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PAG LIN 1 1 DIVISION I 1 2 Section 1. Section 124.409, subsection 1, Code 1995, is 1 3 amended to read as follows: 1 4 1. Whenever a person who has not previously been convicted 1 5 of an offense under this chapter or an offense under a state 1 6 or federal statute relating to narcotic drugs or cocaine, 1 7 marijuana, or stimulant, depressant, or hallucinogenic drugs, 1 8 pleads guilty to or is found guilty of possession of a 1 9 controlled substance under section 124.401, subsection 3,or1 10is sentenced pursuant to section 124.410,the court, without 1 11 entering a judgment of guilt and with the consent of the 1 12 accused, may defer further proceedings and place the accused 1 13 on probation upon terms and conditions as it requires. When a 1 14 person is placed on probation under this subsection, the 1 15 person's appearance bond may be discharged at the discretion 1 16 of the court. Upon violation of a term or condition, the 1 17 court may enter an adjudication of guilt and proceed as 1 18 otherwise provided. Upon fulfillment of the terms and 1 19 conditions, the court shall discharge the person and dismiss 1 20 the proceedings against the person. Discharge and dismissal 1 21 under this section shall be without court adjudication of 1 22 guilt and is not a conviction for purposes of this section or 1 23 for purposes of disqualifications or disabilities imposed by 1 24 law upon conviction of a crime, including the additional 1 25 penalties imposed for second or subsequent convictions under 1 26 section124.410124.411. Discharge and dismissal under this 1 27 section may occur only once with respect to any person. 1 28 Sec. 2. Section 124.413, Code 1995, is amended to read as 1 29 follows: 1 30 124.413 MANDATORY MINIMUM SENTENCE. 1 31 A person sentenced pursuant to section 124.401, subsection 1 32 1, paragraph "a", "b", "c", "e", or "f", shall not be eligible 1 33 for parole until the person has served a minimum period of 1 34 confinement of one-third of the maximum indeterminate sentence 1 35 prescribed by law. 2 1 This section shall not apply if:2 21. The offense is found to be an accommodation pursuant to2 3section 124.410; or2 42. Thethe controlled substance is marijuana. 2 5 Sec. 3. REPEAL. Section 124.410, Code 1995, is repealed. 2 6 DIVISION II 2 7 Sec. 4. Section 321J.2, subsections 3, 5, and 8, Code 2 8 1995, are amended to read as follows: 2 9 3. No conviction for, deferred judgment entered prior to 2 10 July 1, 1995, for, or plea of guilty to, a violation of this 2 11 section which occurred more than six years prior to the date 2 12 of the violation charged shall be considered in determining 2 13 that the violation charged is a second, third, or subsequent 2 14 offense. For the purpose of determining if a violation 2 15 charged is a second, third, or subsequent offense,deferred2 16judgments pursuant to section 907.3 for violations of this2 17section andconvictions or the equivalent of deferred 2 18 judgments entered on or after July 1, 1995, for violations in 2 19 any other states under statutes substantially corresponding to 2 20 this section shall be counted as previous offenses. The 2 21 courts shall judicially notice the statutes of other states 2 22 which define offenses substantially equivalent to the one 2 23 defined in this section and can therefore be considered 2 24 corresponding statutes. Each previous violation on which 2 25 conviction or deferral of judgment was entered prior to the 2 26 date of the violation charged shall be considered and counted 2 27 as a separate previous offense. 2 28 5. The clerk of court shall immediately certify to the 2 29 department a true copy of each order entered with respect to 2 30deferral of judgment, deferral of sentence orpronouncement of 2 31 judgment and sentence for a defendant under this section. 2 32 8. The court shall order a defendant convicted ofor2 33receiving a deferred judgment fora violation of this section 2 34 to make restitution, in an amount not to exceed two thousand2 35dollars,pursuant to chapter 910 for damages resulting 3 1 directly from the violation. An amount paid pursuant to this 3 2 restitution order shall be credited toward any adverse 3 3 judgment in a subsequent civil proceeding arising from the 3 4 same occurrence. However, other than establishing a credit, a 3 5 restitution proceeding pursuant to this section shall not be 3 6 given evidentiary or preclusive effect in a subsequent civil 3 7 proceeding arising from the same occurrence. 3 8 Sec. 5. Section 321J.4, subsection 1, Code 1995, is 3 9 amended to read as follows: 3 10 1. If a defendant is convicted of a violation of section 3 11 321J.2 and the defendant's motor vehicle license or 3 12 nonresident operating privilege has not been revoked under 3 13 section 321J.9 or 321J.12 for the occurrence from which the 3 14 arrest arose, the department shall revoke the defendant's 3 15 motor vehicle license or nonresident operating privilege for 3 16 one hundred eighty days if the defendant has had no previous 3 17 convictionunder section 321J.2or revocation undersection3 18321J.9 or 321J.12this chapter within the previous six years 3 19 and the defendant shall not be eligible for any temporary 3 20 restricted license for at least thirty days after the 3 21 effective date of the revocation if a test was obtained, and 3 22 for at least ninety days if a test was refused. 