Delaware Statute | Act | Code |Motor Vehicles| US Code - US Statute

A person may not drive a motor vehicle on a highway unless the vehicle is equipped with fenders, mud flaps, or other anti-spray devices adequate to prevent the vehicle from being a hazard to other users of the highway.

Repealed or Renumbered

A report made in accordance with this chapter may not be used in evidence in a criminal or civil action arising out of the accident that is the subject of the report.

Repealed or Renumbered

A person may not sell a recreational motor vehicle manufactured after 1990 or rent a recreational motor vehicle to another if the vehicle is equipped with a propane stove or propane heating device unless the vehicle is also equipped with a propane gas detector.

Repealed or Renumbered

A person convicted of violating Section 28.35.251 or 28.35.253 is guilty of an infraction.

Repealed or Renumbered

A person, without the right to do so, may not tamper with a vehicle, set or attempt to set a vehicle in motion, or damage a part or component of a vehicle.

Repealed or Renumbered

Article 06. CERTAIN OFFENSES RELATING TO MINORS

All law enforcement officers in this state and employees of the Department of Public Safety designated by that department's commissioner shall enforce this title and regulations adopted under this title. The state troopers shall advise and instruct all other law enforcement officers in the state concerning the requirements of this title and regulations adopted under this title.

A driver of a vehicle may not refuse to obey a lawful order or direction of a peace officer, fire fighter, or authorized flagman regulating and directing traffic. A peace officer or fire fighter regulating or directing traffic shall, upon request of a driver, produce evidence of authorization unless the officer or fire fighter is wearing in view the badge or uniform of office.

Repealed or Renumbered

A person whose license or permit to operate or drive a motor vehicle has been revoked under Section 28.15.165 or 28.15.181 shall surrender the license or permit to the department on receipt of notice of the revocation. After the period of revocation has expired, the person may make application for a new license as provided by law.

An officer or person who knowingly makes or subscribes a false report concerning an investigation of a vehicle or damage or injury caused by a vehicle, as provided in this chapter, is guilty of unsworn falsification. A person who destroys, obliterates, conceals or removes, or who aids, abets, or assists in the destruction, obliteration, concealment, or removal from a vehicle, of evidence showing or tending to show that the vehicle collided with a person or property, is punishable by a fine of not more than $500, or by imprisonment for not more than six months, or by both.

Article 05. MISCELLANEOUS OFFENSES

(a) The Department of Public Safety shall prepare and upon request supply to police departments, coroners, local peace officers, garages, and other suitable agencies or individuals, forms for accident reports. The written reports by persons involved in accidents and by investigating officers shall require sufficiently detailed information to disclose the cause of the accident, conditions existing at the time of the accident, and the persons and vehicles involved.

(b) Every accident report required to be made in writing shall be made on the appropriate form approved by the Department of Public Safety and must contain all of the information required unless not available.

(a) A motorcycle helmet may not be manufactured or sold in the state unless the helmet conforms to standards established by regulation by the commissioner of public safety. The regulations must provide for helmets that allow normal peripheral vision and hearing and minimize neck injuries to the wearer potentially caused by the helmet. The regulations shall be adopted under the provisions of Section 44.62 (Administrative Procedure Act).

(b) A person who is 18 years of age or older may not be required to wear a helmet while operating a motorcycle if the person is the holder of a license or endorsement to operate a motorcycle.

(a) Whenever the driver of a vehicle is physically incapable of giving an immediate notice of an accident as required in Section 28.35.080 and there was another occupant in the vehicle at the time of the accident capable of doing so, the occupant shall make or give the notice not given by the driver.

(b) Whenever the driver is physically incapable of making a written report of an accident as required in Section 28.35.080 and the driver is not the owner of the vehicle, then the owner of the vehicle involved in the accident shall within five days after learning of the accident make the report not made by the driver.

(a) A person who drives a motor vehicle in the state in a manner that creates a substantial and unjustifiable risk of harm to a person or to property is guilty of reckless driving. A substantial and unjustifiable risk is a risk of such a nature and degree that the conscious disregard of it or a failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

(b) A person convicted of reckless driving is guilty of a misdemeanor and is punishable by a fine of not more than $1,000 or by imprisonment for not more than one year or by both.

(c) Lawfully conducted automobile, snowmobile, motorcycle, or other motor vehicle racing or exhibition events are not subject to the provisions of this section.

(a) A person may not drive a motor vehicle loaded with sand, gravel, rock, or similar materials on a highway unless

(1) the load is contained or confined to prevent the load from dropping, shifting, leaking, or escaping, except that sand or other substances may be dropped, sprinkled, or sprayed for the purpose of cleaning or maintaining the highway or providing traction; and

(2) the load is subjected to treatment by methods, approved by the commissioner of public safety by regulation, designed to settle the load or remove loose material before the vehicle is driven on the highway.

(b) If a cover is used to contain or confine a load being driven on a highway, the cover shall be securely fastened to prevent the cover from becoming loose or detached, or from being a hazard to other users of the highway.

(a) A person may not knowingly make a false affidavit, statement, or representation, or affirm falsely with respect to a matter or fact required to be set out under this title, nor may the person use a name other than the person's true name. A person convicted of violating this section is guilty of unsworn falsification and is punishable as prescribed by law.

(b) A person who has a certification, registration, title, license, or other form issued under this title, or who has applied for a certification, registration, license, or other form, and who changes the person's name or moves from the address shown on the department's records or forms, shall notify the department in writing of the change in name or address within 30 days.

(a) A person in possession of a motor vehicle under an agreement in writing that requires the person to return the vehicle to a particular place or at a particular time who refuses or wilfully neglects to return it to the place and at the time specified in the agreement in writing with the intent to deprive the owner of the vehicle or to convert it to the person's own use, or who secretes, converts, sells, or attempts to sell the vehicle or any part of it is, upon conviction, punishable by imprisonment for not more than five years, or by a fine of not more than $1,000, or by both.

(b) In this section, 'wilfully neglects' means omits, fails, or forbears, with a conscious purpose to injure, or without regard for the rights of the owner, or with indifference whether a wrong is done the owner or not.

Article 02. OFFENSES RELATED TO ALCOHOL, INHALANTS, AND CONTROLLED SUBSTANCES; IMPLIED CONSENT

(a) A person may not purposely obstruct or block traffic on any roadway by any means. However, a service vehicle such as a bus, garbage truck, tow truck, or ambulance may make brief stops on a roadway, which stops on the roadway are necessary in the performance of its services.

(b) A person operating a motor vehicle at any time on a two-lane roadway outside of an urban area shall pull the motor vehicle off the roadway at the first opportunity to pull over safely if there are five or more motor vehicles immediately following that motor vehicle. A person operating a motor vehicle who violates this subsection is guilty of an infraction as described in Section 28.40.050 (d) and shall be punished by a fine of at least $100.

(a) The driver of a vehicle that approaches a stationary emergency, fire, or law enforcement vehicle displaying flashing emergency lights on a highway or roadway

(1) with two or more lanes traveling in the same direction, unless otherwise directed by law enforcement or emergency personnel, shall safely vacate the lane closest to the emergency, fire, or law enforcement vehicle; or

(2) unless otherwise directed by law enforcement or emergency personnel, shall slow to a reasonable and prudent speed considering the traffic, roadway, and weather conditions.

