DUI - DWI
28-1381. Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing; classification
A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor,
drugs or vapor releasing substances if the person is impaired to the slightest degree.
2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the
alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.
3. While there is any drug defined in section 13-3401 or its metabolite in the person's body.
4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the
person has an alcohol concentration of 0.04 or more.
B. It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug
under the laws of this state.
C. A person who is convicted of a violation of this section is guilty of a class 1 misdemeanor.
D. A person using a drug prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 is not guilty of violating
subsection A, paragraph 3 of this section.
E. In any prosecution for a violation of this section, the state shall allege, for the purpose of classification and sentencing pursuant to this
section, all prior convictions of violating this section, section 28-1382 or section 28-1383 occurring within the past thirty-six months, unless there
is an insufficient legal or factual basis to do so.
F. At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be
granted.
G. In a trial, action or proceeding for a violation of this section or section 28-1383 other than a trial, action or proceeding involving driving or
being in actual physical control of a commercial vehicle, the defendant's alcohol concentration within two hours of the time of driving or being in
actual physical control as shown by analysis of the defendant's blood, breath or other bodily substance gives rise to the following presumptions:
1. If there was at that time 0.05 or less alcohol concentration in the defendant's blood, breath or other bodily substance, it may be presumed that the
defendant was not under the influence of intoxicating liquor.
2. If there was at that time in excess of 0.05 but less than 0.08 alcohol concentration in the defendant's blood, breath or other bodily substance,
that fact shall not give rise to a presumption that the defendant was or was not under the influence of intoxicating liquor, but that fact may be
considered with other competent evidence in determining the guilt or innocence of the defendant.
3. If there was at that time 0.08 or more alcohol concentration in the defendant's blood, breath or other bodily substance, it may be presumed that the
defendant was under the influence of intoxicating liquor.
H. Subsection G of this section does not limit the introduction of any other competent evidence bearing on the question of whether or not the defendant
was under the influence of intoxicating liquor.
I. A person who is convicted of a violation of this section:
1. Shall be sentenced to serve not less than ten consecutive days in jail and is not eligible for probation or suspension of execution of sentence
unless the entire sentence is served.
2. Shall pay a fine of not less than two hundred fifty dollars.
3. May be ordered by a court to perform community restitution.
4. Shall pay an additional assessment of five hundred dollars to be deposited by the state treasurer in the prison construction and operations fund
established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court,
the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the
assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
5. Shall pay an additional assessment of five hundred dollars to be deposited by the state treasurer in the public safety equipment fund established by
section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall
transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to
the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
6. Shall be required by the department, on report of the conviction, to equip any motor vehicle the person operates with a certified ignition interlock
device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified
ignition interlock device for more than twelve months beginning on the date of reinstatement of the person's driving privilege following a suspension
or revocation or on the date of the department's receipt of the report of conviction, whichever occurs later. The person who operates a motor vehicle
with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.
J. Notwithstanding subsection I, paragraph 1 of this section, at the time of sentencing the judge may suspend all but twenty-four consecutive hours of
the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete
the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order
to show cause to the defendant as to why the remaining jail sentence should not be served.
K. If within a period of eighty-four months a person is convicted of a second violation of this section or is convicted of a violation of this section
and has previously been convicted of a violation of section 28-1382 or 28-1383 or an act in another jurisdiction that if committed in this state would
be a violation of this section or section 28-1382 or 28-1383, the person:
1. Shall be sentenced to serve not less than ninety days in jail, thirty days of which shall be served consecutively, and is not eligible for probation
or suspension of execution of sentence unless the entire sentence has been served.
2. Shall pay a fine of not less than five hundred dollars.
3. Shall be ordered by a court to perform at least thirty hours of community restitution.
4. Shall have the person's driving privilege revoked for one year. The court shall report the conviction to the department. On receipt of the report,
the department shall revoke the person's driving privilege and shall require the person to equip any motor vehicle the person operates with a certified
ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with
a certified ignition interlock device for more than twelve months beginning on the date of reinstatement of the person's driving privilege following a
suspension or revocation or on the date of the department's receipt of the report of conviction, whichever occurs later. The person who operates a
motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.
5. Shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the prison construction and
operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a
justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall
transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
6. Shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the public safety equipment
fund established by section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice
court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit
the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
L. Notwithstanding subsection K, paragraph 1 of this section, at the time of sentencing, the judge may suspend all but thirty days of the sentence if
the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered
alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause as
to why the remaining jail sentence should not be served.
