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STATE OF OKLAHOMA
2nd Session of the 58th Legislature (2022)
HOUSE BILL 3044 By: Talley
AS INTRODUCED
An Act relating to motor vehicles; amending 47 O.S.
2021, Section 11-902, which relates to persons under
the influence of alcohol or other intoxicating
substances; requiring certain persons comp lete
Impaired Driver Accountability Program ; allowing for
satisfaction of requirements under certain condition ;
and providing an effec tive date.
BE IT ENACTED BY THE P EOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 47 O.S. 2021, Section 11 -902, is
amended to read as follows:
Section 11-902. A. It is unlawful and punishable as provided
in this section for any person to drive, operate, or be in actual
physical control of a motor vehicle within this state, whether upon
public roads, highways, streets, turnpike s, other public places or
upon any private road, street, alley or lane which provides access
to one or more single or multi -family dwellings, who:
1. Has a blood or breath alcohol concentration, as defined in
Section 756 of this title, of eight -hundredths (0.08) or more at the
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time of a test of such person 's blood or breath administered within
two (2) hours after the arrest of such pers on;
2. Is under the influence of alcohol;
3. Has any amount of a Schedule I chemical or controlled
substance, as defined in Section 2-204 of Title 63 of the Oklahoma
Statutes, or one of its metabolites or analogs in the person 's
blood, saliva, urine or a ny other bodily fluid at the time of a test
of such person's blood, saliva, urine or any other bodily fluid
administered within two (2) hours after the arrest of such person;
4. Is under the influence of any intoxicating substance other
than alcohol which may render such person incapable of safely
driving or operating a motor vehicle; or
5. Is under the combined influence o f alcohol and any other
intoxicating substance which may render such person incapable of
safely driving or operating a motor vehicle.
B. The fact that any person charged with a violation of this
section is or has been lawfully entitled to use alcohol or a
controlled dangerous substance or any other intoxicating substance
shall not constitute a defense against any charge of violating thi s
section.
C. 1. Any person who is convicted of a violation of the
provisions of this section shall be guilty of a misde meanor for the
first offense and shall:
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a. participate in an assessment and evaluation pursuant
to subsection G of this section and sh all follow all
recommendations made in the assessment and evaluation,
b. be punished by imprisonment in jail for not less than
ten (10) days nor more than one (1) year, and
c. be fined not more than One Thousand Dollars
($1,000.00).
2. Any person who, hav ing been convicted of or having received
deferred judgment for a violation of this section or a violation
pursuant to the provisions of any law of this state or another state
prohibiting the offenses provided in this section, Section 11 -904 of
this title or paragraph 4 of subsection A of Section 852.1 of Title
21 of the Oklahoma Statutes, or having a prior conviction in a
municipal criminal court of record for the violation of a municipal
ordinance prohibiting the offense provided for in this section
commits a subsequent violation of this section within ten (10) years
of the date following the completion of the execution of sa id
sentence or deferred judgment shall, upon conviction, be guilty of a
felony and shall participate in an assessment and evaluation
pursuant to subsection G of this section and shall be sentenced to:
a. follow all recommendations made in the assessment an d
evaluation for treatment at the defendant 's expense,
or
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b. placement in the custody of the Department of
Corrections for not less th an one (1) year and not to
exceed five (5) years and a fine of not more than Two
Thousand Five Hundred Dollars ($2,500.00) , or
c. treatment, imprisonment and a fine within the
limitations prescribed in subparagraphs a and b of
this paragraph.
However, if the treatment in subsection G of this section does
not include residential or inpatient treatment for a period of not
less than five (5) days, the person shall serve a term of
imprisonment of at least five (5) days.
3. Any person who commits a violation of this section after
having been convicted of a felony offense pursuant to the provisions
of this section or a violation pu rsuant to the provisions of any law
of this state or another state prohibiting the offenses provided for
in this section, Section 11 -904 of this title or paragraph 4 of
subsection A of Section 852.1 of Title 21 of the Oklahoma Statutes
shall be guilty of a felony and participate in an assessment and
evaluation pursuant to subsection G of this section and shall be
sentenced to:
a. follow all recommendations made in the assessment and
evaluation for treatment at the defendant 's expense,
two hundred forty (240 ) hours of community service and
use of an ignition interlock device, as provided by
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subparagraph n of paragraph 1 of subsection A of
Section 991a of Title 22 of the Oklahoma Statutes, or
b. placement in the custody of the Department of
Corrections for not less than one (1) year and not to
exceed ten (10) years and a fine of not more than Five
Thousand Dollars ($5,000.00), or
c. treatment, imprisonment and a fine within the
limitations prescribed in subparagraphs a and b of
this paragraph.
However, if the treatment in subsection G of this section does
not include residential or inpatient treatment for a period of not
less than ten (10) da ys, the person shall serve a term of
imprisonment of at least ten (10) days.