(b) A person who violates this section is guilty of

(1) a class A misdemeanor if personal injury results from the person's failure to vacate the lane or slow as required by this section;

(2) an infraction, under circumstances other than in (1) of this subsection.

(1) 'alcohol safety action program' means a program for alcohol and substance abuse screening, referral, and monitoring developed and implemented or approved by the Department of Health and Social Services under Section 47.37;

(2) 'controlled substance' has the meaning given in Section 28.33.190 .

Article 03. RECKLESS AND NEGLIGENT DRIVING

(a) A person who gives information in reports as required in Section 28.35.080 knowing or having reason to believe that the information is false is punishable by a fine of not more than $1,000, or by imprisonment for not more than one year, or by both.

(b) The department shall suspend the license or permit to drive and the nonresident operating privileges of a person failing to report an accident as provided in Section 28.35.080 until the report is filed. The department may extend the suspension by not more than 30 days. A person failing to make a report as required in Section 28.35.080 is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $200, or by imprisonment for not more than 90 days, or by both.

A person may not make or have made repairs to damage or injury to a motor vehicle that could have been caused by collision with a person or property without first notifying the Department of Public Safety, chief of police, or in the absence of these, the nearest police officer or other peace officer, who shall immediately examine the vehicle and make a full report subscribed by the person in whose custody the vehicle then is. A copy of the report shall be mailed or delivered to the Department of Public Safety. If no official is within 10 miles of the place where the vehicle is brought for repair, then no notice or examination is required. If there is ground for suspecting that the vehicle was involved in a collision with a person, the vehicle shall be impounded at the expense of the owner, for which the custodian shall have a lien, and shall be accessible only to officers detailed to the investigation of the case until released. If, however, there is no reason to suspect that the damage to the motor vehicle was caused by collision with a person or property, the repair of the vehicle may be authorized by the officer in charge of the investigation at any time after the expiration of 24 hours thereafter.

(a) A person may not rent a motor vehicle to a person unless the person renting the vehicle is properly licensed under this title or, if a nonresident, the person is properly licensed under the laws of the jurisdiction of a person's residence.

(b) A person may not rent a motor vehicle until the person has inspected the license of the person to whom the vehicle is to be rented, and has verified the identification of the licensee.

(c) Every person renting a motor vehicle shall keep a record of the registration number of the vehicle rented, the name, address and license number of the person to whom the vehicle is rented, and the date and place when and where the license of the intended driver was issued. The record shall be open to inspection by a peace officer or employee of the Department of Public Safety acting in an official capacity.

(d) Every person renting a motor vehicle shall comply with the financial responsibility requirements of this title.

(e) A person who rents motor vehicles to others shall provide child safety devices in sufficient quantity that all persons to whom the vehicles are to be rented can comply with the requirements of Section 28.05.095.

(a) An operator of a vehicle involved in an accident resulting in injury to or death of a person shall immediately stop the vehicle at the scene of the accident or as close to it as possible and return to, and remain at, the scene until the operator has fulfilled the requirements of Section 28.35.060 .

(b) The operator of a vehicle involved in an accident resulting only in damage to a vehicle driven or attended by a person shall immediately stop the vehicle at the scene of the accident or as close to it as possible and return to, and remain at, the scene of the accident until the operator has fulfilled the requirements of Section 28.35.060 .

(c) The operator of a vehicle involved in an accident resulting only in damage to a vehicle that is unattended shall immediately stop at the scene of the accident and undertake reasonable means and efforts to locate and notify the operator or owner of the damaged unattended vehicle of the name and address of the operator and owner of the vehicle striking the unattended vehicle. If the operator or owner of the unattended vehicle cannot be located then the operator shall leave in a conspicuous place in or upon the unattended vehicle, a writing stating the name and address of the operator and of the owner of the vehicle that struck the unattended vehicle and setting forth a statement of the circumstances of the accident.

(a) A person who drives a motor vehicle in the state in a manner that creates an unjustifiable risk of harm to a person or to property and who, as a result of the creation of the risk, actually endangers a person or property is guilty of negligent driving. An unjustifiable risk is a risk of such a nature and degree that a failure to avoid it constitutes a deviation from the standard of care that a reasonable person would observe in the situation. Proof that a defendant actually endangered a person or property is established by showing that, as a result of the defendant's driving,

(1) an accident occurred;

(2) a person, including the defendant, took evasive action to avoid an accident;

(3) a person, including the defendant, stopped or slowed down suddenly to avoid an accident; or

(4) a person or property, including the defendant or the defendant's property, was otherwise endangered.

(b) The offense of negligent driving is a lesser offense than, and included in, the offense of reckless driving, and a person charged with reckless driving may be convicted of the lesser offense of negligent driving.

(c) A person convicted of negligent driving is guilty of an infraction as provided under Section 28.40.050 .

(d) Lawfully conducted automobile, snowmobile, motorcycle or other motor vehicle racing or exhibition events are not subject to the provisions of this section.

Article 04. DUTIES FOLLOWING ACCIDENTS

(a) The operator of a vehicle involved in an accident resulting in injury to or death of a person or damage to a vehicle that is driven or attended by a person shall give the operator's name, address, and vehicle license number to the person struck or injured, or the operator or occupant, or the person attending, and the vehicle collided with and shall render to any person injured reasonable assistance, including making of arrangements for attendance upon the person by a physician and transportation, in a manner that will not cause further injury, to a hospital for medical treatment if it is apparent that treatment is desirable. Under no circumstances is the giving of assistance or other compliance with the provisions of this paragraph evidence of the liability of an operator for the accident.

(b) Except as provided in (c) of this section, a person who fails to comply with any of the requirements of this section is, upon conviction, punishable by imprisonment for not more than one year, or by a fine of not more than $500, or by both. This provision does not apply to a person incapacitated by the accident to the extent that the person is physically incapable of complying with the requirement.

(c) A person who fails to comply with a requirement of this section regarding assisting an injured person is, upon conviction, punishable by imprisonment for not more than 10 years, or by a fine of not more than $10,000, or by both. This provision does not apply to a person incapacitated by the accident to the extent that the person is physically incapable of complying with the requirement.

(a) If a person is under arrest for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle, aircraft, or watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, and that arrest results from an accident that causes death or physical injury to another person, a chemical test may be administered without the consent of the person arrested to determine the amount of alcohol in that person's breath or blood or to determine the presence of controlled substances in that person's blood and urine.

(b) A person who is unconscious or otherwise in a condition rendering that person incapable of refusal is considered not to have withdrawn the consent provided under Section 28.33.031 (a) or Section 28.35.031 (a) or (g) and a chemical test may be administered to determine the amount of alcohol in that person's breath or blood or to determine the presence of controlled substances in that person's blood and urine. A person who is unconscious or otherwise incapable of refusal need not be placed under arrest before a chemical test may be administered.

(c) If a chemical test is administered to a person under (a) or (b) of this section, that person is not subject to the penalties for refusal to submit to a chemical test provided by Section 28.35.032 .

(a) The driver of a vehicle involved in an accident resulting in bodily injury to or death of a person or total property damage to an apparent extent of $2,000 or more shall immediately by the quickest means of communication give notice of the accident to the local police department if the accident occurs within a municipality, otherwise to the Department of Public Safety.

