Driving under the influence amendments.

WORKING DRAFT
2010
STATE OF
WYOMING
10LSO-0113

HOUSE BILL
NO.
HB0038

Driving under the influence amendments.

Sponsored by:
Representative(s) Gingery, Hammons and Illoway and Senator(s) Massie and Sessions

A BILL

for

AN ACT relating to
driving under the influence;
expanding the
definition
of controlled substances and otherwise
amending and creating definitions; amending the time for acceptable results from tests of blood alcohol concentration; creating a crime for failure to submit or complete a chemical test as specified; creating a crime of aggravated driving under the influence; amending penalties; repealing a provision relating to the reduction or dismissal of charges; repealing evidentiary presumptions relating to blood alcohol concentration; clarifying factors relating to penalties for subsequent convictions;
and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.

W.S. 31
‑
5
‑
233(a)(ii) by creating a new subparagraph (C), by creating new paragraphs (vii) through (x), (b), (d), (e),
(f)(ii), (ii
i
)
, (iv)
,
(v),
(m)(i) and (ii) and by creating new subsections (n) through (p), 31
‑
6
‑
101(a)(ii) by creating a new subparagraph (C), 31
‑
6
‑
102(a)(ii) by creating a new subparagraph (E), (d)(i)(B) and (e)(i)(B), 31
‑
6
‑
103(b), 31
‑
6
‑
105(f) and 31
‑
6
‑
108(b) by creating a new paragraph (iv) are amended to read:

31
‑
5
‑
233.

Driving or having control of vehicle while under influence of intoxicating liquor or controlled substances; penalties.

(a)

As used in this section:

(ii)

"Controlled substance" includes:

(C)

Any drug or psychoactive substance, or any combination of these substances, capable of impairing a person's physical or mental faculties.

(vii)

"Alcohol" means any substance or substances containing any form of alcohol;

(viii)

"Chemical test" means a test which analyzes an individual's breath, blood, urine, saliva or other bodily fluids or tissues for evidence of drug or alcohol use;

(ix)

"Chemical test refusal" means a refusal to take or failure to cooperate with or complete
a
chemical test;

(x)

"Drive" or "driving" means to operate or be in actual physical control of a vehicle.

(b)

No person shall drive
or have actual physical control of
any vehicle within this state if the person:

(i)

Has an alcohol concentration of eight one-hundredths of one percent (0.08%) or more;
or

(ii)

Has an alcohol concentration of eight one-hundredths of one percent (0.08%) or more,
a
s
measured within two (2) hours after the time of driving following a lawful arrest resulting from a valid traffic stop
;
or

(ii)
(iii)

To a degree which renders
him

the
person
incapable of safely driving:

(A)

Is under the influence of alcohol;

(B)

Is under the influence of a controlled substance; or

(C)

Is under the influence of a combination of any of the elements named in subparagraphs (A) and (B) of this paragraph.

(d)

Subsection (c)

Subsection
s
(b) and (o)
of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcohol, including tests obtained more than
three (3)

two (2)
hours after the alleged violation. The fact that any person charged with a violation of subsection (b) of this section is or has been entitled to use the controlled substance under the laws of this state shall not constitute a defense against any charge under subsection (b) of this section.

(e)

Except as otherwise provided
The following penalties and sanctions shall apply:

(i)

A
person convicted of violating

subsection (b) or (n) of
this section shall be

punished as follows:

(A)

For a first conviction
punishable
under this
paragraph
, the offender shall be guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both. In addition, the offender shall
be
ordered to or shall receive a substance abuse assessment conducted by a substance abuse provider certified by the department of health pursuant to W.S. 9
‑
2
‑
2701(c) at or before sentencing. The cost of the substance abuse assessment shall be assessed to and paid by the offender.
Except as otherwise provided in this subsection or subsection (h) or (m) of this section, a person convicted of violating this section is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

(B)

On
For

a
second

offense resulting in a
conviction

punishable
under this
paragraph
within five (5) years after

an offense
resulting in
a conviction for a violation of this section
,

or other law prohibiting driving while under the influence, he

the offender
shall be
punished

guilty of a misdemeanor punishable
by imprisonment for not less than seven (7) days nor more than
six (6) months

one (1) year
,

he

a fine of not less than two hundred dollars ($200.00) nor more than seven hundred fifty dollars ($750.00), or both. In addition, the offender
shall be ordered to or shall receive a substance abuse assessment conducted by a substance abuse provider certified by the department of health pursuant to W.S. 9
‑
2
‑
2701(c) before sentencing
.

and

The offender
shall not be eligible for probation or suspension of sentence or release on any other basis until he has served at least seven (7) days in jail
;
.

