 12 alteration or modification to a core component shall be 7 13 monitored. The data shall be assessed and the department 7 14 shall make a determination as to whether the stated goals of 7 15 the alteration or modification were achieved and whether the 7 16 alteration or modification should be formally implemented into 7 17 the program. 7 18 Sec. 6. NEW SECTION. 901D.4 Rulemaking ==== fees. 7 19 The department shall adopt rules pursuant to chapter 17A to 7 20 administer this chapter, including but not limited to rules 7 21 regarding any of the following: 7 22 1. Providing for the nature and manner of testing, including 7 23 the procedures and apparatus to be used for testing. 7 24 2. Establishing reasonable participant, enrollment, and 7 25 testing fees for the program, including fees to pay the costs 7 26 of installation, monitoring, and deactivation of any testing 7 27 device. The fees shall be set at an amount such that the fees 7 28 collected in a participating jurisdiction are sufficient to pay 7 29 for the costs of the program in the participating jurisdiction, 7 30 including all costs to the state associated with the program in 7 31 the participating jurisdiction. 7 32 3. Providing for the application, acceptance, and use of 7 33 public and private grants, gifts, and donations to support 7 34 program activities. 7 35 4. Establishing a process for the identification and 8 1 management of indigent participants. 8 2 5. Providing for the creation and administration of a 8 3 stakeholder group to review and recommend changes to the 8 4 program. 8 5 6. Establishing a process for the submission and approval of 8 6 applications from jurisdictions to participate in the program. 8 7 Sec. 7. NEW SECTION. 901D.5 Data management system. 8 8 1. The department shall provide for and approve the use 8 9 of a program data management system that shall be used by 8 10 the department and all participating jurisdictions to manage 8 11 testing, test events, test results, data access, fees, the 8 12 collection of fee payments, and the submission and collection 8 13 of any required reports. 8 14 2. The data management system shall include but is not 8 15 limited to all of the following features: 8 16 a. A secure, remotely hosted, demonstrated, internet=based 8 17 management application that allows multiple concurrent users to 8 18 access and input information. 8 19 b. The support of breath testing, continuous remote 8 20 transdermal alcohol monitoring, drug patch testing, and urine 8 21 analysis testing. 8 22 c. The capability to track and store events including 8 23 but not limited to participant enrollment, testing activity, 8 24 accounting activity, and participating law enforcement agency 8 25 activity. 8 26 d. The capability to generate reports of system fields and 8 27 data. The data management system shall allow reports to be 8 28 generated as needed and on a scheduled basis, and shall allow 8 29 reports to be exported over a network connection or by remote 8 30 printing. 8 31 e. The ability to identify program participants who have 8 32 previously been enrolled in a similar program in this state or 8 33 another state. 8 34 3. Unless otherwise required by federal law, all alcohol or 8 35 controlled substance testing performed as a condition of bond, 9 1 pretrial release, sentence, probation, parole, or a temporary 9 2 restricted license shall utilize and input results to the data 9 3 management system. 9 4 4. The data management system shall contain sufficient 9 5 security protocols to protect participants' personal 9 6 information from unauthorized use. 9 7 Sec. 8. NEW SECTION. 901D.6 Authority to order program 9 8 participation. 9 9 1. A court or governmental entity, or an authorized officer 9 10 thereof, in a participating jurisdiction may utilize the 9 11 program as provided in this section. The program shall be a 9 12 preferred program for offenders charged with or convicted of an 9 13 eligible offense. 9 14 2. If a person convicted of a first offense of operating 9 15 while intoxicated where the person's alcohol concentration 9 16 exceeded .15 and an accident resulting in personal injury or 9 17 property damage occurred, or a second or subsequent offense of 9 18 operating while intoxicated, has been required to participate 9 19 in the program, has financial liability coverage pursuant 9 20 to section 321.20B, and the minimum period of ineligibility 9 21 for issuance of a temporary restricted license has expired 9 22 pursuant to chapter 321J, the court may notify the department 9 23 of transportation that, as a participant in the program, the 9 24 person is eligible for a temporary restricted license pursuant 9 25 to section 321J.20. 