§291E-61 - Operating a vehicle under the influence of an intoxicant.

PART IV. PROHIBITED CONDUCT

Revision Note

Sections 291E-61 to 291E-65 renumbered pursuant to§23G-15(1).

§291E-61 Operating a vehicle under theinfluence of an intoxicant. [Section effective until December 31, 2010. For section effective January 1, 2011, see below.] (a) A person commitsthe offense of operating a vehicle under the influence of an intoxicant if theperson operates or assumes actual physical control of a vehicle:

(1) While under the influence of alcohol in an amountsufficient to impair the person's normal mental faculties or ability to carefor the person and guard against casualty;

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

(3) With .08 or more grams of alcohol per two hundredten liters of breath; or

(4) With .08 or more grams of alcohol per one hundredmilliliters or cubic centimeters of blood.

(b) A person committing the offense ofoperating a vehicle under the influence of an intoxicant shall be sentenced asfollows without possibility of probation or suspension of sentence:

(1) Except as provided in paragraph (2), for thefirst offense, or any offense not preceded within a five-year period by aconviction for an offense under this section or section 291E-4(a):

(A) A fourteen-hour minimum substance abuserehabilitation program, including education and counseling, or other comparableprogram deemed appropriate by the court;

(B) Ninety-day prompt suspension of licenseand privilege to operate a vehicle during the suspension period, or the courtmay impose, in lieu of the ninety-day prompt suspension of license, a minimumthirty-day prompt suspension of license with absolute prohibition fromoperating a vehicle and, for the remainder of the ninety-day period, arestriction on a category (1), (2), or (3) license under section 286-102(b)that allows the person to drive for limited work-related purposes and toparticipate in substance abuse treatment programs;

(i) Seventy-two hours of community servicework;

(ii) Not less than forty-eight hours and notmore than five days of imprisonment; or

(iii) A fine of not less than $150 but not morethan $1,000;

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

(E) May be charged a surcharge of up to $25 tobe deposited into the trauma system special fund if the court so orders;

(2) For a first offense committed by a highlyintoxicated driver, or for any offense committed by a highly intoxicated drivernot preceded within a five-year period by a conviction for an offense underthis section or section 291E-4(a):

(A) A fourteen-hour minimum substance abuserehabilitation program, including education and counseling, or other comparableprogram deemed appropriate by the court;

(B) Prompt suspension of a license andprivilege to operate a vehicle for a period of six months with an absoluteprohibition from operating a vehicle during the suspension period;

(i) Seventy-two hours of community servicework;

(ii) Not less than forty-eight hours and notmore than five days of imprisonment; or

(iii) A fine of not less than $150 but not morethan $1,000;

(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;

(3) For an offense that occurs within five years of aprior conviction for an offense under this section or section 291E-4(a) by:

(A) Prompt suspension of license and privilegeto operate a vehicle for a period of one year with an absolute prohibition fromoperating a vehicle during the suspension period;

(B) Either one of the following:

(i) Not less than two hundred forty hours ofcommunity service work; or

(ii) Not less than five days but not more thanfourteen days of imprisonment of which at least forty-eight hours shall beserved consecutively;

(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;

(4) For an offense that occurs within five years oftwo prior convictions for offenses under this section or section 291E-4(a):

(A) A fine of not less than $500 but not morethan $2,500;

(B) Revocation of license and privilege tooperate a vehicle for a period not less than one year but not more than fiveyears;

(C) Not less than ten days but not more thanthirty days imprisonment of which at least forty-eight hours shall be servedconsecutively;

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

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

(F) Forfeiture under chapter 712A of thevehicle owned and operated by the person committing the offense; provided thatthe department of transportation shall provide storage for vehicles forfeitedunder this subsection; and

(5) Any person eighteen years of age or older who isconvicted under this section and who operated a vehicle with a passenger, in oron the vehicle, who was younger than fifteen years of age, shall be sentencedto an additional mandatory fine of $500 and an additional mandatory term ofimprisonment of forty-eight hours; provided that the total term of imprisonmentfor a person convicted under this paragraph shall not exceed the maximum termof imprisonment provided in paragraph (1), (3), or (4).