3 23 If a defendant is convicted of a violation of section 3 24 321J.2, and the defendant's motor vehicle license has not 3 25 already been revoked under section 321J.9 or 321J.12 for the 3 26 occurrence from which the arrest arose, the department shall 3 27 revoke the defendant's motor vehicle license or nonresident 3 28 operating privilege for one year if the defendant has had one 3 29 or more previous convictions or revocations underthose3 30sectionsthis chapter within the previous six years. The 3 31 defendant shall not be eligible for any temporary restricted 3 32 license during the entire one year revocation period. 3 33 Sec. 6. Section 321J.4, subsection 2, Code 1995, is 3 34 amended by striking the subsection. 3 35 Sec. 7. Section 321J.4, subsection 3, paragraph a, Code 4 1 1995, is amended to read as follows: 4 2 a. Upon a plea or verdict of guilty of a third or 4 3 subsequent violation of section 321J.2, the court shall order 4 4 the department to revoke the defendant's motor vehicle license 4 5 or nonresident operating privilege for a period of six years. 4 6 The defendant shall not be eligible for a temporary restricted 4 7 license for at least one year after the effective date of the 4 8 revocation. The court shall require the defendant to 4 9 surrender to it all Iowa licenses or permits held by the 4 10 defendant, which the court shall forward to the department 4 11 with a copy of the order for revocation. 4 12 Sec. 8. Section 321J.4, subsections 4, 5, 7, and 8, Code 4 13 1995, are amended to read as follows: 4 14 4. Upon a plea or verdict of guilty of a violation of 4 15 section 321J.2 which involved a personal injury, the court 4 16 shall determine in open court, from consideration of the 4 17 information in the file and any other evidence the parties may 4 18 submit, whether a serious injury was sustained by any person 4 19 other than the defendant and, if so, whether the defendant's 4 20 conduct in violation of section 321J.2 caused the serious 4 21 injury. If the court so determines, the court shall order the 4 22 department to revoke the defendant's motor vehicle license or 4 23 nonresident operating privilege for a period of one year in 4 24 addition to any other period of suspension or revocation. The 4 25 defendant shall not be eligible for any temporary restricted 4 26 license until the minimum period of ineligibility has expired 4 27 under section 321J.4, 321J.9, 321J.12, or 321J.20. The 4 28 defendant shall surrender to the court any Iowa license or 4 29 permit and the court shall forward it to the department with a 4 30 copy of the order for revocation. 4 31 5. Upon a plea or verdict of guilty of a violation of 4 32 section 321J.2 which involved a death, the court shall 4 33 determine in open court, from consideration of the information 4 34 in the file and any other evidence the parties may submit, 4 35 whether a death occurred and, if so, whether the defendant's 5 1 conduct in violation of section 321J.2 caused the death. If 5 2 the court so determines, the court shall order the department 5 3 to revoke the defendant's motor vehicle license or nonresident 5 4 operating privilege for a period of six years. The defendant 5 5 shall not be eligible for any temporary restricted license 5 6 until the minimum period of ineligibility has expired under 5 7 section 321J.4, 321J.9, 321J.12, or 321J.20. The defendant 5 8 shall surrender to the court any Iowa license or permit and 5 9 the court shall forward it to the department with a copy of 5 10 the order for revocation. 5 11 7. On a conviction foror as a condition of a deferred5 12judgment fora violation of section 321J.2, the court may 5 13 order the defendant to install ignition interlock devices of a 5 14 type approved by the commissioner of public safety on all 5 15 motor vehicles owned or operated by the defendant which, 5 16 without tampering or the intervention of another person, would 5 17 prevent the defendant from operating the motor vehicle with an 5 18 alcohol concentration greater than a level set by rule of the 5 19 commissioner of public safety. The commissioner of public 5 20 safety shall adopt rules to approve certain ignition interlock 5 21 devices and the means of installation of the devices, and 5 22 shall establish the level of alcohol concentration beyond 5 23 which an ignition interlock device will not allow operation of 5 24 the motor vehicle in which it is installed. The order shall 5 25 remain in effect for a period of time as determined by the 5 26 court which shall not exceed the maximum term of imprisonment 5 27 which the court could have imposed according to the nature of 5 28 the violation. While the order is in effect, the defendant 5 29 shall not operate a motor vehicle which does not have an 5 30 approved ignition interlock device installed. If the 5 31 defendant's motor vehicle license or nonresident operating 5 32 privilege has been revoked, the department shall not issue a 5 33 temporary permit or a motor vehicle license to the person 5 34 without certification that approved ignition interlock devices 5 35 have been installed in all motor vehicles owned or operated by 6 1 the defendant while the order is in effect. A defendant who 6 2 fails within a reasonable time to comply with an order to 6 3 install an approved ignition interlock device may be declared 6 4 in contempt of court and punished accordingly. A person who 6 5 tampers with or circumvents an ignition interlock device 6 6 installed under a court order while an order is in effect 6 7 commits a serious misdemeanor. 