HF 1004

as introduced - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to crimes; striking the requirement that a 
  1.3             second chemical test be available to a person accused 
  1.4             of driving while impaired; making various changes to 
  1.5             the implied consent hearing process involving what 
  1.6             must be stated in the petition, available discovery, 
  1.7             the burden of proof, and the scope of the hearing; 
  1.8             requiring health professionals to report injuries 
  1.9             resulting from motor vehicle accidents that involve 
  1.10            alcohol or controlled substances; imposing criminal 
  1.11            penalties; amending Minnesota Statutes 1996, sections 
  1.12            169.123, subdivisions 3, 5c, and 6; 626.52; 626.53, 
  1.13            subdivision 1; and 634.15, subdivision 2. 
  1.14  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.15     Section 1.  Minnesota Statutes 1996, section 169.123, 
  1.16  subdivision 3, is amended to read: 
  1.17     Subd. 3.  [MANNER OF MAKING TEST; ADDITIONAL TESTS.] (a) 
  1.18  Only a physician, medical technician, physician's trained mobile 
  1.19  intensive care paramedic, registered nurse, medical technologist 
  1.20  or laboratory assistant acting at the request of a peace officer 
  1.21  may withdraw blood for the purpose of determining the presence 
  1.22  of alcohol, controlled substances, or hazardous substances.  
  1.23  This limitation does not apply to the taking of a breath or 
  1.24  urine sample.  The person tested has the right to have someone 
  1.25  of the person's own choosing administer a chemical test or tests 
  1.26  in addition to any administered at the direction of a peace 
  1.27  officer; provided, that the additional test sample on behalf of 
  1.28  the person is obtained at the place where the person is in 
  1.29  custody, after the test administered at the direction of a peace 
  2.1   officer, and at no expense to the state. 
  2.2      (b) The failure or inability to obtain an additional test 
  2.3   or tests by a person shall not preclude the admission in 
  2.4   evidence of the test taken at the direction of a peace officer 
  2.5   unless the additional test was prevented or denied by the peace 
  2.6   officer. 
  2.7      (c) The physician, medical technician, physician's trained 
  2.8   mobile intensive care paramedic, medical technologist, 
  2.9   laboratory assistant or registered nurse drawing blood at the 
  2.10  request of a peace officer for the purpose of determining the 
  2.11  concentration of alcohol, controlled substances, or hazardous 
  2.12  substances shall in no manner be liable in any civil or criminal 
  2.13  action except for negligence in drawing the blood.  The person 
  2.14  administering a breath test shall be fully trained in the 
  2.15  administration of breath tests pursuant to training given by the 
  2.16  commissioner of public safety. 
  2.17     Sec. 2.  Minnesota Statutes 1996, section 169.123, 
  2.18  subdivision 5c, is amended to read: 
  2.19     Subd. 5c.  [PETITION FOR JUDICIAL REVIEW.] (a) Within 30 
  2.20  days following receipt of a notice and order of revocation or 
  2.21  disqualification pursuant to this section, a person may petition 
  2.22  the court for review.  The petition shall be filed with the 
  2.23  district court administrator in the county where the alleged 
  2.24  offense occurred, together with proof of service of a copy on 
  2.25  the commissioner of public safety, and accompanied by the 
  2.26  standard filing fee for civil actions.  No responsive pleading 
  2.27  shall be required of the commissioner of public safety, and no 
  2.28  court fees shall be charged for the appearance of the 
  2.29  commissioner of public safety in the matter.  
  2.30     (b) The petition shall must: 
  2.31     (1) be captioned in the full name of the person making the 
  2.32  petition as petitioner and the commissioner of public safety as 
  2.33  respondent.  The petition must; 
  2.34     (2) include the petitioner's date of birth, driver's 
  2.35  license number, and date of the offense.  The petition shall; 
  2.36  and 
  3.1      (3) state with specificity the grounds upon which the 
  3.2   petitioner seeks rescission of the order of revocation, 
  3.3   disqualification, or denial and state the facts underlying each 
  3.4   claim asserted. 
  3.5      (c) The filing of the petition shall not stay the 
  3.6   revocation, disqualification, or denial.  The reviewing court 
  3.7   may order a stay of the balance of the revocation or 
  3.8   disqualification if the hearing has not been conducted within 60 
  3.9   days after filing of the petition upon terms the court deems 
  3.10  proper. 