(b) The driver of a vehicle involved in an accident resulting in bodily injury to or death of a person or total property damage to an apparent extent of $2,000 or more shall, within 10 days after the accident, forward a written report of the accident to the Department of Administration and to the local police department if the accident occurs within a municipality. A report is not required under this subsection if the accident is investigated by a peace officer.

(c) The form of accident report required under (b) of this section can be obtained from any local police department or the Department of Public Safety.

(d) The Department of Administration may require the driver of a vehicle involved in an accident of which a report must be made to file supplemental reports whenever the original report is insufficient in the opinion of that department.

(e) Every law enforcement officer who, in the regular course of duty, investigates a motor vehicle accident for which a report must be made, either at the time of and at the scene of the accident or thereafter by interviewing the participants or witnesses, shall, within 24 hours after completing the investigation, forward a written report of the accident to the Department of Administration.

(f) An accident report is not required under this section from a person who is physically incapable of making the report during the period of incapacity.

(a) It is unlawful to operate a motor vehicle with studded tires or tires with chains attached on a paved highway or road from May 1 through September 15, inclusive, north of 60 North Latitude and from April 15 through September 30, inclusive, south of 60 North Latitude, except that at any latitude on a paved portion of the Sterling Highway a person may not operate a motor vehicle with studded tires or tires with chains attached from May 1 through September 15, inclusive. The commissioner of public safety shall by emergency order provide for additional lawful operating periods based on unusual seasonal or weather conditions. An emergency order adopted under this section is not subject to Section 44.62 (Administrative Procedure Act). Upon application, a special individual traction permit may be issued by the Department of Administration allowing the operation of a motor vehicle with studded tires or chains at any time at the discretion of the vehicle owner. The fee for the special individual permit is one-third of the biennial registration fee applicable to that class of vehicle under Section 28.10.421 . The department may provide an appropriate sticker or other device identifying the vehicle to which the permit applies.

(b) In this section 'studded tire' means a tire with metal studs or spikes imbedded in the periphery of the tire surface, and protruding not more than one-fourth inch from the tire surface.

(a) A person may not drive a motor vehicle on a highway or vehicular way or area, when there is an open bottle, can, or other receptacle containing an alcoholic beverage in the passenger compartment of the vehicle, except as provided in (b) of this section.

(b) Except as provided in Section 28.33.130 , a person may transport an open bottle, can, or other receptacle containing an alcoholic beverage

(1) in the trunk of a motor vehicle;

(2) on a motor driven cycle, or behind the last upright seat in a motor home, station wagon, hatchback, or similar trunkless vehicle, if the open bottle, can, or other receptacle is enclosed within another container;

(3) behind a solid partition that separates the vehicle driver from the area normally occupied by passengers; or

(4) if the open bottle, can, or other receptacle is in the possession of a passenger in a motor vehicle for which the owner receives direct monetary compensation and that has a capacity of 12 or more persons.

(c) In this section

(1) 'alcoholic beverage' has the meaning given in Section 04.21.080 (b);

(2) [Repealed, Sec. 29 ch 3 SLA 1992].

(3) 'motor vehicle' means a vehicle for which a driver's license is required;

(4) 'open' includes having a broken seal;

(5) 'passenger compartment' means the area normally occupied by the driver and passengers and includes a utility or glove compartment accessible to the driver or a passenger while the motor vehicle is being operated.

(d) A person who violates (a) of this section is guilty of an infraction.

(a) Upon receiving notice from the court of the time and place set for a hearing under Section 28.35.036 , the state shall provide to every person who has an ascertainable ownership or security interest in the motor vehicle, aircraft, or watercraft written notice that includes

(1) a description of the motor vehicle, aircraft, or watercraft;

(2) the time and place of the forfeiture hearing;

(3) the legal authority under which the motor vehicle, aircraft, or watercraft, may be forfeited;

(4) notice of the right to intervene to protect the interest in the motor vehicle, aircraft, or watercraft.

(b) At the hearing, a person who claims an ownership or security interest in the motor vehicle, aircraft, or watercraft, must establish by a preponderance of the evidence that

(1) the petitioner has an interest in the motor vehicle, aircraft, or watercraft, acquired in good faith;

(2) a person other than the petitioner was convicted of the offense that resulted in the forfeiture; and

(3) before parting with the motor vehicle, aircraft, or watercraft, the petitioner did not know or have reasonable cause to believe that it would be used in the commission of an offense.

(c) If a person satisfies the requirements of (b) of this section, the court shall order that an amount equal to the value of the petitioner's interest in the motor vehicle, aircraft, or watercraft be paid to the petitioner, or the court shall order that the motor vehicle, aircraft, or watercraft be released to the petitioner together with title to the motor vehicle, aircraft or watercraft.

(d) Forfeiture of a motor vehicle, aircraft, or watercraft under Section 28.35.036 is without prejudice to the rights and does not extinguish the claims of a creditor with an interest in the motor vehicle, aircraft, or watercraft.

(a) A person may not park a motor vehicle in a parking place reserved for a person with a disability unless

(1) the person operating the vehicle has a special permit issued by the department under Section 28.10.495 ;

(2) the person operating the vehicle has parked the vehicle for the purpose of transporting a person who has a special permit issued by the department under Section 28.10.495 and the person who has the special permit actually exits or enters the vehicle;

(3) the motor vehicle displays a special license plate issued to a person with a disability under Section 28.10.181 (d) and is operated by or used for the purpose of transporting a person with a disability; or

(4) the motor vehicle displays a special license plate or permit issued to persons with disabilities by another state, province, territory, or country and is being operated by or used for the purpose of transporting a person with a disability.

(b) A municipality may enact ordinances necessary to enforce this section.

(c) A person who violates this section is guilty of an infraction. Upon conviction, the court shall impose a fine of not less than $125, or, if the person has been previously convicted under this section, the court shall impose a fine of not less than $250. However, a person who violates this section and who was, at the time of the violation, operating a vehicle displaying a special license plate issued under Section 28.10.181(d) or a special permit issued under Section 28.10.495 (a) shall, upon conviction, pay a fine of $250 or, if the person has been previously convicted under this section, pay a fine of $500.

(a) The driver of a vehicle that approaches from any direction a school bus stopped on a highway or vehicular way or area shall stop not less than 30 feet from the school bus before reaching it when there are in operation on the school bus flashing red lights as required by regulation. The driver may not proceed until the school bus proceeds and the flashing lights are no longer illuminated.

(b) When a school bus is stopped on a highway or vehicular way or area, whether or not there are in operation on the school bus flashing red lights as required by regulation, the driver of a vehicle shall yield the right-of-way to a person crossing a highway, vehicular way, or area to embark on or disembark from the school bus, whether or not the person is crossing within a marked crosswalk.

(c) The driver of a vehicle on a highway with separate roadways is not required to stop when meeting or passing a school bus that is on a different roadway or, if upon a controlled access highway, when a school bus is stopped off the highway in a loading zone that is part of, or adjacent to, the controlled access highway, and pedestrians are not permitted to cross the highway.

(d) A driver convicted under this section is guilty of a class B misdemeanor and, in addition to other penalties as provided by law, is subject to a mandatory assessment of six demerit points under Section 28.15.221 - 28.15.261.