M. In applying the eighty-four month provision of subsection K of this section, the dates of the commission of the offense shall be the determining
factor, irrespective of the sequence in which the offenses were committed.
N. A second violation for which a conviction occurs as provided in this section shall not include a conviction for an offense arising out of the same
series of acts.
DUI Blood & Breath
28-1388. Blood and breath tests; violation; classification; admissible evidence
A. If blood is drawn under section 28-1321, only a physician, a registered nurse or another qualified person may withdraw blood for the purpose of
determining the alcohol concentration or drug content in the blood. The qualifications of the individual withdrawing the blood and the method used to
withdraw the blood are not foundational prerequisites for the admissibility of a blood alcohol content determination made pursuant to this subsection.
B. If a law enforcement officer administers a duplicate breath test and the person tested is given a reasonable opportunity to arrange for an
additional test pursuant to subsection C of this section, a sample of the person's breath does not have to be collected or preserved.
C. The person tested shall be given a reasonable opportunity to arrange for any physician, registered nurse or other qualified person of the person's
own choosing to administer a test or tests in addition to any 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 or tests taken at the direction of a law
enforcement officer.
D. If a person under arrest refuses to submit to a test or tests under section 28-1321, whether or not a sample was collected pursuant to subsection E
of this section or a search warrant, evidence of refusal is admissible in any civil or criminal action or other proceeding. The issue of refusal is an
issue of fact to be determined by the trier of fact in all cases.
E. Notwithstanding any other law, if a law enforcement officer has probable cause to believe that a person has violated section 28-1381 and a sample of
blood, urine or other bodily substance is taken from that person for any reason, a portion of that sample sufficient for analysis shall be provided to
a law enforcement officer if requested for law enforcement purposes. A person who fails to comply with this subsection is guilty of a class 1
misdemeanor.
F. A person who collects blood, urine or any other bodily substance under this section or any hospital, laboratory or clinic employing or using the
services of the person does not incur any civil liability as a result of this activity if requested by a law enforcement officer to collect blood,
urine or other bodily substances unless the person, while performing the activity, acts with gross negligence.
G. A statement by the defendant that the defendant was driving a vehicle that was involved in an accident resulting in injury to or death of any person
is admissible in any criminal proceeding without further proof of corpus delicti if it is otherwise admissible.
DUI Drivers License
28-1385.
Administrative license suspension for driving under the influence or for homicide or assault involving a motor vehicle; report; hearing; summary
review; ignition interlock device requirement
A. A law enforcement officer shall forward to the department a certified report as prescribed in subsection B of this section, subject to the penalty
for perjury prescribed by section 28-1561, if both of the following occur:
1. The officer arrests a person for a violation of section 4-244, paragraph 33, section 28-1381, section 28-1382 or section 28-1383 or for a violation
of title 13, chapter 11 or section 13-1201 or 13-1204 involving a motor vehicle.
2. The person submits to a blood or breath alcohol test permitted by section 28-1321 or any other law or a sample of blood is obtained pursuant to
section 28-1388 and the results are either not available or the results indicate either of the following:
(a) 0.08 or more alcohol concentration in the person's blood or breath.
(b) 0.04 or more alcohol concentration in the person's blood or breath if the person was driving or in actual physical control of a commercial motor
vehicle.
B. The officer shall make the certified report required by subsection A of this section on forms supplied or approved by the department. The report
shall state information that is relevant to the enforcement action, including:
1. Information that adequately identifies the arrested person.
2. A statement of the officer's grounds for belief that the person was driving or in actual physical control of a motor vehicle in violation of section
4-244, paragraph 33, section 28-1381, section 28-1382 or section 28-1383 or committed a violation of title 13, chapter 11 or section 13-1201 or 13-1204
involving a motor vehicle.
3. A statement that the person was arrested for a violation of section 4-244, paragraph 33, section 28-1381, section 28-1382 or section 28-1383 or for
a violation of title 13, chapter 11 or section 13-1201 or 13-1204 involving a motor vehicle.
4. A report of the results of the blood or breath alcohol test that was administered, if the results are available.
C. The officer shall also serve an order of suspension on the person on behalf of the department. The order of suspension:
1. Is effective fifteen days after the date it is served.
2. Shall require the immediate surrender of any license or permit to drive that is issued by this state and that is in the possession or control of the
person.
3. Shall contain information concerning the right to a summary review and hearing, including information concerning the hearing as required by section
28-1321, subsections G and H.
