TITLE 18 CRIMES AND PUNISHMENTS CHAPTER 80 MOTOR VEHICLES
18-8002. TESTS OF DRIVER FOR ALCOHOL CONCENTRATION, PRESENCE OF DRUGS OR
OTHER INTOXICATING SUBSTANCES — PENALTY AND SUSPENSION UPON REFUSAL OF TESTS.
(1) Any person who drives or is in actual physical control of a motor vehicle
in this state shall be deemed to have given his consent to evidentiary testing
for concentration of alcohol as defined in section 18-8004, Idaho Code, and to
have given his consent to evidentiary testing for the presence of drugs or
other intoxicating substances, provided that such testing is administered at
the request of a peace officer having reasonable grounds to believe that
person has been driving or in actual physical control of a motor vehicle in
violation of the provisions of section 18-8004, Idaho Code, or section
18-8006, Idaho Code.
(2) Such person shall not have the right to consult with an attorney
before submitting to such evidentiary testing.
(3) At the time evidentiary testing for concentration of alcohol, or for
the presence of drugs or other intoxicating substances is requested, the
person shall be informed that if he refuses to submit to or if he fails to
complete, evidentiary testing:
(a) He is subject to a civil penalty of two hundred fifty dollars ($250)
for refusing to take the test;
(b) His driver's license will be seized by the peace officer and a
temporary permit will be issued; provided, however, that no peace officer
shall issue a temporary permit pursuant to this section to a driver whose
driver's license or permit has already been and is suspended or revoked
because of previous violations, and in no instance shall a temporary
permit be issued to a driver of a commercial vehicle who refuses to submit
to or fails to complete an evidentiary test;
(c) He has the right to request a hearing within seven (7) days to show
cause why he refused to submit to, or complete evidentiary testing;
(d) If he does not request a hearing or does not prevail at the hearing,
the court shall sustain the civil penalty and his driver's license will be
suspended absolutely for one year if this is his first refusal and two (2)
years if this is his second refusal within ten (10) years; and
(e) After submitting to evidentiary testing he may, when practicable, at
his own expense, have additional tests made by a person of his own
choosing.
(4) If the motorist refuses to submit to or complete evidentiary testing
after the information has been given in accordance with subsection (3) above:
(a) He shall be fined a civil penalty of two hundred fifty dollars ($250)
and his driver's license or permit shall be seized by the peace officer
and forwarded to the court and a temporary permit shall be issued by the
peace officer which allows him to operate a motor vehicle until the date
of his hearing, if a hearing is requested, but in no event for more than
thirty (30) days; provided, however, that no peace officer shall issue a
temporary permit pursuant to this section to a driver whose driver's
license or permit has already been and is suspended or revoked because of
previous violations and in no instance shall a temporary permit be issued
to a driver of a commercial vehicle who refuses to submit to or fails to
complete an evidentiary test;
(b) A written request may be made within seven (7) calendar days for a
hearing before the court; if requested, the hearing must be held within
thirty (30) days of the seizure unless this period is, for good cause
shown, extended by the court for one (1) additional thirty (30) day
period. The court, in granting such an extension, may, for good cause
shown, extend the defendant's temporary driving privileges for one (1)
additional thirty (30) day period. The hearing shall be limited to the
question of why the defendant did not submit to, or complete, evidentiary
testing, and the burden of proof shall be upon the defendant; the court
shall sustain a two hundred fifty dollar ($250) civil penalty immediately
and suspend all the defendant's driving privileges immediately for one
year for a first refusal and two (2) years for a second refusal within ten
(10) years unless it finds that the peace officer did not have legal caus
to stop and request him to take the test or that the request violated his
civil rights;
(c) If a hearing is not requested by written notice to the court
concerned within seven (7) calendar days, upon receipt of a sworn
statement by the peace officer of the circumstances of the refusal, the
court shall sustain a two hundred fifty dollar ($250) civil penalty and
suspend the defendant's driving privileges for one year for a first
refusal and two (2) years for a second refusal within ten (10) years,
during which time he shall have absolutely no driving privileges of any
kind; and
(d) After submitting to evidentiary testing at the request of the peace
officer, he may, when practicable, at his own expense, have additional
tests made by a person of his own choosing. The failure or inability to
obtain an additional test or tests by a person shall not preclude the
admission of results of evidentiary testing for alcohol concentration or
for the presence of drugs or other intoxicating substances taken at the
direction of the peace officer unless the additional test was denied by
the peace officer.
(5) Any sustained civil penalty or suspension of driving privileges under
this section or section 18-8002A, Idaho Code, shall be a civil penalty
separate and apart from any other suspension imposed for a violation of other
Idaho motor vehicle codes or for a conviction of an offense pursuant to this
chapter, and may be appealed to the district court.
(6) No hospital, hospital officer, agent, or employee, or health care
professional licensed by the state of Idaho, whether or not such person has
privileges to practice in the hospital in which a body fluid sample is
obtained or an evidentiary test is made, shall incur any civil or criminal
liability for any act arising out of administering an evidentiary test for
alcohol concentration or for the presence of drugs or other intoxicating
substances at the request or order of a peace officer in the manner described
in this section and section 18-8002A, Idaho Code: provided, that nothing in
this section shall relieve any such person or legal entity from civil
liability arising from the failure to exercise the community standard of care.
(a) This immunity extends to any person who assists any individual to
withdraw a blood sample for evidentiary testing at the request or order of
a peace officer, which individual is authorized to withdraw a blood
sample under the provisions of section 18-8003, Idaho Code, regardless of
the location where the blood sample is actually withdrawn.
(b) A peace officer is empowered to order an individual authorized in
section 18-8003, Idaho Code, to withdraw a blood sample for evidentiary
testing when the peace officer has probable cause to believe that the
suspect has committed any of the following offenses:
(i) Aggravated driving under the influence of alcohol, drugs or
other intoxicating substance as provided in section 18-8006, Idaho
Code;
(ii) Vehicular manslaughter as provided in subsections (3)(a), (b)
and (c) of section 18-4006, Idaho Code;
(iii) Aggravated operating of a vessel on the waters of the state
while under the influence of alcohol, drugs or other intoxicating
substances as provided in section 67-7035, Idaho Code; or
(iv) Any criminal homicide involving a vessel on the waters of the
state while under the influence of alcohol, drugs or other
intoxicating substances.
