Chapter 10.15 DRIVING WHILE INTOXICATED

It is unlawful and punishable as provided in this section for any person with a blood alcohol content of 0.08 percent or greater by weight, or who is under the influence of alcohol and any drug to a degree which renders the person incapable of safely driving a vehicle, to drive or be in actual physical control of a vehicle within this municipality. The fact that a person charged with violating this section is or has been legally entitled to use alcohol or a drug does not constitute a defense against any charge of violating this section. [Ord. 5-83 § 1.1. Code 1988 § 8-3-1].

10.15.020 Penalties – First offense.

A. Minimum Sentence Required – To Be Increased When Negligence Present. Every person who is convicted the first time of a violation of HMC 10.15.010 shall be guilty of a class B misdemeanor and subject to the penalties prescribed therefor; except that if the person has inflicted a bodily injury upon another as a proximate result of having operated the vehicle in a negligent manner, he shall be punished by imprisonment in the county jail for not more than one year, and, in the discretion of the court, by fine of not more than $1,000. For the purpose of this section, the standard of negligence is that of simple negligence, the failure to exercise that degree of care which ordinarily reasonable and prudent persons exercise under like or similar circumstances.

B. Suspension of Sentence Not Permitted. No portion of any sentence imposed under subsection (A) of this section shall be suspended and the convicted person shall not be eligible for parole or probation until such time as any sentence imposed under this section has been served.

C. Mandatory Jail Sentence Required. In addition to the penalties hereinabove provided, the court shall, upon a first conviction, impose a mandatory jail sentence of not less than 48 consecutive hours nor more than 240 hours with emphasis on serving in the drunk tank of the jail, or require the person to work in a community service work program for not less than 24 hours nor more than 50 hours and, in addition to the jail sentence or the work in the community service work program, order the person to participate in an assessment and educational series at a licensed alcohol rehabilitation facility. [Ord. 5-83 §§ 1.3 – 1.5. Code 1988 § 8-3-2.1].

10.15.030 Penalties – Second offense.

Upon a second conviction within five years after a first conviction under this chapter, the court shall, in addition to the penalties provided for under HMC 10.15.020, impose a mandatory jail sentence of not less than 240 consecutive hours nor more than 720 hours with emphasis on serving in the drunk tank of the jail, or require the person to work in a community service work program for not less than 80 hours nor more than 240 hours and, in addition to the jail sentence or work in the community service program, order the person to participate in an assessment and educational series at a licensed alcohol rehabilitation facility and the court may, in its discretion, order the person to obtain treatment at an alcohol rehabilitation facility. [Ord. 5-83 § 1.5. Code 1988 § 8-3-2.2].

10.15.040 Penalties – Subsequent.

Upon a subsequent conviction within five years after a second conviction under this chapter, the court shall, in addition to the penalties provided for under HMC 10.15.020 and 10.15.030, impose a mandatory jail sentence of not less than 720 nor more than 2,160 hours with emphasis on serving in the drunk tank of the jail, or require the person to work in a community service work project for not less than 240 nor more than 720 hours and, in addition to the jail sentence or work in the community service work program, order the person to obtain treatment at an alcohol rehabilitation facility. [Ord. 5-83 § 1.5. Code 1988 § 8-3-2.3].

10.15.050 Conditions for termination of probation for second and subsequent offenders – Payment of fees and restitution required.

Probation or parole resulting from a conviction for a violation of HMC 10.15.020, 10.15.030 or 10.15.040 shall not be terminated and the department of public safety shall not reinstate any license suspended or revoked as a result of such conviction, if it is a second or subsequent such conviction within five years, until and unless the convicted person has furnished evidence satisfactory to the department that all fines and fees, including fees for restitution, and rehabilitation costs, assessed against the person, have been paid. [Ord. 5-83 § 1.5. Code 1988 § 8-3-3].