4. Shall be accompanied by printed forms ready to mail to the department that the person may fill out and sign to indicate the person's desire for a
hearing.
5. Shall be entered on the department's records on receipt of the report by the officer and a copy of the order of suspension.
6. Shall inform the person that the person's driving privilege, license, permit, right to apply for a license or permit or nonresident operating
privilege may be issued or reinstated following the period of suspension only if the person completes alcohol or other drug screening.
7. Shall contain information on alcohol or other drug education and treatment programs that are provided by a facility approved by the department of
health services.
D. If the blood alcohol concentration test result is unavailable at the time the test is administered, the result shall be forwarded to the department
before the hearing held pursuant to this section in a form prescribed by the director.
E. If the license or permit is not surrendered pursuant to subsection C of this section, the officer shall state the reason for the nonsurrender. If a
valid license or permit is surrendered, the officer shall issue a temporary driving permit that is valid for fifteen days. The officer shall forward a
copy of the completed order of suspension, a copy of any completed temporary permit and any driver license or permit taken into possession under this
section to the department within five days after the issuance of the order of suspension along with the report.
F. The department shall suspend the affected person's license or permit to drive or right to apply for a license or permit or any nonresident operating
privilege for not less than ninety consecutive days from that date. If the person is otherwise qualified, the department may reinstate the person's
driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege following the period of suspension only
if the violator completes alcohol or other drug screening.
G. Notwithstanding subsections A through F of this section, the department shall suspend the driving privileges of the person described in subsection A
of this section for not less than thirty consecutive days and shall restrict the driving privileges of the person for not less than sixty consecutive
additional days to travel between the person's place of employment and residence and during specified periods of time while at employment, to travel
between the person's place of residence and the person's secondary or postsecondary school, according to the person's employment or educational
schedule, to travel between the person's place of residence and the office of the person's probation officer for scheduled appointments or to travel
between the person's place of residence and a screening, education or treatment facility for scheduled appointments if the person:
1. Did not cause a death or a serious physical injury as defined in section 13-105 to another person during the course of conduct out of which the
current action arose.
2. Has not been convicted of a violation of section 4-244, paragraph 33, section 28-1381, section 28-1382 or section 28-1383 within eighty-four months
of the date of commission of the acts out of which the current action arose. The dates of commission of the acts are the determining factor in applying
the eighty-four month provision.
3. Has not had the person's privilege to drive suspended pursuant to this section or section 28-1321 within eighty-four months of the date of
commission of the acts out of which the current action arose.
4. Provides satisfactory evidence to the department of the person's completion of alcohol or other drug screening that is ordered by the department. If
the person does not complete alcohol or other drug screening, the department may impose a ninety day suspension pursuant to this section.
H. If the officer does not serve an order of suspension pursuant to subsection C of this section and if the department does not receive the report of
the results of the blood or breath alcohol test pursuant to subsection B, paragraph 4 of this section, but subsequently receives the results and the
results indicate 0.08 or more alcohol concentration in the person's blood or breath, or a blood or breath alcohol concentration of 0.04 or more and the
person was driving or in actual physical control of a commercial motor vehicle, the department shall notify the person named in the report in writing
sent by mail that fifteen days after the date of issuance of the notice the department will suspend the person's license or permit, driving privilege
or nonresident driving privilege. The notice shall also state that the department will provide an opportunity for a hearing and administrative review
if the person requests a hearing or review in writing and the request is received by the department within fifteen days after the notice is sent.
I. A timely request for a hearing stays the suspension until a hearing is held, except that the department shall not return any surrendered license or
permit to the person but may issue temporary permits to drive that expire no later than when the department has made its final decision. If the person
is a resident without a license or permit or has an expired license or permit, the department may allow the person to apply for a restricted license or
permit. If the department determines the person is otherwise entitled to the restricted license or permit, the department shall issue, but retain, the
license or permit, subject to this section. All hearings requested under this section shall be conducted in the same manner and under the same
conditions as provided in section 28-3306.
J. For the purposes of this section, the scope of the hearing shall include only the following issues:
1. Whether the officer had reasonable grounds to believe the person was driving or was in actual physical control of a motor vehicle while under the
influence of intoxicating liquor.
2. Whether the person was placed under arrest for a violation of section 4-244, paragraph 33, section 28-1381, section 28-1382 or section 28-1383 or
for a violation of title 13, chapter 11 or section 13-1201 or 13-1204 involving a motor vehicle.
3. Whether a test was taken, the results of which indicated the alcohol concentration in the person's blood or breath at the time the test was
administered of either:
(a) 0.08 or more.
