Chapter 058
2011 -- S 0925 SUBSTITUTE A
Enacted 06/08/11
A N A C T
RELATING TO CRIMINAL PROCEDURES -- COUNSELING
Introduced By: Senators McCaffrey, and Jabour
Date Introduced: April 28, 2011
It is enacted by the
General Assembly as follows:
SECTION 1. Section 12-29-5 of the General Laws in Chapter
12-29 entitled "Domestic
Violence Prevention
Act" is hereby amended to read as follows:
12-29-5.
Disposition of domestic violence cases. -- (a) Every person convicted of or
placed on probation for a crime involving domestic violence
or whose case is filed pursuant to
section 12-10-12 where the defendant pleads nolo contendere, in addition to
any other sentence
imposed or counseling ordered, shall be ordered by the judge
to attend, at his or her own expense,
a batterer's intervention program appropriate to
address his or her violent behavior; provided,
however, that the court may permit a servicemember
or veteran to complete any court-approved
counseling program administered or approved by the Veterans’
Administration. This order shall
be included in the conditions of probation. Failure of
the defendant to comply with the order shall
be a basis for violating probation and/or the provisions
of section 12-10-12. This provision shall
not be suspended or waived by the court.
(b) Every person
convicted of or placed on probation for a crime involving domestic
violence, as enumerated in section 12-29-2 or whose case if
filed pursuant to section 12-10-12
where the defendant pleads guilty or nolo
contendere, in addition to other court costs or
assessments imposed, shall be ordered to pay a one hundred
twenty-five dollar ($125)
assessment. Eighty percent (80%) of the assessment collected
pursuant to this section shall be
provided to the Rhode Island Coalition Against Domestic
Violence for programs to assist victims
of domestic violence and twenty percent (20%) of the
assessment shall be deposited as general
revenue.
(c) (1) Every person convicted of an offense punishable as a
misdemeanor involving
domestic violence as defined in section 12-29-2 shall:
(i)
For a second violation be imprisoned for a term of not less than ten (10) days
and not
more than one year.
(ii) For a third and
subsequent violation be deemed guilty of a felony and be imprisoned
for a term of not less than one year and not more than
ten (10) years.
(2) No jail sentence
provided for under this section can be suspended.
(3) Nothing in this
subsection shall be construed as limiting the discretion of the judges
to impose additional sanctions authorized in sentencing.
(d) For the purposes of
this section, "batterers intervention
program" means a program
which is certified by the batterers intervention program
standards oversight committee according
to minimum standards, pursuant to sections 12-29-5.1,
12-29-5.2, and 12-29-5.3.
(e) For purposes of
this section, “servicemember” means a person who is
presently
serving in the armed forces of the
thereof, or the National Guard. “Veteran” means a person who has served in the armed forces,
including the Coast Guard of the
Guard, and has been discharged under other than
dishonorable conditions.
SECTION 2. Section 31-27-2 of the General Laws in Chapter
31-27 entitled "Motor
Vehicle Offenses" is
hereby amended to read as follows:
31-27-2. Driving under influence of liquor or drugs. -- (a) Whoever drives or
otherwise operates any vehicle in the state while under the
influence of any intoxicating liquor,
drugs, toluene, or any controlled substance as defined in
chapter 28 of title 21, or any
combination of these, shall be guilty of a misdemeanor except as
provided in subdivision (d)(3)
and shall be punished as provided in subsection (d) of
this section.
(b) (1) Any person charged under subsection (a) of this section
whose blood alcohol
concentration is eight one-hundredths of one percent (.08%) or more
by weight as shown by a
chemical analysis of a blood, breath, or urine sample shall be
guilty of violating subsection (a) of
this section. This provision shall not preclude a
conviction based on other admissible evidence.
Proof of guilt under this section may also be based on
evidence that the person charged was under
the influence of intoxicating liquor, drugs, toluene, or
any controlled substance defined in chapter
28 of title 21, or any combination of these, to a
degree which rendered the person incapable of
safely operating a vehicle. The fact that any person charged
with violating this section is or has
been legally entitled to use alcohol or a drug shall not
constitute a defense against any charge of
violating this section.