9 26 3. A court may condition any bond or pretrial release 9 27 otherwise authorized by law for a person charged with an 9 28 eligible offense upon participation in the program and payment 9 29 of the fees established pursuant to section 901D.4. 9 30 4. A court may condition a suspended sentence or probation 9 31 otherwise authorized by law for a person convicted of an 9 32 eligible offense upon participation in the program and payment 9 33 of the fees established pursuant to section 901D.4. 9 34 5. The board of parole, the department of corrections, or 9 35 a parole officer may condition parole otherwise authorized 10 1 by law for a person convicted of an eligible offense upon 10 2 participation in the program and payment of the fees 10 3 established pursuant to section 901D.4. 10 4 Sec. 9. NEW SECTION. 901D.7 Placement and enrollment. 10 5 1. Subject to sections 901D.3 and 901D.6, a participant 10 6 may be placed in the program as a condition of bond, pretrial 10 7 release, sentence, probation, parole, or a temporary 10 8 restricted license. However, a person who has been required to 10 9 participate in the program by a court or governmental entity 10 10 and whose driver's license is suspended or revoked shall not 10 11 begin participation in the program or be subject to the testing 10 12 required by the program until the person is eligible for a 10 13 temporary restricted license under applicable law. 10 14 2. An order or directive placing a participant in the 10 15 program shall include the type of testing required to be 10 16 administered in the program and the length of time that the 10 17 participant is required to remain in the program. The person 10 18 issuing the order or directive shall send a copy of the order 10 19 or directive to the law enforcement agency of the participating 10 20 jurisdiction. 10 21 3. Upon receipt of a copy of an order or directive, 10 22 a representative of the law enforcement agency of the 10 23 participating jurisdiction shall enroll a participant in the 10 24 program prior to testing. 10 25 4. At the time of enrollment, a representative of the law 10 26 enforcement agency of the participating jurisdiction shall 10 27 enter the participant's information into the data management 10 28 system described in section 901D.5. The representative of 10 29 the agency shall provide the participant with the appropriate 10 30 materials required by the program, inform the participant that 10 31 the participant's information may be shared for law enforcement 10 32 and reporting purposes, and provide the participant with 10 33 information related to the required testing, procedures, and 10 34 fees. 10 35 5. The participant shall sign a form stating that the 11 1 participant understands the program requirements and releases 11 2 the participant's information for law enforcement and reporting 11 3 purposes. 11 4 6. A participant shall report to the program for testing for 11 5 the length of time ordered by the court, the board of parole, 11 6 the department of corrections, or a parole officer. 11 7 Sec. 10. NEW SECTION. 901D.8 Collection, distribution, and 11 8 use of fees. 11 9 1. The law enforcement agency of a participating 11 10 jurisdiction shall do all of the following: 11 11 a. Establish and maintain a sobriety program account. 11 12 b. Collect the participant, enrollment, and testing fees 11 13 established pursuant to section 901D.4 and deposit the fees 11 14 and any other funds received for the program into the sobriety 11 15 program account for administration of the program. 11 16 2. A participant shall pay all fees directly to the law 11 17 enforcement agency of the participating jurisdiction. 11 18 3. a. The law enforcement agency shall distribute a 11 19 portion of the fees to any participating third=party designee 11 20 in accordance with the agreement between the agency and the 11 21 third=party designee. 11 22 b. The remainder of the fees collected shall be deposited in 11 23 the sobriety program account, and shall be used only for the 11 24 purposes of administering and operating the program. 11 25 Sec. 11. NEW SECTION. 901D.9 Noncompliance. 