(c) Nothing herein shall limit the discretion of the hospital
administration to designate the qualified hospital employee responsible to
withdraw the blood sample.
(d) The law enforcement agency that requests or orders withdrawal of the
blood sample shall pay the reasonable costs to withdraw such blood sample,
perform laboratory analysis, preserve evidentiary test results, and
testify in judicial proceedings.
(e) The withdrawal of the blood sample may be delayed or terminated if:
(i) In the reasonable judgment of the hospital personnel withdrawal
of the blood sample may result in serious bodily injury to hospital
personnel or other patients; or
(ii) The licensed health care professional treating the suspect
believes the withdrawal of the blood sample is contraindicated
because of the medical condition of the suspect or other patients.
(7) "Actual physical control" as used in this section and section
18-8002A, Idaho Code, shall be defined as being in the driver's position of
the motor vehicle with the motor running or with the motor vehicle moving.
(8) Any written notice required by this section shall be effective upon
mailing.
(9) For the purposes of this section and section 18-8002A, Idaho Code,
"evidentiary testing" shall mean a procedure or test or series of procedures
or tests, including the additional test authorized in subsection (10) of this
section, utilized to determine the concentration of alcohol or the presence of
drugs or other intoxicating substances in a person.
(10) A person who submits to a breath test for alcohol concentration, as
defined in subsection (4) of section 18-8004, Idaho Code, may also be
requested to submit to a second evidentiary test of blood or urine for the
purpose of determining the presence of drugs or other intoxicating substances
if the peace officer has reasonable cause to believe that a person was driving
under the influence of any drug or intoxicating substance or the combined
influence of alcohol and any drug or intoxicating substance. The peace officer
shall state in his or her report the facts upon which that belief is based.
(11) Notwithstanding any other provision of law to the contrary, the civil
penalty imposed under the provisions of this section must be paid, as ordered
by the court, to the county justice fund or the county current expense fund
where the incident occurred. If a person does not pay the civil penalty
imposed as provided in this section within thirty (30) days of the imposition,
unless this period has been extended by the court for good cause shown, the
prosecuting attorney representing the political subdivision where the incident
occurred may petition the court in the jurisdiction where the incident
occurred to file the order imposing the civil penalty as an order of the
court. Once entered, the order may be enforced in the same manner as a final
judgment of the court. In addition to the civil penalty, attorney's fees,
costs and interest may be assessed against any person who fails to pay the
civil penalty.
18-8002A. TESTS OF DRIVER FOR ALCOHOL CONCENTRATION, PRESENCE OF DRUGS
OR OTHER INTOXICATING SUBSTANCES — SUSPENSION UPON FAILURE OF TESTS.
(1) Definitions. As used in this section:
(a) “Actual physical control” means being in the driver’s position of a
motor vehicle with the motor running or with the vehicle moving.
(b) “Administrative hearing” means a hearing conducted by a hearing
officer to determine whether a suspension imposed by the provisions of
this section should be vacated or sustained.
(c) “Department” means the Idaho transportation department and, as the
context requires, shall be construed to include any agent of the
department designated by rule as hereinafter provided.
(d) “Director” means the director of the Idaho transportation department.
(e) “Evidentiary testing” means a procedure or test or series of
procedures or tests utilized to determine the concentration of alcohol or
the presence of drugs or other intoxicating substances in a person,
including additional testing authorized by subsection (6) of this section.
An evidentiary test for alcohol concentration shall be based on a formula
of grams of alcohol per one hundred (100) cubic centimeters of blood, per
two hundred ten (210) liters of breath, or sixty-seven (67) milliliters of
urine. Analysis of blood, breath or urine for the purpose of determining
alcohol concentration shall be performed by a laboratory operated by the
Idaho state police or by a laboratory approved by the Idaho state police
under the provisions of approval and certification standards to be set by
the Idaho state police, or by any other method approved by the Idaho state
police. Notwithstanding any other provision of law or rule of court, the
results of any test for alcohol concentration and records relating to
calibration, approval, certification or quality control performed by a
laboratory operated and approved by the Idaho state police or by any other
method approved by the Idaho state police shall be admissible in any
proceeding in this state without the necessity of producing a witness to
establish the reliability of the testing procedure for examination.
(f) “Hearing officer” means a person designated by the department to
conduct administrative hearings. The hearing officer shall have authority
to administer oaths, examine witnesses and take testimony, receive
relevant evidence, issue subpoenas, regulate the course and conduct of the
hearing and make a final ruling on the issues before him.
(g) “Hearing request” means a request for an administrative hearing on
the suspension imposed by the provisions of this section.
(2) Information to be given. At the time of evidentiary testing for
concentration of alcohol, or for the presence of drugs or other intoxicating
substances is requested, the person shall be informed that if the person
refuses to submit to or fails to complete evidentiary testing, or if the
person submits to and completes evidentiary testing and the test results
indicate an alcohol concentration or the presence of drugs or other
intoxicating substances in violation of section 18-8004, 18-8004C or 18-8006,
Idaho Code, the person shall be informed substantially as follows (but need
not be informed verbatim):
If you refuse to submit to or if you fail to complete and pass evidentiary
testing for alcohol or other intoxicating substances:
(a) The peace officer will seize your driver’s license and issue a notice
of suspension and a temporary driving permit to you, but no peace officer
will issue you a temporary driving permit if your driver’s license or
permit has already been and is suspended or revoked. No peace officer
shall issue a temporary driving permit to a driver of a commercial vehicle
who refuses to submit to or fails to complete and pass an evidentiary
test;
(b) You have the right to request a hearing within seven (7) days of the
notice of suspension of your driver’s license to show cause why you
refused to submit to or to complete and pass evidentiary testing and why
your driver’s license should not be suspended;
(c) If you refused or failed to complete evidentiary testing and do not
request a hearing before the court or do not prevail at the hearing, your
driver’s license will be suspended. The suspension will be for one year if
this is your first refusal. The suspension will be for two (2) years if
this is your second refusal within ten (10) years. You will not be able to
obtain a temporary restricted license during that period; and
(d) If you complete evidentiary testing and fail the testing and do not
request a hearing before the department or do not prevail at the hearing,
your driver’s license will be suspended. This suspension will be for
ninety (90) days if this is your first failure of evidentiary testing, but
you may request restricted noncommercial vehicle driving privileges after
the first thirty (30) days. The suspension will be for one (1) year if
this is your second failure of evidentiary testing within five (5) years.
