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NO. 56. AN ACT RELATING TO CRIMINAL REFUSAL.

(H.70)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 23 V.S.A. 1201 is amended to read:

1201. OPERATING VEHICLE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR OTHER SUBSTANCE; CRIMINAL REFUSAL

(a) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway:

(1) when the person's alcohol concentration is 0.08 or more; or

(2) when the person is under the influence of intoxicating liquor; or

(3) when the person is under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of driving safely.

(b) A person who has previously been convicted of a violation of this section shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway and refuse a law enforcement officer’s reasonable request under the circumstances for an evidentiary test where the officer had reasonable grounds to believe the person was in violation of subsection (a) of this section.

(c) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway and be involved in an accident or collision resulting in serious bodily injury or death to another and refuse a law enforcement officer’s reasonable request under the circumstances for an evidentiary test where the officer has reasonable grounds to believe the person has any amount of alcohol in the system.

*[(b)]*(d) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state shall not constitute a defense against any charge of violating this section.

*[(c)]*(e) A person may not be convicted of more than one offense under this section arising out of the same incident.

Sec. 2. 23 V.S.A. 1202(c) and (d) are amended to read:

(c) A person who is requested by a law enforcement officer to submit to anevidentiary test or tests has *[the]* a right as herein limited to consult an attorney before deciding whether or not to submit to such a test or tests. The person must decide whether or not to submit to the evidentiary test or tests within a reasonable time*[, but]* and no later than 30 minutes from the time of the initial attempt to contact the attorney. The person must make a decision about whether or not to submit to the test or tests at the expiration of the 30 minutes regardless of whether a consultation took place.

(d) At the time a test is requested, the person shall be informed *[that]* of the following statutory information:

(1) Vermont law authorizes a law enforcement officer to request a test to determine whether the person is under the influence of alcohol or other drug.

(2) If the officer's request is reasonable and testing is refused, the person's license or privilege to operate will be suspended for at least six months.

(3) If a test is taken and the results indicate that the person is under the influence of alcohol or other drug, the person will be subject to criminal charges and the person's license or privilege to operate will be suspended for at least 90 days.

(4) A person who is requested by a law enforcement officer to submit to an evidentiary test or tests has the limited right to consult an attorney before deciding whether or not to submit to such a test *[and]* or tests. The person must decide whether or not to submit to the evidentiary test or tests within a reasonable time and no later than 30 minutes from the time of the initial attempt to contact the attorney regardless of whether a consultation took place. The person also has the right to have additional tests made by someone of the person's own choosing at the person's own expense. The person shall also be informed of the location of one or more facilities available for drawing blood.

(5) A person who is requested by a law enforcement officer to submit to an evidentiary test administered with an infrared breath-testing instrument may elect to have a second infrared test administered immediately after receiving the results of the first test.

(6) If the person refuses to take *[a]* an evidentiary test, the refusal may be offered into evidence against the person at trial and if the person has previously been convicted of a violation of section 1201 of this title or is involved in an accident or collision resulting inserious bodily injury or death to another, the person may be charged with the crime of criminal refusal.

Sec. 3. 23 V.S.A. 1202(f) and (g) are added to read:

(f) If a person who has been involved in an accident or collision resulting in serious bodily injury or death to another refuses an evidentiary test, a law enforcement officer may apply for a search warrant pursuant to Rule 41 of the Vermont Rules of Criminal Procedure to obtain a sample of blood for an evidentiary test. If a blood sample is obtained by search warrant, the fact of the refusal may still be introduced in evidence, in addition to the results of the evidentiary test. Once a law enforcement official begins the application process for a search warrant, the law enforcement official is not obligated to discontinue the process even if the person later agrees to provide an evidentiary breath sample. The limitation created by Rule 41(g) of the Vermont Rules of Criminal Procedure regarding blood specimens shall not apply to search warrants authorized by this section.

(g) The defender general shall provide statewide 24-hour coverage seven days a week to assure that adequate legal services are available to persons entitled to consult an attorney under this section.

