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PAG LIN 1 1 Section 1. Section 321J.1, Code 1995, is amended to read 1 2 as follows: 1 3 321J.1 DEFINITIONS. 1 4 As used in this chapter, unless the context otherwise 1 5 requires: 1 6 1. "Alcohol concentration" means the number of grams of 1 7 alcohol per any of the following: 1 8 a. One hundred milliliters of blood. 1 9 b. Two hundred ten liters of breath. 1 10 c. Sixty-seven milliliters of urine. 1 11 2. "Alcoholic beverage" includes alcohol, wine, spirits, 1 12 beer, or any other beverage which contains ethyl alcohol and 1 13 is fit for human consumption. 1 14 3. "Arrest" includes but is not limited to taking into 1 15 custody pursuant to section 232.19. 1 16 4. "Controlled substance" means any drug, substance, or 1 17 compound that is regulated under chapter 124 as well as any 1 18 metabolite or derivative of the drug, substance, or compound. 1 194.5. "Department" means the state department of 1 20 transportation. 1 215.6. "Director" means the director of transportation or 1 22 the director's designee. 1 236.7. "Motor vehicle license" means any license or permit 1 24 issued to a person to operate a motor vehicle on the highways 1 25 of this state, including but not limited to a driver's, 1 26 commercial driver's, temporary restricted, or temporary 1 27 license and an instruction, chauffeur's instruction, 1 28 commercial driver's instruction, temporary restricted, or 1 29 temporary permit. 1 307.8. "Peace officer" means: 1 31 a. A member of the highway patrol. 1 32 b. A police officer under civil service as provided in 1 33 chapter 400. 1 34 c. A sheriff. 1 35 d. A regular deputy sheriff who has had formal police 2 1 training. 2 2 e. Any other law enforcement officer who has 2 3 satisfactorily completed an approved course relating to motor 2 4 vehicle operators under the influence of alcoholic beverages 2 5 at the Iowa law enforcement academy or a law enforcement 2 6 training program approved by the department of public safety. 2 78.9. "Serious injury" means a bodily injury which creates 2 8 a substantial risk of death, or which causes serious permanent 2 9 disfigurement, or which causes protracted loss or impairment 2 10 of the function of any bodily organ or major bodily member, or 2 11 which causes the loss of any bodily member. 2 12 Sec. 2. Section 321J.2, Code 1995, is amended to read as 2 13 follows: 2 14 321J.2 OPERATING WHILE INTOXICATEDUNDER THE INFLUENCE OF2 15ALCOHOL OR A DRUG OR WHILE HAVING AN ALCOHOL CONCENTRATION OF2 16.10 OR MORE(OWI). 2 17 1. A person commits the offense of operating while 2 18 intoxicated if the person operates a motor vehicle in this 2 19 state ineitherany of the following conditions: 2 20 a. While under the influence of an alcoholic beverage or 2 21 other drug or a combination of such substances. 2 22 b. While having an alcohol concentrationas defined in2 23section 321J.1of .10 or more. 2 24 c. While any amount of a controlled substance is present 2 25 in the person, as measured in the person's blood or urine. 2 26 2. A person who violates this section commits: 2 27 a. A serious misdemeanor for the first offense and shall 2 28 be imprisoned in the county jail for not less than forty-eight 2 29 hours to be served as ordered by the court, less credit for 2 30 any time the person was confined in a jail or detention 2 31 facility following arrest, and assessed a fine of not less 2 32 than five hundred dollars nor more than one thousand dollars. 2 33 As an alternative to a portion or all of the fine, the court 2 34 may order the person to perform not more than two hundred 2 35 hours of unpaid community service. The court may accommodate 3 1 the sentence to the work schedule of the defendant. 3 2 b. An aggravated misdemeanor for a second offense and 3 3 shall be imprisoned in the county jail or community-based 3 4 correctional facility not less than seven days, which minimum 3 5 term cannot be suspended notwithstanding section 901.5, 3 6 subsection 3 and section 907.3, subsection 3, and assessed a 3 7 fine of not less than seven hundred fifty dollars. 