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DUI (Misdemeanor)

Aggravated DUI

28-1383. Aggravated driving or actual physical control while under the influence; violation; classification; definition

  1. A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does any of the following:
    1. Commits a violation of section 28-1381, section 28-1382 or this section while the person’s driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person’s driver license or privilege to drive as a result of violating section 28-1381 or 28-1382 or under section 28-1385.
    2. Within a period of eighty-four months commits a third or subsequent violation of section 28-1381, section 28-1382 or this section or is convicted of a violation of section 28-1381, section 28-1382 or this section and has previously been convicted of any combination of convictions of section 28-1381, section 28-1382 or this section or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section.
    3. While a person under fifteen years of age is in the vehicle, commits a violation of either:
    1. Section 28-1381.
    2. Section 28-1382.
  2. While the person is ordered by the court or required pursuant to section 28-3319 by the department to equip any motor vehicle the person operates with a certified ignition interlock device, does either of the following:
    1. While under arrest refuses to submit to any test chosen by a law enforcement officer pursuant to section 28-1321, subsection A.
    2. Commits a violation of section 28-1381, section 28-1382 or this section.
  3. The dates of the commission of the offenses are the determining factor in applying the eighty-four month provision provided in subsection A, paragraph 2 of this section regardless of the sequence in which the offenses were committed. For the purposes of this section, a third or subsequent violation for which a conviction occurs does not include a conviction for an offense arising out of the same series of acts. The time that a probationer is found to be on absconder status or the time that a person is incarcerated in any state, federal, county or city jail or correctional facility is excluded when determining the eighty-four month period provided in subsection A, paragraph 2 and subsection E of this section.
  4. The notice to a person of the suspension, cancellation, revocation or refusal of a driver license or privilege to drive is effective as provided in section 28-3318 or pursuant to the laws of the state issuing the license.
  5. A person is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than four months in prison if the person is convicted under either of the following:
    1. Subsection A, paragraph 1 of this section.
    2. Subsection A, paragraph 2 of this section and within an eighty-four month period has been convicted of two prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section.
  6. A person who is convicted under subsection A, paragraph 2 of this section and who within an eighty-four month period has been convicted of three or more prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than eight months in prison.
  7. A person who is convicted under subsection A, paragraph 3, subdivision (a) of this section shall serve at least the minimum term of incarceration required pursuant to section 28-1381.
  8. A person who is convicted under subsection A, paragraph 3, subdivision (b) of this section shall serve at least the minimum term of incarceration required pursuant to section 28-1382.
  9. A person who is convicted of a violation of this section shall attend and complete alcohol or other drug screening, education or treatment from an approved facility. If the person fails to comply with this subsection and is placed on probation, in addition to the provisions of section 13-901 the court may order that the person be incarcerated as a term of probation as follows:
    1. For a person sentenced pursuant to subsection D of this section, for an individual period of not more than four months and a total period of not more than one year.
    2. For a person sentenced pursuant to subsection E of this section, for an individual period of not more than eight months and a total period of not more than two years.
  10. The time that a person spends in custody pursuant to subsection H of this section shall not be counted towards the sentence imposed if the person’s probation is revoked and the person is sentenced to prison after revocation of probation.
  11. On a conviction for a violation of this section, the court:
    1. Shall report the conviction to the department. On receipt of the report, the department shall revoke the driving privilege of the person. The department shall not issue the person a new driver license within three years of the date of the conviction and, for a conviction of a violation of subsection A, paragraph 1, 2 or 4 or paragraph 3, subdivision (b) of this section, shall require the person to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date of reinstatement of the person’s driving privilege following a suspension or revocation or on the date of the department’s receipt of the report of conviction, whichever occurs later. The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.
    2. In addition to any other penalty prescribed by law, shall order the person to pay an additional assessment of two hundred fifty dollars. If the conviction occurred in the superior court or a justice court, the court shall transmit the monies received pursuant to this paragraph to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the monies received pursuant to this paragraph to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. The state treasurer shall deposit the monies received in the driving under the influence abatement fund established by section 28-1304. Any fine imposed for a violation of this section and any assessments, restitution and incarceration costs shall be paid before the assessment prescribed in this paragraph.
    3. Shall order the person to pay a fine of not less than seven hundred fifty dollars.
    4. In addition to any other penalty prescribed by law, shall order the person to pay an additional assessment of one thousand five hundred dollars to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
    5. In addition to any other penalty prescribed by law, shall order the person to pay an additional assessment of one thousand five hundred dollars to be deposited by the state treasurer in the public safety equipment fund established by section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
    6. After completing the period of suspension required by section 28-1385, a person whose driving privilege is revoked for a violation of subsection A, paragraph 3 of this section may apply to the department for a special ignition interlock restricted driver license pursuant to section 28-1401.
    7. Aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs committed under:
    1. Subsection A, paragraph 1 or 2 or paragraph 4, subdivision (b) of this section is a class 4 felony.
    2. Subsection A, paragraph 3 or paragraph 4, subdivision (a) of this section is a class 6 felony.
  12. For the purposes of this section, “suspension, cancellation, revocation or refusal” means any suspension, cancellation, revocation or refusal.