6 8 8. A person whose motor vehicle license has either been 6 9 revoked under this chapter, or revoked or suspended under 6 10 chapter 321 solely for violations of this chapter, or who has 6 11 been determined to be a habitual offender under chapter 321 6 12 based solely on violations of this chapter, and who is not 6 13 eligible for a temporary restricted license under this chapter 6 14 may petition the court upon the expiration of the minimum 6 15 period of ineligibility for a temporary restricted license 6 16 provided for under section 321J.4, 321J.9, 321J.12, or 321J.20 6 17 for an order to the department to require the department to 6 18 issue a temporary restricted license to the person 6 19 notwithstanding section 321.560. Upon the filing of a 6 20 petition for a temporary restricted license under this 6 21 section, the clerk of the district court in the county where 6 22 the violation that resulted in the revocation occurred shall 6 23 send notice of the petition to the department and the 6 24 prosecuting attorney. The department and the prosecuting 6 25 attorney shall each be given an opportunity to respond to and 6 26 request a hearing on the petition. The court shall determine 6 27 if the temporary restricted license is necessary for the 6 28 person to maintain the person's present employment. If the 6 29 court determines that the temporary restricted license is 6 30 necessary for the person to maintain the person's present 6 31 employment, and that the minimum period of ineligibility for 6 32 receipt of a temporary license has expired, the court shall 6 33 order the department to issue to the person a temporary 6 34 restricted license conditioned upon the person's certification 6 35 to the court of the installation of approved ignition 7 1 interlock devices in all motor vehicles that it is necessary 7 2 for the person to operate to maintain the person's present 7 3 employment. Section 321.561 does not apply to a person 7 4 operating a motor vehicle in the manner permitted under this 7 5 subsection. If the person operates a motor vehicle which does 7 6 not have an approved ignition interlock device or if the 7 7 person tampers with or circumvents an ignition interlock 7 8 device, in addition to other penalties provided, the person's 7 9 temporary restricted license shall be revoked. A person 7 10 holding a temporary restricted license issued under this 7 11 subsection shall not operate a commercial motor vehicle, as 7 12 defined in section 321.1, on a highway if a commercial 7 13 driver's license is required for the person to operate the 7 14 commercial motor vehicle. 7 15 Sec. 9. Section 321J.4A, subsection 2, Code 1995, is 7 16 amended to read as follows: 7 17 2. For purposes of this section, a conviction for, 7 18 deferred judgment entered prior to July 1, 1995, for, or plea 7 19 of guilty to, a violation of section 321J.2, which occurred 7 20 more than six years prior to the date of the most recent 7 21 violation charged, shall not be considered in determining that 7 22 the most recent violation is a third or subsequent violation. 7 23 Sec. 10. Section 321J.8, Code 1995, is amended to read as 7 24 follows: 7 25 321J.8 STATEMENT OF OFFICER. 7 26 A person who has been requested to submit to a chemical 7 27 test shall be advised by a peace officer of the following: 7 28 1. If the person refuses to submit to the test, the 7 29 person's motor vehicle license or nonresident operating 7 30 privilege will be revoked by the department as required by and 7 31 for the applicable period specified under section 321J.9. 7 32 2. If the person submits to the test and the results 7 33 indicate an alcohol concentration as defined in section 321J.1 7 34 of .10 or more, the person's motor vehicle license or 7 35 nonresident operating privilege will be revoked by the 8 1 department as required by and for the applicable period 8 2 specified under section 321J.12. 8 3 3. If the person is operating a commercial motor vehicle 8 4 as defined in section 321.1 and either refuses to submit to 8 5 the test or submits to the test and the results indicate an 8 6 alcohol concentration of 0.04 or more, the person is 8 7 disqualified from operating a commercial motor vehicle for the 8 8 applicable period under section 321.208 in addition to any 8 9 revocation of the person's motor vehicle license or 8 10 nonresident operating privilege which may be applicable under 8 11 this chapter. 8 12 This section does not apply in any case involving a person 8 13 described in section 321J.7. 8 14 Sec. 11. Section 321J.9, Code 1995, is amended to read as 8 15 follows: 8 16 321J.9 REFUSAL TO SUBMIT &endash; REVOCATION. 8 17 1. If a person refuses to submit to the chemical testing, 8 18 a test shall not be given, but the department, upon the 8 19 receipt of the peace officer's certification, subject to 8 20 penalty for perjury, that the officer had reasonable grounds 8 21 to believe the person to have been operating a motor vehicle 8 22 in violation of section 321J.2, that specified conditions 8 23 existed for chemical testing pursuant to section 321J.6, and 8 24 that the person refused to submit to the chemical testing, 8 25 shall revoke the person's motor vehicle license and any 8 26 nonresident operating privilege fora periodthe following 8 27 periods oftwotime: 8 28 a. Two hundred forty days if the person has no previous 8 29 revocation within the previous six years under this chapter; 8 30 andfive8 31 b. Five hundred forty days if the person has one or more 8 32 previous revocations within the previous six years under this 8 33 chapter; or if. 8 34 2. A person whose motor vehicle license or nonresident 8 35 operating privileges are revoked for two hundred forty days 9 1 under subsection 1, paragraph "a", shall not be eligible for a 9 2 temporary restricted license for at least ninety days after 9 3 the effective date of the revocation. A person whose motor 9 4 vehicle license or nonresident operating privileges are 9 5 revoked for five hundred forty days under subsection 1, 9 6 paragraph "b", shall not be eligible for a temporary 9 7 restricted license for at least one year after the effective 9 8 date of the revocation. 