MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Judiciary B
By: Representative Evans (91st)
AN ACT TO AMEND SECTIONS 63-11-5 AND 63-11-23, MISSISSIPPI CODE OF 1972, TO REVISE LICENSE SUSPENSION REQUIREMENTS FOR TEST REFUSAL IF THE LICENSEE SUBSEQUENTLY PLEADS GUILTY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 63-11-5, Mississippi Code of 1972, is amended as follows:
[Effective until July 1, 2020, this section will read as follows:]
63-11-5. (1) (a) Any
person who operates a motor vehicle upon the public highways, public roads * * * or streets of 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.
(b) The test or tests shall be administered at the direction of any authorized officer, 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.
(c) 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 * * *
Officer Standards and Training; provided however, that that 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.
(d) For purposes of this subsection (1), the term "authorized officer" means any highway patrol officer, sheriff or his duly commissioned deputies, police officer in any incorporated municipality, national park ranger, officer of a state-supported institution of higher learning campus police force if such officer is exercising this authority in regard to a violation that occurred on campus property, or 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.
(2) If the officer has
reasonable grounds and probable cause to believe such person to have been
driving a motor vehicle upon the public highways, public roads, * * * or streets of this state while under
the influence of intoxicating liquor, such officer shall inform such person
that his failure to submit to such chemical test or tests of his breath shall
result in the suspension of his privilege to operate a motor vehicle upon the
public streets * * *,
roads or highways of this state for a period of ninety (90) days in the
event such person has not previously been convicted of a violation of Section
63-11-30, or * * *
for a period of one (1) year in the event of any previous conviction of such person
under Section 63-11-30. If the person who failed to submit to such chemical
test or tests of his breath should, at the trial of his charge for driving
under the influence, subsequently enters a plea of guilty to the charge, the
suspension of the privilege to operate a motor vehicle upon the public streets
and highways of this state shall be set aside and otherwise terminated.
(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) Any 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.
[Effective from and after July 1, 2020, this section will read:]
63-11-5. (1) (a) Any
person who operates a motor vehicle upon the public highways, public roads * * * or streets of 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, blood or urine 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.
(b) The test or tests shall be administered at the direction of any authorized officer, 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.
(2) (a) A breath analysis
test must be administered by a person who has met all the educational and
training requirements of the appropriate course of study prescribed by the
Board on Law Enforcement * * * Officers Officer Standards and Training; however,
sheriffs and elected chiefs of police are exempt from the educational and
training requirement. A breath analysis test must not be given to any person
within fifteen (15) minutes of consumption of any substance by mouth.
(b) For purposes of this section, the term "authorized officer" means any highway patrol officer, sheriff or his duly commissioned deputies, police officer in any incorporated municipality, national park ranger, officer of a state-supported institution of higher learning campus police force if such officer is exercising this authority in regard to a violation that occurred on campus property, or 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.
(3) If the officer has
reasonable grounds and probable cause to believe such person to have been
driving a motor vehicle upon the public highways, public roads * * * or streets of this state while
under the influence of intoxicating liquor or any other substance that has
impaired the person's ability to operate a motor vehicle, the officer shall
inform the person that his failure to submit to such chemical test or tests of
his breath, blood or urine shall result in the suspension of his privilege to
operate a motor vehicle upon the public streets * * *, roads or highways of this state
for a period of ninety (90) days if the person has not previously been
convicted of a violation of Section 63-11-30, or * * * for a period of one (1) year if the person
has a prior conviction under Section 63-11-30. If the person who failed to
submit to such chemical test or tests of his breath should, at the trial of his
charge for driving under the influence, subsequently enters a plea of guilty to
the charge, the suspension of the privilege to operate a motor vehicle upon the
public streets and highways of this state shall be set aside and otherwise
terminated.
(4) 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).
(5) Any 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.
(6) 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 2. Section 63-11-23, Mississippi Code of 1972, is amended as follows:
[Effective until July 1, 2020, this section will read 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 upon the public highways, public roads and streets of this state while under the influence of intoxicating liquor or any other substance that may impair a person's mental or physical ability; (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 or permit should not be suspended, he shall return the license or permit to the licensee. If the person who failed to submit to such chemical test or tests of his breath should, at the trial of his charge for driving under the influence, subsequently enters a plea of guilty to the charge, the suspension of the privilege to operate a motor vehicle upon the public streets and highways of this state shall be set aside and otherwise terminated.
