CHAPTER 168

(HB 1119)

Driving under the influence modified.

         ENTITLED, An Act to  repeal certain mandatory minimum sentences for driving under the influence, to expand those substances under which a person may be found to be under the influence, and to revise certain driving under the influence provisions for clarity and consistency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:

     Section  1.  That § 32-23-1 be amended to read as follows:

     32-23-1.   No person may drive or be in actual physical control of any vehicle while:

             (1)      There is 0.08 percent or more by weight of alcohol in that person's blood as shown by chemical analysis of that person's breath, blood, or other bodily substance;

             (2)      Under the influence of an alcoholic beverage , marijuana, or any controlled drug or substance not obtained pursuant to a valid prescription, or any combination of an alcoholic beverage, marijuana, or such controlled drug or substance ;

             (3)      Under the influence of marijuana or any controlled drug or substance obtained pursuant to a valid prescription, or any other substance, to a degree which renders the person incapable of safely driving; or

             (4)      Under the combined influence of an alcoholic beverage and marijuana or any controlled drug or substance obtained pursuant to a valid prescription, or any other substance, to a degree which renders the person incapable of safely driving ; or

             (5)    Under the influence of any substance ingested, inhaled, or otherwise taken into the body as prohibited by §  22-42-15 .

     Section  2.  That § 32-23-1.1 be amended to read as follows:

     32-23-1.1.   A law enforcement officer may, without a warrant, arrest a person for a violation of the provisions of § 32-23-1 when he the officer has probable cause to believe that the person to be arrested has been involved in a traffic accident and has violated the provisions of § 32-23-1 and that such violation occurred prior to or immediately following such traffic accident.

     Section  3.  That § 32-23-1.2 be amended to read as follows:

     32-23-1.2.   Every person operating a motor vehicle which has been involved in an accident or which is operated in violation of any of the provisions of this chapter shall, at the request of a law enforcement officer, submit to a breath test to be administered by such officer. If such test indicates that such operator has consumed alcohol, the law enforcement officer may require such operator to submit to a chemical test in the manner set forth in this chapter.

     Section  4.  That § 32-23-2 be amended to read as follows:

     32-23-2.   If conviction for a violation of § 32-23-1 is for a first offense, such person is guilty of a Class 1 misdemeanor, and the defendant's driving privileges shall be revoked for not less than thirty days. However, the court may in its discretion issue an order upon proof of financial responsibility, pursuant to §  32-35-113, permitting the person to operate a motor vehicle for purposes of the person's employment , attendance at school, or attendance at court-ordered counseling programs during the hours of the day and the days of the week as set forth in the order . The court may also order the revocation of the defendant's driving privilege for a further period not to exceed one year or restrict the privilege in such manner as it sees fit for a period not to exceed one year.

     Section  5.  That § 32-23-2.1 be amended to read as follows:

     32-23-2.1.   Any person convicted of a first offense pursuant to § 32-23-2 §  32-23-1 with a 0.17 percent or more by weight of alcohol in his the person's blood shall, in addition to the penalties provided in § 32-23-2, be required to undergo a court-ordered evaluation to determine if the defendant has an addiction to alcohol is chemically dependent . The cost of such evaluation shall be paid by the defendant.

     Section  6.  That § 32-23-3 be amended to read as follows:

     32-23-3.   If conviction for a violation of § 32-23-1 is for a second offense, such person is guilty of a Class 1 misdemeanor, and the court shall, in pronouncing sentence, unconditionally revoke the defendant's driving privilege for a period of not less than one year. However, upon the successful completion of a court-approved alcohol treatment chemical dependency program, and proof of financial responsibility pursuant to §  32-35-113, the court may permit the person to drive for the purpose purposes of employment and may restrict the privilege by the imposition of such conditions as the court sees fit , attendance at school, or attendance at counseling programs . If such person is convicted of driving without a license during that period, the person shall be sentenced to the county jail for not less than three days, which sentence may not be suspended.