9 9 3. If the person is a resident without a license or permit 9 10 to operate a motor vehicle in this state, the department shall 9 11 deny to the person the issuance of a license or permit for the 9 12 same period a license or permit would be revoked, and deny 9 13 issuance of a temporary restricted license for the same period 9 14 of ineligibility for receipt of a temporary restricted 9 15 license, subject to review as provided in this chapter. The 9 16 effective date of revocation shall betwentyten days after 9 17 the department has mailed notice of revocation to the person 9 18 by certified mail or, on behalf of the department, a peace 9 19 officer offering or directing the administration of a chemical 9 20 test may serve immediate notice of intention to revoke and of 9 21 revocation on a person who refuses to permit chemical testing. 9 22 If the peace officer serves that immediate notice, the peace 9 23 officer shall take the Iowa license or permit of the driver, 9 24 if any, and issue a temporary license effective for only 9 25twentyten days. The peace officer shall immediately send the 9 26 person's license to the department along with the officer's 9 27 certificate indicating the person's refusal to submit to 9 28 chemical testing. 9 29 Sec. 12. Section 321J.12, Code 1995, is amended to read as 9 30 follows: 9 31 321J.12 TEST RESULT REVOCATION. 9 32 1. Upon certification, subject to penalty for perjury, by 9 33 the peace officer that there existed reasonable grounds to 9 34 believe that the person had been operating a motor vehicle in 9 35 violation of section 321J.2, that there existed one or more of 10 1 the necessary conditions for chemical testing described in 10 2 section 321J.6, subsection 1, and that the person submitted to 10 3 chemical testing and the test results indicated an alcohol 10 4 concentration as defined in section 321J.1 of .10 or more, the 10 5 department shall revoke the person's motor vehicle license or 10 6 nonresident operating privilege fora periodthe following 10 7 periods ofonetime: 10 8 a. One hundred eighty days if the person has had no 10 9 revocation within the previous six years under this chapter,. 10 10and one10 11 b. One year if the person has had one or more previous 10 12 revocations within the previous six years under this chapter. 10 13 2. A person whose motor vehicle license or nonresident 10 14 operating privileges have been revoked under subsection 1, 10 15 paragraph "a", shall not be eligible for any temporary 10 16 restricted license for at least thirty days after the 10 17 effective date of the revocation. A person whose license or 10 18 privileges have been revoked under subsection 1, paragraph 10 19 "b", for one year shall not be eligible for any temporary 10 20 restricted license for one year after the effective date of 10 21 the revocation. 10 22 3. The effective date of the revocation shall betwenty10 23 ten days after the department has mailed notice of revocation 10 24 to the person by certified mail. The peace officer who 10 25 requested or directed the administration of the chemical test 10 26 may, on behalf of the department, serve immediate notice of 10 27 revocation on a person whose test results indicated an alcohol 10 28 concentration of .10 or more. 10 29 4. If the peace officer serves that immediate notice, the 10 30 peace officer shall take the person's Iowa license or permit, 10 31 if any, and issue a temporary license valid only fortwenty10 32 ten days. The peace officer shall immediately send the 10 33 person's driver's license to the department along with the 10 34 officer's certificate indicating that the test results 10 35 indicated an alcohol concentration of .10 or more. 11 1 5. The results of a chemical test may not be used as the 11 2 basis for a revocation of a person's motor vehicle license or 11 3 nonresident operating privilege if the alcohol concentration 11 4 indicated by the chemical test minus the established margin of 11 5 error inherent in the device or method used to conduct the 11 6 chemical test does not equal an alcohol concentration of .10 11 7 or more. 11 8 Sec. 13. Section 321J.13, subsections 1, 2, and 3, Code 11 9 1995, are amended to read as follows: 11 10 1. Notice of revocation of a person's motor vehicle 11 11 license or operating privilege served pursuant to section 11 12 321J.9 or 321J.12 shall include a form accompanied by a 11 13 preaddressed envelope on which the person served may indicate 11 14 by a checkmark if the person only wishes to request a 11 15 temporary restricted licenseonlyafter the mandatory 11 16 ineligibility period for issuance of a temporary restricted 11 17 license has ended, or if the person wishes a hearing to 11 18 contest the revocation. The form shall clearly state on its 11 19 face that the form must be completed and returned within 11 20thirtyten days of receipt or the person's right to a hearing 11 21 to contest the revocation is foreclosed. The form shall also 11 22 be accompanied by a statement of the operation of and the 11 23 person's rights under this chapter. 