(b) The notice of suspension shall be in writing and 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 privileges to operate a motor vehicle to be extended until the defendant is convicted upon final order of the court.
(c) If a receipt or permit to drive issued under 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) Offenders driving without a license. 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.
(4) Appeal. 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, Section 63-11-37 or Section 63-11-30.
(5) Suspension subsequent to conviction. Unless the person obtains an interlock-restricted license or the court orders the person to exercise the privilege to operate a motor vehicle only under an interlock-restricted license thirty (30) days after receipt of the court abstract documenting a person's conviction under Section 63-11-30, the Department of Public Safety shall suspend the driver's license and privileges of the person to operate a motor vehicle as follows:
(a) When sentenced under Section 63-11-30(2):
(i) For a first offense: one hundred twenty (120) days;
(ii) For a second offense: one (1) year;
(iii) For a third offense: for the full period of the person's sentence; upon release from incarceration, 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; upon release from incarceration, the person will be eligible for only an interlock-restricted license for ten (10) years.
(b) When sentenced under Section 63-11-30(3) (Zero Tolerance for Minors):
(i) For a first offense: one hundred twenty (120) days;
(ii) For a second offense: one (1) year;
(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.
(6) Suspensions. (a) Notices of suspension given under this section shall be in writing and conform to Section 63-1-52.
(b) Suspensions under this and any other chapter shall run consecutively and not concurrently.
(7) License reinstatement. A person is eligible for an unrestricted license when the person has completed an alcohol safety education program as provided in Section 63-11-32, has satisfied all other conditions of law and of the person's sentence or nonadjudication, and is not otherwise barred from obtaining an unrestricted license.
[Effective from and after July 1, 2020, this section will read:]
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 upon the public highways, public
roads * * * or
streets of this state while under the influence of intoxicating liquor or any
other substance that may impair a person's mental or physical ability; (ii)
that the person refused to submit to the chemical test of the person's breath,
blood or urine 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 of his breath, blood or urine, 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 or permit should not be suspended, he shall return the license
or permit to the licensee.
(b) The notice of suspension shall be in writing and conform to Section 63-1-52.
(c) A person may continue to drive on either an interlock-restricted license or under a drug-testing program if so ordered by a court in the course of a criminal proceeding for a violation of Section 63-11-30.
(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 privileges to operate a motor vehicle to be extended until the defendant is convicted upon final order of the court.
(c) If a receipt or permit to drive issued under 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) Offenders driving without a license. 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.
(4) Appeal. 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, Section 63-11-37 or Section 63-11-30.
(5) Suspension subsequent to conviction. Unless the person obtains an interlock-restricted license or the court orders the person to exercise the privilege to operate a motor vehicle only under an interlock-restricted license or while participating in a court-ordered drug-testing program, thirty (30) days after receipt of the court abstract documenting a person's conviction under Section 63-11-30, the Department of Public Safety shall suspend the driver's license and privileges of the person to operate a motor vehicle as follows:
(a) When sentenced under Section 63-11-30(2):
(i) For a first offense: one hundred twenty (120) days;
(ii) For a second offense: one (1) year;
(iii) For a third offense: for the full period of the person's sentence; upon release from incarceration, 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; upon release from incarceration, the person will be eligible for only an interlock-restricted license for ten (10) years and will further be subject to court-ordered drug testing if the original offense involved operating a motor vehicle under the influence of a drug other than alcohol.
(b) When sentenced under Section 63-11-30(3) (Zero Tolerance for Minors):
(i) For a first offense: one hundred twenty (120) days;
(ii) For a second offense: one (1) year;
(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.
(6) Suspensions. (a) Notices of suspension given under this section shall be in writing and conform to Section 63-1-52.
(b) Suspensions under this and any other chapter shall run consecutively and not concurrently.
(7) License reinstatement. A person is eligible for an unrestricted license when the person has completed an alcohol safety education program as provided in Section 63-11-32, has satisfied all other conditions of law and of the person's sentence or nonadjudication, and is not otherwise barred from obtaining an unrestricted license.
SECTION 3. This act shall take effect and be in force from and after July 1, 2020.