MISSISSIPPI LEGISLATURE
2015 Regular Session
To: Corrections; Judiciary B
By: Representative Moak
House Bill 265
AN ACT TO AMEND SECTION 63-11-30, MISSISSIPPI CODE OF 1972,
TO ALLOW SENTENCES FOR CERTAIN VIOLATIONS TO INCLUDE HOUSE ARREST AT A
REHABILITATION CENTER; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section
63-11-30, Mississippi Code of 1972, is amended as follows:
* * *[Until October 1, 2014, this section shall read:]
63-11-30.
(1) It is unlawful for any person to drive or otherwise operate a vehicle
within this state who (a) is under the influence of intoxicating liquor; (b) is
under the influence of any other substance which has impaired such person's
ability to operate a motor vehicle; (c) has an alcohol concentration of eight
one-hundredths percent (.08%) or more for persons who are above the legal age
to purchase alcoholic beverages under state law, or two one-hundredths percent
(.02%) or more for persons who are below the legal age to purchase alcoholic
beverages under state law, in the person's blood based upon grams of alcohol
per one hundred (100) milliliters of blood or grams of alcohol per two hundred
ten (210) liters of breath as shown by a chemical analysis of such person's
breath, blood or urine administered as authorized by this chapter; (d) is under
the influence of any drug or controlled substance, the possession of which is
unlawful under the Mississippi Controlled Substances Law; or (e) has an alcohol
concentration of four one-hundredths percent (.04%) or more in the person's
blood, based upon grams of alcohol per one hundred (100) milliliters of blood
or grams of alcohol per two hundred ten (210) liters of breath as shown by a
chemical analysis of such person's blood, breath or urine, administered as
authorized by this chapter for persons operating a commercial motor vehicle.
(2)
(a) Except as otherwise provided in subsection (3), upon conviction of any
person for the first offense of violating subsection (1) of this section where
chemical tests provided for under Section 63-11-5 were given, or where chemical
test results are not available, such person shall be fined not less than Two
Hundred Fifty Dollars ($250.00) nor more than One Thousand Dollars ($1,000.00),
or imprisoned for not more than forty-eight (48) hours in jail, or both; and
the court shall order such person to attend and complete an alcohol safety
education program as provided in Section 63-11-32. The court may substitute
attendance at a victim impact panel instead of forty-eight (48) hours in jail.
In addition, the Department of Public Safety, the Commissioner of Public Safety
or his duly authorized agent shall, after conviction and upon receipt of the
court abstract, suspend the driver's license and driving privileges of such
person for a period of not less than ninety (90) days and until such person
attends and successfully completes an alcohol safety education program as
herein provided. Commercial driving privileges shall be suspended as provided
in Section 63-1-216.
The
circuit court having jurisdiction in the county in which the conviction was had
or the circuit court of the person's county of residence may reduce the
suspension of driving privileges under subsection (2)(a) of this section if the
denial of which would constitute a hardship on the offender, except that no
court may issue such an order reducing the suspension of driving privileges
under this subsection until thirty (30) days have elapsed from the effective
date of the suspension. Hardships shall only apply to first offenses under
subsection (1) of this section, and shall not apply to second, third or
subsequent convictions of any person violating subsection (1) of this section.
A reduction of suspension on the basis of hardship shall not be available to
any person who refused to submit to a chemical test upon the request of a law
enforcement officer as provided in Section 63-11-5. When the petition is
filed, such person shall pay to the circuit clerk of the court where the
petition is filed a fee of Fifty Dollars ($50.00), which shall be deposited
into the State General Fund to the credit of a special fund hereby created in
the State Treasury to be used for alcohol or drug abuse treatment and
education, upon appropriation by the Legislature. This fee shall be in
addition to any other court costs or fees required for the filing of petitions.
The
petition filed under the provisions of this subsection shall contain the
specific facts which the petitioner alleges to constitute a hardship and the
driver's license number of the petitioner. A hearing may be held on any
petition filed under this subsection only after ten (10) days' prior written
notice to the Commissioner of Public Safety, or his designated agent, or the
attorney designated to represent the state. At such hearing, the court may
enter an order reducing the period of suspension.
The
order entered under the provisions of this subsection shall contain the
specific grounds upon which hardship was determined, and shall order the
petitioner to attend and complete an alcohol safety education program as
provided in Section 63-11-32. A certified copy of such order shall be
delivered to the Commissioner of Public Safety by the clerk of the court within
five (5) days of the entry of the order. The certified copy of such order
shall contain information which will identify the petitioner, including, but
not limited to, the name, mailing address, street address, social security
number and driver's license number of the petitioner.
At
any time following at least thirty (30) days of suspension for a first offense
violation of this section, the court may grant the person hardship driving
privileges upon written petition of the defendant, if it finds reasonable cause
to believe that revocation would hinder the person's ability to:
(i)
Continue his employment;
(ii)
Continue attending school or an educational institution; or
(iii)
Obtain necessary medical care.
