APPROVED BY THE GOVERNOR MAY 18, 1999.
FILED IN THE OFFICE OF THE SECRETARY OF STATE MAY 18, 1999.
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AMENDING SECTIONS 9-499.07 AND 11-459, ARIZONA REVISED STATUTES; AMENDING
SECTION 28-1381, ARIZONA REVISED STATUTES, AS AMENDED BY LAWS 1999, CHAPTER
11, SECTION 8; AMENDING SECTION 28-1382, ARIZONA REVISED STATUTES, AS AMENDED
BY LAWS 1999, CHAPTER 11, SECTION 9; AMENDING SECTION 28-1383, ARIZONA REVISED STATUTES, AS AMENDED BY LAWS 1999, CHAPTER 11, SECTION 10; AMENDING
SECTIONS 28-1385, 28-1461, 28-1462, 28-1463, 28-1464 AND 28-3319, ARIZONA REVISED STATUTES; AMENDING LAWS 1998, CHAPTER 302, SECTION 42; RELATING TO
IGNITION INTERLOCK DEVICES.
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 9-499.07, Arizona Revised Statutes, is amended to read:
A. A city or town may establish a prisoner work, community service work and home detention program for eligible sentenced prisoners which shall be treated the same as confinement in jail. Such program shall be approved by the presiding judge of the city or town municipal court prior to its implementation.
B. A prisoner is not eligible for a prisoner work, community service work and home detention program if any of the following is applicable:
1. The prisoner is found by the city or town to constitute a risk to either himself or other members of the community.
2. The prisoner has a past history of violent behavior.
3. The sentencing judge states at the time of the sentence that the prisoner may not be eligible for a prisoner work, community service work and home detention program.
C. For prisoners selected for the program the city or town may require electronic monitoring in the prisoner's home whenever the prisoner is not at the prisoner's regular place of employment or while the prisoner is assigned to a community work task. If electronic monitoring is required, the prisoner shall remain under the control of a home detention device which constantly monitors the prisoner's location in order to determine that the prisoner has not left the prisoner's premises. In all other cases, the city or town shall implement a system of monitoring using telephone contact or other appropriate methods to assure compliance with the home detention requirements. The city or town may place appropriate restrictions on prisoners in the program including testing prisoners for consumption of alcoholic beverages or drugs or prohibiting association with individuals determined to be detrimental to the prisoner's successful participation in the program.
D. If a prisoner is required to be placed on electronic monitoring pursuant to subsection C of this section, the prisoner shall pay an electronic monitoring fee in an amount ranging from zero to full cost and thirty dollars per month while on electronic monitoring, unless, after determining the inability of the prisoner to pay these fees, the city or town assesses a lesser fee. The fees collected shall be used by the city or town to offset operational costs of the program.
E. Prisoners selected for the home detention program shall be employed within the county in which the city or town is located. The city or town shall review the place of employment to determine whether it is appropriate for a home detention prisoner. If the prisoner is terminated from employment or does not come to work, the employer shall notify the city or town. Alternatively, or in addition, a community service work assignment may be made by the city or town to a program recommended by the community service work committee. If a prisoner is incapable of performing community service or being employed, the city or town may exempt the prisoner from these programs.
F. The city or town may require that a prisoner who is employed during the week also participate in community service work programs on weekends.
G. The city or town may allow prisoners to be away from home detention for special purposes including church attendance, medical appointments or funerals.
H. Community service work shall include public works projects operated and supervised by the city or town or other public agencies of this state or projects sponsored and supervised by public or private community oriented organizations and agencies.
I. A city or town implementing a program under this section shall appoint a community service work committee. The committee shall recommend to the city or town appropriate community service work projects for home detention prisoners. Members are not eligible to receive compensation.
J. At any time the city or town may terminate a prisoner's participation in the prisoner work, community service work and home detention program and require that the prisoner complete the remaining term of the prisoner's sentence in jail confinement.
K. Nothing in this section shall prohibit a city or town from entering into a joint exercise of powers agreement pursuant to section 11-952 for a prisoner work, community service work and home detention program.
L. If authorized by the court, a person sentenced pursuant to section 28-1381 or 28-1382 shall not be placed under home detention in a prisoner work, community service work and home detention program except as provided in subsections M through R of this section.
M. By a majority vote of the full membership of the governing body of the municipality after a public hearing and a finding of necessity, a city or town may establish a home detention program for persons sentenced to jail confinement pursuant to section 28-1381 or 28-1382. A prisoner placed under the program established pursuant to this subsection shall bear the cost of all testing, monitoring and enrollment in alcohol or substance abuse programs unless, after determining the inability of the prisoner to pay the cost, the court assesses a lesser amount. The city or town shall use the collected monies to offset operational costs of the program.
