28-1383

28-1383. Aggravated driving or actual physical
control while under the influence; violation; classification;
definition

A. A person is guilty of aggravated driving or actual physical control while under
the influence of intoxicating liquor or drugs if the person does any of the following:

1. Commits a violation of section 28-1381, section 28-1382 or this section while
the person's driver license or privilege to drive is suspended, canceled, revoked or
refused or while a restriction is placed on the person's driver license or privilege to
drive as a result of violating section 28-1381 or 28-1382 or under section 28-1385.

2. Within a period of eighty-four months commits a third or subsequent violation of
section 28-1381, section 28-1382 or this section or is convicted of a violation of
section 28-1381, section 28-1382 or this section and has previously been convicted of any
combination of convictions of section 28-1381, section 28-1382 or this section or acts in
another jurisdiction that if committed in this state would be a violation of section
28-1381, section 28-1382 or this section.

3. While a person under fifteen years of age is in the vehicle, commits a violation
of either:

(a) Section 28-1381.

(b) Section 28-1382.

4. While the person is ordered by the court or required pursuant to section 28-3319
by the department to equip any motor vehicle the person operates with a certified
ignition interlock device, does either of the following:

(a) While under arrest refuses to submit to any test chosen by a law enforcement
officer pursuant to section 28-1321, subsection A.

(b) Commits a violation of section 28-1381, section 28-1382 or this section.

B. The dates of the commission of the offenses are the determining factor in
applying the eighty-four month provision provided in subsection A, paragraph 2 of this
section regardless of the sequence in which the offenses were committed. For the
purposes of this section, a third or subsequent violation for which a conviction occurs
does not include a conviction for an offense arising out of the same series of acts. The
time that a probationer is found to be on absconder status or the time that a person is
incarcerated in any state, federal, county or city jail or correctional facility is
excluded when determining the eighty-four month period provided in subsection A,
paragraph 2 and subsection E of this section.

C. The notice to a person of the suspension, cancellation, revocation or refusal of
a driver license or privilege to drive is effective as provided in section 28-3318 or
pursuant to the laws of the state issuing the license.

D. A person is not eligible for probation, pardon, commutation or suspension of
sentence or release on any other basis until the person has served not less than four
months in prison if the person is convicted under either of the following:

1. Subsection A, paragraph 1 of this section.

2. Subsection A, paragraph 2 of this section and within an eighty-four month period
has been convicted of two prior violations of section 28-1381, section 28-1382 or this
section, or any combination of those sections, or acts in another jurisdiction that if
committed in this state would be a violation of section 28-1381, section 28-1382 or this
section.

E. A person who is convicted under subsection A, paragraph 2 of this section and
who within an eighty-four month period has been convicted of three or more prior
violations of section 28-1381, section 28-1382 or this section, or any combination of
those sections, or acts in another jurisdiction that if committed in this state would be
a violation of section 28-1381, section 28-1382 or this section is not eligible for
probation, pardon, commutation or suspension of sentence or release on any other basis
until the person has served not less than eight months in prison.

F. A person who is convicted under subsection A, paragraph 3, subdivision (a) of
this section shall serve at least the minimum term of incarceration required pursuant to
section 28-1381.

G. A person who is convicted under subsection A, paragraph 3, subdivision (b) of
this section shall serve at least the minimum term of incarceration required pursuant to
section 28-1382.

H. A person who is convicted of a violation of this section shall attend and
complete alcohol or other drug screening, education or treatment from an approved
facility. If the person fails to comply with this subsection and is placed on probation,
in addition to the provisions of section 13-901 the court may order that the person be
incarcerated as a term of probation as follows:

1. For a person sentenced pursuant to subsection D of this section, for an
individual period of not more than four months and a total period of not more than one
year.

2. For a person sentenced pursuant to subsection E of this section, for an
individual period of not more than eight months and a total period of not more than two
years.

I. The time that a person spends in custody pursuant to subsection H of this
section shall not be counted towards the sentence imposed if the person's probation is
revoked and the person is sentenced to prison after revocation of probation.

J. On a conviction for a violation of this section, the court:

1. Shall report the conviction to the department. On receipt of the report, the
department shall revoke the driving privilege of the person. The department shall not
issue the person a new driver license within three years of the date of the conviction
and, for a conviction of a violation of subsection A, paragraph 1, 2 or 4 or paragraph 3,
subdivision (b) of this section, shall require the person to equip any motor vehicle the
person operates with a certified ignition interlock device pursuant to section 28-3319.
In addition, the court may order the person to equip any motor vehicle the person
operates with a certified ignition interlock device for more than twelve months beginning
on the date of reinstatement of the person's driving privilege following a suspension or
revocation or on the date of the department's receipt of the report of conviction,
whichever occurs later. The person who operates a motor vehicle with a certified
ignition interlock device under this paragraph shall comply with article 5 of this
chapter.

2. In addition to any other penalty prescribed by law, shall order the person to
pay an additional assessment of two hundred fifty dollars. If the conviction occurred in
the superior court or a justice court, the court shall transmit the monies received
pursuant to this paragraph to the county treasurer. If the conviction occurred in a
municipal court, the court shall transmit the monies received pursuant to this paragraph
to the city treasurer. The city or county treasurer shall transmit the monies received to
the state treasurer. The state treasurer shall deposit the monies received in the
driving under the influence abatement fund established by section 28-1304. Any fine
imposed for a violation of this section and any assessments, restitution and
incarceration costs shall be paid before the assessment prescribed in this paragraph.

3. Shall order the person to pay a fine of not less than seven hundred fifty
dollars.

4. In addition to any other penalty prescribed by law, shall order the person to
pay an additional assessment of one thousand five hundred dollars to be deposited by the
state treasurer in the prison construction and operations fund established by section
41-1651. This assessment is not subject to any surcharge. If the conviction occurred in
the superior court or a justice court, the court shall transmit the assessed monies to
the county treasurer. If the conviction occurred in a municipal court, the court shall
transmit the assessed monies to the city treasurer. The city or county treasurer shall
transmit the monies received to the state treasurer.

5. In addition to any other penalty prescribed by law, shall order the person to
pay an additional assessment of one thousand five hundred dollars to be deposited by the
state treasurer in the public safety equipment fund established by section 41-1723. This
assessment is not subject to any surcharge. If the conviction occurred in the superior
court or a justice court, the court shall transmit the assessed monies to the county
treasurer. If the conviction occurred in a municipal court, the court shall transmit the
assessed monies to the city treasurer. The city or county treasurer shall transmit the
monies received to the state treasurer.

K. After completing the period of suspension required by section 28-1385, a person
whose driving privilege is revoked for a violation of subsection A, paragraph 3 of this
section may apply to the department for a special ignition interlock restricted driver
license pursuant to section 28-1401.

L. Aggravated driving or actual physical control while under the influence of
intoxicating liquor or drugs committed under:

1. Subsection A, paragraph 1 or 2 or paragraph 4, subdivision (b) of this section
is a class 4 felony.

2. Subsection A, paragraph 3 or paragraph 4, subdivision (a) of this section is a
class 6 felony.

M. For the purposes of this section, "suspension, cancellation, revocation or
refusal" means any suspension, cancellation, revocation or refusal.