(e) A vehicle owner, or in the case of a leased vehicle a lessee, is guilty of an infraction as described in Section 28.40.050 (d) and may be punished by a fine not to exceed $100, if the vehicle owned or leased by the person is operated in violation of this section. The owner or lessee may not be penalized if the vehicle was stolen, or the driver of the vehicle is convicted under (d) of this section. This subsection does not apply to a lessor of a vehicle if the lessor keeps a record of the name and address of the lessee. A violation of this subsection may not result in the loss of a driver's license or privilege to drive and does not constitute grounds for assessment of demerit points under Section 28.15.221 - 28.15.261. This subsection does not prohibit or limit the prosecution of a vehicle driver for violating (a) or (b) of this section.

(a) A person commits the offense of failure to stop at the direction of a peace officer in the first degree if the person violates (b) of this section, and, during the commission of that offense,

(1) the person violates Section 28.35.040 ;

(2) the person is committing vehicle theft in the first or second degree; or

(3) as a result of the person's operation or driving, an accident occurs or a person suffers serious physical injury; in this paragraph, 'serious physical injury' has the meaning given in Section 11.81.900 .

(b) A person commits the offense of failure to stop at the direction of a peace officer in the second degree if the person, while driving or operating a vehicle or motor vehicle or while operating an aircraft or watercraft, knowingly fails to stop as soon as practical and in a reasonably safe manner under the circumstances when requested or signaled to do so by a peace officer.

(c) In a prosecution under this section, it is an affirmative defense, if the peace officer, when requesting or signaling the defendant to stop,

(1) was operating a vehicle, motor vehicle, aircraft, or watercraft, and the vehicle, motor vehicle, aircraft, or watercraft

(A) did not meet lighting and audible signaling requirements of law for law enforcement vehicles; and

(B) was not marked appropriately so that a reasonable person would recognize it as a law enforcement vehicle; or

(2) was not operating a vehicle, motor vehicle, aircraft, or watercraft, and the peace officer was not wearing the uniform of office or displaying a badge or other symbol of authority so as to be reasonably identifiable as a peace officer.

(d) In this section,

(1) 'knowingly' has the meaning given in Section 11.81.900 ;

(2) 'signal' means a hand motion, audible mechanical or electronic noise device, visual light device, or combination of them, used in a manner that a reasonable person would understand to mean that the peace officer intends that the person stop.

(e) Failure to stop at the direction of a peace officer in the first degree is a class C felony punishable as provided in Section 12.55. Failure to stop at the direction of a peace officer in the second degree is a class A misdemeanor.

(a) A person who has been cited for minor operating a vehicle after consuming alcohol under Section 28.35.280 or for refusal to submit to a chemical test of breath under Section 28.35.285 may not operate a motor vehicle, aircraft, or watercraft during the 24 hours following issuance of the citation.

(b) Operating a motor vehicle during the 24 hours after being cited for minor operating a vehicle after consuming alcohol or for minor's refusal to submit to a chemical test is an infraction, and, if the minor

(1) has not been previously convicted under this section, Section 28.35.280, or 28.35.285, upon conviction, the court shall impose a

(A) fine of $500; and

(B) period of community work service of not less than 20 hours nor more than 40 hours; the community work service under this subparagraph must be related to education about or prevention or treatment of misuse of alcohol if opportunities are available for that type of work service in the community; if such opportunities are not available, the court shall make other provisions for the work service;

(2) has been previously convicted once under this section, Section 28.35.280, or 28.35.285, upon conviction, the court shall impose a

(A) fine of $1,000; and

(B) period of community work service of not less than 40 hours nor more than 60 hours; the community work service under this subparagraph must be related to education about or prevention or treatment of misuse of alcohol if opportunities are available for that type of work service in the community; if such opportunities are not available, the court shall make other provisions for the work service;

(3) has been previously convicted two or more times under this section, Section 28.35.280 , or 28.35.285, upon conviction, the court shall impose a

(A) fine of $1,500; and

(B) period of community work service of not less than 60 hours nor more than 80 hours; the community work service under this subparagraph must be related to education about or prevention or treatment of misuse of alcohol if opportunities are available for that type of work service in the community; if such opportunities are not available, the court shall make other provisions for the work service.

(c) In this section,

(1) 'operate an aircraft' has the meaning given in Section 28.35.030 (t);

(2) 'operate a watercraft' has the meaning given in Section 28.35.030 (t).

(a) Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating or driving a motor vehicle or operating an aircraft or a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, the amount of alcohol in the person's blood or breath at the time alleged shall give rise to the following presumptions:

(1) If there was 0.04 percent or less by weight of alcohol in the person's blood, or 40 milligrams or less of alcohol per 100 milliliters of the person's blood, or 0.04 grams or less of alcohol per 210 liters of the person's breath, it shall be presumed that the person was not under the influence of an alcoholic beverage.

(2) If there was in excess of 0.04 percent but less than 0.08 percent by weight of alcohol in the person's blood, or in excess of 40 but less than 80 milligrams of alcohol per 100 milliliters of the person's blood, or in excess of 0.04 grams but less than 0.08 grams of alcohol per 210 liters of the person's breath, that fact does not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage.

(3) If there was 0.08 percent or more by weight of alcohol in the person's blood, or 80 milligrams or more of alcohol per 100 milliliters of the person's blood, or 0.08 grams or more of alcohol per 210 liters of the person's breath, it shall be presumed that the person was under the influence of an alcoholic beverage.

(b) For purposes of this chapter, percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 100 milliliters of blood.

(c) Except as provided in Section 28.35.030 (s), the provisions of (a) of this section may not be construed to limit the introduction of any other competent evidence bearing upon the question of whether the person was or was not under the influence of intoxicating liquor.

(d) To be considered valid under the provisions of this section the chemical analysis of the person's breath or blood shall have been performed according to methods approved by the Department of Public Safety. The Department of Public Safety is authorized to approve satisfactory techniques, methods, and standards of training necessary to ascertain the qualifications of individuals to conduct the analysis. If it is established at trial that a chemical analysis of breath or blood was performed according to approved methods by a person trained according to techniques, methods, and standards of training approved by the Department of Public Safety, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary.

(e) The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of the person's own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable so to do, is likewise admissible in evidence. The person who administers the chemical test shall clearly and expressly inform the person tested of that person's right to an independent test described under this subsection, and, if the person being tested requests an independent test, the department shall make reasonable and good-faith efforts to assist the person being tested in contacting a person qualified to perform an independent chemical test of the person's breath or blood.

(f) Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the test, including the results of it, shall be made available to the person or the person's attorney.

(a) After conviction of an offense under Section 28.15.291 (b), Section 28.35.030, or 28.35.032, a motor vehicle, aircraft, or watercraft involved in the commission of the offense is subject to forfeiture as provided under Section 28.15.291 (b), Section 28.35.030 , and 28.35.032.

(b) Before forfeiture of a motor vehicle, aircraft, or watercraft, the court shall schedule a hearing on the matter and shall notify the state and the convicted person of the time and place set for the hearing. Except for a motor vehicle, aircraft, or watercraft that is required to be forfeited under Section 28.35.030 or 28.35.032, the court may order the forfeiture of the motor vehicle if the court, sitting without a jury, determines, by a preponderance of the evidence, that the forfeiture of the motor vehicle, aircraft, or watercraft will serve one or more of the following purposes:

(1) deterrence of the convicted person from the commission of future offenses under Section 28.15.291 (b), Section 28.35.030 , or 28.35.032;

(2) protection of the safety and welfare of the public;

(3) deterrence of other persons who are potential offenders under Section 28.15.291(b), Section 28.35.030 , or 28.35.032; or

(4) expression of public condemnation of the serious or aggravated nature of the convicted person's conduct.