4. Any person who commits a violation of thi s section after
having been twice convicted of a felony offense pursuant to the
provisions of this section or a violation pursuant to the provisions
of any law of this state or another state prohibiting the offenses
provided for in this section, Section 11 -904 of this title or
paragraph 4 of subsection A of Section 852.1 of Title 21 of the
Oklahoma Statutes shall be guilty of a felony an d participate in an
assessment and evaluation pursuant to subsection G of this section
and shall be sentenced to:
a. follow all recommendations made in the assessment and
evaluation for treatment at the defendant 's expense,
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followed by not less than one (1 ) year of supervision
and periodic testing at the defendant 's expense, four
hundred eighty (480) hours of community servic e, and
use of an ignition interlock device, as provided by
subparagraph n of paragraph 1 of subsection A of
Section 991a of Title 22 o f the Oklahoma Statutes, for
a minimum of thirty (30) days, or
b. placement in the custody of the Department of
Corrections for not less than one (1) year and not to
exceed twenty (20) years and a fine of not more than
Five Thousand Dollars ($5,000.00), or
c. treatment, imprisonment and a fine within the
limitations prescribed in subparagraphs a and b of
this paragraph.
However, if the person does not undergo residential or inpatient
treatment pursuant to subsection G of this section the person shall
serve a term of imprisonment of at least ten (10) days.
5. Any person who, after a previous conviction of a violation
of murder in the second degree or manslaughter in the first degree
in which the death was caused as a result of driving under the
influence of alcohol or other intoxicating substance, is convicted
of a violation of this section shall be guilty of a felony and shall
be punished by imprisonment in the custody of the Department of
Corrections for not less than five (5) years and not to exceed
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twenty (20) years, and a fine of not more than Ten Thousand Dollars
($10,000.00).
6. Provided, however, a conviction from anoth er state shall not
be used to enhance punishment pursuant to the provisions of this
subsection if that conviction is based on a blood or breath alcohol
concentration of less than eight -hundredths (0.08).
7. In any case in which a defendant is charged with driving
under the influence of alcohol or other intoxicating substance
offense within any municipality with a municipal court other t han a
court of record, the charge shall be presented to the county 's
district attorney and filed with the district court o f the county
within which the municipality is located.
D. Any person who is convicted of a violation of driving under
the influence with a blood or breath alcohol concentration of
fifteen-hundredths (0.15) or more pursuant to this section shall be
deemed guilty of aggravated driving under the influence. A person
convicted of aggravated driving under the influence shall
participate in an assessment and evaluation pursuant to subsection G
of this section and shall comply with all recommendations for
treatment. Such person shall be sentenced as provided in paragraph
1, 2, 3, 4 or 5 of subsection C of this section and to:
1. Not less than one (1) year of supervision and periodic
testing at the defendant 's expense; and
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2. An ignition interlock device or devi ces, as provided by
subparagraph n of paragraph 1 of subsection A of Section 991a of
Title 22 of the Oklahoma Statutes, for a minimum of ninety (90)
days.
E. When a person is sentenced to imprisonment in the custody of
the Department of Corrections, the p erson shall be processed through
the Lexington Assessment and Reception Center or at a place
determined by the Director of the Departm ent of Corrections. The
Department of Corrections shall classify and assign the person to
one or more of the following:
1. The Department of Mental Health and Substance Abuse Services
pursuant to paragraph 1 of subsection A of Section 612 of Title 57
of the Oklahoma Statutes; or
2. A correctional facility operated by the Department of
Corrections with assignment to substan ce abuse treatment.
Successful completion of a Department -of-Corrections-approved
substance abuse treatment program shall satisfy the recommendation
for a ten-hour or twenty-four-hour alcohol and drug substance abuse
course or treatment program or both. Successful completion of an
approved Department of Corrections substance abuse treatment program
may precede or follow the required as sessment.
F. The Department of Public Safety is hereby authorized to
reinstate any suspended or revoked driving privilege when the person
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meets the statutory requirements which affect the existing driving
privilege.
