Drugged Driving: 2016 Summary of Key Provisions of State Laws

Transcription

1 Drugged Driving: 2016 Summary of Key Provisions of State Laws Research current through August 30, This project was supported by Grant No. G15599ONDCP03A, awarded by the Office of National Drug Control Policy. Points of view or opinions in this document are those of the author and do not necessarily represent the official position or policies of the Office of National Drug Control Policy or the United States Government. 1

2 STATE PAGE ALABAMA... 4 ALASKA... 7 ARIZONA ARKANSAS CALIFORNIA COLORADO CONNECTICUT DELAWARE DISTRICT OF COLUMBIA FLORIDA GEORGIA HAWAII IDAHO ILLINOIS INDIANA IOWA KANSAS KENTUCKY LOUISIANA MAINE MARYLAND MASSACHUSETTS MICHIGAN MINNESOTA MISSISSIPPI MISSOURI MONTANA NEBRASKA NEVADA NEW HAMPSHIRE NEW JERSEY NEW MEXICO

3 STATE PAGE NEW YORK NORTH CAROLINA NORTH DAKOTA OHIO OKLAHOMA OREGON PENNSYLVANIA RHODE ISLAND SOUTH CAROLINA SOUTH DAKOTA TENNESSEE TEXAS UTAH VERMONT VIRGINIA WASHINGTON WEST VIRGINIA WISCONSIN WYOMING

4 Driving under the influence ( DUI ) statute(s) DUI standard DUI - applicable DUI affirmative Per se statute(s) Per se - standard Per se applicable Per se affirmative applicable drivers tests authorized basis for test evidence of refusal Ala.Code 32-5A-191. ALABAMA A person shall not drive or be in actual physical control of any vehicle while:... under the influence of a controlled substance to a degree which renders him or her incapable of safely driving... [or] under the influence of any substance which impairs the mental or physical faculties of such person to a degree which renders him or her incapable of safely driving. Ala.Code 32-5A-191(a). Controlled substance or any substance which impairs the mental or physical faculties of such person. The fact that any person charged with violating this section is or has been legally entitled to use... a controlled substance shall not constitute a against any charge of violating this section. Ala.Code 32-5A-191(d). Alabama s general implied consent statute (Ala.Code ) appears to apply only to chemical tests for the purpose of determining blood alcohol content. However, there is an implied consent provision that applies to any person who operates a motor vehicle on Alabama s public highways and who is involved in an accident that results in death or a serious physical injury. Ala. Code (a). In cases of an accident resulting in death or serious physical injury, a blood test for the presence of amphetamines, opiates, or cannabis. Ala. Code (a). In cases of an accident resulting in death or serious physical injury, the test is at the direction of a law enforcement officer ( LEO ) having reasonable grounds to believe that a driver was operating a vehicle under the influence of amphetamines, opiates, or cannabis. Ala. Code (a). Although appears not to apply to testing for the presence of controlled, evidence of the refusal to submit to a chemical test under is admissible in any civil, criminal, or quasi-criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol or controlled substance. Ala.Code 32-5A-194(c). 4

5 civil penalty for refusal criminal penalty for refusal civil penalty (license suspension, use of IID) criminal penalties (jail sentence, fines, community service) Child endangerment ALABAMA In cases of an accident resulting in death or serious physical injury, the failure to submit to a test will result in a two-year suspension of driving privileges for the offender. Ala. Code (a). The suspension can be reduced if it is determined subsequently that the driver did not cause the accident. Ala. Code (d). First conviction 90-day license suspension, which may be stayed if driver agrees to an approved ignition interlock device ( IID ) for six months. Ala.Code 32-5A-191(e). Second conviction within a five-year period driver s license revoked for one year followed by the use of IID for two years. Ala.Code 32-5A-191(f). Third conviction driver s license revoked for three years, followed by use of an IID for three years. Ala.Code 32-5A-191(g). Fourth or subsequent conviction driver s license revoked for five years, followed by use of an IID for five years. Ala.Code 32-5A-191(g). If person convicted more than once in a five-year period, the registration for all vehicles owned by the offender may be suspended during the duration of the license suspension. Ala.Code 32-5A-191(q). First conviction jail sentence up to one year; fine of $600- $2,100. Ala.Code 32-5A-191(e). Second conviction within five years jail sentence of five days to one year (or at least 30 days community service); fine of $1,000- $5,100. Ala.Code 32-5A-191(f). Third conviction jail sentence of 60 days to one year; fine of $2,100-$10,100. Ala.Code 32-5A-191(g). Fourth or subsequent conviction Class C felony; jail sentence of one year to 10 years; fine of $4,100-$10,100. Ala.Code 32-5A-191(g). Criminal penalties are enhanced in cases where the driver causes serious physical injury to the person of another. Ala.Code 13A Criminal penalties are enhanced if a driver age 21 or older commits a violation with a passenger under the age of 14 in the vehicle. Ala.Code 32-5A-191(j). 5

6 Treatment Marijuana use in vehicle Selected state court decisions ALABAMA Any person convicted of a violation must be referred for substance abuse evaluation and be required to complete a court-approved DUI or substance abuse court referral program. The offender s license may be not reissued until he / she provides proof that the program has been completed. Ala.Code 32-5A-191(k). Alabama does not allow the use of marijuana for recreational or medicinal purposes. 6

