HOUSE FILE 417

BY  HAGENOW

A BILL FOR

An Act relating to increasing certain criminal and administrative penalties for operating-while-intoxicated offenses.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

   Section 1.  Section 321J.2, subsection 2, paragraph c, Code 2011, is amended to read as follows:
   c.  A class “D” “C” felony for a third offense and each subsequent offense.
   Sec. 2.  Section 321J.2, subsection 3, unnumbered paragraph 1, Code 2011, is amended to read as follows:
   A Except as otherwise provided in section 321J.2C, a first offense is punishable by all of the following:
   Sec. 3.  Section 321J.2, subsections 4, 5, and 10, Code 2011, are amended to read as follows:
   4.  A Except as otherwise provided in section 321J.2C, a second offense is punishable by all of the following:
   a.  A minimum period of imprisonment in the county jail or community-based correctional facility of seven fourteen days but not to exceed two years.
   b.  Assessment of a minimum fine of one two thousand eight five hundredfifty dollars and a maximum fine of six seven thousand two five hundredfifty dollars. Surcharges and fees shall be assessed pursuant to chapter 911.
   c.  Revocation of the defendant’s driver’s license for a period of one year three years, if a revocation occurs pursuant to section 321J.12, subsection 1. If a revocation occurs due to test refusal under section 321J.9, or pursuant to section 321J.4, subsection 2, the defendant’s license shall be revoked for a period of two four years.
   d.  Assignment to substance abuse evaluation and treatment, a course for drinking drivers, and, if available and appropriate, a reality education substance abuse prevention program pursuant to section 321J.24.
   5.  A Except as otherwise provided in section 321J.2C, a  third offense is punishable by all of the following:
   a.  Commitment to the custody of the director of the department of corrections for an indeterminate term not to exceed five ten years, with a mandatory minimum term of thirty sixty days.
   (1)  If the court does not suspend a person’s sentence of commitment to the custody of the director of the department of corrections under this paragraph “a”, the person shall be assigned to a facility pursuant to section 904.513.
   (2)  If the court suspends a person’s sentence of commitment to the custody of the director of the department of corrections under this paragraph “a”, the court shall order the person to serve not less than thirty sixty days nor more than one year in the county jail, and the person may be committed to treatment in the community under section 907.6.
   b.  Assessment of a minimum fine of three five thousandone hundred twenty-five dollars and a maximum fine of nine ten thousandthree hundred seventy-five dollars. Surcharges and fees shall be assessed pursuant to chapter 911.
   c.  Revocation Permanent revocation of the person’s driver’s license for a period of six years pursuant to section 321J.4, subsection 4.
   d.  Assignment to substance abuse evaluation and treatment, a course for drinking drivers, and, if available and appropriate, a reality education substance abuse program pursuant to section 321J.24.
   10.  The clerk of the district court shall immediately certify to the department a true copy of each order entered with respect to deferral of judgment, deferral of sentence, or pronouncement of judgment and sentence for a defendant under this section or section 321J.2C.
   Sec. 4.  NEW SECTION.  321J.2C  Enhanced penalties —— alcohol concentration exceeding .15.
   1.  A person who violates section 321J.2, subsection 1, whose alcohol concentration established by the results of an analysis of a specimen of the person’s blood, breath, or urine withdrawn in accordance with this chapter exceeds .15, regardless of whether or not the alcohol concentration indicated by the chemical test minus the established margin of error inherent in the device or method used to conduct the test equals an alcohol concentration of .15 or more, shall be subject to the following penalties:
   a.  For a first offense:
   (1)  A minimum period of imprisonment in the county jail of four days, but not to exceed one year, to be served as ordered by the court, less credit for any time the person was confined in a jail or detention facility following arrest or for any time the person spent in a court-ordered operating-while-intoxicated program that provides law enforcement security. However, the court, in ordering service of the sentence and in its discretion, may accommodate the defendant’s work schedule.
   (2)  Assessment of a fine of at least one thousand five hundred dollars and a maximum of two thousand two hundred fifty dollars. Surcharges and fees shall also be assessed pursuant to chapter 911.
   (3)  Revocation of the person’s driver’s license for a minimum period of two hundred forty days up to a maximum revocation period of one year.