11 24 2. The department shall grant the person an opportunity to 11 25 be heard within forty-five days of receipt of a request for a 11 26 hearing if the request is made not later thanthirtyten days 11 27 after receipt of notice of revocation served pursuant to 11 28 section 321J.9 or 321J.12. The hearing shall be before the 11 29 department in the county where the alleged events occurred, 11 30 unless the director and the person agree that the hearing may 11 31 be held in some other county, or the hearing may be held by 11 32 telephone conference at the discretion of the agency 11 33 conducting the hearing. The hearing may be recorded and its 11 34 scope shall be limited to the issues of whether a peace 11 35 officer had reasonable grounds to believe that the person was 12 1 operating a motor vehicle in violation of section 321J.2 and 12 2 either of the following: 12 3 a. Whether the person refused to submit to the test or 12 4 tests. 12 5 b. Whether a test was administered and the test results 12 6 indicated an alcohol concentration as defined in section 12 7 321J.1 of .10 or more. 12 8 3. After the hearing the department shall order that the 12 9 revocation be either rescinded or sustained.If the12 10revocation is sustained, the administrative law judge who12 11conducted the hearing may issue a temporary restricted license12 12to the person whose motor vehicle license or operating12 13privilege was revoked.Upon receipt of the decision of the 12 14 department to sustain a revocation, the person contesting the 12 15 revocation has ten days to file a request for review of the 12 16 decision by the director. The director or the director's 12 17 designee shall review the decision within fifteen days and 12 18 shall either rescind or sustain the revocation or order a new 12 19 hearing. If the director orders a new hearing, the department 12 20 shall grant the person a new hearing withinthirtytwenty days 12 21 of the director's order. 12 22 Sec. 14. Section 321J.20, subsection 1, Code 1995, is 12 23 amended to read as follows: 12 24 1. The department may, on application, issue a temporary 12 25 restricted license to a person whose motor vehicle license is 12 26 revoked under this chapter allowing the person to drive to and 12 27 from the person's home and specified places at specified times 12 28 which can be verified by the department and which are required 12 29 by the person's full-time or part-time employment, continuing 12 30 health care or the continuing health care of another who is 12 31 dependent upon the person, continuing education while enrolled 12 32 in an educational institution on a part-time or full-time 12 33 basis and while pursuing a course of study leading to a 12 34 diploma, degree, or other certification of successful 12 35 educational completion, substance abuse treatment, and court- 13 1 ordered community service responsibilities if the person's 13 2 motor vehicle license has not been revoked under section 13 3 321J.4, 321J.9, or 321J.12 within the previous six years and 13 4 if any of the following apply: 13 5 a. The person's motor vehicle license is revoked under 13 6 section 321J.4, subsection 1,2,4, or 6, and the minimum 13 7 period of ineligibility for issuance of a temporary restricted 13 8 license has expired. 13 9 b. The person's motor vehicle license is revoked under 13 10 section 321J.9 and the person has entered a plea of guilty on 13 11 a charge of a violation of section 321J.2 which arose from the 13 12 same set of circumstances which resulted in the person's motor 13 13 vehicle license revocation under section 321J.9 and the guilty 13 14 plea is not withdrawn at the time of or after application for 13 15 the temporary restricted license, and the minimum period of 13 16 ineligibility for issuance of a temporary restricted license 13 17 has expired. 13 18 c. The person's motor vehicle license is revoked under 13 19 section 321J.12, and the minimum period of ineligibility for 13 20 issuance of a temporary restricted license has expired. 13 21 However, a temporary restricted license may be issued if 13 22 the person's motor vehicle license is revoked under section 13 23 321J.9, and the revocation is a second revocation under this 13 24 chapter, and the first three hundred andsixtysixty-five days 13 25 of the revocation have expired. 13 26 Sec. 15. Section 321J.24, subsection 2, Code 1995, is 13 27 amended to read as follows: 13 28 2. A reality education substance abuse prevention program 13 29 is established in those judicial districts where the chief 13 30 judge of the judicial district authorizes participation in the 13 31 program. Upon a conviction or adjudication for a violation of 13 32 section 321J.2,or the entry of a deferred judgment concerning13 33a violation of section 321J.2,the court or juvenile court, 13 34 with the consent of the defendant or delinquent child, may 13 35 order a defendant who is sixteen years of age or older but 14 1 under the age of twenty-one or delinquent child who is sixteen 14 2 years of age or older to participate in the reality education 14 3 substance abuse prevention program as a term and condition of 14 4 probation or disposition in addition to any other term or 14 5 condition of probation or disposition required or authorized 14 6 by law. The court or juvenile court shall require the 14 7 defendant or delinquent child to abstain from consuming any 14 8 controlled substance, alcoholic liquor, wine, or beer before 14 9 reaching age twenty-one while participating in the program. 