S.F. _____ Section 1. Section 321J.2, subsection 11, Code 2014, is 1 amended to read as follows: 2 11. a. This section does not apply to a person operating 3 a motor vehicle while under the influence of a drug if the 4 substance When charged with a violation of subsection 1, 5 paragraph “a” , a person who has consented to testing in 6 accordance with section 321J.6 may assert, as an affirmative 7 defense, that the drug that caused the intoxication was 8 prescribed for the person and was taken under the prescription 9 and in accordance with the directions of a medical practitioner 10 as defined in chapter 155A or if that the substance drug was 11 dispensed by a pharmacist without a prescription pursuant to 12 the rules of the board of pharmacy, if there is no evidence 13 of the consumption of alcohol and the medical practitioner 14 or pharmacist had not directed the person to refrain from 15 operating a motor vehicle the written information or labeling 16 directions provided by the pharmacy do not caution the person 17 that the drug could adversely affect the person’s ability to 18 safely operate a motor vehicle . 19 b. When charged with a violation of subsection 1 , paragraph 20 “c” , a person may assert, as an affirmative defense, that 21 the controlled substance present in the person’s blood or 22 urine was prescribed or dispensed for the person and was taken 23 in accordance with the directions of a practitioner and the 24 labeling directions of the pharmacy, as that person and place 25 of business are defined in section 155A.3 . 26 c. (1) A person asserting an affirmative defense pursuant 27 to this subsection shall provide notice to the state not 28 later than forty days after arraignment. At the time notice 29 is provided, the person shall provide a list of witnesses 30 and shall allow the state to inspect and copy any records or 31 statements upon which the witnesses will rely in testifying. 32 (2) Failure to comply with the requirements of this lettered 33 paragraph “c” bars introduction of any evidence of impairment 34 caused by a prescription drug or any evidence of the presence 35 -1- LSB 5120SC (3) 85 rh/nh 1/ 12

S.F. _____ of a controlled substance in a prescribed drug, except the 1 testimony of the person, without leave of the court for good 2 cause shown. 3 d. A person asserting an affirmative defense directly 4 relating to the person’s prescription or prescriptions waives 5 all of the following: 6 (1) The confidentiality privilege pursuant to section 7 622.10. 8 (2) Any privilege or nondisclosure requirement under state 9 or federal privacy laws. 10 Sec. 2. Section 321J.8, subsection 1, paragraph a, Code 11 2014, is amended to read as follows: 12 a. If the person refuses to submit to the test and the 13 person has had no previous conviction or revocation under this 14 chapter and has not been involved in an accident resulting 15 in personal injury or property damage , the person’s driver’s 16 license or nonresident operating privilege will be revoked by 17 the department as required by and for the applicable period 18 specified under section 321J.9 . 19 Sec. 3. Section 321J.8, subsection 1, Code 2014, is amended 20 by adding the following new paragraphs: 21 NEW PARAGRAPH . 0b. If the person refuses to submit to 22 the test and the person has had a previous conviction or 23 revocation under this chapter, the person’s driver’s license 24 or nonresident operating privilege will be revoked by the 25 department as required by and for the applicable period 26 specified under section 321J.9. The person shall also be 27 advised that notwithstanding the person’s refusal, the peace 28 officer may apply to a magistrate to secure a search warrant to 29 compel withdrawal of a specimen of the person’s blood or urine 30 or both. 31 NEW PARAGRAPH . 00b. If the person refuses to submit to the 32 test, the person shall be prohibited from presenting medical 33 or pharmaceutical evidence that the violation of section 34 321J.2 was caused by a prescription or a controlled substance 35 -2- LSB 5120SC (3) 85 rh/nh 2/ 12