(2) Whoever drives or
otherwise operates any vehicle in the state with a blood presence
of any scheduled controlled substance as defined within
chapter 28 of title 21, as shown by
analysis of a blood or urine sample, shall be guilty of a
misdemeanor and shall be punished as
provided in subsection (d) of this section.
(c) In any criminal
prosecution for a violation of subsection (a) of this section, evidence
as to the amount of intoxicating liquor, toluene, or any
controlled substance as defined in chapter
28 of title 21, or any combination of these, in the
defendant's blood at the time alleged as shown
by a chemical analysis of the defendant's breath, blood,
or urine or other bodily substance shall be
admissible and competent, provided that evidence is presented
that the following conditions have
been complied with:
(1) The defendant has
consented to the taking of the test upon which the analysis is
made. Evidence that the defendant had refused to submit to
the test shall not be admissible unless
the defendant elects to testify.
(2) A true copy of the
report of the test result was mailed within seventy-two (72) hours
of the taking of the test to the person submitting to a
breath test.
(3) Any person
submitting to a chemical test of blood, urine, or other body fluids shall
have a true copy of the report of the test result mailed
to him or her within thirty (30) days
following the taking of the test.
(4) The test was
performed according to methods and with equipment approved by the
director of the department of health of the state of
(5) Equipment used for
the conduct of the tests by means of breath analysis had been
tested for accuracy within thirty (30) days preceding the
test by personnel qualified as
hereinbefore provided, and breathalyzer operators shall be
qualified and certified by the
department of health within three hundred sixty-five (365) days
of the test.
(6) The person arrested
and charged with operating a motor vehicle while under the
influence of intoxicating liquor, toluene, or any controlled
substance as defined in chapter 28 of
title 21, or, any combination of these in violation of
subsection (a) of this section was afforded the
opportunity to have an additional chemical test. The officer
arresting or so charging the person
shall have informed the person of this right and afforded
him or her a reasonable opportunity to
exercise this right, and a notation to this effect is made in
the official records of the case in the
police department. Refusal to permit an additional chemical
test shall render incompetent and
inadmissible in evidence the original report.
(d)
(1) (i) Every person found to have violated
subdivision (b)(1) of this section shall be
sentenced as follows: for a first violation whose blood alcohol
concentration is eight one-
hundredths of one percent (.08%) but less than one-tenth of one
percent (.1%) by weight or who
has a blood presence of any scheduled controlled
substance as defined in subdivision (b)(2) shall
be subject to a fine of not less than one hundred
dollars ($100) nor more than three hundred
dollars ($300), shall be required to perform ten (10) to
sixty (60) hours of public community
restitution, and/or shall be imprisoned for up to one year. The
sentence may be served in any unit
of the adult correctional institutions in the discretion
of the sentencing judge and/or shall be
required to attend a special course on driving while
intoxicated or under the influence of a
controlled substance,; provided, however, that the
court may permit a servicemember or veteran
to complete any court-approved counseling program
administered or approved by the Veterans'
Administration, and his or her driver's license shall be suspended
for thirty (30) days up to one
hundred eighty (180) days.
(ii) Every person
convicted of a first violation whose blood alcohol concentration is one-
tenth of one percent (.1%) by weight or above but less than
fifteen hundredths of one percent
(.15%) or whose blood alcohol concentration is unknown
shall be subject to a fine of not less than
one hundred ($100) dollars nor more than four hundred
dollars ($400) and shall be required to
perform ten (10) to sixty (60) hours of public community
restitution and/or shall be imprisoned
for up to one year. The sentence may be served in any
unit of the adult correctional institutions in
the discretion of the sentencing judge. The person's
driving license shall be suspended for a
period of three (3) months to twelve (12) months. The
sentencing judge shall require attendance
at a special course on driving while intoxicated or
under the influence of a controlled substance
and/or alcoholic or drug treatment for the individual;
provided, however, that the court may
permit a servicemember or veteran
to complete any court approved counseling program
administered or approved by the Veterans' Administration.
(iii) Every person
convicted of a first offense whose blood alcohol concentration is
fifteen hundredths of one percent (.15%) or above, or who is
under the influence of a drug,
toluene, or any controlled substance as defined in
subdivision (b)(1) shall be subject to a fine of
five hundred dollars ($500) and shall be required to
perform twenty (20) to sixty (60) hours of
public community restitution and/or shall be imprisoned for
up to one year. The sentence may be
served in any unit of the adult correctional institutions in
the discretion of the sentencing judge.
