New Law: HB 2643 OUI & DUI Related Legislation

OUI

• Removes a civil penalty for refusing a test for alcohol concentration or drug content
• For a first violation, stipulates that an offender be sentenced to at least 10 days in jail, except under certain conditions, whereby the sentence may be suspended if the offender completes drug or alcohol treatment. Allows a judge to order drug or alcohol screenings or community restitution.
• For a second violation within 48 months, allows a judge to suspend all but 30 days of the sentence, only if the offender did not recklessly endanger a person. Requires a person to perform 30 hours of community restitution.
• Makes changes to the definition and classification of Aggravated OUI. Requires an Aggravated or Extreme OUI offender to pay an additional assessment of $250, which is directed to the DUI Abatement Fund. Separates Extreme OUI into two categories for offenders with a blood alcohol concentration (BAC) between .15 and 2.0 and 2.0 and above, and specifies separates penalties and fines for each.

DUI

• Permits a person whose driving license has been suspended for refusing a test for alcohol concentration or drug content, or or vehicular homicide involving DUI, to have their license reinstated only if they complete alcohol or drug screening.
• Separates Extreme DUI into two separate categories for offenders with BAC between .15 and .20 and 2.0 and above, and specifies separate penalties and fines for each. Prohibits a judge from suspending any portion of an extreme DUI jail term.
• Allocates five percent of a restaurant's annual fee to the DUI Abatement Fund

OUI Bill Heads To House

Senator Linda Gray's OUI bill, SB 1080 passed out of the Senate last week and now comes to the House. Critics lament the elimination of the civil penalty of $1,250 for refusing to submit to a blood alcohol concentration test that was a part of the original bill. Watch to see if there will be an attempt in the House to amend the bill to include this provision.

ALCOHOL USE #1 CONTRIBUTING FACTOR IN BOATING FATALITIES

According to the most recent U.S. Coast Guard statistics alcohol use is ranked number one as a contributing factor in fatal boating accidents in the United States. There were 133 alcohol use related boating fatalities in 2006 (latest statistics available) this is more than doubles the second highest ranking contributing factor; hazardous waters which contributed to 63 boating fatalities. Operator inattention ranked third with 51 fatalities.

What is alarming is that statistics show that responsible boaters can take a few simple steps to prevent most serious problems while on the water:

• Always wear a lifejacket since even though the factors listed above contribute to boating fatalities, ultimately drowning is the cause of death by far. Wearing a lifejacket alone will substantially reduce the likelihood a boating accident will result in a fatality.
• Take a boating safety class
• Avoid alcohol or drugs while boating

The Coast Guard Auxiliary provides instruction to boaters at all levels, from the fundamental to the advanced. The courses are taught by experienced and knowledgeable instructors committed to the highest standards of the U.S. Coast Guard. For more information about Coast Guard Auxiliary safety classes please visit http://nws.cgaux.org/visitors/pe_visitor/index.html.

For more boating accident statistics visit the U.S. Coast Guard’s Office of Boating Safety website at http://www.uscgboating.org/

The U.S. Coast Guard Auxiliary is the uniformed civilian component of the United States Coast Guard. Created by an Act of Congress in 1939, the Auxiliary directly supports the Coast Guard in all missions, except military and direct law enforcement actions. The Coast Guard’s motto is SEMPER PARATUS (ALWAYS READY). The Coast Guard Auxiliary is an integral part of the United Sates Coast Guard.

SB1080 ~ OUI Bill Stalls in Committee

Read the East Valley Tribune's recent article about the SenateTransportations Committee Member's concerns with Senate Bill 1080. (Senator Ron Gould chairs this powerful committee.) Although this bill did not pass out of committee, I believe with some tightening of language, this bill still has legs. I am sending an email to the bill's sponsor with some drafting suggestions.

If you are in public safety/law enforcement and want to view the bill as written, not just the summary I posted previously, please visit the http://www.azleg.gov/ website. Any suggestions on how to massage the verbiage is appreciated.

SB 1080 ~ OUI Watercraft (Drunken Boating)

Note: This bill stalled in the Senate Transportation Committee and was held at the request of it's sponsor, Senator Linda Gray. To contact her, email her at LGray@azleg.gov.