     Section  7.  That § 32-23-4 be amended to read as follows:

     32-23-4.   If conviction for a violation of § 32-23-1 is for a third offense, the person is guilty of a Class 6 felony, and the court, in pronouncing sentence, shall unconditionally revoke the defendant's driving privileges for such period of time as may be determined by the court, but in no event less than one year from the date sentence is imposed or one year from the date of discharge from incarceration order that the driver's license of any person so convicted be revoked for a period of not less than one year from the date sentence is imposed or one year from the date of initial release from imprisonment , whichever is later. In the event the person is returned to imprisonment prior to the completion of the period of driver's license revocation, time spent imprisoned does not count toward fulfilling the period of revocation. If the person is convicted of driving without a license during that period, he shall be sentenced to the county jail for not less than ten days, which sentence may not be suspended. Notwithstanding §  23A-27-19, the court retains jurisdiction to modify the conditions of the license revocation for the term of such revocation. Upon the successful completion of a court-approved chemical dependency counseling program, and proof of financial responsibility pursuant to §  32-35-113, the court may permit the person to operate a vehicle for the purposes of employment, attendance at school, or attendance at counseling programs.

     Section  8.  That § 32-23-4.3 be amended to read as follows:

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     32-23-4.3.   The plea and election of method of trial by the accused shall be first taken only on the first part of the information described in § 32-23-4.2 but before a plea is made the accused shall be informed by the judge, in absence of the jury, of the contents of his the second part. There shall be entered in the minutes of the court the time and place when and where the judge so informed the accused, and like entry thereof shall be made in the judgment.

     Section  9.  That § 32-23-4.4 be amended to read as follows:

     32-23-4.4.   On a finding of guilty on the first part of the information described in § 32-23-4.2 a plea shall be taken and, if necessary, an election made on the second part and a trial thereon proceeded with, and until such time no information as to the second part of the information shall may be divulged to the jury. If the accused shall have elected elects a jury trial in the second part of the information, such trial may be had to the same or another jury as the court may direct.

     Section  10.  That § 32-23-4.6 be amended to read as follows:

     32-23-4.6.   If conviction for a violation of § 32-23-1 is for a fourth offense and the person has previously been convicted of a felony under § 32-23-4, the person is guilty of a Class 5 felony, and the court, in pronouncing sentence, shall unconditionally revoke the defendant's driving privileges for such period of time as may be determined by the court, but in no event less than two years from the date sentence is imposed or two years from the date of discharge from incarceration order that the driver's license of any person so convicted be revoked for a period of not less than two years from the date sentence is imposed or two years from the date of initial release from imprisonment , whichever is later. In the event the person is returned to imprisonment prior to the completion of the period of driver's license revocation, time spent imprisoned does not count toward fulfilling the period of revocation. If the person is convicted of driving without a license during that period, the person shall be sentenced to the county jail for not less than twenty days, which sentence may not be suspended. Notwithstanding §  23A-27-19, the court retains jurisdiction to modify the conditions of the license revocation for the term of such revocation. Upon the successful completion of a court-approved chemical dependency counseling program, and proof of financial responsibility pursuant to §  32-35-113, the court may permit the person to operate a vehicle for the purposes of employment, attendance at school, or attendance at counseling programs.

     Section  11.  That § 32-23-4.7 be amended to read as follows:

     32-23-4.7.   If conviction for violation of § 32-23-1 is for a fifth offense, or subsequent offenses thereafter, and the person has previously been convicted of a felony under § 32-23-4, the person is guilty of a Class 4 felony and the court, in pronouncing sentencing, shall unconditionally revoke the defendant's driving privileges for such period of time as may be determined by the court, but in no event less than two years from the date sentence is imposed or two years from the date of discharge from incarceration order that the driver's license of any person so convicted be revoked for a period of not less than three years from the date sentence is imposed or three years from the date of initial release from imprisonment , whichever is later. In the event the person is returned to imprisonment prior to the completion of the period of driver's license revocation, time spent imprisoned does not count toward fulfilling the period of revocation. If the person is convicted of driving without a license during that period, the person shall be sentenced to the county jail for not less than twenty days, which sentence may not be suspended. Notwithstanding §  23A-27-19, the court retains jurisdiction to modify the conditions of the license revocation for the term of such revocation. Upon the successful completion of a court-approved chemical dependency counseling program, and proof of financial responsibility pursuant to §  32-35-113, the court may permit the person to operate a vehicle for the purposes of employment, attendance at school, or attendance at counseling programs.