(c) Upon forfeiture of a motor vehicle, aircraft, or watercraft, the court shall require the

(1) surrender of the registration and certificate of title of that motor vehicle; the registration and certificate of title shall be delivered to the department;

(2) convicted person to pay all administrative costs incurred by the state in forfeiting the motor vehicle, aircraft, or watercraft, including costs incurred by the department, law enforcement personnel, or the court system.

(d) If not released under Section 28.35.037 , a motor vehicle, aircraft, or watercraft forfeited under this section may be disposed of at the discretion of the Department of Public Safety.

(e) Disposal under this subsection includes, by way of example and not of limitation,

(1) sale, as a unit or in parts, including sale at an auction, and the proceeds deposited into the general fund;

(2) transfer to a state or municipal law enforcement agency;

(3) being declared surplus and transferred to the Department of Administration;

(4) being destroyed; or

(5) transfer to a charitable organization; in this paragraph, 'charitable organization' means a charity that is exempt from taxation under 26 U.S.C. 501(c)(3) (Internal Revenue Code).

(a) A person who is at least 14 years of age but not yet 21 years of age commits the offense of minor operating a vehicle after consuming alcohol if the person operates or drives a motor vehicle or operates an aircraft or a watercraft after having consumed any quantity of alcohol. A peace officer who has probable cause to believe that a person has committed the offense of minor operating a vehicle after consuming alcohol may

(1) place the person under arrest;

(2) request that the person submit to a chemical test or tests of the person's breath for the purpose of determining the alcoholic content of the person's blood or breath; and

(3) transport the person to a location at which a chemical or other test authorized under (2) of this subsection may be administered.

(b) If a chemical test under this section reveals any alcohol concentration within the person's blood or breath, the person shall be cited for violating this section and then released unless there is a lawful reason for further detention. A person who is 18 years of age or older shall be released on the person's own recognizance. A person who is under the age of 18 shall be released to a parent, guardian, or legal custodian.

(d) The offense of a minor operating a vehicle after consuming alcohol is an infraction, and, if the minor

(1) has not been previously convicted under this section, Section 28.35.285, or 28.35.290, upon conviction, the court shall impose a

(A) fine of $500; and

(2) has been previously convicted once under this section, Section 28.35.285, or 28.35.290, upon conviction, the court shall impose a

(A) fine of $1,000; and

(3) has been previously convicted two or more times under this section, Section 28.35.285 , or 28.35.290, upon conviction, the court shall impose a

(A) fine of $1,500; and

(e) In this section,

(1) 'operate an aircraft' has the meaning given in Section 28.35.030 (t);

(2) 'operate a watercraft' has the meaning given in Section 28.35.030 (t).

(a) A person who operates or drives a motor vehicle in this state or who operates an aircraft as defined in Section 28.35.030 (t) or who operates a watercraft as defined in Section 28.35.030 (t) shall be considered to have given consent to a chemical test or tests of the person's breath for the purpose of determining the alcoholic content of the person's blood or breath if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle or operating an aircraft or a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance or if lawfully arrested under Section 28.35.280 for the offense of minor operating a vehicle after consuming alcohol. The test or tests shall be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle or operating an aircraft or a watercraft in this state while under the influence of an alcoholic beverage, inhalant, or controlled substance or that the person was a minor operating a vehicle after consuming alcohol.

(b) A person who operates or drives a motor vehicle in this state or who operates an aircraft or watercraft shall be considered to have given consent to a preliminary breath test for the purpose of determining the alcoholic content of the person's blood or breath. A law enforcement officer may administer a preliminary breath test at the scene of the incident if the officer has probable cause to believe that a person's ability to operate a motor vehicle, aircraft, or watercraft is impaired by the ingestion of alcoholic beverages and that the person

(1) was operating or driving a motor vehicle, aircraft, or watercraft that is involved in an accident;

(2) committed a moving traffic violation or unlawfully operated an aircraft or watercraft; in this paragraph, 'unlawfully' means in violation of any federal, state, or municipal statute, regulation, or ordinance, except for violations that do not provide reason to believe that the operator's ability to operate the aircraft or watercraft was impaired by the ingestion of alcoholic beverages; or

(3) was operating or driving a motor vehicle in violation of Section 28.35.029(a).

(c) Before administering a preliminary breath test under (b) of this section, the officer shall advise the person that refusal may be used against the person in a civil or criminal action arising out of the incident and that refusal is an infraction. If the person refuses to submit to the test, the test shall not be administered.

(d) The result of the test under (b) of this section may be used by the law enforcement officer to determine whether the driver or operator should be arrested.

(e) Refusal to submit to a preliminary breath test at the request of a law enforcement officer is an infraction.

(f) If a driver or operator is arrested, the provisions of (a) of this section apply. The preliminary breath test authorized in this section is in addition to any tests authorized under (a) of this section.

(g) A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of the person's breath and blood for the purpose of determining the alcoholic content of the person's breath and blood and shall be considered to have given consent to a chemical test or tests of the person's blood and urine for the purpose of determining the presence of controlled substances in the person's blood and urine if the person is involved in a motor vehicle accident that causes death or serious physical injury to another person. The test or tests may be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person.

(h) Nothing in this section shall be construed to restrict searches or seizures under a warrant issued by a judicial officer, in addition to a test permitted under this section.

(a) If a person under arrest for minor operating a vehicle after consuming alcohol refuses the request of a peace officer to submit to a chemical test or tests of the person's breath authorized under Section 28.35.031(a) and 28.35.280(a), after being advised by the officer that the refusal will result in the denial or revocation of the driver's license, privilege to drive, or privilege to obtain a license, that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating a vehicle after consuming alcohol, and that the refusal is a violation, a chemical test may not be given.

(b) A person who is cited for violating this section shall be advised by a peace officer that it is unlawful under Section 28.35.290 for the person to operate a motor vehicle, aircraft, or watercraft during the 24 hours following the issuance of the citation.

(c) The refusal of a minor to submit to a chemical test authorized under Section 28.35.031 (a) and 28.35.280(a) is admissible evidence in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating a vehicle after consuming alcohol.

(d) Refusal to submit to a chemical test or tests of the person's breath requested under Section 28.35.280 is an infraction, and, if the minor

(1) has not been previously convicted under this section, Section 28.35.280, or 28.35.290, upon conviction, the court shall impose a

(A) fine of $500; and

(2) has been previously convicted once under this section, Section 28.35.280, or 28.35.290, upon conviction, the court shall impose a

(A) fine of $1,000; and

(3) has been previously convicted two or more times under this section, Section 28.35.280 , or 28.35.290, upon conviction, the court shall impose a

(A) fine of $1,500; and

(a) If a person under arrest for operating a motor vehicle or aircraft while under the influence of an alcoholic beverage, inhalant, or controlled substance refuses the request of a law enforcement officer to submit to a chemical test authorized under Section 28.33.031 (a)(1) or Section 28.35.031(a), or if a person involved in a motor vehicle accident that causes death or serious physical injury to another person refuses the request of a law enforcement officer to submit to a chemical test authorized under Section 28.33.031 (a)(2) or Section 28.35.031 (g), after being advised by the officer that the refusal will result in the denial or revocation of the driver's license, privilege to drive, or privilege to obtain a license, that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating a motor vehicle or aircraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, and that the refusal is a crime, a chemical test may not be given, except as provided by Section 28.35.035 . If a person under arrest for operating a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance refuses the request of a law enforcement officer to submit to a chemical test authorized under Section 28.35.031 (a), after being advised by the officer that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, and that the refusal is a crime, a chemical test may not be given, except as provided by Section 28.35.035 .

