General Assembly Raised Bill No. 365
February Session, 2016 LCO No. 2562
*02562_______JUD*
Referred to Committee on JUDICIARY
Introduced by:
(JUD)
General Assembly
Raised Bill No. 365
February Session, 2016
LCO No. 2562
*02562_______JUD*
Referred to Committee on JUDICIARY
Introduced by:
(JUD)
AN ACT CONCERNING CHILD ENDANGERMENT WHILE DRIVING WHILE INTOXICATED AND THE TIME LIMIT UNDER WHICH TO ADMINISTER A TEST FOR BLOOD ALCOHOL LEVELS.
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. (NEW) (Effective October 1, 2016) (a) No person, while under the influence of intoxicating liquor or any drug or both, shall operate a motor vehicle that is carrying a child under eighteen years of age. A person commits the offense of operating a motor vehicle carrying a child under eighteen years of age, while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle in which a child under eighteen years of age is a passenger (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. For the purposes of this section, "elevated blood alcohol content" means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight, except that if such person is operating a commercial motor vehicle, "elevated blood alcohol content" means a ratio of alcohol in the blood of such person that is four-hundredths of one per cent or more of alcohol, by weight, and "motor vehicle" includes a snowmobile and all-terrain vehicle, as those terms are defined in section 14-379 of the general statutes.
(b) The provisions of subsections (b), (c), (d), (e), (f), (h), (i), (j), (k) and (l) of section 14-227a of the general statutes, as amended by this act, adapted accordingly, shall be applicable to a violation of subsection (a) of this section.
(c) Any person who violates any provision of subsection (a) of this section shall: (1) For conviction of a first violation, (A) be fined not less than five hundred dollars or more than one thousand dollars; (B) be imprisoned not more than thirteen months, thirty consecutive days of which may not be suspended or reduced in any manner, and sentenced to a period of probation requiring as a condition of such probation that such person: (i) Perform one hundred hours of community service, as defined in section 14-227e of the general statutes, (ii) submit to an assessment through the Court Support Services Division of the Judicial Branch of the degree of such person's alcohol or drug abuse, (iii) undergo a treatment program, including chemical screening, if so ordered, (iv) submit to an interview and evaluation by the Department of Children and Families to assess any ongoing risk posed to any child who was a passenger in the motor vehicle at the time of the violation, and (v) cooperate with any programming, treatment, directives or plan if so ordered by the Department of Children and Families; (C) have such person's motor vehicle operator's license or nonresident operating privilege suspended for forty-five days and, as a condition for the restoration of such license, be required to install an ignition interlock device on each motor vehicle owned or operated by such person and, upon such restoration, be prohibited for the one-year period following such restoration from operating a motor vehicle unless such motor vehicle is equipped with a functioning, approved ignition interlock device, as defined in section 14-227j of the general statutes; and (D) be guilty of an unclassified felony; (2) for conviction of a second violation of this section not later than ten years after a prior conviction for the same offense, (A) be fined not less than one thousand dollars or more than four thousand dollars; (B) be imprisoned not more than three years, one hundred eighty consecutive days of which may not be suspended or reduced in any manner and sentenced to a period of probation requiring as a condition of such probation that such person: (i) Perform one hundred hours of community service, as defined in section 14-227e of the general statutes, (ii) submit to an assessment through the Court Support Services Division of the Judicial Branch of the degree of such person's alcohol or drug abuse, (iii) undergo a treatment program, including chemical screening, if so ordered, (iv) submit to an interview and evaluation by the Department of Children and Families to assess any ongoing risk posed to any child who was a passenger in the motor vehicle at the time of the violation, and (v) cooperate with any programming, treatment, directives or plan if so ordered by the Department of Children and Families; (C) have such person's motor vehicle operator's license or nonresident operating privilege suspended for forty-five days and, as a condition for the restoration of such license, be required to install an ignition interlock device on each motor vehicle owned or operated by such person and, upon such restoration, be prohibited for the three-year period following such restoration from operating a motor vehicle unless such motor vehicle is equipped with a functioning, approved ignition interlock device, as defined in section 14-227j of the