In addition, the person may be fined not less than two hundred dollars ($200.00) nor more than seven hundred fifty dollars ($750.00).

(C)

On

For
a third

offense resulting in a
conviction

punishable
under this
paragraph
within
five (5)

ten (10)
years after

an offense resulting
in
a conviction for a violation of this section
,

or other law prohibiting driving while under the influence, he

t
he offender
shall be
punished

guilty of a misdemeanor punishable
by imprisonment for not less than thirty (30) days nor more than
six (6) months

one (1) year
,
and

shall

be ordered to or shall
receive a substance abuse assessment pursuant to W.S. 7
‑
13
‑
1302
.

and

The offender
shall not be eligible for probation or suspension of sentence or release on any other basis until he has served at least thirty (30) days in jail except that the court shall consider the substance abuse assessment and may order the
person

offender
to undergo
outpatient
alcohol or substance abuse treatment during any mandatory period of incarceration. The minimum period of imprisonment for a third violation shall be mandatory, but the court, having considered the substance abuse assessment and the availability of public and private resources, may suspend up to fifteen (15) days of the mandatory period of imprisonment if, subsequent to the date of the current violation, the offender completes an inpatient treatment program approved by the court. In addition, the
person

offender
may be fined not less than seven hundred fifty dollars ($750.00) nor more than three thousand dollars ($3,000.00). The
judge

court
may suspend part or all of the discretionary portion of an imprisonment sentence under this
subsection

subparagraph
and place the
defendant

offender
on probation on condition that the
defendant

offender
pursues and completes an alcohol
education
or

substance abuse
treatment program as prescribed by the
judge
. Notwithstanding any other provision of law, the term of probation imposed by a judge under this section

may exceed the maximum term of imprisonment established for the offense under this subsection

provided the term of probation together with any extension thereof, shall not exceed three (3) years f
or up to and including a third conviction.

court;

(D)

On

For
a fourth or subsequent

offense resulting in a
conviction

punishable
under this
paragraph
within
five (5)

fifteen (15)
years
,

for a violation of this section or other law prohibiting driving while under the influence, he

after an offense resulting in a conviction for a violation of this section,
the offender
shall be guilty of a felony and fined not more than ten thousand dollars ($10,000.00), punished by imprisonment for not more than
two (2)

five (5)
years, or both
;
.

(E)

For purposes of this
paragraph
, a prior conviction of an offense under subsection (b), (h)
,
(n)
or (o)
of this section, or any offense from another jurisdiction containing the same or similar elements, may be used to determine prior convictions.

(ii)

Except as otherwise provided in this subsection, a person convicted of violating subsection (
o
) of this section shall be punished as follows:

(
A
)

For a first offense
punishable
under this paragraph
,
the offender shall be guilty of a misdemeanor punishable
by imprisonment for not less than seven (7) days nor more than
one (1) year
, a fine of not less than two hundred dollars ($200.00) nor more than seven hundred fifty dollars ($750.00)
, or both
. In addition, the
offender
shall be ordered to or shall receive a substance abuse assessment conducted by a substance abuse provider certified by the department of health pursuant to W.S. 9
‑
2
‑
2701(c) before sentencing and shall not be eligible for probation or suspension of sentence or release on any other basis until he has served at least seven (7) days in jail
;

(
B
)

For
a second
offense resulting in a conviction
punishable

under this paragraph
within
ten
(
10
) years
,

the offender shall be guilty of a misdemeanor punishable
by imprisonment for not less than thirty (30) days nor more than
one (1) year. In addition, the offender
shall be ordered to or shall receive a substance abuse assessment pursuant to W.S. 7
‑
13
‑
1302 and shall not be eligible for probation or suspension of sentence or release on any other basis until he has served at least thirty (30) days in jail except that the court shall consider the substance abuse assessment and may order the
offender
to undergo alcohol or substance abuse treatment during any mandatory period of incarceration. The minimum period of imprisonment for a second violation shall be mandatory, but the court, having considered the substance abuse assessment and the availability of public and private resources, may suspend up to fifteen (15) days of the mandatory period of imprisonment if, subsequent to the date of the current violation, the offender completes an inpatient treatment program approved by the court. In addition, the
offender
shall be fined not less than seven hundred fifty dollars ($750.00) nor more than three thousand dollars ($3,000.00). The
court
may suspend part or all of the discretionary portion of an imprisonment sentence under this sub
paragraph
and place the
offender
on probation on condition that the
offender
pursues and completes an alcohol or substance abuse treatment program as prescribed by the
court
;

