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Oklahoma House Bill HB3044

Oklahoma 2022 Regular Session

Oklahoma House Bill HB3044 Compare Versions

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2828 STATE OF OKLAHOMA
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3030 2nd Session of the 58th Legislature (2022)
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3232 HOUSE BILL 3044 By: Talley
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3838 AS INTRODUCED
3939
4040 An Act relating to motor vehicles; amending 47 O.S.
4141 2021, Section 11-902, which relates to persons under
4242 the influence of alcohol or other intoxicating
4343 substances; requiring certain persons comp lete
4444 Impaired Driver Accountability Program ; allowing for
4545 satisfaction of requirements under certain condition ;
4646 and providing an effec tive date.
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5454 BE IT ENACTED BY THE P EOPLE OF THE STATE OF OKLAHOMA:
5555 SECTION 1. AMENDATORY 47 O.S. 2021, Section 11 -902, is
5656 amended to read as follows:
5757 Section 11-902. A. It is unlawful and punishable as provided
5858 in this section for any person to drive, operate, or be in actual
5959 physical control of a motor vehicle within this state, whether upon
6060 public roads, highways, streets, turnpike s, other public places or
6161 upon any private road, street, alley or lane which provides access
6262 to one or more single or multi -family dwellings, who:
6363 1. Has a blood or breath alcohol concentration, as defined in
6464 Section 756 of this title, of eight -hundredths (0.08) or more at the
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9191 time of a test of such person 's blood or breath administered within
9292 two (2) hours after the arrest of such pers on;
9393 2. Is under the influence of alcohol;
9494 3. Has any amount of a Schedule I chemical or controlled
9595 substance, as defined in Section 2-204 of Title 63 of the Oklahoma
9696 Statutes, or one of its metabolites or analogs in the person 's
9797 blood, saliva, urine or a ny other bodily fluid at the time of a test
9898 of such person's blood, saliva, urine or any other bodily fluid
9999 administered within two (2) hours after the arrest of such person;
100100 4. Is under the influence of any intoxicating substance other
101101 than alcohol which may render such person incapable of safely
102102 driving or operating a motor vehicle; or
103103 5. Is under the combined influence o f alcohol and any other
104104 intoxicating substance which may render such person incapable of
105105 safely driving or operating a motor vehicle.
106106 B. The fact that any person charged with a violation of this
107107 section is or has been lawfully entitled to use alcohol or a
108108 controlled dangerous substance or any other intoxicating substance
109109 shall not constitute a defense against any charge of violating thi s
110110 section.
111111 C. 1. Any person who is convicted of a violation of the
112112 provisions of this section shall be guilty of a misde meanor for the
113113 first offense and shall:
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140140 a. participate in an assessment and evaluation pursuant
141141 to subsection G of this section and sh all follow all
142142 recommendations made in the assessment and evaluation,
143143 b. be punished by imprisonment in jail for not less than
144144 ten (10) days nor more than one (1) year, and
145145 c. be fined not more than One Thousand Dollars
146146 ($1,000.00).
147147 2. Any person who, hav ing been convicted of or having received
148148 deferred judgment for a violation of this section or a violation
149149 pursuant to the provisions of any law of this state or another state
150150 prohibiting the offenses provided in this section, Section 11 -904 of
151151 this title or paragraph 4 of subsection A of Section 852.1 of Title
152152 21 of the Oklahoma Statutes, or having a prior conviction in a
153153 municipal criminal court of record for the violation of a municipal
154154 ordinance prohibiting the offense provided for in this section
155155 commits a subsequent violation of this section within ten (10) years
156156 of the date following the completion of the execution of sa id
157157 sentence or deferred judgment shall, upon conviction, be guilty of a
158158 felony and shall participate in an assessment and evaluation
159159 pursuant to subsection G of this section and shall be sentenced to:
160160 a. follow all recommendations made in the assessment an d
161161 evaluation for treatment at the defendant 's expense,
162162 or
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189189 b. placement in the custody of the Department of
190190 Corrections for not less th an one (1) year and not to
191191 exceed five (5) years and a fine of not more than Two
192192 Thousand Five Hundred Dollars ($2,500.00) , or
193193 c. treatment, imprisonment and a fine within the
194194 limitations prescribed in subparagraphs a and b of
195195 this paragraph.
196196 However, if the treatment in subsection G of this section does
197197 not include residential or inpatient treatment for a period of not
198198 less than five (5) days, the person shall serve a term of
199199 imprisonment of at least five (5) days.
