February 15, 2008
SUMMARY AND EXPLANATION OF THE THREE LEGISLATIVE PROPOSALS OF THE DRUNK DRIVING WORK GROUP
By: James J. Fazzalaro, Principal Analyst
Janet Kaminski Leduc, Associate Attorney
Kevin McCarthy, Principal Analyst
You asked for a brief summary of the three legislative proposals brought forward by the ad hoc drunk driving work group. Our summaries are based on the working drafts of the three bills considered by the work group.
All three of the working group proposals are effective October 1, 2008.
PROPOSAL 1 — AN ACT CONCERNING THE DEPARTMENT OF MOTOR VEHICLES AND ADMINISTRATIVE PER SE PROCEDURES AND VIOLATIONS (LCO 158)
By law, it is a criminal violation to operate a motor vehicle, on the highway or elsewhere, (1) while under the influence of alcohol, drugs, or both or (2) with an “elevated blood alcohol content.” Someone is considered to have an elevated blood alcohol content when the ratio of alcohol in the blood is .08% or more, by weight, or, if under age 21, the ratio of alcohol in the blood is .02% or more. Anyone who receives a driver's license in Connecticut is deemed by law to have given his “implied consent” to a chemical test of his blood, breath, or urine to determine the presence of alcohol or drugs.
A police officer who has arrested someone for driving under the influence of alcohol or drugs and advised him of his constitutional rights can request the person to submit to a blood, breath, or urine test. If the person either (1) refuses to take the test or (2) takes the test and the results show an elevated blood alcohol content, the police officer sends the arrest report and test results to the Department of Motor Vehicles and the person is subject to an administrative license suspension. This is called an “administrative per se” license suspension. This administrative license suspension operates entirely independently of the procedures for prosecuting the accused person on the criminal charge.
This bill makes several changes in both the criminal and administrative per se laws. They are explained below.
Determination of Prior Offense
Current law specifies that someone commits a second or subsequent offense for driving under the influence of alcohol or drugs when the current offense occurs no more than 10 years after the date of an arrest that resulted in a previous conviction for a violation of the same statutory provision. The bill increases this “lookback” period for determining any prior offense from 10 to 55 years. The expanded lookback period applies to both the criminal law and the administrative per se law. The bill directs the motor vehicle commissioner to maintain a record of any conviction occurring on or after October 1, 2008 for a period of 55 years.
Elevated Blood Alcohol Content
The bill expands the definition of “elevated blood alcohol content” to include operating a commercial motor vehicle with a blood-alcohol level of .04% or more. This applies to both the criminal violation and the administrative per se license suspension process. Thus, under the bill the presumptive level for determining if someone is driving a commercial motor vehicle while under the influence of alcohol is reduced from .08% to .04%.
Admissibility of Chemical Test Results and Administration of Second Chemical Test
Currently, in order for the results of a chemical test to be admissible in a criminal prosecution, the law requires a second test of the same type to be given to the accused person at least 30 minutes after the first test. The law also requires a true copy of the report to be mailed or personally delivered to the defendant within 24 hours or by the end of the next regular business day after the result is known. If the results of the additional test show the person's blood-alcohol level to be .12% or less and the result is higher that the result of the first test, evidence must be presented that shows that the test results accurately indicate the blood alcohol content at the time of the alleged offense. This is known as “relation back.” The bill (1) decreases the minimum time between the first and second tests from 30 minutes to 10 minutes and (2) lowers the blood-alcohol test result that triggers the relation back determination from .12% to .10%. It also increases the period for delivery of a copy of the test result to not longer than three business days after the result is known.
The bill makes the same change from .12% to .10% in the relation back provisions of the administrative per se law.
Administrative Per Se Suspension Hearing—Elimination of Probable Cause Consideration
Currently, someone who has been suspended by the DMV for failing a blood-alcohol test or for refusing to take the test has one week from receiving the suspension notice from DMV to request an administrative hearing. The hearing must be limited to a determination of these four specific issues:
1. Did the police officer have probable cause to arrest the person for operating under the influence of alcohol, drugs, or both?
2. Was the person placed under arrest?
3. Was the person operating the motor vehicle?
4. Did the person refuse to take the chemical test or did he take such a test, commenced within two hours of the time of operation, and did the test results indicate an elevated blood alcohol level?