Sec. 4. 23 V.S.A. 1205(l) is amended to read:

(l) Second and subsequent suspensions. For a second suspension under this section, the period of suspension shall be 18 months and until the person complies with section 1209a of this title. For a third or subsequent suspension under this section, the period of suspension shall be *[three years and until the person complies with section 1209a of this title]* life. *[For a fourth or subsequent suspension under this section, the person's operating license or privilege to operate shall be revoked for life.]*

Sec. 5. 23 V.S.A. 1208(b) and (c) are amended to read:

(b) Third conviction. Upon a third or subsequent conviction of a person violating a provision of section 1201 of this title and upon final determination of any appeal, the court shall forward the conviction report forthwith to the commissioner of motor vehicles. The commissioner shall immediately revoke the person's operating license, or nonresident operating privilege or the privilege of an unlicensed operator to operate a motor vehiclefor *[three years and until the defendant complies with section 1209a]* life.

*[(c) Fourth conviction. Upon a fourth or subsequent conviction of a person violating a provision of section 1201 of this title and upon final determination of any appeal, the court shall forward the conviction report forthwith to the commissioner of motor vehicles. The commissioner shall immediately revoke the person's operating license, or nonresident operating privilege or the privilege of an unlicensed operator to operate a vehicle for life.]*

Sec. 6. 23 V.S.A. 1220 is added to read:

1220. ENFORCEMENT; SOBRIETY CHECKPOINTS; SAFE HIGHWAY

ACCIDENT REDUCTION PROJECT; MOBILE EVIDENTIARY

BREATH ALCOHOL TESTING EQUIPMENT FUNDING

(a) Each county safe highway accident reduction project (SHARP) program shall organize and participate in at least six sobriety checkpoints prior to February 28, 1998. The checkpoints shall be coordinated by the SHARP county project directors.

(b) The governor’s highway safety program shall purchase two mobile evidentiary breath alcohol testing instruments. The instruments shall be distributed for use with priority given to constables and county and municipal law enforcement agencies in the areas of the state where there is not quick and convenient access to nonmobile breath testing instruments.

(c) For fiscal year 1998, unless inconsistent with federal law, 33 percent of the funds received under the provisions of 23 U.S.C. 402 shall be used to reduce DUI on Vermont highways, as follows:

(1) to purchase two mobile evidentiary breath alcohol testing instruments described in subsection (b) of this section;

(2) 16½ percent to fund the organized county SHARP sobriety checkpoints described in subsection (a) of this section; and

(3) the balance to be expended by and under the control and discretion of SHARP county project directors to increase the presence of law enforcement officers on Vermont highways for the principal purpose of detecting and apprehending violators of the DUI laws.

Sec. 7. 23 V.S.A. 1205(q) is added to read:

(q) A person suspended under this section for a refusal shall be assessed a surcharge of $50.00 which shall be collected by the department of motor vehicles prior to reinstatement of the person’s driving privileges. The department shall transfer the surcharge assessed under this subsection to the public defender special fund created in section 5239 of Title 13 specifying the source of the moneys being deposited. All such moneys shall be used by the office of the defender general to cover the cost of providing statewide 24-hour legal services coverage as required by 23 V.S.A. 1202(g). After $40,000.00 has been deposited in the public defender special fund in a single fiscal year, all additional collected surcharges assessed under this subsection in that fiscal year shall be credited to the governor’s highway safety commission for deposit in a DUI enforcement special fund established and managed pursuant to 32 V.S.A. chapter 7, subchapter 5. All such DUI enforcement special fund receipts shall be used exclusively for statewide DUI enforcement and for no other purpose.