     Section  12.  That § 32-23-6 be amended to read as follows:

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     32-23-6.   The fact that any person charged with a violation of § 32-23-1 is or has been entitled to use prescribed a drug under the laws of this state shall is not constitute a defense against any charge of violating said section §  32-23-1 .

     Section  13.  That § 32-23-7 be amended to read as follows:

     32-23-7.   In any criminal prosecution for a violation of § 32-23-1 relating to driving a vehicle while under the influence of intoxicating liquor an alcoholic beverage , a violation of § 22-16-41, or a violation of § 22-16-42, the amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of the defendant's blood, breath, or other bodily substance gives rise to the following presumptions:

             (1)      If there was at that time five hundredths percent or less by weight of alcohol in the defendant's blood, it is presumed that the defendant was not under the influence of intoxicating liquor an alcoholic beverage ;

             (2)      If there was at that time in excess of five hundredths percent but less than eight hundredths percent by weight of alcohol in the defendant's blood, such fact does not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor an alcoholic beverage , but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant;

             (3)      If there was at that time eight hundredths percent or more by weight of alcohol in the defendant's blood, it is presumed that the defendant was under the influence of intoxicating liquor an alcoholic beverage .

     Percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 1.0 cubic centimeters centimeter of whole blood or 2100 cubic centimeters of deep lung breath.

     Section  14.  That § 32-23-8 be amended to read as follows:

     32-23-8.   The provisions of § 32-23-7 shall may not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor an alcoholic beverage .

     Section  15.  That chapter 32-23 be amended by adding thereto a NEW SECTION to read as follows:

     Any driving permit issued by the court to any person, who has been convicted of a violation of §  32-23-1 within the last ten years or any driving permit issued pursuant to §  32-23-2, if that person had 0.17 percent or more by weight of alcohol in that person's blood, shall be conditioned on the person's total abstinence from the use of alcohol. The court shall immediately revoke the permit upon a showing of proof by a preponderance of the evidence that the person has violated this condition.

     Section  16.  That § 22-16-41 be amended to read as follows:

     22-16-41.   Any person who, while under the influence of an alcoholic beverage, any controlled drug or substance, marijuana, or a combination thereof, without design to effect death, operates or drives a motor vehicle of any kind in a negligent manner and thereby causes the death of another person, including an unborn child, is guilty of vehicular homicide. Vehicular homicide is a Class 3 felony. In addition to any other penalty prescribed by law, the court may also order that the driver's license of any person convicted of vehicular homicide be revoked for such period of time as may be determined by the court shall order that the driver's license of any person convicted of vehicular homicide be revoked for a period of not less than ten years from the date sentence is imposed or ten years from the date of initial release from imprisonment, whichever is later. In the event the person is returned to imprisonment prior to the completion of the period of driver's license revocation, time spent imprisoned does not count toward fulfilling the period of revocation .

     Section  17.  That § 22-18-36 be amended to read as follows:

     22-18-36.   Any person who, while under the influence of an alcoholic beverage, any controlled drug or substance, marijuana, or a combination thereof, without design to effect serious bodily injury, operates or drives a motor vehicle of any kind in a negligent manner and thereby causes the serious bodily injury of another person, including an unborn child, is guilty of vehicular battery. Vehicular battery is a Class 4 felony. In addition to any other penalty prescribed by law, the court may also order that the driver's license of any person convicted of vehicular battery be revoked for a period of two years subsequent to release from incarceration shall order that the driver's license of any person convicted of vehicular battery be revoked for a period of not less than three years from the date sentence is imposed or three years from the date of initial release from imprisonment, whichever is later. In the event the person is returned to imprisonment prior to the completion of the period of driver's license revocation, time spent imprisoned does not count toward fulfilling the period of revocation .

     Signed March 6, 2006

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