Proof
of the hardship shall be established by clear and convincing evidence which
shall be supported by independent documentation.
(b)
Except as otherwise provided in subsection (3), upon any second conviction of
any person violating subsection (1) of this section, the offenses being
committed within a period of five (5) years, such person shall be fined not
less than Six Hundred Dollars ($600.00) nor more than One Thousand Five Hundred
Dollars ($1,500.00), shall be imprisoned not less than five (5) days nor more
than one (1) year and sentenced to community service work for not less than ten
(10) days nor more than one (1) year. The minimum penalties shall not be
suspended or reduced by the court and no prosecutor shall offer any suspension
or sentence reduction as part of a plea bargain. Except as may otherwise be
provided by paragraph (d) of this subsection, the Commissioner of Public Safety
shall suspend the driver's license of such person for two (2) years.
Suspension of a commercial driver's license shall be governed by Section 63-1-216.
Upon any second conviction as described in this paragraph, the court shall
ascertain whether the defendant is married, and if the defendant is married
shall obtain the name and address of the defendant's spouse; the clerk of the
court shall submit this information to the Department of Public Safety.
Further, the commissioner shall notify in writing, by certified mail, return
receipt requested, the owner of the vehicle and the spouse, if any, of the
person convicted of the second violation of the possibility of forfeiture of
the vehicle if such person is convicted of a third violation of subsection (1)
of this section. The owner of the vehicle and the spouse shall be considered
notified under this paragraph if the notice is deposited in the United States
mail and any claim that the notice was not in fact received by the addressee
shall not affect a subsequent forfeiture proceeding.
For
any second or subsequent conviction of any person under this section, the
person shall also be subject to the penalties set forth in Section 63-11-31.
(c)
Except as otherwise provided in subsection (3), for any third or subsequent
conviction of any person violating subsection (1) of this section, the offenses
being committed within a period of five (5) years, such person shall be guilty
of a felony and fined not less than Two Thousand Dollars ($2,000.00) nor more
than Five Thousand Dollars ($5,000.00), shall serve not less than one (1) year
nor more than five (5) years in the custody of the Department of Corrections;
provided, however, that for any such offense which does not result in serious
injury or death to any person, any sentence of incarceration may be served in
the county jail rather than in the State Penitentiary at the discretion of the
circuit court judge. The minimum penalties shall not be suspended or reduced
by the court and no prosecutor shall offer any suspension or sentence reduction
as part of a plea bargain. The law enforcement agency shall seize the vehicle
operated by any person charged with a third or subsequent violation of
subsection (1) of this section, if such convicted person was driving the
vehicle at the time the offense was committed. Such vehicle may be forfeited
in the manner provided by Sections 63-11-49 through 63-11-53. Except as may
otherwise be provided by paragraph (e) of this subsection, the Commissioner of
Public Safety shall suspend the driver's license of such person for five (5)
years. The suspension of a commercial driver's license shall be governed by
Section 63-1-216.
(d)
Except as otherwise provided in subsection (3), any person convicted of a
second violation of subsection (1) of this section shall receive an in-depth
diagnostic assessment, and if as a result of such assessment is determined to
be in need of treatment of his alcohol and/or drug abuse problem, such person
shall successfully complete treatment of his alcohol and/or drug abuse problem
at a program site certified by the Department of Mental Health. Such person
shall be eligible for reinstatement of his driving privileges upon the
successful completion of such treatment after a period of one (1) year after
such person's driver's license is suspended. Each person who receives a
diagnostic assessment shall pay a fee representing the cost of such
assessment. Each person who participates in a treatment program shall pay a
fee representing the cost of such treatment.
(e)
Except as otherwise provided in subsection (3), any person convicted of a third
or subsequent violation of subsection (1) of this section shall receive an in-depth
diagnostic assessment, and if as a result of such assessment is determined to
be in need of treatment of his alcohol and/or drug abuse problem, such person
shall enter an alcohol and/or drug abuse program approved by the Department of
Mental Health for treatment of such person's alcohol and/or drug abuse
problem. If such person successfully completes such treatment, such person
shall be eligible for reinstatement of his driving privileges after a period of
three (3) years after such person's driver's license is suspended.
(f)
The Department of Public Safety shall promulgate rules and regulations for the
use of interlock ignition devices as provided in Section 63-11-31 and
consistent with the provisions therein. Such rules and regulations shall
provide for the calibration of such devices and shall provide that the cost of
the use of such systems shall be borne by the offender. The Department of
Public Safety shall approve which vendors of such devices shall be used to
furnish such systems.
(3)
(a) This subsection shall be known and may be cited as Zero Tolerance for
Minors. The provisions of this subsection shall apply only when a person under
the age of twenty-one (21) years has a blood alcohol concentration of two one-hundredths
percent (.02%) or more, but lower than eight one-hundredths percent (.08%). If
such person's blood alcohol concentration is eight one-hundredths percent
(.08%) or more, the provisions of subsection (2) shall apply.