(
C
)

For a
third
or subsequent offense
resulting in a conviction
punishable
under this paragraph

within
fifteen (15) years
,
the offender
shall be guilty of a felony and fined not more than ten thousand dollars ($10,000.00), punished by imprisonment for not m
ore than five (5) years, or both
;

(D)

For purposes of this paragraph, a prior conviction of an offense under subsection (b), (h)
,
(n)
or (o)
of this section, or any offense from another jurisdiction containing the same or similar elements, may be used to determine prior convictions.

(iii)

For purposes of calculating penalties under this subsection, the time periods shall be based on the dates that the charged offenses occurred, not on the dates of conviction for those offenses.

(f)

Any person convicted under this section or other law prohibiting driving while under the influence as defined in W.S. 31
‑
5
‑
233(a)(v) shall, in addition to the penalty imposed:

(ii)

For a first conviction
where the conviction is based on the person having an alcohol concentration of fifteen one-hundredths of one percent (0.15%) or more

under subsection (
o
) of this section
, operate only vehicles equipped with an ignition interlock device, pursuant to W.S. 31-7-401 through 31
‑
7
‑
404, for a period of six (6) months from the date of conviction;

(iii)

For a second conviction

of any offense
under subsection (b)
,
(h),
(n)
or (
o
) of this section
, operate only vehicles equipped with an ignition interlock device, pursuant to W.S. 31
‑
7
‑
401 through 31
‑
7
‑
404, for a period of one (1) year from the date of conviction;

(iv)

For a third conviction

of any offense under subsection (b),
(h),
(n) or (o) of this section
, operate only vehicles equipped with an ignition interlock device, pursuant to W.S. 31
‑
7
‑
401 through 31
‑
7
‑
404, for a period of two (2) years from the date of conviction;

(v)

For a
fourth

or subsequent conviction

of
any offense under
subsection (b)
,
(h),
(n)
or (o)
of this section
, operate only vehicles equipped with an ignition interlock device, pursuant to W.S. 31
‑
7
‑
401 through 31
‑
7
‑
404, for the remainder of the offender's life, except five (5) years from the date of conviction and every five (5) years thereafter, the offender may apply to the court for removal of the ignition interlock device required by this paragraph. The court may, for good cause shown, remove the ignition interlock device requirement if the offender has not been subsequently convicted of driving a motor vehicle in violation of this section or other law prohibiting driving while under the influence as defined in W.S. 31
‑
5
‑
233(a)(v).

(m)

Any person eighteen (18) years of age or older who has a child passenger in the vehicle during a violation of this section shall be punished upon conviction as follows:

(i)

For a first conviction under this subsection, by imprisonment for not more than one (1) year
, a fine of not more than seven hundred fifty dollars ($750.00), or both. In addition, the offender shall be ordered to or shall receive a substance abuse assessment conducted by a substance abuse provider certified by the department of health pursuant to W.S. 9
‑
2
‑
2701(c) at or before sentencing. The cost of the substance abuse assessment shall be assessed to and paid by the offender
;

(ii)

If previously convicted and sentenced under this subsection, or any other law substantially conforming to the provisions of this subsection, by imprisonment for not more than five (5) years
, a fine of not more than five thousand dollars ($5,000.00), or both
.

(
n)

Any person
arrested for an offense under this section
shall
submit to a
chemical test or tests
of his blood, breath or urine for the purpose of determining the alcohol concentration or controlled substance content of his blood at the direction of a
peace officer
in accordance with the procedures specified in W.S. 31
‑
6
‑
105
.

Refusal
to submit to or failure to complete a
chemical test or tests
required under this section
is a criminal offense punishable
as provided in paragraph (e)(i
) of this section.

(o)

A person is guilty of aggravated driving under the influence punishable as provided in paragraph (e)(ii) of this section if the person drives any motor vehicle within this state
and
the
person has an
alcohol concentration
of
fifteen one-hundredths of one percent (0.15%) or more
,
as measured within two
(2)
hours after the time of driving

following a lawful arrest resulting from a valid traffic stop
.

