HF 2804

as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act
  1.2             relating to crimes; expanding the prohibitions of the 
  1.3             driving while intoxicated and criminal vehicular 
  1.4             operation laws to include persons who operate a motor 
  1.5             vehicle with the presence of any amount of a 
  1.6             controlled substance in their bodies; providing a 
  1.7             defense for controlled substance use that complies 
  1.8             with a lawfully issued prescription; requiring the 
  1.9             POST board to develop a plan to train peace officers 
  1.10            in drug recognition techniques; making clarifying 
  1.11            technical changes; amending Minnesota Statutes 1994, 
  1.12            sections 169.121, subdivisions 1 and 2; 169.123, 
  1.13            subdivisions 2, 2a, 4, and 6; and 609.21. 
  1.14  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.15     Section 1.  Minnesota Statutes 1994, section 169.121, 
  1.16  subdivision 1, is amended to read: 
  1.17     Subdivision 1.  [CRIME.] It is a crime for any person to 
  1.18  drive, operate, or be in physical control of any motor vehicle 
  1.19  within this state or upon the ice of any boundary water of this 
  1.20  state under any of the following circumstances: 
  1.21     (a) when the person is under the influence of alcohol; 
  1.22     (b) when the person is under the influence of a controlled 
  1.23  substance, as defined in section 152.01, subdivision 4; 
  1.24     (c) when the person is under the influence of a combination 
  1.25  of any two or more of the elements named in clauses (a), (b), 
  1.26  and (f); 
  1.27     (d) when the person's alcohol concentration is 0.10 or 
  1.28  more; 
  1.29     (e) when the person's alcohol concentration as measured 
  2.1   within two hours of the time of driving is 0.10 or more; or 
  2.2      (f) when the person is knowingly under the influence of any 
  2.3   chemical compound or combination of chemical compounds that is 
  2.4   listed as a hazardous substance in rules adopted under section 
  2.5   182.655 and that affects the nervous system, brain, or muscles 
  2.6   of the person so as to substantially impair the person's ability 
  2.7   to drive or operate the motor vehicle; or 
  2.8      (g) when the person's body contains any amount of a 
  2.9   controlled substance, as defined in section 152.01, subdivision 
  2.10  4. 
  2.11     Sec. 2.  Minnesota Statutes 1994, section 169.121, 
  2.12  subdivision 2, is amended to read: 
  2.13     Subd. 2.  [EVIDENCE.] (a) Upon the trial of any prosecution 
  2.14  arising out of acts alleged to have been committed by any person 
  2.15  arrested for driving, operating, or being in physical control of 
  2.16  a motor vehicle in violation of subdivision 1, the court may 
  2.17  admit evidence of the amount of alcohol or a controlled 
  2.18  substance in the person's blood, breath, or urine as shown by an 
  2.19  analysis of those items. 
  2.20     (b) For the purposes of this subdivision, evidence that 
  2.21  there was at the time an alcohol concentration of 0.04 or more 
  2.22  is relevant evidence in indicating whether or not the person was 
  2.23  under the influence of alcohol. 
  2.24     (c) Evidence of the refusal to take a test is admissible 
  2.25  into evidence in a prosecution under this section or an 
  2.26  ordinance in conformity with it.  
  2.27     (d) If proven by a preponderance of the evidence, it shall 
  2.28  be an affirmative defense to a violation of subdivision 1, 
  2.29  clause (e), that the defendant consumed a sufficient quantity of 
  2.30  alcohol after the time of actual driving, operating, or physical 
  2.31  control of a motor vehicle and before the administration of the 
  2.32  evidentiary test to cause the defendant's alcohol concentration 
  2.33  to exceed 0.10.  Provided, that this evidence may not be 
  2.34  admitted unless notice is given to the prosecution prior to the 
  2.35  omnibus or pretrial hearing in the matter.  
  2.36     (e) If proven by a preponderance of the evidence, it shall 
  3.1   be an affirmative defense to a violation of subdivision 1, 
  3.2   clause (g), that the defendant used the controlled substance 
  3.3   according to the terms of a prescription issued for the 
  3.4   defendant in accordance with sections 152.11 and 152.12.  
