HF 2393 (LSB 5816YH (5) 89)

HOUSE FILE 2393

BY  BERGAN

A BILL FOR

An Act relating to operating-while-intoxicated offenses, including the lookback period for prior convictions, temporary restricted licenses, and ignition interlock devices, providing penalties, and making penalties applicable.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 321.12, subsection 4, Code 2022, is amended to read as follows:
   4.  The director department shall not destroy any operating records of a person still living pertaining to arrests or convictions for operating while intoxicated, in violation of section 321J.2, or reckless driving in violation of section 321.277 and public intoxication in violation of section 123.46, subsection 2, following an arrest for a violation of section 321J.2, or operating records pertaining to revocations for violations of section 321J.2A, except that a conviction or revocation under section 321J.2 or 321J.2A that is not subject to 
49 C.F.R. pt. 383
 shall be deleted from the operating records twelve years after the date of conviction or the effective date of revocation. Convictions or revocations that are retained in the operating records for more than twelve years under this subsection shall be considered only for purposes of disqualification actions under 
49 C.F.R. pt. 383
.
    Sec. 2.  Section 321.101, Code 2022, is amended by adding the following new subsection:
   NEW SUBSECTION.  1A.  When a vehicle is registered to an owner subject to ignition interlock device requirements pursuant to section 321J.20, the department shall suspend the registration of the vehicle until the department receives reasonable proof that the person has complied with section 321J.20. However, the department shall not suspend the registration, or shall reinstate a registration suspended under this subsection, if a family member of an owner who is subject to ignition interlock device requirements submits an affidavit to the department declaring that the family member regularly operated the motor vehicle registered to the owner prior to the owner’s revocation under chapter 321J and affirming the family member will not knowingly allow the owner to operate the motor vehicle. A person who submits such an affidavit and who knowingly allows the owner to operate the vehicle or provides access to and use of the vehicle to the owner while the owner is subject to ignition interlock device requirements and the vehicle does not have an ignition interlock device installed is guilty of a simple misdemeanor.
    Sec. 3.  Section 321J.2, subsection 3, paragraph d, Code 2022, is amended to read as follows:
   d.  Revocation of the person’s driver’s license for a minimum period of one hundred eighty days up to a maximum revocation period of one year, pursuant to section 321J.4, subsection 1, section 321J.9, or section 321J.12. 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 operated by the defendant if the defendant seeks a temporary restricted license.
    Sec. 4.  Section 321J.2, subsection 8, paragraph a, Code 2022, is amended to read as follows:
   a.  Any conviction or revocation deleted from motor vehicle operating records pursuant to section 321.12 under this section, or any conviction for reckless driving in violation of section 321.277 and public intoxication in violation of section 123.46, subsection 2, following an arrest for a violation of this section shall not be considered as a previous offense.
    Sec. 5.  Section 321J.4, subsections 1, 2, 3, and 4, Code 2022, are amended to read as follows:
   1.  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 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 hundred eighty days if the defendant submitted to chemical testing and has had no previous conviction or revocation under this chapter and shall revoke the defendant’s driver’s license or nonresident operating privilege for one year if the defendant refused to submit to chemical testing and has had no previous conviction or revocation under this chapter. 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 operated by the defendant if the defendant seeks a temporary restricted license. 
   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 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 years if the defendant refused to submit to chemical testing and has had a previous revocation under this chapter. 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. A temporary restricted license shall not be granted by the department until the defendant installs the ignition interlock device.
   3.  If the court defers judgment pursuant to section 907.3 for a violation of section 321J.2, and if the defendant’s driver’s license or nonresident operating privilege has not been revoked under section 321J.9 or 321J.12, or has not otherwise been revoked for the occurrence from which the arrest arose, the department shall revoke the defendant’s driver’s license or nonresident operating privilege for a period of not less than thirty days nor more than ninety days. 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 operated by the defendant if the defendant seeks a temporary restricted license. 
   4.  Upon a plea or verdict of guilty of a third or subsequent violation of section 321J.2, the department shall revoke the defendant’s driver’s license or nonresident operating privilege for a period of six years. 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. A temporary restricted license shall not be granted by the department until the defendant installs the ignition interlock device.
    Sec. 6.  Section 321J.4, Code 2022, is amended by adding the following new subsection:
   NEW SUBSECTION.  4A.  For revocations under subsection 1, 2, 3, or 4, the department shall require the defendant to install an ignition interlock device pursuant to section 321J.20 if the defendant seeks a temporary restricted license. The department shall not grant a temporary restricted license until the defendant installs the ignition interlock device pursuant to section 321J.20.
