HP0567, LD 762, item 1, An Act To Bring Maine's Laws Concerning Implied Consent in Operating a Motor Vehicle into Compliance with Recent Opinions of the United States Supreme Court

An Act To Bring Maine's Laws Concerning Implied Consent in Operating a Motor Vehicle into Compliance with Recent Opinions of the United States Supreme Court

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 5 MRSA §20071, sub-§1, as amended by PL 1999, c. 448, §1, is further amended to read:

1. Alcohol-related or other drug-related motor vehicle incident. "Alcohol-related or other drug-related motor vehicle incident" means a conviction or administrative action resulting in the suspension of a motor vehicle operator's license for a violation under former Title 29, section 1311-A; Title 29, section 1312, subsection 10-A; Title 29, section 1312-C; Title 29, section 1312-B; Title 29, section 1313-B; Title 29, section 2241, subsection 1, paragraph N; Title 29, section 2241-G, subsection 2, paragraph B, subparagraph (2); or Title 29, section 2241-J; Title 29-A, section 1253; Title 29-A, section 2411; Title 29-A, section 2453; Title 29-A, section 2454, subsection 2; Title 29-A, section 2456; Title 29-A, section 2457; Title 29-A, section 2472, subsection 3, paragraph B and subsection 4; Title 29-A, section 2503; or Title 29-A, sections 2521 to 2523 ; or Title 29-A, section 2525 or the rules adopted by the Department of the Secretary of State for the suspension of commercial drivers' licenses.

Sec. 2. 29-A MRSA §2401, sub-§5, as amended by PL 1995, c. 368, Pt. AAA, §4, is further amended to read:

5. Failure to submit to a test, fails to submit to a test or failed to submit to a test. "Failure to submit to a test," "fails to submit to a test" or "failed to submit to a test" means failure to comply with the duty to submit to and complete a chemical breath test under section 2521 or 2525.

Sec. 3. 29-A MRSA §2472, sub-§4, as amended by PL 2011, c. 335, §7, is further amended to read:

4. Duty to submit to test. A person under 21 years of age who operates a motor vehicle shall submit to a chemical breath test if there is probable cause to believe that person has operated a motor vehicle with an alcohol level of more than 0.00 grams per 100 milliliters of blood or 210 liters of breath or while under the influence of a specific category of drug, a combination of specific categories of drugs or a combination of alcohol and one or more specific categories of drugs. The provisions of subchapter 4 apply, except the suspension is:

A. Eighteen months for the first refusal; and

B. Thirty months for a 2nd or subsequent refusal.

If the Secretary of State determines that the person operated the motor vehicle at the time of the offense with a passenger under 21 years of age, an additional suspension period of 180 days must be imposed.

Sec. 4. 29-A MRSA §2521, as amended by PL 2013, c. 459, §§7 and 8, is further amended to read:

§ 2521. Implied consent to breath tests

1. Mandatory submission to test. If there is probable cause to believe a person has operated a motor vehicle while under the influence of intoxicants, that person shall submit to and complete a test to determine an alcohol level and the presence of a drug or drug metabolite by analysis of blood, breath or urine.

2. Type of test. A law enforcement officer shall administer a breath test unless, in that officer's determination, a breath test is unreasonable.

If a breath test is determined to be unreasonable, another chemical test must be administered in place of a breath test.

For a blood test the operator may choose a physician, if reasonably available.

3. Warnings. Neither a refusal to submit to a test nor a failure to complete a test may be used for any of the purposes specified in paragraph A, B or C unless the person has first been told that the refusal or failure will:

A. Result in suspension of that person's driver's license for a period up to 6 years;

B. Be admissible in evidence at a trial for operating under the influence of intoxicants; and

C. Be considered an aggravating factor at sentencing if the person is convicted of operating under the influence of intoxicants that, in addition to other penalties, will subject the person to a mandatory minimum period of incarceration.

4. Exclusion as evidence. A test result may not be excluded as evidence in a proceeding before an administrative officer or court solely as a result of the failure of the law enforcement officer to comply with the notice of subsection 3.

5. Suspension for refusal. The Secretary of State shall immediately suspend the license of a person who fails to submit to and complete a test.

6. Period of suspension. Except when a longer period of suspension is otherwise provided by law, the suspension is for a period of 275 days for the first refusal, 18 months for a 2nd refusal, 4 years for a 3rd refusal and 6 years for a 4th refusal.

7. Decision. A suspension must be removed if, after hearing pursuant to section 2483, it is determined that the person would not have failed to submit but for the failure of the law enforcement officer to give the warnings required by subsection 3.

8. Issues. If a hearing is requested in accordance with section 2483, in addition to specific issues required by a specific offense, the scope of the hearing must include whether:

A. There was probable cause to believe the person operated a motor vehicle while under the influence of intoxicants;

B. The person was informed of the consequences of failing to submit to a test; and

C. The person failed to submit to a test.

9. Results of test. On request, full information concerning a test must be made available to the person tested or that person's attorney by the law enforcement officer.

Sec. 5. 29-A MRSA §2522, sub-§1, as amended by PL 2013, c. 459, §9, is further amended to read:

1. Mandatory submission to test. If there is probable cause to believe that death has occurred or will occur as a result of an accident, an operator of a motor vehicle involved in the motor vehicle accident shall submit to a chemical breath test , as defined in section 2401, subsection 3, to determine an alcohol level or the presence of a drug or drug metabolite in the same manner as for OUI.

Sec. 6. 29-A MRSA §2522, sub-§2, as amended by PL 2003, c. 565, §1, is further amended to read:

2. Administration of test. The investigating law enforcement officer shall cause a blood breath test to be administered to the operator of the motor vehicle as soon as practicable following the accident and may also cause a breath test or another chemical test to be administered if the officer determines appropriate. The operator shall submit to and complete all tests administered. Except as otherwise provided in this section, testing must be conducted in accordance with section 2521.

Sec. 7. 29-A MRSA §2523, sub-§1, as amended by PL 2013, c. 459, §10, is further amended to read:

1. Mandatory submission to test. A person who operates a commercial motor vehicle shall submit to a breath test to determine that person's alcohol level or the presence of a drug or drug metabolite if there is probable cause to believe that the person has operated a commercial motor vehicle while having an alcohol level of 0.04 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath or while under the influence of drugs.

Sec. 8. 29-A MRSA §2523, sub-§3, ¶A, as amended by PL 2009, c. 447, §69, is further amended to read:

A. There is probable cause to believe the person operated a commercial motor vehicle while under the influence of drugs or with an alcohol level of 0.04 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath;

Sec. 9. 29-A MRSA §2525, sub-§1, as amended by PL 2011, c. 335, §14, is repealed.

SUMMARY

This bill brings the implied consent provisions concerning operating under the influence into compliance with recent case law from the United States Supreme Court that requires a search warrant before taking a sample of blood or urine from a person suspected of operating under the influence.

HP0567 LD 762	Session - 129th Maine Legislature		LR 1575 Item 1
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