HP1096, LD 1491, item 1, An Act To Strengthen the Laws against Driving under the Influence of Drugs

An Act To Strengthen the Laws against Driving under the Influence of Drugs

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 29-A MRSA §2401, sub-§2-A is enacted to read:

2-A. After ingesting drugs. "After ingesting drugs" means while having a detectable urine-drug level or a detectable blood-drug level with a positive confirmed drug or its metabolite concentration in accordance with the drug reporting rules, standards, procedures and protocols adopted by the Department of Health and Human Services.

Sec. 2. 29-A MRSA §2431, sub-§1, as amended by PL 2009, c. 447, §44, is further amended to read:

1. Test results. Test results showing a drug concentration detectable urine-drug level or detectable blood-drug level or alcohol level at the time alleged are admissible in evidence. Failure to comply with the provisions of sections 2521 and 2523 may not, by itself, result in the exclusion of evidence of alcohol level or drug concentration detectable urine-drug level or detectable blood-drug level, unless the evidence is determined to be not sufficiently reliable.

Sec. 3. 29-A MRSA §2431, sub-§2, ¶A-1 is enacted to read:

A-1. A person certified in accordance with section 2524 performing an approved immunoassay detection test for urine-drug level may issue a certificate stating the results of the test.

Sec. 4. 29-A MRSA §2431, sub-§2, ¶L is enacted to read:

L. Evidence that materials used in the collection and performance of an approved immunoassay detection test of urine was provided by the Department of Health and Human Services is prima facie evidence that the materials were of the composition and quality stated by the manufacturer and are of a quality appropriate for the purpose of producing reliable test results.

Sec. 5. 29-A MRSA §2431, sub-§2, ¶M is enacted to read:

M. A photograph, digital image or photocopy of an approved immunoassay detection test clearly showing the results of the test is prima facie evidence of the results.

Sec. 6. 29-A MRSA §2431, sub-§2, ¶N is enacted to read:

N. The results of an approved immunoassay test kit are prima facie evidence of urine-drug level.

Sec. 7. 29-A MRSA §2431, sub-§2, ¶O is enacted to read:

O. The prosecution is not required to produce expert testimony regarding the functioning of an approved immunoassay drug test before test results are admissible if sufficient evidence is offered to show that the test kit was an approved test kit provided by the Department of Health and Human Services.

Sec. 8. 29-A MRSA §2432, as amended by PL 2009, c. 447, §48, is further amended to read:

§ 2432. Alcohol level; detectable urine-drug level; detectable blood-drug level; evidentiary weight

1. Level less than 0.05 grams. If a person has an alcohol level of 0.05 grams or less of alcohol per 100 milliliters of blood or 210 liters of breath, it is prima facie evidence that that person is not under the influence of alcohol.

2. Level greater than 0.05 grams and less than 0.08 grams. If a person has an alcohol level in excess of 0.05 grams of alcohol but less than 0.08 grams of alcohol per 100 milliliters of blood or 210 liters of breath, it is relevant evidence, but not prima facie, indicating whether or not that person is under the influence of intoxicants to be considered with other competent evidence including evidence of a detectable urine-drug level or blood-drug concentration level.

3. Level of 0.08 grams or greater. In proceedings other than under section 2411, a person is presumed to be under the influence of intoxicants if that person has an alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath.

4. Detectable urine-drug level. If a person has trace amounts of any drug or the metabolites of any drug at detectable concentration levels within the person's urine, it is relevant evidence, but not prima facie, indicating whether or not that person is under the influence of intoxicants, to be considered with other competent evidence, including evidence of alcohol level and detectable blood-drug level.

5. Detectable blood-drug level. If a person has trace amounts of any drug or the metabolites of any drug at detectable concentration levels within the person's blood, it is relevant evidence, but not prima facie, indicating whether or not that person is under the influence of intoxicants, to be considered with other competent evidence, including evidence of alcohol level and detectable urine-drug level.

Sec. 9. 29-A MRSA §2453, as amended by PL 2009, c. 447, §49, is further amended to read:

§ 2453. Suspension on administrative determination; operating motor vehicle with excessive alcohol level under influence of intoxicants or after ingesting drugs

1. Purpose. The purpose of this section is:

A. To provide maximum safety for all persons who travel on or otherwise use the public ways; and

B. To remove quickly from public ways those persons who have shown themselves to be a safety hazard by operating a motor vehicle with an excessive alcohol level. :

(1) With an excessive alcohol level;

(2) Under the influence of intoxicants; or

(3) After ingesting drugs.