7 ALASKA DUI statute(s) AS DUI standard A person commits the crime of driving while under the influence of... [a]controlled substance if the person operates or drives a motor vehicle or operates an aircraft or a watercraft:... while under the influence of... any controlled substance, singly or in combination.... AS (a)(1). DUI - applicable Controlled substance. DUI affirmative Per se statute(s) Per se - standard Per se applicable Per se affirmative applicable drivers tests authorized basis for test evidence of refusal civil penalty for refusal Alaska s general implied consent provision ( (a)) appears to apply only for purposes of consenting to a chemical test of breath for the purpose of determining the alcoholic content of the person s blood or breath. However, under (g) and , a person who operates or drives a motor vehicle in Alaska grants consent to a chemical test if they are involved in a motor vehicle accident that causes death or serious physical injury to another person. AS (g); AS In cases of an accident resulting in death or serious physical injury to another person, a chemical test or tests of blood and urine. AS (g). In cases of an accident resulting in death or serious physical injury to another person, the LEO must have probable cause to believe that the person was operating a vehicle involved in the accident. AS (g). Refusal of a test is admissible evidence in a civil or criminal action arising out of an act alleged to have been committed by a person while committing a violation. AS (e). The refusal to submit to a test is subject to the same administrative penalties as a conviction. AS (c). 7

8 criminal penalty for refusal civil penalty (license suspension, use of IID) criminal penalties (jail sentence, fines, community service) Child endangerment ALASKA Pursuant to the statutory language, the refusal to submit to a chemical test is a Class A misdemeanor and subject to the same criminal penalties as a conviction. AS (f), (g). The constitutionality of this, however, has been called into question by the U.S. Supreme Court s decision in Birchfield v. North Dakota, 136 S.Ct (2016), which holds that a state cannot place criminal penalty on a driver s refusal to undergo a warrantless blood test to determine alcohol concentration. First conviction license revoked for at least 90 days; use of IID for six months. Second conviction license revoked for at least one year; use of IID for one year. Third conviction license revoked for at least three years; use of IID for 18 months. Fourth or subsequent conviction license revoked for at least five years; use of IID for months. AS (c). Third or subsequent conviction within 10 years driver s license revoked permanently. AS (n). First conviction Class A misdemeanor; jail sentence of at least 72 consecutive hours; fine of at least $1,500. Second conviction jail sentence of at least 20 days; fine up to $3,000. Third convictionjail sentence of at least 60 days; fine up to $4,000. Fourth conviction jail sentence of at least 120 days; fine of at least $5,000. Fifth conviction jail sentence of at least 240 days; fine of at least $6,000. Sixth or subsequent conviction jail sentence of at least 360 days; fine of at least $7,000. AS (b). Third or subsequent conviction within 10 years Class C felony; jail sentence of days; fine of at least $10,000. AS (n). If the act leading to a conviction contributes to an accident, the court must order the offender to pay the reasonable cost of any emergency services that responded to the accident, if the convicted person or the convicted person s insurer has not already paid the cost of the emergency services. AS (m). Not addressed by state law. 8

9 Treatment Marijuana use in vehicle Selected state court decisions ALASKA If convicted, the offender must be ordered by the court to undergo the screening, evaluation, referral, and program requirements of an alcohol safety action program if such a program is available in the community where the person resides. If offender is convicted of a felony, the evaluation is to occur prior to sentencing. AS (h). Alaska allows the medicinal and recreational use of marijuana, but Alaska laws do not specifically address the use of marijuana in a vehicle. Dale v. State, 209 P.3d 1038 (Alaska Ct. App. 2009) exigent circumstances exist as a matter of law to justify a warrantless blood draw from defendant who was involved in a motor vehicle accident that caused serious injury to his passengers. State v. Blank, 90 P.3d 156 (Alaska 2004) construing AS (g) to be constitutional in context of warrantless searches for breath or blood in accident cases involving death or serious physical injury when probable cause to search exists and the search falls within a recognized exception to the warrant requirement. 9

10 ARIZONA DUI statute(s) A.R.S DUI standard 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:... [w]hile under the influence of... any drug... if the person is impaired to the slightest degree. A.R.S (A)(1). DUI - applicable Any drug. DUI affirmative It is not a to a charge of a violation... that the person is or has been entitled to use the drug under the laws of this state. A.R.S (B). Per se statute(s) A.R.S Per se - standard 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:... [w]hile there is any drug defined in [A.R.S.] or its metabolite in the person s body. A.R.S (A)(3). Per se applicable Any drug defined in A.R.S Per se affirmative applicable drivers tests authorized basis for test evidence of refusal civil penalty for refusal criminal penalty for refusal A person using a drug as prescribed by a [licensed] medical practitioner is not guilty of a violation. A.R.S (D). Any person who operates a motor vehicle in Arizona. A.R.S (A); A.R.S (A). Test or tests of the person s blood, breath, urine or other bodily substance. A.R.S (A); A.R.S (A). Test can be requested if: (1) person is arrested for any offense arising out of acts alleged to have been committed while committing a violation; and (2) LEO has reasonable grounds to believe that the person was operating a vehicle while under the influence. A.R.S (A). Test can be requested if: (1) person was involved in a traffic accident resulting in death or physical injury ; and (2) LEO has probably cause to believe that the person caused the accident. A.R.S (A). Evidence of refusal is admissible in any civil or criminal action or other proceeding. A.R.S (D). First refusal driver s license suspended for 12 months. Second or subsequent refusal in past 84 months driver s license suspended for two years. A.R.S (B). 10

