MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Judiciary, Division A
By: Senator(s) Parker, Frazier, Stone, Norwood, Massey, Jackson (11th)
AN ACT TO CREATE THE DUI TRANSPARENCY ACT; TO AMEND SECTION 63-1-31, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT JURISDICTION FOR APPEAL OF DRIVER'S LICENSE SUSPENSION LIES IN THE CIRCUIT OR COUNTY COURT; TO CREATE NEW SECTION 63-1-58, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT SUSPENSION OR RESTRICTION OF DRIVING PRIVILEGES RUN CONSECUTIVELY AND NOT CONCURRENTLY; TO AMEND SECTION 63-11-5, MISSISSIPPI CODE OF 1972, TO REQUIRE A ONE-YEAR LICENSE SUSPENSION FOR REFUSAL FOR A PERSON WITH A PRIOR FIRST OFFENSE OR NONADJUDICATION; TO AMEND SECTION 63-11-21, MISSISSIPPI CODE OF 1972, TO MAKE TECHNICAL AMENDMENTS; TO AMEND SECTION 63-11-23, MISSISSIPPI CODE OF 1972, TO REVISE THE ADMINISTRATIVE PROCEDURE OF LICENSE SUSPENSION UNDER CERTAIN CIRCUMSTANCES; TO AMEND SECTION 63-11-25, MISSISSIPPI CODE OF 1972, TO REVISE THE DE NOVO APPEAL TO COURT OF AN ADMINISTRATIVE LICENSE SUSPENSION; TO AMEND SECTION 63-11-30, MISSISSIPPI CODE OF 1972, TO REVISE THE OFFENSE OF DRIVING UNDER THE INFLUENCE OF ALCOHOL OR OTHER DRUGS; TO AMEND SECTION 63-11-31, MISSISSIPPI CODE OF 1972, TO CONFORM THE REQUIREMENT OF INSTALLATION AND MAINTENANCE OF IGNITION-INTERLOCK DEVICES AND TO PLACE THE RESPONSIBILITY TO DETERMINE INDIGENCE ON THE TRIAL COURT; TO AMEND SECTION 63-11-37, MISSISSIPPI CODE OF 1972, TO REQUIRE COURT CLERKS TO SUBMIT CHARGING AND DISPOSITION INFORMATION TO THE DEPARTMENT OF PUBLIC SAFETY IN A TIMELY MANNER AND TO PROVIDE FOR SELF-AUTHENTICATING COURT RECORDS; TO AMEND SECTION 63-1-5, MISSISSIPPI CODE OF 1972, TO CONFORM; TO REQUIRE LAW ENFORCEMENT OFFICERS TO PERFORM NCIC CHECKS WHENEVER POSSIBLE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 63-1-31, Mississippi Code of 1972, is amended as follows:
63-1-31. When a person is
denied a license or any temporary driving permit after filing the proper
application, he shall have the right within sixty (60) days thereafter to file
a petition, in the county or circuit * * * court in the county wherein * * * the application was filed, praying
for a hearing in the matter before the judge of the court in which * * * the application is presented. * * * The judge * * * is hereby vested with
jurisdiction to hear such matters forthwith within term time or during
vacation, upon five (5) days' written notice to the officer who refused to
issue * * * the
license or any temporary driving permit. * * * The hearing shall be conducted at * * * a place as may suit the convenience
of the court. On the hearing of the petition, testimony may be taken, and the
court shall render * * *
judgment in the matter as it deems right and proper under the law and evidence.
SECTION 2. The following shall be codified as Section 63-1-58, Mississippi Code of 1972:
63-1-58. License suspensions and restrictions to run consecutively. Suspension or restriction of driving privileges for any person convicted of or nonadjudicated for violations of the Implied Consent Law or any administrative suspension imposed under this chapter shall run consecutively and not concurrently.
SECTION 3. Section 63-11-5, Mississippi Code of 1972, is amended as follows:
63-11-5. (1) Any person
who operates a motor vehicle * * *
in this state shall be deemed to have given his consent, subject to the
provisions of this chapter, to a chemical test or tests of his breath for the
purpose of determining alcohol concentration. A person shall give his consent
to a chemical test or tests of his breath, blood or urine for the purpose of
determining the presence in his body of any other substance which would impair
a person's ability to operate a motor vehicle. The test or tests shall be
administered at the direction of any highway patrol officer, any sheriff or his
duly commissioned deputies, any police officer in any incorporated
municipality, any national park ranger, any officer of a state-supported
institution of higher learning campus police force if * * * the officer is exercising this
authority in regard to a violation that occurred on campus property, or any
security officer appointed and commissioned pursuant to the Pearl River Valley
Water Supply District Security Officer Law of 1978 if such officer is exercising
this authority in regard to a violation that occurred within the limits of the
Pearl River Valley Water Supply District, when such officer has reasonable
grounds and probable cause to believe that the person was driving or had under
his actual physical control a motor vehicle upon the public streets or highways
of this state while under the influence of intoxicating liquor or any other
substance which had impaired such person's ability to operate a motor vehicle.
No such test shall be administered by any person who has not met all the
educational and training requirements of the appropriate course of study
prescribed by the Board on Law Enforcement Officers Standards and Training; * * * however, * * * sheriffs and elected chiefs of police shall
be exempt from such educational and training requirement. No such tests shall
be given by any officer or any agency to any person within fifteen (15) minutes
of consumption of any substance by mouth.
