§291E-65  Refusal to submit to testing formeasurable amount of alcohol; district court hearing; sanctions; appeals;admissibility.  [Section effective until December 31, 2010.  For sectioneffective on January 1, 2011, see below.]  (a)  If a person under arrestfor operating a vehicle after consuming a measurable amount of alcohol,pursuant to section 291E‑64, refuses to submit to a breath or blood test,none shall be given, except as provided in section 291E‑21, but thearresting law enforcement officer, as soon as practicable, shall submit anaffidavit to a district judge of the circuit in which the arrest was made,stating:

(1)  That at the time of the arrest, the arrestingofficer had probable cause to believe the arrested person was under the age oftwenty-one and had been operating a vehicle upon a public way, street, road, orhighway or on or in the waters of the State with a measurable amount ofalcohol;

(2)  That the arrested person was informed that theperson may refuse to submit to a breath or blood test, in compliance withsection 291E-11;

(3)  That the person had refused to submit to a breathor blood test;

(4)  That the arrested person was:

(A)  Informed of the sanctions of thissection; and then

(B)  Asked if the person still refuses tosubmit to a breath or blood test, in compliance with the requirements ofsection 291E-15; and

(5)  That the arrested person continued to refuse tosubmit to a breath or blood test.

(b)  Upon receipt of the affidavit, thedistrict judge shall hold a hearing within twenty days.  The district judgeshall hear and determine:

(1)  Whether the arresting law enforcement officer hadprobable cause to believe that the person was under the age of twenty-one andhad been operating a vehicle upon a public way, street, road, or highway or onor in the waters of the State with a measurable amount of alcohol;

(2)  Whether the person was lawfully arrested;

(3)  Whether the person was informed that the personmay refuse to submit to a breath or blood test, in compliance with section291E-11;

(4)  Whether the person refused to submit to a test ofthe person's breath or blood;

(5)  Whether the person was:

(A)  Informed of the sanctions of this section;and then

(B)  Asked if the person still refuses tosubmit to a breath or blood test, in compliance with the requirements ofsection 291E-15; and

(6)  Whether the person continued to refuse to submitto a breath or blood test.

(c)  If the district judge finds the statementscontained in the affidavit are true, the judge shall suspend the arrestedperson's license and privilege to operate a vehicle as follows:

(1)  For a first suspension, or any suspension notpreceded within a five-year period by a suspension under this section, for aperiod of twelve months; and

(2)  For any subsequent suspension under this section,for a period not less than two years and not more than five years.

(d)  An order of a district court issued underthis section may be appealed to the supreme court.

(e)  If a legally arrested person under the ageof twenty-one refuses to submit to a test of the person's breath or blood, proof of refusal shall be admissible only in a hearing under this section orpart III and shall not be admissible in any other action or proceeding, whethercivil or criminal. [L 2000, c 189, pt of §23; am L 2001, c 157, §29; am L 2006,c 64, §9]

 

 

§291E-65  Refusal to submit to testing formeasurable amount of alcohol; district court hearing; sanctions; appeals;admissibility.  [Section effective on January 1, 2011.  For sectioneffective until December 31, 2010, see above.]  (a)  If a person underarrest for operating a vehicle after consuming a measurable amount of alcohol,pursuant to section 291E-64, refuses to submit to a breath or blood test, noneshall be given, except as provided in section 291E-21, but the arresting lawenforcement officer, as soon as practicable, shall submit an affidavit to adistrict judge of the circuit in which the arrest was made, stating:

(1)  That at the time of the arrest, the arrestingofficer had probable cause to believe the arrested person was under the age oftwenty-one and had been operating a vehicle upon a public way, street, road, orhighway or on or in the waters of the State with a measurable amount ofalcohol;

(2)  That the arrested person was informed that theperson may refuse to submit to a breath or blood test, in compliance withsection 291E-11;

(3)  That the person had refused to submit to a breathor blood test;

(4)  That the arrested person was:

(A)  Informed of the sanctions of this section;and then

(B)  Asked if the person still refuses tosubmit to a breath or blood test, in compliance with the requirements ofsection 291E-15; and

(5)  That the arrested person continued to refuse tosubmit to a breath or blood test.

(b)  Upon receipt of the affidavit, thedistrict judge shall hold a hearing within twenty days.  The district judgeshall hear and determine:

(1)  Whether the arresting law enforcement officer hadprobable cause to believe that the person was under the age of twenty-one andhad been operating a vehicle upon a public way, street, road, or highway or onor in the waters of the State with a measurable amount of alcohol;

(2)  Whether the person was lawfully arrested;

(3)  Whether the person was informed that the personmay refuse to submit to a breath or blood test, in compliance with section291E-11;

(4)  Whether the person refused to submit to a test ofthe person's breath or blood;

(5)  Whether the person was:

(A)  Informed of the sanctions of this section;and then

(B)  Asked if the person still refuses tosubmit to a breath or blood test, in compliance with the requirements ofsection 291E-15; and

(6)  Whether the person continued to refuse to submitto a breath or blood test.

(c)  If the district judge finds the statementscontained in the affidavit are true, the judge shall suspend the arrestedperson's license and privilege to operate a vehicle as follows:

(1)  For a first suspension, or any suspension notpreceded within a five-year period by a suspension under this section, for aperiod of twelve months; and

(2)  For any subsequent suspension under this section,for a period not less than two years and not more than five years.

(d)  An order of a district court issued underthis section may be appealed to the supreme court. [L 2000, c 189, pt of §23;am L 2001, c 157, §29; am L 2006, c 64, §9; am L 2009, c 88, §§7, 17(1)]