3 8 c. A class "D" felony for a third offense and each 3 9 subsequent offense and shall be imprisoned in the county jail 3 10 for a determinate sentence of not more than one year but not 3 11 less than thirty days, or committed to the custody of the 3 12 director of the department of corrections, and assessed a fine 3 13 of not less than seven hundred fifty dollars. The minimum 3 14 jail term of thirty days cannot be suspended notwithstanding 3 15 section 901.5, subsection 3, and section 907.3, subsection 3, 3 16 however, the person sentenced shall receive credit for any 3 17 time the person was confined in a jail or detention facility 3 18 following arrest. If a person is committed to the custody of 3 19 the director of the department of corrections pursuant to this 3 20 paragraph and the sentence is suspended, the sentencing court 3 21 shall order that the offender serve the thirty-day minimum 3 22 term in the county jail. If the sentence which commits the 3 23 person to the custody of the director of the department of 3 24 corrections is later imposed by the court, all time served in 3 25 a county jail toward the thirty-day minimum term shall count 3 26 as time served toward the sentence which committed the person 3 27 to the custody of the director of the department of 3 28 corrections. A person convicted of a second or subsequent 3 29 offense shall be ordered to undergo a substance abuse 3 30 evaluation prior to sentencing. If a person is convicted of a 3 31 third or subsequent offense or if the evaluation recommends 3 32 treatment, the offender may be committed to the custody of the 3 33 director of the department of corrections, who, if the 3 34 sentence is not suspended, shall assign the person to a 3 35 facility pursuant to section 904.513 or the offender may be 4 1 committed to treatment in the community under the provisions 4 2 of section 907.6. 4 3 A minimum term of imprisonment in a county jail or 4 4 community-based correctional facility imposed on a person 4 5 convicted of a second or subsequent offense under paragraph 4 6 "b" or "c" shall be served on consecutive days. However, if 4 7 the sentencing court finds that service of the full minimum 4 8 term on consecutive days would work an undue hardship on the 4 9 person, or finds that sufficient jail space is not available 4 10 and is not reasonably expected to become available within four 4 11 months after sentencing to incarcerate the person serving the 4 12 minimum sentence on consecutive days, the court may order the 4 13 person to serve not less than forty-eight consecutive hours of 4 14 the minimum term and to perform a specified number of hours of 4 15 unpaid community service as deemed appropriate by the 4 16 sentencing court. 4 17 3. No conviction for, deferred judgment for, or plea of 4 18 guilty to, a violation of this section which occurred more 4 19 thansixten years prior to the date of the violation charged 4 20 shall be considered in determining that the violation charged 4 21 is a second, third,or subsequent offense. For the purpose of 4 22 determining if a violation charged is a second, third,or 4 23 subsequent offense, deferred judgments pursuant to section 4 24 907.3 for violations of this section and convictions or the 4 25 equivalent of deferred judgments for violations in any other 4 26 states under statutes substantially corresponding to this 4 27 section shall be counted as previous offenses. The courts 4 28 shall judicially notice the statutes of other states which 4 29 define offenses substantially equivalent to the one defined in 4 30 this section and can therefore be considered corresponding 4 31 statutes. Each previous violation on which conviction or 4 32 deferral of judgment was entered prior to the date of the 4 33 violation charged shall be considered and counted as a 4 34 separate previous offense. 4 35 4. A person shall not be convicted and sentenced for more 5 1 than one violation of this section for actions arising out of 5 2 the same event or occurrence, even if theviolation is shown5 3to have been committed by either or both of the means5 4describedevent or occurrence involves more than one of the 5 5 conditions specified in subsection 1in the same occurrence. 5 6 5. The clerk of court shall immediately certify to the 5 7 department a true copy of each order entered with respect to 5 8 deferral of judgment, deferral of sentence or pronouncement of 5 9 judgment and sentence for a defendant under this section. 5 10 6. a. This section does not apply to a person operating a 5 11 motor vehicle while under the influence of a drug if the 5 12 substance was prescribed for the person and was taken under 5 13 the prescription and in accordance with the directions of a 5 14 medical practitioner as defined in chapter 155A, if there is 5 15 no evidence of the consumption of alcohol and the medical 5 16 practitioner had not directed the person to refrain from 5 17 operating a motor vehicle. 