(2) If the officer has
reasonable grounds and probable cause to believe * * * the person to have been * * * operating a motor vehicle * * * while under the influence of intoxicating liquor, * * * the officer shall inform * * * the person that * * * failure to submit to * * * chemical test or tests of his breath shall
result in the suspension of * * * the privilege to operate a motor
vehicle * * * in this state for a period of
ninety (90) days * * * if the person has not previously been
convicted of or nonadjudicated for a violation of Section 63-11-30, or,
for a period of one (1) year * * *
if the person was previously convicted of or nonadjudicated for a
violation under Section 63-11-30.
(3) The traffic ticket, citation or affidavit issued to a person arrested for a violation of this chapter shall conform to the requirements of Section 63-9-21(3)(b), and, if filed electronically, shall conform to Section 63-9-21(8).
(4) * * * A person arrested under the
provisions of this chapter shall be informed that he has the right to telephone
for the purpose of requesting legal or medical assistance immediately after
being booked for a violation under this chapter.
(5) The Commissioner of
Public Safety and the Mississippi Forensics Laboratory created pursuant to
Section 45-1-17 are * * * authorized * * * to
adopt procedures, rules and regulations * * * applicable to the Implied Consent Law.
SECTION 4. Section 63-11-21, Mississippi Code of 1972, is amended as follows:
63-11-21. (1) If a
person refuses upon the request of a law enforcement officer to submit to a
chemical test of his breath designated by the law enforcement agency as
provided in Section 63-11-5, none shall be given, but the officer shall at that
point demand the driver's license of the person, who shall deliver his driver's
license into the hands of the officer. If a person refuses to submit to a
chemical test under the provisions of this chapter, the person shall be
informed by the law enforcement officer that the refusal to submit to the test
shall subject him to * * * suspension of the driving privilege
as prescribed * * * under Section * * *
63-11-23. The officer shall give the driver a receipt for his license
on forms prescribed and furnished by the Commissioner of Public Safety. The
officer shall forward the driver's license together with a sworn report to the
Commissioner of Public Safety stating that he had reasonable grounds and
probable cause to believe the person had been * * * operating a motor vehicle
while under the influence of intoxicating liquor * * * or any other substance which may impair a
person's mental or physical ability, stating such grounds, and that the person
had refused to submit to the chemical test of his breath upon request of the
law enforcement officer.
SECTION 5. Section 63-11-23, Mississippi Code of 1972, is amended as follows:
63-11-23. (1) Administrative license suspension for test refusal. The Commissioner of Public Safety, or his authorized agent, shall review the sworn report by a law enforcement officer as provided in Section 63-11-21.
(a) If upon
review the Commissioner of Public Safety, or his authorized agent, finds ( * * *i) that the law enforcement officer had
reasonable grounds and probable cause to believe the person had been * * * operating a motor vehicle * * * while under the influence of intoxicating liquor or any
other substance that may impair a person's mental or physical ability or is
under the influence of any drug or a controlled substance, the possession of
which is unlawful under the Mississippi Controlled Substances Law; ( * * *ii) that he refused to submit to the chemical
test upon request of the officer; and ( * * *iii) that the person was informed that
his license and driving privileges would be suspended or denied if he refused
to submit to the chemical test, then the Commissioner of Public Safety, or his
authorized agent, shall give notice to the licensee that his license or permit
to drive, or any nonresident operating privilege, shall be suspended thirty
(30) days after the date of the notice for a period of ninety (90) days * * * if the person has not
previously been convicted of or nonadjudicated for a violation of
Section 63-11-30, or, for a period of one (1) year * * * if
the person was previously convicted or nonadjudicated under Section 63-11-30. * * * If the commissioner or his
authorized agent determines that the license should not be suspended, he shall
return the license or permit to the licensee.
The notice of suspension
shall be in writing and * * *given in the manner provided in conform to Section 63-1-52 * * *.
(2) Extension or
suspension of privilege to drive; request for trial. (a) If
the chemical testing of a person's breath indicates the blood alcohol
concentration was eight one-hundredths percent (.08%) or more for persons who
are above the legal age to purchase alcoholic beverages under state law, or two
one-hundredths percent (.02%) or more for persons who are below the legal age
to purchase alcoholic beverages under state law, based upon grams of alcohol
per one hundred (100) milliliters of blood or grams of alcohol per two hundred
ten (210) liters of breath as shown by a chemical analysis of * * * the person's blood, * * * breath, or urine, the arresting officer
shall seize the license and give the driver a receipt for his license on forms
prescribed by the Commissioner of Public Safety and shall promptly forward the
license together with a sworn report to the Commissioner of Public Safety. The
receipt given a person * * * shall be valid as a permit to operate a motor
vehicle for * * * thirty (30) days in order that the defendant may be
processed through the court having original jurisdiction and a final
disposition had.
(b) If the defendant requests a trial within thirty (30) days and trial is not commenced within thirty (30) days, then the court shall determine if the delay in the trial is the fault of the defendant or his counsel. If the court finds that it is not the fault of the defendant or his counsel, then the court shall order the defendant's driving privileges to be extended until the defendant is convicted, the defendant files an appeal, or both, and immediately inform the commissioner.
(c) If a
receipt or permit to drive issued pursuant to the provisions of this subsection
expires without a trial having been requested as provided * * * in this subsection, then the Commissioner
of Public Safety or his authorized agent shall suspend the license or permit to
drive or any nonresident operating privilege for the applicable period of time
as provided * * *
in subsection (1) of this section.
(3) Suspension subsequent to conviction or provisional to nonadjudication under Section 63-11-30. Within Thirty (30) days after receipt of the court abstract documenting a conviction or placement in a nonadjudication program under Section 63-11-30, the Department of Public Safety shall suspend the driver's license and driving privileges of the person as provided in this section; an interlock-restricted license may be issued to a person who qualifies under this section and Section 63-11-31; the person will not be eligible for a regular or unrestricted license until the person has completed an alcohol safety education program as provided in Section 63-11-32 and all other conditions of the person's sentence or nonadjudication and is not otherwise barred from obtaining a regular or unrestricted license by law.