11 26 1. An allegation that a participant failed a test, refused 11 27 to submit to a test, or failed to appear for testing shall 11 28 be communicated ex parte by the participating jurisdiction, 11 29 a law enforcement agency of the participating jurisdiction, 11 30 or the participating jurisdiction's third=party designee to a 11 31 magistrate as soon as practicable. A magistrate who receives 11 32 such a communication may order the participant's immediate 11 33 incarceration pending a hearing on the allegation but lasting 11 34 no longer than twenty=four hours after the issuance of the 11 35 order, or if the participant failed to appear for testing as 12 1 scheduled, the magistrate may issue a warrant for the arrest of 12 2 the participant for a violation of the terms of bond, pretrial 12 3 release, sentence, probation, or parole, as applicable. 12 4 2. The magistrate may notify the department of 12 5 transportation of the participant's noncompliance and direct 12 6 the department to withdraw any temporary restricted license 12 7 issued to the participant and reinstate the remainder of any 12 8 applicable license suspension or revocation period provided by 12 9 law. 12 10 Sec. 12. NEW SECTION. 901D.10 Report and repeal. 12 11 1. The department, in consultation with the judicial branch 12 12 and the department of transportation, shall by December 1, 12 13 2021, submit a report to the general assembly detailing the 12 14 effectiveness of the program established pursuant to this 12 15 chapter and shall make recommendations concerning the continued 12 16 implementation of the program or the elimination of the 12 17 program. 12 18 2. This chapter is repealed July 1, 2022. 12 19 DIVISION III 12 20 OPERATING WHILE INTOXICATED ==== SOBRIETY AND DRUG MONITORING 12 21 PROGRAM PROVISIONS 12 22 Sec. 13. Section 321J.20, subsection 1, paragraph a, 12 23 unnumbered paragraph 1, Code 2017, is amended to read as 12 24 follows: 12 25 The department may, on application, issue a temporary 12 26 restricted license to a person whose noncommercial driver's 12 27 license is revoked under this chapter allowing the person to 12 28 drive to and from the person's home and specified places at 12 29 specified times which can be verified by the department and 12 30 which are required by the person's full=time or part=time 12 31 employment, continuing health care or the continuing health 12 32 care of another who is dependent upon the person, continuing 12 33 education while enrolled in an educational institution on a 12 34 part=time or full=time basis and while pursuing a course of 12 35 study leading to a diploma, degree, or other certification of 13 1 successful educational completion, substance abuse treatment, 13 2 court=ordered community service responsibilities,and13 3 appointments with the person's parole or probation officer, 13 4 and participation in a program established pursuant to chapter 13 5 901D, if the person's driver's license has not been revoked 13 6 previously under section 321J.4, 321J.9, or 321J.12 and if any 13 7 of the following apply: 13 8 Sec. 14. Section 321J.20, subsection 2, paragraph a, Code 13 9 2017, is amended to read as follows: 13 10 a. Notwithstanding section 321.560, the department may, 13 11 on application, and upon the expiration of the minimum period 13 12 of ineligibility for a temporary restricted license provided 13 13 for under section 321.560, 321J.4, 321J.9, or 321J.12, issue a 13 14 temporary restricted license to a person whose noncommercial 13 15 driver's license has either been revoked under this chapter, or 13 16 revoked or suspended under chapter 321 solely for violations 13 17 of this chapter, or who has been determined to be a habitual 13 18 offender under chapter 321 based solely on violations of 13 19 this chapter or on violations listed in section 321.560, 13 20 subsection 1, paragraph "b", and who is not eligible for a 13 21 temporary restricted license under subsection 1. However, 13 22 the department may not issue a temporary restricted license 13 23 under this subsection for a violation of section 321J.2A or 13 24 to a person under the age of twenty=one whose license is 13 25 revoked under section 321J.4, 321J.9, or 321J.12. A temporary 13 26 restricted license issued under this subsection may allow the 13 27 person to drive to and from the person's home and specified 13 28 places at specified times which can be verified by the 13 29 department and which are required by the person's full=time or 13 30 part=time employment; continuing education while enrolled in an 13 31 educational institution on a part=time or full=time basis and 13 32 while pursuing a course of study leading to a diploma, degree, 13 33 or other certification of successful educational completion; 13 34orsubstance abuse treatment; or participation in a program 13 35 established pursuant to chapter 901D. 14 1 Sec. 15. Section 321J.20, subsection 3, Code 2017, is 14 2 amended to read as follows: 14 3 3. If a person required to install an ignition interlock 14 4 device or participate in a program established pursuant to 14 5 chapter 901D operates a motor vehicle which does not have an 14 6 approved ignition interlock device or while not in compliance 14 7 with the program, or if the person tampers with or circumvents 14 8 an ignition interlock device, in addition to other penalties 14 9 provided, the person's temporary restricted license shall be 14 10 revoked. 