5 18 b. When charged with a violation of subsection 1, 5 19 paragraph "c", a person may assert, as an affirmative defense, 5 20 that the controlled substance present in the person's blood or 5 21 urine was prescribed for the person and was taken in 5 22 accordance with the directions of a medical practitioner as 5 23 defined in chapter 155A. 5 24 7. In any prosecution under this section, evidence of the 5 25 results of analysis of a specimen of the defendant's blood, 5 26 breath, or urine is admissible upon proof of a proper 5 27 foundation. 5 28 a. The alcohol concentration established by the results of 5 29 an analysis of a specimen of the defendant's blood, breath, or 5 30 urine withdrawn within two hours after the defendant was 5 31 driving or in physical control of a motor vehicle is presumed 5 32 to be the alcohol concentration at the time of driving or 5 33 being in physical control of the motor vehicle. 5 34 b. The presence of a controlled substance or other drug in 5 35 the results of analysis of a specimen of a blood or urine 6 1 sample withdrawn from the defendant within two hours after the 6 2 defendant was driving or in physical control of the motor 6 3 vehicle is presumed to show the presence of such controlled 6 4 substance or other drug in the defendant at the time of 6 5 driving or being in physical control of the motor vehicle. 6 6 8. The court shall order a defendant convicted of or 6 7 receiving a deferred judgment for a violation of this section 6 8 to make restitution, in an amount not to exceed two thousand 6 9 dollars, for damages resulting directly from the violation. 6 10 An amount paid pursuant to this restitution order shall be 6 11 credited toward any adverse judgment in a subsequent civil 6 12 proceeding arising from the same occurrence. However, other 6 13 than establishing a credit, a restitution proceeding pursuant 6 14 to this section shall not be given evidentiary or preclusive 6 15 effect in a subsequent civil proceeding arising from the same 6 16 occurrence. 6 17 9. In any prosecution under this section, the results of a 6 18 chemical test may not be used to prove a violationof6 19paragraph "b"of subsection 1 if the alcohol concentration 6 20 indicated by the chemical test minus the established margin of 6 21 error inherent in the device or method used to conduct the 6 22 chemical test does not equalan alcohol concentration of .106 23or moreor exceed the level prohibited by subsection 1. 6 24 Sec. 3. Section 321J.4, subsection 1, Code Supplement 6 25 1995, is amended to read as follows: 6 26 1. If a defendant is convicted of a violation of section 6 27 321J.2 and the defendant's motor vehicle license or 6 28 nonresident operating privilege has not been revoked under 6 29 section 321J.9 or 321J.12 for the occurrence from which the 6 30 arrest arose, the department shall revoke the defendant's 6 31 motor vehicle license or nonresident operating privilege for 6 32 one hundred eighty days if the defendant has had no previous 6 33 conviction or revocation under this chapter within the 6 34 previoussixten years and the defendant shall not be eligible 6 35 for any temporary restricted license for at least thirty days 7 1 after the effective date of the revocation if a test was 7 2 obtained, and for at least ninety days if a test was refused. 7 3 If a defendant is convicted of a violation of section 7 4 321J.2, and the defendant's motor vehicle license or 7 5 nonresident operating privilege has not already been revoked 7 6 under section 321J.9 or 321J.12 for the occurrence from which 7 7 the arrest arose, the department shall revoke the defendant's 7 8 motor vehicle license or nonresident operating privilege for 7 9 one year if the defendant has had one or more previous 7 10 convictions or revocations under this chapter within the 7 11 previoussixten years. The defendant shall not be eligible 7 12 for any temporary restricted license during the entire one- 7 13 year revocation period. 7 14 Sec. 4. Section 321J.4, subsection 3, paragraph b, 7 15 subparagraph (2), Code Supplement 1995, is amended to read as 7 16 follows: 7 17 (2) The defendant, since the date of the revocation order, 7 18 has notbeen convicted, since the date of the revocation7 19order,: 7 20 (a) Been convicted of any subsequent violations of section 7 21 321J.2 or 123.46, or any comparable city or county ordinance,7 22and the defendant has not, since the date of the revocation7 23order, submitted, or 7 24 (b) Submitted to a chemical test under this chapter that 7 25 indicated the presence of a controlled substance or other 7 26 drug, or an alcohol concentrationas defined inequal to or in 7 27 excess of the amount prohibited by section321J.1 of .10 or7 28more, or refused321J.2, or 7 29 (c) Refused to submit to chemical testing under this 7 30 chapter. 