You will not be able to obtain a temporary restricted license during that
period;
(e) After submitting to evidentiary testing you may, when practicable, at
your own expense, have additional tests made by a person of your own
choosing.
(3) Rulemaking authority of the Idaho state police. The Idaho state
police may, pursuant to chapter 52, title 67, Idaho Code, prescribe by rule:
(a) What testing is required to complete evidentiary testing under this
section; and
(b) What calibration or checking of testing equipment must be performed
to comply with the department’s requirements. Any rules of the Idaho state
police shall be in accordance with the following: a test for alcohol
concentration in breath as defined in section 18-8004, Idaho Code, and
subsection (1)(e) of this section will be valid for the purposes of this
section if the breath alcohol testing instrument was approved for testing
by the Idaho state police in accordance with section 18-8004, Idaho Code,
at any time within ninety (90) days before the evidentiary testing. A test
for alcohol concentration in blood or urine as defined in section 18-8004,
Idaho Code, that is reported by the Idaho state police or by any
laboratory approved by the Idaho state police to perform this test will be
valid for the purposes of this section.
(4) Suspension.
(a) Upon receipt of the sworn statement of a peace officer that there
existed legal cause to believe a person had been driving or was in actual
physical control of a motor vehicle while under the influence of alcohol,
drugs or other intoxicating substances and that the person submitted to a
test and the test results indicated an alcohol concentration or the
presence of drugs or other intoxicating substances in violation of section
18-8004, 18-8004C or 18-8006, Idaho Code, the department shall suspend the
person’s driver’s license, driver’s permit, driving privileges or
nonresident driving privileges:
(i) For a period of ninety (90) days for a first failure of
evidentiary testing under the provisions of this section. The first
thirty (30) days of the suspension shall be absolute and the person
shall have absolutely no driving privileges of any kind. Restricted
noncommercial vehicle driving privileges applicable during the
remaining sixty (60) days of the suspension may be requested as
provided in subsection (9) of this section.
(ii) For a period of one (1) year for a second and any subsequent
failure of evidentiary testing under the provisions of this section
within the immediately preceding five (5) years. No driving
privileges of any kind shall be granted during the suspension imposed
pursuant to this subsection.
The person may request an administrative hearing on the suspension as
provided in subsection (7) of this section. Any right to contest the
suspension shall be waived if a hearing is not requested as therein
provided.
(b) The suspension shall become effective thirty (30) days after service
upon the person of the notice of suspension. The notice shall be in a form
provided by the department and shall state:
(i) The reason and statutory grounds for the suspension;
(ii) The effective date of the suspension;
(iii) The suspension periods to which the person may be subject as
provided in subsection (4)(a) of this section;
(iv) The procedures for obtaining restricted noncommercial vehicle
driving privileges;
(v) The rights of the person to request an administrative hearing
on the suspension and that if an administrative hearing is not
requested within seven (7) days of service of the notice of
suspension the right to contest the suspension shall be waived;
(vi) The procedures for obtaining an administrative hearing on the
suspension;
(vii) The right to judicial review of the hearing officer’s decision
on the suspension and the procedures for seeking such review.
(5) Service of suspension by peace officer or the department. If the
driver submits to evidentiary testing after the information in subsection (2)
of this section has been provided and the results of the test indicate an
alcohol concentration or the presence of drugs or other intoxicating
substances in violation of the provisions of section 18-8004, 18-8004C or
18-8006, Idaho Code:
(a) The peace officer shall take possession of the person’s driver’s
license, shall issue a temporary permit which shall be valid for a period
not to exceed thirty (30) days from the date of issuance, and, acting on
behalf of the department, will serve the person with a notice of
suspension in the form and containing the information required under
subsection (4) of this section. The department may serve the person with a
notice of suspension if the peace officer failed to issue the notice of
suspension or failed to include the date of service as provided in
subsection (4)(b) of this section.
(b) Within five (5) business days following service of a notice of
suspension the peace officer shall forward to the department a copy of the
completed notice of suspension form upon which the date of service upon
the driver shall be clearly indicated, a copy of any completed temporary
permit form along with any confiscated driver’s license, a certified copy
or duplicate original of the results of all tests for alcohol
concentration, as shown by analysis of breath administered at the
direction of the peace officer, and a sworn statement of the officer,
which may incorporate any arrest or incident reports relevant to the
arrest and evidentiary testing setting forth:
(i) The identity of the person;
(ii) Stating the officer’s legal cause to stop the person;
(iii) Stating the officer’s legal cause to believe that the person
had been driving or was in actual physical control of a motor vehicle
while under the influence of alcohol, drugs or other intoxicating
substances in violation of the provisions of section 18-8004,
18-8004C or 18-8006, Idaho Code;
(iv) That the person was advised of the consequences of taking and
failing the evidentiary test as provided in subsection (2) of this
section;
(v) That the person was lawfully arrested;
(vi) That the person was tested for alcohol concentration, drugs or
other intoxicating substances as provided in this chapter, and that
the results of the test indicated an alcohol concentration or the
presence of drugs or other intoxicating substances in violation of
the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code.
If an evidentiary test of blood or urine was administered rather than a
breath test, the peace officer or the department shall serve the notice of
suspension once the results are received. The sworn statement required in
this subsection shall be made on forms in accordance with rules adopted by
the department.
(c) The department may serve the person with a notice of suspension if
the peace officer failed to issue the notice of suspension or failed to
include the date of service as provided in subsection (4)(b) of this
section.
(6) Additional tests. After submitting to evidentiary testing at the
request of the peace officer, the person may, when practicable, at his own
expense, have additional tests for alcohol concentration or for the presence
of drugs or other intoxicating substances made by a person of his own
choosing. The person’s failure or inability to obtain additional tests shall
not preclude admission of the results of evidentiary tests administered at the
direction of the peace officer unless additional testing was denied by the
peace officer.
(7) Administrative hearing on suspension. A person who has been served
with a notice of suspension after submitting to an evidentiary test may
request an administrative hearing on the suspension before a hearing officer
designated by the department. The request for hearing shall be in writing and
must be received by the department within seven (7) calendar days of the date
of service upon the person of the notice of suspension, and shall include what
issue or issues shall be raised at the hearing. The date on which the hearing
request was received shall be noted on the face of the request.