general statutes, except that for the first year of such three-year period, such person's operation of a motor vehicle shall be limited to such person's transportation to or from work or school, an alcohol or drug abuse treatment program, an ignition interlock device service center, a treatment program ordered by the Department of Children and Families or an appointment with a probation officer or Department of Children and Families caseworker; and (D) be guilty of an unclassified felony; (3) for a third or subsequent conviction of a violation of this section not later than ten years after a prior conviction for the same offense, (A) be fined not less than two thousand dollars or more than eight thousand dollars; (B) be imprisoned not more than five years, two years of which may not be suspended or reduced in any manner, and sentenced to a period of probation requiring as a condition of such probation that such person: (i) Perform one hundred hours of community service, as defined in section 14-227e of the general statutes, (ii) submit to an assessment through the Court Support Services Division of the Judicial Branch of the degree of such person's alcohol or drug abuse, (iii) undergo a treatment program, including chemical screening, if so ordered, (iv) submit to an interview and evaluation by the Department of Children and Families to assess any ongoing risk posed to any child who was a passenger in the motor vehicle at the time of the offense, and (v) cooperate with any programming, treatment, directives or plan if so ordered by the Department of Children and Families; (C) have such person's motor vehicle operator's license or nonresident operating privilege permanently revoked upon such third offense, except that if such person's revocation is reversed or reduced pursuant to subsection (i) of section 14-111 of the general statutes, such person shall be prohibited from operating a motor vehicle unless such motor vehicle is equipped with a functioning, approved ignition interlock device, as defined in section 14-227j of the general statutes, for the time period prescribed in subdivision (2) of subsection (i) of section 14-111 of the general statutes; and (D) be guilty of an unclassified felony. For purposes of the imposition of penalties pursuant to this subsection, a conviction under the provisions of subsection (a) of section 14-227a of the general statutes in effect on October 1, 1981, or as amended thereafter, subsection (a) of this section, subsection (a) of section 14-227g of the general statutes, subsection (a) of section 2 of this act, subsection (a) of section 53a-56b of the general statutes or subsection (a) of section 53a-60d of the general statutes or a conviction in any other state of any offense, the essential elements of which are determined by the court to be substantially the same as the elements of the aforementioned provisions, shall constitute a prior conviction for the same offense.
Sec. 2. (NEW) (Effective October 1, 2016) (a) No person shall operate a school bus, student transportation vehicle or other motor vehicle specially designated for carrying school children, while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a school bus, student transportation vehicle or other motor vehicle specially designated for carrying children, while under the influence of intoxicating liquor or any drug or both if: (1) Such person operates a school bus, student transportation vehicle or other motor vehicle specially designated for carrying children (A) while under the influence of intoxicating liquor or any drug or both, or (B) while such person has an elevated blood alcohol content; or (2) such person operates a school bus, student transportation vehicle, or other motor vehicle specially designated for carrying children (A) while a child under eighteen years of age is a passenger in the vehicle and while such person is under the influence of intoxicating liquor or any drug or both, or (B) while a child under eighteen years of age is a passenger in the vehicle and while such person has an elevated blood alcohol content. For the purposes of this section, "elevated blood alcohol content" means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight, except that (i) if such person is operating a commercial motor vehicle, "elevated blood alcohol content" means a ratio of alcohol in the blood of such person that is four-hundredths of one per cent or more of alcohol, by weight, or (ii) if such person is under twenty-one years of age, "elevated blood alcohol content" means a ratio of alcohol in the blood of such person that is two-hundredths of one per cent or more of alcohol, by weight and "motor vehicle" includes a snowmobile and all-terrain vehicle, as those terms are defined in section 14-379 of the general statutes.
(b) The provisions of subsections (b), (c), (d), (e), (f), (h), (i), (j), (k) and (l) of section 14-227a of the general statutes, as amended by this act, adapted accordingly, shall be applicable to violations of subdivisions (1) and (2) of subsection (a) of this section.