S.F. _____ dispensed by a pharmacy. 1 Sec. 4. Section 321J.9, subsection 1, Code 2014, is amended 2 to read as follows: 3 1. If a person refuses to submit to the chemical 4 testing and the person has not had a previous conviction or 5 revocation under this chapter , a test shall not be given, 6 but the department, upon the receipt of the peace officer’s 7 certification, subject to penalty for perjury, that the officer 8 had reasonable grounds to believe the person to have been 9 operating a motor vehicle in violation of section 321J.2 or 10 321J.2A , that specified conditions existed for chemical testing 11 pursuant to section 321J.6 , and that the person refused to 12 submit to the chemical testing, shall revoke the person’s 13 driver’s license and any nonresident operating privilege for 14 the following periods of time: 15 a. One one year if the person has no previous revocation 16 under this chapter ; and 17 b. Two years if the person has had a previous revocation 18 under this chapter . 19 Sec. 5. Section 321J.9, Code 2014, is amended by adding the 20 following new subsection: 21 NEW SUBSECTION . 1A. If a person refuses to submit to the 22 chemical testing and the person has had a previous conviction 23 or revocation under this chapter, a test may be compelled 24 pursuant to section 321J.10 and the department, upon the 25 receipt of the peace officer’s certification, subject to 26 penalty for perjury, that the officer had reasonable grounds 27 to believe the person to have been operating a motor vehicle 28 in violation of section 321J.2 or 321J.2A, that specified 29 conditions existed for chemical testing pursuant to section 30 321J.6, and that the person refused to submit to the chemical 31 testing, shall revoke the person’s driver’s license and any 32 nonresident operating privilege for two years. This subsection 33 shall apply regardless of whether a test was compelled pursuant 34 to section 321J.10. 35 -3- LSB 5120SC (3) 85 rh/nh 3/ 12

S.F. _____ Sec. 6. Section 321J.9, subsection 2, paragraph a, Code 1 2014, is amended to read as follows: 2 a. A person whose driver’s license or nonresident operating 3 privileges are revoked under subsection 1 shall not be eligible 4 for a temporary restricted license for at least ninety days 5 after the effective date of the revocation. A temporary 6 restricted license issued to a person whose driver’s license or 7 nonresident driving privilege has been revoked under subsection 8 1 , paragraph “b” 1A , shall be issued in accordance with section 9 321J.20, subsection 2 . 10 Sec. 7. Section 321J.10, subsections 1, 4, 7, and 9, Code 11 2014, are amended to read as follows: 12 1. Refusal to consent to a test under section 321J.6 does 13 not prohibit the withdrawal of a specimen for chemical testing 14 pursuant to a search warrant issued in the investigation of a 15 suspected violation of section 321J.2, subsection 2, paragraph 16 “b” or “c” or section 707.5 or 707.6A if all of the following 17 grounds exist: 18 a. A traffic accident has resulted in a death or personal 19 injury reasonably likely to cause death. 20 b. There are reasonable grounds to believe that one or more 21 of the persons whose driving may have been the proximate cause 22 of the accident was violating section 321J.2 at the time of the 23 accident . 24 4. a. Search warrants issued under this section shall 25 authorize and direct peace officers to secure the withdrawal 26 of blood or urine specimens by medical personnel under section 27 321J.11 . Reasonable care shall be exercised to ensure the 28 health and safety of the persons from whom specimens are 29 withdrawn in execution of the warrants. 30 b. If a person from whom a specimen is to be withdrawn 31 objects to the withdrawal of blood, the warrant may be executed 32 as follows: 33 (1) If but the person is capable of giving a specimen of 34 breath, and a direct breath testing instrument is readily 35 -4- LSB 5120SC (3) 85 rh/nh 4/ 12

S.F. _____ available, the warrant may be executed by the withdrawal of 1 a specimen of breath for chemical testing, unless the peace 2 officer has reasonable grounds to believe that the person was 3 under the influence of a controlled substance, a drug other 4 than alcohol, or a combination of alcohol and another drug. 5 (2) c. If the testimony in support of the warrant sets 6 forth facts and information that the peace officer has 7 reasonable grounds to believe that the person was under the 8 influence of a controlled substance, a drug other than alcohol, 9 or a combination of alcohol and another drug, a urine sample 10 shall may be collected in lieu of or in addition to a blood 11 sample , if the person is capable of giving a urine sample and 12 the sample can be collected without the need to physically 13 compel the execution of the warrant . If the person from whom a 14 specimen of urine is to be collected objects to the withdrawal 15 of a urine sample, a urine sample may be taken if the person 16 is capable of giving a urine sample and the sample can be 17 collected without the need to physically compel withdrawal of 18 the sample. 19 7. Specimens obtained pursuant to warrants issued under 20 this section or under chapter 808 in the investigation of a 21 suspected violation of section 321J.2, subsection 2, paragraph 22 “b” or “c” , or section 707.5 or 707.6A are not subject to 23 disposition under section 808.9 or chapter 809 or 809A . 24 9. Medical personnel who use reasonable care and accepted 25 medical practices in withdrawing blood or urine specimens are 26 immune from liability for their actions in complying with 27 requests made of them pursuant to search warrants or pursuant 28 to section 321J.11 . 29 Sec. 8. Section 321J.10, subsection 3, paragraph c, Code 30 2014, is amended to read as follows: 31 c. The oral application testimony shall set forth facts and 32 information tending to establish the existence of the grounds 33 for the warrant and shall describe with a reasonable degree of 34 specificity the person or persons whose driving is believed 35 -5- LSB 5120SC (3) 85 rh/nh 5/ 12