If a hearing is requested, the hearing shall be held within twenty (20)
days of the date the hearing request was received by the department unless
this period is, for good cause shown, extended by the hearing officer for one
ten (10) day period. Such extension shall not operate as a stay of the
suspension and any temporary permit shall expire thirty (30) days after
service of the notice of suspension, notwithstanding an extension of the
hearing date beyond such thirty (30) day period. Written notice of the date
and time of the hearing shall be sent to the party requesting the hearing at
least seven (7) days prior to the scheduled hearing date. The department may
conduct all hearings by telephone if each participant in the hearing has an
opportunity to participate in the entire proceeding while it is taking place.
The hearing shall be recorded. The sworn statement of the arresting
officer, and the copy of the notice of suspension and any temporary permit
issued by the officer shall be admissible at the hearing without further
evidentiary foundation. The results of any tests for alcohol concentration or
the presence of drugs or other intoxicating substances by analysis of blood,
urine or breath administered at the direction of the peace officer and the
records relating to calibration, certification, approval or quality control
pertaining to equipment utilized to perform the tests shall be admissible as
provided in section 18-8004(4), Idaho Code. The arresting officer shall not be
required to participate unless directed to do so by a subpoena issued by the
hearing officer.
The burden of proof shall be on the person requesting the hearing. The
hearing officer shall not vacate the suspension unless he finds, by a
preponderance of the evidence, that:
(a) The peace officer did not have legal cause to stop the person; or
(b) The officer did not have legal cause to believe the person had been
driving or was in actual physical control of a vehicle while under the
influence of alcohol, drugs or other intoxicating substances in violation
of the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code; or
(c) The test results did not show an alcohol concentration or the
presence of drugs or other intoxicating substances in violation of section
18-8004, 18-8004C or 18-8006, Idaho Code; or
(d) The tests for alcohol concentration, drugs or other intoxicating
substances administered at the direction of the peace officer were not
conducted in accordance with the requirements of section 18-8004(4), Idaho
Code, or the testing equipment was not functioning properly when the test
was administered; or
(e) The person was not informed of the consequences of submitting to
evidentiary testing as required in subsection (2) of this section.
If the hearing officer finds that the person has not met his burden of proof,
he shall sustain the suspension. The hearing officer shall make findings of
fact and conclusions of law on each issue and shall enter an order vacating or
sustaining the suspension. If the suspension is vacated, the person’s driver’s
license, unless unavailable by reason of an existing suspension, revocation,
cancellation, disqualification or denial shall be returned to him. The
findings of fact, conclusions of law and order entered by the hearing officer
shall be considered a final order pursuant to the provisions of chapter 52,
title 67, Idaho Code, except that motions for reconsideration of such order
shall be allowed and new evidence can be submitted.
The facts as found by the hearing officer shall be independent of the
determination of the same or similar facts in the adjudication of any criminal
charges arising out of the same occurrence. The disposition of those criminal
charges shall not affect the suspension required to be imposed under the
provisions of this section. If a license is suspended under this section and
the person is also convicted on criminal charges arising out of the same
occurrence for a violation of the provisions of section 18-8004, 18-8004C or
18-8006, Idaho Code, both the suspension under this section and the suspension
imposed pursuant to the provisions of section 18-8005 or 18-8006, Idaho Code,
shall be imposed, but the periods of suspension shall run concurrently, with
the total period of suspension not to exceed the longer of the applicable
suspension periods, unless the court ordering the suspension in the criminal
case orders to the contrary.
(8) Judicial review. A party aggrieved by the decision of the hearing
officer may seek judicial review of the decision in the manner provided for
judicial review of final agency action provided in chapter 52, title 67, Idaho
Code.
(9) Restricted noncommercial vehicle driving privileges. A person served
with a notice of suspension for ninety (90) days pursuant to this section may
apply to the department for restricted noncommercial vehicle driving
privileges, to become effective after the thirty (30) day absolute suspension
has been completed. The request may be made at any time after service of the
notice of suspension. Restricted noncommercial vehicle driving privileges will
be issued for the person to travel to and from work and for work purposes not
involving operation of a commercial vehicle, to attend an alternative high
school, work on a GED, for postsecondary education, or to meet the medical
needs of the person or his family if the person is eligible for restricted
noncommercial vehicle driving privileges. Any person whose driving privileges
are suspended under the provisions of this chapter may be granted privileges
to drive a noncommercial vehicle but shall not be granted privileges to
operate a commercial motor vehicle.
(10) Rules. The department may adopt rules under the provisions of chapter
52, title 67, Idaho Code, deemed necessary to implement the provisions of this
section.
18-8004. PERSONS UNDER THE INFLUENCE OF ALCOHOL, DRUGS OR ANY OTHER INTOXICATING SUBSTANCES.
(1) (a) It is unlawful for any person who is under the influence of alcohol,
drugs or any other intoxicating substances, or any combination of
alcohol, drugs and/or any other intoxicating substances, or who has an
alcohol concentration of 0.08, as defined in subsection (4) of this
section, or more, as shown by analysis of his blood, urine, or breath, to
drive or be in actual physical control of a motor vehicle within this
state, whether upon a highway, street or bridge, or upon public or private
property open to the public.
(b) It is unlawful for any person who is under the influence of alcohol,
drugs or any other intoxicating substances, or any combination of alcohol,
drugs and/or any other intoxicating substances, or who has an alcohol
concentration of 0.04 or higher but less than 0.08, as defined in
subsection (4) of this section, as shown by analysis of his blood, urine,
or breath, to drive or be in actual physical control of a commercial motor
vehicle within this state, whether upon a highway, street or bridge, or
upon public or private property open to the public.
(c) It is unlawful for any person who is under the influence of alcohol,
drugs or any other intoxicating substances, or any combination of alcohol,
drugs and/or any other intoxicating substances, or who has an alcohol
concentration of 0.08 or higher, as defined in subsection (4) of this
section, as shown by analysis of his blood, urine, or breath, to drive or
be in actual physical control of a commercial motor vehicle within this
state, whether upon a highway, street or bridge, or upon public or private
property open to the public.
(d) It is unlawful for any person under the age of twenty-one (21) years
who has an alcohol concentration of at least 0.02 but less than 0.08, as
defined in subsection (4) of this section, to drive or be in actual
physical control of a motor vehicle within this state, whether upon a
highway, street or bridge, or upon public or private property open to the
public. Any person violating this subsection shall be subject to the
penalties provided in section 18-8004A, Idaho Code.