2. Definition. For the purposes of this section, "operating a motor vehicle with an excessive alcohol level" means operating a motor vehicle with an alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath.

3. Suspension. The Secretary of State shall immediately suspend a license of a person determined to have operated a motor vehicle with an excessive alcohol level , under the influence of intoxicants, or after ingesting drugs.

4. Drug and alcohol program. The Secretary of State may not suspend a license solely because a person has not satisfactorily completed an alcohol and drug program, as defined in subchapter 1. This limitation does not affect statutory restoration authority.

5. Stay. If, within 10 days from the effective date of the suspension, the Secretary of State receives a request in writing for a hearing in accordance with section 2483, the suspension is stayed until a hearing is held and a decision is issued.

6. Period of suspension. The following periods of suspension apply.

A. The same suspension period applies as if the person were convicted of OUI.

C. If a person's license is also suspended for an OUI conviction arising out of the same occurrence, the period of time the license has been suspended under this section prior to the conviction must be deducted from the period of time of a court-imposed suspension.

D. The period of suspension is a minimum and the Secretary of State may suspend the license for an additional period under section 2451, subsection 3.

7. Restoration of license. The Secretary of State may issue a license or permit as follows.

A. Restoration of any license or permit to operate, right to operate a motor vehicle and right to apply for or obtain a license suspended under this section must be in accordance with sections 2502 to 2506.

8. Hearing. The scope of the hearing must include whether:

A. The person operated a motor vehicle with an excessive alcohol level , under the influence of intoxicants or after ingesting drugs; and

B. There was probable cause to believe that the person was operating a motor vehicle with an excessive alcohol level , under the influence of intoxicants or after ingesting drugs.

Sec. 10. 29-A MRSA §2456, sub-§1, ¶B, as amended by PL 2009, c. 447, §51, is further amended to read:

B. While having an alcohol level of more than 0.08 grams per 100 milliliters of blood or 210 liters of breath or after ingesting drugs; or

Sec. 11. 29-A MRSA §2456, sub-§3, ¶B, as amended by PL 2009, c. 447, §52, is further amended to read:

B. The person, at that time, had an excessive alcohol level, was operating after ingesting drugs or was under the influence of intoxicants or may be penalized for failure to submit to required chemical testing; and

Sec. 12. 29-A MRSA §2472, as amended by PL 2009, c. 447, §§57 to 62, is further amended to read:

§ 2472. Juvenile provisional license

1. Licensee not yet 21 years of age. A license issued to a person who has not yet attained the age of 21 years is a provisional license for a period of 2 years following the date of issue or until the holder attains 21 years of age, whichever occurs last. That license remains in force as a nonprovisional license to the next normal expiration date. A license issued by another jurisdiction to a person who has not yet attained the age of 21 years is a provisional license for the purpose of operating a motor vehicle within this State.

A license of a person who has not yet attained 21 years of age includes the condition that the person not operate a motor vehicle with an alcohol level of more than 0.00 grams per 100 milliliters of blood or 210 liters of breath or after ingesting drugs. When a person who has not yet attained 21 years of age operates a motor vehicle with an alcohol level of more than 0.00 grams per 100 milliliters of blood or 210 liters of breath or after ingesting drugs, the provisions of section 1251, subsection 1, paragraph B apply.

2. Suspension terms for moving violations. If a person who has not yet attained the age of 21 years is convicted or adjudicated of a moving motor vehicle violation that occurred within 2 years from the date of issue of a juvenile provisional license, the Secretary of State shall suspend the license without right to hearing:

A. For 30 days on the 1st offense;

B. For 60 days on the 2nd offense; and

C. For 90 days on the 3rd or subsequent offense.

3. Suspension for OUI conviction or certain alcohol or drug concentration level. The Secretary of State shall suspend, without preliminary hearing, a juvenile provisional license of a person who:

A. Receives an OUI conviction; or

B. Operates a motor vehicle with an alcohol level of more than 0.00 grams per 100 milliliters of blood or 210 liters of breath . ; or

C. Operates a motor vehicle after ingesting drugs.

3-A. Juvenile provisional license; suspension for OUI conviction or certain alcohol or drug concentration level. Unless a longer period of suspension applies, the Secretary of State shall suspend, without a preliminary hearing, a juvenile provisional license pursuant to subsection 3 for the following periods:

A. One year for a first offense; and

B. Two years for a 2nd offense.

If the Secretary of State determines that the person operated the motor vehicle at the time of the offense with a passenger under 21 years of age, an additional suspension period of 180 days must be imposed.