G. Any person who is found guilty of a violation of the
provisions of this section shall be ordered to participate in an
alcohol and drug substance abuse evalua tion and assessment program
offered by a certified assessment agency or certified assessor for
the purpose of evaluating and assessing the receptivity to treatment
and prognosis of the person and shall follow all recommendations
made in the assessment and evaluation for treatment. The court
shall order the person to reimburse the agency or assessor for the
evaluation and assessment. Pa yment shall be remitted by the
defendant or on behalf of the defendant by any third party;
provided, no state-appropriated funds are utilized. The fee for an
evaluation and assessment shall be the amount provided in subsection
C of Section 3-460 of Title 43A of the Oklahoma Statutes. The
evaluation and assessment shall be conducted at a certified
assessment agency, the offi ce of a certified assessor or at another
location as ordered by the court. The agency or assessor shall,
within seventy-two (72) hours from the time the person is evaluated
and assessed, submit a written report to the court for the purpose
of assisting the court in its sentencing determination. The court
shall, as a condition of any sentence imposed, including deferred
and suspended sentences, require the person to participate in and
successfully complete all recommendations from the evaluation, such
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as an alcohol and substance abuse treatment program pursuant to
Section 3-452 of Title 43A of the Oklahoma Statutes. If such report
indicates that the evaluation and assessment shows that the
defendant would benefit from a ten -hour or twenty-four-hour alcohol
and drug substance abuse course or a treatment program or both, the
court shall, as a condition of any sentence imposed, including
deferred and suspended sentences, require the person to follow all
recommendations identified by the evaluation and assessme nt and
ordered by the court. No person, agency or facility operating an
evaluation and assessment program certified by the Department of
Mental Health and Substance Abuse Services shall solicit or refer
any person evaluated and assessed pursuant to this s ection for any
treatment program or substance abuse service in which such person,
agency or facility has a vested interest; however, t his provision
shall not be construed to prohibit the court from ordering
participation in or any person from voluntarily u tilizing a
treatment program or substance abuse service offered by such person,
agency or facility. If a person is sentenced to impri sonment in the
custody of the Department of Corrections and the court has received
a written evaluation report pursuant to the provisions of this
subsection, the report shall be furnished to the Department of
Corrections with the judgment and sentence. An y evaluation and
assessment report submitted to the court pursuant to the provisions
of this subsection shall be handled i n a manner which will keep such
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report confidential from the general public 's review. Nothing
contained in this subsection shall be c onstrued to prohibit the
court from ordering judgment and sentence in the event the defendant
fails or refuses to comply w ith an order of the court to obtain the
evaluation and assessment required by this subsection. If the
defendant fails or refuses to c omply with an order of the court to
obtain the evaluation and assessment, the Department of Public
Safety shall not reinst ate driving privileges until the defendant
has complied in full with such order. Nothing contained in this
subsection shall be constr ued to prohibit the court from ordering
judgment and sentence and any other sanction authorized by law for
failure or refusal to comply with an order of the court.
H. Any person who is found guilty of a violation of the
provisions of this section shall be required by the court to attend
a victims impact panel program, as defined in subsection H of
Section 991a of Title 22 of the Oklahoma Statutes, if such a program
is offered in the county where the judgment is rendered, and to pay
a fee of Seventy-five Dollars ($75.00), as set by the governing
authority of the program and approved by the court, to the program
to offset the cost of participation by the defendant, if in the
opinion of the court the defendant has the ability to pay such fee.
I. Any person who is found guilty of a felony violation of the
provisions of this section shall be required to submit to electronic
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monitoring as authorized and defined by Section 991a of Title 22 of
the Oklahoma Statutes.
J. Any person who is found guilty of a violation of the
provisions of this section who has been sentenced by the court to
perform any type of community service shall not be permitted to pay
a fine in lieu of performing the community service.
K. When a person is found guilty of a violation of the
provisions of this section, the court shall order, in addition to
any other penalty, the defendant to pay a one -hundred-dollar
assessment to be deposited in the Drug Abuse Education and Treatment
Revolving Fund created in Section 2 -503.2 of Title 63 of the
Oklahoma Statutes, upon collection.
L. 1. When a person is eighteen (18) years of age or older,
and is the driver, operator, or person in physical control of a
vehicle, and is convicted of violating any provision of this section
while transporting or having i n the motor vehicle any child less
than eighteen (18) years of age, the fine shall be enhanced to
double the amount of the fine imposed for the underlying driving
under the influence (DUI) violation which shall be in addition to
any other penalties allowed by this section.
2. Nothing in this subsection shall prohibit the prosecution of
a person pursuant to Section 852.1 of T itle 21 of the Oklahoma
Statutes who is in violation of any provision of this section or
Section 11-904 of this title.
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M. Any plea of guilty, nolo contendere or finding of guilt for
a violation of this section or a violation pursuant to the
provisions of any law of this state or another state prohibiting the
offenses provided for in this section, Section 11 -904 of this title,
or paragraph 4 of subsection A of Section 852.1 of Title 21 of the
Oklahoma Statutes, shall constitute a conviction of the offense f or
the purpose of this section; provided, any deferred judgment shall
only be considered to constitute a conviction for a period of te n
(10) years following the completion of any court -imposed
probationary term.
N. If qualified by knowledge, skill, experi ence, training or
education, a witness shall be allowed to testify in the form of an
opinion or otherwise solely on the issue of impai rment, but not on
the issue of specific alcohol concentration level, relating to the
following:
1. The results of any sta ndardized field sobriety test
including, but not limited to, the horizontal gaze nystagmus (HGN)
test administered by a person who has completed training in
standardized field sobriety testing; or
2. Whether a person was under the influence of one or more
impairing substances and the category of such impairing substance or
substances. A witness who has received training and holds a cur rent
certification as a drug recognition expert shall be qualified to
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give the testimony in any case in which such testimo ny may be
relevant.
O. Any person who having been convicted of or having received
deferred judgment for a violation of this secti on, in addition to
any sentence imposed by the court, shall be required to complete the
Impaired Driver Accountability Program (IDAP) in accordance with the
rules of the Board of Tests for Alcohol and Drug In fluence;
provided, if in relation to the same incident, the person completes
IDAP as required by Section 6 -205.1 of this title, such program
completion shall satisfy the req uirements of this subsection.
SECTION 2. This act shall become effective November 1, 2022.
58-2-9113 JBH 12/30/21