§ 31-27-2.1 - Refusal to submit to chemical test.
SECTION 31-27-2.1
§ 31-27-2.1 Refusal to submit to chemicaltest. – (a) Any person who operates a motor vehicle within this state shall be deemedto have given his or her consent to chemical tests of his or her breath, blood,and/or urine for the purpose of determining the chemical content of his or herbody fluids or breath. No more than two (2) complete tests, one for thepresence of intoxicating liquor and one for the presence of toluene or anycontrolled substance, as defined in § 21-28-1.02(7), shall be administeredat the direction of a law enforcement officer having reasonable grounds tobelieve the person to have been driving a motor vehicle within this state whileunder the influence of intoxicating liquor, toluene, or any controlledsubstance, as defined in chapter 28 of title 21, or any combination of these.The director of the department of health is empowered to make and file with thesecretary of state, regulations which prescribe the techniques and methods ofchemical analysis of the person's body fluids or breath and the qualificationsand certification of individuals authorized to administer the testing andanalysis.
(b) If a person for religious or medical reasons cannot besubjected to blood tests, the person may file an affidavit with the division ofmotor vehicles stating the reasons why he or she cannot be required to takeblood tests, and a notation to this effect shall be made on his or her license.If that person is asked to submit to chemical tests as provided under thischapter, the person shall only be required to submit to chemical tests of hisor her breath or urine. When a person is requested to submit to blood tests,only a physician or registered nurse or a medical technician certified underregulations promulgated by the director of the department of health maywithdraw blood for the purpose of determining the alcoholic content in it. Thislimitation shall not apply to the taking of breath or urine specimens. Theperson tested shall be permitted to have a physician of his or her own choosingand at his or her own expense administer chemical tests of his or her breath,blood, and/or urine in addition to the tests administered at the direction of alaw enforcement officer. If a person having been placed under arrest refusesupon the request of a law enforcement officer to submit to the tests, asprovided in § 31-27-2, none shall be given, but a judge of the traffictribunal or district court judge, upon receipt of a report of a law enforcementofficer: that he or she had reasonable grounds to believe the arrested personhad been driving a motor vehicle within this state under the influence ofintoxicating liquor, toluene, or any controlled substance, as defined inchapter 28 of title 21, or any combination of these; that the person had beeninformed of his or her rights in accordance with § 31-27-3; that theperson had been informed of the penalties incurred as a result of noncompliancewith this section; and that the person had refused to submit to the tests uponthe request of a law enforcement officer; shall promptly order that theperson's operator's license or privilege to operate a motor vehicle in thisstate be immediately suspended and that the person's license be surrenderedwithin five (5) days of notice of suspension. A traffic tribunal judge or adistrict court judge pursuant to the terms of subsection (c) of this sectionshall order as follows:
(1) Impose for the first violation a fine in the amount oftwo hundred dollars ($200) to five hundred dollars ($500) and shall order theperson to perform ten (10) to sixty (60) hours of public community restitution.The person's driving license in this state shall be suspended for a period ofsix (6) months to one year. The traffic tribunal judge shall require attendanceat a special course on driving while intoxicated or under the influence of acontrolled substance and/or alcohol or drug treatment for the individual.
(2) Every person convicted for a second violation within afive (5) year period shall be guilty of a misdemeanor, shall be imprisoned fornot more than six (6) months and shall pay a fine in the amount of six hundreddollars ($600) to one thousand dollars ($1,000), order the person to performsixty (60) to one hundred (100) hours of public community restitution, and theperson's driving license in this state shall be suspended for a period of oneyear to two (2) years. The judge shall require alcohol and/or drug treatmentfor the individual.
(3) Every person convicted for a third or subsequentviolation within a five (5) year period shall be guilty of a misdemeanor andshall be imprisoned for not more than one year, fined eight hundred dollars($800) to one thousand dollars ($1,000), order the person to perform not lessthan one hundred (100) hours of public community restitution, and the person'soperator's license in this state shall be suspended for a period of two (2)years to five (5) years. The judge shall require alcohol or drug treatment forthe individual. Provided, that prior to the reinstatement of a license to aperson charged with a third or subsequent violation within a three (3) yearperiod, a hearing shall be held before a judge. At the hearing the judge shallreview the person's driving record, his or her employment history, familybackground, and any other pertinent factors that would indicate that the personhas demonstrated behavior which warrants the reinstatement of his or herlicense.
(4) For purposes of determining the period of licensesuspension, a prior violation shall constitute any charge brought and sustainedunder the provisions of this section or § 31-27-2.
(5) In addition to any other fines, a highway safetyassessment of five hundred dollars ($500) shall be paid by any person found inviolation of this section, the assessment to be deposited into the generalfund. The assessment provided for by this subsection shall be collected from aviolator before any other fines authorized by this section.
(6) In addition to any other fines and highway safetyassessments, a two hundred dollar ($200) assessment shall be paid by any personfound in violation of this section to support the department of health'schemical testing programs outlined in § 31-27-2 (4), which shall bedeposited as general revenues, not restricted receipts.
(7) No fines, suspensions, assessments, alcohol or drugtreatment programs, course on driving while intoxicated or under the influenceof a controlled substance, or public community restitution provided for underthis section, can be suspended.
(c) Upon suspending or refusing to issue a license or permitas provided in subsection (a) of this section, the traffic tribunal or districtcourt shall immediately notify the person involved in writing, and upon his orher request, within fifteen (15) days shall afford the person an opportunityfor a hearing as early as practical upon receipt of a request in writing. Upona hearing the judge may administer oaths and may issue subpoenas for theattendance of witnesses and the production of relevant books and papers. If thejudge finds after the hearing that: (1) the law enforcement officer making thesworn report had reasonable grounds to believe that the arrested person hadbeen driving a motor vehicle within this state while under the influence ofintoxicating liquor, toluene, or any controlled substance, as defined inchapter 28 of title 21, or any combination of these; (2) the person while underarrest refused to submit to the tests upon the request of a law enforcementofficer; (3) the person had been informed of his or her rights in accordancewith § 31-27-3; and (4) the person had been informed of the penaltiesincurred as a result of noncompliance with this section; the judge shallsustain the violation. The judge shall then impose the penalties set forth insubsection (b) of this section. Action by the judge must be taken within seven(7) days after the hearing, or it shall be presumed that the judge has refusedto issue his or her order of suspension.
(d) For the purposes of this section, any test of a sample ofblood, breath, or urine for the presence of alcohol which relies in whole or inpart upon the principle of infrared light absorption is considered a chemicaltest.
(e) If any provision of this section or the application ofany provision shall for any reason be judged invalid, the judgment shall notaffect, impair, or invalidate the remainder of the section, but shall beconfined in this effect to the provisions or application directly involved inthe controversy giving rise to the judgment.