4. Duty to submit to test. A person under 21 years of age who operates a motor vehicle shall submit to a chemical test if there is probable cause to believe that person has operated a motor vehicle with an alcohol level of more than 0.00 grams per 100 milliliters of blood or 210 liters of breath or after ingesting drugs. The provisions of subchapter 4 apply, except the suspension is:

A. Eighteen months for the first refusal; and

B. Thirty months for a 2nd or subsequent refusal.

5. Hearing; stay; issues. If a hearing is requested in accordance with section 2483, the suspension under subsection 3, paragraph B or C is stayed pending the outcome of the hearing. The scope of a hearing must include whether:

A. There was probable cause to believe that the person was under 21 years of age and operated a motor vehicle with an alcohol level of more than 0.00 grams per 100 milliliters of blood or 210 liters of breath or after ingesting drugs;

B. The person operated a motor vehicle with an alcohol level of more than 0.00 grams per 100 milliliters of blood or 210 liters of breath or after ingesting drugs; and

C. The person was under 21 years of age.

6. Restoration of license. If a person's license has been suspended under subsection 3 for a first offense, the Secretary of State may issue a license if:

A. One half of the suspension period has expired; and

B. The Secretary of State has received notice that the person has completed the alcohol and other drug program of the Office of Substance Abuse.

A 2nd or subsequent offender may be issued a license following the completion of the period of suspension provided the Secretary of State has received notice that the person has completed the alcohol and other drug program of the Office of Substance Abuse.

Sec. 13. 29-A MRSA §2481, sub-§1-A is enacted to read:

1-A. Report of drug recognition expert. A drug recognition expert certified in accordance with section 2526 who has probable cause to believe that a person operated a motor vehicle while under the influence of intoxicants or after ingesting drugs shall send to the Secretary of State a report, completed under oath on a form approved by the Secretary of State, of all information relevant to that belief, including, but not limited to:

A. Information adequately identifying the person who is the subject of the report; and

B. The drug recognition expert's grounds for probable cause to believe that the person operated a motor vehicle while under the influence of intoxicants or after ingesting drugs.

The person who analyzed a drug or a drug's metabolite concentration pursuant to a drug recognition expert's report shall submit a copy of a confirmed test result certificate to the Secretary of State.

Sec. 14. 29-A MRSA §2482, sub-§2, ¶C, as amended by PL 2003, c. 434, §34 and affected by §37, is further amended to read:

C. If the suspension or revocation is imposed by an authority other than a court Unless the suspension or revocation is ordered by a court or rests solely upon a conviction or adjudication in court of an offense that is, by statute, expressly made grounds for that suspension or revocation, the right of the person to request a hearing and the procedure for requesting a hearing; and

Sec. 15. 29-A MRSA §2482, sub-§2, ¶F, as amended by PL 2009, c. 447, §64, is further amended to read:

F. If the suspension or revocation is based on a report under section 2481, that a copy of the report of the law enforcement officer and any alcohol test certificate and drug concentration report will be provided to the person upon request to the Secretary of State.

Sec. 16. 29-A MRSA §2503, sub-§1, as amended by PL 1997, c. 737, §21, is further amended to read:

1. Administrative suspension; work-restricted license. On receipt of a petition for a work-restricted license from a person under suspension pursuant to section 2453 or section 2472, subsection 3, paragraph B or C for a first offense, the Secretary of State may stay a suspension during the statutory suspension period and issue a work-restricted license, if the petitioner shows by clear and convincing evidence that:

A. As determined by the Secretary of State, a license is necessary to operate a motor vehicle:

(1) Between the residence and a place of employment or in the scope of employment, or both; or

(2) Between the residence and an educational facility attended by the petitioner if the suspension is under section 2472, subsection 3, paragraph B for a first offense;

B. No alternative means of transportation is available; and

C. The petitioner has not, within 10 years, been under suspension for an OUI offense or pursuant to section 2453.

Sec. 17. 29-A MRSA §2524, sub-§3-A is enacted to read:

3-A. Persons qualified to take specimens and perform immunoassay drug detection test. A person certified by the Maine Criminal Justice Academy or the Department of Corrections as qualified to administer an immunoassay drug detection test kit approved by the Department of Health and Human Services may use an approved test kit to collect and analyze a sample specimen of urine.