200200 3. Any person who commits a violation of this section after
201201 having been convicted of a felony offense pursuant to the provisions
202202 of this section or a violation pu rsuant to the provisions of any law
203203 of this state or another state prohibiting the offenses provided for
204204 in this section, Section 11 -904 of this title or paragraph 4 of
205205 subsection A of Section 852.1 of Title 21 of the Oklahoma Statutes
206206 shall be guilty of a felony and participate in an assessment and
207207 evaluation pursuant to subsection G of this section and shall be
208208 sentenced to:
209209 a. follow all recommendations made in the assessment and
210210 evaluation for treatment at the defendant 's expense,
211211 two hundred forty (240 ) hours of community service and
212212 use of an ignition interlock device, as provided by
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239239 subparagraph n of paragraph 1 of subsection A of
240240 Section 991a of Title 22 of the Oklahoma Statutes, or
241241 b. placement in the custody of the Department of
242242 Corrections for not less than one (1) year and not to
243243 exceed ten (10) years and a fine of not more than Five
244244 Thousand Dollars ($5,000.00), or
245245 c. treatment, imprisonment and a fine within the
246246 limitations prescribed in subparagraphs a and b of
247247 this paragraph.
248248 However, if the treatment in subsection G of this section does
249249 not include residential or inpatient treatment for a period of not
250250 less than ten (10) da ys, the person shall serve a term of
251251 imprisonment of at least ten (10) days.
252252 4. Any person who commits a violation of thi s section after
253253 having been twice convicted of a felony offense pursuant to the
254254 provisions of this section or a violation pursuant to the provisions
255255 of any law of this state or another state prohibiting the offenses
256256 provided for in this section, Section 11 -904 of this title or
257257 paragraph 4 of subsection A of Section 852.1 of Title 21 of the
258258 Oklahoma Statutes shall be guilty of a felony an d participate in an
259259 assessment and evaluation pursuant to subsection G of this section
260260 and shall be sentenced to:
261261 a. follow all recommendations made in the assessment and
262262 evaluation for treatment at the defendant 's expense,
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289289 followed by not less than one (1 ) year of supervision
290290 and periodic testing at the defendant 's expense, four
291291 hundred eighty (480) hours of community servic e, and
292292 use of an ignition interlock device, as provided by
293293 subparagraph n of paragraph 1 of subsection A of
294294 Section 991a of Title 22 o f the Oklahoma Statutes, for
295295 a minimum of thirty (30) days, or
296296 b. placement in the custody of the Department of
297297 Corrections for not less than one (1) year and not to
298298 exceed twenty (20) years and a fine of not more than
299299 Five Thousand Dollars ($5,000.00), or
300300 c. treatment, imprisonment and a fine within the
301301 limitations prescribed in subparagraphs a and b of
302302 this paragraph.
303303 However, if the person does not undergo residential or inpatient
304304 treatment pursuant to subsection G of this section the person shall
305305 serve a term of imprisonment of at least ten (10) days.
306306 5. Any person who, after a previous conviction of a violation
307307 of murder in the second degree or manslaughter in the first degree
308308 in which the death was caused as a result of driving under the
309309 influence of alcohol or other intoxicating substance, is convicted
310310 of a violation of this section shall be guilty of a felony and shall
311311 be punished by imprisonment in the custody of the Department of
312312 Corrections for not less than five (5) years and not to exceed
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339339 twenty (20) years, and a fine of not more than Ten Thousand Dollars
340340 ($10,000.00).
341341 6. Provided, however, a conviction from anoth er state shall not
342342 be used to enhance punishment pursuant to the provisions of this
343343 subsection if that conviction is based on a blood or breath alcohol
344344 concentration of less than eight -hundredths (0.08).
345345 7. In any case in which a defendant is charged with driving
346346 under the influence of alcohol or other intoxicating substance
347347 offense within any municipality with a municipal court other t han a
348348 court of record, the charge shall be presented to the county 's
349349 district attorney and filed with the district court o f the county
350350 within which the municipality is located.
351351 D. Any person who is convicted of a violation of driving under
352352 the influence with a blood or breath alcohol concentration of
353353 fifteen-hundredths (0.15) or more pursuant to this section shall be
354354 deemed guilty of aggravated driving under the influence. A person
355355 convicted of aggravated driving under the influence shall
356356 participate in an assessment and evaluation pursuant to subsection G
357357 of this section and shall comply with all recommendations for
358358 treatment. Such person shall be sentenced as provided in paragraph
359359 1, 2, 3, 4 or 5 of subsection C of this section and to:
360360 1. Not less than one (1) year of supervision and periodic
361361 testing at the defendant 's expense; and
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388388 2. An ignition interlock device or devi ces, as provided by
389389 subparagraph n of paragraph 1 of subsection A of Section 991a of
390390 Title 22 of the Oklahoma Statutes, for a minimum of ninety (90)
391391 days.