The person's driving license shall be suspended for a
period of three (3) months to eighteen (18)
months. The sentencing judge shall require attendance at a
special course on driving while
intoxicated or under the influence of a controlled substance
and/or alcohol or drug treatment for
the individual; provided, however, that the court may
permit a servicemember or veteran to
complete any court-approved counseling program administered or
approved by the Veterans'
Administration.
(2) (i) Every person convicted of a
second violation within a five (5) year period with a
blood alcohol concentration of eight one-hundredths of one
percent (.08%) or above but less than
fifteen hundredths of one percent (.15%) or whose blood
alcohol concentration is unknown or
who has a blood presence of any controlled substance as
defined in subdivision (b)(2), and every
person convicted of a second violation within a five (5)
year period regardless of whether the
prior violation and subsequent conviction was a violation
and subsequent conviction under this
statute or under the driving under the influence of liquor or
drugs statute of any other state, shall
be subject to a mandatory fine of four hundred dollars
($400). The person's driving license shall
be suspended for a period of one year to two (2) years,
and the individual shall be sentenced to
not less than ten (10) days nor more than one year in
jail. The sentence may be served in any unit
of the adult correctional institutions in the discretion
of the sentencing judge; however, not less
than forty-eight (48) hours of imprisonment shall be
served consecutively. The sentencing judge
shall require alcohol or drug treatment for the individual,;
provided, however, that the court may
permit a servicemember or veteran
to complete any court approved counseling program
administered or approved by the Veterans' Administration and may prohibit that person from
operating a motor vehicle that is not equipped with an ignition
interlock system for a period of
one year to two (2) years following the completion of the
sentence as provided in section 31-27-
2.8.
(ii) Every person
convicted of a second violation within a five (5) year period whose
blood alcohol concentration is fifteen hundredths of one
percent (.15%) or above by weight as
shown by a chemical analysis of a blood, breath, or urine
sample or who is under the influence of
a drug, toluene, or any controlled substance as defined
in subdivision (b)(1) shall be subject to
mandatory imprisonment of not less than six (6) months nor more
than one year, a mandatory fine
of not less than one thousand dollars ($1,000) and a
mandatory license suspension for a period of
two (2) years from the date of completion of the sentence
imposed under this subsection. The
sentencing judge shall require alcohol or drug treatment for the
individual; provided, however,
that the court may permit a servicemember
or veteran to complete any court approved counseling
program administered or approved by the Veterans'
Administration.
(3) (i) Every person convicted of a
third or subsequent violation within a five (5) year
period with a blood alcohol concentration of eight
one-hundredths of one percent (.08%) or above
but less than fifteen hundredths of one percent (.15%) or
whose blood alcohol concentration is
unknown or who has a blood presence of any scheduled
controlled substance as defined in
subdivision (b)(2) regardless of whether any prior violation and
subsequent conviction was a
violation and subsequent conviction under this statute or under
the driving under the influence of
liquor or drugs statute of any other state, shall be guilty
of a felony and be subject to a mandatory
fine of four hundred ($400) dollars. The person's driving
license shall be suspended for a period
of two (2) years to three (3) years, and the individual
shall be sentenced to not less than one year
and not more than three (3) years in jail. The sentence
may be served in any unit of the adult
correctional institutions in the discretion of the sentencing
judge; however, not less than forty-
eight (48) hours of imprisonment shall be served consecutively.
The sentencing judge shall
require alcohol or drug treatment for the individual,;
provided, however, that the court may
permit a servicemember or veteran
to complete any court-approved counseling program
administered or approved by the Veterans' Administration, and may prohibit that person from
operating a motor vehicle that is not equipped with an ignition
interlock system for a period of
two (2) years following the completion of the sentence as
provided in section 31-27-2.8.