11 civil penalty (license suspension, use of IID) criminal penalties (jail sentence, fines, community service) Child endangerment Treatment Marijuana use in vehicle ARIZONA First conviction license suspension of at least 90 days (however this can be lessened to 30 days with 60 days of restricted driving in certain circumstances). A.R.S (I). Second conviction within 84 months driver s license revoked for at least one year. A.R.S (K). Third or subsequent conviction within 84 months treated as an aggravated offense subject to enhanced penalties. A.R.S Person convicted of violation must use IID for 12 months, except in cases where the driver violated the per se provision for drugs, completes required drug/alcohol screening and the court determines that no alcohol treatment is required. A.R.S (D),(G). If the convicted offender causes an accident that results in an appropriate emergency response, they are liable for the expenses of that response up to $1,000. A.R.S (A). First conviction Class 1 misdemeanor; jail sentence 10 days to six months; fine of $250-$2,500; two $500 assessments. A.R.S (I); A.R.S ; A.R.S Second conviction within past 84 months jail sentence of 90 days to six months; fine of $500-$2,500; 30 hours of community restitution; two $1,250 assessments. A.R.S (K); A.R.S ; A.R.S Third or subsequent conviction within 84 months treated as an aggravated offense subject to enhanced penalties. A.R.S Driver can be charged with aggravated DUI if a violation is committed while a passenger under age 15 is in the vehicle. A.R.S (A)(3). Court must order an offender to complete alcohol or other drug screening that is provided by an approved facility. If the judge determines that the person requires further alcohol or other drug education or treatment, the person may be required to obtain alcohol or other drug education or treatment under the court s supervision from an approved facility. A.R.S (B). For first/second offenders, the judge may suspend all but one day (30 days) of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. A.R.S (J). Arizona allows the medicinal use of marijuana, but Arizona laws do not specifically address the use of marijuana in a vehicle. 11

12 Selected state court decisions ARIZONA Dobson v. McClennen, 238 Ariz. 389, 361 P.3d 374 (2015) holding that the Arizona Medical Marijuana Act does not immunize a medical marijuana cardholder from prosecution under (A)(3), but instead affords an affirmative if the cardholder shows that the marijuana or its metabolite was in a concentration insufficient to cause impairment. State v. Harris, 237 Ariz. 98, 346 P.3d 984 (2014) holding that the metabolite reference in A.R.S (A)(3) is limited to any of a proscribed substance s metabolites that are capable of causing impairment. State v. Bayardi, 230 Ariz. 195, 281 P.3d 1063 (Ariz. Ct. App. 2013) A.R.S (D) is an affirmative that requires defendant to prove by a preponderance of the evidence that he used prescription drugs as prescribed by a licensed practitioner. 12

13 ARKANSAS DUI statute(s) A.C.A DUI standard It is unlawful and punishable... for a person who is intoxicated to operate or be in actual physical control of... a motor vehicle. A.C.A (a)(1). Intoxicated means influenced or affected by the ingestion of... a controlled substance... to such a degree that the driver s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself or herself or another person. A.C.A (4). DUI - applicable Controlled substance. DUI affirmative Per se statute(s) Per se - standard Per se applicable Per se affirmative applicable drivers tests authorized basis for test evidence of refusal Pursuant to statutory language, an alcohol-related offense is a strict liability offense, requiring no proof of the driver s state of mind. A.C.A (c). As a result, it would appear that in order to prosecute a violation based on the use of a controlled substance, the state must provide that the driver had a culpable mental state. Applies to a person who operates a motor vehicle in Arkansas and who is either: (1) arrested for an act alleged to be committed while driving while intoxicated; or (2) involved in an accident. A.C.A (a). Applies to a person who operates a motor vehicle in Arkansas and is involved in an accident that did result in, or there is reasonable cause to believe may result in, the loss of human life. A.C.A In either of the above cases, one or more chemical tests of blood, breath, saliva, or urine. In cases where there is no accident resulting in the loss of human life, the tests may be done at the direction of a LEO having reasonable cause to believe the person operated a motor vehicle while intoxicated. A.C.A (a). A defendant s refusal to submit to a chemical test is admissible evidence on the issue of intoxication. Metzner v. State, 2015 Ark. 222, 462 S.W.3d 650 (2015). 13