(b) [Repealed, Sec. 25 ch 77 SLA 1983].

(c) [Repealed, Sec. 25 ch 77 SLA 1983].

(d) [Repealed, Sec. 25 ch 77 SLA 1983].

(e) The refusal of a person to submit to a chemical test authorized under Section 28.33.031 (a) or Section 28.35.031 (a) or (g) is admissible evidence in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating or driving a motor vehicle or operating an aircraft or watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance.

(f) Except as provided under (p) of this section, refusal to submit to a chemical test authorized by Section 28.33.031 (a) or Section 28.35.031 (a) or (g) is a class A misdemeanor.

(g) Except as provided under (r) of this section, upon conviction under this section,

(1) the court shall impose a minimum sentence of imprisonment of

(A) not less than 72 consecutive hours and a fine of not less than $1,500 if the person has not been previously convicted;

(B) not less than 20 days and a fine of not less than $3,000 if the person has been previously convicted once;

(C) not less than 60 days and a fine of not less than $4,000 if the person has been previously convicted twice and is not subject to punishment under (p) of this section;

(D) not less than 120 days and a fine of not less than $5,000 if the person has been previously convicted three times and is not subject to punishment under (p) of this section;

(E) not less than 240 days and a fine of not less than $6,000 if the person has been previously convicted four times and is not subject to punishment under (p) of this section;

(F) not less than 360 days and a fine of not less than $7,000 if the person has been previously convicted more than four times and is not subject to punishment under (p) of this section;

(2) the court may not

(A) suspend execution of the sentence required by (1) of this subsection or grant probation, except on condition that the person serve the minimum imprisonment under (1) of this subsection; or

(B) suspend imposition of sentence;

(3) the court shall revoke the person's driver's license, privilege to drive, or privilege to obtain a license under Section 28.15.181 , and may order that the motor vehicle, aircraft, or watercraft that was used in commission of the offense be forfeited under Section 28.35.036 ;

(4) the court may order that the person, while incarcerated or as a condition of probation or parole, take a drug or combination of drugs intended to prevent the consumption of an alcoholic beverage; a condition of probation or parole imposed under this paragraph is in addition to any other condition authorized under another provision of law; and

(5) the sentence imposed by the court under this subsection shall run consecutively with any other sentence of imprisonment imposed on the person.

(h) Except as prohibited by federal law or regulation, every provider of treatment programs to which persons are ordered under this section shall supply the judge, prosecutor, defendant, and an agency involved in the defendant's treatment with information and reports concerning the defendant's past and present assessment, treatment, and progress. Information compiled under this subsection is confidential and may only be used in connection with court proceedings involving the defendant's treatment, including use by a court in sentencing a person convicted under this section, or by an officer of the court in preparing a pre-sentence report for the use of the court in sentencing a person convicted under this section.

(i) A person who is sentenced to imprisonment for 72 consecutive hours under (g) of this section and who is not released from imprisonment after 72 hours may not bring an action against the state or a municipality or its agents, officers, or employees for damages resulting from the additional period of confinement if

(1) the employee or employees who released the person exercised due care and, in releasing the person, followed the standard release procedures of the prison facility; and

(2) the additional period of confinement did not exceed 12 hours.

(j) For purposes of this section, convictions under Section 28.33.030 or Section 28.35.030 and for refusal to submit to a chemical test under this section, if arising out of a single transaction and a single arrest, are considered one previous conviction.

(k) Notwithstanding (g) of this section, if the court imposes probation under Section 12.55.102 the court may reduce the fine required to be imposed under (g) of this section by the cost of the ignition interlock device.

(l) The court shall order a person convicted under this section to satisfy the screening, evaluation, referral, and program requirements of an alcohol safety action program if such a program is available in the community where the person resides, or a private or public treatment facility approved by the Department of Health and Social Services under Section 47.37 to make referrals for rehabilitative treatment or to provide rehabilitative treatment. If a person is convicted under (p) of this section, the court shall order the person to be evaluated as required by this subsection before the court imposes sentence for the offense.

(m) A program of inpatient treatment may be required by the authorized agency under (l) of this section only if authorized in the judgment, and may not exceed the maximum term of inpatient treatment specified in the judgment. A person who has been referred for inpatient treatment under this subsection may make a written request to the sentencing court asking the court to review the referral. The request for review shall be made within seven days of the agency's referral, and shall specifically set out the grounds upon which the request for review is based. The court may order a hearing on the request for review.

(n) If a person fails to satisfy the requirements of an authorized agency under (m) of this section, the court

(1) may impose any portion of a suspended sentence; however, if the person was convicted under (p) of this section, the court shall impose a part or all of the remaining portion of any suspended sentence;

(2) may punish the failure as contempt of the authority of the court under Section 09.50.010 or as a violation of a condition of probation; and

(3) shall order the revocation or suspension of the person's driver's license, privilege to drive, and privilege to obtain a driver's license until the requirements are satisfied.

(o) Imprisonment required under (g)(1)(A) of this section shall be served at a community residential center, or if a community residential center is not available, at another appropriate place determined by the commissioner of corrections. Imprisonment required under (g)(1)(B) - (F) of this section may be served at a community residential center or at a private residence if approved by the commissioner of corrections. Imprisonment served at a private residence must include electronic monitoring. The cost of imprisonment resulting from the sentence imposed under (g)(1) of this section shall be paid to the state by the person being sentenced provided, however, that the cost of imprisonment required to be paid under this subsection may not exceed $2,000. Upon the person's conviction, the court shall include the costs of imprisonment as a part of the judgment of conviction. Except for reimbursement from a permanent fund dividend as provided in this subsection, payment of the cost of imprisonment is not required if the court determines the person is indigent. For costs of imprisonment that are not paid by the person as required by this subsection, the state shall seek reimbursement from the person's permanent fund dividend as provided under Section 43.23.065 . While at the community residential center or other appropriate place, a person sentenced under (g)(1)(A) of this section shall perform at least 24 hours of community service work. A person sentenced under (g)(1)(B) of this section shall perform at least 160 hours of community service work, as required by the director of the community residential center or other appropriate place, or as required by the commissioner of corrections if the sentence is being served at a private residence. In this subsection, 'appropriate place' means a facility with 24-hour on-site staff supervision that is specifically adapted to provide a residence, and includes a correctional center, residential treatment facility, hospital, halfway house, group home, work farm, work camp, or other place that provides varying levels of restriction.

