SB 224: "An Act relating to lowering the legal level of intoxication for operating a motor vehicle, aircraft, or watercraft to .02 percent or the equivalent for persons under 21 years of age; relating to implied consent for purposes of determining consumption of alcohol; and providing for an effective date."
00 SENATE BILL NO. 224 01 "An Act relating to lowering the legal level of intoxication for operating a motor vehicle, 02 aircraft, or watercraft to .02 percent or the equivalent for persons under 21 years of age; 03 relating to implied consent for purposes of determining consumption of alcohol; and 04 providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 28.15.165(a) is amended to read: 07 (a) A law enforcement officer shall read a notice, and deliver a copy of it, to a 08 person operating a motor vehicle, commercial motor vehicle, or aircraft, if a chemical 09 test administered under AS 28.33.031(a) or AS 28.35.031(a) or (g) produces a result 10 described in AS 28.35.030(a)(2) or (4); a chemical test administered under 11 AS 28.33.031(a) produces a result described in AS 28.33.030(a)(2); or the person 12 refuses to submit to a chemical test authorized under AS 28.33.031(a) or 13 AS 28.35.031(a) or (g). The notice must advise that 14 (1) the department intends to revoke the person's driver's license,
01 privilege to drive, or privilege to obtain a license, refuse to issue an original license to 02 the person, or disqualify the person; 03 (2) the person has the right to administrative review of the action taken 04 against the person's license or determination not to issue an original license; 05 (3) if the person has a driver's license or a nonresident privilege to 06 drive, the notice itself is a temporary driver's license that expires seven days after it is 07 delivered to the person, except that if the person was operating a commercial motor 08 vehicle the person will be ordered out of service for 24 hours under AS 28.33.130; 09 (4) revocation of the person's driver's license, privilege to drive, or 10 privilege to obtain a license, a determination not to issue an original license, or a 11 disqualification of the person, takes effect seven days after delivery of the notice to the 12 person unless the person, within seven days, requests an administrative review. 13 * Sec. 2. AS 28.15.165(c) is amended to read: 14 (c) Unless the person has obtained a temporary permit or stay of a 15 departmental action under AS 28.15.166, if the chemical test administered under 16 AS 28.33.031(a) or AS 28.35.031(a) or (g) produced a result described in 17 AS 28.35.030(a)(2) or (4) or the person refused to submit to a chemical test authorized 18 under AS 28.33.031(a) or AS 28.35.031(a) or (g), the department shall revoke the 19 person's license, privilege to drive, or privilege to obtain a license, shall refuse to issue 20 an original license, and, if the chemical test administered under AS 28.33.031(a) 21 produced a result described in AS 28.33.030(a)(2) or the person refused to submit to a 22 chemical test authorized under AS 28.33.031(a), shall disqualify the person. The 23 department's action takes effect seven days after delivery to the person of the notice 24 required under (a) of this section, and after receipt of a sworn report of a law 25 enforcement officer 26 (1) that a chemical test administered under AS 28.33.031(a) or 27 AS 28.35.031(a) or (g) produced a result described in AS 28.35.030(a)(2) or (4), that a 28 chemical test administered under AS 28.33.031(a) produced a result described in 29 AS 28.33.030(a)(2), or that a person refused to submit to a chemical test authorized 30 under AS 28.33.031(a) or AS 28.35.031(a) or (g); 31 (2) that notice under (a) of this section was provided to the person; and
01 (3) describing the 02 (A) circumstances surrounding the arrest and the grounds for 03 the officer's belief that the person operated a motor vehicle, commercial motor 04 vehicle, or aircraft while under the influence of an alcoholic beverage, 05 inhalant, or controlled substance in violation of AS 28.33.030 or 06 AS 28.35.030; or 07 (B) grounds for the officer's belief that the person operated a 08 motor vehicle or commercial motor vehicle that was involved in an accident 09 causing death or serious physical injury to another person. 10 * Sec. 3. AS 28.15.166(g) is amended to read: 11 (g) The hearing for review of action by the department under AS 28.15.165 12 shall be limited to the issues of whether the law enforcement officer had probable 13 cause to believe that the person was operating a motor vehicle or commercial motor 14 vehicle that was involved in an accident causing death or serious physical injury to 15 another, or that the person was operating a motor vehicle, commercial motor vehicle, 16 or aircraft while under the influence of an alcoholic beverage, inhalant, or controlled 17 substance in violation of AS 28.33.030 or AS 28.35.030 and whether 18 (1) the person refused to submit to a chemical test authorized under 19 AS 28.33.031(a) or AS 28.35.031(a) or (g) after being advised that refusal would 20 result in disqualification or the suspension, revocation, or denial of the person's 21 license, privilege to drive, or privilege to obtain a license, and that the refusal is a 22 misdemeanor; 23 (2) the chemical test administered under AS 28.33.031(a) or 24 AS 28.35.031(a) or (g) produced a result described in AS 28.35.030(a)(2) or (4); or 25 (3) the chemical test administered under AS 28.33.031(a) produced a 26 result described in AS 28.33.030(a)(2). 27 * Sec. 4. AS 28.35.030(a) is amended to read: 28 (a) A person commits the crime of driving while under the influence of an 29 alcoholic beverage, inhalant, or controlled substance if the person operates or drives a 30 motor vehicle or operates an aircraft or a watercraft 31 (1) while under the influence of an alcoholic beverage, intoxicating