14 civil penalty for refusal criminal penalty for refusal civil penalty (license suspension, use of IID) criminal penalties (jail sentence, fines, community service) Child endangerment Treatment ARKANSAS First refusal driver s license suspended for 180 days. Second refusal within five years driver s license suspended for two years. Third refusal within five years driver s license revoked for three years. Fourth refusal within five years driver s license permanently revoked. A.C.A (b). There does not appear to be a criminal penalty for refusing a chemical test for drivers aged 21 or older. If a driver under age 21 is arrested for driving while intoxicated or for refusal of a test, however, the driver faces criminal fines between $100-$2,000, depending upon the number of prior occurrences. A.C.A First conviction six-month license suspension. Second conviction within five years 24-month license suspension. Third conviction within five years 30-month license suspension. Fourth or subsequent conviction within five years four-year license suspension; vehicle may be seized. A.C.A (a). IID provisions do not apply if violation based on use of a controlled substance. A.C.A (a). First conviction unclassified misdemeanor; jail sentence of 24 hours to one year; fine of $150-$1,000. Second conviction within five years unclassified misdemeanor; jail sentence of seven days to one year; fine of $400-$3,000. Third conviction within five years unclassified misdemeanor; jail sentence of 90 days to one year; fine of $900-$5,000. Fourth conviction within five years unclassified felony; jail sentence of one year to six years; fine of $900-$5,000. Fifth or subsequent conviction within five years unclassified felony; jail sentence of two years to ten years; fine of $900-$5,000. Sixth or subsequent conviction within ten years Class B felony; jail sentence of two years to ten years; fine of $900-$5,000. A.C.A (a)-(f), Penalties and fines are increased if there is a passenger under age 16 in car at time of the offense, although there is an affirmative if the driver was not more than two years older than the passenger. A.C.A (i). A person whose driving privilege is suspended or revoked for driving while intoxicated is required to complete an alcohol education program or an alcohol treatment program unless the charges are dismissed or the person is acquitted. A.C.A

15 Marijuana use in vehicle Selected state court decisions ARKANSAS Arkansas does not allow the recreational or medicinal use of marijuana. Metzner v. State, 2015 Ark. 222, 462 S.W.3d 650 (2015) Arkansas driver s ability to refuse chemical test applies only to a warrantless test. Law does not prohibit LEO from obtaining a search warrant to compel a chemical test after refusal. Leeka v. State, 2015 Ark. 183, 461 S.W.3d 331 (2015) the offense of driving while intoxicated requires a culpable mental state, that is, that the driver acted purposely, knowingly, or recklessly. Subsequent to the decision, the statute was changed with respect to alcohol-related offenses, but not other drug-related offenses. 15

16 CALIFORNIA DUI statute(s) Cal. Vehicle Code DUI standard(s) It is unlawful for a person who is under the influence of any drug to drive a vehicle. Cal. Vehicle Code 23152(e). It is unlawful for a person who is addicted to the use of any drug to drive a vehicle. Cal. Vehicle Code 23152(c). DUI - applicable DUI affirmative Per se statute(s) Per se - standard Per se applicable Per se affirmative applicable drivers tests authorized basis for test evidence of refusal civil penalty for refusal criminal penalty for refusal Any drug. The provision prohibiting persons addicted to any drug from driving a vehicle does not apply to a person who is participating in [an approved] narcotic treatment program. Cal. Vehicle Code 23152(c). Anyone who drives a vehicle in California. Cal. Vehicle Code 23612(a)(1)(B). Chemical testing of blood for the purpose of determining drug content. If a blood test is unavailable, the driver is deemed to have given consent for chemical testing of urine. Cal. Vehicle Code 23612(a)(1)(B). Test is to be given incidental to a lawful arrest and administered at the direction of an LEO having reasonable cause to believe the person was driving a motor vehicle in violation of state drugged driving laws. Cal. Vehicle Code 23612(a)(1)(C). The refusal of a chemical test may be used against [the defendant] in a court of law. Cal. Vehicle Code 23612(a)(4). First refusal driver s license suspension of one year. Refusal within 10 years of a prior conviction driver s license revoked for two years. Refusal within 10 years of two or more prior convictions driver s license revoked for three years. Cal. Vehicle Code 13353(a). Upon a conviction for an offense, the driver s refusal to take a chemical test is a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation. Cal. Vehicle Code

17 civil penalty (license suspension, use of IID) criminal penalties (jail sentence, fines, community service) Child endangerment Treatment Marijuana use in vehicle CALIFORNIA First conviction driver s license suspension of six months. Second conviction within 10 years driver s license suspension of two years; use of IID for one year. Third conviction within 10 years driver s license suspension of three years; use of IID for two years. Fourth or subsequent conviction within 10 years driver s license suspension of four years; use of IID for three years. Cal. Vehicle Code 13352(a); Cal. Vehicle Code In cases where the offender caused bodily injury to one or more persons, the length of time of suspension is longer. Cal. Vehicle Code A court may order a 10-year revocation of the driver s license of a person who has been convicted of three or more separate violations. Cal. Vehicle Code First offense jail sentence of 96 hours to six months; fine of $390-$1,000. Second offense within 10 years jail sentence of 90 days to one year; fine of $390-$1,000. Third offense within 10 years jail sentence of 120 days to one year; fine of $390-$1,000. Fourth or subsequent offense within 10 years jail sentence of 180 days to one year; fine of $390-$1,000. Cal. Vehicle Code ; There is a separate offense with increased penalties if a driver causes bodily injury to another person while driving under the influence. Cal. Vehicle Code Driver committing a violation may be held liable for the cost of any EMS response required as a result of their operation of a vehicle. Cal. Gov. Code Enhancements to penalties if minor under age 14 in car at time of violation. Cal. Vehicle Code As a condition of probation for a first-time offense, if such program is available in the locality, the court must require that the driver enroll, participate and complete a licensed driving-under-the- influence program. Cal. Vehicle Code 23538(b). California law allows the medicinal use of marijuana. A patient in the California Medical Marijuana Program may not smoke marijuana while in a motor vehicle that is being operated. Cal. Health & Safety Code (d). 17