N. If the city or town establishes a home detention program under subsection M of this section, a prisoner must meet the following eligibility requirements for the program:
1. The provisions of subsection B of this section apply in determining eligibility for the program.
2. If the prisoner is sentenced under section 28-1381, subsection I, the prisoner first serves a minimum of twenty-four consecutive hours in jail.
3. Notwithstanding section 28-1387, subsection C, if the prisoner is sentenced under section 28-1381, subsection K or section 28-1382, subsection D or F, the prisoner first serves a minimum of fifteen consecutive days in jail before being placed under home detention.
4. The prisoner is required to comply with all of the following provisions for the duration of the prisoner's participation in the home detention program:
(a) All of the provisions of subsections C through H of this section.
(b) Testing at least once a day for the use of alcoholic beverages or drugs by a scientific method that is not limited to urinalysis or a breath or intoxication test in the prisoner's home or at the office of a person designated by the court to conduct these tests.
(c) Participation in an alcohol or drug program, or both. These programs shall be accredited by the department of health services or a county probation department.
(d) Prohibition of association with any individual determined to be detrimental to the prisoner's successful participation in the program.
(e) All other provisions of the sentence imposed.
5. Any additional eligibility criteria that the city or town may impose.
O. If a city or town establishes a home detention program under subsection M of this section, the court, on placing the prisoner in the program, shall require electronic monitoring in the prisoner's home and, if consecutive hours of jail time are ordered, shall require the prisoner to remain at home during the consecutive hours ordered. The detention device shall constantly monitor the prisoner's location to ensure that the prisoner does not leave the premises. Nothing in this subsection shall be deemed to waive the minimum jail confinement requirements under subsection N, paragraph 2 of this section.
P. The court shall terminate a prisoner's participation in the home detention program and require the prisoner to complete the remaining term of the jail sentence by jail confinement if:
1. The prisoner fails to successfully complete a court ordered alcohol
or drug screening, counseling, education and treatment program pursuant to
subsection N, paragraph 4, subdivision (c) of this section, section 28-1381,
subsection J or L or section 28-1382, subsection E or
2. The court finds that the prisoner left the premises without permission of the court or supervising authority during a time the prisoner is ordered to be on the premises.
Q. At any other time the court may terminate a prisoner's participation in the home detention program and require the prisoner to complete the remaining term of the jail sentence by jail confinement.
R. The governing body of the city or town may terminate the program established under subsection M of this section by a majority vote of the full membership of the governing body.
Sec. 2. Section 11-459, Arizona Revised Statutes, is amended to read:
A. The sheriff may establish a prisoner work, community service work and home detention program for eligible sentenced prisoners which shall be treated the same as confinement in jail and shall fulfill the sheriff's duty to take charge of and keep the county jail and prisoners.
B. A prisoner is not eligible for a prisoner work, community service work and home detention program if any of the following is applicable:
1. After independent review and determination of the jail's classification program, the prisoner is found by the sheriff to constitute a risk to either himself or other members of the community.
2. The prisoner has a past history of violent behavior.
3. The prisoner has been convicted of a serious offense as defined by section 13-604 or has been determined to be a dangerous and repetitive offender.
4. Jail time is being served as a result of a felony conviction.
5. The sentencing judge states at the time of the sentence that the prisoner may not be eligible for a prisoner work, community service work and home detention program.
6. The prisoner is sentenced to a county jail and is being held for another jurisdiction.
C. For prisoners selected for the program the sheriff may require electronic monitoring in the prisoner's home whenever the prisoner is not at his regular place of employment or while the prisoner is assigned to a community work task. If electronic monitoring is required, the prisoner shall remain under the control of a home detention device which constantly monitors the prisoner's location in order to determine that the prisoner has not left his premises. In all other cases, the sheriff shall implement a system of monitoring using visitation, telephone contact or other appropriate methods to assure compliance with the home detention requirements. The sheriff may place appropriate restrictions on prisoners in the program including testing prisoners for consumption of alcoholic beverages or drugs or prohibiting association with individuals determined to be detrimental to the prisoner's successful participation in the program.
D. If a prisoner is required to be placed on electronic monitoring pursuant to subsection C of this section, the prisoner shall pay an electronic monitoring fee in an amount ranging from zero to full cost and thirty dollars per month while on electronic monitoring, unless, after determining the inability of the prisoner to pay these fees, the sheriff assesses a lesser fee. The fees collected shall be used by the sheriff to offset operational costs of the program.