  3.11     (d) Judicial reviews shall be conducted according to the 
  3.12  rules of civil procedure except that prehearing discovery is 
  3.13  mandatory and limited to: 
  3.14     (1) the notice of revocation; 
  3.15     (2) the test record, or in the case of blood or urine 
  3.16  tests, the certificate of analysis; 
  3.17     (3) the peace officer's certificate and any accompanying 
  3.18  documentation submitted by the arresting officer to the 
  3.19  commissioner of public safety; and 
  3.20     (4) disclosure of potential witnesses, including experts, 
  3.21  and the basis of their testimony. 
  3.22  Other types of discovery are not available. 
  3.23     Sec. 3.  Minnesota Statutes 1996, section 169.123, 
  3.24  subdivision 6, is amended to read: 
  3.25     Subd. 6.  [HEARING.] (a) A hearing under this section shall 
  3.26  be before a district judge in any county in the judicial 
  3.27  district where the alleged offense occurred.  The hearing shall 
  3.28  be to the court and may be conducted at the same time and in the 
  3.29  same manner as hearings upon pretrial motions in the criminal 
  3.30  prosecution under section 169.121, if any.  The hearing shall be 
  3.31  recorded.  The commissioner of public safety shall appear and be 
  3.32  represented by the attorney general or through the prosecuting 
  3.33  authority for the jurisdiction involved.  The hearing shall be 
  3.34  held at the earliest practicable date, and in any event no later 
  3.35  than 60 days following the filing of the petition for review.  
  3.36  The petitioner has the burden of proving by a preponderance of 
  4.1   the evidence that the revocation, disqualification, or denial 
  4.2   should be rescinded.  The judicial district administrator shall 
  4.3   establish procedures to ensure efficient compliance with this 
  4.4   subdivision.  To accomplish this, the administrator may, 
  4.5   whenever possible, consolidate and transfer review hearings 
  4.6   among the county courts within the judicial district.  
  4.7      (b) The scope of the hearing shall be limited to the issues 
  4.8   in clauses (1) to (9) (10): 
  4.9      (1) Did the peace officer have probable cause to believe 
  4.10  the person was driving, operating, or in physical control of: 
  4.11     (i) a motor vehicle in violation of section 169.121; or 
  4.12     (ii) a commercial motor vehicle in violation of section 
  4.13  169.1211? 
  4.14     (2) Was the person lawfully placed under arrest for 
  4.15  violation of section 169.121 or 169.1211? 
  4.16     (3) Was the person involved in a motor vehicle accident or 
  4.17  collision resulting in property damage, personal injury or death?
  4.18     (4) Did the person refuse to take a screening test provided 
  4.19  for by section 169.121, subdivision 6? 
  4.20     (5) If the screening test was administered, did the test 
  4.21  indicate an alcohol concentration of 0.10 or more? 
  4.22     (6) At the time of the request for the test, did the peace 
  4.23  officer inform the person of the person's rights and the 
  4.24  consequences of taking or refusing the test as required by 
  4.25  subdivision 2? 
  4.26     (7) Did the person refuse to permit the test? 
  4.27     (8) If the person refused to permit the test, was the 
  4.28  refusal based upon reasonable grounds? 
  4.29     (9) If a test was taken: 
  4.30     (i) by a person driving, operating, or in physical control 
  4.31  of a motor vehicle, did the test results indicate an alcohol 
  4.32  concentration of 0.10 or more at the time of testing or the 
  4.33  presence of a controlled substance listed in schedule I or II, 
  4.34  other than marijuana or tetrahydrocannabinols; or 
  4.35     (ii) by a person driving, operating, or in physical control 
  4.36  of a commercial motor vehicle, did the test results indicate an 
  5.1   alcohol concentration of 0.04 or more at the time of testing? 
  5.2      (9) (10) Was the testing method used valid and reliable and 
  5.3   were the test results accurately evaluated? 
  5.4      (c) It shall be an affirmative defense for the petitioner 
  5.5   to prove that, at the time of the refusal, the petitioner's 
  5.6   refusal to permit the test was based upon reasonable grounds. 
  5.7      (d) Certified or otherwise authenticated copies of 
  5.8   laboratory or medical personnel reports, records, documents, 
  5.9   licenses and certificates shall be admissible as substantive 
  5.10  evidence.  
  5.11     (e) (d) The court shall order that the revocation or 
  5.12  disqualification be either rescinded or sustained and forward 
  5.13  the order to the commissioner of public safety.  The court shall 
  5.14  file its order within 14 days following the hearing.  If the 
  5.15  revocation or disqualification is sustained, the court shall 
  5.16  also forward the person's driver's license or permit to the 
  5.17  commissioner of public safety for further action by the 
  5.18  commissioner of public safety if the license or permit is not 
  5.19  already in the commissioner's possession. 