(ii) Every person
convicted of a third or subsequent violation within a five (5) year
period whose blood alcohol concentration is fifteen
hundredths of one percent (.15%) above by
weight as shown by a chemical analysis of a blood, breath,
or urine sample or who is under the
influence of a drug, toluene or any controlled substance as
defined in subdivision (b)(1) shall be
subject to mandatory imprisonment of not less than three (3)
years nor more than five (5) years, a
mandatory fine of not less than one thousand dollars ($1,000)
nor more than five thousand dollars
($5,000) and a mandatory license suspension for a
period of three (3) years from the date of
completion of the sentence imposed under this subsection.
(iii) In addition to
the foregoing penalties, every person convicted of a third or
subsequent violation within a five (5) year period regardless of
whether any prior violation and
subsequent conviction was a violation and subsequent conviction
under this statute or under the
driving under the influence of liquor or drugs statute of any
other state shall be subject, in the
discretion of the sentencing judge, to having the vehicle owned
and operated by the violator
seized and sold by the state of
to the general fund.
(4) Whoever drives or
otherwise operates any vehicle in the state while under the
influence of any intoxicating liquor, drugs, toluene, or any
controlled substance as defined in
chapter 28 of title 21, or any combination of these, when his
or her license to operate is
suspended, revoked or cancelled for operating under the
influence of a narcotic drug or
intoxicating liquor shall be guilty of a felony punishable by
imprisonment for not more than three
(3) years and by a fine or
not more than three thousand dollars ($3,000). The court shall require
alcohol and/or drug treatment for the individual; provided,
the penalties provided for in
subdivision 31-27-2(d)(4) shall not apply to an individual who
has surrendered his or her license,
and served the court ordered period of suspension, but
who, for any reason, has not had their
license reinstated after the period of suspension,
revocation, or suspension has expired; provided,
further the individual shall be subject to the provisions of
paragraphs 31-27-2(d)(2)(i) or (ii) or
31-27-22(d)(3)(i), (ii), or (iii) regarding subsequent offenses, and any
other applicable provision
of section 31-27-2.
(5) (i) For purposes of determining the
period of license suspension, a prior violation
shall constitute any charge brought and sustained under the
provisions of this section or section
31-27-2.1.
(ii) Any person over
the age of eighteen (18) who is convicted under this section for
operating a motor vehicle while under the influence of alcohol,
other drugs, or a combination of
these, while a child under the age of thirteen (13) years
was present as a passenger in the motor
vehicle when the offense was committed may be sentenced to a
term of imprisonment of not more
than one year and further shall not be entitled to the
benefit of suspension or deferment of this
sentence. The sentence imposed under this section may be
served in any unit of the adult
correctional institutions in the discretion of the sentencing
judge.
(6) (i) Any person convicted of a
violation under this section shall pay a highway
assessment fine of five hundred dollars ($500) which shall be
deposited into the general fund. The
assessment provided for by this subsection shall be collected
from a violator before any other
fines authorized by this section.
(ii) Any person
convicted of a violation under this section shall be assessed a fee of
eighty-six dollars ($86).
(7) (i) If the person convicted of violating
this section is under the age of eighteen (18)
years, for the first violation he or she shall be required
to perform ten (10) to sixty (60) hours of
public community restitution, and the juvenile's driving
license shall be suspended for a period of
six (6) months, and may be suspended for a period up to
eighteen (18) months. The sentencing
judge shall also require attendance at a special course on
driving while intoxicated or under the
influence of a controlled substance and alcohol or drug education
and/or treatment for the
juvenile. The juvenile may also be required to pay a highway
assessment fine of no more than
five hundred dollars ($500), and the assessment imposed
shall be deposited into the general fund.
(ii) If the person convicted
of violating this section is under the age of eighteen (18)
years, for a second or subsequent violation regardless of
whether any prior violation and
subsequent conviction was a violation and subsequent under this
statute or under the driving
under the influence of liquor or drugs statute of any other
state, he or she shall be subject to a
mandatory suspension of his or her driving license until such
time as he or she is twenty-one (21)
years of age and may, in the discretion of the sentencing
judge, also be sentenced to the Rhode
Island training school for a period of not more than
one year and/or a fine of not more than five
hundred dollars ($500).
