MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Judiciary, Division A
By: Senator(s) Burton
AN ACT TO AMEND SECTION 63-11-30, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR AUTOMATIC CONTINUANCE IF THE CHARGING LAW ENFORCEMENT OFFICER HAS BEEN PLACED ON ACTIVE DUTY; TO AMEND SECTION 99-17-1, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 63-11-30, Mississippi Code of 1972, is amended as follows:
63-11-30. (1) It is
unlawful for any person to drive or otherwise operate a vehicle within this
state who (a) is under the influence of intoxicating liquor; (b) is under the
influence of any other substance which has impaired * * * the person's ability to operate a
motor vehicle; (c) has an alcohol concentration of 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, 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; (d) is under the influence of any
drug or controlled substance, the possession of which is unlawful under the
Mississippi Controlled Substances Law; or (e) has an alcohol concentration of
four one-hundredths percent (.04%) or more 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 blood, breath or
urine, administered as authorized by this chapter for persons operating a
commercial motor vehicle.
(2) (a) Except as
otherwise provided in subsection (3), upon conviction of any person 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 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; and the court shall order * * * the person to attend and complete
an alcohol safety education program as provided in Section 63-11-32. The court
may substitute attendance at a victim impact panel instead of forty-eight (48)
hours in jail. In addition, the Department of Public Safety, the Commissioner
of Public Safety or his duly authorized agent shall, after conviction and upon
receipt of the court abstract, suspend the driver's license and driving
privileges of * * *
the person for a period of not less than ninety (90) days and until * * * the person attends and successfully
completes an alcohol safety education program as herein provided. Commercial
driving privileges shall be suspended as provided in Section 63-1-216.
The circuit court having
jurisdiction in the county in which the conviction was had or the circuit court
of the person's county of residence may reduce the suspension of driving
privileges under * * * subsection (2)(a) of this section
if the denial of which would constitute a hardship on the offender, except that
no court may issue * * *
an order reducing the suspension of driving privileges under this subsection
until thirty (30) days have elapsed from the effective date of the suspension.
Hardships shall only apply to first offenses * * * subsection
(1) of this section, and shall not apply to second, third or subsequent
convictions of any person violating subsection (1) of this section. A
reduction of suspension on the basis of hardship shall not be available to any
person who refused to submit to a chemical test upon the request of a law
enforcement officer as provided in Section 63-11-5. When the petition is
filed, * * *
the person shall pay to the circuit clerk of the court where the
petition is filed a fee of Fifty Dollars ($50.00), which shall be deposited
into the State General Fund to the credit of a special fund hereby created in
the State Treasury to be used for alcohol or drug abuse treatment and education,
upon appropriation by the Legislature. This fee shall be in addition to any
other court costs or fees required for the filing of petitions.
The petition filed under the
provisions of this subsection shall contain the specific facts which the petitioner
alleges to constitute a hardship and the driver's license number of the
petitioner. A hearing may be held on any petition filed under this subsection
only after ten (10) days' prior written notice to the Commissioner of Public
Safety, or his designated agent, or the attorney designated to represent the
state. At * * *
the hearing, the court may enter an order reducing the period of
suspension.
The order entered under the
provisions of this subsection shall contain the specific grounds upon which
hardship was determined, and shall order the petitioner to attend and complete
an alcohol safety education program as provided in Section 63-11-32. A
certified copy of * * *
the order shall be delivered to the Commissioner of Public Safety by the
clerk of the court within five (5) days of the entry of the order. The
certified copy of * * *
the order shall contain information which will identify the petitioner,
including, but not limited to, the name, mailing address, street address,
social security number and driver's license number of the petitioner.
At any time following at least thirty (30) days of suspension for a first offense violation of this section, the court may grant the person hardship driving privileges upon written petition of the defendant, if it finds reasonable cause to believe that revocation would hinder the person's ability to:
(i) Continue his employment;
(ii) Continue attending school or an educational institution; or
(iii) Obtain necessary medical care.
Proof of the hardship shall be established by clear and convincing evidence which shall be supported by independent documentation.
(b) Except as
otherwise provided in subsection (3), upon any second conviction of any person
violating subsection (1) of this section, the offenses being committed within a
period of five (5) years, * * *such the person shall be 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 one
(1) year and sentenced to community service work for not less than ten (10)
days nor more than one (1) year. 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. Except as may otherwise be provided by
paragraph (d) of this subsection, the Commissioner of Public Safety shall
suspend the driver's license of * * * the person for two (2) years.
Suspension of a commercial driver's license shall be governed by Section 63-1-216.
Upon any second conviction as described in this paragraph, the court shall
ascertain whether the defendant is married, and if the defendant is married
shall obtain the name and address of the defendant's spouse; the clerk of the
court shall submit this information to the Department of Public Safety.
Further, the commissioner shall notify in writing, by certified mail, return
receipt requested, the owner of the vehicle and the spouse, if any, of the person
convicted of the second violation of the possibility of forfeiture of the
vehicle if * * *
the person is convicted of a third violation of subsection (1) of this
section. The owner of the vehicle and the spouse shall be considered notified
under this paragraph if the notice is deposited in the United States mail and
any claim that the notice was not in fact received by the addressee shall not
affect a subsequent forfeiture proceeding.