14 11 Sec. 16. Section 321J.20, Code 2017, is amended by adding 14 12 the following new subsection: 14 13 NEW SUBSECTION. 10. Notwithstanding any other provision of 14 14 law to the contrary, in any circumstance in which this chapter 14 15 requires the installation of an ignition interlock device in 14 16 all vehicles owned or operated by a person as a condition of 14 17 the person's license or privilege to operate noncommercial 14 18 motor vehicles, the department shall require the person to be 14 19 a participant in and in compliance with a sobriety and drug 14 20 monitoring program established pursuant to chapter 901D if the 14 21 person's offense under this chapter qualifies as an eligible 14 22 offense as defined in section 901D.2, and the person's offense 14 23 occurred in a participating jurisdiction, as defined in section 14 24 901D.2. The department, in consultation with the department 14 25 of public safety, may adopt rules for issuing and accepting a 14 26 certification of participation in and compliance with a program 14 27 established pursuant to chapter 901D. This subsection shall be 14 28 construed and implemented to comply with 23 U.S.C. {164(a), as 14 29 amended by the federal Fixing America's Surface Transportation 14 30 Act, Pub. L. No. 114=94, {1414, and shall not apply if such 14 31 application results in a finding of noncompliance with 23 14 32 U.S.C. {164 that results or will result in a reservation 14 33 or transfer of funds pursuant to 23 U.S.C. {164(b). This 14 34 subsection shall not authorize the operation of a motor vehicle 14 35 for any purpose not otherwise authorized by this chapter. 15 1 Sec. 17. FUTURE REPEAL. This division of this Act is 15 2 repealed July 1, 2022. 15 3 EXPLANATION 15 4 The inclusion of this explanation does not constitute agreement with 15 5 the explanation's substance by the members of the general assembly. 15 6 DIVISION I ==== HOMICIDE BY VEHICLE ==== USE OF ELECTRONIC 15 7 COMMUNICATION DEVICES WHILE DRIVING. Current law provides 15 8 that a person commits a class "C" felony when the person 15 9 unintentionally causes the death of another person by driving 15 10 a motor vehicle in a reckless manner with willful or wanton 15 11 disregard for the safety of persons or property. A class "C" 15 12 felony is punishable by imprisonment for not more than 10 years 15 13 and a fine of at least $1,000 but not more than $10,000. 15 14 This bill provides that for the purposes of that provision, 15 15 a person's hand=held use of an electronic communication device 15 16 while driving a motor vehicle shall be considered prima facie 15 17 evidence that the person was driving the motor vehicle in a 15 18 reckless manner with willful or wanton disregard for the safety 15 19 of persons or property. This provision does not apply to a 15 20 member of a public safety agency performing official duties 15 21 and acting in a reasonable manner, a health care professional 15 22 or emergency medical services provider in the course of an 15 23 emergency situation acting in a reasonable manner, or a person 15 24 using an electronic communication device in a hands=free or 15 25 voice=operated mode, including but not limited to the use of 15 26 a headset. 15 27 An electronic communication device is a device capable of 15 28 being used to compose, send, receive, or read an electronic 15 29 message, and includes telephones, personal digital assistants, 15 30 and portable or mobile computers. An electronic message is 15 31 a self=contained piece of digital communication designed or 15 32 intended to be transmitted between electronic communication 15 33 devices, and includes video calls, electronic mail, text 15 34 messages, instant messages, and commands or requests to access 15 35 an internet site. 16 1 DIVISION II ==== STATEWIDE SOBRIETY AND DRUG MONITORING 16 2 PROGRAM. The bill directs the department of public safety 16 3 (DPS) to establish a statewide sobriety and drug monitoring 16 4 program that is available 24 hours per day, seven days per 16 5 week. Under the program, a court or governmental entity, as 16 6 a condition of bond, pretrial release, sentence, probation, 