(8) Any person
convicted of a violation under this section may undergo a clinical
assessment at the
education. Should this clinical assessment determine problems
of alcohol, drug abuse, or
psychological problems associated with alcoholic or drug abuse,
this person shall be referred to
an appropriate facility, licensed or approved by the
department of mental health, retardation and
hospitals for treatment placement, case management, and
monitoring. In the case of a
servicemember or veteran, the court may order that the person be
evaluated through the Veterans'
Administration. Should the clinical assessment determine problems of
alcohol, drug abuse, or
psychological problems associated with alcohol or drug abuse, the
person may have their
treatment, case management and monitoring administered or
approved by the Veterans'
Administration.
(e) Percent by weight
of alcohol in the blood shall be based upon milligrams of alcohol
per one hundred (100) cubic centimeters of blood.
(f) (1) There is established an alcohol and drug safety unit within
the division of motor
vehicles to administer an alcohol safety action program. The
program shall provide for placement
and follow-up for persons who are required to pay the
highway safety assessment. The alcohol
and drug safety action program will be administered in
conjunction with alcohol and drug
programs licensed by the department of mental health
retardation and hospitals.
(2) Persons convicted
under the provisions of this chapter shall be required to attend a
special course on driving while intoxicated or under the
influence of a controlled substance,
and/or participate in an alcohol or drug treatment program;
provided, however, that the court may
permit a servicemember or veteran
to complete any court-approved counseling program
administered or approved by the Veterans' Administration. The course shall take into
consideration any language barrier which may exist as to any person
ordered to attend, and shall
provide for instruction reasonably calculated to communicate
the purposes of the course in
accordance with the requirements of the subsection. Any costs
reasonably incurred in connection
with the provision of this accommodation shall be borne by
the person being retrained. A copy of
any violation under this section shall be forwarded by
the court to the alcohol and drug safety
unit. In the event that persons convicted under the
provisions of this chapter fail to attend and
complete the above course or treatment program, as ordered by
the judge, then the person may be
brought before the court, and after a hearing as to why the
order of the court was not followed,
may be sentenced to jail for a period not exceeding one
year.
(3) The alcohol and
drug safety action program within the division of motor vehicles
shall be funded by general revenue appropriations.
(g) The director of the
health department of the state of
make and file with the secretary of state regulations
which prescribe the techniques and methods
of chemical analysis of the person's body fluids or
breath, and the qualifications and certification
of individuals authorized to administer this testing and
analysis.
(h) Jurisdiction for
misdemeanor violations of this section shall be with the district court
for persons eighteen (18) years of age or older and to
the family court for persons under the age
of eighteen (18) years. The courts shall have full
authority to impose any sentence authorized and
to order the suspension of any license for violations of
this section. All trials in the district court
and family court of violations of the section shall be
scheduled within thirty (30) days of the
arraignment date. No continuance or postponement shall be granted
except for good cause shown.
Any continuances that are necessary shall be granted
for the shortest practicable time. Trials in
superior court are not required to be scheduled within thirty
(30) days of the arraignment date.
(i)
No fines, suspensions, assessments, alcohol or drug treatment programs, course
on
driving while intoxicated or under the influence of a
controlled substance, public community
restitution, or jail provided for under this section can be
suspended.
(j) An order to attend
a special course on driving while intoxicated that shall be
administered in cooperation with a college or university
accredited by the state, shall include a
provision to pay a reasonable tuition for the course in an
amount not less than twenty-five dollars
($25.00), and a fee of one hundred seventy-five
dollars ($175), which fee shall be deposited into
the general fund.
(k) For the purposes of
this section, any test of a sample of blood, breath, or urine for the
presence of alcohol, which relies in whole or in part upon the
principle of infrared light
absorption is considered a chemical test.
(l) If any provision of
this section or the application of any provision shall for any reason
be judged invalid, such a judgment shall not affect,
impair, or invalidate the remainder of the
section, but shall be confined in this effect to the
provision or application directly involved in the
controversy giving rise to the judgment.
(m) For the purposes
of this section, "servicemember" means a
person who is presently
serving in the armed forces of the
thereof, or the National Guard. "Veteran" means a person who has served in the armed forces,
including the Coast Guard of the
Guard, and has been discharged under other than
dishonorable conditions.
SECTION 3. This act shall take effect upon passage.
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LC02479/SUB A
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