  3.5      (f) The foregoing provisions do not limit the introduction 
  3.6   of any other competent evidence bearing upon the question 
  3.7   whether or not the person violated this section, including tests 
  3.8   obtained more than two hours after the alleged violation and 
  3.9   results obtained from partial tests on an infrared 
  3.10  breath-testing instrument.  A result from a partial test is the 
  3.11  measurement obtained by analyzing one adequate breath sample, as 
  3.12  defined in section 169.123, subdivision 2b, paragraph (b). 
  3.13     Sec. 3.  Minnesota Statutes 1994, section 169.123, 
  3.14  subdivision 2, is amended to read: 
  3.15     Subd. 2.  [IMPLIED CONSENT; CONDITIONS; ELECTION OF TEST.] 
  3.16  (a) Any person who drives, operates, or is in physical control 
  3.17  of a motor vehicle within this state or upon the ice of any 
  3.18  boundary water of this state consents, subject to the provisions 
  3.19  of this section and sections 169.121 and 169.1211, to a chemical 
  3.20  test of that person's blood, breath, or urine for the purpose of 
  3.21  determining the presence of alcohol or a controlled substance.  
  3.22  The test shall be administered at the direction of a peace 
  3.23  officer.  The test may be required of a person when an officer 
  3.24  has probable cause to believe the person was driving, operating, 
  3.25  or in physical control of a motor vehicle in violation of 
  3.26  section 169.121 and one of the following conditions exist: 
  3.27     (1) the person has been lawfully placed under arrest for 
  3.28  violation of section 169.121, or an ordinance in conformity with 
  3.29  it; 
  3.30     (2) the person has been involved in a motor vehicle 
  3.31  accident or collision resulting in property damage, personal 
  3.32  injury, or death; 
  3.33     (3) the person has refused to take the screening test 
  3.34  provided for by section 169.121, subdivision 6; or 
  3.35     (4) the screening test was administered and indicated an 
  3.36  alcohol concentration of 0.10 or more.  
  4.1      The test may also be required of a person when an officer 
  4.2   has probable cause to believe the person was driving, operating, 
  4.3   or in physical control of a commercial motor vehicle with the 
  4.4   presence of any alcohol. 
  4.5      (b) At the time a test is requested, the person shall be 
  4.6   informed: 
  4.7      (1) that Minnesota law requires the person to take a test: 
  4.8   (i) to determine if the person is under the influence of alcohol 
  4.9   or; (ii) to determine the presence of a controlled substance; or 
  4.10  , (iii) if the motor vehicle was a commercial motor 
  4.11  vehicle, that Minnesota law requires the person to take a test 
  4.12  to determine the presence of alcohol; 
  4.13     (2) that refusal to take a test is a crime; 
  4.14     (3) if the peace officer has probable cause to believe the 
  4.15  person has violated the criminal vehicular homicide and injury 
  4.16  laws, that a test will be taken with or without the person's 
  4.17  consent; and 
  4.18     (4) that the person has the right to consult with an 
  4.19  attorney, but that this right is limited to the extent that it 
  4.20  cannot unreasonably delay administration of the test. 
  4.21     (c) The peace officer who requires a test pursuant to this 
  4.22  subdivision may direct whether the test shall be of blood, 
  4.23  breath, or urine.  Action may be taken against a person who 
  4.24  refuses to take a blood test only if an alternative test was 
  4.25  offered and action may be taken against a person who refuses to 
  4.26  take a urine test only if an alternative test was offered. 
  4.27     Sec. 4.  Minnesota Statutes 1994, section 169.123, 
  4.28  subdivision 2a, is amended to read: 
  4.29     Subd. 2a.  [REQUIREMENT OF URINE OR BLOOD TEST.] 
  4.30  Notwithstanding subdivision 2, if there is probable cause to 
  4.31  believe there is impairment by that a controlled substance is 
  4.32  present in the person's body that is not subject to testing by a 
  4.33  breath test, a urine or blood test may be required even after a 
  4.34  breath test has been administered.  Action may be taken against 
  4.35  a person who refuses to take a blood test under this subdivision 
  4.36  only if a urine test was offered and action may be taken against 
  5.1   a person who refuses to take a urine test only if a blood test 
  5.2   was offered. 