7 31 Sec. 5. Section 321J.6, subsection 1, paragraph d, Code 7 32 Supplement 1995, is amended to read as follows: 7 33 d. The preliminary breath screening test was administered 7 34 and it indicated an alcohol concentrationas defined inequal 7 35 to or in excess of the level prohibited by section321J.1 of8 1.10 or more321J.2. 8 2 Sec. 6. Section 321J.6, subsection 1, paragraph f, Code 8 3 Supplement 1995, is amended to read as follows: 8 4 f. The preliminary breath screening test was administered 8 5 and it indicated an alcohol concentrationofless than0.108 6 the level prohibited by section 321J.2, and the peace officer 8 7 has reasonable grounds to believe that the person was under 8 8 the influence of a controlled substance, a drug other than 8 9 alcohol, or a combination of alcohol and another drug. 8 10 Sec. 7. Section 321J.6, subsection 1, paragraph g, Code 8 11 Supplement 1995, is amended to read as follows: 8 12 g. The preliminary breath screening test was administered 8 13 and it indicated an alcohol concentration of .02 or more,but8 14less than .10and the person is under the age of twenty-one. 8 15 Sec. 8. Section 321J.8, subsection 2, Code Supplement 8 16 1995, is amended to read as follows: 8 17 2. If the person submits to the test and the results 8 18 indicate the presence of a controlled substance or other drug, 8 19 or an alcohol concentrationas defined inequal to or in 8 20 excess of the level prohibited by section321J.1 of .10 or8 21more, or the person is under the age of twenty-one and the8 22results indicate an alcohol concentration of .02 or more, but8 23less than .10321J.2 or 321J.2A, the person's motor vehicle 8 24 license or nonresident operating privilege will be revoked by 8 25 the department as required by and for the applicable period 8 26 specified under section 321J.12. 8 27 Sec. 9. Section 321J.12, Code Supplement 1995, is amended 8 28 to read as follows: 8 29 321J.12 TEST RESULT REVOCATION. 8 30 1. Upon certification, subject to penalty for perjury, by 8 31 the peace officer that there existed reasonable grounds to 8 32 believe that the person had been operating a motor vehicle in 8 33 violation of section 321J.2, that there existed one or more of 8 34 the necessary conditions for chemical testing described in 8 35 section 321J.6, subsection 1, and that the person submitted to 9 1 chemical testing and the test results indicated the presence 9 2 of a controlled substance or other drug, or an alcohol 9 3 concentrationas defined inequal to or in excess of the level 9 4 prohibited by section321J.1 of .10 or more321J.2, the 9 5 department shall revoke the person's motor vehicle license or 9 6 nonresident operating privilege for the following periods of 9 7 time: 9 8 a. One hundred eighty days if the person has had no 9 9 revocation within the previous six years under this chapter. 9 10 b. One year if the person has had one or more previous 9 11 revocations within the previous six years under this chapter. 9 12 2. A person whose motor vehicle license or nonresident 9 13 operating privileges have been revoked under subsection 1, 9 14 paragraph "a", shall not be eligible for any temporary 9 15 restricted license for at least thirty days after the 9 16 effective date of the revocation. A person whose license or 9 17 privileges have been revoked under subsection 1, paragraph 9 18 "b", for one year shall not be eligible for any temporary 9 19 restricted license for one year after the effective date of 9 20 the revocation. 9 21 3. The effective date of the revocation shall be ten days 9 22 after the department has mailed notice of revocation to the 9 23 person by certified mail. The peace officer who requested or 9 24 directed the administration of the chemical test may, on 9 25 behalf of the department, serve immediate notice of revocation 9 26 on a person whose test results indicated the presence of a 9 27 controlled substance or other drug, or an alcohol 9 28 concentrationof .10 or moreequal to or in excess of the 9 29 level prohibited by section 321J.2. 