2005 Idaho Code - 18-8002 — TESTS OF DRIVER FOR ALCOHOL CONCENTRATION, PRESENCE OF DRUGS OR OTHER INTOXICATING SUBSTANCES -- PENALTY AND SUSPENSION UPON REFUSAL OF TESTS

                                  TITLE  18
                            CRIMES AND PUNISHMENTS
                                  CHAPTER 80
                                MOTOR VEHICLES
    18-8002.  TESTS OF DRIVER FOR ALCOHOL CONCENTRATION, PRESENCE OF DRUGS OR
OTHER INTOXICATING SUBSTANCES -- PENALTY AND SUSPENSION UPON REFUSAL OF TESTS.
(1) Any person who drives or is in actual physical control of a motor vehicle
in this state shall be deemed to have given his consent to evidentiary testing
for concentration of alcohol as defined in section 18-8004, Idaho Code, and to
have given his consent to evidentiary testing for the presence of drugs or
other intoxicating substances, provided that such testing is administered at
the request of a peace officer having reasonable grounds to believe that
person has been driving or in actual physical control of a motor vehicle in
violation of the  provisions  of section 18-8004, Idaho Code, or section
18-8006, Idaho Code.
    (2)  Such person shall not have the right to consult with an attorney
before submitting to such evidentiary testing.
    (3)  At the time evidentiary testing for concentration of alcohol, or for
the presence of drugs or other intoxicating substances is requested, the
person shall be informed that if he refuses to submit to or if he fails to
complete, evidentiary testing:
    (a)  He is subject to a civil penalty of two hundred fifty dollars ($250)
    for refusing to take the test;
    (b)  His driver's license will be seized by the peace officer and a
    temporary permit will be issued; provided, however, that no peace officer
    shall issue a temporary permit pursuant to this section to a driver whose
    driver's license or permit has already been and is suspended or revoked
    because of previous violations, and in no instance shall a temporary
    permit be issued to a driver of a commercial vehicle who refuses to submit
    to or fails to complete an evidentiary test;
    (c)  He has the right to request a hearing within seven (7) days to show
    cause why he refused to submit to, or complete evidentiary testing;
    (d)  If he does not request a hearing or does not prevail at the hearing,
    the court shall sustain the civil penalty and his driver's license will be
    suspended absolutely for one year if this is his first refusal and two (2)
    years if this is his second refusal within ten (10) years; and
    (e)  After submitting to evidentiary testing he may, when practicable, at
    his own expense, have additional tests made by a person of his own
    choosing.
    (4)  If the motorist refuses to submit to or complete evidentiary testing
after the information has been given in accordance with subsection (3) above:
    (a)  He shall be fined a civil penalty of two hundred fifty dollars ($250)
    and his driver's license or permit shall be seized by the peace officer
    and forwarded to the court and a temporary permit shall be issued by the
    peace officer which allows him to operate a motor vehicle until the date
    of his hearing, if a hearing is requested, but in no event for more than
    thirty (30) days; provided, however, that no peace officer shall issue a
    temporary permit pursuant to this section to a driver whose driver's
    license or permit has already been and is suspended or revoked because of
    previous violations and in no instance shall a temporary permit be issued
    to a driver of a commercial vehicle who refuses to submit to or fails to
    complete an evidentiary test;
    (b)  A written request may be made within seven (7) calendar days for a
    hearing before the court; if requested, the hearing must be held within
    thirty (30) days of the seizure unless this period is, for good cause
    shown, extended by the court for one (1) additional thirty (30) day
    period. The court, in granting such an extension, may, for good cause
    shown, extend the defendant's temporary driving privileges for one (1)
    additional thirty (30) day period. The hearing shall be limited to the
    question of why the defendant did not submit to, or complete, evidentiary
    testing, and the burden of proof shall be upon the defendant; the court
    shall sustain a two hundred fifty dollar ($250) civil penalty immediately
    and suspend all the defendant's driving privileges immediately for one
    year for a first refusal and two (2) years for a second refusal within ten
    (10) years unless it finds that the peace officer did not have legal cause
    to stop and request him to take the test or that the request violated his
    civil rights;
    (c)  If a hearing is not requested by written notice to the court
    concerned within seven (7) calendar days, upon receipt of a sworn
    statement by the peace officer of the circumstances of the refusal, the
    court shall sustain a two hundred fifty dollar ($250) civil penalty and
    suspend the defendant's driving privileges for one year for a first
    refusal and two (2) years for a second refusal within ten (10) years,
    during which time he shall have absolutely no driving privileges of any
    kind; and
    (d)  After submitting to evidentiary testing at the request of the peace
    officer, he may, when practicable, at his own expense, have additional
    tests made by a person of his own choosing. The failure or inability to
    obtain an additional test or tests by a person shall not preclude the
    admission of results of evidentiary testing for alcohol concentration or
    for the presence of drugs or other intoxicating substances taken at the
    direction of the peace officer unless the additional test was denied by
    the peace officer.
