§291E-65 - Refusal to submit to testing for measurable amount of alcohol; district court hearing; sanctions; appeals; admissibility.
§291E-65 Refusal to submit to testing for measurable amount of alcohol; district court hearing; sanctions; appeals; admissibility. [Section effective until December 31, 2010. For section effective on January 1, 2011, see below.] (a) If a person under arrest for operating a vehicle after consuming a measurable amount of alcohol, pursuant to section 291E‑64, refuses to submit to a breath or blood test, none shall be given, except as provided in section 291E‑21, but the arresting law enforcement officer, as soon as practicable, shall submit an affidavit to a district judge of the circuit in which the arrest was made, stating:
(1) That at the time of the arrest, the arresting officer had probable cause to believe the arrested person was under the age of twenty-one and had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State with a measurable amount of alcohol;
(2) That the arrested person was informed that the person may refuse to submit to a breath or blood test, in compliance with section 291E-11;
(3) That the person had refused to submit to a breath or blood test;
(4) That the arrested person was:
(A) Informed of the sanctions of this section; and then
(B) Asked if the person still refuses to submit to a breath or blood test, in compliance with the requirements of section 291E-15; and
(5) That the arrested person continued to refuse to submit to a breath or blood test.
(b) Upon receipt of the affidavit, the district judge shall hold a hearing within twenty days. The district judge shall hear and determine:
(1) Whether the arresting law enforcement officer had probable cause to believe that the person was under the age of twenty-one and had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State with a measurable amount of alcohol;
(2) Whether the person was lawfully arrested;
(3) Whether the person was informed that the person may refuse to submit to a breath or blood test, in compliance with section 291E-11;
(4) Whether the person refused to submit to a test of the person's breath or blood;
(5) Whether the person was:
(A) Informed of the sanctions of this section; and then
(B) Asked if the person still refuses to submit to a breath or blood test, in compliance with the requirements of section 291E-15; and
(6) Whether the person continued to refuse to submit to a breath or blood test.
(c) If the district judge finds the statements contained in the affidavit are true, the judge shall suspend the arrested person's license and privilege to operate a vehicle as follows:
(1) For a first suspension, or any suspension not preceded within a five-year period by a suspension under this section, for a period of twelve months; and
(2) For any subsequent suspension under this section, for a period not less than two years and not more than five years.
(d) An order of a district court issued under this section may be appealed to the supreme court.
(e) If a legally arrested person under the age of twenty-one refuses to submit to a test of the person's breath or blood, proof of refusal shall be admissible only in a hearing under this section or part III and shall not be admissible in any other action or proceeding, whether civil or criminal. [L 2000, c 189, pt of §23; am L 2001, c 157, §29; am L 2006, c 64, §9]
§291E-65 Refusal to submit to testing for measurable amount of alcohol; district court hearing; sanctions; appeals; admissibility. [Section effective on January 1, 2011. For section effective until December 31, 2010, see above.] (a) If a person under arrest for operating a vehicle after consuming a measurable amount of alcohol, pursuant to section 291E-64, refuses to submit to a breath or blood test, none shall be given, except as provided in section 291E-21, but the arresting law enforcement officer, as soon as practicable, shall submit an affidavit to a district judge of the circuit in which the arrest was made, stating:
(1) That at the time of the arrest, the arresting officer had probable cause to believe the arrested person was under the age of twenty-one and had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State with a measurable amount of alcohol;
(2) That the arrested person was informed that the person may refuse to submit to a breath or blood test, in compliance with section 291E-11;
(3) That the person had refused to submit to a breath or blood test;
(4) That the arrested person was:
(A) Informed of the sanctions of this section; and then
(B) Asked if the person still refuses to submit to a breath or blood test, in compliance with the requirements of section 291E-15; and
(5) That the arrested person continued to refuse to submit to a breath or blood test.
(b) Upon receipt of the affidavit, the district judge shall hold a hearing within twenty days. The district judge shall hear and determine:
(1) Whether the arresting law enforcement officer had probable cause to believe that the person was under the age of twenty-one and had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State with a measurable amount of alcohol;
(2) Whether the person was lawfully arrested;
(3) Whether the person was informed that the person may refuse to submit to a breath or blood test, in compliance with section 291E-11;
(4) Whether the person refused to submit to a test of the person's breath or blood;
(5) Whether the person was:
(A) Informed of the sanctions of this section; and then
(B) Asked if the person still refuses to submit to a breath or blood test, in compliance with the requirements of section 291E-15; and
(6) Whether the person continued to refuse to submit to a breath or blood test.
(c) If the district judge finds the statements contained in the affidavit are true, the judge shall suspend the arrested person's license and privilege to operate a vehicle as follows:
(1) For a first suspension, or any suspension not preceded within a five-year period by a suspension under this section, for a period of twelve months; and
(2) For any subsequent suspension under this section, for a period not less than two years and not more than five years.
(d) An order of a district court issued under this section may be appealed to the supreme court. [L 2000, c 189, pt of §23; am L 2001, c 157, §29; am L 2006, c 64, §9; am L 2009, c 88, §§7, 17(1)]