E. Prisoners selected for the home detention program shall be employed in the county in which they are incarcerated. The sheriff shall review the place of employment to determine whether it is appropriate for a home detention prisoner. If the prisoner is terminated from employment or does not come to work, the employer shall notify the sheriff's office. Alternatively, or in addition, a community service work assignment may be made by the sheriff to a program recommended to the sheriff by the community service work committee. If a prisoner is incapable of performing community service or being employed, the sheriff may exempt the prisoner from these programs.
F. The sheriff may require that a prisoner who is employed during the week also participate in community service work programs on weekends.
G. The sheriff may allow prisoners to be away from home detention for special purposes including church attendance, medical appointments or funerals. The standard for review and determination of such leave is the same as that implemented to decide transportation requests for similar purposes made by prisoners confined in the county jail.
H. Community service work shall include public works projects operated and supervised by public agencies of this state or counties, cities or towns on recommendation of the community service work committee and approval of the sheriff. The community service work committee may also recommend and the sheriff may approve other forms of community service work sponsored and supervised by public or private community oriented organizations and agencies.
I. The community service work committee is established in each county and is composed of two designees of the sheriff, a representative of the county attorney's office selected by the county attorney, a representative of a local police agency selected by the police chief of the largest city in the county and three persons selected by the county board of supervisors from the private sector. A sheriff's designee shall serve as committee chairman and schedule all meetings. The committee shall meet as often as necessary, but no less than once every three months, for the purpose of considering and recommending appropriate community service work projects for home detention prisoners. The committee shall make its recommendations to the sheriff. Members are not eligible to receive compensation.
J. At any time the sheriff may terminate a prisoner's participation in the prisoner work, community service work and home detention program and require that the prisoner complete the remaining term of the prisoner's sentence in jail confinement.
K. If authorized by the court, a person sentenced pursuant to section 28-1381 or 28-1382 shall not be placed under home detention in a prisoner work, community service work and home detention program except as provided in subsections L through Q of this section.
L. By a majority vote of the full membership of the board of supervisors after a public hearing and a finding of necessity a county may authorize the sheriff to establish a home detention program for persons sentenced to jail confinement pursuant to section 28-1381 or 28-1382. If the board authorized the establishment of a home detention program, a county sheriff may establish the program. A prisoner placed under the program established pursuant to this subsection shall bear the cost of all testing, monitoring and enrollment in alcohol or substance abuse programs unless, after determining the inability of the prisoner to pay the cost, the court assesses a lesser amount. The county shall use the collected monies to offset operational costs of the program.
M. If a county sheriff establishes a home detention program under subsection L of this section, a prisoner must meet the following eligibility requirements for the program:
1. The provisions of subsection B of this section apply in determining eligibility for the program.
2. If the prisoner is sentenced under section 28-1381, subsection I, the prisoner first serves a minimum of twenty-four consecutive hours in jail.
3. Notwithstanding section 28-1387, subsection C, if the prisoner is sentenced under section 28-1381, subsection K or section 28-1382, subsection D or F, the prisoner first serves a minimum of fifteen consecutive days in jail before being placed under home detention.
4. The prisoner is required to comply with all of the following requirements for the duration of the prisoner's participation in the home detention program:
(a) All of the provisions of subsections C through H of this section.
(b) Testing at least once a day for the use of alcoholic beverages or drugs by a scientific method that is not limited to urinalysis or a breath or intoxication test in the prisoner's home or at the office of a person designated by the court to conduct these tests.
(c) Participation in an alcohol or drug program, or both. These programs shall be accredited by the department of health services or a county probation department.
(d) Prohibition of association with any individual determined to be detrimental to the prisoner's successful participation in the program.
(e) All other provisions of the sentence imposed.
5. Any additional eligibility criteria that the county may impose.
N. If a county sheriff establishes a home detention program under subsection L of this section, the court, on placing the prisoner in the program, shall require electronic monitoring in the prisoner's home and, if consecutive hours of jail time are ordered, shall require the prisoner to remain at home during the consecutive hours ordered. The detention device shall constantly monitor the prisoner's location to ensure that the prisoner does not leave the premises. Nothing in this subsection shall be deemed to waive the minimum jail confinement requirements under subsection M, paragraph 2 of this section.