9 30 4. If the peace officer serves that immediate notice, the 9 31 peace officer shall take the person's Iowa license or permit, 9 32 if any, and issue a temporary license valid only for ten days. 9 33 The peace officer shall immediately send the person's driver's 9 34 license to the department along with the officer's certificate 9 35 indicating that the test results indicated the presence of a 10 1 controlled substance or other drug, or an alcohol 10 2 concentrationof .10 or moreequal to or in excess of the 10 3 level prohibited by section 321J.2. 10 4 5. Upon certification, subject to penalty of perjury, by 10 5 the peace officer that there existed reasonable grounds to 10 6 believe that the person had been operating a motor vehicle in 10 7 violation of section 321J.2A, that there existed one or more 10 8 of the necessary conditions for chemical testing described in 10 9 section 321J.6, subsection 1, and that the person submitted to 10 10 chemical testing and the test results indicated an alcohol 10 11 concentrationas defined in section 321J.1of .02 or morebut10 12less than .10, the department shall revoke the person's motor 10 13 vehicle license or operating privilege for a period of sixty 10 14 days if the person has had no revocations within the previous 10 15 six years under section 321J.2A, and for a period of ninety 10 16 days if the person has had one or more previous revocations 10 17 within the previous six years under section 321J.2A. 10 18 6. The results of a chemical test may not be used as the 10 19 basis for a revocation of a person's motor vehicle license or 10 20 nonresident operating privilege if the alcohol concentration 10 21 indicated by the chemical test minus the established margin of 10 22 error inherent in the device or method used to conduct the 10 23 chemical testdoesis not equalan alcohol concentration of10 24.10 or more for violations underto or in excess of the level 10 25 prohibited by section 321J.2 orof .02 or more for violations10 26of section321J.2A. 10 27 Sec. 10. Section 321J.13, subsection 2, Code Supplement 10 28 1995, is amended to read as follows: 10 29 2. The department shall grant the person an opportunity to 10 30 be heard within forty-five days of receipt of a request for a 10 31 hearing if the request is made not later than ten days after 10 32 receipt of notice of revocation served pursuant to section 10 33 321J.9 or 321J.12. The hearing shall be before the department 10 34 in the county where the alleged events occurred, unless the 10 35 director and the person agree that the hearing may be held in 11 1 some other county, or the hearing may be held by telephone 11 2 conference at the discretion of the agency conducting the 11 3 hearing. The hearing may be recorded and its scope shall be 11 4 limited to the issues of whether a peace officer had 11 5 reasonable grounds to believe that the person was operating a 11 6 motor vehicle in violation of section 321J.2 orsection11 7 321J.2A andeitherone or more of the following: 11 8 a. Whether the person refused to submit to the test or 11 9 tests. 11 10 b. Whether a test was administered and the test results 11 11 indicated an alcohol concentrationas defined inequal to or 11 12 in excess of the level prohibited under section321J.1 of .1011 13or more or whether a test was administered and the test11 14results indicated an alcohol concentration as defined in11 15section 321J.1 of .02 or more pursuant to section321J.2 or 11 16 321J.2A. 11 17 c. Whether a test was administered and the test results 11 18 indicated the presence of a controlled substance or other drug 11 19 in violation of section 321J.2. 11 20 Sec. 11. Section 707.6A, subsection 1, paragraph a, Code 11 21 1995, is amended to read as follows: 11 22 a. Operating a motor vehicle whileunder the influence of11 23alcohol or other drug or a combination of such substances or11 24while having an alcohol concentrationintoxicated, asdefined11 25inprohibited by section321J.1, subsection 1, of .10 or more11 26 321J.2. Upon a plea or verdict of guilty of a violation of 11 27 this paragraph, the court shall order the state department of 11 28 transportation to revoke the defendant's motor vehicle license 11 29 or nonresident operating privileges for a period of six years. 11 30 The defendant shall surrender to the court any Iowa license or 11 31 permit and the court shall forward it to the department with a 11 32 copy of the revocation order. 