(a) When the person is sentenced under Section 63-11-30(2), the Commissioner of Public Safety, or his authorized agent, shall suspend the person's license as follows:
(i) For a first offense: ninety (90) days;
(ii) For a second offense: one (1) year;
(iii) For a third offense: for the full period of the person's sentence, but not less than three (3) years; upon completion of sentence or the three-year suspension, whichever is greater, the person will be eligible for only an interlock-restricted license for three (3) years;
(iv) For a fourth or subsequent offense: for the full period of the person's sentence, but not less than five (5) years; upon completion of sentence or the five-year suspension, whichever is greater, the person will be eligible for only an interlock-restricted license for five (5) years.
(b) If the person is convicted and sentenced under Zero Tolerance for Minors, Section 63-11-30(3), the Commissioner of Public Safety, or his authorized agent, shall suspend the person's license as follows:
(i) For a first offense: ninety (90) days;
(ii) For a second offense: one (1) year, except that the court may order the commissioner to reduce the suspension to six (6) months if the minor successfully completes treatment if ordered by the court;
(iii) For a third offense occurring within five (5) years, suspend or deny the driving privilege for two (2) years or until the person reaches the age of twenty-one (21), whichever is longer.
(c) If the person is placed in a nonadjudication program under Section 63-11-30(14), the Commissioner of Public Safety, or his authorized agent, shall suspend the person's license for one hundred twenty (120) days during which time the person may be eligible for only an interlock-restricted license.
(4) If the person is
a resident without a license or permit to operate a motor vehicle in this
state, the Commissioner of Public Safety, or his authorized agent, shall deny
to the person the issuance of a license or permit for a period of one (1) year
beginning thirty (30) days after the date of notice of * * * the suspension.
( * * *5) It shall be the duty of the municipal
prosecuting attorney, county prosecuting attorney, an attorney employed
under the provisions of Section 19-3-49, or * * * if there is * * * not a prosecuting attorney for
the municipality or county, the duty of the district attorney to
represent the state in any hearing on a de novo appeal held under the
provisions of Section 63-11-25, under the provisions of Section 63-11-37 * * * or * * * Section 63-11-30 * * *.
(6) All notices of suspension given under this section shall be in writing and conform to Section 63-1-52.
(7) All clerks of court must comply with Section 63-11-37 under penalty of law.
SECTION 6. Section 63-11-25, Mississippi Code of 1972, is amended as follows:
63-11-25. Appeal of
administrative suspension for test refusal. (1) If the * * * suspension or denial of issuance
is sustained by the Commissioner of Public Safety, or his duly authorized agent * * * under the
administrative hearing prescribed by Section 63-11-23, * * * the person aggrieved may
file within ten (10) days after the rendition of * * * the decision a petition in the
circuit or county court having original jurisdiction of the violation for
review of * * *
the decision and * * *such the hearing upon review shall proceed as a trial
de novo before the court without a jury. * * * The
appeal does not act as a supersedeas and the person will not be allowed to
exercise the driving privilege while * * * the appeal is pending.
(2) The person appealing the license suspension must name the original prosecutor, the arresting officer and the arresting officer's agency in the appeal. In addition to the notice required under the Mississippi Rules of Civil Procedure, the appellant also must give notice to the original prosecutor and to the chief officer of the arresting officer's law enforcement agency within the same time required for notice under the Mississippi Rules of Civil Procedure.
SECTION 7. Section 63-11-30, Mississippi Code of 1972, is amended as follows:
63-11-30. (1) It is unlawful for a person to drive or otherwise operate a vehicle within this state if the person:
(a) Is under the influence of intoxicating liquor;
(b) Is under the influence of any other substance that has impaired the person's ability to operate a motor vehicle;
(c) Is under the influence of any drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law; or
(d) Has an alcohol concentration in the person's blood, based upon grams of alcohol per one hundred (100) milliliters of blood, or grams of alcohol per two hundred ten (210) liters of breath, as shown by a chemical analysis of the person's breath, blood or urine administered as authorized by this chapter, of:
(i) Eight one-hundredths percent (.08%) or more for a person who is above the legal age to purchase alcoholic beverages under state law;
(ii) Two one-hundredths percent (.02%) or more for a person who is below the legal age to purchase alcoholic beverages under state law; or
(iii) Four one-hundredths percent (.04%) or more for a person operating a commercial motor vehicle.
(2) Except as otherwise provided in subsection (3) of this section (Zero Tolerance for Minors):
(a) First offense
DUI. (i) * * * Upon
conviction of any person for the first offense of violating subsection (1) of
this section where chemical tests * * * under Section 63-11-5 were given,
or where chemical test results are not available, the person shall be fined not
less than Two Hundred Fifty Dollars ($250.00) nor more than One Thousand
Dollars ($1,000.00), or imprisoned for not more than forty-eight (48) hours in
jail, or both; the court * * *shall must order the person to attend and complete an
alcohol safety education program as provided in Section 63-11-32 within * * * six (6) months of sentencing.
Failure to attend the alcohol safety education program may be punished as
contempt of court. The court may substitute attendance at a victim impact
panel instead of forty-eight (48) hours in jail. * * *
(ii) Suspension
of commercial driving privileges * * * is
governed by Section 63-1-216 * * *
and suspension of regular driving privileges is governed by Section 63-11-23.
(iii) A qualifying
first offense under subsection (1) of this section may be nonadjudicated by the
court under subsection (14) of this section. * * * A person who held a
commercial driver's license or a commercial learning permit at the time of
an alleged offense is ineligible for nonadjudication of that offense.