O. The court shall terminate a prisoner's participation in the home detention program and shall require the prisoner to complete the remaining term of the jail sentence by jail confinement if either:
1. The prisoner fails to successfully complete a court ordered alcohol
or drug screening, counseling, education and treatment program pursuant to
subsection M, paragraph 4, subdivision (c) of this section, section 28-1381,
subsection J or L or section 28-1382, subsection E or
2. The prisoner leaves the premises during a time that the prisoner is ordered to be on the premises without permission of the court or supervising authority.
P. At any other time the court may terminate a prisoner's participation in the home detention program and require the prisoner to complete the remaining term of the jail sentence by jail confinement.
Q. The sheriff may terminate the program at any time.
R. A person sentenced pursuant to section 28-1383 shall not be placed under home detention in a prisoner work, community service work and home detention program.
Sec. 3. Section 28-1381, Arizona Revised Statutes, as amended by Laws 1999, chapter 11, section 8, is amended to read:
A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.
2. If the person has an alcohol concentration of 0.10 or more within two hours of driving or being in actual physical control of the vehicle.
3. While there is any drug defined in section 13-3401 or its metabolite in the person's body.
4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more.
B. It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state.
C. It is an affirmative defense to a charge of a violation of subsection A, paragraph 2 of this section if the person did not have an alcohol concentration of 0.10 or more at the time of driving or of being in actual physical control of a vehicle. If a defendant produces some credible evidence that the defendant's alcohol concentration at the time of driving or being in actual physical control of a vehicle was below 0.10, the state must prove beyond a reasonable doubt that the defendant's alcohol concentration was 0.10 or more at the time of driving or being in actual physical control of a vehicle.
D. A person using a drug prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 is not guilty of violating subsection A, paragraph 3 of this section.
E. In any prosecution for a violation of this section, the state shall allege, for the purpose of classification and sentencing pursuant to this section, all prior convictions of violating this section, section 28-1382 or section 28-1383 occurring within the past thirty-six months, unless there is an insufficient legal or factual basis to do so.
F. At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted.
G. In a trial, action or proceeding for a violation of this section or section 28-1383 other than a trial, action or proceeding involving driving or being in actual physical control of a commercial vehicle, the defendant's alcohol concentration within two hours of the time of driving or being in actual physical control as shown by analysis of the defendant's blood, breath or other bodily substance gives rise to the following presumptions:
1. If there was at that time 0.05 or less alcohol concentration in the defendant's blood, breath or other bodily substance, it may be presumed that the defendant was not under the influence of intoxicating liquor.
2. If there was at that time in excess of 0.05 but less than 0.10 alcohol concentration in the defendant's blood, breath or other bodily substance, that fact shall not give rise to a presumption that the defendant was or was not under the influence of intoxicating liquor, but that fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
3. If there was at that time 0.10 or more alcohol concentration in the defendant's blood, breath or other bodily substance, it may be presumed that the defendant was under the influence of intoxicating liquor.
H. Subsection G of this section does not limit the introduction of any other competent evidence bearing on the question of whether or not the defendant was under the influence of intoxicating liquor.
I. A person who is convicted of a violation of this section:
1. Shall be sentenced to serve not less than ten consecutive days in jail and is not eligible for probation or suspension of execution of sentence unless the entire sentence is served.
2. Shall pay a fine of not less than two hundred fifty dollars.
3. May be ordered by a court to perform community service.
J. Notwithstanding subsection I, paragraph 1 of this section, at the time of sentencing the judge may suspend all but twenty-four consecutive hours of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause to the defendant as to why the remaining jail sentence should not be served.
K. If within a period of sixty months a person is convicted of a second violation of this section or is convicted of a violation of this section and has previously been convicted of a violation of section 28-1382 or 28-1383 or an act in another jurisdiction that if committed in this state would be a violation of this section or section 28-1382 or 28-1383, the person:
1. Shall be sentenced to serve not less than ninety days in jail, thirty days of which shall be served consecutively, and is not eligible for probation or suspension of execution of sentence unless the entire sentence has been served.
2. Shall pay a fine of not less than five hundred dollars.
3. May be ordered by a court to perform community service.
4. Shall have the person's driving privilege revoked for one year. The court shall report the conviction to the department. On receipt of the report, the department shall revoke the person's driving privilege.
L. Notwithstanding subsection K, paragraph 1 of this section, at the time of sentencing, the judge may suspend all but thirty days of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause as to why the remaining jail sentence should not be served.
M. In applying the sixty month provision of subsection K of this section, the dates of the commission of the offense shall be the determining factor, irrespective of the sequence in which the offenses were committed.