(p)

Notwithstanding any other provision of law, the term of probation imposed by a
court
under this
section
may exceed the maximum term of imprisonment established for the offense under this
section
provided the term of probation together with any extension thereof, shall not exceed three (3) years
.

31
‑
6
‑
101.

Definitions.

(a)

As used in this act:

(ii)

"Controlled substance" includes:

(C)

Any drug or psychoactive substance, or combination of these substances, capable of impairing a person's physical or mental faculties.

31
‑
6
‑
102.

Test to determine alcoholic or controlled substance content of blood; suspension of license.

(a)

If arrested for an offense as defined by W.S. 31
‑
5
‑
233:

(ii)

For tests required under this act, the arrested person shall be advised that:

(E)

His refusal to submit to or the failure to complete all required chemical tests is a violation of law that may result in the filing of charges under W.S. 31
‑
5
‑
233(n).

(d)

If a person under arrest refuses upon the request of a peace officer to submit to a chemical test designated by the agency employing the peace officer as provided in subsection (a) of this section, none shall be given except in cases where serious bodily injury or death has resulted. The peace officer shall submit his signed statement to the department. The statement submitted by the officer shall contain:

(i)

His probable cause to believe the arrested person was driving or in actual physical control of a motor vehicle:

(B)

In violation of W.S.
31
‑
5
‑
233(b)

31
‑
5
‑
233
or any other law prohibiting driving under the influence as defined by W.S. 31
‑
5
‑
233(a)(v); and

(e)

If a person submits to chemical testing and the test result indicates the person has an alcohol concentration of eight one-hundredths of one percent (0.08%) or more, the peace officer shall submit his signed statement to the department. Based upon the statement the department shall suspend the person's
Wyoming
driver's license or his privilege to operate a motor vehicle in this state for ninety (90) days. If a criminal conviction results from the same incident on which a suspension under this subsection is based, the suspension under W.S. 31
‑
7
‑
128(b) or revocation under W.S. 31
‑
7
‑
127(a)(ii) shall be reduced by ninety (90) days. The statement submitted by the officer shall contain:

(i)

His probable cause to believe the arrested person was driving or in actual physical control of a motor vehicle:

(B)

In violation of W.S.
31
‑
5
‑
233(b)

31
‑
5
‑
233
or any other law prohibiting driving under the influence as defined by W.S. 31
‑
5
‑
233(a)(v).

31
‑
6
‑
103.

Application for hearing; stay of suspension of license; scope of hearing.

(b)

The scope of a hearing for the purposes of this act shall cover the issues of whether a peace officer had probable cause to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon a public street or highway in this state in violation of W.S.
31
‑
5
‑
233(b)

31
‑
5
‑
233
or any other law prohibiting driving under the influence as defined by W.S. 31
‑
5
‑
233(a)(v), whether the person was placed under arrest, whether he refused to submit to

or complete
a test upon request of the peace officer or if he submitted to

and completed
a test whether the test results indicated that the person had an alcohol concentration of eight one-hundredths of one percent (0.08%) or more, and whether, except for the persons described in this act who are incapable of refusing, he had been given the advisements required by W.S. 31
‑
6
‑
102(a)(ii). At the conclusion of the hearing, the hearing examiner shall order that the suspension either be rescinded or sustained. If the person submitted to

and completed
a chemical test, the hearing examiner has the same authority to modify a license suspension under this act as he does under W.S. 31
‑
7
‑
105.

31
‑
6
‑
105.

Method of performing chemical analysis; persons permitted to draw blood; request by arrested person for test; information made available; evidence of refusal to take test.

(f)

If a person under arrest refuses to submit to

or complete
a chemical test under this act, evidence of the refusal

or failure to complete the test
is admissible in any administrative, civil or criminal action or proceeding arising out of acts alleged to have been committed while the arrested person was driving or in actual physical control of a motor vehicle in violation of W.S.
31
‑
5
‑
233(b)

31
‑
5
‑
233
or any other law prohibiting driving under the influence as defined by W.S. 31
‑
5
‑
233(a)(v).

31
‑
6
‑
108.

Implied consent requirements for youthful drivers.

(b)

For tests required under this section, the person shall be advised that:

(iv)

His refusal to submit to or the failure to complete all required chemical tests is a violation of law that may result in the filing of charges under W.S. 31
‑
5
‑
233(n).

Section 2.

W.S. 31
‑
5
‑
233(c) and (j)
is
repealed.

Section
3
.

This act is effective July 1, 20
10
.

(END)

1
HB0038