(b) Second offense
DUI. (i) * * * Upon any second conviction
of any person violating subsection (1) of this section, the offenses being
committed within a period of five (5) years, the person shall be guilty of a
misdemeanor, fined not less than Six Hundred Dollars ($600.00) nor more
than One Thousand Five Hundred Dollars ($1,500.00), shall be imprisoned not
less than five (5) days nor more than * * * six (6) months and
sentenced to community service work for not less than ten (10) days nor more
than * * *
six (6) months. The minimum penalties shall not be suspended or reduced
by the court and no prosecutor shall offer any suspension or sentence reduction
as part of a plea bargain. * * *
(ii) Suspension of
commercial driving privileges * * * is governed by Section 63-1-216
and suspension of regular driving privileges is governed by Section 63-11-23.
(c) Third * * * offense DUI. (i) * * *
For any third conviction of * * * a person violating subsection (1) of
this section, the offenses being committed within a period of five (5) years,
the person shall be guilty of a felony and fined not less than Two Thousand
Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,000.00), and shall
serve not less than one (1) year nor more than five (5) years in the custody of
the Department of Corrections. For any offense that does not result in serious
injury or death to any person, the sentence of incarceration may be served in
the county jail rather than in the State Penitentiary at the discretion of the
circuit court judge. The minimum penalties shall not be suspended or reduced
by the court and no prosecutor shall offer any suspension or sentence reduction
as part of a plea bargain. * * *
(ii) The
suspension of commercial driving privileges * * * is governed by Section 63-1-216
and suspension of regular driving privileges is governed by Section 63-11-23.
(d) Fourth and subsequent offense DUI. (i) For any fourth or subsequent conviction of a violation of subsection (1) of this section, without regard to the time period of the violations, the person shall be guilty of a felony and fined not less than Three Thousand Dollars ($3,000.00) nor more than Ten Thousand Dollars ($10,000.00), and shall serve not less than two (2) years nor more than ten (10) years in the custody of the Department of Corrections.
(ii) The suspension of commercial driving privileges is governed by Section 63-1-216 and suspension of regular driving privileges is governed by Section 63-11-23.
(e) * * *
Any person convicted of a second or subsequent violation of subsection (1) of
this section shall receive an in-depth diagnostic assessment, and if as a
result of the assessment is determined to be in need of treatment for alcohol
or drug abuse, the person * * *shall must successfully complete treatment at a program
site certified by the Department of Mental Health. Each person who receives a
diagnostic assessment shall pay a fee representing the cost of the assessment.
Each person who participates in a treatment program shall pay a fee
representing the cost of treatment.
( * * *f) The use of ignition-interlock
devices * * * is governed by Section 63-11-31.
(3) Zero Tolerance for Minors. (a) This subsection shall be known and may be cited as Zero Tolerance for Minors. The provisions of this subsection shall apply only when a person under the age of twenty-one (21) years has a blood alcohol concentration of two one-hundredths percent (.02%) or more, but lower than eight one-hundredths percent (.08%). If the person's blood alcohol concentration is eight one-hundredths percent (.08%) or more, the provisions of subsection (2) shall apply.
(b) (i) A person under the age of twenty-one (21) is eligible for nonadjudication of a qualifying first offense by the court pursuant to subsection (14) of this section.
(ii) Upon
conviction of any person under the age of twenty-one (21) years for the first
offense of violating subsection (1) of this section where chemical tests
provided for under Section 63-11-5 were given, or where chemical test results
are not available, the person shall be fined Two Hundred Fifty Dollars
($250.00); the court shall order the person to attend and complete an alcohol
safety education program as provided in Section 63-11-32 within * * * six (6) months. * * * Failure
to attend the alcohol safety education program may be punished as contempt of
court. The court may also require attendance at a victim impact panel.
(c) A person under the
age of twenty-one (21) years who is convicted of a second violation of
subsection (1) of this section, the offenses being committed within a period of
five (5) years, shall be fined not more than Five Hundred Dollars ($500.00). * * *
(d) A person under the
age of twenty-one (21) years who is convicted of a third or subsequent
violation of subsection (1) of this section, the offenses being committed
within a period of five (5) years, shall be fined not more than One Thousand
Dollars ($1,000.00) * * *.
(e) Any person under the age of twenty-one (21) years convicted of a second violation of subsection (1) of this section, may have the period of driver's license suspension reduced to six (6) months by the court if the person receives an in-depth diagnostic assessment, and as a result of the assessment is determined to be in need of treatment for alcohol or drug abuse and successfully completes treatment for alcohol or drug abuse at a program site certified by the Department of Mental Health. Each person who receives a diagnostic assessment shall pay a fee representing the cost of such assessment. Each person who participates in a treatment program shall pay a fee representing the cost of such treatment.
(f) Any person under
the age of twenty-one (21) years convicted of a third or subsequent violation
of subsection (1) of this section * * * must complete treatment of an
alcohol or drug abuse program at a site certified by the Department of Mental
Health.
(g) The suspension of driving privileges is governed by Section 63-11-23.
(4) DUI test refusal.
In addition to the other penalties provided in this section, every person
refusing a law enforcement officer's request to submit to a chemical test of
the person's breath as provided in this chapter, or who was unconscious at the
time of a chemical test and refused to consent to the introduction of the
results of the test in any prosecution, shall suffer an additional
administrative suspension of driving privileges as set forth in Section 63-11-23 * * *
(5) Aggravated DUI. (a) Every person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose or any other limb, organ or member of another shall, upon conviction, be guilty of a separate felony for each victim who suffers death, mutilation, disfigurement or other injury and shall be committed to the custody of the State Department of Corrections for a period of time of not less than five (5) years and not to exceed twenty-five (25) years for each death, mutilation, disfigurement or other injury, and the imprisonment for the second or each subsequent conviction, in the discretion of the court, shall commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction. Any person charged with causing the death of another as described in this subsection shall be required to post bail before being released after arrest.