N. A second violation for which a conviction occurs as provided in this section shall not include a conviction for an offense arising out of the same series of acts.
O. A person who is convicted of a violation of this section is guilty of a class 1 misdemeanor.
Sec. 4. Section 28-1382, Arizona Revised Statutes, as amended by Laws 1999, chapter 11, section 9, is amended to read:
A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state if the person has an alcohol concentration of 0.18 or more within two hours of driving or being in actual physical control of the vehicle. A person who is convicted of a violation of this section is guilty of driving or being in actual physical control of a vehicle while under the extreme influence of intoxicating liquor.
B. It is an affirmative defense to a charge of a violation of this section if the person did not have an alcohol concentration of 0.18 or more at the time of driving or of being in actual physical control of a vehicle. If a defendant produces some credible evidence that the defendant's alcohol concentration at the time of driving or being in actual physical control of a vehicle was below 0.18, the state must prove beyond a reasonable doubt that the defendant's alcohol concentration was 0.18 or more at the time of driving or being in actual physical control of a vehicle.
C. At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted.
D. A person who is convicted of a violation of this section:
1. Shall be sentenced to serve not less than thirty consecutive days in jail and is not eligible for probation or suspension of execution of sentence unless the entire sentence is served.
2. Shall pay a fine of not less than two hundred fifty dollars. The fine prescribed in this paragraph and any assessments, restitution and incarceration costs shall be paid before the assessment prescribed in paragraph 3 of this subsection.
3. Shall pay an additional assessment of two hundred fifty dollars. If the conviction occurred in the superior court or a justice court, the court shall transmit the monies received pursuant to this paragraph to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the monies received pursuant to this paragraph to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. The state treasurer shall deposit the monies received in the driving under the influence abatement fund established by section 28-1304.
4. May be ordered by a court to perform community service.
E. Notwithstanding subsection D, paragraph 1 of this section, at the time of sentencing the judge may suspend all but ten days of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause to the defendant as to why the remaining jail sentence should not be served.
F. If within a period of sixty months a person is convicted of a second violation of this section or is convicted of a violation of this section and has previously been convicted of a violation of section 28-1381 or 28-1383 or an act in another jurisdiction that if committed in this state would be a violation of this section or section 28-1381 or 28-1383, the person:
1. Shall be sentenced to serve not less than one hundred twenty days in jail, sixty days of which shall be served consecutively, and is not eligible for probation or suspension of execution of sentence unless the entire sentence has been served.
2. Shall pay a fine of not less than five hundred dollars. The fine prescribed in this paragraph and any assessments, restitution and incarceration costs shall be paid before the assessment prescribed in paragraph 3 of this subsection.
3. Shall pay an additional assessment of two hundred fifty dollars. If the conviction occurred in the superior court or a justice court, the court shall transmit the monies received pursuant to this paragraph to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the monies received pursuant to this paragraph to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. The state treasurer shall deposit the monies received in the driving under the influence abatement fund established by section 28-1304.
4. May be ordered by a court to perform community service.
5. Shall have the person's driving privilege revoked for
Sec. 5. Section 28-1383, Arizona Revised Statutes, as amended by Laws 1999, chapter 11, section 10, is amended to read:
A. A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does any of the following:
1. Commits a violation of section 28-1381, section 28-1382 or this section while the person's driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person's driver license or privilege to drive as a result of violating section 28-1381 or 28-1382 or under section 28-1385.
2. Within a period of sixty months commits a third or subsequent violation of section 28-1381, section 28-1382 or this section or is convicted of a violation of section 28-1381, section 28-1382 or this section and has previously been convicted of any combination of convictions of section 28-1381, section 28-1382 or this section or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section.
3. While a person under fifteen years of age is in the vehicle, commits a violation of either:
(a) Section 28-1381.
(b) Section 28-1382.
B. The dates of the commission of the offenses are the determining factor in applying the sixty month provision provided in subsection A, paragraph 2 of this section regardless of the sequence in which the offenses were committed. For purposes of this section, a third or subsequent violation for which a conviction occurs does not include a conviction for an offense arising out of the same series of acts.
C. The notice to a person of the suspension, cancellation, revocation or refusal of a driver license or privilege to drive is effective as provided in section 28-3318 or pursuant to the laws of the state issuing the license.
D. A person is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than four months in prison if the person is convicted under either of the following:
1. Subsection A, paragraph 1 of this section.
2. Subsection A, paragraph 2 of this section and within a sixty month period has been convicted of two prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section.