10.15.060 Change of plea to reckless driving not to affect mandatory participation in alcohol rehabilitation program.

The provisions of HMC 10.15.020, 10.15.030 and 10.15.040 that require a sentencing court to order a convicted person to participate in an assessment and educational series at a licensed alcohol rehabilitation facility, or obtain, mandatorily, treatment at an alcohol rehabilitation facility, or do any combination of those things, apply to a conviction for a violation of HMC 10.15.220 that qualifies as a prior offense under HMC 10.15.080, so as to require the court to render the same order regarding education or treatment at an alcohol rehabilitation facility, or both, in connection with a first, second, or subsequent conviction under HMC 10.15.220 that qualifies as a prior offense under HMC 10.15.080, as he would render in connection with applying respectively, the first, second, or subsequent conviction requirements of HMC 10.15.020, 10.15.030 and 10.15.040.

For purposes of determining whether a conviction under HMC 10.15.220 which qualified as a prior conviction under HMC 10.15.080 is a first, second, or subsequent conviction under this section, a previous conviction under either HMC 10.15.010 or 10.15.220 is deemed a prior conviction. Any alcohol rehabilitation program and any community based or other education program provided for in this section must be approved by the department of social services. [Ord. 5-83 § 1.6. Code 1988 § 8-3-4].

10.15.070 Change of plea permitted – Conditions.

When the prosecution agrees to a plea of guilty or no contest to a charge of a violation of HMC 10.15.220 in satisfaction of, or as a substitute for, an original charge of a violation of HMC 10.15.010, the prosecution shall state for the record a factual basis for the plea, including whether or not there had been consumption of alcohol or drugs, or a combination of both, by the defendant in connection with the offense. The statement shall be an offer of proof of the facts which show whether or not there was consumption of alcohol or drugs, or a combination of both, by the defendant, in connection with the offense. [Ord. 5-83 § 1.7.1. Code 1988 § 8-3-5.1].

10.15.080 Effect of change – To constitute prior offense.

The court shall advise the defendant before accepting the plea offered under this section of the consequences of a violation of HMC 10.15.220 as follows: If the court accepts the defendant’s plea of guilty or no contest to a charge of violating HMC 10.15.220, and the prosecutor states for the record that there was consumption of alcohol or drugs, or a combination of both, by the defendant in connection with the offense, the resulting conviction shall be a prior offense for the purposes of HMC 10.15.030 and 10.15.040. [Ord. 5-83 § 1.7.2. Code 1988 § 8-3-5.2].

10.15.090 Court to notify department of public safety.

The court shall notify the department of public safety of each conviction of HMC 10.15.220 which shall be a prior offense for the purposes of HMC 10.15.030 and 10.15.040. [Ord. 5-83 § 1.7.3. Code 1988 § 8-3-5.3].

10.15.100 Arrest permitted for violation resulting in accident – Conditions.

A peace officer may, without a warrant, arrest a person for a violation of HMC 10.15.010 when the violation is coupled with an accident or collision in which the person is involved and when the violation has, in fact, been committed, although not in his presence, if the officer has reasonable cause to believe that the violation was committed by the person. [Ord. 5-83 § 1.8. Code 1988 § 8-3-6].

10.15.110 Suspension of license.

The department of public safety shall suspend for a period of 90 days the operator’s license of any person convicted for the first time under HMC 10.15.010 and shall revoke for one year the license of any person otherwise convicted under this section, except that the department may subtract from any suspension period the number of days for which a license was previously suspended under Section 41-2-130, Utah Code Annotated 1953, if the previous suspension was based on the same occurrence which the record of conviction is based upon. (Section 41-6-44, Utah Code Annotated 1953) [Ord. 5-83 § 1.9. Code 1988 § 8-3-7].

10.15.120 Adoption of provisions in state code.

The provisions of Sections 41-6-44.3, 41-6-44.5 and 41-6-44.8, Utah Code Annotated 1953, hereby are adopted by reference, of which three copies have heretofore been filed in the office of the city recorder. [Ord. 5-83 § 2. Code 1988 § 8-3-8].