(b) 0.04 or more if the person was driving or in actual physical control of a commercial motor vehicle.
4. Whether the testing method used was valid and reliable.
5. Whether the test results were accurately evaluated.
K. The results of the blood or breath alcohol test shall be admitted on establishing the requirements in section 28-1323 or 28-1326.
L. If the department determines at the hearing to suspend the affected person's privilege to operate a motor vehicle, the suspension provided in this
section is effective fifteen days after giving written notice of the suspension, except that the department may issue or extend a temporary license
that expires on the effective date of the suspension. If the person is a resident without a license or permit or has an expired license or permit to
operate a motor vehicle in this state, the department shall deny the issuance of a license or permit to the person for not less than ninety consecutive
days. The department may reinstate the person's driving privilege, license, permit, right to apply for a license or permit or nonresident operating
privilege following the period of suspension only if the violator completes alcohol or other drug screening.
M. A person may apply for a summary review of an order issued pursuant to this section instead of a hearing at any time before the effective date of
the order. The person shall submit the application in writing to any department driver license examining office together with any written explanation
as to why the department should not suspend the driving privilege. The agent of the department receiving the notice shall issue to the person an
additional driving permit that expires twenty days from the date the request is received. The department shall review all reports submitted by the
officer and any written explanation submitted by the person and shall determine if the order of suspension should be sustained or cancelled. The
department shall not hold a hearing, and the review is not subject to title 41, chapter 6. The department shall notify the person of its decision
before the temporary driving permit expires.
N. If the suspension or determination that there should be a denial of issuance is not sustained after a hearing or review, the ruling is not
admissible in and does not have any effect on any civil or criminal court proceeding.
O. If it has been determined under the procedures of this section that a nonresident's privilege to operate a motor vehicle in this state has been
suspended, the department shall give information either in writing or by electronic means of the action taken to the motor vehicle administrator of the
state of the person's residence and of any state in which the person has a license.
DUI Extreme
28-1382. Driving or actual physical control while under the extreme influence of intoxicating liquor; trial by jury; sentencing; classification
A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state if the person has an alcohol concentration as
follows within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed
either before or while driving or being in actual physical control of the vehicle:
1. 0.15 or more but less than 0.20.
2. 0.20 or more.
B. A person who is convicted of a violation of this section is guilty of driving or being in actual physical control of a vehicle while under the
extreme influence of intoxicating liquor.
C. At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be
granted.
D. A person who is convicted of a violation of this section:
1. Shall be sentenced to serve not less than thirty consecutive days in jail and is not eligible for probation or suspension of execution of sentence
unless the entire sentence is served if the person is convicted of a violation of subsection A, paragraph 1 of this section. A person who is convicted
of a violation of subsection A, paragraph 2 of this section shall be sentenced to serve not less than forty-five consecutive days in jail and is not
eligible for probation or suspension of execution of sentence unless the entire sentence is served.
2. Shall pay a fine of not less than two hundred fifty dollars, except that a person who is convicted of a violation of subsection A, paragraph 2 of
this section shall pay a fine of not less than five hundred dollars. The fine prescribed in this paragraph and any assessments, restitution and
incarceration costs shall be paid before the assessment prescribed in paragraph 3 of this subsection.
3. Shall pay an additional assessment of two hundred fifty dollars. If the conviction occurred in the superior court or a justice court, the court
shall transmit the monies received pursuant to this paragraph to the county treasurer. If the conviction occurred in a municipal court, the court shall
transmit the monies received pursuant to this paragraph to the city treasurer. The city or county treasurer shall transmit the monies received to the
state treasurer. The state treasurer shall deposit the monies received in the driving under the influence abatement fund established by section
28-1304.
4. May be ordered by a court to perform community restitution.
5. Shall be required by the department, on receipt of the report of conviction, to equip any motor vehicle the person operates with a certified
ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with
a certified ignition interlock device for more than twelve months beginning on the date of reinstatement of the person's driving privilege following a
suspension or revocation or on the date of the department's receipt of the report of conviction, whichever occurs later. The person who operates a
motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.