E. A person who is convicted under subsection A, paragraph 2 of this section and who within a sixty month period has been convicted of three or more prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than eight months in prison.
F. In addition to any other penalty provided by law, a person who is convicted under subsection A, paragraph 3, subdivision (a) of this section shall be sentenced to at least the minimum sentence required pursuant to section 28-1381, except that if a person has been convicted of at least two prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or convicted of at least two prior acts in another jurisdiction that if committed in this state would be violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, within a sixty month period, the person shall be sentenced to serve at least the minimum sentence required pursuant to this section.
G. In addition to any other penalty provided by law, a person who is convicted under subsection A, paragraph 3, subdivision (b) of this section shall be sentenced to at least the minimum sentence required pursuant to section 28-1382, except that if a person has been convicted of at least two prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or convicted of at least two prior acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section, or any combination of those sections, within a sixty month period, the person shall be sentenced to serve at least the minimum sentence required pursuant to this section.
H. A person who is convicted of a violation of this section shall attend and complete alcohol or other drug screening, education or treatment from an approved facility. If the person fails to comply with this subsection and is placed on probation, in addition to the provisions of section 13-901 the court may order that the person be incarcerated as a term of probation as follows:
1. For a person sentenced pursuant to subsection D of this section, for an individual period of not more than four months and a total period of not more than one year.
2. For a person sentenced pursuant to subsection E of this section, for an individual period of not more than eight months and a total period of not more than two years.
I. The time that a person spends in custody pursuant to subsection H of this section shall not be counted towards the sentence imposed if the person's probation is revoked and the person is sentenced to prison after revocation of probation.
J. The court:
1. Shall report the conviction to the department. On receipt of the report, the department shall revoke the driving privilege of the person. The department shall not issue the person a new driver license within three years of the date of the conviction.
2. In addition to any other penalty prescribed by law, shall order the person to pay an additional assessment of two hundred fifty dollars. If the conviction occurred in the superior court or a justice court, the court shall transmit the monies received pursuant to this paragraph to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the monies received pursuant to this paragraph to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. The state treasurer shall deposit the monies received in the driving under the influence abatement fund established by section 28-1304. Any fine imposed for a violation of this section and any assessments, restitution and incarceration costs shall be paid before the assessment prescribed in this paragraph.
1. Subsection A, paragraph 1 or 2 of this section is a class 4 felony.
2. Subsection A, paragraph 3 of this section is a class 6 felony.
Sec. 6. Section 28-1385, Arizona Revised Statutes, is amended to read:
A. A law enforcement officer shall forward to the department a certified report as prescribed in subsection B of this section, subject to the penalty for perjury prescribed by section 28-1561, if both of the following occur:
1. The officer arrests a person for a violation of section 4-244, paragraph 34, section 28-1381, section 28-1382 or section 28-1383.
2. The person submits to a blood or breath alcohol test permitted by section 28-1321, the results of which indicate either:
(a) 0.10 or more alcohol concentration in the person's blood or breath.
(b) 0.04 or more alcohol concentration in the person's blood or breath if the person was driving or in actual physical control of a commercial motor vehicle.
B. The officer shall make the certified report required by subsection A of this section on forms supplied or approved by the department. The report shall state information that is relevant to the enforcement action, including:
1. Information that adequately identifies the arrested person.
2. A statement of the officer's grounds for belief that the person was driving or in actual physical control of a motor vehicle in violation of section 4-244, paragraph 34, section 28-1381 or section 28-1382.
3. A statement that the person was arrested for a violation of section 4-244, paragraph 34, section 28-1381, section 28-1382 or section 28-1383.
4. A report of the results of the chemical test that was administered.
C. The officer shall also serve an order of suspension on the person on behalf of the department. The order of suspension:
1. Is effective fifteen days after the date it is served.
2. Shall require the immediate surrender of any license or permit to drive that is issued by this state and that is in the possession or control of the person.
3. Shall contain information concerning the right to a summary review and hearing, including information concerning the hearing as required by section 28-1321, subsections G and H.
4. Shall be accompanied by printed forms ready to mail to the department that the person may fill out and sign to indicate the person's desire for a hearing.
5. Shall be entered on the department's records on receipt of the report by the officer and a copy of the order of suspension.
D. If the license or permit is not surrendered pursuant to subsection C of this section, the officer shall state the reason for the nonsurrender. If a valid license or permit is surrendered, the officer shall issue a temporary driving permit that is valid for fifteen days. The officer shall forward a copy of the completed order of suspension, a copy of any completed temporary permit and any driver license or permit taken into possession under this section to the department within five days after the issuance of the order of suspension along with the report.
