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S.F. No. 1073 - DWI Law Modifications (Third Engrossment)
Author: Senator Ron Latz
Prepared By: Kenneth P. Backhus, Senate Counsel (651/296-4396)
Date: April 22, 2015


Sections 1, 10, and 16 amend the laws specifying the judicial review process for challenging loss of hunting privileges due to hunting while impaired (HWI), loss of driving privileges due to driving while impaired (DWI), and license plate impoundment due to DWI, respectively, to allow persons challenging the loss or impoundment to file a petition within 60 days rather than 30. These changes are effective the day following final enactment.

Section 2 amends the law related to challenging the loss of hunting privileges due to HWI to expand the affirmative defenses available to include all of the defenses described in the criminal DWI affirmative defense law (see section 9). Requires that advance notice of the defense be provided. This provision also applies to persons who have lost their operating privileges under the motorboat and snowmobile/all-terrain vehicle impaired operation laws. These changes are effective the day following final enactment.

Sections 3 to 6, and 9 amend various criminal provisions in the DWI law to lower the alcohol concentration threshold that constitutes an aggravated offense. Under current law, if a person’s alcohol concentration is twice the legal limit (0.16) or more, the person faces more severe DWI civil/administrative sanctions (i.e., driver's license revocation, plate impoundment, etc.) than if the person’s alcohol concentration is less than twice the legal limit. Under the DWI criminal provisions, the distinction for a person receiving harsher penalties based on a higher alcohol concentration is 0.20 or higher.  Thus, there is a discrepancy between the criminal and administrative sanctions for persons with higher alcohol concentrations. These sections lower the alcohol concentration threshold for the DWI criminal provisions from 0.20 to 0.16, consistent with the administrative provisions.

Section 7 makes it a misdemeanor to intentionally remove or damage a permanent sticker affixed to and invalidating a registration plate under the DWI license plate impoundment law. (See section 14.)

Section 8 amends the preliminary screening test law to require the immediate disclosure of the test results, upon request of the driver or the driver’s counsel. If the peace officer does not comply with the request, the test result may not be used in any license revocation, DWI, or underage drinking and driving proceeding. These changes apply only to persons arrested for DWI offenses.

Section 9 amends the criminal DWI affirmative defense law to specifically add the common law necessity defense. Also provides that it is an affirmative defense to driving while under the influence of alcohol, a controlled substance, or a hazardous substance, or a combination, if the defendant was not under the influence at the time of the violation and proves consumption of a sufficient quantity of alcohol, controlled substances, or hazardous substances, or a combination, after the time of the violation and that this caused the defendant to be under the influence (this is a variation of a similar affirmative defense currently available (see lines 5.32-6.7)). Also adds an affirmative defense for the DWI test refusal crime that the defendant’s refusal to permit the test was based on reasonable grounds (this affirmative defense is currently available in the implied consent law, but not the criminal DWI law). Amends the current prescription drug affirmative defense by adding cross-references that were missed when the DWI law was recodified a few years ago. Provides that an affirmative defense under this section may not be raised unless prior notice is given to the prosecution. These changes are effective the day following final enactment.

Section 11 amends the DWI implied consent law to provide that the affirmative defenses described in the DWI criminal law (see section 9) are also available in the DWI implied consent law. Requires that advance notice of the defense be provided. Also specifically provides that any constitutional challenges are properly within the scope of an implied consent hearing and expands the scope of the hearing to also include a determination of whether the offender was driving, operating, or in physical control of the motor vehicle. These changes are effective the day following final enactment.

Sections 12 and 20 amend the provisions of law that require a person whose driver’s license has been revoked to successfully pass an examination before being issued another license. Exempts DWI offenders from these provisions.

Sections 13, 23 to 25, and 27 make technical changes relating to criminal vehicular operation (CVO) offenders in the DWI driver's license revocation law, the limited driver's license law, and the ignition interlock program law.

Section 14 amends the DWI license plate impoundment law to permit a peace officer, as an alternative to seizing and destroying the plates at the time of the violation, to invalidate the plates by affixing a permanent sticker on them.

Section 15 amends the DWI license plate impoundment law to provide that when a plate impoundment violation is predicated on the results of a chemical test of the person’s breath, or on a test refusal, the person must be issued a temporary vehicle permit valid for 14 days rather than seven days. Requires a temporary permit valid for 45 days if the person submits to a chemical test of the person’s blood or urine.

Section 17 amends the DWI license plate impoundment law to require the issuance of new registration plates (i.e., nonwhiskey plates) for vehicles whose plates have been impounded, if the violator becomes a program participant in the ignition interlock program.

Section 18 amends the DWI forfeiture law to provide that it does not apply to offenders who begin participation in the ignition interlock program within 60 days following the service of a Notice of Seizure and Intent to Forfeit. Provides that the vehicle is summarily forfeited if it is used by the program participant in the commission of another DWI before the participant has been restored to full driving privileges or within three years of the original offense or license revocation, whichever occurs latest.

Sections 19 and 29 provide that the Judicial Council may not make an ignition interlock program crime a payable offense.

Section 21 amends the law allowing certain DWI offenders to pay their driver's license reinstatement fee and surcharge in installments. Under current law, this option applies only to persons eligible for a public defender. This section expands this option to all offenders.

Section 22 amends the limited driver's license law to provide that certain more serious DWI offenders are not eligible for limited licenses. (See section 27 for further explanation.)

Section 26 amends the ignition interlock law to require indigent program participants to submit a sworn statement affirming that the proof supporting indigency is accurate. (See also section 29.) Requires the commissioner of public safety to deny the participant the reduced rate for indigents if the statement contains false material information.

Section 27 amends the ignition interlock program law. Under current law, more serious DWI offenders who participate in the program (which they must in order to drive legally) must have a limited license for the first year (in addition to being subject to ignition interlock). Provides that these persons are no longer required to have the limited license (thus, while still subject to the interlock requirement, they are not subject to the restrictions of a limited license for the first year). Also provides that only persons who have a previous driving without insurance offense are required to present proof of current insurance that is non-cancellable for 12 months. Under current law, all program participants are required to prove this. Finally, makes technical changes relating to CVO offenders.

Section 28 amends the ignition interlock law to strike a limited license reference made unnecessary by the changes contained in section 27.

Section 29  makes it a misdemeanor for an ignition interlock program participant to knowingly submit false material information related to the participant's eligibility for a reduced rate due to indigency. (See also section 26.)

Section 30 makes the same substantive changes to the criminal vehicular operation (CVO) law as are being made in the DWI criminal law regarding affirmative defenses (see section 9). However, the defense relating to test refusal is not included because that is not an offense under the CVO law. These changes are effective the day following final enactment.

Section 31 clarifies that the bill's affirmative defense changes are limited to DWI and CVO-related proceedings. Prohibits a court from construing them as addressing or limiting the applicability of affirmative defenses in other criminal or civil proceedings. These changes are effective the day following final enactment.

Section 32 repeals affirmative defense provisions in the CVO law that are superseded by the changes made in section 30. These changes are effective the day following final enactment.



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