(b)
Upon conviction of any person under the age of twenty-one (21) years for the
first offense of violating subsection (1) of this section where chemical tests
provided for under Section 63-11-5 were given, or where chemical test results
are not available, such person shall have his driver's license suspended for
ninety (90) days and shall be fined Two Hundred Fifty Dollars ($250.00); and
the court shall order such person to attend and complete an alcohol safety
education program as provided in Section 63-11-32. The court may also require
attendance at a victim impact panel.
The
court in the county in which the conviction was had or the circuit court of the
person's county of residence may reduce the suspension of driving privileges
under subsection (2)(a) of this section if the denial of which would constitute
a hardship on the offender, except that no court may issue such an order
reducing the suspension of driving privileges under this subsection until
thirty (30) days have elapsed from the effective date of the suspension.
Hardships shall only apply to first offenses under subsection (1) of this
section, and shall not apply to second, third or subsequent convictions of any
person violating subsection (1) of this section. A reduction of suspension on
the basis of hardship shall not be available to any person who refused to
submit to a chemical test upon the request of a law enforcement officer as
provided in Section 63-11-5. When the petition is filed, such person shall pay
to the circuit clerk of the court where the petition is filed a fee of Fifty
Dollars ($50.00), which shall be deposited into the State General Fund to the
credit of a special fund hereby created in the State Treasury to be used for
alcohol or drug abuse treatment and education, upon appropriation by the
Legislature. This fee shall be in addition to any other court costs or fees
required for the filing of petitions.
The
petition filed under the provisions of this subsection shall contain the
specific facts which the petitioner alleges to constitute a hardship and the
driver's license number of the petitioner. A hearing may be held on any
petition filed under this subsection only after ten (10) days' prior written
notice to the Commissioner of Public Safety, or his designated agent, or the
attorney designated to represent the state. At such hearing, the court may
enter an order reducing the period of suspension.
The
order entered under the provisions of this subsection shall contain the
specific grounds upon which hardship was determined, and shall order the
petitioner to attend and complete an alcohol safety education program as
provided in Section 63-11-32. A certified copy of such order shall be
delivered to the Commissioner of Public Safety by the clerk of the court within
five (5) days of the entry of the order. The certified copy of such order
shall contain information which will identify the petitioner, including, but
not limited to, the name, mailing address, street address, social security
number and driver's license number of the petitioner.
At
any time following at least thirty (30) days of suspension for a first offense
violation of this section, the court may grant the person hardship driving privileges
upon written petition of the defendant, if it finds reasonable cause to believe
that revocation would hinder the person's ability to:
(i)
Continue his employment;
(ii)
Continue attending school or an educational institution; or
(iii)
Obtain necessary medical care.
Proof
of the hardship shall be established by clear and convincing evidence which
shall be supported by independent documentation.
(c)
Upon any second conviction of any person under the age of twenty-one (21) years
violating subsection (1) of this section, the offenses being committed within a
period of five (5) years, such person shall be fined not more than Five Hundred
Dollars ($500.00) and shall have his driver's license suspended for one (1)
year.
(d)
For any third or subsequent conviction of any person under the age of twenty-one
(21) years violating subsection (1) of this section, the offenses being
committed within a period of five (5) years, such person shall be fined not
more than One Thousand Dollars ($1,000.00) and shall have his driver's license
suspended until he reaches the age of twenty-one (21) or for two (2) years,
whichever is longer.
(e)
Any person under the age of twenty-one (21) years convicted of a second
violation of subsection (1) of this section, may have the period that his
driver's license is suspended reduced if such person receives an in-depth
diagnostic assessment, and as a result of such assessment is determined to be
in need of treatment of his alcohol and/or drug abuse problem and successfully
completes treatment of his alcohol and/or drug abuse problem at a program site
certified by the Department of Mental Health. Such person shall be eligible
for reinstatement of his driving privileges upon the successful completion of
such treatment after a period of six (6) months after such person's driver's
license is suspended. Each person who receives a diagnostic assessment shall
pay a fee representing the cost of such assessment. Each person who
participates in a treatment program shall pay a fee representing the cost of
such treatment.
(f)
Any person under the age of twenty-one (21) years convicted of a third or
subsequent violation of subsection (1) of this section shall complete treatment
of an alcohol and/or drug abuse program at a site certified by the Department
of Mental Health.
(g)
The court shall have the discretion to rule that a first offense of this
subsection by a person under the age of twenty-one (21) years shall be
nonadjudicated. Such person shall be eligible for nonadjudication only once.