Sec. 8. 23 V.S.A. 1209a is amended to read:

1209a. CONDITIONS OF REINSTATEMENT; ALCOHOL AND DRIVING

EDUCATION; SCREENING; THERAPY PROGRAMS

(a) Conditions of reinstatement. No license suspended or revoked under this subchapter, except a license suspended under section 1216 of this title, shall be reinstated except as follows:

(1) In the case of a first suspension, a license shall not be reinstated until the person has: *[submitted to an alcohol assessment screening to determine whether reinstatement should be conditioned on satisfactory completion of a therapy program agreed to by the person and the driver rehabilitation program director; and]*

*[(A) if the screening indicates that therapy is needed, the person has satisfactorily completed or shown substantial progress in completing such a therapy program at the person's own expense; or]*

*[(B) if therapy is not indicated, the person has completed an alcohol and driving education program at the person's own expense]*

(A) successfully completed an alcohol and driving education program, at the person's own expense, followed by an assessment of the need for further treatment by a state designated counselor, at the person's own expense, to determine whether reinstatement should be further conditioned on satisfactory completion of a therapy program agreed to by the person and the drinking driver rehabilitation program director; and

(B) if the screening indicates that therapy is needed, satisfactorily completed or shown substantial progress in completing a therapy program at the person's own expense agreed to by the person and the driver rehabilitation program director.

(2) In the case of a second or subsequent suspension, a license shall not be reinstated until the person has completed or shown substantial progress in completing a therapy program at the person's own expense agreed to by the person and the driver rehabilitation program director.

(b) Abstinence. Notwithstanding any other provision of this subchapter, a person whose license has been suspended for three years or more under this subchapter may apply to the driver rehabilitation school director and to the commissioner for reinstatement of his or her driving privilege. In the case of a suspension for three years, the person shall have completed two years of total abstinence from consumption of alcohol or drugs or both. In the case of a suspension for life, the person shall have completed three years of total abstinence from consumption of alcohol or drugs or both. In both cases, the beginning date for the period of abstinence shall be no sooner than the effective date of the suspension from which the person is requesting reinstatement and shall not include any period during which the person is incarcerated within the walls of a correctional facility. If the commissioner, or a medical review board convened by the commissioner, is satisfied by a preponderance of the evidence that the applicant has abstained for the required number of years immediately preceding the application and has successfully completed a therapy program as required under this section and the person appreciates that he or she cannot drink any amount of alcohol and drive safely, the person's license shall be reinstated immediately upon such conditions as the commissioner may impose. If after notice andhearing the commissioner later finds that the person was operating, attempting to operate or in actual physical control of a vehicle while there was any amount of alcohol in the blood following reinstatement under this subsection, the person's operating license or privilege to operate shall be immediately suspended for the period of the original suspension. A person shall be eligible for reinstatement under this section only once following a suspension for life.

Sec. 9. REPORT TO THE LEGISLATURE

On January 15, 1998, the director of the governor’s highway safety program shall report on the implementation, consequence and effectiveness of the enactment of 23 V.S.A. 1220 (sobriety checkpoints). The report shall also include:

(1) The number of sobriety checkpoints conducted, broken down by county, and the number and name of each participating law enforcement agency.

(2) The number of persons charged with motor vehicle or other offenses at each checkpoint, including the type of each charge and its disposition.

(3) The number of mobile alcohol testing instruments purchased, the name of each law enforcement agency that received an instrument, and how often each instrument was used.

(4) The amount of money deposited in the special DUI enforcement fund and how the money was used.

(5) Any problems encountered in implementing 23 V.S.A. 1220.

(6) Any recommended changes to the law.

Sec. 10. APPROPRIATION

The sum of $30,000.00 is appropriated for fiscal year 1998 from the general fund and $10,000.00 from the public defender special fund based on anticipated receipts from the surcharge provided for in 23 V.S.A. 1205(q) to the office of the defender general for the purpose of providing statewide 24-hour legal services coverage seven days a week as required by Sec. 3 (23 V.S.A. 1202) of this act. This appropriation shall be in addition to any other sum that the general assembly shall appropriate to the defender general for fiscal year 1998.

Sec. 11. EFFECTIVE DATE

This act shall take effect on August 1, 1997.

Approved: June 26, 1997