(c) For purposes of this section, a "motor vehicle specially designated for carrying children" means any motor vehicle, except for a registered school bus or student transportation vehicle as defined in section 14-212 of the general statutes, that is designated or used by a carrier, a carrier's agent, a person, firm or corporation for the transportation of children to or from any program or activity organized primarily for persons under the age of eighteen years, with or without charge to the individual being transported. A "motor vehicle specially designated for carrying children" does not include a passenger motor vehicle normally used for personal, family or household purposes, which is operated by a person without a public passenger endorsement for personal, family or household carpooling to a private event.
(d) Operation of a school bus, school van or other motor vehicle specially designated for carrying children, while under the influence of intoxicating liquor or any drug or while having an elevated blood alcohol content, in violation of subsection (a) of this section, is an unclassified felony.
(1) Any person who violates subdivision (1) of subsection (a) of this section shall: (A) Be fined not more than ten thousand dollars, (B) be imprisoned not less than one year nor more than ten years, thirty consecutive days of which shall not be suspended or reduced in any manner, followed by a period of probation not to exceed three years, unless the court, pursuant to subsection (e) of section 53a-29 of the general statutes, determines in its discretion that a period of up to five years of probation is warranted, (C) be required to perform one hundred hours of community service, as defined in section 14-227e of the general statutes, as a condition of probation, (D) be required to submit to an assessment through the Court Support Services Division of the Judicial Branch of the degree of such person's alcohol or drug abuse as a condition of probation, (E) be required to undergo a treatment program, including chemical screening, if so ordered, as a condition of probation, and (F) have such person's motor vehicle operator's license or nonresident operating privilege suspended for forty-five days and, as a condition for the restoration of such license, be required to install an ignition interlock device on each motor vehicle owned or operated by such person and, upon such restoration, be prohibited for a two-year period following such restoration from operating a motor vehicle unless such motor vehicle is equipped with a functioning, approved ignition interlock device, as defined in section 14-227j of the general statutes, except that for the first year of such two-year period, such person's operation of a motor vehicle shall be limited to such person's transportation to or from work or school, an alcohol or drug abuse treatment program, an ignition interlock device service center or an appointment with a probation officer.
(2) Any person who violates subdivision (2) of subsection (a) of this section shall: (A) be fined not more than ten thousand dollars, (B) be imprisoned not less than one year nor more than ten years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, followed by a period of probation not to exceed three years, unless the court, pursuant to subsection (e) of section 53a-29 of the general statutes, determines in its discretion that a period of up to five years of probation is warranted, (C) be required to perform one hundred hours of community service, as defined in section 14-227e of the general statutes, as a condition of probation, (D) be required to submit to an assessment through the Court Support Services Division of the Judicial Branch of the degree of such person's alcohol or drug abuse as a condition of probation, (E) be required to undergo a treatment program, including chemical screening, if so ordered, as a condition of probation, and (F) have such person's motor vehicle operator's license or nonresident operating privilege suspended for forty-five days and, as a condition for the restoration of such license, be required to install an ignition interlock device on each motor vehicle owned or operated by such person and, upon such restoration, be prohibited for a two-year period following such restoration from operating a motor vehicle unless such motor vehicle is equipped with a functioning, approved ignition interlock device, as defined in section 14-227j of the general statutes, except that for the first year of such two-year period, such person's operation of a motor vehicle shall be limited to such person's transportation to or from work or school, an alcohol or drug abuse treatment program, an ignition interlock device service center or an appointment with a probation officer.