   (4)  Assignment to substance abuse evaluation and treatment, a course for drinking drivers, and, if available and appropriate, a reality education substance abuse prevention program pursuant to section 321J.24.
   b.  For a second offense, regardless of whether the person received an enhanced penalty under this section for the first offense:
   (1)  A minimum period of imprisonment in the county jail or community-based correctional facility of thirty days but not to exceed two years.
   (2)  Assessment of a minimum fine of three thousand dollars and a maximum fine of eight thousand dollars. Surcharges and fees shall be assessed pursuant to chapter 911.
   (3)  Revocation of the defendant’s driver’s license for a period of four years.
   (4)  Seizure and forfeiture of the defendant’s motor vehicle to the state pursuant to chapters 809 and 809A if the defendant is the owner of the motor vehicle used in the commission of the offense.
   (5)  Assignment to substance abuse evaluation and treatment, a course for drinking drivers, and, if available and appropriate, a reality education substance abuse prevention program pursuant to section 321J.24.
   c.  For a third offense and all subsequent offenses under this section, regardless of whether the person received an enhanced penalty under this section for any prior offenses:
   (1)  A minimum period of imprisonment of ninety days but not to exceed ten years.
   (2)  Assessment of a minimum fine of five thousand dollars and a maximum fine of ten thousand dollars. Surcharges and fees shall be assessed pursuant to chapter 911.
   (3)  Permanent revocation of the person’s driver’s license.
   (4)  Seizure and forfeiture of the defendant’s motor vehicle to the state pursuant to chapters 809 and 809A if the defendant is the owner of the motor vehicle used in the commission of the offense.
   (5)  Assignment to substance abuse evaluation and treatment, a course for drinking drivers, and, if available and appropriate, a reality education substance abuse program pursuant to section 321J.24.
   2.  The provisions of this chapter that do not conflict with the provisions of this section shall continue to apply to a violation of this chapter.
   Sec. 5.  Section 321J.4, subsection 2, Code 2011, is amended to read as follows:
   2.  If a defendant is convicted of a violation of section 321J.2, and the defendant’s driver’s license or nonresident operating privilege has not already been revoked under section 321J.9 or 321J.12 for the occurrence from which the arrest arose, the department shall revoke the defendant’s driver’s license or nonresident operating privilege for one year three years if the defendant submitted to chemical testing and has had a previous conviction or revocation under this chapter and shall revoke the defendant’s driver’s license or nonresident operating privilege for two four years if the defendant refused to submit to chemical testing and has had a previous revocation under this chapter. The defendant shall not be eligible for any temporary restricted license for forty-five days after the effective date of revocation if the defendant submitted to chemical testing and shall not be eligible for any temporary restricted license for ninety days after the effective date of revocation if the defendant refused chemical testing. The temporary restricted license shall be issued in accordance with section 321J.20, subsection 2. The department shall require the defendant to install an ignition interlock device of a type approved by the commissioner of public safety on all vehicles owned or operated by the defendant if the defendant seeks a temporary restricted license at the end of the minimum period of ineligibility. A temporary restricted license shall not be granted by the department until the defendant installs the ignition interlock device.
   Sec. 6.  Section 321J.4B, subsection 6, Code 2011, is amended to read as follows:
   6.  Upon conviction of the defendant for a second or subsequent violation of subsection 2, paragraph “a”, subparagraph (2), the court shall order, if the convicted person is the owner of the motor vehicle used in the commission of the offense, that that motor vehicle be seized and forfeited to the state pursuant to chapters 809 and 809A.
   Sec. 7.  Section 321J.9, subsection 1, Code 2011, is amended to read as follows:
   1.  If a person refuses to submit to the chemical testing, a test shall not be given, but the department, upon the receipt of the peace officer’s certification, subject to penalty for perjury, that the officer had reasonable grounds to believe the person to have been operating a motor vehicle in violation of section 321J.2 or 321J.2A, that specified conditions existed for chemical testing pursuant to section 321J.6, and that the person refused to submit to the chemical testing, shall revoke the person’s driver’s license and any nonresident operating privilege for the following periods of time:
   a.  One year if the person has no previous revocation under this chapter; and.
   b.  Two Four years if the person has had a one previous revocation under this chapter.
   Sec. 8.  Section 321J.9, subsection 1, Code 2011, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  c.  Revocation shall be permanent if the person has had more than one previous revocation under this chapter.