(2) Any person having an alcohol concentration of less than 0.08, as
defined in subsection (4) of this section, as shown by analysis of his blood,
urine, or breath, by a test requested by a police officer shall not be
prosecuted for driving under the influence of alcohol, except as provided in
subsection (3), subsection (1)(b) or subsection (1)(d) of this section. Any
person who does not take a test to determine alcohol concentration or whose
test result is determined by the court to be unreliable or inadmissible
against him, may be prosecuted for driving or being in actual physical control
of a motor vehicle while under the influence of alcohol, drugs, or any other
intoxicating substances, on other competent evidence.
(3) If the results of the test requested by a police officer show a
person's alcohol concentration of less than 0.08, as defined in subsection (4)
of this section, such fact may be considered with other competent evidence of
drug use other than alcohol in determining the guilt or innocence of the
defendant.
(4) For purposes of this chapter, an evidentiary test for alcohol
concentration shall be based upon a formula of grams of alcohol per one
hundred (100) cubic centimeters of blood, per two hundred ten (210) liters of
breath or sixty-seven (67) milliliters of urine. Analysis of blood, urine or
breath for the purpose of determining the alcohol concentration shall be
performed by a laboratory operated by the Idaho state police or by a
laboratory approved by the Idaho state police under the provisions of approval
and certification standards to be set by that department, or by any other
method approved by the Idaho state police. Notwithstanding any other
provision of law or rule of court, the results of any test for alcohol
concentration and records relating to calibration, approval, certification or
quality control performed by a laboratory operated or approved by the Idaho
state police or by any other method approved by the Idaho state police shall
be admissible in any proceeding in this state without the necessity of
producing a witness to establish the reliability of the testing procedure for
examination.
(5) "Actual physical control" as used in this section, shall be defined
as being in the driver's position of the motor vehicle with the motor running
or with the motor vehicle moving.
(6) Notwithstanding any other provision of law, any evidence of
conviction under this section shall be admissible in any civil action for
damages resulting from the occurrence. A conviction for the purposes of this
section means that the person has pled guilty or has been found guilty,
notwithstanding the form of the judgment(s) or withheld judgment(s).
(7) The fact that any person charged with a violation of the provisions
of this chapter involving being under the influence of any drug, or any
combination of drugs with alcohol or any other intoxicating substance, is or
has been entitled to use such drug under the laws of this state or of any
other jurisdiction shall not constitute a defense against any charge of a
violation of the provisions of this chapter.
18-8004A. PENALTIES — PERSONS UNDER 21 WITH LESS THAN 0.08 ALCOHOL
CONCENTRATION.
(1) Any person found guilty of a violation of subsection (1)(d)
of section 18-8004, Idaho Code, shall be guilty of a misdemeanor; and, for a
first offense:
(a) Shall be fined an amount not to exceed one thousand dollars ($1,000);
(b) Shall have his driving privileges suspended by the court for a period
of one (1) year, ninety (90) days of which shall not be reduced and during
which period absolutely no driving privileges of any kind may be granted.
After the period of absolute suspension of driving privileges has passed,
the defendant may request restricted driving privileges which the court
may allow, if the defendant shows by a preponderance of the evidence that
driving privileges are necessary as deemed appropriate by the court;
(c) Shall be advised by the court in writing at the time of sentencing of
the penalties that will be imposed for any subsequent violation of the
provisions of this section or any violation of section 18-8004, Idaho
Code, which advice shall be signed by the defendant, and a copy retained
by the court and another copy retained by the prosecuting attorney;
(d) Shall be required to undergo an alcohol evaluation and otherwise
comply with the requirements of sections 18-8005(9) and 18-8005(12), Idaho
Code, as ordered by the court.
(2) Any person who pleads guilty to or is found guilty of a violation of
the provisions of subsection (1)(d) of section 18-8004, Idaho Code, who
previously has been found guilty of or has pled guilty to a violation of the
provisions of section 18-8004(1)(a), (b), (c) or (d), Idaho Code, or any
substantially conforming foreign criminal violation, as defined in section
18-8005(8), Idaho Code, notwithstanding the form of the judgment or withheld
judgment, is guilty of a misdemeanor; and:
(a) Shall be sentenced to jail for a mandatory minimum period of five (5)
days, as required by 23 U.S.C. section 164, not to exceed thirty (30)
days;
(b) Shall be fined an amount of not less than five hundred dollars ($500)
nor more than two thousand dollars ($2,000);
(c) Shall have his driving privileges suspended by the court for a period
not to exceed two (2) years, one (1) year of which shall be absolute and
shall not be reduced and during which period absolutely no driving
privileges of any kind may be granted;
(d) Shall, while operating a motor vehicle, be required to drive only a
motor vehicle equipped with a functioning ignition interlock system, as
provided in section 18-8008, Idaho Code, following the mandatory one (1)
year license suspension period; and
(e) Shall be advised by the court in writing at the time of sentencing of
the penalties that will be imposed for subsequent violations of the
provisions of this section or section 18-8004, Idaho Code, which advice
shall be signed by the defendant, and a copy retained by the court and
another copy retained by the prosecuting attorney;
(f) Shall undergo an alcohol evaluation and comply with the other
requirements of subsections (9) and (12) of section 18-8005, Idaho Code.
(3) Any person who pleads guilty to or is found guilty of a violation of
the provisions of subsection (1)(d) of section 18-8004, Idaho Code, who
previously has been found guilty of or has pled guilty to two (2) or more
violations of the provisions of section 18-8004(1)(a), (b), (c) or (d), Idaho
Code, or any substantially conforming foreign criminal violation, within five
(5) years, notwithstanding the form of the judgment or withheld judgment,
shall be guilty of a misdemeanor; and:
(a) Shall be sentenced to jail for a mandatory minimum period of ten (10)
days, as required by 23 U.S.C. section 164, not to exceed six (6) months;
(b) Shall be fined an amount of not less than one thousand dollars
($1,000) nor more than two thousand dollars ($2,000);
(c) Shall surrender his driver's license or permit to the court;
(d) Shall have his driving privileges suspended by the court for a
mandatory minimum period of one (1) year, during which period absolutely
no driving privileges of any kind may be granted, or until such person
reaches the age of twenty-one (21) years, whichever is greater; and
(e) Shall, while operating a motor vehicle, be required to drive only a
motor vehicle equipped with a functioning ignition interlock system, as
provided in section 18-8008, Idaho Code, following the mandatory one (1)
year license suspension period; and
(f) Shall undergo an alcohol evaluation and comply with all other
requirements imposed by the court pursuant to sections 18-8005(9) and
18-8005(12), Idaho Code.