DUI, Blood & Breath

28-1388. Blood and breath tests; violation; classification; admissible evidence

  1. If blood is drawn under section 28-1321, only a physician, a registered nurse or another qualified person may withdraw blood for the purpose of determining the alcohol concentration or drug content in the blood. The qualifications of the individual withdrawing the blood and the method used to withdraw the blood are not foundational prerequisites for the admissibility of a blood alcohol content determination made pursuant to this subsection.
  2. If a law enforcement officer administers a duplicate breath test and the person tested is given a reasonable opportunity to arrange for an additional test pursuant to subsection C of this section, a sample of the person’s breath does not have to be collected or preserved.
  3. The person tested shall be given a reasonable opportunity to arrange for any physician, registered nurse or other qualified person of the person’s own choosing to administer a test or tests in addition to any administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.
  4. If a person under arrest refuses to submit to a test or tests under section 28-1321, whether or not a sample was collected pursuant to subsection E of this section or a search warrant, evidence of refusal is admissible in any civil or criminal action or other proceeding. The issue of refusal is an issue of fact to be determined by the trier of fact in all cases.
  5. Notwithstanding any other law, if a law enforcement officer has probable cause to believe that a person has violated section 28-1381 and a sample of blood, urine or other bodily substance is taken from that person for any reason, a portion of that sample sufficient for analysis shall be provided to a law enforcement officer if requested for law enforcement purposes. A person who fails to comply with this subsection is guilty of a class 1 misdemeanor.
  6. A person who collects blood, urine or any other bodily substance under this section or any hospital, laboratory or clinic employing or using the services of the person does not incur any civil liability as a result of this activity if requested by a law enforcement officer to collect blood, urine or other bodily substances unless the person, while performing the activity, acts with gross negligence.
  7. A statement by the defendant that the defendant was driving a vehicle that was involved in an accident resulting in injury to or death of any person is admissible in any criminal proceeding without further proof of corpus delicti if it is otherwise admissible.

DUI, Drivers License

28-1385. Administrative license suspension for driving under the influence or for homicide or assault involving a motor vehicle; report; hearing; summary review; ignition interlock device requirement