The Department of Public Safety shall maintain a confidential registry of all
cases which are nonadjudicated as provided in this paragraph. A judge who
rules that a case is nonadjudicated shall forward such ruling to the Department
of Public Safety. Judges and prosecutors involved in implied consent
violations shall have access to the confidential registry for the purpose of
determining nonadjudication eligibility. A record of a person who has been
nonadjudicated shall be maintained for five (5) years or until such person
reaches the age of twenty-one (21) years. Any person whose confidential record
has been disclosed in violation of this paragraph shall have a civil cause of
action against the person and/or agency responsible for such disclosure.
(4)
In addition to the other penalties provided in this section, every person
refusing a law enforcement officer's request to submit to a chemical test of
his breath as provided in this chapter, or who was unconscious at the time of a
chemical test and refused to consent to the introduction of the results of such
test in any prosecution, shall suffer an additional suspension of driving
privileges as follows:
The
Commissioner of Public Safety or his authorized agent shall suspend the driver's
license or permit to drive or deny the issuance of a license or permit to such
person as provided for first, second and third or subsequent offenders in
subsection (2) of this section. Such suspension shall be in addition to any
suspension imposed pursuant to subsection (1) of Section 63-11-23. The minimum
suspension imposed under this subsection shall not be reduced and no prosecutor
is authorized to offer a reduction of such suspension as part of a plea
bargain.
(5)
Every person who operates any motor vehicle in violation of the provisions of
subsection (1) of this section and who in a negligent manner causes the death
of another or mutilates, disfigures, permanently disables or destroys the
tongue, eye, lip, nose or any other limb, organ or member of another shall,
upon conviction, be guilty of a separate felony for each such death,
mutilation, disfigurement or other injury and shall be committed to the custody
of the State Department of Corrections for a period of time of not less than
five (5) years and not to exceed twenty-five (25) years for each such death,
mutilation, disfigurement or other injury, and the imprisonment for the second
or each subsequent conviction, in the discretion of the court, shall commence
either at the termination of the imprisonment for the preceding conviction or
run concurrently with the preceding conviction. Any person charged with
causing the death of another as described in this subsection shall be required
to post bail before being released after arrest.
(6)
Upon conviction of any violation of subsection (1) of this section, the trial
judge shall sign in the place provided on the traffic ticket, citation or
affidavit stating that the person arrested either employed an attorney or
waived his right to an attorney after having been properly advised. If the
person arrested employed an attorney, the name, address and telephone number of
the attorney shall be written on the ticket, citation or affidavit. The judge
shall cause a copy of the traffic ticket, citation or affidavit, and any other
pertinent documents concerning the conviction, to be sent to the Commissioner
of Public Safety. A copy of the traffic ticket, citation or affidavit and any
other pertinent documents, having been attested as true and correct by the Commissioner
of Public Safety, or his designee, shall be sufficient proof of the conviction
for purposes of determining the enhanced penalty for any subsequent convictions
of violations of subsection (1) of this section.
(7)
Convictions in other states of violations for driving or operating a vehicle
while under the influence of an intoxicating liquor or while under the
influence of any other substance that has impaired the person's ability to
operate a motor vehicle occurring after July 1, 1992, shall be counted for the
purposes of determining if a violation of subsection (1) of this section is a
first, second, third or subsequent offense and the penalty that shall be
imposed upon conviction for a violation of subsection (1) of this section.
(8)
For the purposes of determining how to impose the sentence for a second, third
or subsequent conviction under this section, the indictment shall not be
required to enumerate previous convictions. It shall only be necessary that
the indictment state the number of times that the defendant has been convicted
and sentenced within the past five (5) years under this section to determine if
an enhanced penalty shall be imposed. The amount of fine and imprisonment
imposed in previous convictions shall not be considered in calculating offenses
to determine a second, third or subsequent offense of this section.
(9)
Any person under the legal age to obtain a license to operate a motor vehicle
convicted under this section shall not be eligible to receive such license
until the person reaches the age of eighteen (18) years.
(10)
Suspension of driving privileges for any person convicted of violations of
subsection (1) of this section shall run consecutively.
(11)
The court may order the use of any ignition interlock device as provided in
Section 63-11-31.