(1) Conviction under this section, section 291E-4(a),or section 291E-61.5;

(2) Conviction in any other state or federaljurisdiction for an offense that is comparable to operating or being inphysical control of a vehicle while having either an unlawful alcoholconcentration or an unlawful drug content in the blood or urine or while underthe influence of an intoxicant or habitually operating a vehicle under theinfluence of an intoxicant; or

(3) Adjudication of a minor for a law violation that,if committed by an adult, would constitute a violation of this section or anoffense under section 291E-4(a), or section 291E-61.5;

shall be considered a prior conviction for thepurposes of imposing sentence under this section. Any judgment on a verdict ora finding of guilty, a plea of guilty or nolo contendere, or an adjudication inthe case of a minor, that at the time of the offense has not been expunged bypardon, reversed, or set aside shall be deemed a prior conviction under thissection. No license and privilege suspension or revocation shall be imposedpursuant to this section if the person's license and privilege to operate avehicle has previously been administratively revoked pursuant to part III forthe same act; provided that, if the administrative suspension or revocation issubsequently reversed, the person's license and privilege to operate a vehicle shallbe suspended or revoked as provided in this section.

(d) Whenever a court sentences a personpursuant to subsection (b), it also shall require that the offender be referredto the driver's education program for an assessment, by a certified substanceabuse counselor, of the offender's substance abuse or dependence and the needfor appropriate 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.

(e) 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 the expiration of the period of revocation determined by thecourt. After the period of revocation is completed, the person may apply forand the examiner of drivers may grant to the person a new driver's license.

(f) 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.

(g) [Repeal and reenactment on December 31,2010. L 2009, c 11, §17 as superseded by c 88, §13.] Therequirement to provide proof of financial responsibility pursuant to section287-20 shall not be based upon a sentence imposed under subsection (b)(1) or(b)(2).

(h) As used in this section, the term"examiner of drivers" has the same meaning as provided in section286-2. [L 2000, c 189, pt of §23; am L 2001, c 157, §25; am L 2002, c 160, §11;am L 2003, c 71, §3; am L 2004, c 90, §12; am L 2005, c 33, §1 and c 194, §1;am L 2006, c 201, §7; am L 2007, c 198, §4; am L 2008, c 171, §16 and c 231, §17;am L 2009, c 45, §1]

§291E-61 Operating a vehicle under theinfluence of an intoxicant. [Section effective January 1, 2011. Forsection effective until December 31, 2010, see above.] (a) A personcommits the offense of operating a vehicle under the influence of an intoxicantif the person operates or assumes actual physical control of a vehicle:

(1) While under the influence of alcohol in an amountsufficient to impair the person's normal mental faculties or ability to carefor the person and guard against casualty;

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

(3) With .08 or more grams of alcohol per two hundredten liters of breath; or

(4) With .08 or more grams of alcohol per one hundredmilliliters or cubic centimeters of blood.

(b) A person committing the offense ofoperating a vehicle under the influence of an intoxicant shall be sentenced asfollows:

(1) For the first offense, or any offense notpreceded within a five-year period by a conviction for an offense under thissection or section 291E-4(a):

(A) A fourteen-hour minimum substance abuserehabilitation program, including education and counseling, or other comparableprogram deemed appropriate by the court;

(B) One-year revocation of license andprivilege to operate a vehicle during the revocation period and installationduring the revocation period of an ignition interlock device on any vehicleoperated by the person;

(i) Seventy-two hours of community servicework;

(ii) Not less than forty-eight hours and notmore than five days of imprisonment; or

(iii) A fine of not less than $150 but not morethan $1,000;

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

(E) May be charged a surcharge of up to $25 tobe deposited into the trauma system special fund if the court so orders;

(2) For an offense that occurs within five years of aprior conviction for an offense under this section or section 291E-4(a), andnotwithstanding section 706-623, by probation for not less than eighteen monthsnor more than two years on the following conditions:

(A) Revocation of license and privilege tooperate a vehicle during the probation period and installation during theprobation period of an ignition interlock device on any vehicle operated by theperson;

