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By TJ Jerke, Forum News Service, Published April 24 2013

ND attorney general says final DUI proposal will be tough

BISMARCK – The state’s top attorney said the Legislature’s proposal to increase penalties and curb drunken driving “is going to be tough.”

“I think people who are out drinking and thinking of driving will soon come to recognize this is a serious statute,” Wayne Stenehjem said Wednesday.

House Bill 1302, sponsored by Rep. Kim Koppelman, R-West Fargo, would ramp up the penalties for driving under the influence, add incentives to stay through mandatory participation in the 24/7 Sobriety Program and put funding into educational programs on the effects of drinking, among other provisions.

The final version of the bill, after it took on a few more changes by a conference committee last week, passed the House on Wednesday by a 69-23 vote. The Senate will have to pass it before it is sent to Gov. Jack Dalrymple for his signature.

24/7 Sobriety Program

Mandatory enrollment in the 24/7 Sobriety Program for anyone convicted of two or more DUI offenses, or if the driver’s blood alcohol content is higher than 0.16 on the first offense, is a provision in the bill Stenehjem said he particularly likes.

He says the program has shown large success since it was implemented in 2008.

The program requires offenders to go to their local sheriff’s office and perform a breath test twice a day, or put a secure continuous remote alcohol monitor, often called a SCRAM bracelet, around their ankle. The bracelet monitors alcohol that is emitted out of the skin.

If offenders fail to take or pass a test or alcohol is registered through the bracelet, they violate the terms of their probation and will go to jail.

“The consequences are swift and certain,” Stenehjem said. “If anyone violates the terms of probation, they will know right away since they will immediately be taken into custody.”

Stenehjem said the program also is effective since it makes an offender pay the $1 for the twice daily breathalyzer tests or a $50 bracelet fee and a $5 daily monitoring fee.

He said a Colorado-based company monitors the bracelets and emails his office if there is any violation.

The 24/7 program was created to monitor repeat DUI offenders. Since it has been effective, Stenehjem said many judges are expanding its use to other cases where alcohol is involved, such as domestic violence or child abuse.

Between Feb. 19, 2009, and Jan. 6, 2013, the state had 1,003 participants in the program, and 74 percent were compliant during their probation.

New felonies

The bill also creates new offenses of criminal vehicular homicide and criminal vehicular injury. There currently is no specific law regarding a death from a vehicle; most such cases are tried as a general negligent homicide or manslaughter charge. The bill also creates an aggravated DUI for a first-time offense if the driver has a blood alcohol content over 0.16.

Stenehjem said these new laws were requested by many North Dakota state’s attorneys who did not think the manslaughter and negligent homicide statutes adequately addressed cases in which a drunk driver caused the death or substantial or serious bodily injury of another person.

Currently, under the manslaughter statute, it is a Class B felony, and if it was charged as a negligent homicide, it is a Class C felony. The bill would make it a Class A felony to cause the death of another person if the driver is in violation of the DUI laws, punishable with a maximum of 20 years in jail, a $10,000 fine or both.

Another proposed change involves testing an impaired driver for alcohol.

Current law allows an officer to require an alcohol screening test without a search warrant.

The conference committee quickly drafted an amendment so North Dakota law would comply with a recent U.S. Supreme Court ruling. The bill now would require an officer to get a search warrant to obtain a blood sample if a person suspected of drunken driving refuses a test.

The bill would make anyone who refuses to submit to a breath or blood test guilty of a DUI regardless of blood alcohol content.

Debate

Wednesday’s floor debate drew a few concerns. The debate throughout the legislative session has been whether the proposed laws would be too strict or too lenient.

Rep. Craig Headland, R-Montpelier, said people don’t have any responsibility to parent their kids anymore as the Legislature keeps passing stricter and more invasive laws.

He was worried the bill would put too harsh of penalties on minors for drinking and driving. The bill says if a child is found to have an alcohol concentration of 0.02 when tested two hours after driving or being in physical control of a motor vehicle, the juvenile court shall require the child to participate in the 24/7 Sobriety Program.

“It’s a matter of liberties and rights as people,” Headland said. “Kids make mistakes. Are we going to lock everyone up for every little infringement?”

Rep. Ed Gruchalla, D-Fargo, has pushed for harsher first-time penalties to act as a deterrent to keep people from drinking and driving.

“I don’t think we’re putting enough emphasis in deterrent in this bill,” he said. “Studies show jail is the only equalizer. Some can afford to pay a $1,000 fine, some can’t, but nobody likes to sit in jail.”


Changes in penalties

The current version of the bill to curb drunken driving makes these changes in the penalties:

Current law

First offense: Class B misdemeanor, $250 fine, addiction evaluation, maximum 30 days in jail.

Second offense: Class B misdemeanor, $500, addiction evaluation, maximum 30 days jail, mandatory five days jail.

Third offense: Class A misdemeanor, $1,000 fine, addiction evaluation, one-year maximum sentence, 60 days jail, serving at least 10 consecutive days.

Fourth offense in seven years: Class A misdemeanor, $1,000 fine, addiction evaluation, one-year maximum sentence, 180 days in jail, serving at least 10 consecutive days.

Fifth offense in seven years: Class C felony, $1,000 fine, addiction evaluation, five-year maximum sentence, 180 days jail, serving at least 10 consecutive days.

Proposed law

First offense: Class B misdemeanor, $500 fine, up from $250; and addiction evaluation. If the blood alcohol concentration is at least 0.16, the offense is an aggravated first offense carrying a minimum $750 fine and two days in jail.

Second offense: Class B misdemeanor, at least 10 days in jail, up from five, with 48 hours served consecutively; $1,500 fine, up from $500; addiction evaluation; at least one year participation in 24/7 sobriety program.

Third offense: Class A misdemeanor, 120 days in jail, up from 60; $2,000 fine; one year probation; and 24/7 participation.

Fourth or subsequent offense: Class C felony, one year and one day mandatory jail, up from 180 days; would put individual in prison rather than a county jail, which doesn’t allow imprisonment longer than a year; at least $2,000 fine; two years supervised probation; and participation in 24/7.