E. The department shall suspend the affected person's license or permit to drive or right to apply for a license or permit or any nonresident operating privilege for not less than ninety consecutive days from that date.
F. Notwithstanding subsections A through E of this section, the
department shall suspend the driving privileges of the person described in
subsection A of this section for not less than thirty consecutive days and
shall restrict the driving privileges of the person for not less than sixty
consecutive additional days to travel between the person's place of
employment and residence and during specified periods of time while at
employment, to travel between the person's place of residence and the
person's secondary or postsecondary school, according to the person's
employment or educational schedule,
1. Did not cause serious physical injury as defined in section 13-105 to another person during the course of conduct out of which the current action arose.
2. Has not been convicted of a violation of section 28-1381, 28-1382 or 28-1383 within sixty months of the date of commission of the acts out of which the current action arose. The dates of commission of the acts are the determining factor in applying the sixty month provision.
3. Has not had the person's privilege to drive suspended pursuant to this section or section 28-1321 within sixty months of the date of commission of the acts out of which the current action arose.
G. If the department receives only the report of the results of the blood or breath alcohol test and the results indicate 0.10 or more alcohol concentration in the person's blood or breath, or show a blood or breath alcohol concentration of 0.04 or more and the person was driving or in actual physical control of a commercial motor vehicle, the department shall notify the person named in the report in writing sent by mail that fifteen days after the date of issuance of the notice the department will suspend the person's license or permit, driving privilege or nonresident driving privilege. The notice shall also state that the department will provide an opportunity for a hearing and administrative review if the person requests a hearing or review in writing and the request is received by the department within fifteen days after the notice is sent.
H. A timely request for a hearing stays the suspension until a hearing is held, except that the department shall not return any surrendered license or permit to the person but may issue temporary permits to drive that expire no later than when the department has made its final decision. If the person is a resident without a license or permit or has an expired license or permit, the department may allow the person to apply for a license or permit. If the department determines the person is otherwise entitled to the license or permit, the department shall issue, but retain, the license or permit, subject to this section. All hearings requested under this section shall be conducted in the same manner and under the same conditions as provided in section 28-3306.
I. For the purposes of this section, the scope of the hearing shall include only the following issues:
1. Whether the officer had reasonable grounds to believe the person was driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor.
2. Whether the person was placed under arrest for a violation of section 4-244, paragraph 34, section 28-1381, section 28-1382 or section 28-1383.
3. Whether a test was taken, the results of which indicated the alcohol concentration in the person's blood or breath at the time the test was administered of either:
(a) 0.10 or more.
(b) 0.04 or more if the person was driving or in actual physical control of a commercial motor vehicle.
4. Whether the testing method used was valid and reliable.
5. Whether the test results were accurately evaluated.
J. The results of the blood or breath alcohol test shall be admitted on establishing the requirements in section 28-1323 or 28-1326.
K. If the department determines at the hearing to suspend the affected person's privilege to operate a motor vehicle, the suspension provided in this section is effective fifteen days after giving written notice of the suspension, except that the department may issue or extend a temporary license that expires on the effective date of the suspension. If the person is a resident without a license or permit or has an expired license or permit to operate a motor vehicle in this state, the department shall deny the issuance of a license or permit to the person for not less than ninety consecutive days.
L. A person may apply for a summary review of an order issued pursuant to this section instead of a hearing at any time before the effective date of the order. The person shall submit the application in writing to any department driver license examining office together with any written explanation as to why the department should not suspend the driving privilege. The agent of the department receiving the notice shall issue to the person an additional driving permit that expires twenty days from the date the request is received. The department shall review all reports submitted by the officer and any written explanation submitted by the person and shall determine if the order of suspension should be sustained or cancelled. The department shall not hold a hearing, and the review is not subject to title 41, chapter 6. The department shall notify the person of its decision before the temporary driving permit expires.
M. If the suspension or determination that there should be a denial of issuance is not sustained after a hearing or review, the ruling is not admissible in and does not have any effect on any civil or criminal court proceeding.
N. If it has been determined under the procedures of this section that a nonresident's privilege to operate a motor vehicle in this state has been suspended, the department shall give information in writing of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which the person has a license.
Sec. 7. Section 28-1461, Arizona Revised Statutes, is amended to read:
(a)
(b)
(c)
(d)
B. The department shall make a notation on the driving record of a
person whose driving privilege is limited pursuant to section
Sec. 8. Section 28-1462, Arizona Revised Statutes, is amended to read:
A. After consulting with the director of the department of health services, the assistant director for the motor vehicle division of the department of transportation shall:
1. Certify ignition interlock devices
2.