    Sec. 7.  Section 321J.4, subsection 8, paragraphs a, b, c, and d, Code 2022, are amended to read as follows:
   a.  On a conviction for or as a condition of a deferred judgment for a violation of section 321J.2, the court may order the defendant to install ignition interlock devices of a type approved by the commissioner of public safety on all motor vehicles owned or operated by the defendant which, without tampering or the intervention of another person, would prevent the defendant from operating the motor vehicle with an alcohol concentration greater than a level set by rule of the commissioner of public safety pursuant to section 321J.20. However, if the defendant has had no previous conviction or revocation under this chapter, the court’s order shall require the defendant to install approved ignition interlock devices only on all motor vehicles operated by the defendant.
   b.  The commissioner of public safety shall adopt rules to approve certain ignition interlock devices and the means of installation of the devices, and shall establish the level of alcohol concentration beyond which an ignition interlock device will not allow operation of the motor vehicle in which it is installed.
   c.  b.  The order to install ignition interlock devices shall remain in effect for a period of time as determined by the court which shall not exceed the maximum term of imprisonment which the court could have imposed according to the nature of the violation, unless otherwise extended under this chapter. While the order is in effect, the defendant shall not operate a motor vehicle which does not have an approved ignition interlock device installed.
   d.  c.  If the defendant’s driver’s license or nonresident operating privilege has been revoked by court order, the department shall not issue a temporary permit restricted license or a driver’s license to the person without certification that approved ignition interlock devices have been installed on all motor vehicles owned or operated by the defendant pursuant to section 321J.20 while the order is in effect. However, if the defendant has had no previous conviction or revocation under this chapter, the department shall require certification that approved ignition interlock devices have been installed only on all motor vehicles operated by the defendant.
    Sec. 8.  Section 321J.17, subsections 1 and 3, Code 2022, are amended to read as follows:
   1.  If the department revokes a person’s driver’s license or nonresident operating privilege under this chapter, the department shall assess the person a civil penalty of two hundred dollars. The money collected by the department under this section shall be transmitted to the treasurer of state who shall deposit one-half of the money in the separate fund established in section 915.94 and one-half of the money in the general fund of the state. A temporary restricted license shall not be issued unless an ignition interlock device has been installed pursuant to section 321J.4 321J.20. Except as provided in section 321.210B, a temporary restricted license shall not be issued or a driver’s license or nonresident operating privilege reinstated until the civil penalty has been paid. A person assessed a penalty under this section may remit the civil penalty along with a processing fee of five dollars to a county treasurer authorized to issue driver’s licenses under chapter 321M, or the civil penalty may be paid directly to the department.
   3.  The department shall also require certification of installation of an ignition interlock device of a type approved by the commissioner of public safety on all motor vehicles owned or operated pursuant to section 321J.20 by any person seeking reinstatement following a second or subsequent revocation under section 321J.4, 321J.9, or 321J.12. The requirement for the installation of an approved ignition interlock device shall be for one year from the date of reinstatement unless a longer time period is required by statute. The one-year period a person is required to maintain an ignition interlock device under this subsection shall be reduced by any period of time the person held a valid temporary restricted license during the period of the revocation for the occurrence from which the arrest arose. The person shall not operate any motor vehicle which is not equipped with an approved ignition interlock device during the period in which an ignition interlock device must be maintained, and the department shall not grant reinstatement unless the person certifies installation of an ignition interlock device as required in this subsection section 321J.20.
    Sec. 9.  Section 321J.20, Code 2022, is amended to read as follows:
   321J.20  Temporary restricted license —— ignition interlock devices.
   1.Temporary restricted license issuance.
   a.  The department may, on application, issue a temporary restricted license to a person whose noncommercial driver’s license is revoked under this chapter, or revoked or suspended under chapter 321 solely for violations of this chapter, or who has been determined to be a habitual offender under chapter 321 based solely on violations of this chapter or on violations listed in section 321.560, subsection 1, paragraph “b”, allowing the person to operate a motor vehicle in any manner allowed for a person issued a valid class C driver’s license, unless otherwise prohibited by this chapter. This subsection paragraph does not apply to a person whose license was revoked under section 321J.2A, to a person whose license was revoked under section 321J.4, subsection 6, for the period during which the person is ineligible for a temporary restricted license, or to a person whose license is suspended or revoked for another reason.