    (5)  Any sustained civil penalty or suspension of driving privileges under
this section or section 18-8002A, Idaho Code, shall be a civil penalty
separate and apart from any other suspension imposed for a violation of other
Idaho motor vehicle codes or for a conviction of an offense pursuant to this
chapter, and may be appealed to the district court.
    (6)  No hospital, hospital officer, agent, or employee, or health care
professional licensed by the state of Idaho, whether or not such person has
privileges to practice in the hospital in which a body fluid sample is
obtained or an evidentiary test is made, shall incur any civil or criminal
liability for any act arising out of administering an evidentiary test for
alcohol concentration or for the presence of drugs or other intoxicating
substances at the request or order of a peace officer in the manner described
in this section and section 18-8002A, Idaho Code: provided, that nothing in
this section shall relieve any such person or legal entity from civil
liability arising from the failure to exercise the community standard of care.
    (a)  This immunity extends to any person who assists any individual to
    withdraw a blood sample for evidentiary testing at the request or order of
    a peace officer,  which individual is authorized to withdraw a blood
    sample under the provisions of section 18-8003, Idaho Code, regardless of
    the location where the blood sample is actually withdrawn.
    (b)  A peace officer is empowered to order an individual authorized in
    section 18-8003, Idaho Code, to withdraw a blood sample for evidentiary
    testing when the peace officer has probable cause to believe that the
    suspect has committed any of the following offenses:
         (i)   Aggravated driving under the influence of alcohol, drugs or
         other intoxicating substance as provided in section 18-8006, Idaho
         Code;
         (ii)  Vehicular manslaughter as provided in subsections (3)(a), (b)
         and (c) of section 18-4006, Idaho Code;
         (iii) Aggravated operating of a vessel on the waters of the state
         while under the influence of alcohol, drugs or other intoxicating
         substances as provided in section 67-7035, Idaho Code; or
         (iv)  Any criminal homicide involving a vessel on the waters of the
         state while under the influence of alcohol, drugs or other
         intoxicating substances.
    (c)  Nothing herein shall limit the discretion of the hospital
    administration to designate the qualified hospital employee responsible to
    withdraw the blood sample.
    (d)  The law enforcement agency that requests or orders withdrawal of the
    blood sample shall pay the reasonable costs to withdraw such blood sample,
    perform laboratory analysis, preserve evidentiary test results, and
    testify in judicial proceedings.
    (e)  The withdrawal of the blood sample may be delayed or terminated if:
         (i)   In the reasonable judgment of the hospital personnel withdrawal
         of the blood sample may result in serious bodily injury to hospital
         personnel or other patients; or
         (ii)  The licensed health care professional treating the suspect
         believes the withdrawal of the blood sample is contraindicated
         because of the medical condition of the suspect or other patients.
    (7)  "Actual physical control" as used in this section and section
18-8002A, Idaho Code, shall be defined as being in the driver's position of
the motor vehicle with the motor running or with the motor vehicle moving.
    (8)  Any written notice required by this section shall be effective upon
mailing.
    (9)  For the purposes of this section and section 18-8002A, Idaho Code,
"evidentiary testing" shall mean a procedure or test or series of procedures
or tests, including the additional test authorized in subsection (10) of this
section, utilized to determine the concentration of alcohol or the presence of
drugs or other intoxicating substances in a person.
    (10) A person who submits to a breath test for alcohol concentration, as
defined in subsection (4) of section 18-8004, Idaho Code, may also be
requested to submit to a second evidentiary test of blood or urine for the
purpose of determining the presence of drugs or other intoxicating substances
if the peace officer has reasonable cause to believe that a person was driving
under the influence of any drug or intoxicating substance or the combined
influence of alcohol and any drug or intoxicating substance. The peace officer
shall state in his or her report the facts upon which that belief is based.
    (11) Notwithstanding any other provision of law to the contrary, the civil
penalty imposed under the provisions of this section must be paid, as ordered
by the court, to the county justice fund or the county current expense fund
where the incident occurred. If a person does not pay the civil penalty
imposed as provided in this section within thirty (30) days of the imposition,
unless this period has been extended by the court for good cause shown, the
prosecuting attorney representing the political subdivision where the incident
occurred may petition the court in the jurisdiction where the incident
occurred to file the order imposing the civil penalty as an order of the
court. Once entered, the order may be enforced in the same manner as a final
judgment of the court. In addition to the civil penalty, attorney's fees,
costs and interest may be assessed against any person who fails to pay the
civil penalty.