  5.3      Sec. 5.  Minnesota Statutes 1994, section 169.123, 
  5.4   subdivision 4, is amended to read: 
  5.5      Subd. 4.  [REFUSAL; REVOCATION OF LICENSE.] If a person 
  5.6   refuses to permit a test, none shall be given, but the peace 
  5.7   officer shall report the refusal to the commissioner of public 
  5.8   safety and the authority having responsibility for prosecution 
  5.9   of misdemeanor offenses for the jurisdiction in which the acts 
  5.10  occurred.  However, if a peace officer has probable cause to 
  5.11  believe that the person has violated section 609.21, a test may 
  5.12  be required and obtained despite the person's refusal.  A 
  5.13  refusal to submit to an alcohol concentration test does not 
  5.14  constitute a violation of section 609.50, unless the refusal was 
  5.15  accompanied by force or violence or the threat of force or 
  5.16  violence.  If a person submits to a test and the test results 
  5.17  indicate an alcohol concentration of 0.10 or more, or if a 
  5.18  person was driving, operating, or in physical control of a 
  5.19  commercial motor vehicle and the test results indicate an 
  5.20  alcohol concentration of 0.04 or more, the results of the test 
  5.21  shall be reported to the commissioner of public safety and to 
  5.22  the authority having responsibility for prosecution of 
  5.23  misdemeanor offenses for the jurisdiction in which the acts 
  5.24  occurred. 
  5.25     Upon certification by the peace officer that there existed 
  5.26  probable cause to believe the person had been driving, 
  5.27  operating, or in physical control of a motor vehicle while under 
  5.28  the influence of alcohol or a controlled substance in violation 
  5.29  of section 169.121 and that the person refused to submit to a 
  5.30  test, the commissioner of public safety shall revoke the 
  5.31  person's license or permit to drive, or nonresident operating 
  5.32  privilege, for a period of one year even if a test was obtained 
  5.33  pursuant to this section after the person refused to submit to 
  5.34  testing.  Upon certification by the peace officer that there 
  5.35  existed probable cause to believe the person had been driving, 
  5.36  operating, or in physical control of a commercial motor vehicle 
  6.1   with the presence of any alcohol and that the person refused to 
  6.2   submit to a test, the commissioner shall disqualify the person 
  6.3   from operating a commercial motor vehicle for a period of one 
  6.4   year under section 171.165 and shall revoke the person's license 
  6.5   or permit to drive or nonresident operating privilege for a 
  6.6   period of one year.  Upon certification by the peace officer 
  6.7   that there existed probable cause to believe the person had been 
  6.8   driving, operating or in physical control of a motor 
  6.9   vehicle while under the influence of alcohol or a controlled 
  6.10  substance in violation of section 169.121 and that the person 
  6.11  submitted to a test and the test results indicate an alcohol 
  6.12  concentration of 0.10 or more, the commissioner of public safety 
  6.13  shall revoke the person's license or permit to drive, or 
  6.14  nonresident operating privilege, for:  (1) a period of 90 days; 
  6.15  or (2) if the person is under the age of 21 years, for a period 
  6.16  of six months; or (3) if the person's driver's license or 
  6.17  driving privileges have been revoked within the past five years 
  6.18  under this section or section 169.121, for a period of 180 
  6.19  days.  On certification by the peace officer that there existed 
  6.20  probable cause to believe the person had been driving, 
  6.21  operating, or in physical control of a commercial motor vehicle 
  6.22  with any presence of alcohol and that the person submitted to a 
  6.23  test and the test results indicated an alcohol concentration of 
  6.24  0.04 or more, the commissioner of public safety shall disqualify 
  6.25  the person from operating a commercial motor vehicle under 
  6.26  section 171.165.  
  6.27     If the person is a resident without a license or permit to 
  6.28  operate a motor vehicle in this state, the commissioner of 
  6.29  public safety shall deny to the person the issuance of a license 
  6.30  or permit for the same period after the date of the alleged 
  6.31  violation as provided herein for revocation, subject to review 
  6.32  as hereinafter provided. 