(12)
A person who violates subsection (1) of this section while transporting in a
motor vehicle a child under the age of sixteen (16) years is guilty of the
separate offense of endangering a child by driving under the influence of
alcohol or any other substance which has impaired such person's ability to
operate a motor vehicle. The offense of endangering a child by driving under
the influence of alcohol or any other substance which has impaired such
person's ability to operate a motor vehicle shall not be merged with an offense
of violating subsection (1) of this section for the purposes of prosecution and
sentencing. An offender who is convicted of a violation of this subsection
shall be punished as follows:
(a)
A person who commits a violation of this subsection which does not result in
the serious injury or death of a child and which is a first conviction shall be
guilty of a misdemeanor and, upon conviction, shall be fined not more than One
Thousand Dollars ($1,000.00) or shall be imprisoned for not more than twelve
(12) months, or both;
(b)
A person who commits a violation of this subsection which does not result in
the serious injury or death of a child and which is a second conviction shall
be guilty of a misdemeanor and, upon conviction, shall be fined not less than
One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars
($5,000.00) or shall be imprisoned for one (1) year, or both;
(c)
A person who commits a violation of this subsection which does not result in
the serious injury or death of a child and which is a third or subsequent
conviction shall be guilty of a felony and, upon conviction, shall be fined not
less than Ten Thousand Dollars ($10,000.00) or shall be imprisoned for not less
than one (1) year nor more than five (5) years, or both; and
(d)
A person who commits a violation of this subsection which results in the
serious injury or death of a child, without regard to whether such offense was
a first, second, third or subsequent offense shall be guilty of a felony and,
upon conviction, shall be punished by a fine of not less than Ten Thousand
Dollars ($10,000.00) and shall be imprisoned for not less than five (5) years
nor more than twenty-five (25) years.
[From
and after October 1, 2014, this section shall read:]
63-11-30. (1) It is
unlawful for a person to drive or otherwise operate a vehicle within this state
if the person:
(a) Is under the
influence of intoxicating liquor;
(b) Is under the
influence of any other substance that has impaired the person's ability to
operate a motor vehicle;
(c) Is under the
influence of any drug or controlled substance, the possession of which is
unlawful under the Mississippi Controlled Substances Law; or
(d) Has an alcohol
concentration in the person's blood, based upon grams of alcohol per one
hundred (100) milliliters of blood, or grams of alcohol per two hundred ten
(210) liters of breath, as shown by a chemical analysis of the person's breath,
blood or urine administered as authorized by this chapter, of:
(i) Eight one-hundredths
percent (.08%) or more for a person who is above the legal age to purchase
alcoholic beverages under state law;
(ii) Two one-hundredths
percent (.02%) or more for a person who is below the legal age to purchase
alcoholic beverages under state law; or
(iii) Four one-hundredths
percent (.04%) or more for a person operating a commercial motor vehicle.
(2) (a) First offense
DUI. (i) Except as otherwise provided in subsection (3) of this section,
upon conviction of any person for the first offense of violating subsection (1)
of this section where chemical tests provided for under Section 63-11-5 were
given, or where chemical test results are not available, the person shall be
fined not less than Two Hundred Fifty Dollars ($250.00) nor more than One
Thousand Dollars ($1,000.00), or imprisoned for not more than forty-eight (48)
hours in jail, or both; the court shall order the person to attend and complete
an alcohol safety education program as provided in Section 63-11-32 within one
(1) year. The court may substitute attendance at a victim impact panel instead
of forty-eight (48) hours in jail. Fifteen (15) days after receipt of the
court abstract, the Department of Public Safety shall suspend the driver's
license and driving privileges of the person for ninety (90) days unless the
person has surrendered his driver's license to be voided and obtained a new
driver's license that is restricted to operation of vehicles equipped with an
ignition interlock device that complies with Section 63-11-31; the person will
not be eligible for an unrestricted license for ninety (90) days and until the
person has attended and successfully completed an alcohol safety education
program as provided in Section 63-11-32.
(ii) Commercial
driving privileges shall be suspended as provided in Section 63-1-216 for a
violation of subsection (1) of this section.
(iii) A qualifying
first offense under subsection (1) of this section may be nonadjudicated by the
court under subsection (14) of this section. The holder of a commercial
driver's license or a commercial learning permit is ineligible for
nonadjudication.
(b) Second offense
DUI. (i) Except as otherwise provided in subsection (3), upon any second
conviction of any person violating subsection (1) of this section, the offenses
being committed within a period of five (5) years, the person shall be fined
not less than Six Hundred Dollars ($600.00) nor more than One Thousand Five
Hundred Dollars ($1,500.00), shall be imprisoned not less than five (5) days
nor more than one (1) year and sentenced to community service work for not less
than ten (10) days nor more than one (1) year. For the purpose of
imprisonment for this paragraph (b), imprisonment may include house arrest for
any person with a second conviction for violating subsection (1) of this
section. The minimum penalties shall not be suspended or reduced by the
court and no prosecutor shall offer any suspension or sentence reduction as
part of a plea bargain. Fifteen (15) days after receipt of the court
abstract, the Department of Public Safety shall suspend the driver's license of
the person for one (1) year unless the person has surrendered his driver's
license to be voided and obtained a new driver's license that is restricted to
operation of vehicles equipped with an ignition interlock device that complies
with Section 63-11-31; the person will not be eligible for an unrestricted
license until the person has either been subject to a full one-year suspension
of license or has exercised the driving privilege solely under an interlock-restricted
driver's license for one (1) full year.
(ii) Suspension of
commercial driving privileges shall be governed by Section 63-1-216.
