Bill Summary – FastDemocracy

LEGISLATIVE GENERAL COUNSEL                                            H.B. 395
Approved for Filing: K.P. Gasser 6                              rd
                                                                     3 Sub. (Cherry)
          6 02-20-24 8:32 AM 6
                     Representative Steve Eliason proposes the following substitute bill:
                                DUI OFFENSE AMENDMENTS
                                       2024 GENERAL SESSION
                                            STATE OF UTAH
                                   Chief Sponsor: Steve Eliason
                                Senate Sponsor: Curtis S. Bramble
 6
 LONG TITLE
 General Description:
        This bill amends provisions related to driving under the influence, including penalties,
 sentencing, and pretrial detention.
 Highlighted Provisions:
        This bill:
        < provides that an actor is guilty of a class A misdemeanor when the actor commits
 driving under the influence while also operating a vehicle in the opposite direction
 of traffic on a one-way highway with more than one lane of traffic;
        < reduces the blood alcohol concentration allowed for an individual to plea down to
 impaired driving;
        < requires the Department of Public Safety to waive participation and testing fees
 entirely or in part for indigent individuals participating in the 24-7 sobriety
 program;                                                                                          3 rdSub. H.B. 395
        < requires an individual for whom the Department of Public Safety waived fees to
 reimburse the Department of Public Safety under certain circumstances;
        < amends provisions related to sentences for certain individuals with prior convictions
 for driving under the influence who violate ignition interlock requirements;
        < allows an ignition interlock restricted driver to petition the Driver License Division
     *HB0395S03*
       3rd Sub. (Cherry) H.B. 395                                                  02-20-24 8:32 AM
 for removal of the restriction in certain circumstances if certain conditions are met;
        < clarifies that an ignition interlock restriction period begins on the date of installation
 of the ignition interlock system;
        < clarifies that the prohibition on operating a motor vehicle without an ignition
 interlock system installed on the vehicle begins on the date of conviction, not the
 date of installation of the ignition interlock system;
        < amends penalties for subsequent offenses related to refusal of a chemical test or
 negligent operation of a vehicle that results in injury;
        < requires the Sentencing Commission to amend sentencing guidelines for certain
 offenses related to ignition interlock restricted drivers and of negligent operation of
 a vehicle that results in injury when there is evidence that the individual was also
 driving under the influence;
        < amends provisions related to pretrial detention of an individual arrested for driving
 under the influence with another case pending or while on probation for a previous
 offense of driving under the influence;
        < requires pretrial detention or electronic monitoring for an individual that is arrested
 for driving under the influence while already on probation for or while another case
 is pending for driving under the influence; and
        < makes technical changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        This bill provides a special effective date.
 Utah Code Sections Affected:
 AMENDS:
        41-6a-502, as last amended by Laws of Utah 2023, Chapter 415
        41-6a-502.5, as last amended by Laws of Utah 2023, Chapter 328
        41-6a-505, as last amended by Laws of Utah 2023, Chapters 328, 415
        41-6a-515.5, as last amended by Laws of Utah 2021, Chapter 83
        41-6a-518.2, as last amended by Laws of Utah 2023, Chapters 384, 415
        41-6a-520.1, as enacted by Laws of Utah 2023, Chapter 415
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       02-20-24 8:32 AM                                                     3rd Sub. (Cherry) H.B. 395
         53-3-1007, as last amended by Laws of Utah 2023, Chapter 384
         63M-7-404, as last amended by Laws of Utah 2023, Chapter 111
         76-5-102.1, as last amended by Laws of Utah 2023, Chapters 111, 415
         77-20-201, as last amended by Laws of Utah 2023, Chapter 408
61
 Be it enacted by the Legislature of the state of Utah:
         Section 1. Section 41-6a-502 is amended to read:
         41-6a-502. Driving under the influence of alcohol, drugs, or a combination of
 both or with specified or unsafe blood alcohol concentration -- Penalities -- Reporting of
 convictions.
         (1) An actor commits driving under the influence if the actor operates or is in actual
 physical control of a vehicle within this state if the actor:
         (a) has sufficient alcohol in the actor's body that a subsequent chemical test shows that
 the actor has a blood or breath alcohol concentration of .05 grams or greater at the time of the
 test;
         (b) is under the influence of alcohol, any drug, or the combined influence of alcohol
 and any drug to a degree that renders the actor incapable of safely operating a vehicle; or
         (c) has a blood or breath alcohol concentration of .05 grams or greater at the time of
 operation or actual physical control.
         (2) (a) A violation of Subsection (1) is a class B misdemeanor.