  6.33     Sec. 6.  Minnesota Statutes 1994, section 169.123, 
  6.34  subdivision 6, is amended to read: 
  6.35     Subd. 6.  [HEARING.] (a) A hearing under this section shall 
  6.36  be before a municipal or county district judge, in any county in 
  7.1   the judicial district where the alleged offense occurred.  The 
  7.2   hearing shall be to the court and may be conducted at the same 
  7.3   time and in the same manner as hearings upon pretrial motions in 
  7.4   the criminal prosecution under section 169.121, if any.  The 
  7.5   hearing shall be recorded.  The commissioner of public safety 
  7.6   shall appear and be represented by the attorney general or 
  7.7   through the prosecuting authority for the jurisdiction involved. 
  7.8   The hearing shall be held at the earliest practicable date, and 
  7.9   in any event no later than 60 days following the filing of the 
  7.10  petition for review.  The judicial district administrator shall 
  7.11  establish procedures to ensure efficient compliance with the 
  7.12  provisions of this subdivision.  To accomplish this, the 
  7.13  administrator may, whenever possible, consolidate and transfer 
  7.14  review hearings among the county courts within the judicial 
  7.15  district.  
  7.16     (b) The scope of the hearing shall be limited to the issues 
  7.17  of in clauses (1) to (9): 
  7.18     (1) whether Did the peace officer had have probable cause 
  7.19  to believe the person was driving, operating, or in physical 
  7.20  control of: 
  7.21     (i) a motor vehicle while under the influence of alcohol or 
  7.22  a controlled substance, in violation of section 169.121; or 
  7.23     (ii) a commercial motor vehicle with any presence of 
  7.24  alcohol, and whether in violation of section 169.1211? 
  7.25     (2) Was the person was lawfully placed under arrest for 
  7.26  violation of section 169.121 or 169.1211, or? 
  7.27     (3) Was the person was involved in a motor vehicle accident 
  7.28  or collision resulting in property damage, personal injury or 
  7.29  death, or? 
  7.30     (4) Did the person refused refuse to take a screening test 
  7.31  provided for by section 169.121, subdivision 6, or? 
  7.32     (5) If the screening test was administered and recorded, 
  7.33  did the test record an alcohol concentration of 0.10 or more; 
  7.34  and? 
  7.35     (2) whether (6) At the time of the request for the test, 
  7.36  did the peace officer informed inform the person of the person's 
  8.1   rights and the consequences of taking or refusing the test as 
  8.2   required by subdivision 2; and? 
  8.3      (3) either (a) whether (7) Did the person refused refuse to 
  8.4   permit the test, or (b) whether? 
  8.5      (8) If a test was taken and: 
  8.6      (i) by a person driving, operating, or in physical control 
  8.7   of a motor vehicle, did the test results indicated indicate an 
  8.8   alcohol concentration of 0.10 or more at the time of testing,; 
  8.9   or if a test was taken 
  8.10     (ii) by a person driving, operating, or in physical control 
  8.11  of a commercial motor vehicle and, did the test results 
  8.12  indicated indicate an alcohol concentration of 0.04 or more at 
  8.13  the time of testing; whether? 
  8.14     (9) Was the testing method used was valid and reliable; and 
  8.15  whether were the test results were accurately evaluated.? 
  8.16     (c) It shall be an affirmative defense for the petitioner 
  8.17  to prove that, at the time of the refusal, the petitioner's 
  8.18  refusal to permit the test was based upon reasonable grounds. 
  8.19     (d) Certified or otherwise authenticated copies of 
  8.20  laboratory or medical personnel reports, records, documents, 
  8.21  licenses and certificates shall be admissible as substantive 
  8.22  evidence.  
  8.23     (e) The court shall order that the revocation or 
  8.24  disqualification be either rescinded or sustained and forward 
  8.25  the order to the commissioner of public safety.  The court shall 
  8.26  file its order within 14 days following the hearing.  If the 
  8.27  revocation or disqualification is sustained, the court shall 
  8.28  also forward the person's driver's license or permit to the 
  8.29  commissioner of public safety for further action by the 
  8.30  commissioner of public safety if the license or permit is not 
  8.31  already in the commissioner's possession. 
  8.32     Sec. 7.  Minnesota Statutes 1994, section 609.21, is 
  8.33  amended to read: 
  8.34     609.21 [CRIMINAL VEHICULAR HOMICIDE AND INJURY.] 
