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

(1) 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;

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

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

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

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

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

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

(B) Ninety-day prompt suspension of license
and privilege to operate a vehicle during the suspension period, or the court
may impose, in lieu of the ninety-day prompt suspension of license, a minimum
thirty-day prompt suspension of license with absolute prohibition from
operating a vehicle and, for the remainder of the ninety-day period, a
restriction 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 to
participate in substance abuse treatment programs;

(i) Seventy-two hours of community service
work;

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

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

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

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

(2) For a first offense committed by a highly
intoxicated driver, or for any offense committed by a highly intoxicated driver
not preceded within a five-year period by a conviction for an offense under
this section or section 291E-4(a):

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

(B) Prompt suspension of a license and
privilege to operate a vehicle for a period of six months with an absolute
prohibition from operating a vehicle during the suspension period;

(i) Seventy-two hours of community service
work;

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

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

(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;

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

(A) Prompt suspension of license and privilege
to operate a vehicle for a period of one year with an absolute prohibition from
operating a vehicle during the suspension period;

(B) Either one of the following:

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

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

(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;

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

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

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

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

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

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

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

(5) Any person eighteen years of age or older who is
convicted under this section and who operated a vehicle with a passenger, in or
on the vehicle, who was younger than fifteen years of age, shall be sentenced
to an additional mandatory fine of $500 and an additional mandatory term of
imprisonment of forty-eight hours; provided that the total term of imprisonment
for a person convicted under this paragraph shall not exceed the maximum term
of 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 federal
jurisdiction for an offense that is comparable to operating or being in
physical control of a vehicle while having either an unlawful alcohol
concentration or an unlawful drug content in the blood or urine or while under
the influence of an intoxicant or habitually operating a vehicle under the
influence 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 an
offense under section 291E-4(a), or section 291E-61.5;

shall be considered a prior conviction for the
purposes of imposing sentence under this section. Any judgment on a verdict or
a 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 expunged by
pardon, reversed, or set aside shall be deemed a prior conviction under this
section. No license and privilege suspension or revocation shall be imposed
pursuant to this section if the person's license and privilege to operate a
vehicle has previously been administratively revoked pursuant to part III for
the same act; provided that, if the administrative suspension or revocation is
subsequently reversed, the person's license and privilege to operate a vehicle shall
be suspended or revoked as provided in this section.

(d) Whenever a court sentences a person
pursuant to subsection (b), it also shall 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.

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

(f) 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.

(g) [Repeal and reenactment on December 31,
2010. L 2009, c 11, §17 as superseded by c 88, §13.] The
requirement to provide proof of financial responsibility pursuant to section
287-20 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 section
286-2. [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 the
influence of an intoxicant. [Section effective January 1, 2011. For
section effective until December 31, 2010, see above.] (a) A person
commits the offense of operating a vehicle under the influence of an intoxicant
if the person operates or assumes actual physical control of a vehicle:

(1) 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;

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

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

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

(b) A person committing the offense of
operating a vehicle under the influence of an intoxicant shall be sentenced as
follows:

(1) For the first offense, or any offense not
preceded within a five-year period by a conviction for an offense under this
section or section 291E-4(a):

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

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

(i) Seventy-two hours of community service
work;

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

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

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

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

(2) For an offense that occurs within five years of a
prior conviction for an offense under this section or section 291E-4(a), and
notwithstanding section 706-623, by probation for not less than eighteen months
nor more than two years on the following conditions:

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

(B) Either one of the following:

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

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

(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;

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

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

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

(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;

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

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

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

(B) Is otherwise unable to drive during the
probation period,

the person shall be absolutely prohibited from
driving during the period of probation provided in paragraphs (1) to (4);
provided that the court shall not issue an ignition interlock permit pursuant
to subsection (i) and the person shall be subject to the penalties provided by
section 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 license
under section 286-102(b) or a commercial driver's license under section
286-239(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 permit
authorizing a defendant to operate a vehicle owned by the defendant's employer
during the period of revocation without installation of an ignition interlock
device if the defendant is gainfully employed in a position that requires
driving and the defendant will be discharged if prohibited from driving a
vehicle 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 containing
facts establishing that the defendant currently is employed in a position that
requires driving and that the defendant will be discharged if prohibited from
driving a vehicle not equipped with an ignition interlock device; and

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

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

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

(2) Only the
vehicle specified; and

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

(g) Notwithstanding any other law to the
contrary, 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 an
offense under section 291E-4(a), or section 291E-61.5;

shall be considered a prior conviction for the
purposes of imposing sentence under this section. Any judgment on a verdict or
a 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 expunged
by pardon, reversed, or set aside shall be deemed a prior conviction under this
section. No license and privilege suspension or revocation shall be imposed
pursuant to this section if the person's license and privilege to operate a
vehicle has previously been administratively revoked pursuant to part III for
the same act; provided that, if the administrative suspension or revocation is subsequently
reversed, the person's license and privilege to operate a vehicle shall be
suspended or revoked as provided in this section.

(h) Whenever a court sentences a person
pursuant to subsection (b), it also shall 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.

(i) Upon proof that the defendant has
installed an ignition interlock device in the defendant's vehicle pursuant to
subsection (b), the court shall issue an ignition interlock permit that will
allow the defendant to drive a vehicle equipped with an ignition interlock
device during the revocation period.

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

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

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

(m) As used in this section, the term
"examiner of drivers" has the same meaning as provided in section
286-2. [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 c
231, §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, which
relates to operating a vehicle under the influence of an intoxicant,
substantially reenacted §291-4.4, which pertained to the offense of habitually
driving under the influence of intoxicating liquor or drugs. 106 H. 480, 107
P.3d 409.

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

Where the five-year time period omitted from the oral charge
was a critical part of the subsection (b)(2) attendant circumstance, especially
in light of defendant's several prior DUI convictions, the oral charge was
defective and defendant's oral motion to dismiss should have been granted. 112
H. 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 of
operating a vehicle under the influence of an intoxicant, it was necessary that
defendant's prior conviction be alleged in the charging instrument and proven
at trial as preconditions to defendant's present conviction of operating a
vehicle under the influence of an intoxicant for the second time within five
years, in violation of subsections (a) and (b)(2) (2003). 114 H. 227, 160 P.3d
703.

Considerations of due process continue to require that the
aggravating factors set forth in subsection (b) – all of which remain "attendant
circumstances that are intrinsic to and 'enmeshed' in the hierarchy of offenses
that this section as a whole describes" – be alleged in the charging
instrument and proven beyond a reasonable doubt at trial. 114 H. 227, 160 P.3d
703.

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

Although prosecution's oral charge failed to adequately set
forth the essential elements of the offense described by subsections (a) and
(b)(2) (2004), absent the phrase "for your second offense", the
prosecution's oral charge set forth the essential elements of the included
offense described by subsections (a) and (b)(1) (2004); thus, as record
contained sufficient evidence that defendant committed the offense of operating
a 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.