  5.20     Sec. 4.  Minnesota Statutes 1996, section 626.52, is 
  5.21  amended to read: 
  5.22     626.52 [REPORTING OF SUSPICIOUS WOUNDS AND ALCOHOL- OR 
  5.23  CONTROLLED SUBSTANCE-RELATED ACCIDENTS BY HEALTH PROFESSIONALS.] 
  5.24     Subdivision 1.  [DEFINITION.] As used in this section, 
  5.25  "health professional" means a physician, surgeon, person 
  5.26  authorized to engage in the practice of healing, superintendent 
  5.27  or manager of a hospital, nurse, or pharmacist. 
  5.28     Subd. 2.  [HEALTH PROFESSIONALS REQUIRED TO REPORT.] (a) A 
  5.29  health professional shall immediately report, as provided under 
  5.30  section 626.53, to the local police department or county sheriff 
  5.31  all bullet wounds, gunshot wounds, powder burns, or any other 
  5.32  injury arising from, or caused by the discharge of any gun, 
  5.33  pistol, or any other firearm, which wound the health 
  5.34  professional is called upon to treat, dress, or bandage.  
  5.35     (b) A health professional shall report to the proper police 
  5.36  authorities any wound that the reporter has reasonable cause to 
  6.1   believe has been inflicted on a perpetrator of a crime by a 
  6.2   dangerous weapon other than a firearm as defined under section 
  6.3   609.02, subdivision 6. 
  6.4      (c) A health professional shall immediately report to the 
  6.5   local police department or county sheriff, as provided under 
  6.6   section 626.53, instances in which the professional treats a 
  6.7   person for an injury resulting from a motor vehicle accident 
  6.8   where the professional knows or has reason to know that the 
  6.9   person has ingested alcohol or a controlled substance. 
  6.10     Subd. 3.  [REPORTING BURNS.] A health professional shall 
  6.11  file a written report with the state fire marshal within 72 
  6.12  hours after being notified of a burn injury or wound that the 
  6.13  professional is called upon to treat, dress, or bandage, if the 
  6.14  victim has sustained second- or third-degree burns to five 
  6.15  percent or more of the body, the victim has sustained burns to 
  6.16  the upper respiratory tract or sustained laryngeal edema from 
  6.17  inhaling superheated air, or the victim has sustained a burn 
  6.18  injury or wound that may result in the victim's death.  The 
  6.19  state fire marshal shall provide the form for the report.  
  6.20     Sec. 5.  Minnesota Statutes 1996, section 626.53, 
  6.21  subdivision 1, is amended to read: 
  6.22     Subdivision 1.  [REPORTS TO SHERIFFS AND POLICE CHIEFS.] 
  6.23  The report required by section 626.52, subdivision 2, shall be 
  6.24  made forthwith as soon as possible by telephone or in person, 
  6.25  and shall be promptly supplemented by letter, enclosed in a 
  6.26  securely sealed, postpaid envelope, addressed to the sheriff of 
  6.27  the county in which the patient is treated for the injury or the 
  6.28  wound is examined, dressed, or otherwise treated; except that.  
  6.29  However, if the place in which the patient is treated for such 
  6.30  the injury or the patient's wound is dressed or bandaged be is 
  6.31  in a city of the first, second, or third class, such the report 
  6.32  shall be made and transmitted as herein provided to the chief of 
  6.33  police of such the city instead of the sheriff.  Except as 
  6.34  otherwise provided in subdivision 2, the office of any such the 
  6.35  sheriff and of any such the chief of police shall keep the 
  6.36  report as a confidential communication and shall may not 
  7.1   disclose the name of the person making the same who made it, and 
  7.2   the party making the report shall may not by reason thereof be 
  7.3   subpoenaed, examined, or forced to testify in court as a 
  7.4   consequence of having made such a the report.  
  7.5      Sec. 6.  Minnesota Statutes 1996, section 634.15, 
  7.6   subdivision 2, is amended to read: 
  7.7      Subd. 2.  [TESTIMONY AT TRIAL.] Except in civil 
  7.8   proceedings, including proceedings under section 169.123, an 
  7.9   accused person or the accused person's attorney may request, by 
  7.10  notifying the prosecuting attorney at least ten days before the 
  7.11  trial, that the following persons testify in person at the trial 
  7.12  on behalf of the state:  
  7.13     (a) A person who performed the laboratory analysis or 
  7.14  examination for the report described in subdivision 1, clause 
  7.15  (a); or 
  7.16     (b) A person who prepared the blood sample report described 
  7.17  in subdivision 1, clause (b). 
  7.18     Sec. 7.  [EFFECTIVE DATE.] 
  7.19     Sections 1 to 6 are effective August 1, 1997, and apply to 
  7.20  crimes committed on or after that date.