  8.35     Subdivision 1.  [CRIMINAL VEHICULAR HOMICIDE.] Whoever 
  8.36  causes the death of a human being not constituting murder or 
  9.1   manslaughter as a result of operating a motor vehicle, 
  9.2      (1) in a grossly negligent manner; 
  9.3      (2) in a negligent manner while under the influence of 
  9.4   alcohol, a controlled substance, or any combination of those 
  9.5   elements; 
  9.6      (3) while having an alcohol concentration of 0.10 or more; 
  9.7   or 
  9.8      (4) while having an alcohol concentration of 0.10 or more, 
  9.9   as measured within two hours of the time of driving; or 
  9.10     (5) in a negligent manner while any amount of a controlled 
  9.11  substance is present in the person's body, 
  9.12  is guilty of criminal vehicular homicide resulting in death and 
  9.13  may be sentenced to imprisonment for not more than ten years or 
  9.14  to payment of a fine of not more than $20,000, or both. 
  9.15     Subd. 2.  [RESULTING IN GREAT BODILY HARM.] Whoever causes 
  9.16  great bodily harm to another, not constituting attempted murder 
  9.17  or assault, as a result of operating a motor vehicle, 
  9.18     (1) in a grossly negligent manner; 
  9.19     (2) in a negligent manner while under the influence of 
  9.20  alcohol, a controlled substance, or any combination of those 
  9.21  elements; 
  9.22     (3) while having an alcohol concentration of 0.10 or more; 
  9.23  or 
  9.24     (4) while having an alcohol concentration of 0.10 or more, 
  9.25  as measured within two hours of the time of driving; or 
  9.26     (5) in a negligent manner while any amount of a controlled 
  9.27  substance is present in the person's body, 
  9.28  is guilty of criminal vehicular operation resulting in great 
  9.29  bodily harm and may be sentenced to imprisonment for not more 
  9.30  than five years or to payment of a fine of not more than 
  9.31  $10,000, or both. 
  9.32     Subd. 2a.  [RESULTING IN SUBSTANTIAL BODILY HARM.] Whoever 
  9.33  causes substantial bodily harm to another, as a result of 
  9.34  operating a motor vehicle, 
  9.35     (1) in a grossly negligent manner; 
  9.36     (2) in a negligent manner while under the influence of 
 10.1   alcohol, a controlled substance, or any combination of those 
 10.2   elements; 
 10.3      (3) while having an alcohol concentration of 0.10 or more; 
 10.4   or 
 10.5      (4) while having an alcohol concentration of 0.10 or more, 
 10.6   as measured within two hours of the time of driving; or 
 10.7      (5) in a negligent manner while any amount of a controlled 
 10.8   substance is present in the person's body, 
 10.9   is guilty of criminal vehicular operation resulting in 
 10.10  substantial bodily harm and may be sentenced to imprisonment for 
 10.11  not more than three years or to payment of a fine of not more 
 10.12  than $10,000, or both. 
 10.13     Subd. 3.  [RESULTING IN DEATH TO AN UNBORN CHILD.] Whoever 
 10.14  causes the death of an unborn child as a result of operating a 
 10.15  motor vehicle, 
 10.16     (1) in a grossly negligent manner; 
 10.17     (2) in a negligent manner while under the influence of 
 10.18  alcohol, a controlled substance, or any combination of those 
 10.19  elements; 
 10.20     (3) while having an alcohol concentration of 0.10 or more; 
 10.21  or 
 10.22     (4) while having an alcohol concentration of 0.10 or more, 
 10.23  as measured within two hours of the time of driving; or 
 10.24     (5) in a negligent manner while any amount of a controlled 
 10.25  substance is present in the person's body, 
 10.26  is guilty of criminal vehicular operation resulting in death to 
 10.27  an unborn child and may be sentenced to imprisonment for not 
 10.28  more than ten years or to payment of a fine of not more than 
 10.29  $20,000, or both.  A prosecution for or conviction of a crime 
 10.30  under this subdivision is not a bar to conviction of or 
 10.31  punishment for any other crime committed by the defendant as 
 10.32  part of the same conduct. 