(b) The court may order an ignition-interlock restriction on the offender's privilege to drive as a condition of probation or post-release supervision not to exceed four (4) years.
(6) DUI * * * convictions. (a)
Upon conviction of any violation of subsection (1) of this section, the trial
judge shall sign in the place provided on the traffic ticket, citation or
affidavit stating that the person arrested either employed an attorney or
waived his right to an attorney after having been properly advised. If the
person arrested employed an attorney, the name, address and telephone number of
the attorney shall be written on the ticket, citation or affidavit. The court
clerk * * *
must immediately send a copy of the traffic ticket, citation or
affidavit, and any other pertinent documents concerning the conviction or other
order of the court, to the Department of Public Safety as provided in
Section 63-11-37.
(b) A copy of the traffic ticket, citation or affidavit and any other pertinent documents, having been attested as true and correct by the Commissioner of Public Safety, or his designee, shall be sufficient proof of the conviction for purposes of determining the enhanced penalty for any subsequent convictions of violations of subsection (1) of this section and is a self-authenticating document for all evidentiary purposes.
(7) Out-of-state prior convictions. Convictions in another state, territory or possession of the United States, or under the law of a federally recognized Native American tribe, of violations for driving or operating a vehicle while under the influence of an intoxicating liquor or while under the influence of any other substance that has impaired the person's ability to operate a motor vehicle occurring within five (5) years before an offense shall be counted for the purposes of determining if a violation of subsection (1) of this section is a second, third, fourth or subsequent offense and the penalty that shall be imposed upon conviction for a violation of subsection (1) of this section.
(8) Charging of subsequent offenses. For the purposes of determining how to impose the sentence for a second, third, fourth or subsequent conviction under this section, the affidavit or indictment shall not be required to enumerate previous convictions. It shall only be necessary that the affidavit or indictment states the number of times that the defendant has been convicted and sentenced within the past five (5) years, or, for a fourth or subsequent offense, that the person has three (3) prior convictions under this section to determine if an enhanced penalty shall be imposed. The amount of fine and imprisonment imposed in previous convictions shall not be considered in calculating offenses to determine a second, third, fourth or subsequent offense of this section.
(9) License eligibility
for underage offenders. * * *
A person who is under the legal age to obtain a license to
operate a motor vehicle at the time of the offense and who is convicted
under this section shall not be eligible to receive a driver's license until
the person reaches the age of eighteen (18) years.
(10) License suspensions and restrictions to run consecutively. Suspension or restriction of driving privileges for any person convicted of or nonadjudicated for violations of subsection (1) of this section shall run consecutively and not concurrently.
(11) Ignition interlock.
If the court orders installation and use of an ignition-interlock device as
provided in Section 63-11-31 for every vehicle operated by a person convicted
or nonadjudicated under this section, * * * each device shall be installed,
maintained and removed as provided in Section 63-11-31.
(12) DUI child endangerment. A person over the age of twenty-one (21) who violates subsection (1) of this section while transporting in a motor vehicle a child under the age of sixteen (16) years is guilty of the separate offense of endangering a child by driving under the influence of alcohol or any other substance which has impaired the person's ability to operate a motor vehicle. The offense of endangering a child by driving under the influence of alcohol or any other substance which has impaired the person's ability to operate a motor vehicle shall not be merged with an offense of violating subsection (1) of this section for the purposes of prosecution and sentencing. An offender who is convicted of a violation of this subsection shall be punished as follows:
(a) A person who commits a violation of this subsection which does not result in the serious injury or death of a child and which is a first conviction shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than One Thousand Dollars ($1,000.00) or shall be imprisoned for not more than twelve (12) months, or both;
(b) A person who commits a violation of this subsection which does not result in the serious injury or death of a child and which is a second conviction shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00) or shall be imprisoned for one (1) year, or both;
(c) A person who commits a violation of this subsection which does not result in the serious injury or death of a child and which is a third or subsequent conviction shall be guilty of a felony and, upon conviction, shall be fined not less than Ten Thousand Dollars ($10,000.00) or shall be imprisoned for not less than one (1) year nor more than five (5) years, or both; and
(d) A person who commits a violation of this subsection which results in the serious injury or death of a child, without regard to whether the offense was a first, second, third or subsequent offense, shall be guilty of a felony and, upon conviction, shall be punished by a fine of not less than Ten Thousand Dollars ($10,000.00) and shall be imprisoned for not less than five (5) years nor more than twenty-five (25) years.
(13) Expunction. (a) Any person convicted under subsection (2) or (3) of this section of a first offense of driving under the influence and who was not the holder of a commercial driver's license or a commercial learning permit at the time of the offense may petition the circuit court of the county in which the conviction was had for an order to expunge the record of the conviction at least five (5) years after successful completion of all terms and conditions of the sentence imposed for the conviction. Expunction under this subsection will only be available to a person:
(i) Who has successfully completed all terms and conditions of the sentence imposed for the conviction;
(ii) Who did not refuse to submit to a test of his blood or breath;
(iii) Whose blood alcohol concentration tested below sixteen one-hundredths percent (.16%) if test results are available;
(iv) Who has not
been convicted of and does not have pending any other offense of driving under
the influence; * * *
(v) Who has
provided the court with justification as to why the conviction should be
expunged * * *;
and
(vi) Who has not previously had a nonadjudication or expunction of a violation of this section.