01 liquor, inhalant, or any controlled substance; 02 (2) when, as determined by a chemical test taken within four hours 03 after the alleged offense was committed, there is 0.08 percent or more by weight of 04 alcohol in the person's blood or 80 milligrams or more of alcohol per 100 milliliters of 05 blood, or when there is 0.08 grams or more of alcohol per 210 liters of the person's 06 breath; [OR] 07 (3) while the person is under the combined influence of an alcoholic 08 beverage, an intoxicating liquor, an inhalant, and a controlled substance; or 09 (4) when, as determined by a chemical test taken within four hours 10 after the alleged offense was committed, there is 0.02 percent or more by weight 11 of alcohol in the person's blood or 20 milligrams or more of alcohol per 100 12 milliliters of blood, or when there is 0.02 grams or more of alcohol per 210 liters 13 of the person's breath, and the person is less than 21 years of age. 14 * Sec. 5. AS 28.35.031(a) is amended to read: 15 (a) A person who operates or drives a motor vehicle in this state or who 16 operates an aircraft as defined in AS 28.35.030(r) or who operates a watercraft as 17 defined in AS 28.35.030(r) shall be considered to have given consent to a chemical 18 test or tests of the person's breath for the purpose of determining the alcoholic content 19 of the person's blood or breath if lawfully arrested for an offense arising out of acts 20 alleged to have been committed while the person was operating or driving a motor 21 vehicle or operating an aircraft or a watercraft while under the influence of an 22 alcoholic beverage, inhalant, or controlled substance in violation of AS 28.35.030 or 23 if lawfully arrested under AS 28.35.280 for the offense of minor operating a vehicle 24 after consuming alcohol. The test or tests shall be administered at the direction of a 25 law enforcement officer who has probable cause to believe that the person was 26 operating or driving a motor vehicle or operating an aircraft or a watercraft in this state 27 while under the influence of an alcoholic beverage, inhalant, or controlled substance 28 in violation of AS 28.35.030 or that the person was a minor operating a vehicle after 29 consuming alcohol. 30 * Sec. 6. AS 28.35.031(b) is amended to read: 31 (b) A person who operates or drives a motor vehicle in this state or who
01 operates an aircraft or watercraft shall be considered to have given consent to a 02 preliminary breath test for the purpose of determining the alcoholic content of the 03 person's blood or breath. A law enforcement officer may administer a preliminary 04 breath test at the scene of the incident if the officer has probable cause to believe that a 05 person's ability to operate a motor vehicle, aircraft, or watercraft is impaired by the 06 ingestion of alcoholic beverages or probable cause to believe that a person under 07 21 years of age was operating a motor vehicle, aircraft, or watercraft while under 08 the influence of alcohol and that the person 09 (1) was operating or driving a motor vehicle, aircraft, or watercraft that 10 is involved in an accident; 11 (2) committed a moving traffic violation or unlawfully operated an 12 aircraft or watercraft; in this paragraph, "unlawfully" means in violation of any 13 federal, state, or municipal statute, regulation, or ordinance [, EXCEPT FOR 14 VIOLATIONS THAT DO NOT PROVIDE REASON TO BELIEVE THAT THE 15 OPERATOR'S ABILITY TO OPERATE THE AIRCRAFT OR WATERCRAFT 16 WAS IMPAIRED BY THE INGESTION OF ALCOHOLIC BEVERAGES]; or 17 (3) was operating or driving a motor vehicle in violation of 18 AS 28.35.029(a). 19 * Sec. 7. AS 28.35.032(a) is amended to read: 20 (a) If a person under arrest for operating a motor vehicle or aircraft while 21 under the influence of an alcoholic beverage, inhalant, or controlled substance refuses 22 the request of a law enforcement officer to submit to a chemical test authorized under 23 AS 28.33.031(a)(1) or AS 28.35.031(a), or if a person involved in a motor vehicle 24 accident that causes death or serious physical injury to another person refuses the 25 request of a law enforcement officer to submit to a chemical test authorized under 26 AS 28.33.031(a)(2) or AS 28.35.031(g), after being advised by the officer that the 27 refusal will result in the denial or revocation of the driver's license, privilege to drive, 28 or privilege to obtain a license, that the refusal may be used against the person in a 29 civil or criminal action or proceeding arising out of an act alleged to have been 30 committed by the person while operating a motor vehicle or aircraft while under the 31 influence of an alcoholic beverage, inhalant, or controlled substance in violation of
01 AS 28.33.030 or AS 28.35.030, and that the refusal is a crime, a chemical test may not 02 be given, except as provided by AS 28.35.035. If a person under arrest for operating a 03 watercraft while under the influence of an alcoholic beverage, inhalant, or controlled 04 substance refuses the request of a law enforcement officer to submit to a chemical test 05 authorized under AS 28.35.031(a), after being advised by the officer that the refusal 06 may be used against the person in a civil or criminal action or proceeding arising out 07 of an act alleged to have been committed by the person while operating a watercraft 08 while under the influence of an alcoholic beverage, inhalant, or controlled substance, 09 and that the refusal is a crime, a chemical test may not be given, except as provided by 10 AS 28.35.035. 11 * Sec. 8. AS 28.35.032(e) is amended to read: 12 (e) The refusal of a person to submit to a chemical test authorized under 13 AS 28.33.031(a) or AS 28.35.031(a) or (g) is admissible evidence in a civil or criminal 14 action or proceeding arising out of an act alleged to have been committed by the 15 person while operating or driving a motor vehicle or operating an aircraft or watercraft 16 while under the influence of an alcoholic beverage, inhalant, or controlled substance 17 in violation of AS 28.33.030 or AS 28.35.030. 18 * Sec. 9. This Act takes effect July 1, 2003.