(B) Either one of the following:

(i) Not less than two hundred forty hours ofcommunity service work; or

(ii) Not more than five days ofimprisonment of which at least forty-eight hours shall be served consecutively;

(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;

(3) For an offense that occurs within five years oftwo prior convictions for offenses under this section or section 291E-4(a), andnotwithstanding section 706-623, by probation for two years on the followingconditions:

(A) A fine of not less than $500 but not morethan $2,500;

(B) Revocation of license and privilege tooperate a vehicle during the probation period and installation during theprobation period of an ignition interlock device on any vehicle operated by theperson;

(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;

(4) In addition to a sentence imposed underparagraphs (1) through (3), any person eighteen years of age or older who isconvicted under this section and who operated a vehicle with a passenger, in oron the vehicle, who was younger than fifteen years of age, shall be sentencedto an additional mandatory fine of $500 and an additional mandatory term of imprisonmentof forty-eight hours; provided that the total term of imprisonment for a personconvicted under this paragraph shall not exceed the maximum term ofimprisonment provided in paragraph (1), (2), or (3), as applicable. Notwithstanding paragraph (2), the probation period for a person sentencedunder this paragraph shall be not less than two years; and

(5) If the person demonstrates to the court that theperson:

(A) Does not own or have the use of a vehiclein which the person can install an ignition interlock device during theprobation period; or

(B) Is otherwise unable to drive during theprobation period,

the person shall be absolutely prohibited fromdriving during the period of probation provided in paragraphs (1) to (4);provided that the court shall not issue an ignition interlock permit pursuantto subsection (i) and the person shall be subject to the penalties provided bysection 291E-62 if the person drives during the probation period.

(1) A defendant whose license is expired, suspended,or revoked as a result of action other than the instant offense; or

(2) A defendant who holds either a category 4 licenseunder section 286-102(b) or a commercial driver's license under section286-239(b), unless the ignition interlock permit is restricted to a category 1,2, or 3 license under section 286-102(b).

(d) The court may issue a separate permitauthorizing a defendant to operate a vehicle owned by the defendant's employerduring the period of revocation without installation of an ignition interlockdevice if the defendant is gainfully employed in a position that requiresdriving and the defendant will be discharged if prohibited from driving avehicle not equipped with an ignition interlock device.

(e) A request made pursuant to subsection (d)shall be accompanied by:

(1) A sworn statement from the defendant containingfacts establishing that the defendant currently is employed in a position thatrequires driving and that the defendant will be discharged if prohibited fromdriving a vehicle not equipped with an ignition interlock device; and

(2) A sworn statement from the defendant's employerestablishing that the employer will, in fact, discharge the defendant if thedefendant is prohibited from driving a vehicle not equipped with an ignitioninterlock device and identifying the specific vehicle and hours of the day, notto exceed twelve hours per day, the defendant will drive for purposes ofemployment.

(f) A permit issued pursuant to subsection (d)shall include restrictions allowing the defendant to drive:

(1) Only during specified hours of employment, not toexceed twelve hours per day, and only for activities solely within the scope ofthe employment;

(2) Only thevehicle specified; and

(3) Only if the permit is kept in the defendant'spossession while operating the employer's vehicle.

(g) Notwithstanding any other law to thecontrary, any:

(1) Conviction under this section, section 291E-4(a),or section 291E-61.5;

(3) Adjudication of a minor for a law violation that,if committed by an adult, would constitute a violation of this section or anoffense under section 291E-4(a), or section 291E-61.5;

shall be considered a prior conviction for thepurposes of imposing sentence under this section. Any judgment on a verdict ora finding of guilty, a plea of guilty or nolo contendere, or an adjudication,in the case of a minor, that at the time of the offense has not been expungedby pardon, reversed, or set aside shall be deemed a prior conviction under thissection. No license and privilege suspension or revocation shall be imposedpursuant to this section if the person's license and privilege to operate avehicle has previously been administratively revoked pursuant to part III forthe same act; provided that, if the administrative suspension or revocation is subsequentlyreversed, the person's license and privilege to operate a vehicle shall besuspended or revoked as provided in this section.