6. Shall pay an additional assessment of one thousand dollars to be deposited by the state treasurer in the prison construction and operations fund
established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court,
the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the
assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
7. Shall pay an additional assessment of one thousand dollars to be deposited by the state treasurer in the public safety equipment fund established by
section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall
transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to
the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
E. If within a period of eighty-four months a person is convicted of a second violation of this section or is convicted of a violation of this section
and has previously been convicted of a violation of section 28-1381 or 28-1383 or an act in another jurisdiction that if committed in this state would
be a violation of this section or section 28-1381 or 28-1383, the person:
1. Shall be sentenced to serve not less than one hundred twenty days in jail, sixty days of which shall be served consecutively, and is not eligible
for probation or suspension of execution of sentence unless the entire sentence has been served if the person is convicted of a violation of subsection
A, paragraph 1 of this section. A person who is convicted of a violation of subsection A, paragraph 2 of this section shall be sentenced to serve not
less than one hundred eighty days in jail, ninety of which shall be served consecutively, and is not eligible for probation or suspension of execution
of sentence unless the entire sentence has been served.
2. Shall pay a fine of not less than five hundred dollars, except that a person who is convicted of a violation of subsection A, paragraph 2 of this
section shall pay a fine of not less than one thousand dollars. The fine prescribed in this paragraph and any assessments, restitution and
incarceration costs shall be paid before the assessment prescribed in paragraph 3 of this subsection.
3. Shall pay an additional assessment of two hundred fifty dollars. If the conviction occurred in the superior court or a justice court, the court
shall transmit the monies received pursuant to this paragraph to the county treasurer. If the conviction occurred in a municipal court, the court shall
transmit the monies received pursuant to this paragraph to the city treasurer. The city or county treasurer shall transmit the monies received to the
state treasurer. The state treasurer shall deposit the monies received in the driving under the influence abatement fund established by section
28-1304.
4. Shall be ordered by a court to perform at least thirty hours of community restitution.
5. Shall have the person's driving privilege revoked for at least one year. The court shall report the conviction to the department. On receipt of the
report, the department shall revoke the person's driving privilege and shall require the person to equip any motor vehicle the person operates with a
certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person
operates with a certified ignition interlock device for more than twelve months beginning on the date of reinstatement of the person's driving
privilege following a suspension or revocation or on the date of the department's receipt of the report of conviction, whichever is later. The person
who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.
6. Shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the prison construction and
operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a
justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall
transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
7. Shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the public safety equipment
fund established by section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice
court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit
the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.
F. In applying the eighty-four month provision of subsection E of this section, the dates of the commission of the offense shall be the determining
factor, irrespective of the sequence in which the offenses were committed.
G. A second violation for which a conviction occurs as provided in this section shall not include a conviction for an offense arising out of the same
series of acts.
H. A person who is convicted of a violation of this section is guilty of a class 1 misdemeanor.
DUI Ignition Interlock
28-1401. Special ignition interlock restricted driver licenses; application fee
A. A person whose class D or class G license has been suspended or revoked for a first offense of section 28-1321 or section 28-1383, subsection A,
paragraph 3, may apply to the department for a special ignition interlock restricted driver license that allows a person to operate a motor vehicle
during the period of suspension or revocation subject to the restrictions prescribed in section 28-1402 and the certified ignition interlock device
requirements prescribed in article 5 of this chapter if the person's privilege to operate a motor vehicle has been suspended or revoked due to an
alcohol related offense pursuant to either of the following:
1. Section 28-1321, if the person meets the criteria of section 28-1321, subsection P.
2. Section 28-1383, if the person meets the criteria of section 28-1383, subsection K and the person presents evidence that is satisfactory to the
director that shows that the person has completed screening and treatment.
B. An applicant for a special ignition interlock restricted driver license shall pay an application fee in an amount to be determined by the director.
C. The department shall issue a special ignition interlock restricted driver license during the period of a court ordered restriction pursuant to
sections 28-3320 and 28-3322 subject to the restrictions prescribed in section 28-1402 and the certified ignition interlock requirements prescribed in
article 5 of this chapter.
D. If the department issues a special ignition interlock restricted driver license, the department shall not delete a suspension or revocation from its
records.
E. The granting of a special ignition interlock restricted driver license does not reduce or eliminate the required use of an ignition interlock device
pursuant to section 28-3319.
DUI Prior Convictions
28-1387.
Prior convictions; alcohol or other drug screening, education and treatment; license suspension; supervised probation; civil liability; procedures
A. The court shall allow the allegation of a prior conviction or any other pending charge of a violation of section 28-1381, 28-1382 or 28-1383 or an
act in another jurisdiction that if committed in this state would be a violation of section 28-1381, 28-1382 or 28-1383 filed twenty or more days
before the date the case is actually tried and may allow the allegation of a prior conviction or any other pending charge of a violation of section
28-1381, 28-1382 or 28-1383 or an act in another jurisdiction that if committed in this state would be a violation of section 28-1381, 28-1382 or
28-1383 filed at any time before the date the case is actually tried if this state makes available to the defendant when the allegation is filed a copy
of any information obtained concerning the prior conviction or other pending charge. Any conviction may be used to enhance another conviction
irrespective of the dates on which the offenses occurred within the eighty-four month provision. For the purposes of this article, an order of a
juvenile court adjudicating a person delinquent is equivalent to a conviction.