   2.  b.  A temporary restricted license issued under this section shall not be issued until the applicant installs an approved ignition interlock device on all motor vehicles owned or operated by the applicant. However, if the applicant has had no previous conviction or revocation under this chapter, a temporary restricted license issued under this section shall not be issued until the applicant installs an approved ignition interlock device on all motor vehicles operated by the applicant. Installation of an ignition interlock device under this section shall be required for the period of time for which the temporary restricted license is issued, and for such additional period of time following reinstatement as is required under section 321J.17, subsection 3, or this section. However, a person whose driver’s license or nonresident operating privilege has been revoked under section 321J.21 may apply to the department for a temporary restricted license without the requirement of an ignition interlock device if at least twelve years have elapsed since the end of the underlying revocation period for a violation of section 321J.2.
   3.  2.  Temporary restricted license revocations.  In addition to other penalties provided by law, a person’s temporary restricted license shall be revoked if the person is required to install an ignition interlock device and the person does any of the following:
   a.  Operates a motor vehicle which does not have an approved ignition interlock device. 
   b.  Tampers with or circumvents an ignition interlock device.
   4.  3.  Prohibited motor vehicle operation.
   a.  A person holding a temporary restricted license issued by the department under this section shall not operate a commercial motor vehicle on a highway if a commercial driver’s license or commercial learner’s permit is required for the person’s operation of the commercial motor vehicle.
   5.  b.  A person holding a temporary restricted license issued by the department under this chapter shall be prohibited from operating a school bus.
   6.  4.  Department discretion.
   a.  Notwithstanding any provision of this chapter to the contrary, the department may issue a temporary restricted license to a person otherwise eligible for a temporary restricted license under this section, whose period of revocation under this chapter has expired, but who has not met all requirements for reinstatement of the person’s driver’s license or nonresident operating privileges.
   b.  Notwithstanding any provision of this chapter to the contrary, the department may issue a temporary restricted license to a person eligible for a temporary restricted license under this section if the person is also eligible for a temporary restricted license under section 321.215, provided the requirements of this section and section 321.215 are satisfied.
   5.  Installation of ignition interlock devices.  The department shall require a person to install an ignition interlock device on all motor vehicles owned or operated by the person if the person seeks a temporary restricted license following a revocation under this chapter, subject to subsections 6 and 7. However, if the person has had no previous conviction or revocation under this chapter, the department shall require the person to install an ignition interlock device only on all motor vehicles operated by the person, subject to subsections 6 and 7.
   6.  Employment duty exception.
   a.  A person with a valid temporary restricted license who is subject to the ignition interlock device requirements under this section may operate the person’s employer’s motor vehicle that is not equipped with an ignition interlock device if all of the following conditions are met:
   (1)  The operation does not exceed two hours in any twenty-four-hour period.
   (2)  Prior to a person operating a motor vehicle within the scope of the person’s employment, the person’s employer completes and submits an affidavit to the department detailing the employment duties that require the person to operate a motor vehicle within the scope of the person’s employment and stating that the employer will ensure that the person does not operate the employer’s motor vehicle for more than two hours during any twenty-four-hour period.
   b.  The person shall not be eligible to operate an employer’s motor vehicle if any of the following apply:
   (1)  The person has more than a twenty percent ownership interest in the employer’s entity or the person’s family member has more than a fifty percent ownership interest in the employer’s entity.
   (2)  The person operates the employer’s motor vehicle to commute to and from the place of employment.
   (3)  The person operates the employer’s motor vehicle to the person’s residence, even if the residence is located along a route on which the person is allowed to operate the employer’s motor vehicle as part of the person’s employment duties.
   7.  Compliance-based removal.
   a.  (1)  For a person convicted of a third or subsequent offense for violating section 321J.2, the department shall extend an ignition interlock device requirement by sixty days if six or more of the following occur during the last sixty days of the person’s ignition interlock device requirement period, excluding any sixty-day extensions required under this paragraph:
   (a)  Any attempt to start the vehicle with a breath alcohol concentration of .04 or more unless a subsequent test performed within ten minutes registers a breath alcohol concentration lower than .04 and the digital image confirms the same person provided both samples.
   (b)  Any failure to submit a breath sample as required by the device unless a review of the corresponding digital image confirms that the vehicle was not operated by the person subject to the device requirement at the time of the failure.
   (c)  Any failure to pass a retest with a breath alcohol concentration of .025 or lower unless a subsequent test performed within ten minutes registers a breath alcohol concentration lower than .025, and the corresponding digital image confirms the same person provided both samples.
   (2)  The department shall extend the person’s ignition interlock device requirement period for an additional sixty days if three or more of the actions listed in subparagraph (1) occur during the initial sixty-day extension or a subsequent sixty-day extension.