18 Selected state court decisions CALIFORNIA People v. Arredondo, 245 Cal.App.4th 186 (Cal. Ct. App. 2016), review granted 371 P.3d 240 (Cal. 2016) California Supreme Court to review if a LEO violated the U.S. Fourth Amendment by taking a warrantless blood sample from defendant while he was unconscious, or was the search and seizure valid because defendant expressly consented to chemical testing when he applied for a driver's license or because defendant was deemed to have given his consent under California s implied consent law? People v. Harris, 234 Cal.App.4th 671 (Cal. Ct. App. 2015) driver s consent to warrantless blood draw after receiving implied consent advisement satisfies U.S. Fourth Amendment. The fact that a driver must choose between submitting to test and facing serious consequences for refusal does not make consent coerced. People v. Mathson, 210 Cal.App.4th 1297 (Cal. Ct. App. 2012) The evidence overwhelmingly establishes defendant knew or should have known that the Ambien he took could have caused sleep driving, even though he had not previously personally experienced a sleep-driving episode after using Ambien. Thus, defendant was voluntarily intoxicated, and the unconsciousness instruction does not apply. People v. Canty, 32 Cal. 4th 1266, 90 P.3d 1168 (2004) for a defendant to be guilty of driving while under the influence of drugs the... drug(s) must have so far affected the nervous system, the brain, or muscles [of the individual] as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties. [Citations.] 18

19 COLORADO DUI statute(s) C.R.S.A DUI standard A person who drives a motor vehicle or vehicle under the influence of... one or more drugs... commits driving under the influence. C.R.S.A (1)(a). Driving while under the influence ( DUI ) means that the substance affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. C.R.S.A (1)(f). A person who drives a motor vehicle or vehicle while impaired by... one or more drugs... commits driving while ability impaired. C.R.S.A (1)(b). Driving while ability impaired ( DWAI ) means that the substance affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. C.R.S.A (1)(g). DUI - applicable DUI affirmative Any drug means a drug defined in C.R.S.A (13), a controlled substance defined in C.R.S.A (5), and any inhaled glue, aerosol, or other toxic vapor or vapors. C.R.S.A (1)(d). The fact that a person charged is entitled to use one or more drugs under Colorado law, including, but not limited to, the medical use of marijuana does not constitute a. C.R.S.A (e). Per se statute(s) C.R.S.A Per se - standard If, at the time of an offense, or within a reasonable time thereafter, the driver s blood contains five nanograms or more of delta 9- tetrahydrocannabinol per milliliter in whole blood, that fact gives rise to a permissible inference that the defendant was under the influence of one or more drugs. C.R.S.A (6)(a). Per se applicable Delta 9-tetrahydrocannabinol ( THC ). Per se affirmative applicable drivers tests authorized Any person who drives any motor vehicle upon the streets and highways of Colorado. C.R.S.A (2)(b). Test or tests of blood, saliva, and urine. The driver must cooperate so that the test can be obtained within two hours of driving. C.R.S.A (2)(b). 19

20 basis for test evidence of refusal civil penalty for refusal criminal penalty for refusal civil penalty (license suspension, use of IID) criminal penalties (jail sentence, fines, community service) COLORADO LEO must have probable cause to believe that the person was driving a motor vehicle in violation of drugged driving laws and when it is reasonable to require such testing. C.R.S.A (2)(b). However, the driver s possession of his or her own valid medicinal use of marijuana registry card, in the absence of other contributing factors, does not constitute probable cause for an analysis of blood. C.R.S.A (6)(k). LEO may physically restrain a person in order to obtain a chemical test only when the LEO has probable cause to believe that the driver has committed vehicular assault or homicide. C.R.S.A (3). The refusal to take, complete or cooperate with taking any tests is admissible at trial, and a person may not claim the privilege against self-incrimination with regard to admission of refusal. C.R.S.A (6)(d). First refusal driver s license revoked for one year. Second refusal license revoked for two years. Third or subsequent refusal license revoked for three years. C.R.S.A (3)(c). First conviction (ability impaired) no license suspension. First conviction (DUI) driver s license suspension for nine months. Second offense driver s license suspension for 12 months. Third offense driver s license suspension for 24 months. C.R.S.A Persons convicted of a third DUI or DWAI offense within seven years also face a mandatory five-year license revocation under the "habitual traffic offender" statute. In addition, the person must hold a restricted license (IID) for a minimum of two years upon restoration of driving privileges. C.R.S.A First conviction (ability impaired) misdemeanor; jail sentence of two days to 180 days; fine of $200-$500; hours community service. First conviction (DWI) misdemeanor; jail sentence of five days to one year; fine of $600-$1,000; hours community service. Second conviction misdemeanor; jail sentence of 10 days to one year; fine of $600-$1,500; hours community service. 20