14 10 Sec. 16. Section 707.6A, subsection 5, Code 1995, is 14 11 amended to read as follows: 14 12 5. Except for the purpose of sentencing under section 14 13 321J.2, subsection 2, a conviction for or deferral of judgment 14 14 for a violation of this section, where a violation of section 14 15 321J.2 is admitted or proved, shall be treated, on or after 14 16 July 1, 1995, as a convictionor deferral of judgmentfor a 14 17 violation of section 321J.2 for the purposes of chapters 321, 14 18 321A, and 321J, and section 907.3, subsection 1. 14 19 Sec. 17. Section 907.3, subsection 1, paragraph g, Code 14 20 1995, is amended to read as follows: 14 21 g. The offense is a violation of section 321J.2and,14 22within the previous six years, the person has been convicted14 23of a violation of that section or the person's driver's14 24license has been revoked pursuant to section 321J.4, 321J.9,14 25or 321J.12. 14 26 Sec. 18. Section 907.3, subsection 2, Code 1995, is 14 27 amended to read as follows: 14 28 2. At the time of or after pronouncing judgment and with 14 29 the consent of the defendant, the court may defer the sentence 14 30 and assign the defendant to the judicial district department 14 31 of correctional services. However, the court shall not defer 14 32 the sentence for a violation of section 708.2A if the 14 33 defendant has previously received a deferred judgment or 14 34 sentence for a violation of section 708.2 or 708.2A which was 14 35 issued on a domestic abuse assault, or if similar relief was 15 1 granted anywhere in the United States concerning that 15 2 jurisdiction's statutes which substantially correspond to 15 3 domestic abuse assault as provided in section 708.2A. In 15 4 addition, the court shall not defer a sentence if it is 15 5 imposed for contempt pursuant to section 236.8 or 236.14 or if 15 6 it is for a violation of section 321J.2. Upon a showing that 15 7 the defendant is not fulfilling the conditions of probation, 15 8 the court may revoke probation and impose any sentence 15 9 authorized by law. Before taking such action, the court shall 15 10 give the defendant an opportunity to be heard on any matter 15 11 relevant to the proposed action. Upon violation of the 15 12 conditions of probation, the court may proceed as provided in 15 13 chapter 908. 15 14 DIVISION III 15 15 Sec. 19. Section 462A.14, Code 1995, is amended by 15 16 striking the section and inserting in lieu thereof the 15 17 following: 15 18 462A.14 OPERATING A WATERCRAFT WHILE INTOXICATED &endash; 15 19 IMPLIED CONSENT TO TEST. 15 20 1. As used in this section: 15 21 a. "Chemical test" means an analysis of a person's blood, 15 22 breath, urine, or other bodily substance for the determination 15 23 of the presence of alcohol, a controlled substance, or a drug. 15 24 b. "Controlled substance" means controlled substance as 15 25 defined in section 124.101. 15 26 c. "Intoxicated" means the condition of a person who is 15 27 under the influence of alcohol, a controlled substance, a drug 15 28 other than alcohol or a controlled substance, or any 15 29 combination of alcohol, a controlled substance, a drug other 15 30 than alcohol or a controlled substance, or a drug, which 15 31 impairs thought and action and loss of normal control of the 15 32 person's faculties to an extent which endangers a person. 15 33 d. "Peace officer" means peace officer as defined in 15 34 section 801.4. 15 35 e. "Prima facie evidence of intoxication" includes 16 1 evidence that, at the time of an alleged violation, a person 16 2 had an alcohol concentration equal to or in excess of the 16 3 level specified in section 321J.2, subsection 1, paragraph 16 4 "b". 16 5 f. "Relevant evidence of intoxication" includes evidence 16 6 that, at the time of the alleged violation, a person had an 16 7 alcohol concentration of at least one-half, but not more than, 16 8 the level specified in section 321J.2, subsection 1, paragraph 16 9 "b". 16 10 g. "Watercraft" means a device for transportation by water 16 11 including a vessel, water skis, surfboard, or similar device. 16 12 2. a. A person who operates a watercraft while having an 16 13 alcohol concentration equal to or in excess of the level 16 14 specified in section 321J.2, subsection 1, paragraph "b", or 16 15 while intoxicated, commits an aggravated misdemeanor. 16 16 b. A person who violates this section commits a class "D" 16 17 felony in either of the following cases: 16 18 (1) If the person has a previous conviction under this 16 19 section. 16 20 (2) If the offense results in serious bodily injury to 16 21 another person and the court determines that the person who 16 22 committed the offense caused the serious injury. 16 23 c. A person who violates this section commits a class "C" 16 24 felony if the crime results in the death of another person and 16 25 the court determines that the person who committed the offense 16 26 caused the death. 16 27 d. A person who operates a watercraft after the person has 16 28 been ordered, pursuant to this section, not to operate a 16 29 watercraft commits a simple misdemeanor. 16 30 3. a. In addition to a criminal penalty imposed for a 16 31 misdemeanor under this section, the court shall order the 16 32 person not to operate a watercraft for at least one year. 16 33 b. In addition to a criminal penalty imposed for a felony 16 34 under this section, the court shall order the person not to 16 35 operate a watercraft for at least two years. 