392392 E. When a person is sentenced to imprisonment in the custody of
393393 the Department of Corrections, the p erson shall be processed through
394394 the Lexington Assessment and Reception Center or at a place
395395 determined by the Director of the Departm ent of Corrections. The
396396 Department of Corrections shall classify and assign the person to
397397 one or more of the following:
398398 1. The Department of Mental Health and Substance Abuse Services
399399 pursuant to paragraph 1 of subsection A of Section 612 of Title 57
400400 of the Oklahoma Statutes; or
401401 2. A correctional facility operated by the Department of
402402 Corrections with assignment to substan ce abuse treatment.
403403 Successful completion of a Department -of-Corrections-approved
404404 substance abuse treatment program shall satisfy the recommendation
405405 for a ten-hour or twenty-four-hour alcohol and drug substance abuse
406406 course or treatment program or both. Successful completion of an
407407 approved Department of Corrections substance abuse treatment program
408408 may precede or follow the required as sessment.
409409 F. The Department of Public Safety is hereby authorized to
410410 reinstate any suspended or revoked driving privilege when the person
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437437 meets the statutory requirements which affect the existing driving
438438 privilege.
439439 G. Any person who is found guilty of a violation of the
440440 provisions of this section shall be ordered to participate in an
441441 alcohol and drug substance abuse evalua tion and assessment program
442442 offered by a certified assessment agency or certified assessor for
443443 the purpose of evaluating and assessing the receptivity to treatment
444444 and prognosis of the person and shall follow all recommendations
445445 made in the assessment and evaluation for treatment. The court
446446 shall order the person to reimburse the agency or assessor for the
447447 evaluation and assessment. Pa yment shall be remitted by the
448448 defendant or on behalf of the defendant by any third party;
449449 provided, no state-appropriated funds are utilized. The fee for an
450450 evaluation and assessment shall be the amount provided in subsection
451451 C of Section 3-460 of Title 43A of the Oklahoma Statutes. The
452452 evaluation and assessment shall be conducted at a certified
453453 assessment agency, the offi ce of a certified assessor or at another
454454 location as ordered by the court. The agency or assessor shall,
455455 within seventy-two (72) hours from the time the person is evaluated
456456 and assessed, submit a written report to the court for the purpose
457457 of assisting the court in its sentencing determination. The court
458458 shall, as a condition of any sentence imposed, including deferred
459459 and suspended sentences, require the person to participate in and
460460 successfully complete all recommendations from the evaluation, such
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487487 as an alcohol and substance abuse treatment program pursuant to
488488 Section 3-452 of Title 43A of the Oklahoma Statutes. If such report
489489 indicates that the evaluation and assessment shows that the
490490 defendant would benefit from a ten -hour or twenty-four-hour alcohol
491491 and drug substance abuse course or a treatment program or both, the
492492 court shall, as a condition of any sentence imposed, including
493493 deferred and suspended sentences, require the person to follow all
494494 recommendations identified by the evaluation and assessme nt and
495495 ordered by the court. No person, agency or facility operating an
496496 evaluation and assessment program certified by the Department of
497497 Mental Health and Substance Abuse Services shall solicit or refer
498498 any person evaluated and assessed pursuant to this s ection for any
499499 treatment program or substance abuse service in which such person,
500500 agency or facility has a vested interest; however, t his provision
501501 shall not be construed to prohibit the court from ordering
502502 participation in or any person from voluntarily u tilizing a
503503 treatment program or substance abuse service offered by such person,
504504 agency or facility. If a person is sentenced to impri sonment in the
505505 custody of the Department of Corrections and the court has received
506506 a written evaluation report pursuant to the provisions of this
507507 subsection, the report shall be furnished to the Department of
508508 Corrections with the judgment and sentence. An y evaluation and
509509 assessment report submitted to the court pursuant to the provisions
510510 of this subsection shall be handled i n a manner which will keep such
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537537 report confidential from the general public 's review. Nothing
538538 contained in this subsection shall be c onstrued to prohibit the
539539 court from ordering judgment and sentence in the event the defendant
540540 fails or refuses to comply w ith an order of the court to obtain the
541541 evaluation and assessment required by this subsection. If the
542542 defendant fails or refuses to c omply with an order of the court to
543543 obtain the evaluation and assessment, the Department of Public
544544 Safety shall not reinst ate driving privileges until the defendant
545545 has complied in full with such order. Nothing contained in this
546546 subsection shall be constr ued to prohibit the court from ordering
547547 judgment and sentence and any other sanction authorized by law for
548548 failure or refusal to comply with an order of the court.