21 criminal penalties (jail sentence, fines, community service) (continued) Child endangerment Treatment Marijuana use in vehicle Selected state court decisions COLORADO Third conviction misdemeanor; jail sentence of 60 days to one year; fine of $600-$1,500; hours community service. Fourth or subsequent conviction Class 4 felony; jail sentence of two to six years; hours community service. Criminal penalties are enhanced in cases where driver causes bodily injury to another person while committing a violation. C.R.S.A ; C.R.S.A There does not appear to be a law that directly addresses the commission of a violation with a child as a passenger, but it is against the law to permit[] a child to be unreasonably placed in a situation that poses a threat of injury to the child s life or health. C.R.S.A (1)(a). Each judicial department administers an alcohol and drug driving safety program that provides pre-sentence and post-sentence alcohol and drug evaluations on all persons convicted of a violation. These programs provide supervision and monitoring of all persons whose sentences or terms of probation require completion of a program of alcohol and drug driving safety education or treatment. C.R.S.A (3)(a). Driver who refuses a chemical test is given a Persistent Drunk Driver designation, which requires the driver to complete a Level II Alcohol and Drug Education and Treatment program. C.R.S.A Colorado allows the medicinal and recreational use of marijuana. A person in the passenger area of a motor vehicle may not use marijuana or have an open marijuana container in their possession. C.R.S.A People v. Ackerman, 346 P.3d 61 (Colo. 2015) exigent circumstances existed, allowing police to take a warrantless nonconsensual blood draw, where the police were still investigating the scene of the crime and were not finished preparing the affidavit for a warrant when they learned that hospital personnel were taking the unconscious and injured defendant for medical procedures that could alter his blood-alcohol content. People v. Smith, 254 P.3d 1158 (Colo. 2011) court establishes that the police do not need to obtain a driver s consent prior to drawing his blood when they have probable cause that the driver committed vehicular assault under the influence of alcohol or drugs, and that they may physically restrain a driver who resists or refuses to cooperate. 21

22 DUI statute(s) DUI standard DUI - applicable DUI affirmative Per se statute(s) Per se - standard Per se applicable Per se affirmative applicable drivers tests authorized basis for test evidence of refusal civil penalty for refusal criminal penalty for refusal civil penalty (license suspension, use of IID) CONNECTICUT C.G.S.A a. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. C.G.S.A a(a). Any drug. Any person who operates a motor vehicle in Connecticut. C.G.S.A b(a). Chemical analysis of blood, breath or urine. C.G.S.A b(a). Test at the option of a LEO after driver arrested for operating a vehicle while under the influence. C.G.S.A b(b). Evidence that a driver refused to submit to a blood, breath or urine test may be used in any criminal prosecution for a violation of C.G.S.A a(a). The court is to instruct the jury as to any inference that may or may not be drawn from the refusal. C.G.S.A a(e). First refusal driver s license suspension of 45 days; use of IID for one year. Second refusal driver s license suspension of 45 days; use of IID for two years. Third or subsequent violation driver s license suspension of 45 days; use of IID for three years. C.G.S.A b(i). First conviction driver s license suspension of 45 days; use of IID for one year. Second violation driver s license suspension of 45 days; use of IID for three years. Third or subsequent conviction driver s license permanently revoked; must wait at least two years for reconsideration hearing. C.G.S.A a(g). 22

23 criminal penalties (jail sentence, fines, community service) Child endangerment Treatment Marijuana use in vehicle Selected state court decisions CONNECTICUT First conviction jail sentence of 48 hours to six months (or suspended sentence and 100 hours of community service); fine of $500-$1,000. Second conviction within 10 years jail sentence of 120 days to two years; fine of $1,000-$4,000; sentenced to probation (100 hours community service, assessment and possible treatment program). Third or subsequent conviction within 10 years felony; jail sentence of one to three years; fine of $2,000-$8,000; sentence to probation (100 hours community service, assessment and possible treatment program). C.G.S.A a(g). Operating a motor vehicle while under the influence and causing serious physical injury to another person is assault in the second degree with a motor vehicle and a Class D felony. C.G.S.A. 53a-60d. Operating a motor vehicle while under the influence and causing the death of another person is manslaughter in the second degree with a motor vehicle and a Class C felony. C.G.S.A. 53a-56b. There do not appear to be enhanced penalties in Connecticut if the offense is committed with a child in the vehicle. In addition to any fine or sentence imposed, the court may order a violator to participate in an alcohol education and treatment program. C.G.S.A a(j). Upon a second conviction, the offender must submit to an assessment through the Connecticut Court Support Services Division of the degree of such person s alcohol or drug abuse, and undergo a treatment program if so ordered. C.G.S.A a(g). Connecticut allows certain registered patients to use marijuana for medicinal purposes. A patient may not ingest marijuana in a motor bus or a school bus or in any other moving vehicle. C.G.S.A. 21a- 408a(b)(2). State v. Weisenberg, 830 A.2d 795 (Conn. Ct. App. 2013) rejecting defendant s request to overturn jury conviction because prosecution had not proven the exact quantity of drugs in bloodstream. 23