(c) Third and
subsequent offense DUI. (i) Except as otherwise provided in subsection
(3), for any third conviction of any person violating subsection (1) of this
section, the offenses being committed within a period of five (5) years, the
person shall be guilty of a felony and fined not less than Two Thousand Dollars
($2,000.00) nor more than Five Thousand Dollars ($5,000.00), and shall serve
not less than one (1) year nor more than five (5) years in the custody of the
Department of Corrections. For any offense that does not result in serious
injury or death to any person, the sentence of incarceration may be served in
the county jail rather than in the State Penitentiary at the discretion of the
circuit court judge. The minimum penalties shall not be suspended or reduced
by the court and no prosecutor shall offer any suspension or sentence reduction
as part of a plea bargain. The person may exercise the privilege to drive only
under a driver's license that is restricted to operation of vehicles equipped
with an ignition interlock device that complies with Section 63-11-31 for three
(3) years following release from incarceration and will not be eligible for an
unrestricted driver's license for three (3) years.
(ii) The
suspension of commercial driving privileges shall be governed by Section 63-1-216.
(d) Except as
otherwise provided in subsection (3), any person convicted of a second or
subsequent violation of subsection (1) of this section shall receive an in-depth
diagnostic assessment, and if as a result of the assessment is determined to be
in need of treatment for alcohol or drug abuse, the person shall successfully
complete treatment at a program site certified by the Department of Mental
Health. Each person who receives a diagnostic assessment shall pay a fee
representing the cost of the assessment. Each person who participates in a
treatment program shall pay a fee representing the cost of treatment.
(e) The use of
ignition interlock devices shall be as provided in Section 63-11-31.
(3) Zero Tolerance for
Minors. (a) This subsection shall be known and may be cited as Zero
Tolerance for Minors. The provisions of this subsection shall apply only when
a person under the age of twenty-one (21) years has a blood alcohol
concentration of two one-hundredths percent (.02%) or more, but lower than
eight one-hundredths percent (.08%). If the person's blood alcohol
concentration is eight one-hundredths percent (.08%) or more, the provisions of
subsection (2) shall apply.
(b) (i) A person
under the age of twenty-one (21) is eligible for nonadjudication of a
qualifying first offense by the court pursuant to subsection (14) of this
section.
(ii) Upon
conviction of any person under the age of twenty-one (21) years for the first
offense of violating subsection (1) of this section where chemical tests
provided for under Section 63-11-5 were given, or where chemical test results
are not available, the person shall be fined Two Hundred Fifty Dollars
($250.00); the court shall order the person to attend and complete an alcohol
safety education program as provided in Section 63-11-32 within one (1) year.
Fifteen (15) days after receipt of the court abstract, the Department of Public
Safety shall suspend the driver's license and driving privileges of the person
for ninety (90) days unless the person has surrendered his driver's license to
be voided and obtained a new driver's license that is restricted to operation
of vehicles equipped with an ignition interlock device that complies with
Section 63-11-31; the person will not be eligible for any other form of license
for ninety (90) days. The court may also require attendance at a victim impact
panel.
(c) A person under the
age of twenty-one (21) years who is convicted of a second violation of
subsection (1) of this section, the offenses being committed within a period of
five (5) years, shall be fined not more than Five Hundred Dollars ($500.00).
Fifteen (15) days after receipt of the court abstract, the Department of Public
Safety shall suspend the driver's license of the person for one (1) year unless
the person has surrendered his driver's license to be voided and obtained a new
driver's license that is restricted to operation of vehicles equipped with an
ignition interlock device that complies with Section 63-11-31; the person will
not be eligible for an unrestricted license until the person has either been
subject to a full one-year suspension or has exercised the driving privilege
solely under an interlock restricted license for one (1) full year.
(d) A person under the
age of twenty-one (21) years who is convicted of a third or subsequent
violation of subsection (1) of this section, the offenses being committed
within a period of five (5) years, shall be fined not more than One Thousand
Dollars ($1,000.00) and, upon receipt of the court abstract, the Department of
Public Safety shall suspend the driver's license of the person until the person
reaches the age of twenty-one (21) or for two (2) years, whichever is longer.
(e) Any person under
the age of twenty-one (21) years convicted of a second violation of subsection
(1) of this section, may have the period of driver's license suspension reduced
to six (6) months if the person receives an in-depth diagnostic assessment, and
as a result of the assessment is determined to be in need of treatment for
alcohol or drug abuse and successfully completes treatment for alcohol or drug
abuse at a program site certified by the Department of Mental Health. Each
person who receives a diagnostic assessment shall pay a fee representing the
cost of such assessment. Each person who participates in a treatment program
shall pay a fee representing the cost of such treatment.
(f) Any person under
the age of twenty-one (21) years convicted of a third or subsequent violation
of subsection (1) of this section shall complete treatment of an alcohol or
drug abuse program at a site certified by the Department of Mental Health.
(4) DUI test refusal.