For any second or subsequent conviction of any person under this section, the person shall also be subject to the penalties set forth in Section 63-11-31.
(c) Except as
otherwise provided in subsection (3), for any third or subsequent 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
felony and fined not less than Two Thousand Dollars ($2,000.00) nor more than
Five Thousand Dollars ($5,000.00), shall serve not less than one (1) year nor
more than five (5) years in the custody of the Department of Corrections;
provided, however, that for any * * * offense * * * under this section that does not
result in serious injury or death to any person, any 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. The law enforcement agency
shall seize the vehicle operated by any person charged with a third or
subsequent violation of subsection (1) of this section, if * * * the convicted person was driving
the vehicle at the time the offense was committed. * * * The vehicle may be forfeited in the
manner provided by Sections 63-11-49 through 63-11-53. Except as may otherwise
be provided by paragraph (e) of this subsection, the Commissioner of Public
Safety shall suspend the driver's license of * * * the person for five (5) years. The
suspension of a commercial driver's license shall be governed by Section 63-1-216.
(d) Except as
otherwise provided in subsection (3), any person convicted of a second
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 of his alcohol and/or drug abuse problem, * * * the person shall successfully
complete treatment of his alcohol and/or drug abuse problem at a program site
certified by the Department of Mental Health. * * * The person shall be eligible for
reinstatement of his driving privileges upon the successful completion of * * * treatment after a period of one (1) year
after * * * the
person's driver's license is suspended. 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.
(e) Except as
otherwise provided in subsection (3), any person convicted of a third 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 of his alcohol and/or drug abuse problem, * * * the person shall enter an alcohol
and/or drug abuse program approved by the Department of Mental Health for
treatment of * * *
the person's alcohol and/or drug abuse problem. If * * * the person successfully completes * * * treatment, * * * the person shall be eligible for
reinstatement of his driving privileges after a period of three (3) years after * * * the person's driver's license is
suspended.
(f) The Department of
Public Safety shall promulgate rules and regulations for the use of interlock
ignition devices as provided in Section 63-11-31 and consistent with the
provisions therein. * * *
The rules and regulations shall provide for the calibration of * * * the devices and shall provide that
the cost of the use of * * *
the systems shall be borne by the offender. The Department of Public
Safety shall approve which vendors of * * * the devices shall be used to
furnish * * *
the systems.
(3) (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) 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 have his driver's
license suspended for ninety (90) days and shall be fined Two Hundred Fifty
Dollars ($250.00); and the court shall order * * * the person to attend and complete
an alcohol safety education program as provided in Section 63-11-32. The court
may also require attendance at a victim impact panel.
The court in the
county in which the conviction was had or the circuit court of the person's
county of residence may reduce the suspension of driving privileges under
subsection (2)(a) of this section if the denial of which would constitute a
hardship on the offender, except that no court may issue * * * an order reducing the suspension of
driving privileges under this subsection until thirty (30) days have elapsed
from the effective date of the suspension. Hardships shall only apply to first
offenses under subsection (1) of this section, and shall not apply to second,
third or subsequent convictions of any person violating subsection (1) of this
section. A reduction of suspension on the basis of hardship shall not be
available to any person who refused to submit to a chemical test upon the
request of a law enforcement officer as provided in Section 63-11-5. When the
petition is filed, * * *
the person shall pay to the circuit clerk of the court where the
petition is filed a fee of Fifty Dollars ($50.00), which shall be deposited
into the State General Fund to the credit of a special fund hereby created in
the State Treasury to be used for alcohol or drug abuse treatment and
education, upon appropriation by the Legislature. This fee shall be in
addition to any other court costs or fees required for the filing of petitions.
The petition filed under the
provisions of this subsection shall contain the specific facts which the
petitioner alleges to constitute a hardship and the driver's license number of
the petitioner. A hearing may be held on any petition filed under this
subsection only after ten (10) days' prior written notice to the Commissioner
of Public Safety, or his designated agent, or the attorney designated to
represent the state. At * * *such the hearing, the court may enter an order reducing
the period of suspension.
The order entered under the
provisions of this subsection shall contain the specific grounds upon which
hardship was determined, and shall order the petitioner to attend and complete
an alcohol safety education program as provided in Section 63-11-32. A
certified copy of * * *
the order shall be delivered to the Commissioner of Public Safety by the
clerk of the court within five (5) days of the entry of the order. The
certified copy of * * *
the order shall contain information which will identify the petitioner,
including, but not limited to, the name, mailing address, street address,
social security number and driver's license number of the petitioner.
At any time following at least thirty (30) days of suspension for a first offense violation of this section, the court may grant the person hardship driving privileges upon written petition of the defendant, if it finds reasonable cause to believe that revocation would hinder the person's ability to:
(i) Continue his employment;
(ii) Continue attending school or an educational institution; or
(iii) Obtain necessary medical care.
Proof of the hardship shall be established by clear and convincing evidence which shall be supported by independent documentation.