11 33 Sec. 12. There is appropriated from the general fund of 11 34 the state to the governor's traffic safety bureau of the 11 35 department of public safety, for the fiscal year beginning 12 1 July 1, 1996, and ending June 30, 1997, the following amount, 12 2 or so much thereof as is necessary, to be used for the purpose 12 3 designated: 12 4 To purchase preliminary breath testing devices to be 12 5 distributed to county and city law enforcement agencies, by 12 6 competitive grant applications, to be used in enhanced 12 7 enforcement of chapter 321J: 12 8 .................................................. $ 100,000 12 9 Sec. 13. IMPLEMENTATION OF ACT. Section 25B.2, subsection 12 10 3, shall not apply to this Act. 12 11 EXPLANATION 12 12 Section 2 of this bill adds an OWI offense for a person who 12 13 operates a motor vehicle after taking any amount of a 12 14 controlled substance. Other sections of the bill amend other 12 15 portions of the Code to reflect this change made to the basic 12 16 OWI offense. 12 17 Section 2 also adds an affirmative defense to OWI charges 12 18 based on prescribed medication, and a legal presumption 12 19 regarding blood or urine specimens related to controlled 12 20 substances and other drugs. 12 21 In addition, section 2 of the bill increases the amount of 12 22 time under section 321J.2 from six to 10 years, which a court 12 23 uses in determining how many total convictions for OWI the 12 24 defendant has and what punishment is therefore appropriate. 12 25 Section 3 of the bill makes a similar change with regard to 12 26 license revocations. 12 27 Finally, the bill makes an appropriation, in section 12, to 12 28 the governor's traffic safety bureau in the department of 12 29 public safety, in order to fund a competitive grant program 12 30 that will purchase and distribute preliminary breath testing 12 31 devices to county and city law enforcement agencies, in order 12 32 to aid OWI enforcement. 12 33 This bill may include a state mandate as defined in chapter 12 34 25B. Section 13 of this bill makes inapplicable section 12 35 25B.2, which would relieve a political subdivision from 13 1 complying with a state mandate if funding for the cost of the 13 2 state mandate is not provided or specified. Therefore, 13 3 political subdivisions are required to comply with any state 13 4 mandate included in this bill. 13 5 BACKGROUND STATEMENT 13 6 SUBMITTED BY THE AGENCY 13 7 Drug-impaired driver 13 8 Drivers impaired by illegal drugs are a hazard on the 13 9 highways of the state. 13 10 Toxicologists are unable to specify what quantities of the 13 11 illegal drugs in a driver's system result in "impairment". 13 12 This proposal makes it an OWI offense to drive with illegal 13 13 drugs in one's system. This proposal will allow law 13 14 enforcement officers to invoke implied consent for drivers who 13 15 are driving after ingesting a controlled substance. Examples 13 16 of controlled substances include methamphetamine and cocaine. 13 17 The proposal provides an affirmative defense for any driver 13 18 who has a valid prescription for the controlled substance. 13 19 Raise the six-year limit for multiple offenses to ten years 13 20 Current law provides that violations of the OWI law count 13 21 toward second and third offenses only if they occur within a 13 22 six-year period of the first conviction. 13 23 This proposal raises the time limit for counting multiple 13 24 offenses from six to 10 years. 13 25 This proposal will provide a more accurate counting of the 13 26 multiple offenses committed by habitual drunk drivers and will 13 27 allow appropriate enhanced criminal and administrative 13 28 penalties to be triggered. 13 29 Purchase of field sobriety equipment for local law enforcement 13 30 The legislature passed sweeping drunk driving legislation 13 31 during the 1995 legislative session, including .02 BAC for 13 32 people under the age of 21 years. 13 33 Many county sheriffs and municipal police departments do 13 34 not have adequate equipment to effectively enforce the new 13 35 drunk driving laws. 14 1 This proposal establishes a $100,000 appropriation to the 14 2 governor's traffic safety bureau to establish a competitive 14 3 grant program to provide the necessary equipment to local law 14 4 enforcement. 14 5 The equipment that would be purchased with the grants would 14 6 be preliminary breath testing devices, known as PBTs. The 14 7 $100,000 appropriation would allow approximately 150 PBT units 14 8 to be distributed to local law enforcement agencies. 14 9 LSB 3346XD 76 14 10 jls/jj/8.2
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