  1. A law enforcement officer shall forward to the department a certified report as prescribed in subsection B of this section, subject to the penalty for perjury prescribed by section 28-1561, if both of the following occur:
    1. The officer arrests a person for a violation of section 4-244, paragraph 33, section 28-1381, section 28-1382 or section 28-1383 or for a violation of title 13, chapter 11 or section 13-1201 or 13-1204 involving a motor vehicle.
    2. The person submits to a blood or breath alcohol test permitted by section 28-1321 or any other law or a sample of blood is obtained pursuant to section 28-1388 and the results are either not available or the results indicate either of the following:
      1. 0.08 or more alcohol concentration in the person’s blood or breath.
      2. 0.04 or more alcohol concentration in the person’s blood or breath if the person was driving or in actual physical control of a commercial motor vehicle.
    3. The officer shall make the certified report required by subsection A of this section on forms supplied or approved by the department. The report shall state information that is relevant to the enforcement action, including:
      1. Information that adequately identifies the arrested person.
      2. A statement of the officer’s grounds for belief that the person was driving or in actual physical control of a motor vehicle in violation of section 4-244, paragraph 33, section 28-1381, section 28-1382 or section 28-1383 or committed a violation of title 13, chapter 11 or section 13-1201 or 13-1204 involving a motor vehicle.
      3. A statement that the person was arrested for a violation of section 4-244, paragraph 33, section 28-1381, section 28-1382 or section 28-1383 or for a violation of title 13, chapter 11 or section 13-1201 or 13-1204 involving a motor vehicle.
      4. A report of the results of the blood or breath alcohol test that was administered, if the results are available.
    4. The officer shall also serve an order of suspension on the person on behalf of the department. The order of suspension:
      1. Is effective fifteen days after the date it is served.
      2. Shall require the immediate surrender of any license or permit to drive that is issued by this state and that is in the possession or control of the person.
      3. Shall contain information concerning the right to a summary review and hearing, including information concerning the hearing as required by section 28-1321, subsections G and H.
      4. Shall be accompanied by printed forms ready to mail to the department that the person may fill out and sign to indicate the person’s desire for a hearing.
      5. Shall be entered on the department’s records on receipt of the report by the officer and a copy of the order of suspension.
      6. Shall inform the person that the person’s driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege may be issued or reinstated following the period of suspension only if the person completes alcohol or other drug screening.
      7. Shall contain information on alcohol or other drug education and treatment programs that are provided by a facility approved by the department of health services.
    5. If the blood alcohol concentration test result is unavailable at the time the test is administered, the result shall be forwarded to the department before the hearing held pursuant to this section in a form prescribed by the director.
    6. If the license or permit is not surrendered pursuant to subsection C of this section, the officer shall state the reason for the nonsurrender. If a valid license or permit is surrendered, the officer shall issue a temporary driving permit that is valid for fifteen days. The officer shall forward a copy of the completed order of suspension, a copy of any completed temporary permit and any driver license or permit taken into possession under this section to the department within five days after the issuance of the order of suspension along with the report.
    7. The department shall suspend the affected person’s license or permit to drive or right to apply for a license or permit or any nonresident operating privilege for not less than ninety consecutive days from that date. If the person is otherwise qualified, the department may reinstate the person’s driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege following the period of suspension only if the violator completes alcohol or other drug screening.
    8. Notwithstanding subsections A through F of this section, the department shall suspend the driving privileges of the person described in subsection A of this section for not less than thirty consecutive days and shall restrict the driving privileges of the person for not less than sixty consecutive additional days to travel between the person’s place of employment and residence and during specified periods of time while at employment, to travel between the person’s place of residence and the person’s secondary or postsecondary school, according to the person’s employment or educational schedule, to travel between the person’s place of residence and the office of the person’s probation officer for scheduled appointments or to travel between the person’s place of residence and a screening, education or treatment facility for scheduled appointments if the person:
      1. Did not cause a death or a serious physical injury as defined in section 13-105 to another person during the course of conduct out of which the current action arose.
      2. Has not been convicted of a violation of section 4-244, paragraph 33, section 28-1381, section 28-1382 or section 28-1383 within eighty-four months of the date of commission of the acts out of which the current action arose. The dates of commission of the acts are the determining factor in applying the eighty-four month provision.
      3. Has not had the person’s privilege to drive suspended pursuant to this section or section 28-1321 within eighty-four months of the date of commission of the acts out of which the current action arose.
      4. Provides satisfactory evidence to the department of the person’s completion of alcohol or other drug screening that is ordered by the department. If the person does not complete alcohol or other drug screening, the department may impose a ninety day suspension pursuant to this section.
    9. If the officer does not serve an order of suspension pursuant to subsection C of this section and if the department does not receive the report of the results of the blood or breath alcohol test pursuant to subsection B, paragraph 4 of this section, but subsequently receives the results and the results indicate 0.08 or more alcohol concentration in the person’s blood or breath, or a blood or breath alcohol concentration of 0.04 or more and the person was driving or in actual physical control of a commercial motor vehicle, the department shall notify the person named in the report in writing sent by mail that fifteen days after the date of issuance of the notice the department will suspend the person’s license or permit, driving privilege or nonresident driving privilege. The notice shall also state that the department will provide an opportunity for a hearing and administrative review if the person requests a hearing or review in writing and the request is received by the department within fifteen days after the notice is sent.
    10. A timely request for a hearing stays the suspension until a hearing is held, except that the department shall not return any surrendered license or permit to the person but may issue temporary permits to drive that expire no later than when the department has made its final decision. If the person is a resident without a license or permit or has an expired license or permit, the department may allow the person to apply for a restricted license or permit. If the department determines the person is otherwise entitled to the restricted license or permit, the department shall issue, but retain, the license or permit, subject to this section. All hearings requested under this section shall be conducted in the same manner and under the same conditions as provided in section 28-3306.
    11. For the purposes of this section, the scope of the hearing shall include only the following issues:
      1. Whether the officer had reasonable grounds to believe the person was driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor.
      2. Whether the person was placed under arrest for a violation of section 4-244, paragraph 33, section 28-1381, section 28-1382 or section 28-1383 or for a violation of title 13, chapter 11 or section 13-1201 or 13-1204 involving a motor vehicle.
      3. Whether a test was taken, the results of which indicated the alcohol concentration in the person’s blood or breath at the time the test was administered of either:
        1. 0.08 or more.
        2. 0.04 or more if the person was driving or in actual physical control of a commercial motor vehicle.
      4. Whether the testing method used was valid and reliable.
      5. Whether the test results were accurately evaluated.
    12. The results of the blood or breath alcohol test shall be admitted on establishing the requirements in section 28-1323 or 28-1326.
    13. If the department determines at the hearing to suspend the affected person’s privilege to operate a motor vehicle, the suspension provided in this section is effective fifteen days after giving written notice of the suspension, except that the department may issue or extend a temporary license that expires on the effective date of the suspension. If the person is a resident without a license or permit or has an expired license or permit to operate a motor vehicle in this state, the department shall deny the issuance of a license or permit to the person for not less than ninety consecutive days. The department may reinstate the person’s driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege following the period of suspension only if the violator completes alcohol or other drug screening.
    14. A person may apply for a summary review of an order issued pursuant to this section instead of a hearing at any time before the effective date of the order. The person shall submit the application in writing to any department driver license examining office together with any written explanation as to why the department should not suspend the driving privilege. The agent of the department receiving the notice shall issue to the person an additional driving permit that expires twenty days from the date the request is received. The department shall review all reports submitted by the officer and any written explanation submitted by the person and shall determine if the order of suspension should be sustained or cancelled. The department shall not hold a hearing, and the review is not subject to title 41, chapter 6. The department shall notify the person of its decision before the temporary driving permit expires.
    15. If the suspension or determination that there should be a denial of issuance is not sustained after a hearing or review, the ruling is not admissible in and does not have any effect on any civil or criminal court proceeding.
    16. If it has been determined under the procedures of this section that a nonresident’s privilege to operate a motor vehicle in this state has been suspended, the department shall give information either in writing or by electronic means of the action taken to the motor vehicle administrator of the state of the person’s residence and of any state in which the person has a license.