(c) Upon any second
conviction of any person under the age of twenty-one (21) years violating
subsection (1) of this section, the offenses being committed within a period of
five (5) years, * * *
the person shall be fined not more than Five Hundred Dollars ($500.00)
and shall have his driver's license suspended for one (1) year.
(d) For any third or
subsequent conviction of any person under the age of twenty-one (21) years
violating subsection (1) of this section, the offenses being committed within a
period of five (5) years, * * *such the person shall be fined not more than One
Thousand Dollars ($1,000.00) and shall have his driver's license suspended
until he reaches the age of twenty-one (21) or for two (2) years, whichever is
longer.
(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 that his driver's license is suspended
reduced if * * *
the person receives an in-depth diagnostic assessment, and as a result
of * * * the
assessment is determined to be in need of treatment of his alcohol and/or drug
abuse problem and successfully completes treatment of his alcohol and/or drug
abuse problem at a program site certified by the Department of Mental Health. * * * The person shall be eligible for
reinstatement of his driving privileges upon the successful completion of * * * treatment after a period of six (6) months
after * * * the
person's driver's license is suspended. 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) Any person under the age of twenty-one (21) years convicted of a third or subsequent violation of subsection (1) of this section shall complete treatment of an alcohol and/or drug abuse program at a site certified by the Department of Mental Health.
(g) The court shall
have the discretion to rule that a first offense of this subsection by a person
under the age of twenty-one (21) years shall be nonadjudicated. * * * The person shall be eligible for
nonadjudication only once. The Department of Public Safety shall maintain a
confidential registry of all cases which are nonadjudicated as provided in this
paragraph. A judge who rules that a case is nonadjudicated shall forward * * * the ruling to the Department of
Public Safety. Judges and prosecutors involved in implied consent violations
shall have access to the confidential registry for the purpose of determining
nonadjudication eligibility. A record of a person who has been nonadjudicated
shall be maintained for five (5) years or until * * * the person reaches the age of
twenty-one (21) years. Any person whose confidential record has been disclosed
in violation of this paragraph shall have a civil cause of action against the
person and/or agency responsible for * * * the disclosure.
(4) 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 his 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 suspension of driving privileges as follows:
The Commissioner of Public
Safety or his authorized agent shall suspend the driver's license or permit to
drive or deny the issuance of a license or permit to * * * the person as provided for first,
second and third or subsequent offenders in subsection (2) of this section. * * * The suspension shall be in
addition to any suspension imposed pursuant to subsection (1) of Section 63-11-23.
The minimum suspension imposed under this subsection shall not be reduced and
no prosecutor is authorized to offer a reduction of * * * the suspension as part of a plea
bargain.
(5) 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 such 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 such 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.
(6) 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 judge shall cause a copy of the traffic ticket, citation or affidavit, and any other pertinent documents concerning the conviction, to be sent to the Commissioner of Public Safety. 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.
(7) Convictions in other states 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 after July 1, 1992, shall be counted for the purposes of determining if a violation of subsection (1) of this section is a first, second, third or subsequent offense and the penalty that shall be imposed upon conviction for a violation of subsection (1) of this section.
(8) For the purposes of determining how to impose the sentence for a second, third or subsequent conviction under this section, the indictment shall not be required to enumerate previous convictions. It shall only be necessary that the indictment state the number of times that the defendant has been convicted and sentenced within the past five (5) years 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 or subsequent offense of this section.
(9) Any person under the
legal age to obtain a license to operate a motor vehicle convicted under this
section shall not be eligible to receive * * * a license until the person reaches
the age of eighteen (18) years.
(10) Suspension of driving privileges for any person convicted of violations of subsection (1) of this section shall run consecutively.
(11) The court may order the use of any ignition interlock device as provided in Section 63-11-31.
(12) A person 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) (i) 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.
(ii) In any
cause * * * before any court of this state or
before any administrative board, agency or commission of this state or before
any court or administrative agency or any county or municipality of this state
in which an application for continuance is properly made, predicated upon the
ground that the counsel for the party making said application is a member of
the Mississippi Legislature and if said application is made at a time when the
Legislature is in session, either regular or extraordinary, or if said
legislature will be in session at the time that said cause would be triable,
then the continuance shall be granted in all cases.
(iii) In any case predicated on a second or subsequent offense under this section before any court of this state or before any administrative board, agency or commission of this state or before any court or administrative agency or any county or municipality of this state in which an application for continuance is properly made, predicated upon the ground that the charging officer is unavailable because the officer has been deployed on active military duty, whether for federal military service, with the national guard or reserve military, the continuance shall be granted in all cases and will operate to continue the case until the charging officer returns to employment with the law enforcement agency. A denial of the continuance shall not be ground for reversal unless the Supreme Court shall be satisfied that injustice resulted therefrom.
SECTION 2. Section 99-17-1, Mississippi Code of 1972, is amended as follows:
99-17-1. Unless good cause be shown and except as provided in Section 63-11-30(12)(d), and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.
SECTION 3. This act shall take effect and be in force from and after July 1, 2013.