Sec. 18. 29-A MRSA §2524, sub-§5, as amended by PL 2009, c. 447, §71, is further amended to read:

5. Equipment for taking specimens. Only equipment having a stamp of approval affixed by the Department of Health and Human Services may be used to take a sample specimen of breath or urine, except that a self-contained, breath-alcohol testing apparatus if reasonably available may be used to determine the alcohol level and an immunoassay drug detection test kit may be used to determine the detectable urine-drug level.

Approved testing apparatus must have a stamp of approval affixed by the Department of Health and Human Services after periodic testing. That stamp is valid for no more than one year. An approved immunoassay drug detection test kit must be one that is provided to a state or local agency through the Department of Health and Human Services.

Sec. 19. 29-A MRSA §2525, as amended by PL 1995, c. 145, §2, is further amended to read:

§ 2525. Drug impairment assessment

1. Submission to test required. If a drug recognition technician expert has probable cause to believe that a person is under the influence of a specific category of drug, a combination of specific categories of drugs or a combination of alcohol and one or more specific categories of drugs, that person must submit to a blood or urine test selected by the drug recognition technician expert to confirm that person's category of drug use and determine drug concentration detectable urine-drug level or detectable blood-drug level. A drug recognition expert qualified pursuant to section 2524, subsection 3-A may perform an immunoassay drug detection test.

2. Admissibility of evidence. If a law enforcement officer certified as a drug recognition technician expert by the Maine Criminal Justice Academy conducts a drug impairment assessment, the officer's testimony about that assessment is admissible in court as evidence of operating under the influence of intoxicants. If a drug recognition expert qualified pursuant to section 2524, subsection 3-A performs an immunoassay drug detection test, the results of that test are admissible as evidence of operating under the influence of intoxicants. Failure to comply with any provision of this section does not, by itself, result in the exclusion of evidence of test results, unless the evidence is determined to be not sufficiently reliable.

3. Payment for tests. A person authorized to take specimens of blood at the direction of a law enforcement officer or to perform tests on specimens of blood or breath must be paid from the Highway Fund.

Sec. 20. 29-A MRSA §2526, as enacted by PL 1993, c. 683, Pt. A, §2 and affected by Pt. B, §5, is amended to read:

§ 2526. Drug recognition experts

1. Training program. The board of trustees of the Maine Criminal Justice Academy shall establish:

A. A program that meets the National Highway Traffic Safety Administration guidelines for training and certification of drug recognition technicians experts; and

B. Eligibility standards for admission of law enforcement officers to the program that are consistent with National Highway Traffic Safety Administration guidelines and that ensure that trainees are:

(1) Law enforcement officers who have demonstrated proficiency and experience in standardized field sobriety testing and the ability to complete the training and function as drug recognition technicians experts; and

(2) Employed by law enforcement agencies that have the facilities, equipment and other resources necessary for the effective functioning of drug recognition technicians experts.

2. Selection of trainees. The Commissioner of Public Safety shall select for training as drug recognition technicians experts members of the State Police and other law enforcement officers who meet the eligibility requirements.

3. Qualifications. Only those law enforcement officers who successfully complete the training and certification program established under this section may conduct drug impairment assessments and offer testimony as drug recognition technicians experts under section 2525.

summary

Under current law, the Secretary of State is authorized to immediately suspend a license of a person determined to have operated a motor vehicle with an excessive alcohol level. This bill authorizes the Secretary of State to also administratively suspend driver's license of a person determined to have operated a motor vehicle after ingesting drugs or while under the influence of intoxicants. This bill also changes the designation "drug recognition technicians" to "drug recognition experts."

HP1096 LD 1491	First Regular Session - 125th Maine Legislature		LR 967 Item 1
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