(4) All provisions of section 18-8005, Idaho Code, not otherwise in
conflict with or provided for in this section shall apply to any sentencing
imposed under the provisions of this section.
(5) A person violating the provisions of section 18-8004(1)(d), Idaho
Code, may be prosecuted under title 20, Idaho Code.
(6) Any person whose driving privileges are suspended, revoked, canceled
or disqualified under the provisions of this chapter shall not be granted
privileges to operate a commercial motor vehicle during the period of
suspension, revocation, cancellation or disqualification.
Notwithstanding any provision of section 18-8005, Idaho Code, to the contrary:
(1) Any person who pleads guilty to or is found guilty of a violation of
the provisions of section 18-8004(1)(a), Idaho Code, for the first time, but
who has an alcohol concentration of 0.20, as defined in section 18-8004(4),
Idaho Code, or more, as shown by an analysis of his blood, breath or urine by
a test requested by a police officer, shall be guilty of a misdemeanor; and:
(a) Shall be sentenced to jail for a mandatory minimum period of not less
than ten (10) days the first forty-eight (48) hours of which must be
consecutive, and may be sentenced to not more than one (1) year;
(b) May be fined an amount not to exceed two thousand dollars ($2,000);
(c) Shall be advised by the court in writing at the time of sentencing,
of the penalties that will be imposed for subsequent violations of the
provisions of this section and violations of section 18-8004, Idaho Code,
which advice shall be signed by the defendant, and a copy retained by the
court and another copy retained by the prosecuting attorney;
(d) Shall surrender his driver's license or permit to the court;
(e) Shall have his driving privileges suspended by the court for an
additional mandatory minimum period of one (1) year after release from
confinement, during which one (1) year period absolutely no driving
privileges of any kind may be granted; and
(2) Any person who pleads guilty to or is found guilty of a violation of
the provisions of section 18-8004, Idaho Code, and who has an alcohol
concentration of 0.20, as defined in section 18-8004(4), Idaho Code, or more,
as shown by an analysis of his blood, breath or urine by a test requested by a
police officer, and who previously has been found guilty of or has pled guilty
to one (1) or more violations of section 18-8004, Idaho Code, in which the
person had an alcohol concentration of 0.20 or more, or any substantially
conforming foreign criminal violation wherein the defendant had an alcohol
concentration of 0.20 or more, or any combination thereof, within five (5)
years, notwithstanding the form of judgment or withheld judgment shall be
guilty of a felony; and:
(a) Shall be sentenced to the custody of the state board of correction
for not to exceed five (5) years; provided that notwithstanding the
provisions of section 19-2601, Idaho Code, should the court impose any
sentence other than incarceration in the state penitentiary, the defendant
shall be sentenced to the county jail for a mandatory minimum period of
not less than thirty (30) days; and further provided that notwithstanding
the provisions of section 18-111, Idaho Code, a conviction under this
section shall be deemed a felony;
(b) May be fined an amount not to exceed five thousand dollars ($5,000);
(c) Shall surrender his driver's license or permit to the court; and
(d) Shall have his driving privileges suspended by the court for a
mandatory minimum period of one (1) year after release from imprisonment,
and may have his driving privileges suspended by the court for not to
exceed five (5) years after release from imprisonment, during which time
he shall have absolutely no driving privileges of any kind; and
(e) Shall, while operating a motor vehicle, be required to drive only a
motor vehicle equipped with a functioning ignition interlock system, as
provided in section 18-8008, Idaho Code, following the mandatory license
suspension period.
(3) All the provisions of section 18-8005, Idaho Code, not in conflict
with or otherwise provided for in this section, shall apply to this section.
(4) Notwithstanding any other provision of law, any evidence of
conviction under this section shall be admissible in any civil action for
damages resulting from the occurrence. A conviction for the purposes of this
section means that the person has pled guilty or has been found guilty,
notwithstanding the form of the judgment or withheld judgment.
18-8005. PENALTIES.
(1) Any person who pleads guilty to or is found
guilty of a violation of the provisions of section 18-8004(1)(a) or (5), Idaho
Code, for the first time is guilty of a misdemeanor; and, except as provided
in section 18-8004C, Idaho Code:
(a) May be sentenced to jail for a term not to exceed six (6) months;
(b) May be fined an amount not to exceed one thousand dollars ($1,000);
(c) Shall be advised by the court in writing at the time of sentencing of
the penalties that will be imposed for subsequent violations of the
provisions of section 18-8004, Idaho Code, which advice shall be signed by
the defendant, and a copy retained by the court and another copy retained
by the prosecuting attorney; and
(d) Shall have his driving privileges suspended by the court for a period
of thirty (30) days which shall not be reduced and during which thirty
(30) day period absolutely no driving privileges of any kind may be
granted. After the thirty (30) day period of absolute suspension of
driving privileges has passed, the defendant shall have driving privileges
suspended by the court for an additional period of at least sixty (60)
days, not to exceed one hundred fifty (150) days during which the
defendant may request restricted driving privileges which the court may
allow, if the defendant shows by a preponderance of the evidence that
driving privileges are necessary for his employment or for family health
needs.
(2) Any person who pleads guilty to or is found guilty of a violation of
the provisions of section 18-8004(1)(b), Idaho Code, for the first time is
guilty of a misdemeanor and subject to:
(a) The provisions of section 18-8005(1)(a), (b) and (c), Idaho Code; and
(b) The provisions of section 49-335, Idaho Code.
(3) Any person who pleads guilty to or is found guilty of a violation of
the provisions of section 18-8004(1)(c), Idaho Code, for the first time, is
guilty of a misdemeanor and is subject to:
(a) The provisions of section 18-8005(1)(a), (b) and (c), Idaho Code; and
(b) The provisions of section 49-335, Idaho Code.