   Sec. 9.  Section 321J.12, subsection 1, paragraph b, Code 2011, is amended to read as follows:
   b.  One year Three years if the person has had a one previous revocation under this chapter.
   Sec. 10.  Section 321J.12, subsection 1, Code 2011, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  c.  Revocation shall be permanent if the person has had more than one previous revocation under this chapter.
   Sec. 11.  Section 321J.12, subsection 2, paragraph d, Code 2011, is amended to read as follows:
   d.  A person whose license or privileges have been revoked under subsection 1, paragraph “b”, for one year three years shall not be eligible for any temporary restricted license for forty-five days after the effective date of the revocation, and the department shall require the person to install an ignition interlock device of a type approved by the commissioner of public safety on all vehicles owned or operated by the defendant if the defendant seeks a temporary restricted license at the end of the minimum period of ineligibility. The temporary restricted license shall be issued in accordance with section 321J.20, subsection 2. A temporary restricted license shall not be granted by the department until the defendant installs the ignition interlock device.
   Sec. 12.  Section 321J.20, subsection 1, paragraph b, Code 2011, is amended to read as follows:
   b.   A temporary restricted license may be issued under this subsection if the person’s noncommercial driver’s license is revoked for two three years under section 321J.4, subsection 2, or section 321J.9, subsection 1, paragraph “b”, and the first three hundred sixty-five days of the revocation have expired.
EXPLANATION
   This bill increases certain criminal and administrative penalties for operating-while-intoxicated (OWI) offenses under Code chapter 321J.
   Under current law, a person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state while under the influence of an alcoholic beverage or other drug or a combination of such substances, while having an alcohol concentration of .08 or more, or while any amount of a controlled substance is present in the person, as measured in the person’s blood or urine. Current law provides both administrative and criminal penalties for persons found to be in violation of Code chapter 321J based upon whether the offense is a first, second, or third violation of the law.
   The bill increases certain criminal and administrative penalties for persons convicted of OWI offenses for second and subsequent offenses but distinguishes OWI offenses involving a person with a blood alcohol concentration between .08 and .15 and OWI offenses involving a person with a blood alcohol concentration in excess of .15 and provides enhanced penalties for the latter.
   The bill maintains current law that provides a person convicted of a second offense OWI is guilty of an aggravated misdemeanor, but increases the mandatory minimum jail time from seven days to 14 days, increases the range of the fine that may be imposed from $1,850 to $6,250 to $2,500 to $7,500, and increases the period of license revocation from one to three years if the person submitted to a chemical test and failed that test and from two years to four years if a revocation occurs due to test refusal under Code section 321J.9.
   The bill increases the criminal penalty for a person convicted of a third offense OWI from a class “D” felony to a class “C” felony and provides that the mandatory term of imprisonment shall be at least 60 days but shall not exceed 10 years. The fine imposed shall be from $5,000 to $10,000 and a person convicted of a third offense OWI is subject to a permanent license revocation and mandatory vehicle seizure and forfeiture pursuant to Code chapters 809 and 809A.
   The bill provides for an enhanced penalty structure for a person convicted of an OWI offense with a blood alcohol concentration between .08 and .15. For a first offense, the person is subject to a minimum period of imprisonment in the county jail of four days, but not to exceed one year, a fine of between $1,500 and $2,250, and revocation of the person’s driver’s license for a minimum period of 240 days up to a maximum revocation period of one year; for a second offense, a person is subject to a minimum period of imprisonment in the county jail or community-based correctional facility of from 30 days up to two years, a fine of between $3,000 and $8,000, revocation of the defendant’s driver’s license for four years, and seizure and forfeiture of the person’s motor vehicle to the state pursuant to Code chapters 809 and 809A if the person is the owner of the motor vehicle used in the commission of the offense; and for a third offense and all subsequent offenses, a person is subject to minimum period of imprisonment of 90 days not to exceed 10 years, a fine of between $5,000 and $10,000, permanent revocation of the person’s driver’s license, and seizure and forfeiture of the person’s motor vehicle to the state pursuant to Code chapters 809 and 809A if the person is the owner of the motor vehicle used in the commission of the offense. In addition, consistent with current law, all offenders under this enhanced penalty structure shall be assigned to substance abuse evaluation and treatment, a course for drinking drivers, and, if available and appropriate, a reality education substance abuse program pursuant to Code section 321J.24.