S.F. _____ to have been the proximate cause of the accident and from 1 whom a specimen is to be withdrawn and the location where the 2 withdrawal of the specimen or specimens is to take place. 3 Sec. 9. Section 321J.10, Code 2014, is amended by adding the 4 following new subsection: 5 NEW SUBSECTION . 10. A constitutionally valid search 6 warrant issued under subsection 3 or chapter 808 shall not 7 be held invalid solely because of an error of fact made in 8 good faith as to whether the grounds specified in subsection 1 9 exist. 10 Sec. 10. Section 321J.10A, Code 2014, is amended to read as 11 follows: 12 321J.10A Blood, breath, or urine specimen withdrawal without 13 a warrant. 14 1. Notwithstanding section 321J.10 , if a person is under 15 arrest for an offense arising out of acts alleged to have 16 been committed while the person was operating a motor vehicle 17 in violation of section 321J.2 or 321J.2A , and that arrest 18 results from an accident that causes a death or personal injury 19 reasonably likely to cause death, a chemical test of blood or 20 urine may be administered without the consent of the person 21 arrested to determine the amount of alcohol or a controlled 22 substance in that person’s blood or urine if all of the 23 following circumstances exist: 24 a. The peace officer reasonably believes the blood drawn or 25 urine sample will produce evidence of intoxication. 26 b. The method used to take the blood or urine sample is 27 reasonable and performed in a reasonable manner by medical 28 personnel under section 321J.11 . 29 c. The peace officer reasonably believes the officer is 30 confronted with an emergency situation in which the delay 31 necessary to obtain a warrant under section 321J.10 threatens 32 the destruction of the evidence. 33 2. If the person from whom a specimen of blood is to be 34 withdrawn objects to the withdrawal, a breath or urine sample 35 -6- LSB 5120SC (3) 85 rh/nh 6/ 12

S.F. _____ may be taken under the following circumstances: 1 a. If the person is capable of giving a specimen of breath, 2 and a direct breath testing instrument is readily available, 3 the withdrawal of a specimen of the person’s breath may be 4 taken for chemical testing, unless the peace officer has 5 reasonable grounds to believe that the person was under the 6 influence of a controlled substance, a drug other than alcohol, 7 or a combination of alcohol and another drug if the peace 8 officer has reasonable grounds to believe that the person’s 9 intoxication or impairment is due to alcohol only, the person 10 is capable of giving a breath specimen, and an evidential 11 breath testing device is readily available . 12 b. 3. If the peace officer has reasonable grounds to 13 believe that the person was under the influence of a controlled 14 substance, a drug other than alcohol, or a combination of 15 alcohol and another drug, and the person from whom the specimen 16 of urine is to be collected objects to the withdrawal of a 17 urine sample shall be collected in lieu of a blood sample , a 18 sample may be taken if the person is capable of giving a urine 19 sample and the sample can be collected without the need to 20 physically compel withdrawal of the sample . 21 Sec. 11. Section 321J.11, unnumbered paragraph 1, Code 22 2014, is amended to read as follows: 23 Only a licensed physician, licensed physician assistant as 24 defined in section 148C.1 , phlebotomist, medical technologist, 25 or registered nurse, acting at the request of a peace officer, 26 may withdraw a specimen of blood or urine for the purpose 27 of determining the alcohol concentration or the presence of 28 a controlled substance or other drugs. However, any peace 29 officer, using devices and methods approved by the commissioner 30 of public safety, may take a specimen of a person’s breath 31 or collect a specimen of a person’s urine for the purpose of 32 determining the alcohol concentration, or may take collect a 33 specimen of a person’s urine for the purpose of determining the 34 presence of a controlled substance or other drugs. Only new 35 -7- LSB 5120SC (3) 85 rh/nh 7/ 12

