2005 Idaho Code - 67-7037 — TEST OF OPERATOR FOR ALCOHOL CONCENTRATION, PRESENCE OF DRUGS OR OTHER INTOXICATING SUBSTANCES

                                  TITLE  67
                      STATE GOVERNMENT AND STATE AFFAIRS
                                  CHAPTER 70
                            IDAHO SAFE BOATING ACT
    67-7037.  TEST OF OPERATOR FOR ALCOHOL CONCENTRATION, PRESENCE OF DRUGS OR
OTHER INTOXICATING SUBSTANCES. (1) Any person who operates or is in actual
physical control of a vessel on the waters of the state of Idaho shall be
deemed to have given his consent to evidentiary testing for concentration of
alcohol, as defined in section 67-7034, 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
operating or in actual physical control of a vessel in violation of the
provisions of section 67-7034, Idaho Code, or section 67-7035, 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 dollars ($200) for
    refusing to take the test;
    (b)  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;
    (c)  If he does not request a hearing or does not prevail at the hearing,
    the court shall sustain the civil penalty; and
    (d)  After submitting to the evidentiary testing he may, when practicable,
    at his own expense, have additional tests made by a person of his own
    choosing.
    (4)  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)  If the operator refuses to submit to or complete evidentiary testing
after the information has been given in accordance with subsection (3) of this
section:
    (a)  A written request may be made, by the operator, within seven (7)
    calendar days of receipt of the complaint and summons, for a hearing
    before the court. If requested, the hearing must be held within thirty
    (30) days of the arrest unless this period is, for good cause shown,
    extended by the court 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 dollar ($200)
    civil penalty immediately unless it finds that the peace officer did not
    have legal cause to stop and request the operator to take the test or that
    the request violated the operator's civil rights;
    (b)  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 dollar ($200) civil penalty.
    (6)  A sustained civil penalty under this section shall be a civil penalty
separate and apart from any other penalty imposed for a violation of other
Idaho vessel statutes or for a conviction of an offense pursuant to this
chapter, and may be appealed to the district court.
    (7)  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.
    (8)  If a person does not pay the civil penalty imposed as provided in
this section  within thirty (30) days of the time the penalty was imposed, the
prosecuting authority 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 penalty, attorney's fees,
costs, and interest may be assessed against any person who fails to pay the
civil penalty.
    (9)  A peace officer is empowered to order evidentiary testing as provided
in section 18-8002(6), Idaho Code.
    (10)  Any written notice required by this section shall be effective upon
mailing.
    (11)  For the purposes of this section "evidentiary testing" shall mean a
procedure or test or series of procedures or tests, including the additional
test authorized in subsection (12) of this section, utilized to determine the
concentration of alcohol or the presence of drugs or other intoxicating
substances in a person.
    (12)  A person who submits to a breath test for alcohol concentration, as
defined in subsection (5) of section 67-7034, 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
operating 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 report the facts upon which that belief is
based.

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