(p) A person is guilty of a class C felony if the person is convicted under this section and either has been previously convicted two or more times since January 1, 1996, and within the 10 years preceding the date of the present offense, or punishment under this subsection or under Section 28.35.030(n) was previously imposed within the last 10 years. For purposes of determining minimum sentences based on previous convictions, the provisions of Section 28.35.030 (t)(4) apply. Upon conviction,

(1) the court shall impose a fine of not less than $10,000 and a minimum sentence of imprisonment of not less than

(A) 120 days if the person has been previously convicted twice;

(B) 240 days if the person has been previously convicted three times;

(C) 360 days if the person has been previously convicted four or more times;

(2) the court may not

(A) suspend execution of the sentence required by (1) of this subsection or grant probation, except on condition that the person serve the minimum imprisonment under (1) of this subsection; or

(B) suspend imposition of sentence;

(3) the court shall permanently revoke the person's driver's license, privilege to drive, or privilege to obtain a license subject to restoration under (q) of this section;

(4) the court may order that the person, while incarcerated or as a condition of probation or parole, take a drug, or combination of drugs, intended to prevent consumption of an alcoholic beverage; a condition of probation or parole imposed under this paragraph is in addition to any other condition authorized under another provision of law;

(5) the sentence imposed by the court under this subsection shall run consecutively with any other sentence of imprisonment imposed on the person;

(6) the court shall order forfeiture under Section 28.35.036 , of the motor vehicle, aircraft, or watercraft used in the commission of the offense, subject to remission under Section 28.35.037 ; and

(7) the court shall order the department to revoke the registration for any vehicle registered by the department in the name of the person convicted under this subsection; if a person convicted under this subsection is a registered co-owner of a vehicle, the department shall reissue the vehicle registration and omit the name of the person convicted under this subsection.

(q) Upon request, the department shall review a driver's license revocation imposed under (p)(3) of this section and may restore the driver's license if

(1) the license has been revoked for a period of at least 10 years;

(2) the person has not been convicted of a criminal offense since the license was revoked; and

(3) the person provides proof of financial responsibility.

(r) If the court determines that the person has successfully completed a court-ordered treatment program, the court may suspend up to 75 percent of the mandatory minimum sentence required under (g)(1) of this section and up to 50 percent of the minimum fine required under (g)(1) of this section. This subsection does not apply to a person who has already participated in a court-ordered treatment program two or more times. In this subsection, 'court-ordered treatment' has the meaning given in Section 28.35.030 (p).

(s) For purposes of this section, the director of the division within the department responsible for administration of this section or a person designated by the director may request and receive criminal justice information available under Section 12.62. In this subsection, 'criminal justice information' has the meaning given in Section 12.62.900 .

(t) In this section,

(1) 'cost of imprisonment' means the cost of imprisonment as determined under Section 28.35.030 (l);

(2) 'previously convicted' has the meaning given in Section 28.35.030 .

(a) A person commits the crime of driving while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates or drives a motor vehicle or operates an aircraft or a watercraft

(1) while under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly or in combination; or

(2) and if, as determined by a chemical test taken within four hours after the alleged operating or driving, there is 0.08 percent or more by weight of alcohol in the person's blood or 80 milligrams or more of alcohol per 100 milliliters of blood, or if there is 0.08 grams or more of alcohol per 210 liters of the person's breath.

(b) Except as provided under (n) of this section, driving while under the influence of an alcoholic beverage, inhalant, or controlled substance is a class A misdemeanor. Except as provided under (p) of this section, upon conviction,

(1) the court shall impose a minimum sentence of imprisonment of

(A) not less than 72 consecutive hours and a fine of not less than $1,500 if the person has not been previously convicted;

(B) not less than 20 days and a fine of not less than $3,000 if the person has been previously convicted once;

(C) not less than 60 days and a fine of not less than $4,000 if the person has been previously convicted twice and is not subject to punishment under (n) of this section;

(D) not less than 120 days and a fine of not less than $5,000 if the person has been previously convicted three times and is not subject to punishment under (n) of this section;

(E) not less than 240 days and a fine of not less than $6,000 if the person has been previously convicted four times and is not subject to punishment under (n) of this section;

(F) not less than 360 days and a fine of not less than $7,000 if the person has been previously convicted more than four times and is not subject to punishment under (n) of this section;

(2) the court may not

(A) suspend execution of sentence or grant probation except on condition that the person serve the minimum imprisonment under (1) of this subsection;

(B) suspend imposition of sentence;

(c) [Repealed, Sec. 34 ch 119 SLA 1990].

(d) Except as prohibited by federal law or regulation, every provider of treatment programs to which persons are ordered under this section shall supply the judge, prosecutor, defendant, and an agency involved in the defendant's treatment with information and reports concerning the defendant's past and present assessment, treatment, and progress. Information compiled under this subsection is confidential and may only be used in connection with court proceedings involving the defendant's treatment, including use by a court in sentencing a person convicted under this section, or by an officer of the court in preparing a presentence report for the use of the court in sentencing a person convicted under this section.

(e) A person who is sentenced to imprisonment for 72 consecutive hours upon a first conviction under this section and who is not released from imprisonment after 72 hours may not bring an action against the state or a municipality or its agents, officers, or employees for damages resulting from the additional period of confinement if

(1) the employee or employees who released the person exercised due care and, in releasing the person, followed the standard release procedures of the prison facility; and

(2) the additional period of confinement did not exceed 12 hours.

(f) [Repealed, Sec. 34 ch 119 SLA 1990].

(g) Notwithstanding (b) of this section, if the court imposes probation under Section 12.55.102 the court may reduce the fine required to be imposed under (b) of this section by the cost of the ignition interlock device.

(h) The court shall order a person convicted under this section to satisfy the screening, evaluation, referral, and program requirements of an alcohol safety action program if such a program is available in the community where the person resides, or a private or public treatment facility approved by the Department of Health and Social Services, under Section 47.37 to make referrals for rehabilitative treatment or to provide rehabilitative treatment. If a person is convicted under (n) of this section, the court shall order the person to be evaluated as required by this subsection before the court imposes sentence for the offense.

(i) A program of inpatient treatment may be required by the authorized agency under (h) of this section only if authorized in the judgment, and may not exceed the maximum term of inpatient treatment specified in the judgment. A person who has been referred for inpatient treatment under this subsection may make a written request to the sentencing court asking the court to review the referral. The request for review shall be made within seven days of the agency's referral, and shall specifically set out the grounds upon which the request for review is based. The court may order a hearing on the request for review.

(j) If a person fails to satisfy the requirements of an authorized agency under (i) of this section, the court

(1) may impose any portion of a suspended sentence; however, if the person was convicted under (n) of this section, the court shall impose a part or all of the remaining portion of any suspended sentence;

(2) may punish the failure as contempt of the authority of the court under Section 09.50.010 or as a violation of a condition of probation; and

(3) shall order the revocation or suspension of the person's driver's license, privilege to drive, and privilege to obtain a driver's license until the requirements are satisfied.

(k) Imprisonment required under (b)(1)(A) of this section shall be served at a community residential center or, if a community residential center is not available, at another appropriate place determined by the commissioner of corrections. Imprisonment required under (b)(1)(B) - (F) of this section may be served at a community residential center or at a private residence if approved by the commissioner of corrections. Imprisonment served at a private residence must include electronic monitoring. The cost of imprisonment resulting from the sentence imposed under (b)(1) of this section shall be paid to the state by the person being sentenced provided, however, that the cost of imprisonment required to be paid under this subsection may not exceed $2,000. Upon the person's conviction, the court shall include the costs of imprisonment as a part of the judgment of conviction. Except for reimbursement from a permanent fund dividend as provided in this subsection, payment of the cost of imprisonment is not required if the court determines the person is indigent. For costs of imprisonment that are not paid by the person as required by this subsection, the state shall seek reimbursement from the person's permanent fund dividend as provided under Section 43.23.065 . While at the community residential center or other appropriate place, a person sentenced under (b)(1)(A) of this section shall perform at least 24 hours of community service work. A person sentenced under (b)(1)(B) of this section shall perform at least 160 hours of community service work, as required by the director of the community residential center or other appropriate place, or as required by the commissioner of corrections if the sentence is being served at a private residence. In this subsection, 'appropriate place' means a facility with 24-hour on-site staff supervision that is specifically adapted to provide a residence, and includes a correctional center, residential treatment facility, hospital, halfway house, group home, work farm, work camp, or other place that provides varying levels of restriction.