(h) Whenever a court sentences a personpursuant to subsection (b), it also shall require that the offender be referredto the driver's education program for an assessment, by a certified substanceabuse counselor, of the offender's substance abuse or dependence and the needfor appropriate 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.

(i) Upon proof that the defendant hasinstalled an ignition interlock device in the defendant's vehicle pursuant tosubsection (b), the court shall issue an ignition interlock permit that willallow the defendant to drive a vehicle equipped with an ignition interlockdevice during the revocation period.

(j) 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 the expiration of the period of revocation determined by thecourt. After the period of revocation is completed, the person may apply forand the examiner of drivers may grant to the person a new driver's license.

(k) 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. Except as provided in section 291E-5, installation and maintenance ofthe ignition interlock device required by subsection (b) shall be at thedefendant's own expense.

(l) The requirement to provide proof offinancial responsibility pursuant to section 287-20 shall not be based upon asentence imposed under subsection (b)(1).

(m) As used in this section, the term"examiner of drivers" has the same meaning as provided in section286-2. [L 2000, c 189, pt of §23; am L 2001, c 157, §25; am L 2002, c 160, §11;am L 2003, c 71, §3; am L 2004, c 90, §12; am L 2005, c 33, §1 and c 194, §1;am L 2006, c 201, §7; am L 2007, c 198, §4; am L 2008, c 171, §§8, 16 and c231, §17; am L 2009, c 11, §17 and c 45, §2 as superseded by c 88, §§6, 13,17(2)]

Case Notes

As to the description of the offense, this section, whichrelates to operating a vehicle under the influence of an intoxicant,substantially reenacted §291-4.4, which pertained to the offense of habituallydriving under the influence of intoxicating liquor or drugs. 106 H. 480, 107P.3d 409.

Where indictment charged defendant under §291-4.4, thestatute that was in effect at the time of defendant's arrest, there was no expost facto problem. 106 H. 480, 107 P.3d 409.

Where the five-year time period omitted from the oral chargewas a critical part of the subsection (b)(2) attendant circumstance, especiallyin light of defendant's several prior DUI convictions, the oral charge wasdefective and defendant's oral motion to dismiss should have been granted. 112H. 269 (App.), 145 P.3d 812.

Because a prior conviction, as described in subsection (b)(2)(2003), is an elemental attendant circumstance, intrinsic to the offense ofoperating a vehicle under the influence of an intoxicant, it was necessary thatdefendant's prior conviction be alleged in the charging instrument and provenat trial as preconditions to defendant's present conviction of operating avehicle under the influence of an intoxicant for the second time within fiveyears, in violation of subsections (a) and (b)(2) (2003). 114 H. 227, 160 P.3d703.

Considerations of due process continue to require that theaggravating factors set forth in subsection (b) – all of which remain "attendantcircumstances that are intrinsic to and 'enmeshed' in the hierarchy of offensesthat this section as a whole describes" – be alleged in the charginginstrument and proven beyond a reasonable doubt at trial. 114 H. 227, 160 P.3d703.

The 2003 amendment to this section transformed subsection(b)(1) to (3) into status offenses. 114 H. 227, 160 P.3d 703.

Where complaint charging defendant with a violation of thissection was silent with respect to the attendant circumstance of any priorconviction, complaint was insufficient as a matter of law in charging aviolation of subsections (a) and (b)(2) (2003). 114 H. 227, 160 P.3d 703.

Although prosecution's oral charge failed to adequately setforth the essential elements of the offense described by subsections (a) and(b)(2) (2004), absent the phrase "for your second offense", theprosecution's oral charge set forth the essential elements of the includedoffense described by subsections (a) and (b)(1) (2004); thus, as recordcontained sufficient evidence that defendant committed the offense of operatinga vehicle under the influence of an intoxicant under subsections (a) and (b)(1)(2004), case remanded for entry of judgment and resentencing under subsections(a) and (b)(1) (2004). 114 H. 411, 163 P.3d 1148.