10.15.130 Implied consent for test.

Any person operating a motor vehicle in this municipality shall be deemed to have given his consent to a chemical test of his breath, blood, or urine for the purpose of determining whether he was driving or in actual physical control of a motor vehicle while having a blood alcohol content statutorily prohibited, or while under the influence of alcohol, any drug, or combination of alcohol and any drug as detailed in HMC 10.15.010 so long as the test is or tests are administered at the direction of a peace officer having grounds to believe that person to have been driving or in actual physical control of a motor vehicle while having a blood alcohol content statutorily prohibited, or while under the influence of alcohol, any drug, or combination of alcohol and any drug as detailed in HMC 10.15.010. A peace officer shall determine which of the aforesaid tests shall be administered.

No person who has been requested under this section to submit to a chemical test or tests of his breath, blood, or urine shall have the right to select the test or tests to be administered. The failure or inability of a peace officer to arrange for any specific test is not a defense with regard to taking a test requested by a peace officer and shall not be a defense in any criminal, civil, or administrative proceeding resulting from a person’s refusal to submit to the requested test or tests. [Ord. 5-83 § 3.1. Code 1988 § 8-3-9.1].

10.15.140 Refusal to submit to test.

If the person has been placed under arrest and has thereafter been requested by a peace officer to submit to any one or more of the chemical tests provided for in HMC 10.15.130 and refuses to submit to the chemical test or tests, the peace officer requesting the test or tests shall warn the person that a refusal to submit to the test or tests can result in revocation of his license to operate a motor vehicle. Following the warning, unless the person immediately requests the chemical test or tests as offered by a peace officer be administered, no test shall be given and a peace officer shall submit a sworn report to the department of public safety within five days after the date of the arrest that he had grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle while having a blood alcohol content statutorily prohibited or while under the influence of alcohol or any drug or combination of alcohol and any drug as detailed in HMC 10.15.010 and that the person had refused to submit to a chemical test or tests as set forth in HMC 10.15.130. [Ord. 5-83 § 3.2. Code 1988 § 8-3-9.2].

10.15.150 Test permitted when person is incapable of refusal.

Any person who is dead, unconscious, or in any other condition rendering him incapable of refusal to submit to any such chemical test or tests shall be deemed not to have withdrawn the consent provided for in HMC 10.15.130 and the test or tests may be administered whether such person has been arrested or not. [Ord. 5-83 § 3.3. Code 1988 § 8-3-9.3].

10.15.160 Test results to be available to tested person.

Upon the request of the person who was tested, the results of such test or tests shall be made available to him. [Ord. 5-83 § 3.4. Code 1988 § 8-3-9.4].

10.15.170 Persons authorized to withdraw blood for testing.

Only a physician, registered nurse, practical nurse or person authorized under Section 26-1-30(19), Utah Code Annotated 1953, acting at the request of a peace officer, can withdraw blood for the purpose of determining the alcoholic or drug content therein. This limitation shall not apply to taking of a urine or breath specimen. Any physician, registered nurse, practical nurse or person authorized under Section 26-1-30(19), Utah Code Annotated 1953, who, at the direction of a peace officer, draws a sample of blood from any person whom a peace officer has reason to believe is driving in violation of this chapter, or hospital or medical facility at which such sample is drawn, shall be immune from any civil or criminal liability arising therefrom, provided such test is administered according to standard medical practice. [Ord. 5-83 § 3.5. Code 1988 § 8-3-9.5].

10.15.180 Additional tests permitted.

The person to be tested may, at his own expense, have a physician of his own choosing administer a chemical test in addition to the test or tests administered at the direction of the peace officer. The failure or inability to obtain such additional test shall not affect admissability of the results of the test or tests taken at the direction of the peace officer, nor preclude nor delay the test or tests to be taken at the direction of a peace officer. Such additional test shall be subsequent to the test or tests administered at the direction of a peace officer. [Ord. 5-83 § 3.6. Code 1988 § 8-3-9.6].