If the commissioner makes a negative finding for any of these four questions he must reinstate the person's license. If all are found in the affirmative the administrative suspension is upheld.
The bill eliminates consideration of whether there was probable cause for the arrest from the hearing process. Instead, it requires only that the arresting officer's report to the DMV contain the officer's certification that there was probable cause to make the arrest.
Administrative Per Se—Hospital Blood Test Results
Currently, if a police officer obtains the results of a chemical analysis of a blood sample from a driver involved in an accident who suffers or allegedly suffers physical injury, the results are submitted to DMV for an administrative per se suspension proceeding similar to the normal procedure following an arrest not involving hospital treatment. The bill expands the circumstances from which such blood test results can be used to include situations where the police officer determines that the person requires treatment or observation at a hospital, even if an injury is not apparent.
Administrative Per Se Process Changes
The bill makes several changes to the administrative per se suspension process. Currently, the commissioner may grant one continuance of the hearing for a period of no longer than 15 days. If the commissioner fails to render a decision within 30 days from the date the person received notice of arrest from the police officer (or 45 days if a continuance is granted), the commissioner must reinstate the person's license or nonresident operating privilege. Notwithstanding this reinstatement, the commissioner may render a decision within the following two days suspending the license or privilege.
The bill gives the commissioner 60 instead of 30 days to render a decision, eliminates any limitation on continuances that may be granted during that period, and eliminates the reinstatement consequence should the commissioner fail to render his decision within the prescribed period. It does not specify what occurs should the commissioner not make a decision within 60 days, but one possible outcome is that the suspension would go into effect until a final decision is made.
Currently, the arresting officer's report must be submitted to the DMV in written form within three business days. The bill, instead, (1) allows these reports to be submitted as an electronic record according to procedures the commissioner prescribes, including electronic signatures, and (2) gives the police five rather than three business days to submit the report.
PROPOSAL 2 — AN ACT PROHIBITING OPEN ALCOHOLIC BEVERAGE CONTAINERS IN MOTOR VEHICLES (LCO 74)
The bill makes it illegal for anyone to possess an open alcoholic beverage container in the passenger area of a motor vehicle while the vehicle is on a Connecticut highway or a highway right-of-way.
A first offense is an infraction that is subject to a fine of $90. A second or subsequent offense is a violation, not an infraction, and a court appearance is required. The fine is $200 for a second offense and $500 for a subsequent offense.
The bill does not apply to passengers in a:
1. motor vehicle designed, maintained, and primarily used for the transportation of people for hire (e.g., buses, taxicabs, limousines);
2. the living quarters of a recreational vehicle (e.g., campers, camp trailers, and motor homes); and
3. a privately-owned motor vehicle driven by a person in his or her course of usual employment who is transporting the passengers at his or her employer's direction.
Open Alcoholic Beverage Container
The bill defines an “open alcoholic beverage container” as a bottle, can, or other receptacle (1) that contains any amount of an alcoholic beverage and (2) that is open or has a broken seal, or the contents of which are partially removed.
An “alcoholic beverage” includes the four varieties of liquor defined in law (alcohol, beer, spirits, and wine) and every liquid or solid, containing alcohol, spirits, wine, or beer and capable of being consumed by a human being for beverage purposes. It does not include any liquid or solid containing less than 0.5% of alcohol by volume.
The bill defines a vehicle's “passenger area” as (1) the area designed to seat the operator of and any passenger in a motor vehicle while it is being operated on a highway or (2) any area that is readily accessible to the operator or passenger. But the bill specifies that in a motor vehicle that is not equipped with a trunk, “passenger area” does not include a locked glove compartment, the area behind the last upright seat, or an area not normally occupied by the operator or passengers in such motor vehicle.
A “highway” includes any state or other public highway, road, street, avenue, alley, driveway, parkway, or place under the control of the state or any political subdivision of the state, dedicated, appropriated, or opened to public travel or other use.