FACT SHEET FOR S.B. 1080
operating under the influence; watercraft

Purpose
Increases penalties for persons convicted of operating a watercraft while intoxicated or who refuse to submit to an alcohol or drug test.

Background
It is unlawful for any person who is under the influence of intoxicating liquor or drugs to operate or be in actual physical control of a motorized watercraft. This is commonly referred to as operating under the influence (OUI). If a person’s blood alcohol concentration (BAC) is 0.08 or more, it is presumed in a trial that the person was under the influence of intoxicating liquor. A person also commits an OUI if he or she has a BAC of 0.08 or more within two hours of operating or being in actual physical control of the watercraft. Statute requires a person who operates a watercraft in Arizona to submit to an alcohol or drug test if the person is arrested for an OUI offense. A person who refuses to submit to such a test is subject to a civil penalty of $1,250.

Currently, a person convicted of a first time OUI offense pays a minimum of $1,250 in fines and assessments. Statute allows the court to impose community restitution and suspend any imposed sentence if the person completes alcohol or other drug screening, education or treatment (treatment). If a person is convicted of a second OUI violation within 60 months, the person is sentenced to 90 days in jail, 30 of which must be served consecutively, must pay a minimum of $3,000 in fines and assessments and may be ordered to perform community restitution. The judge may suspend all but 30 days of the sentence if the person completes treatment.

A person commits extreme OUI if the person has a BAC of 0.15 or greater within two hours of operating or being in actual physical control of a motorized watercraft. The person must pay a minimum of $2,250 in fines and assessments and must be sentenced to at least 30 consecutive days in jail, ten of which may be suspended if the person completes treatment. If a person is convicted of an extreme OUI offense and has previously been convicted of an OUI offense within the past 60 months, the person is sentenced to 120 days in jail, 60 of which may be suspended if the person completes treatment. Additionally, the person is subject to fines and assessments of at least $3,000 and may be required to perform community restitution.

Finally, a person commits aggravated OUI, a class 4 felony, if the person commits a third or subsequent OUI or extreme OUI offense within the past 60 months. The person is subject to fines and assessments of at least $3,750 and is sentenced to four months in prison for a third violation and eight months in prison for a subsequent violation.
S.B. 1080 aligns OUI penalties with current DUI sentencing requirements, fines and assessments, except in some circumstances judges have discretion to suspend a portion of extreme OUI sentences, but not extreme DUI sentences. The fiscal impact associated with this legislation is unknown. While city and county jails and the Arizona Department of Corrections may have an increase in the sentence duration of OUI incarcerations as a result of this legislation, fines and assessments collected as a result of OUI convictions may also increase.

Provisions
Operating Under the Influence
1. Requires a person convicted of OUI to serve not less than ten consecutive days in jail and specifies that the person is not eligible for probation or suspension of execution of sentence unless the entire sentence is served.

2. Allows the judge to suspend all but 24 hours of an OUI sentence, instead of the entire sentence, if the person completes a court ordered treatment program.

3. Increases the look-back period, from 60 to 84 months, for determining a second time or aggravated OUI offense.

4. Requires a second time OUI offender to perform at least 30 hours of community service, instead of allowing the court to order the person to perform community service.

5. Removes the requirement that the person pay the costs of treatment.

6. Disallows a judge to do the following:
a) if the judge determines that the person requires further treatment, to require the person pursuant to court order to obtain treatment under the court’s supervision from an approved facility.
b) to review a treatment determination at the request of the state, the defendant or on the judge’s initiative.

7. Removes the requirement for a treatment facility to report to the court whether the person has successfully completed the treatment program.

8. Eliminates immunity from liability for political subdivisions processing or utilizing the services of a person ordered to perform community restitution for an OUI offense.

9. Disallows the court to provide in the sentence that the person be released from jail for up to 12 hours per day and five days per week to continue his or her employment or studies.

10. Disallows an OUI offender to be eligible for a home detention program.

11. Removes the requirement that the court allow the allegation of a prior conviction or other pending OUI charge filed 20 days or more before the date the case is tried and removes the ability of the court to allow the allegation of a prior conviction or other pending OUI charge filed any time before the date the case is tried.