   (3)  If a person is subject to four or more extensions under this paragraph, the department shall require the person to complete a substance abuse treatment program prior to issuing a driver’s license other than a temporary restricted license to the person.
   b.  A court may impose a compliance-based removal period of thirty or sixty days for a person whose driver’s license was revoked under section 321J.4, subsection 1, and the results of an analysis of a specimen of the person’s blood, breath, or urine withdrawn in accordance with this chapter exceeded an alcohol concentration of .19, or for a person whose license was revoked under section 321J.4, subsection 2. If a court imposes a compliance-based removal period, all of the following apply:
   (1)  If a sixty-day period is ordered, the compliance-based removal period shall be extended by sixty days if six or more actions occur as described in paragraph “a”.
   (2)  If a thirty-day period is ordered, the compliance-based removal period shall be extended by thirty days if three or more actions occur as described in paragraph “a”.
   (3)  If the compliance-based removal period is extended four or more times under this paragraph, the department shall notify the court, and the court may require the person to complete a substance abuse treatment program.
   c.  The department shall verify a person’s successful completion of the compliance-based removal requirements prior to issuing to the person a driver’s license other than a temporary restricted license.
   d.  An approved ignition interlock device manufacturer shall submit to the department a report on a person’s compliance when the required compliance-based removal period ends, no less than seven days after the period ends.
   e.  The department shall adopt rules pursuant to chapter 17A to administer this subsection. The rules shall include all of the following:
   (1)  The method to ensure ignition interlock device manufacturers submit the required report at the end of a person’s required compliance period.
   (2)  The method by which a report must be sent detailing any occurrences.
   (3)  The method by which the department verifies whether to extend the ignition interlock device requirement period or provide a person with a certificate of completion which shall enable the person to remove the ignition interlock device.
   8.  Ignition interlock device specifications.
   a.  An ignition interlock device installed on or after the effective date of this Act must be equipped with a camera that is only capable of taking a still image photograph when a breath specimen is requested by the device, when a breath specimen is provided, and when a failure to provide a breath specimen occurs.
   b.  The commissioner of public safety shall adopt rules to approve certain ignition interlock devices. The rules shall include but are not limited to all of the following:
   (1)  The means of installation of the devices.
   (2)  The camera and photograph requirements.
   (3)  The level of alcohol concentration beyond which an ignition interlock device will not allow operation of the motor vehicle on which it is installed.
   7.  9.  Tampering.  A person who tampers with or circumvents an ignition interlock device installed as required in this chapter and while the requirement for the ignition interlock device is in effect commits a serious misdemeanor.
   8.  Notwithstanding any provision of this chapter to the contrary, the department may issue a temporary restricted license to a person eligible for a temporary restricted license under this section if the person is also eligible for a temporary restricted license under section 321.215, provided the requirements of  this section and section 321.215 are satisfied.
   10.  Penalty.  A person who has a temporary restricted license and who operates a motor vehicle without an ignition interlock device installed, except as provided in section 321J.20, subsection 6, shall be subject to a criminal penalty as follows:
   a.  For a first offense, a serious misdemeanor.
   b.  For a second offense, an aggravated misdemeanor and the ignition interlock device requirement shall be extended by six months.
   c.  For a third offense, an aggravated misdemeanor, imprisonment in the county jail for a minimum of forty-eight hours, and the ignition interlock device requirement shall be extended by one year.
    Sec. 10.  Section 321J.21, Code 2022, is amended to read as follows:
   321J.21  Driving while license suspended, denied, revoked, or barred.
   1.  A person whose driver’s license or nonresident operating privilege has been suspended, denied, revoked, or barred due to a first violation of this chapter section 321J.2, and who drives a motor vehicle while the license or privilege is suspended, denied, revoked, or barred commits a serious misdemeanor. In addition to any other penalties, the punishment imposed for a violation of this subsection shall include assessment of a fine of one thousand dollars.
   2.  In addition to the fine, the department, upon receiving the record of the conviction of a person under this section upon a charge of driving a motor vehicle while the license of the person was suspended, denied, revoked, or barred shall extend the period of suspension, denial, revocation, or bar for an additional like period.
   2.  A person whose driver’s license or nonresident operating privilege has been revoked due to a second violation of section 321J.2, and who drives a motor vehicle while the license or privilege is revoked, commits an aggravated misdemeanor and the person shall be imprisoned in the county jail for a minimum of forty-eight hours. In addition to any other penalties, the department shall extend the revocation period for one year.
   3.  A person whose driver’s license or nonresident operating privilege has been revoked due to a third violation of section 321J.2, and who drives a motor vehicle while the license or privilege is revoked, commits an aggravated misdemeanor and the person shall be imprisoned in the county jail for a minimum of seven days. In addition to any other penalties, the department shall extend the revocation for one year.
