§291E-61.5  Habitually operating a vehicle
under the influence of an intoxicant.  (a)  A person commits the offense of
habitually operating a vehicle under the influence of an intoxicant if:



(1)  The person is a habitual operator of a vehicle
while under the influence of an intoxicant; and



(2)  The person operates or assumes actual physical
control of a vehicle:



(A)  While under the influence of alcohol in an
amount sufficient to impair the person's normal mental faculties or ability to
care for the person and guard against casualty;



(B)  While under the influence of any drug that
impairs the person's ability to operate the vehicle in a careful and prudent
manner;



(C)  With .08 or more grams of alcohol per two
hundred ten liters of breath; or



(D)  With .08 or more grams of alcohol per one
hundred milliliters or cubic centimeters of blood.



(b)  For the purposes of this section:



"Convicted three or more times for
offenses of operating a vehicle under the influence" means that, at the
time of the behavior for which the person is charged under this section, the
person had three or more times within ten years of the instant offense:



(1)  A judgment on a verdict or a finding of guilty,
or a plea of guilty or nolo contendere, for a violation of this section or
section 291-4, 291-4.4, or 291-7 as those sections were in effect on December
31, 2001, or section 291E-61 or 707-702.5;



(2)  A judgment on a verdict or a finding of guilty,
or a plea of guilty or nolo contendere, for an offense that is comparable to
this section or section 291-4, 291-4.4, or 291-7 as those sections were in
effect on December 31, 2001, or section 291E-61 or 707-702.5; or



(3)  An adjudication of a minor for a law or probation
violation that, if committed by an adult, would constitute a violation of this
section or section 291-4, 291-4.4, or 291-7 as those sections were in effect on
December 31, 2001, or section 291E-61 or 707-702.5;



that, at the time of the instant offense, had not
been expunged by pardon, reversed, or set aside.  All convictions that have
been expunged by pardon, reversed, or set aside prior to the instant offense
shall not be deemed prior convictions for the purposes of proving the person's
status as a habitual operator of a vehicle while under the influence of an
intoxicant.



A person has the status of a "habitual
operator of a vehicle while under the influence of an intoxicant" if the
person has been convicted three or more times within ten years of the instant
offense, for offenses of operating a vehicle under the influence of an
intoxicant.



(c)  Habitually operating a vehicle while under
the influence of an intoxicant is a class C felony.



(d)  For a conviction under this section, the
sentence shall be either:



(1)  An indeterminate term of imprisonment of five
years; or



(2)  A term of probation of five years, with
conditions to include:



(A)  Mandatory revocation of license and
privilege to operate a vehicle for a period not less than one year but not more
than five years;



(B)  Not less than ten days imprisonment, of which
at least forty-eight hours shall be served consecutively;



(C)  Referral to a certified substance abuse
counselor as provided in section 291E-61(d);



(D)  A surcharge of $25 to be deposited into
the neurotrauma special fund; and



(E)  May be charged a surcharge of up to $50 to
be deposited into the trauma system special fund if the court so orders.



In addition to the foregoing, any vehicle owned and
operated by the person committing the offense shall be subject to forfeiture
pursuant to chapter 712A, provided that the department of transportation shall
provide storage for vehicles forfeited under this subsection.



(e)  Whenever a court sentences a person under
this section, it shall also require that the offender be referred to the
driver's education program for an assessment, by a certified substance abuse
counselor, of the offender's substance abuse or dependence and the need for
appropriate treatment.  The counselor shall submit a report with
recommendations to the court.  The court shall require the offender to obtain
appropriate treatment if the counselor's assessment establishes the offender's
substance abuse or dependence.  All costs for assessment and treatment shall be
borne by the offender.



(f)  Notwithstanding any other law to the
contrary, whenever a court revokes a person's driver's license pursuant to this
section, the examiner of drivers shall not grant to the person a new driver's
license until expiration of the period of revocation determined by the court. 
After the period of revocation is complete, the person may apply for and the
examiner of drivers may grant to the person a new driver's license.



(g)  Any person sentenced under this section
may be ordered to reimburse the county for the cost of any blood or urine tests
conducted pursuant to section 291E-11.  The court shall order the person to
make restitution in a lump sum, or in a series of prorated installments, to the
police department or other agency incurring the expense of the blood or urine
test.



(h)  As used in this section, the term
"examiner of drivers" has the same meaning as provided in section
286-2. [L 2003, c 71, §1; am L 2004, c 90, §13; am L 2005, c 194, §2; am L
2008, c 231, §18]