(b) A person is eligible for only one (1) expunction under this subsection, and the Department of Public Safety shall maintain a confidential registry of all cases of expunction under this subsection for the sole purpose of determining a person's eligibility for expunction or nonadjudication or as a first offender under this section.
(c) The court in its order of expunction shall state in writing the justification for which the expunction was granted and forward the order to the Department of Public Safety within five (5) days of the entry of the order.
(14) Nonadjudication.
(a) For the purposes of this chapter, "nonadjudication" means that
the court withholds adjudication of guilt, either at the conclusion of a trial
on the merits * * *
or upon the entry of a plea of guilt by a defendant * * *, and places the
defendant in a nonadjudication program, conditioned upon the successful
completion of * * * the requirements imposed by the court under this
subsection. Nonadjudication under this subsection (14) is only available to
Mississippi residents driving under a valid Mississippi drivers' license that
is not a commercial drivers' license.
(b) * * * A first offense under
subsection (1) or (3) of this section that qualifies under this paragraph
(b) may be nonadjudicated. A person is eligible for nonadjudication of
an offense under this Section 63-11-30 only one (1) time under any
provision of a law that authorizes nonadjudication * * * and only for an offender:
(i) Who has successfully completed all terms and conditions imposed by the court;
(ii) Who did not hold a commercial driver's license at the time of the offense;
(iii) Who has not previously been convicted of and does not have pending any other offense of driving under the influence; and
(iv) Who has provided the court with justification as to why nonadjudication is appropriate.
(c) Nonadjudication may be initiated upon the filing of a petition for nonadjudication or at any stage of the proceedings before conviction in the discretion of the court; the court may withhold adjudication of guilt, defer sentencing, and upon the agreement of the offender to participate in a nonadjudication program, enter an order imposing requirements on the offender for a period of court supervision before the order of nonadjudication is entered. An order of nonadjudication is not appealable.
(i) The court shall order the person to:
1. Pay the nonadjudication fee imposed under Section 63-11-31 if applicable;
2. Pay all fines, penalties and assessments that would have been imposed for conviction;
3. Attend and complete an alcohol safety education program as provided in Section 63-11-32 within six (6) months of the date of the order; failure to attend and complete the program may be punished as contempt of court;
4. a. If
the person violated subsection (1) of this section with regard to alcohol or
intoxicating liquor, the person must install an ignition-interlock device
on every motor vehicle * * * operated by the person, obtain an interlock-restricted
license, and maintain that license for one hundred twenty (120) days * * * or * * * suffer a one-hundred-twenty-day
suspension of the person's regular driver's license * * * as provided in Section 63-1-23, during which
time the person must not operate any vehicle.
b. If the person violated this section by operating a vehicle when under the influence of a substance that has impaired the person's ability to operate a motor vehicle including any drug or controlled substance which is unlawful to possess under the Mississippi Controlled Substances Law, the person must submit to a one-hundred-twenty-day period of a nonadjudication program that includes court-ordered drug testing not less than every thirty (30) days or suffer a one-hundred-twenty-day suspension of the person's regular driver's license, during which time the person will not operate any vehicle. Suspension of a commercial driver's license is governed by Section 63-1-216.
(ii) Other
conditions * * *
that may be imposed by the court * * * include, but are not limited to, alcohol or
drug screening, or both, proof that the person has not committed any other
traffic violations while under court supervision, proof of immobilization or
impoundment of vehicles owned by the offender if required, and attendance at a
victim-impact panel.
(d) The court may enter an order of nonadjudication only if the court finds, after a hearing or exparte examination of reliable documentation of compliance, that the offender has successfully completed all conditions imposed by law and previous orders of the court. The court shall retain jurisdiction over cases involving nonadjudication for a period of not more than two (2) years.
(e) (i) The
clerk shall immediately forward a record of every nonadjudicated case to
the Department of Public Safety which shall maintain a confidential registry of
all cases that are nonadjudicated * * * under this subsection
(14).
(ii) Judges, clerks and prosecutors involved in the trial of implied consent violations and law enforcement officers involved in the issuance of citations for implied consent violations shall have access to the confidential registry for the purpose of determining whether a person has previously been the subject of a nonadjudicated case and 1. is therefore ineligible for another nonadjudication; 2. is ineligible as a first offender for a violation of this section; or 3. is ineligible for expunction of a conviction of a violation of this section.
(iii) The Driver Services Bureau of the department shall have access to the confidential registry for the purpose of determining whether a person is eligible for a form of license not restricted to operating a vehicle equipped with an ignition-interlock device.
(iv) The Mississippi Alcohol Safety Education Program shall have access to the confidential registry for research purposes only.
SECTION 8. Section 63-11-31, Mississippi Code of 1972, is amended as follows:
63-11-31. (1) (a) The provisions of this section are supplemental to the provisions of Section 63-11-30.
(b) (i) "Ignition-interlock device" means a device approved by the Department of Public Safety that connects a motor vehicle ignition system to a breath-alcohol analyzer and prevents a motor vehicle ignition from starting if the driver's blood alcohol level exceeds the calibrated setting on the device.
(ii) "Interlock-restricted license" means a driver's license bearing a restriction that limits the person to operation of vehicles equipped with an ignition-interlock device.
(c) A person who can
exercise the privilege of driving only under an interlock-restricted license * * *
must have an ignition-interlock device installed and operating on all motor
vehicles * * *
operated by the person * * *
and must not * * * have other pending charges
under Section 63-11-30 for driving under the influence of alcohol or any
drug or controlled substance under the Mississippi Controlled Substances Law.
* * *
(2) (a) The cost of installation and operation of an ignition-interlock device shall be borne by the person to whom an interlock-restricted driver's license is issued unless the person is determined by the court to be indigent.