24 DELAWARE DUI statute(s) 21 Del.C DUI standard No person shall drive a vehicle:... [w]hen the person is under the influence of any drug. 21 Del.C. 4177(a)(2). DUI - applicable Any drug. DUI affirmative Except as provided in paragraph (b)(3)b of this section [ for per se provision] the fact that any person charged with violating this section is, or has been, legally entitled to use alcohol or a drug shall not constitute a. 21 Del.C. 4177(b)(1). Per se statute(s) 21 Del.C Per se - standard No person shall drive a vehicle... [w]hen the person s blood contains, within 4 hours of driving, any amount of an illicit or recreational drug that is the result of the unlawful use or consumption of such illicit or recreational drug or any amount of a substance or compound that is the result of the unlawful use or consumption of an illicit or recreational drug prior to or during driving. 21 Del.C. 4177(a)(6). Per se applicable Per se affirmative (s) applicable drivers tests authorized Illicit or recreational drug or a substance or compound that results from the unlawful use of such drug. The term illicit or recreational drug is defined as: (1) a Schedule I controlled substance; (2) cocaine or any mixture containing it; (3) amphetamine, or any mixture containing it; (4) methamphetamine, or any mixture containing it; (5) phencyclidine, or of any mixture containing it; (6) a designer drug, as defined by Delaware law; or (7) a substance or preparation having the property of releasing vapors or fumes which may be used for the purpose of producing a condition of intoxication, inebriation, stupefaction or lethargy or for the purpose of dulling the brain or nervous system. 21 Del.C. 4177(c)(7). There is no violation where the driver did not consume the illicit or recreational drug prior to or during driving, but instead consumed the substance after driving. 21 Del.C. 4177(b)(3)(a). There is no violation if the driver used or consumed the drug or drugs detected according to the directions and terms of a lawfully obtained prescription for such drug or drugs. 21 Del.C. 4177(b)(3)(b). Anyone who drives, operates or has actual physical control of a vehicle within Delaware. 21 Del.C. 2740(a). Chemical test or tests of blood, breath and/or urine for the purpose of determining the presence of alcohol or a drug or drugs. 21 Del.C. 2740(a). 24

25 basis for test evidence of refusal civil penalty for refusal criminal penalty for refusal civil penalty (license suspension, use of IID) criminal penalties (jail sentence, fines, community service) DELAWARE Testing may be required if a LEO has probable cause to believe the driver was operating a vehicle in violation of 21 Del.C Del.C. 2740(a). Testing is required if a LEO has probable cause to believe the driver was violating 21 Del.C and was involved in an accident which resulted in a person s death. 21 Del.C. 2740(b). Refusal can be admitted into any trial arising out of actions alleged to have been committed by any person while in violation of Delaware s drugged driving law. 21 Del.C Refusal driver s license revoked for one year. Refusal with one prior conviction within five years driver s license revoked for 18 months. Refusal with two or more prior convictions within five years driver s license revoked for 24 months. 21 Del.C. 2742(b)(1). First conviction driver s license revoked for three months. Second conviction within five years driver s license revoked for one year. Third or subsequent conviction within five years driver s license revoked for 18 months. 21 Del.C. 2742(c)(1). Upon conviction, an offender may not operate a motor vehicle unless it is equipped with a functioning IID as set forth in 21 Del.C. 4177C and 4177G. 21 Del.C. 4177(e). First conviction jail sentence of up to one year; fine of $500- $1,500. Second conviction within 10 years jail sentence of 60 days to 18 months; fine of $750-$2,500. Third conviction Class G felony; jail sentence of one to two years; fine of up to $5,000. Fourth conviction Class E felony; jail sentence of two to five years; fine of up to $7,000. Fifth conviction Class E felony; jail sentence of three to five years; fine of up to $10,000. Sixth conviction Class D felony; jail sentence of four to eight years; fine of up to 10,000. Seventh or subsequent conviction Class C felony; jail sentence of five to 15 years; fine up to $15, Del.C. 4177(d). In cases where the offender caused either bodily injury or serious bodily injury to another, the driver can be charged with vehicular assault. 11 Del.C. 628A

26 Child endangerment Treatment Marijuana use in vehicle Selected state court decisions DELAWARE Any offense committed while a person under age 17 is in the vehicle results in: (1) for the first offense, an additional fine of $500-$1,500 and at least 40 hours of community service in a program benefiting children; or (2) for each subsequent offense, an additional fine of $750-$2,500 and at least 80 hours of community service in a program benefiting children. 21 Del.C. 4177(d)(10). A person whose license has been suspended for either refusing a chemical test or a violation of 21 Del.C cannot have the license reissued until completing a program established under 21 Del.C. 4177D ( Courses of instruction; rehabilitation programs ). 21 Del.C. 2743(c)(1). Delaware allows certain registered patients to use marijuana for medicinal purposes. A patient may not smoke marijuana [i]n any form of transportation. 16 Del.C. 4904A(3). Flonnory v. State, 109 A.3d 1060 (Del. 2015) Due to the invasive nature of this procedure, a Fourth Amendment totality of the circumstances analysis must be performed when the search is not based upon a warrant or exigent circumstances in order to determine whether a defendant voluntarily consented to the blood draw. 26

27 DISTRICT OF COLUMBIA DUI statute(s) DC ST ; DC ST DUI standard No person shall operate or be in physical control of any vehicle in the District:... [w]hile the person is under the influence of alcohol or any drug or any combination thereof. DC ST (2). No person shall operate or be in physical control of any vehicle in the District while the person s ability to operate or be in physical control of a vehicle is impaired by... any drug or any combination thereof. DC ST DUI - applicable DUI affirmative Per se statute(s) Per se - standard Per se applicable Per se affirmative applicable drivers tests authorized basis for test evidence of refusal Any drug. Drug means any chemical substance that affects the processes of the mind or body, including but not limited to a controlled substance... and any prescription or non-prescription medication. DC ST (6). Person operating a motor vehicle within the District. DC ST (a). Consent to provide two specimens for chemical testing of the person s blood, breath, or urine. DC ST (a). Test can be requested if: (1) LEO has reasonable grounds to believe that a person is operating vehicle while intoxicated or impaired; and (2) after driver s arrest. DC ST (a). If the arrested person was involved in a collision that resulted in a fatality, a LEO may employ whatever means are reasonable to collect blood specimens from the person if the law enforcement officer has reasonable grounds to believe that the person was intoxicated or under the influence of alcohol or of any drug or any combination thereof. DC ST (d). Evidence of the refusal is admissible in any civil or criminal proceeding arising as a result of the acts alleged to have been committed by the person prior to the arrest. DC ST (c). If the offender has a prior DUI conviction, however, there shall be a rebuttable presumption that the person is under the influence of alcohol or a drug or any combination thereof. DC ST (b). 27