(l) The commissioner of corrections shall determine and prescribe by regulation a uniform average cost of imprisonment for the purpose of determining the cost of imprisonment required to be paid under (k) of this section by a convicted person.

(m) If the act for which a person is convicted under this section contributes to a motor vehicle accident, the court shall order the person to pay the reasonable cost of any emergency services that responded to the accident, if the convicted person or the convicted person's insurer has not already paid the cost of the emergency services. If payment is required under this subsection, the payment shall be made directly to the emergency service and shall be equal to the actual cost of responding to the accident or the previous year's annual average cost of responding to a motor vehicle accident, whichever is higher. In this subsection, 'emergency service' includes a peace officer, fire department, ambulance service, emergency medical technician or emergency trauma technician.

(n) A person is guilty of a class C felony if the person is convicted under (a) of this section and either has been previously convicted two or more times since January 1, 1996, and within the 10 years preceding the date of the present offense, or punishment under this subsection or under Section 28.35.032 (p) was previously imposed within the last 10 years. For purposes of determining minimum sentences based on previous convictions, the provisions of (t)(4) of this section apply. Upon conviction, the court

(1) shall impose a fine of not less than $10,000 and a minimum sentence of imprisonment of not less than

(A) 120 days if the person has been previously convicted twice;

(B) 240 days if the person has been previously convicted three times;

(C) 360 days if the person has been previously convicted four or more times;

(2) may not

(A) suspend execution of sentence or grant probation except on condition that the person serve the minimum imprisonment under (1) of this subsection; or

(B) suspend imposition of sentence;

(3) shall permanently revoke the person's driver's license, privilege to drive, or privilege to obtain a license subject to restoration of the license under (o) of this section;

(4) may order that the person, while incarcerated or as a condition of probation or parole, take a drug or combination of drugs, intended to prevent the consumption of an alcoholic beverage; a condition of probation or parole imposed under this paragraph is in addition to any other condition authorized under another provision of law;

(5) shall order forfeiture under Section 28.35.036 of the vehicle, watercraft, or aircraft used in the commission of the offense, subject to remission under Section 28.35.037 ; and

(6) shall order the department to revoke the registration for any vehicle registered by the department in the name of the person convicted under this subsection; if a person convicted under this subsection is a registered co-owner of a vehicle or is registered as a co-owner under a business name, the department shall reissue the vehicle registration and omit the name of the person convicted under this subsection.

(o) Upon request, the department shall review a driver's license revocation imposed under (n)(3) of this section and may restore the driver's license if

(1) the license has been revoked for a period of at least 10 years;

(2) the person has not been convicted of a criminal offense since the license was revoked; and

(3) the person provides proof of financial responsibility.

(p) If the court determines that the person has successfully completed a court-ordered treatment program, the court may suspend up to 75 percent of the mandatory minimum sentence required under (b)(1) of this section and up to 50 percent of the minimum fines required under (b)(1) of this section. This subsection does not apply to a person who has already participated in a court-ordered treatment program two or more times. In this subsection, 'court-ordered treatment' means a treatment program for a person who consumes alcohol or drugs and that

(1) requires participation for at least 18 consecutive months;

(2) includes planning and treatment for alcohol or drug addiction;

(3) includes emphasis on personal responsibility;

(4) provides in-court recognition of progress and sanctions for relapses;

(5) requires payment of restitution to victims and completion of community work service;

(6) includes physician approved treatment of physical addiction and treatment of the psychological causes of addiction;

(7) includes a monitoring program and physical placement or housing; and

(8) requires adherence to conditions of probation.

(q) For purposes of this section, the director of the division within the department responsible for administration of this section or a person designated by the director may request and receive criminal justice information available under Section 12.62. In this subsection, 'criminal justice information' has the meaning given in Section 12.62.900 .

(r) [Effective January 1, 2005]. If a person is convicted under (a) of this section and it is determined by the trier of fact that, as determined by a chemical test taken within four hours after the offense was committed,

(1) there was at least 0.16 percent by weight of alcohol in the person's blood but less than 0.24 percent by weight of alcohol in the person's blood or at least 160 milligrams of alcohol per 100 milliliters of blood, but less than 240 milligrams of alcohol per 100 milliliters of blood, or when there was at least 0.16 grams of alcohol per 210 liters of the person's breath, but less than 0.24 grams of alcohol per 210 liters of the person's breath, the court shall require the person to use an ignition interlock device as provided in Section 12.55.102 for a minimum of six months after the person regains the privilege, including any limited privilege, to operate a motor vehicle;

(2) there was 0.24 percent or more by weight of alcohol in the person's blood or 240 milligrams or more of alcohol per 100 milliliters of blood, or when there was 0.24 grams or more of alcohol per 210 liters of the person's breath, the court shall require the person to use an ignition interlock device as provided in Section 12.55.102 for a minimum of one year after the person regains the privilege, including any limited privilege, to operate a motor vehicle.

(s) In a prosecution under (a) of this section, a person may introduce evidence on the amount of alcohol consumed before or after operating or driving the motor vehicle, aircraft, or watercraft to rebut or explain the results of a chemical test, but the consumption of alcohol before operating or driving may not be used as a defense that the chemical test did not measure the blood alcohol at the time of the operating or driving. Consumption of alcohol after operating or driving the motor vehicle, aircraft, or watercraft may be used to raise such a defense.

(t) In this section,

(1) 'inhalant' has the meaning given to the phrase 'hazardous volatile material or substance' in Section 47.37.270 ;

(2) 'operate an aircraft' means to navigate, pilot, or taxi an aircraft in the airspace over this state, or upon the land or water inside this state;

(3) 'operate a watercraft' means to navigate a vessel used or capable of being used as a means of transportation on water for recreational or commercial purposes on all waters, fresh or salt, inland or coastal, inside the territorial limits or under the jurisdiction of the state;

(4) 'previously convicted' means having been convicted in this or another jurisdiction within the 15 years preceding the date of the present offense of any of the following offenses; however, convictions for any of these offenses, if arising out of a single transaction and a single arrest, are considered one previous conviction:

(A) operating a motor vehicle, aircraft, or watercraft in violation of this section or in violation of another law or ordinance with similar elements, except that the other law or ordinance may provide for a lower level of alcohol in the person's blood or breath than imposed under (a)(2) of this section;

(B) refusal to submit to a chemical test in violation of Section 28.35.032 or in violation of another law or ordinance with similar elements; or

(C) operating a commercial motor vehicle in violation of Section 28.33.030 or in violation of another law or ordinance with similar elements, except that the other law or ordinance may provide for a lower level of alcohol in the person's blood or breath than imposed under Section 28.33.030 (a)(2).

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