(b) (i) A person convicted under Section 63-11-30 shall be assessed by the court, in addition to the criminal fines, penalties and assessments provided by law for violations of Section 63-11-30, a fee of Fifty Dollars ($50.00), to be deposited in the Interlock Device Fund in the State Treasury unless the person is determined by the court to be indigent.
(ii) A person nonadjudicated under Section 63-11-30 shall be assessed by the court, in addition to the criminal fines, penalties and assessments provided by law for violations of Section 63-11-30, a fee of Two Hundred Fifty Dollars ($250.00) to be deposited in the Interlock Device Fund in the State Treasury unless the person is determined by the court to be indigent.
(3) (a) The Department of Public Safety shall promulgate rules and regulations for the use of an ignition-interlock device. The Department of Public Safety shall approve which vendors shall be used to furnish the systems, may assess fees to the vendors, and shall prescribe the maximum costs to the offender for installation, removal, monthly operation, periodic inspections, calibrations and repairs.
(b) A person who has an ignition-interlock device installed in a vehicle shall:
(i) Provide proof of the installation of the device and periodic reporting for verification of the proper operation of the device;
(ii) Have the system monitored for proper use and accuracy as required by departmental regulation;
(iii) Pay the reasonable cost of leasing or buying, monitoring, and maintaining the device unless the person is determined to be indigent.
(4) (a) (i) A person who is limited to driving only under an interlock-restricted driver's license shall not operate a vehicle that is not equipped with an ignition-interlock device.
(ii) A person prohibited from operating a motor vehicle that is not equipped with an ignition-interlock device may not solicit or have another person attempt to start or start a motor vehicle equipped with such a device.
(iii) A person may not start or attempt to start a motor vehicle equipped with an ignition-interlock device for the purpose of providing an operable motor vehicle to a person who is prohibited from operating a motor vehicle that is not equipped with an ignition-interlock device.
(iv) A person may not tamper with, or in any way attempt to circumvent, the operation of an ignition-interlock device that has been installed in a motor vehicle.
(v) A person may not knowingly provide a motor vehicle not equipped with a functioning ignition-interlock device to another person who the provider of the vehicle knows or should know is prohibited from operating a motor vehicle not equipped with an ignition-interlock device.
(b) A violation of
this subsection (4) is a misdemeanor and upon conviction the violator shall be
fined an amount not less than Two Hundred Fifty Dollars ($250.00) nor more than
One Thousand Dollars ($1,000.00) or imprisoned for not more than * * * six (6) months, or both,
unless the starting of a motor vehicle equipped with an ignition-interlock
device is done for the purpose of safety or mechanical repair of the device or
the vehicle, and the person subject to the restriction does not operate the
vehicle.
(5) * * * In order to obtain an interlock-restricted
license, a person must:
( * * *a) Be otherwise qualified to operate a
motor vehicle, and will be subject to all other restrictions on the privilege
to drive provided by law;
( * * *b) Submit proof that an ignition-interlock
device is installed and operating on all motor vehicles * * * operated by the person; and
( * * *c) Pay the fee set forth in Section
63-1-43 to obtain the license without regard to indigence; no license
reinstatement fee under 63-1-46 shall be charged.
* * *
(6) (a) In addition to the penalties authorized for any second or subsequent conviction under Section 63-11-30, the court shall order that all vehicles owned by the offender that are not equipped with an ignition-interlock device must be either impounded or immobilized pending further order of the court lifting the offender's driving restriction. However, no county, municipality, sheriff's department or the Department of Public Safety shall be required to keep, store, maintain, serve as a bailee or otherwise exercise custody over a motor vehicle impounded under the provisions of this section. The cost associated with any impoundment or immobilization shall be paid by the person convicted without regard to ability to pay.
(b) A person may not
tamper with, or in any way attempt to circumvent, vehicle immobilization or
impoundment ordered by the court under this section. A violation of this
paragraph (b) is a misdemeanor and, upon conviction, the violator shall be
fined an amount not less than Two Hundred Fifty Dollars ($250.00) nor more than
One Thousand Dollars ($1,000.00) or imprisoned for not more than * * * six (6) months, or both.
(7) (a) The Department of Public Safety shall promulgate rules and regulations for the use of monies in the Interlock Device Fund to offset the cost of device installation and operation by indigent offenders.
(b) The court shall
determine a defendant's indigence * * * if the defendant
does not have access to adequate resources to pay the ignition interlock fee
and the costs of installation and maintenance of an ignition-interlock device
and may further base the determination on proof of enrollment in one or
more of the following types of public assistance:
(i) Temporary Assistance for Needy Families (TANF);
(ii) Medicaid assistance;
(iii) The Supplemental Nutritional Assistance Program (SNAP), also known as "food stamps";
(iv) Supplemental security income (SSI);
(v) Participation in a federal food distribution program;
(vi) Federal housing assistance;
(vii) Unemployment compensation; or
(viii) Other
criteria * * * determined appropriate by the court.
(c) No more than ten percent (10%) of the money in the Interlock Device Fund in any fiscal year shall be expended by the department for the purpose of administering the fund.
(d) (i) Money in the
Interlock Device Fund will be appropriated to the department to cover part of
the costs of installing, removing and leasing ignition-interlock devices for
indigent people who are required, * * * because of a conviction or
nonadjudication under Section 63-11-30, to install an ignition-interlock device
in all vehicles * * * operated by the person.
(ii) If money is available in the Interlock Device Fund, the department shall pay to the vendor, for one (1) vehicle per offender, up to Fifty Dollars ($50.00) for the cost of installation, up to Fifty Dollars ($50.00) for the cost of removal, and up to Thirty Dollars ($30.00) monthly for verified active usage of the ignition-interlock device. The department shall not pay any amount above what an offender would be required to pay for the installation, removal or usage of an ignition-interlock device.