17 1 4. a. A person who operates a watercraft in waters over 17 2 which this state has jurisdiction impliedly consents to submit 17 3 to the chemical test provisions of this section as a condition 17 4 of operating a watercraft in this state. If a person refuses 17 5 to submit to a chemical test under this section, the court 17 6 shall order the person not to operate a watercraft for at 17 7 least one year. 17 8 b. A peace officer who has probable cause to believe that 17 9 a person has committed an offense under this section shall 17 10 offer the person the opportunity to submit to a chemical test. 17 11 However, it is not necessary for the peace officer to offer a 17 12 chemical test to an unconscious person. A peace officer may 17 13 offer a person more than one chemical test under this section. 17 14 However, all tests must be administered within three hours 17 15 after the officer had probable cause to believe the person 17 16 violated this section. A person must submit to each chemical 17 17 test offered by a peace officer in order to comply with the 17 18 implied consent provisions of this section. 17 19 c. If the chemical test results in relevant evidence that 17 20 the person is intoxicated, the person may be arrested for an 17 21 offense under this section. If the chemical test results in 17 22 prima facie evidence that the person is intoxicated, the 17 23 person shall be arrested for an offense under this section. 17 24 d. A person who refuses to submit to a chemical test may 17 25 be arrested for an offense under this section. 17 26 e. At any proceeding under this section, a person's 17 27 refusal to submit to a chemical test is admissible into 17 28 evidence. 17 29 f. If a person refuses to submit to a chemical test under 17 30 this section, the peace officer shall inform the person that 17 31 the person's refusal will result in the suspension of the 17 32 person's watercraft operation privileges. 17 33 5. At any proceeding concerning an offense under this 17 34 section, evidence of the amount by weight of alcohol that was 17 35 in the blood of the person charged with the offense at the 18 1 time of the alleged violation, as shown by an analysis of the 18 2 person's blood, breath, urine, or other bodily substance, is 18 3 admissible. 18 4 DIVISION IV 18 5 Sec. 20. Section 321J.4A, subsection 5, Code 1995, is 18 6 amended to read as follows: 18 7 5. A registered owner shall not sell a motor vehicle 18 8 during the time its registration plates and registration 18 9 certificate have been ordered surrendered or during the time 18 10 its registration plates bear a special series number, unless 18 11 the registered owner applies to the department for consent to 18 12 transfer title to the motor vehicle. If the department is 18 13 satisfied that the proposed sale is in good faith and for 18 14 valid consideration, that the registered owner will be 18 15 deprived of custody and control of the motor vehicle, and that 18 16 the sale is not for the purpose of circumventing the 18 17 provisions of this section, the department may certify its 18 18 consent to the county treasurer. The county treasurer shall 18 19 then transfer the title to the new owner upon proper 18 20 application and issue new registration plates. After the 18 21 registration plates and registration certificate have been 18 22 ordered surrendered to the court under this section, if the 18 23 title to the motor vehicle is transferred by the cancellation 18 24 of a conditional sales contract, a sale upon execution, as a 18 25 result of forfeiture of the motor vehicle under chapter 809, 18 26 or by decree or order of a court of competent jurisdiction, 18 27 the department shall order the title surrendered to the new 18 28 registered owner. The county treasurer shall then transfer 18 29 the title and issue new registration plates to the new 18 30 registered owner. 18 31 Sec. 21. Section 809.1, subsection 2, Code 1995, is 18 32 amended by adding the following new paragraph: 18 33 NEW PARAGRAPH. e. A motor vehicle which is used to commit 18 34 a third or subsequent offense of operating while intoxicated 18 35 under section 321J.2. 19 1 Sec. 22. Section 809.1, subsection 4, Code 1995, is 19 2 amended to read as follows: 19 3 4.TheExcept as otherwise provided in subsection 2, 19 4 paragraph "e", the definitions contained in subsections 1 19 5 through 3 shall not apply to violations of chapter 321 or 19 6 321J. 19 7 Sec. 23. Section 809.2, Code 1995, is amended to read as 19 8 follows: 19 9 809.2 NOTICE OF SEIZURE. 19 10 The officer taking possession of seized property shall make 19 11 a written inventory of the property and deliver a copy of the 19 12 inventory to the person from whom it was seized. The 19 13 inventory shall include the name of the person taking custody 19 14 of the seized property, the date and time of the seizure, and 19 15 the law enforcement agency seizing the property. If the 19 16 property seized is a motor vehicle that has been seized as a 19 17 result of an arrest of a person for operating while 19 18 intoxicated and being a third or subsequent offender under 19 19 section 321J.2, a copy of the inventory listing the motor 19 20 vehicle shall also be sent to any registered owner of the 19 21 vehicle if the registered owner is not the person from whom 19 22 the vehicle was seized. 