(4) Any person who pleads guilty to or is found guilty of a violation of
the provisions of section 18-8004(1)(a), (b) or (c), Idaho Code, who
previously has been found guilty of or has pled guilty to a violation of the
provisions of section 18-8004(1)(a), (b) or (c), Idaho Code, or any
substantially conforming foreign criminal violation within ten (10) years,
notwithstanding the form of the judgment(s) or withheld judgment(s), and
except as provided in section 18-8004C, Idaho Code, is guilty of a
misdemeanor; and, except as provided in section 18-8004C, Idaho Code:
(a) Shall be sentenced to jail for a mandatory minimum period of not less
than ten (10) days the first forty-eight (48) hours of which must be
consecutive, and five (5) days of which must be served in jail, as
required by 23 U.S.C. section 164, and may be sentenced to not more than
one (1) year, provided however, that in the discretion of the sentencing
judge, the judge may authorize the defendant to be assigned to a work
detail program within the custody of the county sheriff during the period
of incarceration;
(b) May be fined an amount not to exceed two thousand dollars ($2,000);
(c) Shall be advised by the court in writing at the time of sentencing,
of the penalties that will be imposed for subsequent violations of the
provisions of section 18-8004, Idaho Code, which advice shall be signed by
the defendant, and a copy retained by the court and another copy retained
by the prosecuting attorney;
(d) Shall surrender his driver's license or permit to the court;
(e) Shall have his driving privileges suspended by the court for an
additional mandatory minimum period of one (1) year after release from
confinement, during which one (1) year period absolutely no driving
privileges of any kind may be granted; and
(f) Shall, while operating a motor vehicle, be required to drive only a
motor vehicle equipped with a functioning ignition interlock system, as
provided in section 18-8008, Idaho Code, following the one (1) year
mandatory license suspension period.
(g) If the person has pled guilty or was found guilty for the second time
within ten (10) years of a violation of the provisions of section
18-8004(1)(b) or (c), Idaho Code, then the provisions of section 49-335,
Idaho Code, shall apply.
(5) Except as provided in section 18-8004C, Idaho Code, any person who
pleads guilty to or is found guilty of a violation of the provisions of
section 18-8004(1)(a), (b) or (c), Idaho Code, who previously has been found
guilty of or has pled guilty to two (2) or more violations of the provisions
of section 18-8004(1)(a), (b) or (c), Idaho Code, or any substantially
conforming foreign criminal violation, or any combination thereof, within ten
(10) years, notwithstanding the form of the judgment(s) or withheld
judgment(s), shall be guilty of a felony; and
(a) Shall be sentenced to the custody of the state board of correction
for not to exceed ten (10) years; provided that notwithstanding the
provisions of section 19-2601, Idaho Code, should the court impose any
sentence other than incarceration in the state penitentiary, the defendant
shall be sentenced to the county jail for a mandatory minimum period of
not less than thirty (30) days, the first forty-eight (48) hours of which
must be consecutive, and ten (10) days of which must be served in jail, as
required by 23 U.S.C. section 164; and further provided that
notwithstanding the provisions of section 18-111, Idaho Code, a conviction
under this section shall be deemed a felony;
(b) May be fined an amount not to exceed five thousand dollars ($5,000);
(c) Shall surrender his driver's license or permit to the court; and
(d) Shall have his driving privileges suspended by the court for a
mandatory minimum period of one (1) year after release from imprisonment,
and may have his driving privileges suspended by the court for not to
exceed five (5) years after release from imprisonment, during which time
he shall have absolutely no driving privileges of any kind; and
(e) Shall, while operating a motor vehicle, be required to drive only a
motor vehicle equipped with a functioning ignition interlock system, as
provided in section 18-8008, Idaho Code, following the mandatory one (1)
year license suspension period.
(6) For the purpose of computation of the enhancement period in
subsections (4), (5) and (7) of this section, the time that elapses between
the date of commission of the offense and the date the defendant pleads guilty
or is found guilty for the pending offense shall be excluded. If the
determination of guilt against the defendant is reversed upon appeal, the time
that elapsed between the date of the commission of the offense and the date
the defendant pleads guilty or is found guilty following the appeal shall also
be excluded.
(7) Notwithstanding the provisions of subsections (4) and (5) of this
section, any person who has pled guilty or has been found guilty of a felony
violation of the provisions of section 18-8004, Idaho Code, a felony violation
of the provisions of section 18-8004C, Idaho Code, a violation of the
provisions of section 18-8006, Idaho Code, a violation of the provisions of
section 18-4006 3.(b), Idaho Code, or any substantially conforming foreign
criminal felony violation, and within fifteen (15) years pleads guilty or is
found guilty of a further violation of the provisions of section 18-8004,
Idaho Code, shall be guilty of a felony and shall be sentenced pursuant to
subsection (5) of this section.
(8) For the purpose of subsections (4), (5) and (7) of this section and
the provisions of section 18-8004C, Idaho Code, a substantially conforming
foreign criminal violation exists when a person has pled guilty to or has been
found guilty of a violation of any federal law or law of another state, or any
valid county, city, or town ordinance of another state substantially
conforming to the provisions of section 18-8004, Idaho Code. The determination
of whether a foreign criminal violation is substantially conforming is a
question of law to be determined by the court.
(9) Any person who pleads guilty to or is found guilty of a violation of
the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code, shall
undergo, at his own expense, (or at county expense through the procedures set
forth in chapters 34 and 35, title 31, Idaho Code,) and prior to the
sentencing date, an alcohol evaluation by an alcohol evaluation facility
approved by the Idaho department of health and welfare; provided however, if
the defendant has no prior or pending charges with respect to the provisions
of section 18-8004, 18-8004C or 18-8006, Idaho Code, and the court has the
records and information required under subsections (10)(a), (b) and (c) of
this section or possesses information from other reliable sources relating to
the defendant's use or nonuse of alcohol or drugs which does not give the
court any reason to believe that the defendant regularly abuses alcohol or
drugs and is in need of treatment, the court may, in its discretion, waive the
evaluation with respect to sentencing for a violation of section 18-8004 or
18-8004C(1), Idaho Code, and proceed to sentence the defendant. The court may
also, in its discretion, waive the requirement of an alcohol evaluation with
respect to a defendant's violation of the provisions of section 18-8004,
18-8004C or 18-8006, Idaho Code, and proceed to sentence the defendant if the
court has a presentence investigation report, substance abuse assessment,
criminogenic risk assessment, or other assessment which evaluates the
defendant's degree of alcohol abuse and need for alcohol treatment conducted
within twelve (12) months preceding the date of the defendant's sentencing. In
the event an alcohol evaluation indicates the need for alcohol treatment, the
evaluation shall contain a recommendation by the evaluator as to the most
appropriate treatment program, together with the estimated cost thereof, and
recommendations for other suitable alternative treatment programs, together
with the estimated costs thereof. The person shall request that a copy of the
completed evaluation be forwarded to the court. The court shall take the
evaluation into consideration in determining an appropriate sentence. If a
copy of the completed evaluation has not been provided to the court, the court
may proceed to sentence the defendant; however, in such event, it shall be
presumed that alcohol treatment is required unless the defendant makes a
showing by a preponderance of evidence that treatment is not required. If the
defendant has not made a good faith effort to provide the completed copy of
the evaluation to the court, the court may consider the failure of the
defendant to provide the report as an aggravating circumstance in determining
an appropriate sentence. If treatment is ordered, in no event shall the person
or facility doing the evaluation be the person or facility that provides the
treatment unless this requirement is waived by the sentencing court, with the
exception of federally recognized Indian tribes or federal military
installations, where diagnosis and treatment are appropriate and available.