10.15.190 Counsel not required for test.

For the purpose of determining whether to submit to a chemical test or tests, the person to be tested shall not have the right to consult an attorney nor shall such a person be permitted to have an attorney, physician or other person present as a condition for the taking of any test. [Ord. 5-83 § 3.7. Code 1988 § 8-3-9.7].

10.15.200 Refusal of test admissible in court.

If a person under arrest refuses to submit to a chemical test or tests under the provisions of HMC 10.15.130 through this section, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol or any drug or combination of alcohol and any drug. (Section 41-6-44.10, Utah Code Annotated 1953) [Ord. 5-83 § 3.8. Code 1988 § 8-3-9.8].

10.15.210 Driving recreational vehicles while under the influence prohibited.

It is unlawful for any person who is under the influence of intoxicating liquor or any narcotic drugs to drive or be in actual physical control of any recreational vehicle within this municipality. Violators will be subject to all procedures, implied consent, presumptions, and punishment provisions provided for under HMC 10.15.020, 10.15.030, 10.15.040 and 10.15.130 through 10.15.200. It is also unlawful and punishable under HMC 10.15.130 through 10.15.200 for any person, after being placed under arrest for violation of this chapter, to refuse to submit to any one of the chemical tests provided. (Section 41-22-14, Utah Code Annotated 1953) [Ord. 5-83 § 4. Code 1988 § 8-3-10].

10.15.220 Reckless driving prohibited.

Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. [Ord. 5-83 § 5.1. Code 1988 § 8-3-11.1].

10.15.230 Penalty for reckless driving.

Every person convicted of reckless driving shall be guilty of a class B misdemeanor. Upon a first conviction, the penalty is a minimum term of imprisonment for a period of not less than five days or by a fine of not less than $25.00. On a second or subsequent conviction, the penalty is a minimum term of imprisonment for not less than 10 days, or by a minimum fine of not less than $50.00. (Section 41-4-45, Utah Code Annotated 1953) [Ord. 5-83 § 5.2. Code 1988 § 8-3-11.2].

10.15.240 Purpose of additional fines.

In each case where a defendant is convicted of violating HMC 10.15.010 or a criminal prohibition that he was charged with violating as a result of a plea bargain after having been originally charged with violating HMC 10.15.010, the court, including justice of peace courts, shall, at the time of sentencing, assess up to $150.00 for a first conviction and up to $299.00 for each subsequent conviction, above any fine imposed and to be collected by the court or an entity appointed by the court, for the purpose of funding programs described in Section 63-43-11, Utah Code Annotated 1953. [Ord. 5-83 § 6.1. Code 1988 § 8-3-12.1].

10.15.250 Treatment to be paid by defendant.

In addition to the fees provided for in HMC 10.15.240, the court shall impose against such a defendant further assessments, above any fine imposed, and to be collected by the court or an entity appointed by the court, to fully compensate agencies which treat the defendant for their costs. (Section 63-43-1, Utah Code Annotated 1953) [Ord. 5-83 § 6.2. Code 1988 § 8-3-12.2].

10.15.260 Reduction in charge – Penalty.

A person originally charged with violating HMC 10.15.010, 10.15.210, or 10.15.220 who shall, as the result of a plea bargain, have the charge reduced, shall be punished by a fine of at least $299.00 but not more than $1,000 or by imprisonment. [Ord. 5-83 § 7. Code 1988 § 8-3-13].

10.15.270 Motor vehicle defined.

For purposes of this chapter, a motor vehicle constitutes any self-propelled vehicle and includes, but is not limited to, any automobile, truck, van, motorcycle, all-terrain vehicle, train, engine, watercraft, or aircraft. [Ord. 5-83 § 8.3. Code 1988 § 8-3-14].