MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Drug Policy
By: Representatives Touchstone, Sykes, Bennett
House Bill 1292
(As Passed the House)
AN ACT TO AMEND SECTION 97-5-49, MISSISSIPPI CODE OF 1972,
TO PROVIDE THAT A SOCIAL HOST SHALL BE GUILTY OF A FELONY IF SUCH PERSON HAS
BEEN CONVICTED FOR VIOLATING THE SOCIAL HOST PROVISIONS FOR MORE THAN TWO TIMES
WITHIN A FIVE YEAR PERIOD; TO PROVIDE THAT A SOCIAL HOST SHALL BE GUILTY OF A
FELONY IF SUCH PERSON'S ACTIONS CAUSE GREAT BODILY INJURY TO ANOTHER PERSON;
AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section
97-5-49, Mississippi Code of 1972, is amended as follows:
97-5-49. (1) As used in
this section:
(a) "Adult"
means a person over the age of twenty-one (21) years.
(b) "Alcoholic
beverage" has the meaning as defined in Section 67-1-5.
(c) "Beer"
has the meaning as defined in Section 67-3-3.
(d) "Great
bodily injury" means mutilates, disfigures, permanently disables or
destroys the tongue, eye, lips, nose or any other limb, organ or member of
another person.
( * * *de) "Light wine" means wine
containing five percent (5%) or less of alcohol by weight.
( * * *ef) "Minor" means a person
under the age of twenty-one (21) years.
( * * *fg) "Party" means a gathering
or event at which a group of two (2) or more persons assembles for a social
occasion or activity at a private residence or a private premises. For
purposes of this section, the term "party" means one incident
regardless of the number of minors who obtained, possessed or consumed
alcoholic beverages in violation of this act at the same "party."
( * * *gh) "Private premises" means
privately owned land, including any appurtenances or improvements on the land.
( * * *hi) "Private residence" means
the place where a person actually lives or has his or her home.
( * * *ij) "Wine" has the meaning as
defined in Section 67-1-5.
(2) No adult who owns or
leases a private residence or private premises shall knowingly allow a party to
take place or continue at the residence or premises if a minor at the party
obtains, possesses or consumes any alcoholic beverage, light wine or beer if
the adult knows that the minor has obtained, possesses or is consuming
alcoholic beverages, light wine or beer.
(3) This section shall not
apply to legally protected religious activities or gatherings of family members
or to any of the exemptions set forth in Section 67-3-54.
(4) Each incident in
violation of subsection (2) of this section or any part of subsection (2) * * *
shall only constitutes a
separate offense when each incident occurs at a different party.
(5) * * *(a) Any person who violates subsection (2) of
this section shall be guilty of a misdemeanor and, upon conviction thereof,
shall be punished by a fine of One Thousand Dollars ($1,000.00) or by
imprisonment in the county jail for not more than ninety (90) days, or by both
the fine and imprisonment, in the discretion of the court.
* * *
(b)
Any person who violates subsection (2) of this section shall also be guilty of
aggravated driving under the influence as provided in Section 63‑11‑30(5),
if a minor, who as a result of consuming alcoholic beverages that were provided
by such person in violation of subsection (2) of this section, is convicted of
aggravated driving under the influence under Section 63‑11‑30(5).
SECTION
2. 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)
(a) First offense DUI. (i) Except as otherwise provided in subsection
(3) of this section, 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; the court
shall order the person to attend and complete an alcohol safety education
program as provided in Section 63‑11‑32 within one (1) year. The
court may substitute attendance at a victim impact panel instead of forty‑eight
(48) hours in jail. Thirty (30) days after receipt of the court abstract, the
Department of Public Safety shall suspend the driver's license and driving
privileges of the person for ninety (90) days unless the person has surrendered
his driver's license to be voided and obtained a new driver's license that is
restricted to operation of vehicles equipped with an ignition‑interlock device
that complies with Section 63‑11‑31; the person will not be
eligible for an unrestricted license for ninety (90) days and until the person
has attended and successfully completed an alcohol safety education program as
provided in Section 63‑11‑32.
(ii)
Commercial driving privileges shall be suspended as provided in Section 63‑1‑216
for a violation of subsection (1) of this section.
(iii)
A qualifying first offense under subsection (1) of this section may be
nonadjudicated by the court under subsection (14) of this section. The holder
of a commercial driver's license or a commercial learning permit is ineligible
for nonadjudication.
(b)
Second offense DUI. (i) 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, 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. Thirty (30) days after receipt of the court abstract, the Department
of Public Safety shall suspend the driver's license of the person for one (1)
year unless the person has surrendered his driver's license to be voided and
obtained a new driver's license that is restricted to operation of vehicles
equipped with an ignition‑interlock device that complies with Section 63‑11‑31;
the person will not be eligible for an unrestricted license until the person
has either been subject to a full one‑year suspension of license or has
exercised the driving privilege solely under an interlock‑restricted
driver's license for one (1) full year.
(ii)
Suspension of commercial driving privileges shall be governed by Section 63‑1‑216.