In addition to the other penalties provided in this section, every person
refusing a law enforcement officer's request to submit to a chemical test of
the person's breath as provided in this chapter, or who was unconscious at the
time of a chemical test and refused to consent to the introduction of the
results of the test in any prosecution, shall suffer an additional
administrative suspension of driving privileges as set forth in Section 63-11-23
unless the person surrenders his driver's license to be voided and obtains a
new driver's license that is restricted to operation of vehicles equipped with
an ignition interlock device that complies with Section 63-11-31; the person
will be limited to exercise of the driving privilege only under an interlock-restricted
driver's license for twice the period imposed for administrative driver's
license suspension under Section 63-11-23. Any other license restriction or
suspension imposed upon the person under this chapter will run consecutively
and not concurrently with the administrative suspension for test refusal
imposed under this section or Section 63-11-23.
(5) Aggravated DUI.
(a) Every person who operates any motor vehicle in violation of the provisions
of subsection (1) of this section and who in a negligent manner causes the
death of another or mutilates, disfigures, permanently disables or destroys the
tongue, eye, lip, nose or any other limb, organ or member of another shall,
upon conviction, be guilty of a separate felony for each victim who suffers
death, mutilation, disfigurement or other injury and shall be committed to the
custody of the State Department of Corrections for a period of time of not less
than five (5) years and not to exceed twenty-five (25) years for each death,
mutilation, disfigurement or other injury, and the imprisonment for the second
or each subsequent conviction, in the discretion of the court, shall commence
either at the termination of the imprisonment for the preceding conviction or
run concurrently with the preceding conviction. Any person charged with
causing the death of another as described in this subsection shall be required
to post bail before being released after arrest.
(b) The court may
order an ignition-interlock restriction on the offender's privilege to drive as
a condition of probation or post-release supervision not to exceed four (4)
years.
(6) DUI citations.
Upon conviction of any violation of subsection (1) of this section, the trial
judge shall sign in the place provided on the traffic ticket, citation or
affidavit stating that the person arrested either employed an attorney or
waived his right to an attorney after having been properly advised. If the
person arrested employed an attorney, the name, address and telephone number of
the attorney shall be written on the ticket, citation or affidavit. The court
clerk shall send a copy of the traffic ticket, citation or affidavit, and any
other pertinent documents concerning the conviction or other order of the
court, to the Department of Public Safety. A copy of the traffic ticket,
citation or affidavit and any other pertinent documents, having been attested
as true and correct by the Commissioner of Public Safety, or his designee,
shall be sufficient proof of the conviction for purposes of determining the
enhanced penalty for any subsequent convictions of violations of subsection (1)
of this section.
(7) Out-of-state prior
convictions. Convictions in another state, territory or possession of the
United States, or under the law of a federally recognized Native American
tribe, of violations for driving or operating a vehicle while under the influence
of an intoxicating liquor or while under the influence of any other substance
that has impaired the person's ability to operate a motor vehicle occurring
within five (5) years before an offense shall be counted for the purposes of
determining if a violation of subsection (1) of this section is a second, third
or subsequent offense and the penalty that shall be imposed upon conviction for
a violation of subsection (1) of this section.
(8) Charging of
subsequent offenses. For the purposes of determining how to impose the
sentence for a second, third or subsequent conviction under this section, the
indictment shall not be required to enumerate previous convictions. It shall
only be necessary that the indictment state the number of times that the defendant
has been convicted and sentenced within the past five (5) years under this
section to determine if an enhanced penalty shall be imposed. The amount of
fine and imprisonment imposed in previous convictions shall not be considered
in calculating offenses to determine a second, third or subsequent offense of
this section.
(9) License eligibility
for underage offenders. Any person under the legal age to obtain a license
to operate a motor vehicle convicted under this section shall not be eligible
to receive a driver's license until the person reaches the age of eighteen (18)
years.
(10) License suspensions
and restrictions to run consecutively. Suspension or restriction of
driving privileges for any person convicted of or nonadjudicated for violations
of subsection (1) of this section shall run consecutively and not concurrently.
(11) Ignition interlock.
The court shall order installation and use of an ignition interlock device as
provided in Section 63-11-31 for every vehicle operated by a person convicted
or nonadjudicated under this section.
(12) DUI child
endangerment. A person over the age of twenty-one (21) who violates
subsection (1) of this section while transporting in a motor vehicle a child
under the age of sixteen (16) years is guilty of the separate offense of
endangering a child by driving under the influence of alcohol or any other
substance which has impaired the person's ability to operate a motor vehicle.