Nothing herein contained shall preclude the use of funds authorized pursuant
to the provisions of chapter 3, title 39, Idaho Code, for court-ordered
alcohol treatment for indigent defendants.
(10) At the time of sentencing, the court shall be provided with the
following information:
(a) The results, if administered, of any evidentiary test for alcohol
and/or drugs;
(b) A computer or teletype or other acceptable copy of the person's
driving record;
(c) Information as to whether the defendant has pled guilty to or been
found guilty of violation of the provisions of section 18-8004, 18-8004C
or 18-8006, Idaho Code, or a similar offense within the past five (5)
years, notwithstanding the form of the judgment(s) or withheld
judgment(s); and
(d) The alcohol evaluation required in subsection (9) of this section, if
any.
(11) A minor may be prosecuted for a violation of the provisions of
section 18-8004 or 18-8004C, Idaho Code, under chapter 5, title 20, Idaho
Code. In addition to any other penalty, if a minor pleads guilty to or is
found guilty of a violation of the provisions of section 18-8004(1)(a), (b) or
(c) or 18-8004C, Idaho Code, he shall have his driving privileges suspended or
denied for an additional one (1) year following the end of any period of
suspension or revocation existing at the time of the violation, or until he
reaches the age of twenty-one (21) years, whichever period is greater. During
the period of additional suspension or denial, absolutely no driving
privileges shall be allowed.
(12) In the event that the alcohol evaluation required in subsection (9)
of this section recommends alcohol treatment, the court shall order the person
to complete a treatment program in addition to any other sentence which may be
imposed, unless the court determines that alcohol treatment would be
inappropriate or undesirable, in which event, the court shall enter findings
articulating the reasons for such determination on the record. The court shall
order the defendant to complete the preferred treatment program set forth in
the evaluation, or a comparable alternative, unless it appears that the
defendant cannot reasonably obtain adequate financial resources for such
treatment. In that event, the court may order the defendant to complete a less
costly alternative set forth in the evaluation, or a comparable program. Such
treatment shall, to the greatest extent possible, be at the expense of the
defendant. In the event that funding is provided for or on behalf of the
defendant by an entity of state government, restitution shall be ordered to
such governmental entity in accordance with the restitution procedure for
crime victims, as specified under chapter 53, title 19, Idaho Code. Nothing
contained herein shall be construed as requiring a court to order that a
governmental entity shall provide alcohol treatment at government expense
unless otherwise required by law.
(13) Any person who is disqualified, or whose driving privileges have been
suspended, revoked or canceled under the provisions of this chapter, shall not
be granted restricted driving privileges to operate a commercial motor
vehicle.
18-8006. AGGRAVATED DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL, DRUGS OR ANY OTHER INTOXICATING SUBSTANCES.
(1) Any person causing great bodily
harm, permanent disability or permanent disfigurement to any person other than
himself in committing a violation of the provisions of section 18-8004(1)(a)
or (1)(c), Idaho Code, is guilty of a felony, and upon conviction:
(a) Shall be sentenced to the state board of correction for not to exceed
fifteen (15) years, provided that notwithstanding the provisions of
section 19-2601, Idaho Code, should the court impose any sentence other
than incarceration in the state penitentiary, the defendant shall be
sentenced to the county jail for a mandatory minimum period of not less
than thirty (30) days, the first forty-eight (48) hours of which must be
consecutive; and further provided that notwithstanding the provisions of
section 18-111, Idaho Code, a conviction under this section shall be
deemed a felony;
(b) May be fined an amount not to exceed five thousand dollars ($5,000);
(c) Shall surrender his driver's license or permit to the court; and
(d) Shall have his driving privileges suspended by the court for a
mandatory minimum period of one (1) year after release from imprisonment,
and may have his driving privileges suspended by the court for not to
exceed five (5) years after release from imprisonment, during which time
he shall have absolutely no driving privileges of any kind; and
(e) Shall be ordered by the court to pay restitution in accordance with
chapter 53, title 19, Idaho Code.
(2) Notwithstanding any other provision of law, any evidence of
conviction under this section shall be admissible in any civil action for
damages resulting from the occurrence. A conviction for the purposes of this
section means that the person has pled guilty or has been found guilty,
notwithstanding the form of the judgment(s) or withheld judgment(s).
The information on this site is not intended to be used as personal legal counsel, nor is to be used as a substitution for legal representation. We recommend that you consult a licensed attorney in order to address your litigation needs.
The www.DUIHotlineNetwork.com offices are located in Boise, Idaho, and represents people living or driving in Idaho state, including the cities of Ashton, Blackfoot, Boise, Bonner's Ferry, Burley, Caldwell, Coeur d'Alene, Davenport, Driggs, Heyburn, Idaho Falls, Jerome, Kellogg, Ketchum, Lewiston, Mccall, Meridian, Montpelier, Moscow, Mountain Home, Nampa, Pocatello, Post Falls, Rexburg, Rigby, Riggins, Salmon, Sandpoint, St. Anthony, Sun Valley, Twin Falls, and Wallace, Idaho and all outlying areas. The www.DUIHotlineNetwork.com also represents clients from any state, who were charged with criminal charges in Idaho.