3.
B. The assistant director shall adopt rules prescribing the requirements for certification of an ignition interlock device. These rules shall include:
1. The procedure for certification of ignition interlock devices.
2. Provisions to ensure the reliability of the ignition interlock device over the range of motor vehicle environments.
3. Provisions to ensure that the ignition interlock device works accurately in an unsupervised environment.
C. The assistant director shall not certify an ignition interlock device unless all of the following are satisfied:
1. The device requires a deep-lung breath sample or another accurate measure of the concentration by weight of alcohol in the breath.
2. The device is made by a manufacturer that is covered by product liability insurance.
3. The manufacturer of the device indemnifies this state against any liability that may result from the use of the device.
D. The assistant director may adopt, in whole or in part, the guidelines, rules, regulations, studies or independent laboratory tests performed and relied on by other states or agencies or commissions of other states in the certification or approval of ignition interlock devices.
1. INSOLVENCY OR DISCONTINUANCE OF BUSINESS OF THE INSTALLER OF THE
DEVICE.
2. FAILURE OF THE INSTALLER OR AGENT OF THE INSTALLER TO COMPLY WITH
ANY RULE ADOPTED PURSUANT TO THIS SECTION.
Sec. 9. Section 28-1463, Arizona Revised Statutes, is amended to read:
A. If a person whose driving privilege is limited pursuant to section
B. A person whose driver license is suspended pursuant to this section
may submit a written request for a hearing. The written request must be received by the department within fifteen days after the date of the order
of suspension. On receipt of a request for a hearing, a hearing shall be
held within thirty days.
D. HEARINGS REQUESTED PURSUANT TO THIS SECTION SHALL BE CONDUCTED IN
THE SAME MANNER AND UNDER THE SAME CONDITIONS AS PROVIDED IN SECTION 28-3306.
FOR THE PURPOSES OF THIS SECTION, THE SCOPE OF THE HEARING SHALL INCLUDE ONLY
THE FOLLOWING ISSUES:
1. WHETHER THE PERSON WAS ORDERED TO EQUIP A MOTOR VEHICLE WITH AN
IGNITION INTERLOCK DEVICE PURSUANT TO ARTICLE 3 OF THIS CHAPTER.
2. WHETHER THE PERSON SUBMITTED PROOF OF COMPLIANCE OR INSPECTION
PURSUANT TO SECTION 28-1461.
Sec. 10. Section 28-1464, Arizona Revised Statutes, is amended to read:
A. A person whose driving privilege is limited pursuant to section
28-1382 or 28-1383 and who is required to operate a motor vehicle owned by
the person's employer in the course and scope of the person's employment may
operate that motor vehicle without the installation of a certified ignition
interlock device if the court has required in the court order that the person
notify the person's employer that the person, in conjunction with the
person's sentence, has specific requirements in order to operate a motor
vehicle and the nature of the requirements and the person has proof of the
employer's notification in the person's possession while operating the
employer's motor vehicle for normal business. For the purposes of this
subsection, a motor vehicle that is partly or entirely owned or controlled
by the person whose driving privilege is limited pursuant to section
B. Except in cases of a substantial emergency, a person shall not
knowingly rent, lease or lend a motor vehicle to a person whose driving
privilege is limited pursuant to section
C. A person whose driving privilege is limited pursuant to section
D. During any period when a person whose driving privilege is limited
pursuant to section
E. A person shall not breathe into an ignition interlock device or
start a motor vehicle equipped with an ignition interlock device for the
purpose of providing an operable motor vehicle to a person whose driving
privilege is limited pursuant to section
Sec. 11. Section 28-3319, Arizona Revised Statutes, is amended to read:
A. If pursuant to section 28-1321, 28-1381
B. If pursuant to section 28-1321, 28-1381
C. If a person whose license or driving privilege is suspended or
revoked pursuant to section 28-1321, 28-1381
1. Terminate the suspension until the person provides proof from the treatment facility that the person has completed or is participating satisfactorily in alcohol or other drug screening, education or treatment.
2. Issue a new license to operate a motor vehicle after the revocation until the person provides proof from the facility that the person has completed the court ordered program.
Sec. 12. Laws 1998, chapter 302, section 42 is amended to read:
APPROVED BY THE GOVERNOR MAY 18, 1999.
FILED IN THE OFFICE OF THE SECRETARY OF STATE MAY 18, 1999.
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