12. Disallows any OUI conviction to be used to enhance another conviction.

13. Eliminates the requirement for probation to be supervised.

Extreme Operating Under the Influence
14. Requires a person convicted of an extreme OUI to pay an additional assessment of $250 and provides rules for the transfer of the monies to the Driving Under the Influence Abatement Fund.

15. Requires any fine, assessment, restitution and incarceration costs to be paid before the above assessment.

16. Requires a person convicted of an extreme OUI with a BAC of 0.20 or more to pay a minimum fine of $500 for the first offense and $1000 for a second OUI offense within 84 months.

17. Prescribes the following minimum sentences for persons convicted of extreme OUI with a BAC of 0.20 or more, and prohibits the person from being eligible for probation or suspension of execution of sentence unless the entire sentence has been served:
a) 45 consecutive days in jail for a first time extreme OUI offender.
b) 180 days in jail, 90 of which must be served consecutively, for a second extreme OUI offender.

18. Requires, instead of allows, the court to order a second time extreme OUI offender to perform at least 30 hours of community restitution.

Aggravated Operating Under the Influence
19. Specifies that a person is guilty of aggravated OUI if he or she commits an OUI offense while a person under 15 years of age is aboard the motorized watercraft.

20. Classifies the above aggravated OUI offense as a class 6 felony.

21. Specifies the following minimum terms of incarceration for persons convicted of the above aggravated OUI offense:
a) 10 consecutive days, for a first offense OUI if the person’s BAC was below 0.15 (all but 24 hours may be suspended).
b) 90 days, at least 30 of which must be served consecutively, for a second offense OUI if the person’s BAC was below 0.15 (all but 30 days may be suspended).
c) 30 consecutive days, for a first offense extreme OUI if the person’s BAC was at least 0.15, but below 0.20 (all but 10 days may be suspended).
d) 45 consecutive days for a first offense extreme OUI, if the person’s BAC was 0.20 or more.
e) 120 days, 60 of which must be served consecutively, for a second offense extreme OUI if the person’s BAC was below 0.20 (all but 60 days may be suspended).
f) 180 days, 90 of which must be served consecutively, for a second offense extreme OUI if the person’s BAC was 0.20 or more.

22. Requires the court, in addition to any other penalty prescribed by law, to order a person convicted of aggravated OUI to pay an additional assessment of $250 and provides rules for the transfer of the monies to the DUI Abatement Fund.

23. Requires any fine, assessment, restitution and incarceration costs to be paid before the above assessment.

24. Excludes the following time periods when determining the 84 month look-back period for aggravated OUI:
a) the time that a probationer is found to be on absconder status.
b) the time that a person is incarcerated in any state, federal, county or city jail or correctional facility.

Alcohol Concentration Tests and Refusal to Submit

25. Requires both of the following, instead of one of the following, to be true in order for results of a breath test administered to determine a person’s BAC to be admissible as evidence:
a) duplicate tests were administered and the test results were within 0.02 alcohol concentration of each other.
b) an operator observed the person charged with OUI for 15 minutes, instead of 20 minutes, immediately preceding the administration of the test.

26. Removes the Department of Health Services as an agency that can approve a quantitative breath testing device or an operational checklist for conducting breath tests.

27. Increases the civil penalty from $750 to $3,000 and the additional civil penalty from $500 to $1,000 for refusing to submit to a blood alcohol concentration test.

Watercrafts
28. Allows the Arizona Game and Fish Commission to register a watercraft for up to a period of 36 months, instead of 18.

29. Requires the operator of a watercraft involved in a collision, accident or other casualty to do the following:
a) immediately stop the watercraft at the scene or as close as possible to the scene of the collision, accident or other casualty, but immediately return to the scene.
b) remain at the scene of the collision, accident or other casualty until the operator has given his or her name, address and identification of his or her watercraft to any person injured and to the owners of any property damaged.

30. Eliminates the class 2 misdemeanor classification for not immediately stopping a watercraft to allow a peace officer to come aboard, and instead designates as a class 5 felony wilfully fleeing or attempting to elude a pursuing officer who is ordering the operator ashore to correct any unlawful condition, issuing a written warning or repair order or issuing a citation.

31. Requires the law enforcement watercraft to be appropriately marked to show that it is an official law enforcement watercraft.

Miscellaneous
32. Makes technical and conforming changes.

33. Becomes effective on the general effective date.