Federal Open Container Law Requirements
In 1998 Congress enacted legislation intended to increase the likelihood that states would adopt laws prohibiting open containers of alcohol in motor vehicles (23 U.S.C. § 154). Under the federal law, states must have adopted laws meeting certain criteria by October 1, 2000 or else undergo a diversion of a small percentage of federal highway construction grant funds to their highway safety grant programs. The states do not lose the funds; they are redirected from the construction programs to the safety grant program, including alcohol impaired driving enforcement.
To comply with the federal mandate and thus avoid the penalty transfer, a state's open container law must:
1. prohibit both possession of any open alcoholic beverage container and consumption of any alcoholic beverage;
2. cover the passenger area of any motor vehicle, including unlocked glove compartments and any other areas of the vehicle that are readily accessible to the driver or passengers while in their seats;
3. apply to containers with any measurable amount of alcoholic beverage in them;
4. apply to all open alcoholic beverage containers and all alcoholic beverages, including beer, wine, and spirits that contain 0. 5% or more of alcohol by volume (thus including 3. 2% beer);
5. apply to all vehicle occupants except passengers of vehicles designed, maintained, or used primarily for transporting people for compensation (i.e., buses, taxicabs, and limousines) or the living quarters of motor homes;
6. apply to vehicles on a public highway or the right-of-way (road shoulder) of a public highway; and
7. require primary enforcement, rather than requiring probable cause that another violation had been committed before allowing enforcement of the open container law (i.e., secondary enforcement).
Federal regulations define a vehicle's passenger area as the area designed to seat the driver and passengers while the motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while seated, including the glove compartment. An open container is defined as any bottle, can, or other receptacle that (1) contains any amount of alcoholic beverage and (2) is open or has a broken seal or the contents of which are partially removed. Alcoholic beverages include (1) beer, ale, and other similarly fermented beverages containing 0. 5% or more alcohol by volume brewed or produced in whole or part from malt or any malt substitute; (2) wine of not less than 0. 5% alcohol by volume; or (3) distilled spirits known as ethyl alcohol, ethanol, or spirits of wine in any form including any dilutions or mixtures (23 CFR § 1270).
The federal regulations specify that a qualifying open container law may contain an exception allowing an open alcohol container to be in a locked glove compartment or placed behind the last upright seat or in an area not normally occupied by the driver or passengers in a vehicle that is not equipped with a trunk.
PROPOSAL 3 — AN ACT CONCERNING THE OFFENSE OF DRIVING UNDER THE INFLUENCE AND IGNITION INTERLOCK DEVICES (LCO 75)
This bill modifies the driver's license suspension penalties for the crime of driving under the influence of alcohol or drugs (DUI). (There are separate suspension penalties under the administrative per se law.) Under current law, in addition to imprisonment and a fine, a person convicted of DUI for the first time must have his or her license or nonresident operating privilege suspended for one year. The bill instead requires that the person's license or privilege be suspended for (1) 18 months or (2) six months, followed by a one-year period in which he or she cannot drive a motor vehicle unless it is equipped with a functioning, DMV-approved ignition interlock device. These devices are designed to prevent a person from driving when they detect a pre-set blood-alcohol level in the driver's breath sample.
The bill requires the driver to pay for the device and meet the existing DMV regulations regarding the device's calibration, installation, and maintenance. These regulations currently apply when a person is ordered to install a device after having been convicted of a second DUI offense within 10 years.
The bill prohibits the commissioner from reinstating a first time offender's license who has applied for reinstatement and use of an ignition interlock until the person submits evidence of participation in a treatment program the commissioner approves. By law, anyone convicted of DUI, even for a first time, must complete a treatment program as a prerequisite for reinstatement. However, these treatment programs typically last longer than six months so a first offender is likely not to have completed the program by the time the six-month suspension is finished. The bill allows a first offender to qualify for license reinstatement and the interlock without having completed his treatment program as long as he shows he is in the process of completing it.
By law, a person convicted of a third or subsequent DUI offense within 10 years must have his license or privilege permanently revoked. But after six years following the revocation, he or she can petition the DMV commissioner for a reversal or reduction of the revocation. If the commissioner grants the petition, the device must be installed and maintained in the driver's vehicles for 10 years from the date of the revocation. The bill instead requires that the device be maintained for four years from the date of the reversal or reduction of the revocation, whenever that actually occurs.