   4.  A person whose driver’s license or nonresident operating privilege has been revoked due to a fourth or subsequent violation of section 321J.2, and who drives a motor vehicle while the license or privilege is revoked, commits a class “D” felony and the person shall be imprisoned in the county jail for a minimum of thirty days. In addition to any other penalties, the department shall extend the revocation period for two years.
   5.  For a violation of this section, a person shall be required to comply with the ignition interlock device requirements of section 321J.20 for the remaining time the person’s operating privilege is revoked, including any required extension of such time, if the person operates a motor vehicle in any of the following conditions:
   a.  While under the influence of an alcoholic beverage or other drug or a combination of such substances.
   b.  While having an alcohol concentration above .00.
   c.  While any amount of a controlled substance is present in the person, as measured in the person’s blood or urine.
    Sec. 11.  Section 811.2, subsection 1, Code 2022, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  c.  Any bailable defendant who is charged with a third or subsequent offense of operating while intoxicated under section 321J.2, and who is ordered released, shall be required, as a condition of that release, to install an ignition interlock device pursuant to section 321J.20. The defendant shall provide proof to the court within thirty days after being released from custody that the ignition interlock device was properly installed.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   Under current law, a record for operating while intoxicated (OWI) in violation of Code section 321J.2 is required to be deleted from the department of transportation (DOT) operating records 12 years after the date of conviction or the effective date of a driver’s license revocation. Deleted records cannot be considered as a prior conviction for the purpose of determining whether a current OWI violation is considered a second, third, or subsequent offense by a court. 
   This bill prohibits the DOT from deleting any record of a person’s conviction or license revocation due to OWI violations while the person is alive. The bill also provides that prior convictions for reckless driving and public intoxication following an OWI arrest is considered a prior OWI conviction.
   Under current law, a person whose license is revoked for OWI is required to install an ignition interlock device (IID) prior to receiving a temporary restricted license (TRL) from the DOT. The IID must be installed on every vehicle owned or operated by the person. However, if the person has had no previous OWI conviction or revocation, the person must install the IID only on all motor vehicles operated by the person. Current law also requires persons convicted of a second or subsequent OWI offense to install an IID for a minimum of one year prior to being eligible for reinstatement of a driver’s license other than a TRL.
   The bill adds compliance based removal (CBR) provisions to the IID requirements. Under the bill, a person convicted of a third or subsequent OWI is required to complete the CBR requirements. Under CBR, a person’s requirement to have an IID installed can be extended if the person violates certain conditions of the IID use requirements. The bill allows a court to extend the IID requirements beyond the maximum time of possible incarceration under CBR if violations occur.
   The bill adds a requirement that new IIDs contain a camera to take still photographs when the device prompts a person to submit a breath sample. The photos can be used to confirm or dispute a violation. 
   The DOT is required to suspend the registration of any vehicle owned by a person subject to IID requirements who fails to submit proof that an IID was installed on the vehicle. However, a family member of the vehicle owner can submit an affidavit to the DOT to waive the suspension under certain circumstances. If a family member provides an affidavit under the requirements of the bill but then allows the vehicle owner to use the motor vehicle the family member is guilty of a simple misdemeanor. A simple misdemeanor is punishable by confinement for no more than 30 days and a fine of at least $105 but not more than $855.
   The bill authorizes a person who is required to install an IID on a vehicle pursuant to Code section 321J.20 to operate an employer’s motor vehicle without an IID, if required as part of the person’s employment duties, under certain specifications as set forth in the bill. 
   The bill strikes a provision allowing a person whose driver’s license has been revoked under Code section 321J.21 to apply to the DOT for a TRL without the requirement of an IID if at least 12 years have elapsed since the end of the underlying revocation period for a violation of Code section 321J.2.
   The bill creates new criminal offenses for persons who operate a motor vehicle either while revoked or without having an IID installed when required on the motor vehicle. The penalties range from a serious misdemeanor to a class “D” felony. A serious misdemeanor is punishable by confinement for no more than one year and a fine of at least $430 but not more than $2,560. An aggravated misdemeanor is punishable by confinement for no more than two years and a fine of at least $855 but not more than $8,540. A class “D” felony is punishable by confinement for no more than five years and a fine of at least $1,025 but not more than $10,245.
   The bill adds the requirement to install an IID on every vehicle owned or operated by a person arrested for a third or subsequent OWI offense as a condition of bail. The person is required to provide proof that an IID was properly installed on each required vehicle within 30 days of release. 
   The bill makes organizational and conforming changes to Code chapter 321J.