19 23 EXPLANATION 19 24 Division I of this bill eliminates the accommodation 19 25 offense for charges of unlawful delivery or possession with 19 26 intent to deliver marijuana where one ounce or less of 19 27 marijuana is delivered or possessed. References to the 19 28 accommodation offense are also deleted. An incorrect 19 29 reference to the accommodation offense is changed to a 19 30 reference to section 124.411, which relates to punishment for 19 31 second or subsequent drug offenses. The effect of the 19 32 accommodation offense is to reduce the penalty applicable to 19 33 delivery or possession of one ounce or less of marijuana from 19 34 a class "D" felony to a serious misdemeanor. 19 35 Division II of this bill contains language that is intended 20 1 to comply with federal section 410 criteria established for 20 2 states with comprehensive drunk driving prevention programs. 20 3 Federal section 410 criteria require the establishment of 20 4 periods of "hard" revocation and the completion of the license 20 5 revocation hearing process within an abbreviated period of 20 6 time. States meeting such criteria, as determined by the 20 7 national highway traffic safety administration (NHTSA), are 20 8 eligible to receive grant funds (65 percent of current section 20 9 402 moneys) to enhance their drunk driving prevention 20 10 programs. Minimum periods of "hard" suspension (no driving 20 11 privileges) are established for persons driving while 20 12 intoxicated. Minimum revocation periods of 30 days are 20 13 established if the person submitted to and failed a chemical 20 14 test resulting in an indication of an alcohol concentration of 20 15 .10 or more, 90 days if the person refuses to submit to a 20 16 chemical test, and one year for a person who had had one or 20 17 more previous revocations under chapter 321J within the 20 18 previous six years. 20 19 Division II requires that the local prosecuting attorney 20 20 and the state department of transportation be given notice by 20 21 the clerk of the district court of, and the opportunity to 20 22 request a hearing on, a petition for a temporary restricted 20 23 license pursuant to section 321J.4. 20 24 A reduction of the effective date of revocation from 20 to 20 25 10 days is provided for and a request for hearing is required 20 26 to be completed and returned to the department within 10 days 20 27 (currently 30) upon receipt of notice of revocation. The time 20 28 within which a new hearing can be held after a hearing result 20 29 is contested is reduced. Under division II of the bill 20 30 persons subject to judicial, as well as administrative, 20 31 revocation are subject to "hard" suspension provisions. 20 32 Division II also prohibits, after July 1, 1995, the receipt 20 33 of deferred judgments or deferred sentences for persons who 20 34 have been found guilty of or have pled guilty to the offense 20 35 of operating while intoxicated. Deferred judgments received 21 1 for the offense of vehicular homocide which are based on proof 21 2 of operating while intoxicated offenses after July 1, 1995, 21 3 are required to be considered in determining whether an 21 4 offense is a second, third, or subsequent offense. Deferred 21 5 judgments received out-of-state after July 1, 1995, would 21 6 consequently count as convictions for purposes of determining 21 7 whether an enhanced penalty would apply. References to 21 8 receipt of deferred judgments or sentences contained in 21 9 chapter 321J and other related chapters are deleted or 21 10 modified to reflect the prohibition on receipt of deferred 21 11 judgments or sentences after July 1, 1995. 21 12 Division II also eliminates the $2,000 limit on restitution 21 13 which a defendant may be ordered to pay as a result of a 21 14 violation of section 321J.2, prohibiting operating a motor 21 15 vehicle while intoxicated, and provides that the amount of any 21 16 restitution is to be determined pursuant to the victim 21 17 restitution chapter (chapter 910). 21 18 Division III prohibits the operation of a watercraft by a 21 19 person who is intoxicated and imposes an implied consent to 21 20 test for those persons operating a watercraft similar to that 21 21 applied in chapter 321J to persons operating a motor vehicle. 21 22 A person who commits such a violation commits an aggravated 21 23 misdemeanor for a first offense, a class "D" felony for a 21 24 second offense or if the offense resulted in a serious injury 21 25 to another caused by the offender, and a class "C" felony if 21 26 the offense resulted in the death of another and was caused by 21 27 the offender. In addition to criminal penalties, the court 21 28 shall order a person who commits an offense which is a 21 29 misdemeanor, not to operate a watercraft for at least one 21 30 year. For a person who commits an offense which is a felony 21 31 the court shall order the person not to operate a watercraft 21 32 for two years. If a person refuses to take a chemical test 21 33 when requested by a peace officer, the court shall order the 21 34 person not to operate a watercraft for one year. A person who 21 35 violates an order not to operate a watercraft commits a simple 22 1 misdemeanor. 22 2 Division IV of this bill provides under current forfeiture 22 3 procedures for forfeiture of motor vehicles that are used in 22 4 the commission of the offense of operating while intoxicated 22 5 and being a third or subsequent offender. If the owner of the 22 6 vehicle is not the person from whom the vehicle is seized, the 22 7 owner of the vehicle is to be sent notice of the seizure and 22 8 possible forfeiture of the vehicle by the officer taking 22 9 possession of the vehicle. 22 10 This bill may create a state mandate as defined in section 22 11 25B.3. 22 12 LSB 1590XL 76 22 13 lh/cf/24.1
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