 10.33     Subd. 4.  [RESULTING IN INJURY TO UNBORN CHILD.] Whoever 
 10.34  causes great bodily harm to an unborn child who is subsequently 
 10.35  born alive, as a result of operating a motor vehicle, 
 10.36     (1) in a grossly negligent manner; 
 11.1      (2) in a negligent manner while under the influence of 
 11.2   alcohol, a controlled substance, or any combination of those 
 11.3   elements; 
 11.4      (3) while having an alcohol concentration of 0.10 or more; 
 11.5   or 
 11.6      (4) while having an alcohol concentration of 0.10 or more, 
 11.7   as measured within two hours of the time of driving; or 
 11.8      (5) in a negligent manner while any amount of a controlled 
 11.9   substance is present in the person's body, 
 11.10  is guilty of criminal vehicular operation resulting in injury to 
 11.11  an unborn child and may be sentenced to imprisonment for not 
 11.12  more than five years or to payment of a fine of not more than 
 11.13  $10,000, or both.  A prosecution for or conviction of a crime 
 11.14  under this subdivision is not a bar to conviction of or 
 11.15  punishment for any other crime committed by the defendant as 
 11.16  part of the same conduct. 
 11.17     Subd. 4a.  [AFFIRMATIVE DEFENSE.] It shall be an 
 11.18  affirmative defense to a charge under subdivisions 1, clause 
 11.19  (5); 2, clause (5); 2a, clause (5); 3, clause (5); or 4, clause 
 11.20  (5), that the defendant used the controlled substance according 
 11.21  to the terms of a prescription issued for the defendant in 
 11.22  accordance with sections 152.11 and 152.12. 
 11.23     Subd. 5.  [DEFINITION.] For purposes of this section, 
 11.24  "motor vehicle" has the meaning given in section 609.52, 
 11.25  subdivision 1.  
 11.26     Sec. 8.  [DRUG RECOGNITION TRAINING FOR PEACE OFFICERS; 
 11.27  REPORT.] 
 11.28     (a) For purposes of this section, the following terms have 
 11.29  the meanings given them: 
 11.30     (1) "drug" has the meaning given in Minnesota Statutes, 
 11.31  section 151.01, subdivision 5; 
 11.32     (2) "drug recognition expert" means a peace officer who is 
 11.33  certified by the international association of chiefs of police 
 11.34  to conduct the twelve-step drug evaluation and classification 
 11.35  process; and 
 11.36     (3) "twelve-step drug evaluation and classification process"
 12.1   means the systematic, standardized investigative procedure 
 12.2   defined by the National Highway Traffic Safety Administration 
 12.3   that is used to determine whether a driver is impaired, whether 
 12.4   the impairment relates to drugs or a medical condition and, if 
 12.5   drug related, the category of drugs likely to have caused the 
 12.6   impairment. 
 12.7      (b) The board of peace officer standards and training, in 
 12.8   consultation with the department of public safety, the Minnesota 
 12.9   state patrol, the Minnesota chiefs of police, the Minnesota 
 12.10  sheriffs' association, and the National Highway Traffic Safety 
 12.11  Administration, shall develop a plan for requiring drug 
 12.12  recognition training for peace officers.  The goals of the plan 
 12.13  are: 
 12.14     (1) to ensure that peace officers employed in traffic 
 12.15  patrol activities are educated about the need to use a certified 
 12.16  drug recognition expert to evaluate a person whom the officer 
 12.17  reasonably suspects has been driving while impaired by drugs; 
 12.18     (2) to ensure that a sufficient number of peace officers 
 12.19  are certified as drug recognition experts; and 
 12.20     (3) to ensure that drug recognition experts are available 
 12.21  statewide at all time periods to evaluate suspected 
 12.22  drug-impaired drivers. 
 12.23     (c) To accomplish paragraph (b), clause (1), the plan must 
 12.24  consider the feasibility of making a basic level of drug 
 12.25  recognition training a mandatory requirement for all new peace 
 12.26  officer candidates and an in-service option for current peace 
 12.27  officers. 
 12.28     (d) To the extent practicable, the plan must present 
 12.29  alternative training requirement scenarios and timetables 
 12.30  associated with different levels of training resources.  The 
 12.31  board shall report this plan to the legislature by January 16, 
 12.32  1997. 
 12.33     Sec. 9.  [EFFECTIVE DATE.] 
 12.34     Sections 1 to 7 are effective August 1, 1996, and apply to 
 12.35  acts committed on or after that date.  Section 8 is effective 
 12.36  the day following final enactment.