S.F. _____ equipment kept under strictly sanitary and sterile conditions 1 shall be used for drawing blood or for withdrawing urine. If 2 the officer determines that urine should be collected from a 3 person receiving medical attention and the urine is collected 4 through the use of a catheter, a peace officer may collect a 5 sample of the person’s urine from the catheter bag and the 6 test results from such a sample are admissible notwithstanding 7 any claim of privilege under section 622.10, any privilege 8 under federal privacy laws, or any nondisclosure requirements 9 asserted by the person or on the person’s behalf . 10 Sec. 12. Section 321J.16, Code 2014, is amended to read as 11 follows: 12 321J.16 Proof of refusal admissible. 13 If a person refuses to submit to a chemical test, proof 14 of refusal is admissible in any civil or criminal action or 15 proceeding arising out of acts alleged to have been committed 16 while the person was operating a motor vehicle in violation 17 of section 321J.2 or 321J.2A . If, following a refusal, a 18 specimen is collected for testing pursuant to section 321J.10 19 or 321J.10A or chapter 808, the results of the testing are also 20 admissible. 21 Sec. 13. Section 321J.20, subsection 1, paragraph b, Code 22 2014, is amended to read as follows: 23 b. A temporary restricted license may be issued under this 24 subsection if the person’s noncommercial driver’s license is 25 revoked for two years under section 321J.4, subsection 2 , or 26 section 321J.9, subsection 1 , paragraph “b” 1A , and the first 27 three hundred sixty-five days of the revocation have expired. 28 EXPLANATION 29 The inclusion of this explanation does not constitute agreement with 30 the explanation’s substance by the members of the general assembly. 31 This bill relates to operating-while-intoxicated cases. 32 Under current law, a person’s use of a valid drug 33 prescription taken in accordance with the directions of 34 a medical practitioner or pharmacist is a defense to an 35 -8- LSB 5120SC (3) 85 rh/nh 8/ 12

S.F. _____ operating-while-intoxicated (OWI) charge under Code section 1 321J.2 if there is no evidence of alcohol consumption and the 2 medical practitioner or pharmacist did not direct the person 3 to refrain from operating a motor vehicle. The bill amends 4 this law to provide that a person who is charged with an OWI 5 violation while under the influence of an alcoholic beverage 6 or other drug or a combination of both who has consented 7 to testing in accordance with Code section 321J.6 (implied 8 consent) may assert, as an affirmative defense, that the drug 9 that caused the intoxication was prescribed or dispensed for 10 the person and was taken in accordance with the directions of 11 a practitioner or that the drug was dispensed by a pharmacist 12 without a prescription, if there is no evidence of alcohol 13 consumption and the pharmacy information fails to caution the 14 person about the adverse effects of the drug on driving. 15 Current law also provides that a person charged with an 16 OWI offense based upon the presence of a controlled substance 17 in the person’s blood or urine may assert, as an affirmative 18 defense, that the controlled substance was prescribed or 19 dispensed for the person and was taken in accordance with the 20 directions of a practitioner and the labeling directions of the 21 pharmacy. 22 The bill provides that a person asserting an affirmative 23 prescription drug defense is required to provide notice to 24 the state not later than 40 days after arraignment. At the 25 time notice is provided, the person is required to provide a 26 list of witnesses and shall allow the state to inspect and 27 copy any records or statements upon which the witnesses will 28 rely in testifying. Failure to comply with these requirements 29 bars introduction of any evidence of impairment caused by 30 a prescription drug or any evidence of the presence of a 31 controlled substance in a prescribed drug, except the testimony 32 of the person, without leave of the court for good cause shown. 33 The bill provides that a person asserting an affirmative 34 defense directly relating to the person’s prescription or 35 -9- LSB 5120SC (3) 85 rh/nh 9/ 12