(8) In order to reinstate a form of driver's license that is not restricted to operation of an ignition-interlock equipped vehicle, the person must submit proof to the Department of Driver Services to substantiate the person's eligibility for an unrestricted license, which may be a court order indicating completion of sentence or final order of nonadjudication; in the absence of a court order, the proof may consist of the following or such other proof as the commissioner may set forth by regulation duly adopted under the Administrative Procedures Act:
(a) Submit proof of successful completion of an alcohol safety program as provided in Section 63-11-32 if so ordered by the court;
(b) Pay the reinstatement fee required under Section 63-1-46(1)(a);
(c) Pay the driver's
license fee required under Section 63-1-43 * * *; and
(d) Submit a certificate of liability insurance or proof of financial responsibility.
(9) * * *
The court that originally ordered installation of the ignition-interlock device
for a violation of Section 63-11-30 and a court in the municipality or
county in which the violation occurred have jurisdiction over an offense under
this section.
SECTION 9. Section 63-11-37, Mississippi Code of 1972, is amended as follows:
63-11-37. (1) It
shall be the duty of the * * *trial judge clerk of the trial court, upon conviction
of * * * a
person under Section 63-11-30, to mail or otherwise deliver in a method
prescribed by the commissioner a true and correct copy of the traffic
ticket, citation or affidavit evidencing the arrest that resulted in the
conviction and a certified copy of the abstract of the court record
within five (5) days to the Commissioner of Public Safety at Jackson,
Mississippi. The trial judge in municipal and justice courts shall show on the
docket and the trial judge in courts of record shall show on the minutes:
(a) Whether * * * a chemical test was given and the
results of the test, if any;
(b) * * * Whether conviction was based in
whole or in part on the results of such a test.
(2) (a) The abstract of the court record shall show the date of the conviction, the results of the test if there was one, and the penalty, so that a record of same may be made by the Department of Public Safety.
(b) The department is the custodian of records of conviction for violations of this chapter, and the record maintained by the department of a person's arrests and convictions, when certified by the department, is a self-authenticating record.
(3) For the purposes of Section 63-11-30, a bond forfeiture shall operate as and be considered as a conviction.
(4) A trial court clerk who fails to mail or otherwise deliver a true and correct copy of the traffic ticket, citation or affidavit evidencing the arrest that resulted in the conviction and a copy of the abstract of the court record within five (5) days as required in subsection (1) of this section is guilty of a misdemeanor, and shall be fined One Hundred Dollars ($100.00).
SECTION 10. Section 63-1-5, Mississippi Code of 1972, is amended as follows:
63-1-5. (1) (a) No person shall drive or operate a motor vehicle or an autocycle as defined in Section 63-3-103 upon the highways of the State of Mississippi without first securing an operator's license to drive on the highways of the state, unless specifically exempted by Section 63-1-7.
(b) The types of operator's licenses are:
(i) Class R;
(ii) Class D;
(iii) Class A, B or C commercial license governed by Article 5 of this chapter;
(iv) Intermediate license; and
(v) * * * Interlock-restricted license
as prescribed in Section 63-11-31.
(2) (a) Every person who makes application for an original license or a renewal license to operate any single vehicle with a gross weight rating of less than twenty-six thousand one (26,001) pounds or any vehicle towing a vehicle with a gross vehicle weight rating not in excess of ten thousand (10,000) pounds other than vehicles included in Class C, vehicles which require a special endorsement, or to operate a vehicle as a common carrier by motor vehicle, taxicab, passenger coach, dray, contract carrier or private commercial carrier as defined in Section 27-19-3, other than those vehicles for which a Class A, B or C license is required under Article 5 of this chapter, may, in lieu of the Class R regular driver's license, apply for and obtain a Class D driver's license. The fee for the issuance of a Class D driver's license shall be as set forth in Section 63-1-43 and the Class D license shall be valid for the term prescribed in Section 63-1-47. Except as required under Article 5 of this chapter, no driver of a pickup truck shall be required to have a Class D or a commercial license regardless of the purpose for which the pickup truck is used.
(b) Persons operating vehicles listed in paragraph (a) of this subsection for private purposes or in emergencies need not obtain a Class D license.
(3) An * * * interlock-restricted license
allows a person to drive only a motor vehicle equipped with an iginition-interlock
device.
(4) A person who violates this section is guilty of a misdemeanor and, upon conviction, may be punished by imprisonment for not less than two (2) days nor more than six (6) months, by a fine of not less than Two Hundred Dollars ($200.00) nor more than Five Hundred Dollars ($500.00), or both.
SECTION 11. (1) When a state, county or local law enforcement officer stops a person with the intent to effectuate an arrest of the person, if the officer has the capability of doing so, the officer shall, at the time of the stop or as soon as possible thereafter, conduct a criminal history background check on the person being arrested using the National Crime Information Center (NCIC) database. If the stop results in the officer arresting the person, the officer shall make a copy of the person's criminal history at the time of arrest, if the officer has the capability of doing so. If a copy cannot be obtained at the time of the arrest, a copy shall be made at the person's booking. The copy of the person's NCIC criminal history shall be attached to the original of the charging instrument. The criminal history of the person shall become a part of the person's law enforcement record until the disposal of the matter giving rise to the grounds for arrest.
(2) Subsection (1) of this section shall apply without regard to whether the person:
(a) Is arrested for a misdemeanor or felony offense;
(b) Is issued a citation in lieu of continued custody; or
(c) Is arrested without a warrant.
SECTION 12. This act shall take effect and be in force from and after October 1, 2016, and shall stand repealed September 30, 2016.