(c)
Third and subsequent offense DUI. (i) Except as otherwise provided in
subsection (3), for any third 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),
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. The person may exercise the
privilege to drive only under a driver's license that is restricted to
operation of vehicles equipped with an ignition‑interlock device that
complies with Section 63‑11‑31 for three (3) years following
release from incarceration and will not be eligible for an unrestricted
driver's license for three (3) years.
(ii)
The suspension of commercial driving privileges shall be governed by Section 63‑1‑216.
(d)
Except as otherwise provided in subsection (3), 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 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.
(e)
The use of ignition‑interlock devices shall be as provided in 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 one (1) year. Thirty (30) days after receipt of the court abstract, the
Department of Public Safety shall suspend the driver's license and driving
privileges of the person for ninety (90) days unless the person has surrendered
his driver's license to be voided and obtained a new driver's license that is
restricted to operation of vehicles equipped with an ignition‑interlock
device that complies with Section 63‑11‑31; the person will not be
eligible for any other form of license for ninety (90) days. 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). Thirty (30) days after receipt of the court
abstract, the Department of Public Safety shall suspend the driver's license of
the person for one (1) year unless the person has surrendered his driver's
license to be voided and obtained a new driver's license that is restricted to
operation of vehicles equipped with an ignition‑interlock device that
complies with Section 63‑11‑31; the person will not be eligible for
an unrestricted license until the person has either been subject to a full one‑year
suspension or has exercised the driving privilege solely under an interlock‑restricted
license for one (1) full year.
(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) and, upon receipt of the court abstract, the
Department of Public Safety shall suspend the driver's license of the person
until the person 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 of driver's
license suspension reduced to six (6) months 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 shall complete treatment
of an alcohol or drug abuse program at a site certified by the Department of
Mental Health.
(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 unless the person surrenders his driver's license
to be voided and obtains a new driver's license that is restricted to operation
of vehicles equipped with an ignition‑interlock device that complies with
Section 63‑11‑31; the person will be limited to exercise of the
driving privilege only under an interlock‑restricted driver's license for
twice the period imposed for administrative driver's license suspension under
Section 63‑11‑23. Any other license restriction or suspension
imposed upon the person under this chapter will run consecutively and not
concurrently with the administrative suspension for test refusal imposed under
this section or 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. In addition, any person who violates
Section 97‑5‑49(2), shall also be guilty of aggravated driving
under the influence under this subsection (5), if a minor, who as a result of
consuming alcoholic beverages that were provided by such person in violation of
Section 97‑5‑49(2), is convicted of aggravated driving under the
influence under this subsection(5).
(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 citations. 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 shall 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. 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)
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 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 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 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)
License eligibility for underage offenders. 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 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, the device shall be installed 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 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; and
(v)
Who has provided the court with justification as to why the conviction should
be expunged.
(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 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. Nonadjudication must be conditioned upon the
successful completion of any conditions imposed by the court under this
subsection.
(b)
The court may rule that a first offense under subsection (1) or (3) of this
section be nonadjudicated. A person is eligible for nonadjudication only one
(1) time under any provision of a law that authorizes nonadjudication.
(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 enter an order imposing requirements on the offender.
(i)
The court shall order the person to:
1.
Pay the nonadjudication fee imposed under Section 63‑11‑31;
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;
4.
a. Install an ignition‑interlock device on every motor vehicle driven by
the person, obtain an interlock‑restricted license, and maintain that license for one hundred twenty
(120) days; or
b.
Suffer a one‑hundred‑twenty‑day suspension of the person's
driver's license, whether the license is an in‑state or out‑of‑state
driver's license.
(ii)
Other conditions to be imposed by the court may 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, 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)
The clerk shall 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 as provided in this subsection (14). Judges, clerks and
prosecutors involved in the trial of 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 is
therefore ineligible for another nonadjudication. 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. The Mississippi Alcohol Safety Education Program shall have access to
the confidential registry for research purposes only.
(6) (a) Any person who, within five
(5) years after two (2) or more previous convictions of a violation: (a) of
this section, or (b) of the provisions of any law of another state prohibiting
the offense provided for in subsection (2) of this section, or (c) in a
municipal criminal court of record for the violation of a municipal ordinance
prohibiting the offense provided for in subsection (2) of this section, or (d)
or any combination of two (2) or more thereof, shall be guilty of a felony and
shall be punished by a fine of not more than Two Thousand Five Hundred Dollars
($2,500), or by imprisonment in the custody of the Department of Corrections
for not more than five (5) years, or by both such fine and imprisonment.
(b) Any person who violates this
section, and such actions cause great bodily injury or the death of a person, shall,
in addition to any other penalty provided by law, be guilty of a felony,
punishable by imprisonment in the custody of the Department of Corrections for
not more than five (5) years, a fine of not less than Two Thousand Five Hundred
Dollars ($2,500) nor more than Five Thousand Dollars ($5,000), or both such
fine and imprisonment.
SECTION 2. This act
shall take effect and be in force from and after July 1, 2016.