         (b) Notwithstanding Subsection (2)(a), a violation of Subsection (1) is a class A
 misdemeanor if the actor:
         (i) has a passenger younger than 16 years old in the vehicle at the time of the offense;
         (ii) is 21 years old or older and has a passenger younger than 18 years old in the vehicle
 at the time of the offense;
         (iii) [the actor] at the time of the offense, also violated:
         (A) Section 41-6a-712 or 41-6a-714 [at the time of the offense]; or
         (B) Section 41-6a-709, if the violation occurs on a one-way highway, other than a
 roundabout, that has more than one lane of traffic; or
         (iv) has one prior conviction within 10 years of:
         (A) the current conviction under Subsection (1); or
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        3rd Sub. (Cherry) H.B. 395                                                      02-20-24 8:32 AM
         (B) the commission of the offense upon which the current conviction is based.
         (c) Notwithstanding Subsection (2)(a), a violation of Subsection (1) is a third degree
 felony if:
         (i) the actor has two or more prior convictions each of which is within 10 years of:
         (A) the current conviction; or
         (B) the commission of the offense upon which the current conviction is based; or
         (ii) the current conviction is at any time after:
         (A) a felony conviction; or
         (B) any conviction described in Subsection (2)(c)(ii)(A) for which judgment of
 conviction is reduced under Section 76-3-402.
         [(ii) the current conviction is at any time after a conviction of:]
         [(A) a violation of Section 76-5-207;]
         [(B) a felony violation of this section, Section 76-5-102.1, 41-6a-520.1, or a statute
 previously in effect in this state that would constitute a violation of this section; or]
         [(C) any conviction described in Subsection (2)(c)(ii)(A) or (B) which judgment of
 conviction is reduced under Section 76-3-402.]
         (3) Alcohol concentration in the blood shall be based upon grams of alcohol per 100
 milliliters of blood, and alcohol concentration in the breath shall be based upon grams of
 alcohol per 210 liters of breath.
         (4) A violation of this section includes a violation under a local ordinance similar to
 this section adopted in compliance with Section 41-6a-510.
         (5) A court shall, monthly, send to the Division of Professional Licensing, created in
 Section 58-1-103, a report containing the name, case number, and, if known, the date of birth
 of each person convicted during the preceding month of a violation of this section for whom
 there is evidence that the person was driving under the influence, in whole or in part, of a
 prescribed controlled substance.
         (6) An offense described in this section is a strict liability offense.
         (7) A guilty or no contest plea to an offense described in this section may not be held in
 abeyance.
         (8) An actor is guilty of a separate offense under Subsection (1) for each passenger in
 the vehicle that is younger than 16 years old at the time of the offense.
                                                       -4-
        02-20-24 8:32 AM                                                      3rd Sub. (Cherry) H.B. 395
           Section 2. Section 41-6a-502.5 is amended to read:
           41-6a-502.5. Impaired driving -- Penalty -- Reporting of convictions -- Sentencing
 requirements.
           (1) With the agreement of the prosecutor, a plea to a class B misdemeanor violation of
 Section 41-6a-502 committed on or after July 1, 2008, may be entered as a conviction of
 impaired driving under this section if:
           (a) the defendant completes court ordered probation requirements; or
           (b) (i) the prosecutor agrees as part of a negotiated plea; and
           (ii) the court finds the plea to be in the interest of justice.
           (2) A conviction entered under this section is a class B misdemeanor.
           (3) (a) (i) If the entry of an impaired driving plea is based on successful completion of
 probation under Subsection (1)(a), the court shall enter the conviction at the time of the plea.
           (ii) If the defendant fails to appear before the court and establish successful completion
 of the court ordered probation requirements under Subsection (1)(a), the court shall enter an
 amended conviction of Section 41-6a-502.
           (iii) The date of entry of the amended order under Subsection (3)(a)(ii) is the date of
 conviction.
           (b) The court may enter a conviction of impaired driving immediately under
 Subsection (1)(b).
           (4) For purposes of Section 76-3-402, the entry of a plea to a class B misdemeanor
 violation of Section 41-6a-502 as impaired driving under this section is a reduction of one
 degree.
           (5) (a) The court shall notify the Driver License Division of each conviction entered
 under this section.
           (b) Beginning on July 1, 2012, a court shall, monthly, send to the Division of
 Professional Licensing, created in Section 58-1-103, a report containing the name, case
 number, and, if known, the date of birth of each person convicted during the preceding month
 of a violation of this section for whom there is evidence that the person was driving while
 impaired, in whole or in part, by a prescribed controlled substance.
           (6) (a) The provisions in Subsections 41-6a-505(1), (3), (5), and (7) that require a
 sentencing court to order a convicted person to participate in a screening, an assessment, or an
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        3rd Sub. (Cherry) H.B. 395                                                 02-20-24 8:32 AM
 educational series, or obtain substance abuse treatment or do a combination of those things,
 apply to a conviction entered under this section.