S.F. _____ prescriptions waives the confidentiality privilege pursuant to 1 Code section 622.10 (confidential professional communications) 2 and any privilege or nondisclosure requirement under state or 3 federal privacy laws. 4 CODE SECTION 321J.10 (TESTS PURSUANT TO WARRANTS). Under 5 current law, refusal to consent to a test under Code section 6 321J.6 (implied consent) does not prohibit the withdrawal 7 of a specimen of blood for chemical testing pursuant to a 8 search warrant issued in the investigation of a suspected 9 involuntary manslaughter (Code section 707.5) or homicide or 10 serious injury by vehicle (Code section 707.6A) if a traffic 11 accident has resulted in a death or personal injury reasonably 12 likely to cause death and there are reasonable grounds to 13 believe that one or more of the persons whose driving may have 14 been the proximate cause of the accident was violating Code 15 section 321J.2 at the time of the accident. A urine sample 16 may be collected in lieu of a blood sample under certain 17 circumstances. 18 The bill provides that all second and subsequent Code 19 chapter 321J offenders can be forced to submit to blood or 20 urine testing pursuant to a search warrant and eliminates the 21 requirement that there must be reasonable grounds to believe 22 the person was violating Code section 321J.2 and an accident 23 occurred resulting in death or personal injury reasonably 24 likely to cause death, in addition to cases involving 25 involuntary manslaughter or homicide or serious injury by 26 vehicle. An officer may take a urine sample in lieu of or in 27 addition to a blood sample if the person is capable of giving a 28 urine sample and the sample can be collected without the need 29 to physically withdraw the sample. If the person from whom a 30 specimen of urine is to be collected objects to the withdrawal, 31 the person may voluntarily provide a urine sample if the person 32 is capable of giving a urine sample and the sample can be 33 collected without the need to physically compel withdrawal of 34 the sample. 35 -10- LSB 5120SC (3) 85 rh/nh 10/ 12

S.F. _____ The bill provides that a constitutionally valid search 1 warrant shall not be held invalid solely because of an error 2 of fact made in good faith as to whether the grounds specified 3 in the bill exist. 4 CODE SECTION 321J.10A (BLOOD WITHDRAWAL WITHOUT A WARRANT 5 IN EMERGENCY). Current law provides that if a person is under 6 arrest and the arrest resulted from an accident that caused 7 a death or personal injury reasonably likely to cause death, 8 a peace officer may compel a blood test without the consent 9 of the suspect and without a warrant if the peace officer 10 reasonably believes the officer is confronted with an emergency 11 situation in which a delay necessary to obtain a warrant 12 threatens the destruction of evidence. A breath or urine 13 sample may be collected under certain circumstances. 14 The bill provides that if the person from whom a specimen is 15 to be withdrawn objects to the withdrawal, a breath sample may 16 be taken if the peace officer has reasonable grounds to believe 17 that the person’s intoxication or impairment is due to alcohol 18 only, the person is capable of giving a breath specimen, and an 19 evidential breath testing device is readily available. If the 20 peace officer has reasonable grounds to believe that the person 21 was under the influence of a controlled substance, a drug other 22 than alcohol, or a combination of alcohol and another drug, and 23 the person from whom the specimen of urine is to be withdrawn 24 objects to the withdrawal of a urine sample, a urine sample 25 may be taken if the person is capable of giving a urine sample 26 and the sample can be collected without the need to physically 27 withdraw the sample. 28 CODE SECTION 321J.11 (TAKING SAMPLE FOR TEST). The bill 29 provides that a urine sample as an alternate to a blood 30 sample may be taken for the purpose of determining the alcohol 31 concentration or the presence of a controlled substance or 32 other drugs. A phlebotomist may take a sample in addition 33 to other specified medical personnel for the purpose of 34 determining the alcohol concentration or the presence of a 35 -11- LSB 5120SC (3) 85 rh/nh 11/ 12

S.F. _____ controlled substance or other drugs. In addition, if the 1 peace officer determines that urine should be collected from a 2 person receiving medical attention and the urine is collected 3 through the use of a catheter, a peace officer may collect a 4 sample of the person’s urine from the catheter bag, and the 5 test results from such a sample are admissible notwithstanding 6 any claim of privilege under Code section 622.10, any privilege 7 under federal privacy laws, or any nondisclosure requirements 8 asserted by the person or on the person’s behalf. 9 CODE SECTION 321J.16 (ADMISSIBILITY OF PROOF OF REFUSAL). 10 Current law provides that if a person refuses to submit 11 to a chemical test, proof of that refusal is admissible in 12 any operating-while-intoxicated civil or criminal action or 13 proceeding. The bill provides that if, following a refusal, 14 a specimen is collected for testing, regardless of whether 15 a warrant was issued, the results of the testing are also 16 admissible. 17 CONFORMING CODE CHANGES. The bill makes conforming Code 18 changes to Code section 321J.8 (peace officer implied consent 19 advisory given to a person who has refused to submit to a 20 chemical test), Code section 321J.9 (license revocations due 21 to refusal to submit to testing), and Code section 321J.20 22 (temporary restricted licenses and ignition interlock devices). 23 -12- LSB 5120SC (3) 85 rh/nh 12/ 12