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

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

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

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

(B)  While under the influence of any drug thatimpairs the person's ability to operate the vehicle in a careful and prudentmanner;

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

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

(b)  For the purposes of this section:

"Convicted three or more times foroffenses of operating a vehicle under the influence" means that, at thetime of the behavior for which the person is charged under this section, theperson 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 orsection 291-4, 291-4.4, or 291-7 as those sections were in effect on December31, 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 tothis section or section 291-4, 291-4.4, or 291-7 as those sections were ineffect on December 31, 2001, or section 291E-61 or 707-702.5; or

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

that, at the time of the instant offense, had notbeen expunged by pardon, reversed, or set aside.  All convictions that havebeen expunged by pardon, reversed, or set aside prior to the instant offenseshall not be deemed prior convictions for the purposes of proving the person'sstatus as a habitual operator of a vehicle while under the influence of anintoxicant.

A person has the status of a "habitualoperator of a vehicle while under the influence of an intoxicant" if theperson has been convicted three or more times within ten years of the instantoffense, for offenses of operating a vehicle under the influence of anintoxicant.

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

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

(1)  An indeterminate term of imprisonment of fiveyears; or

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

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

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

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

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

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

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

(e)  Whenever a court sentences a person underthis section, it shall also require that the offender be referred to thedriver's education program for an assessment, by a certified substance abusecounselor, of the offender's substance abuse or dependence and the need forappropriate treatment.  The counselor shall submit a report withrecommendations to the court.  The court shall require the offender to obtainappropriate treatment if the counselor's assessment establishes the offender'ssubstance abuse or dependence.  All costs for assessment and treatment shall beborne by the offender.

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

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

(h)  As used in this section, the term"examiner of drivers" has the same meaning as provided in section286-2. [L 2003, c 71, §1; am L 2004, c 90, §13; am L 2005, c 194, §2; am L2008, c 231, §18]