        (b) The court shall render the same order regarding screening, assessment, an
 educational series, or substance abuse treatment in connection with a first, second, or
 subsequent conviction under this section as the court would render in connection with applying
 respectively, the first, second, or subsequent conviction requirements of Subsections
 41-6a-505(1), (3), (5), and (7).
        (7) (a) Except as provided in Subsection (7)(b), a report authorized by Section
 53-3-104 may not contain any evidence of a conviction for impaired driving in this state if the
 reporting court notifies the Driver License Division that the defendant is participating in or has
 successfully completed the program of a driving under the influence court.
        (b) The provisions of Subsection (7)(a) do not apply to a report concerning:
        (i) a CDL license holder; or
        (ii) a violation that occurred in a commercial motor vehicle.
        (8) The provisions of this section are not available:
        (a) to a person who has a prior conviction as that term is defined in Subsection
 41-6a-501(2); or
        (b) where there is admissible evidence that the individual:
        (i) except as provided in Subsection (9), had a blood or breath alcohol level of [.16].11
 or higher;
        (ii) had a blood or breath alcohol level of .05 or higher in addition to any measurable
 controlled substance; or
        (iii) had a combination of two or more controlled substances in the person's body that
 were not:
        (A) prescribed by a licensed physician; or
        (B) recommended in accordance with Title 26B, Chapter 4, Part 2, Cannabinoid
 Research and Medical Cannabis.
        (9) (a) The provisions of this section are available to an individual who was 21 years
 old or older at the time of offense and where there is admissible evidence that the individual
 had a blood or breath alcohol level between .11 and .15, if the court orders the individual to:
        (i) install an ignition interlock system in accordance with Section 41-6a-518, for not
                                                      -6-
        02-20-24 8:32 AM                                                3rd Sub. (Cherry) H.B. 395
 less than three months; and
        (ii) (A) wear an ankle attached continuous transdermal alcohol monitoring device or
 remote alcohol monitor not fewer than 30 consecutive days; or
        (B) participate in a 24-7 sobriety program as defined in Section 41-6a-515.5 for a
 minimum of 30 days.
        (b) If the defendant fails to successfully complete the court ordered requirements under
 Subsection (9)(a), the court shall enter an amended conviction of Section 41-6a-502.
        (c) Failure to successfully complete requirements under Subsection (9)(b) means:
        (i) failure to install an ignition interlock system in accordance with Section 41-6a-518;
        (ii) removal of an ignition interlock system prior to the expiration of the required
 three-month period as described in Subsection (9)(a)(i);
        (iii) detection of alcohol or tampering with the ignition interlock system during the
 three-month period described in Subsection (9)(a)(i);
        (iv) detection of alcohol or tampering with the device during the 30-day transdermal
 alcohol monitoring period described in Subsection (9)(a)(ii)(A); or
        (v) failure to successfully complete the 24-7 sobriety program as described in
 Subsection (9)(a)(ii)(B).
        Section 3. Section 41-6a-505 is amended to read:
        41-6a-505. Sentencing requirements for driving under the influence of alcohol,
 drugs, or a combination of both violations.
        (1) As part of any sentence for a first conviction of Section 41-6a-502 where there is
 admissible evidence that the individual had a blood or breath alcohol level of .16 or higher, had
 a blood or breath alcohol level of .05 or higher in addition to any measurable controlled
 substance, or had a combination of two or more controlled substances in the individual's body
 that were not recommended in accordance with Title 26B, Chapter 4, Part 2, Cannabinoid
 Research and Medical Cannabis, or prescribed:
        (a) the court shall:
        (i) (A) impose a jail sentence of not less than five days; or
        (B) impose a jail sentence of not less than two days in addition to home confinement of
 not fewer than 30 consecutive days through the use of electronic monitoring that includes a
 substance abuse testing instrument in accordance with Section 41-6a-506;
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        3rd Sub. (Cherry) H.B. 395                                                  02-20-24 8:32 AM
        (ii) order the individual to participate in a screening;
        (iii) order the individual to participate in an assessment, if it is found appropriate by a
 screening under Subsection (1)(a)(ii);
        (iv) order the individual to participate in an educational series if the court does not
 order substance abuse treatment as described under Subsection (1)(b);
        (v) impose a fine of not less than $700;
        (vi) order probation for the individual in accordance with Section 41-6a-507;
        (vii) (A) order the individual to pay the administrative impound fee described in
 Section 41-6a-1406; or
        (B) if the administrative impound fee was paid by a party described in Subsection
 41-6a-1406(5)(a), other than the individual sentenced, order the individual sentenced to
 reimburse the party;
        (viii) (A) order the individual to pay the towing and storage fees described in Section
 72-9-603; or
        (B) if the towing and storage fees were paid by a party described in Subsection
 41-6a-1406(5)(a), other than the individual sentenced, order the individual sentenced to
 reimburse the party; or
        (ix) unless the court determines and states on the record that an ignition interlock