16 7 parole, or a temporary restricted license, may require a person 16 8 who has been charged with, pled guilty to, or been convicted 16 9 of an eligible offense to abstain from alcohol and controlled 16 10 substances for a period of time. The bill provides that an 16 11 eligible offense is a criminal offense in which the abuse of 16 12 alcohol or a controlled substance was a contributing factor 16 13 in the commission of the offense as determined by the court 16 14 or governmental entity of the participating jurisdiction, 16 15 including but not limited to a first offense of operating 16 16 while intoxicated where the person's alcohol concentration 16 17 exceeded .15 and an accident resulting in personal injury or 16 18 property damage occurred, and a second or subsequent offense 16 19 of operating while intoxicated. 16 20 The program requires a person to be subject to testing to 16 21 determine whether alcohol or a controlled substance is present 16 22 in the person's body at least twice per day at a central 16 23 location where an immediate sanction can be applied. Where 16 24 such testing creates a documented hardship or is geographically 16 25 impractical, an alternative method approved by DPS may be used. 16 26 Hardship or geographic impracticality is determined by 16 27 documentation and consideration of whether a testing device is 16 28 available, whether the participant is capable of paying the 16 29 fees and costs associated with the testing device, whether 16 30 the participant is capable of wearing the testing device, and 16 31 whether the participant fails to qualify for testing twice 16 32 per day because the participant lives in a rural area, the 16 33 participant's employment requires the participant's presence at 16 34 a location remote from the testing location, or the participant 16 35 has repeatedly violated the requirements of the program. 17 1 The bill prohibits a person who has been required to 17 2 participate in the program and whose driver's license is 17 3 suspended or revoked from participating in the program until 17 4 the person is eligible for a temporary restricted license. A 17 5 person must install an ignition interlock device on all motor 17 6 vehicles owned or operated by the person to participate in 17 7 the program. A person who has been charged with, pled guilty 17 8 to, or been convicted of an eligible offense who has not 17 9 been required to participate in the program may apply to the 17 10 participating jurisdiction in order to participate. 17 11 If a jurisdiction applies to and is approved by DPS to 17 12 participate in the program, the bill requires DPS to assist the 17 13 jurisdiction in setting up and administering the program. The 17 14 participating jurisdiction must establish testing locations and 17 15 may designate a third party to provide testing services. 17 16 Any efforts by DPS to alter or modify the core components 17 17 of the program are required to include a documented strategy 17 18 for achieving and measuring the effectiveness of the planned 17 19 alteration or modification. Before the core components of the 17 20 program can be altered or modified, a pilot program must be 17 21 initiated and monitored. 17 22 The bill requires DPS to adopt rules providing for the nature 17 23 and manner of testing; establishing reasonable fees; providing 17 24 for the application, acceptance, and use of public and private 17 25 grants, gifts, and donations; establishing a process for 17 26 the identification and management of indigent participants; 17 27 providing for the creation and administration of a stakeholder 17 28 group to review and recommend changes to the program; and 17 29 establishing a process for the submission and approval of 17 30 applications from jurisdictions. The bill further requires the 17 31 amount of the fees to be set at an amount such that the fees 17 32 collected in a participating jurisdiction are sufficient to pay 17 33 for the costs of the program in the participating jurisdiction, 17 34 including all costs to the state. 17 35 In addition, the bill requires DPS to provide for and approve 18 1 the use of a program data management system to be used by DPS 18 2 and all participating jurisdictions to manage testing, test 18 3 events, test results, data access, fees, the collection of fee 18 4 payments, and the submission and collection of any required 18 5 reports. The bill provides for certain required features of 18 6 the data management system. 