549549 H. Any person who is found guilty of a violation of the
550550 provisions of this section shall be required by the court to attend
551551 a victims impact panel program, as defined in subsection H of
552552 Section 991a of Title 22 of the Oklahoma Statutes, if such a program
553553 is offered in the county where the judgment is rendered, and to pay
554554 a fee of Seventy-five Dollars ($75.00), as set by the governing
555555 authority of the program and approved by the court, to the program
556556 to offset the cost of participation by the defendant, if in the
557557 opinion of the court the defendant has the ability to pay such fee.
558558 I. Any person who is found guilty of a felony violation of the
559559 provisions of this section shall be required to submit to electronic
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586586 monitoring as authorized and defined by Section 991a of Title 22 of
587587 the Oklahoma Statutes.
588588 J. Any person who is found guilty of a violation of the
589589 provisions of this section who has been sentenced by the court to
590590 perform any type of community service shall not be permitted to pay
591591 a fine in lieu of performing the community service.
592592 K. When a person is found guilty of a violation of the
593593 provisions of this section, the court shall order, in addition to
594594 any other penalty, the defendant to pay a one -hundred-dollar
595595 assessment to be deposited in the Drug Abuse Education and Treatment
596596 Revolving Fund created in Section 2 -503.2 of Title 63 of the
597597 Oklahoma Statutes, upon collection.
598598 L. 1. When a person is eighteen (18) years of age or older,
599599 and is the driver, operator, or person in physical control of a
600600 vehicle, and is convicted of violating any provision of this section
601601 while transporting or having i n the motor vehicle any child less
602602 than eighteen (18) years of age, the fine shall be enhanced to
603603 double the amount of the fine imposed for the underlying driving
604604 under the influence (DUI) violation which shall be in addition to
605605 any other penalties allowed by this section.
606606 2. Nothing in this subsection shall prohibit the prosecution of
607607 a person pursuant to Section 852.1 of T itle 21 of the Oklahoma
608608 Statutes who is in violation of any provision of this section or
609609 Section 11-904 of this title.
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636636 M. Any plea of guilty, nolo contendere or finding of guilt for
637637 a violation of this section or a violation pursuant to the
638638 provisions of any law of this state or another state prohibiting the
639639 offenses provided for in this section, Section 11 -904 of this title,
640640 or paragraph 4 of subsection A of Section 852.1 of Title 21 of the
641641 Oklahoma Statutes, shall constitute a conviction of the offense f or
642642 the purpose of this section; provided, any deferred judgment shall
643643 only be considered to constitute a conviction for a period of te n
644644 (10) years following the completion of any court -imposed
645645 probationary term.
646646 N. If qualified by knowledge, skill, experi ence, training or
647647 education, a witness shall be allowed to testify in the form of an
648648 opinion or otherwise solely on the issue of impai rment, but not on
649649 the issue of specific alcohol concentration level, relating to the
650650 following:
651651 1. The results of any sta ndardized field sobriety test
652652 including, but not limited to, the horizontal gaze nystagmus (HGN)
653653 test administered by a person who has completed training in
654654 standardized field sobriety testing; or
655655 2. Whether a person was under the influence of one or more
656656 impairing substances and the category of such impairing substance or
657657 substances. A witness who has received training and holds a cur rent
658658 certification as a drug recognition expert shall be qualified to
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685685 give the testimony in any case in which such testimo ny may be
686686 relevant.
687687 O. Any person who having been convicted of or having received
688688 deferred judgment for a violation of this secti on, in addition to
689689 any sentence imposed by the court, shall be required to complete the
690690 Impaired Driver Accountability Program (IDAP) in accordance with the
691691 rules of the Board of Tests for Alcohol and Drug In fluence;
692692 provided, if in relation to the same incident, the person completes
693693 IDAP as required by Section 6 -205.1 of this title, such program
694694 completion shall satisfy the req uirements of this subsection.
695695 SECTION 2. This act shall become effective November 1, 2022.
696696
697697 58-2-9113 JBH 12/30/21