Sec. 3. Subsection (b) of section 14-227a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):
(b) Except as provided in subsection (c) of this section, in any criminal prosecution for violation of subsection (a) of this section, evidence respecting the amount of alcohol or drug in the defendant's blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant's breath, blood or urine shall be admissible and competent provided: (1) The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test upon which such analysis is made; (2) a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later; (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the Department of Emergency Services and Public Protection and was performed in accordance with the regulations adopted under subsection (d) of this section; (4) the device used for such test was checked for accuracy in accordance with the regulations adopted under subsection (d) of this section; (5) an additional chemical test of the same type was performed at least ten minutes after the initial test was performed or, if requested by the police officer for reasonable cause, an additional chemical test of a different type was performed to detect the presence of a drug or drugs other than or in addition to alcohol, provided the results of the initial test shall not be inadmissible under this subsection if reasonable efforts were made to have such additional test performed in accordance with the conditions set forth in this subsection and such additional test was not performed or was not performed within a reasonable time, or the results of such additional test are not admissible for failure to meet a condition set forth in this subsection; and (6) evidence is presented that the test was commenced within two hours of operation or, if the test was not commenced within two hours of operation, expert testimony is provided to establish the reliability of the tests. In any prosecution under this section it shall be a rebuttable presumption that the results of such chemical analysis establish the ratio of alcohol in the blood of the defendant at the time of the alleged offense, except that if the results of the additional test indicate that the ratio of alcohol in the blood of such defendant is ten-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and the analysis thereof accurately indicate the blood alcohol content at the time of the alleged offense.
Sec. 4. Subsection (c) of section 14-227b of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):
(c) If the person arrested refuses to submit to such test or analysis or submits to such test or analysis [, commenced within two hours of the time of operation,] and the results of such test or analysis indicate that such person has an elevated blood alcohol content, the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator's license or, if such person is a nonresident, suspend the nonresident operating privilege of such person, for a twenty-four-hour period. The police officer shall prepare a report of the incident and shall mail or otherwise transmit in accordance with this subsection the report and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report shall contain such information as prescribed by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer's belief that there was probable cause to arrest such person for a violation of subsection (a) of section 14-227a and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis [, commenced within two hours of the time of operation,] and the results of such test or analysis indicated that such person had an elevated blood alcohol content. The Commissioner of Motor Vehicles may accept a police report under this subsection that is prepared and transmitted as an electronic record, including electronic signature or signatures, subject to such security procedures as the commissioner may specify and in accordance with the provisions of sections 1-266 to 1-286, inclusive. In any hearing conducted pursuant to the provisions of subsection (g) of this section, it shall not be a ground for objection to the admissibility of a police report that it is an electronic record prepared by electronic means.
Sec. 5. Subsection (g) of section 14-227b of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):
(g) If such person contacts the department to schedule a hearing, the department shall assign a date, time and place for the hearing, which date shall be prior to the effective date of the suspension, except that, with respect to a person whose operator's license or nonresident operating privilege is suspended in accordance with subdivision (2) of subsection (e) of this section, such hearing shall be scheduled not later than thirty days after such person contacts the department. At the request of such person or the hearing officer and upon a showing of good cause, the commissioner may grant one or more continuances. The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis [, commenced within two hours of the time of operation,] and the results of such test or analysis indicated that such person had an elevated blood alcohol content; and (4) was such person operating the motor vehicle. In the hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person at the time of operation, provided such test was commenced within two hours of the time of operation. The fees of any witness summoned to appear at the hearing shall be the same as provided by the general statutes for witnesses in criminal cases. Notwithstanding the provisions of subsection (a) of section 52-143, any subpoena summoning a police officer as a witness shall be served not less than seventy-two hours prior to the designated time of the hearing.
This act shall take effect as follows and shall amend the following sections:
Section 1 October 1, 2016 New section
Sec. 2 October 1, 2016 New section
Sec. 3 October 1, 2016 14-227a(b)
Sec. 4 October 1, 2016 14-227b(c)
Sec. 5 October 1, 2016 14-227b(g)
This act shall take effect as follows and shall amend the following sections:
Section 1
October 1, 2016
New section
Sec. 2
October 1, 2016
New section
Sec. 3
October 1, 2016
14-227a(b)
Sec. 4
October 1, 2016
14-227b(c)
Sec. 5
October 1, 2016
14-227b(g)
Statement of Purpose:
To (1) provide for an appropriate penalty for operating under the influence with a child in the vehicle; and (2) remove the requirement that a test for blood alcohol levels be performed within two hours of operation for purposes of administrative per se hearings; and (3) require that any test not commenced within two hours be established as reliable by expert witness testimony for purpose of criminal prosecution.
[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]