28 28 civil penalty for refusal criminal penalty for refusal civil penalty (license suspension, use of IID) criminal penalties (jail sentence, fines, community service) Child endangerment DISTRICT OF COLUMBIA Driver s license suspension of 12 months. DC ST (a)(1)(2)(A). First conviction driver s license revoked for up to six months. Second conviction driver s license revoked for up to one year. Third or subsequent conviction driver s license revoked for up to two years. DC ST Any person whose licenses has been revoked may apply for participation in an IID program. 18 DCMR First conviction (impaired) jail sentence of up to 90 days; $500 fine. First conviction (influence) jail sentence up to 180 days, with a minimum of 15 days if the person s blood or urine contains a Schedule I chemical or controlled substance... Phencyclidine, Cocaine, Methadone, Morphine, or one of its active metabolites or analogs ; $1,000 fine. Second conviction within 15 years (impaired) jail sentence of 5 days to one year; fine of $1,000-$2,500. Second conviction within 15 years (influence) jail sentence of 10 days to one year, with a minimum of 20 days if the person s blood or urine contains a Schedule I chemical or controlled substance... Phencyclidine, Cocaine, Methadone, Morphine, or one of its active metabolites or analogs ; fine of $2,500-$5,000. Third or subsequent conviction within 15 years (impaired) jail sentence of 10 days to one year; fine of $1,000-$5,000. Third conviction within 15 years (influence) jail sentence of 15 days to one year, with a minimum of 25 days if the person s blood or urine contains a Schedule I chemical or controlled substance... Phencyclidine, Cocaine, Methadone, Morphine, or one of its active metabolites or analogs ; fine of $2,500-$10,000. Fourth or subsequent conviction within 15 years(influence) same as third offense with an additional 30-day minimum sentence added for each additional violation. DC ST (a)-(d); DC ST (a)-(c). If an offender had a passenger under age 18 in the vehicle at the time of the offense, then the offender faces additional penalties of: (1) fine of $500-$1,000; and (2) mandatory minimum prison sentences of five days or 10 days, with the higher sentence occurring if the minor is not restrained in age-appropriate safety restraint. DC ST (a).

29 , Treatment Marijuana use in vehicle Selected state court decisions DISTRICT OF COLUMBIA Any person convicted of violating or for the second time within 15 years shall have his or her alcohol or drug abuse history assessed and a treatment program prescribed as appropriate. DC ST The District of Columbia allows persons to possess marijuana for recreational use and for certain registered patients to use marijuana for medicinal use. A patient is not allowed to ingest marijuana anywhere but their residence or a medical treatment facility. DC ST (b). Taylor v. District of Columbia, 49 A.3d 1259 (D.C. 2012) OWI does not carry a lesser impairment standard that DWI (despite lesser penalties), but rather was created as a lesser offense to promote plea bargaining. Karamychev v. District of Columbia, 772 A.2d 806 (D.C. 2001) A person is guilty of DUI if he or she is to the slightest degree... less able, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to handle as powerful and dangerous a mechanism as a modern automobile with safety to himself or the public. 29

30 FLORIDA DUI statute(s) F.S.A DUI standard A person is guilty of the offense of driving under the influence... if the person is driving or in actual physical control of a vehicle within this state and:... [t]he person is under the influence of... any chemical substance set forth in s , or any substance controlled under chapter 893, when affected to the extent that the person s normal faculties are impaired. F.S.A (1)(a). DUI - applicable DUI affirmative Per se statute(s) Per se - standard Per se applicable Per se affirmative (s) applicable drivers tests authorized basis for test evidence of refusal Any chemical substance in F.S.A [harmful chemical ] or any controlled substance. Any person who accepts the privilege of operating a motor vehicle in Florida. F.S.A (1)(a)(1)(b). Urine and/or blood test for the purpose of detecting the presence of chemical or controlled. F.S.A (1)(a)(1)(b); (1)(c). In cases of a urine test: (1) the driver must have been lawfully arrested for any offense allegedly committed while driving under the influence of chemical or controlled ; and (2) the LEO must have reasonable cause to believe the person was driving under the influence. F.S.A (1)(a)(1)(b). In cases of a blood test, the test can be administered if there is reasonable cause to believe the person was driving while under the influence and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible. F.S.A (1)(c). If a LEO has probable cause to believe a motor vehicle driven by someone under the influence has caused the death or serious bodily injury of a human, the LEO must require a blood test, and may use reasonable force if necessary. No arrest is needed in this case. F.S.A (1)(a). The refusal to submit to a urine or blood test upon the request of an LEO is admissible into evidence in any criminal proceeding. F.S.A (1). 30