18 7 A court may condition any bond or pretrial release otherwise 18 8 authorized by law for a person charged with an eligible offense 18 9 upon participation in the program and payment of the required 18 10 fees. A court may also condition a suspended sentence or 18 11 probation otherwise authorized by law for a person convicted 18 12 of an eligible offense upon participation in the program 18 13 and payment of the required fees. Likewise, the board of 18 14 parole, the department of corrections, or a parole officer 18 15 may condition parole otherwise authorized by law for a person 18 16 convicted of an eligible offense upon participation in the 18 17 program and payment of the required fees. 18 18 The bill requires an order or directive placing a 18 19 participant in the program to include the type of testing 18 20 required to be administered and the length of time that the 18 21 participant is required to remain in the program. At the 18 22 time of enrollment, a representative of the law enforcement 18 23 agency of a participating jurisdiction must enter the 18 24 participant's information into the data management system. The 18 25 representative of the agency must provide the participant with 18 26 the appropriate materials required by the program, inform the 18 27 participant that the participant's information may be shared 18 28 for law enforcement and reporting purposes, and provide the 18 29 participant with information related to the required testing, 18 30 procedures, and fees. 18 31 The bill provides that the law enforcement agency of a 18 32 participating jurisdiction must establish and maintain a 18 33 sobriety program account, and collect the required fees. The 18 34 law enforcement agency must distribute a portion of the fees to 18 35 any participating third=party designee in accordance with the 19 1 agreement between the agency and the third=party designee, and 19 2 the remainder of the fees collected must be deposited in the 19 3 participating jurisdiction's sobriety program account and must 19 4 be used only for the purposes of administering and operating 19 5 the program. 19 6 The bill requires allegations that a participant failed 19 7 a test, refused to submit to a test, or failed to appear 19 8 for testing to be communicated ex parte by the participating 19 9 jurisdiction, a law enforcement agency of the participating 19 10 jurisdiction, or the participating jurisdiction's third=party 19 11 designee to a magistrate as soon as practicable. A magistrate 19 12 who receives such a communication may order the participant's 19 13 immediate incarceration pending a hearing on the allegation 19 14 but lasting no longer than 24 hours after the issuance of the 19 15 order, or if the participant failed to appear for testing as 19 16 scheduled, the magistrate may issue a warrant for the arrest of 19 17 the participant for a violation of the terms of bond, pretrial 19 18 release, sentence, probation, or parole. 19 19 Upon the failure of a participant to submit to or pass a 19 20 test under the program, the court may notify the department 19 21 of transportation (DOT) of the participant's noncompliance 19 22 and direct the DOT to withdraw the participant's temporary 19 23 restricted license and reinstate the remainder of the license 19 24 suspension or revocation period. 19 25 The bill requires DPS to submit a report to the general 19 26 assembly detailing the effectiveness of the program and making 19 27 recommendations by December 1, 2021. The sobriety and drug 19 28 monitoring program is repealed July 1, 2022. 19 29 DIVISION III ==== OPERATING WHILE INTOXICATED ==== SOBRIETY AND 19 30 DRUG MONITORING PROGRAM PROVISIONS. The bill provides that a 19 31 temporary restricted license issued under Code chapter 321J 19 32 (operating while intoxicated) is valid for travel related to 19 33 participation in a sobriety and drug monitoring program. In 19 34 addition, the bill requires the DOT to revoke the temporary 19 35 restricted license of a person operating a motor vehicle 20 1 while not in compliance with the person's sobriety and drug 20 2 monitoring program. 20 3 The bill also provides that in any circumstance in which 20 4 Code chapter 321J requires the installation of an ignition 20 5 interlock device in all vehicles owned or operated by a person 20 6 as a condition of the person's license or privilege to operate 20 7 noncommercial motor vehicles, the DOT must require the person 20 8 to be a participant in and in compliance with a sobriety and 20 9 drug monitoring program if the person's offense under Code 20 10 chapter 321J qualifies as an eligible offense and the person's 20 11 offense occurred in a participating jurisdiction. LSB 1680HV (1) 87 ns/nh