B. In addition to any other penalties prescribed by law, the judge shall order a person who is convicted of a violation of section 28-1381, 28-1382 or
28-1383 to complete alcohol or other drug screening that is provided by a facility approved by the department of health services or a probation
department. If a judge determines that the person requires further alcohol or other drug education or treatment, the person may be required pursuant to
court order to obtain alcohol or other drug education or treatment under the court's supervision from an approved facility. The judge may review an
education or treatment determination at the request of the state, the defendant or the probation officer or on the judge's initiative. The person shall
pay the costs of the screening, education or treatment unless, after considering the person's ability to pay all or part of the costs, the court waives
all or part of the costs. If a person is referred to a screening, education or treatment facility, the facility shall report to the court whether the
person has successfully completed the screening, education or treatment program. The court may accept evidence of a person's completion of an alcohol
or other drug screening, education or treatment program pursuant to section 28-1445 as sufficient to meet the requirements of this section or section
28-1381, 28-1382 or 28-1383 or may order the person to complete additional alcohol or other drug screening, education or treatment programs. If a
person has previously been ordered to complete an alcohol or other drug screening, education or treatment program pursuant to this section, the judge
shall order the person to complete an alcohol or other drug screening, education or treatment program unless the court determines that alternative
sanctions are more appropriate.
C. After a person who is sentenced pursuant to section 28-1381, subsection I has served twenty-four consecutive hours in jail or after a person who is
sentenced pursuant to section 28-1381, subsection K or section 28-1382, subsection D or E has served forty-eight consecutive hours in jail and after
the court receives confirmation that the person is employed or is a student, the court may provide in the sentence that the defendant, if the defendant
is employed or is a student and can continue the defendant's employment or schooling, may continue the employment or schooling for not more than twelve
hours a day nor more than five days a week. The person shall spend the remaining day, days or parts of days in jail until the sentence is served and
shall be allowed out of jail only long enough to complete the actual hours of employment or schooling.
D. Unless the license of a person convicted under section 28-1381 or 28-1382 has been or is suspended pursuant to section 28-1321 or 28-1385, the
department on receipt of the abstract of conviction of a violation of section 28-1381 or 28-1382 shall suspend the license of the affected person for
not less than ninety consecutive days.
E. When the department receives notification that the person meets the criteria provided in section 28-1385, subsection G, the department shall suspend
the driving privileges of the person for not less than thirty consecutive days and shall restrict the driving privileges of the person for not less
than sixty consecutive additional days to travel between any of the following:
1. The person's place of employment and residence and during specified periods of time while at employment.
2. The person's place of residence and the person's secondary or postsecondary school, according to the person's employment or educational schedule.
3. The person's place of residence and a screening, education or treatment facility for scheduled appointments.
4. The person's place of residence and the office of the person's probation officer for scheduled appointments.
F. If a person is placed on probation for violating section 28-1381 or 28-1382, the probation shall be supervised unless the court finds that
supervised probation is not necessary or the court does not have supervisory probation services.
G. Any political subdivision processing or using the services of a person ordered to perform community restitution pursuant to section 28-1381 or
28-1382 does not incur any civil liability to the person ordered to perform community restitution as a result of these activities unless the political
subdivision or its agent or employee acts with gross negligence.
H. If a person fails to complete the community restitution ordered pursuant to section 28-1381, subsection K or section 28-1382, subsection E, the
court may order alternative sanctions if the court determines that alternative sanctions are more appropriate.
I. Except for another violation of this article, the state shall not dismiss a charge of violating any provision of this article unless there is an
insufficient legal or factual basis to pursue that charge.
PUT A FORMER JUDGE TO WORK FOR YOU.
David M. Roer, Attorney at Law, P.C.
505 West Ray Road, Suite 2
Chandler, Arizona 85225
dmr@roerlaw.com
480-821-5088/fax 480-821-5535
Toll free number 877-676-1417
Weekend and Evening Appointments Available
Affordable payment plans available upon qualification
MAJOR CREDIT CARDS ACCEPTED