DUI, Ignition Interlock

28-1401. Special ignition interlock restricted driver licenses; application fee

  1. A person whose class D or class G license has been suspended or revoked for a first offense of section 28-1321 or section 28-1383, subsection A, paragraph 3, may apply to the department for a special ignition interlock restricted driver license that allows a person to operate a motor vehicle during the period of suspension or revocation subject to the restrictions prescribed in section 28-1402 and the certified ignition interlock device requirements prescribed in article 5 of this chapter if the person’s privilege to operate a motor vehicle has been suspended or revoked due to an alcohol related offense pursuant to either of the following:
    1. Section 28-1321, if the person meets the criteria of section 28-1321, subsection P.
    2. Section 28-1383, if the person meets the criteria of section 28-1383, subsection K and the person presents evidence that is satisfactory to the director that shows that the person has completed screening and treatment.
  2. An applicant for a special ignition interlock restricted driver license shall pay an application fee in an amount to be determined by the director.
  3. The department shall issue a special ignition interlock restricted driver license during the period of a court ordered restriction pursuant to sections 28-3320 and 28-3322 subject to the restrictions prescribed in section 28-1402 and the certified ignition interlock requirements prescribed in article 5 of this chapter.
  4. If the department issues a special ignition interlock restricted driver license, the department shall not delete a suspension or revocation from its records.
  5. The granting of a special ignition interlock restricted driver license does not reduce or eliminate the required use of an ignition interlock device pursuant to section 28-3319.

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