The offense of endangering a child by driving under the influence of alcohol or
any other substance which has impaired the person's ability to operate a motor
vehicle shall not be merged with an offense of violating subsection (1) of this
section for the purposes of prosecution and sentencing. An offender who is
convicted of a violation of this subsection shall be punished as follows:
(a) A person who
commits a violation of this subsection which does not result in the serious
injury or death of a child and which is a first conviction shall be guilty of a
misdemeanor and, upon conviction, shall be fined not more than One Thousand
Dollars ($1,000.00) or shall be imprisoned for not more than twelve (12)
months, or both;
(b) A person who
commits a violation of this subsection which does not result in the serious
injury or death of a child and which is a second conviction shall be guilty of
a misdemeanor and, upon conviction, shall be fined not less than One Thousand
Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00) or shall be
imprisoned for one (1) year, or both;
(c) A person who
commits a violation of this subsection which does not result in the serious
injury or death of a child and which is a third or subsequent conviction shall
be guilty of a felony and, upon conviction, shall be fined not less than Ten Thousand
Dollars ($10,000.00) or shall be imprisoned for not less than one (1) year nor
more than five (5) years, or both; and
(d) A person who
commits a violation of this subsection which results in the serious injury or
death of a child, without regard to whether the offense was a first, second,
third or subsequent offense, shall be guilty of a felony and, upon conviction,
shall be punished by a fine of not less than Ten Thousand Dollars ($10,000.00)
and shall be imprisoned for not less than five (5) years nor more than twenty-five
(25) years.
(13) Expunction.
(a) Any person convicted under subsection (2) or (3) of this section of a
first offense of driving under the influence and who was not the holder of a
commercial driver's license or a commercial learning permit may petition the
circuit court of the county in which the conviction was had for an order to
expunge the record of the conviction at least five (5) years after successful
completion of all terms and conditions of the sentence imposed for the
conviction. Expunction under this subsection will only be available to a
person:
(i) Who has
successfully completed all terms and conditions of the sentence imposed for the
conviction;
(ii) Who did not
refuse to submit to a test of his blood or breath;
(iii) Whose blood
alcohol concentration tested below sixteen one-hundredths percent (.16%) if
test results are available;
(iv) Who has not
been convicted of and does not have pending any other offense of driving under
the influence; and
(v) Who has
provided the court with justification as to why the conviction should be
expunged.
(b) A person is
eligible for only one (1) expunction under this subsection, and the Department
of Public Safety shall maintain a confidential registry of all cases of
expunction under this subsection for the sole purpose of determining a person's
eligibility as a first offender under this section.
(c) The court in its
order of expunction shall state in writing the justification for which the
expunction was granted and forward the order to the Department of Public Safety
within five (5) days of the entry of the order.
(14) Nonadjudication.
(a) For the purposes of this chapter, "nonadjudication" means that
the court withholds adjudication of guilt, either at the conclusion of a trial
on the merits, or upon the entry of a plea of guilt by a defendant.
Nonadjudication must be conditioned upon the successful completion of any
conditions imposed by the court under this subsection.
(b) The court may rule
that a qualifying first offense under subsection (1) or (3) of this section be
nonadjudicated. A person is eligible for nonadjudication only one (1) time. A
qualifying first offense is one where a breath test was not refused unless the
court provides written findings why nonadjudication is being allowed where a
breath test was refused.
(c) Nonadjudication
may be initiated upon the filing of a petition for nonadjudication or at any
stage of the proceedings before conviction in the discretion of the court; the
court may withhold adjudication of guilt, defer sentencing, and enter an order
imposing requirements on the offender.
(i) The court
shall order the person to:
1. Pay the
nonadjudication fee imposed under Section 63-11-31;
2. Pay all fines,
penalties and assessments that would have been imposed for conviction;
3. Attend and
complete an alcohol safety education program as provided in Section 63-11-32;
4. Install an
ignition interlock device on every motor vehicle driven by the person, obtain
an interlock restricted license, and maintain that license for one hundred
twenty (120) days; failure to obtain an interlock restricted license will
result in a ninety-day driver's license suspension pursuant to Section 63-11-31;
and
5. Obtain
from the interlock vendor proof that the person has not had violations of an
ignition interlock device.
(ii) Other
conditions to be imposed by the court may include, but are not limited to,
alcohol or drug screening, or both, proof that the person has not committed any
other traffic violations while under court supervision, proof of immobilization
or impoundment of vehicles owned by the offender if required, and attendance at
a victim-impact panel.
(d) The court may
enter an order of nonadjudication only if the court finds, after a hearing,
that the offender has successfully completed all conditions imposed by law and
the court.
(e) The clerk shall
forward a record of every nonadjudicated case to the Department of Public
Safety which shall maintain a confidential registry of all cases that are
nonadjudicated as provided in this subsection (14). Judges and prosecutors
involved in the trial of implied consent violations shall have access to the
confidential registry for the purpose of determining whether a person has
previously been the subject of a nonadjudicated case and is therefore
ineligible for another nonadjudication. The Driver Services Bureau of the
department shall have access to the confidential registry for the purpose of
determining whether a person is eligible for a form of license not restricted
to operating a vehicle equipped with an ignition interlock device.
SECTION 2. This act
shall take effect and be in force from and after July 1, 2015.
