SP0661, LD 1628, item 1, An Act To Strengthen the Laws on Operating a Motor Vehicle under the Influence of Intoxicants

An Act To Strengthen the Laws on Operating a Motor Vehicle under the Influence of Intoxicants

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

Sec. 1. 5 MRSA §20071, sub-§1, as amended by PL 1999, c. 448, §1, is further amended to read:

1. Alcohol-related or other drug-related motor vehicle incident. "Alcohol-related or other drug-related motor vehicle incident" means a conviction or administrative action resulting in the suspension of a motor vehicle operator's license for a violation under former Title 29, section 1311-A; Title 29, section 1312, subsection 10-A; Title 29, section 1312-C; Title 29, section 1312-B; Title 29, section 1313-B; Title 29, section 2241, subsection 1, paragraph N; Title 29, section 2241-G, subsection 2, paragraph B, subparagraph (2); Title 29, section 2241-J; Title 29-A, section 1253; Title 29-A, section 2411; Title 29-A, section 2453; Title 29-A, section 2454, subsection 2; Title 29-A, section 2456; Title 29-A, section 2457; Title 29-A, section 2472, subsection 3, paragraph paragraphs B , C and D and subsection 4; Title 29-A, section 2503; Title 29-A, sections 2521 to 2523; or Title 29-A, section 2525 or the rules adopted by the Department of the Secretary of State for the suspension of commercial drivers' licenses.

Sec. 2. 29-A MRSA §2401, sub-§12-A is enacted to read:

12-A. THC level. "THC level" means the amount, in nanograms, of delta-9-tetrahydrocannabinol contained in a milliliter of blood.

Sec. 3. 29-A MRSA §2432, as amended by PL 2013, c. 459, §4, is further amended to read:

§ 2432. Alcohol level; THC level; confirmed positive drug or metabolite test results; 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 admissible 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 confirmed positive drug or metabolite test result.

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. Confirmed presence of drug or drug metabolite. If a person has a trace amount of any drug or the metabolites of any drug within the person's blood or urine in accordance with the drug reporting rules, standards, procedures and protocols adopted by the Department of Health and Human Services, it is admissible evidence, but not prima facie, indicating whether that person is under the influence of intoxicants to be considered with other competent evidence, including evidence of alcohol level.

5. THC level of 5 nanograms or greater. Proof that a person has a THC level of 5 nanograms or more gives rise to a permissible inference under the Maine Rules of Evidence, Rule 303 that the person is under the influence of intoxicants.

6. Level of THC and alcohol in combination. Proof that a person has a THC level of 2 nanograms or more and an alcohol level of 0.05 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath gives rise to a permissible inference under the Maine Rules of Evidence, Rule 303 that the person is under the influence of intoxicants.

Sec. 4. 29-A MRSA §2432-A is enacted to read:

§ 2432-A. Preliminary breath testing devices

1. Use of preliminary breath testing devices permitted. A law enforcement officer who possesses basic certification as a full-time law enforcement officer pursuant to Title 25, section 2804-C, subsection 1 who reasonably believes that a person has been operating a motor vehicle under the influence of intoxicants may request, without making an arrest, that the person submit to a preliminary breath test to determine the person's alcohol level, which, in addition to other relevant evidence, the officer may use to determine whether there is probable cause to believe that person was operating a motor vehicle while under the influence of intoxicants.

2. Approved devices; training. A law enforcement officer may administer a preliminary breath test only using a preliminary breath testing device that has been approved by the National Highway Traffic Safety Administration and evaluated by the Department of Health and Human Services. Prior to administering a preliminary breath test using an approved device, an officer must be properly trained in the use of the device through a training course approved by the Board of Trustees of the Maine Criminal Justice Academy.

3. Admissibility of results. A result of a test administered pursuant to this section is admissible in evidence in any court or administrative hearing in determining whether there is probable cause to believe a person was operating a motor vehicle while under the influence of intoxicants.

4. Failure as evidence. Failure of a person to submit to a preliminary breath test is not admissible in evidence on the issue of whether a person was operating under the influence of intoxicants. Any other evidence bearing on the issue of whether the person was operating under the influence of intoxicants is admissible, even if a person fails to submit to a preliminary breath test or the results of such a test are not available for any reason.

5. Preliminary breath test not mandatory; subsequent test for intoxicants permitted. A preliminary breath test is not mandatory, and a law enforcement officer's request to submit to such a test may be declined. A person who submits to a preliminary breath test is not relieved of the duty to submit to and complete a further test pursuant to subchapter 4.

Sec. 5. 29-A MRSA §2472, as amended by PL 2013, c. 496, §16, 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. 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, the provisions of section 1251, subsection 1, paragraph B apply.

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 a THC level of more than 0.00 nanograms. When a person who has not yet attained 21 years of age operates a motor vehicle with a THC level of more than 0.00 nanograms, the provisions of section 1251, subsection 1, paragraph B apply, except that it is an affirmative defense that the THC level resulted from marijuana use in compliance with Title 22, chapter 558-C.

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:

A. For 30 days on the 1st offense;

B. For 180 days on the 2nd offense; and

C. For one year on the 3rd or subsequent offense.

If requested, the Secretary of State shall provide an opportunity for hearing on the suspension as soon as practicable. After hearing, the Secretary of State, for good cause shown, may continue, modify or rescind the suspension. An individual who has not yet attained the age of 18 years does not have a right to a hearing.

2-A. Driver improvement program. A person whose license is suspended pursuant to subsection 2 shall complete a minimum of 4 hours of a driver improvement program approved by the Secretary of State before the suspension may be terminated.

2-B. Reexamination. The holder of a juvenile provisional license convicted of an offense listed in section 2551-A, subsection 1, paragraph A, as limited by section 2551-A, subsection 3, must successfully complete an examination pursuant to section 1301, subsection 4 as prescribed by the Secretary of State within 90 days after that license is restored. Failure to successfully complete the examination results in a subsequent suspension.

3. Suspension for OUI conviction, certain alcohol or THC level or operating under the influence of drugs. The Secretary of State shall suspend, without preliminary hearing, a juvenile provisional license of a person who:

A. Receives an OUI conviction;

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 under the influence of drugs . ; or

D. Operates a motor vehicle with a THC level of more than 0.00 nanograms unless the person demonstrates that the THC level resulted from marijuana use in compliance with Title 22, chapter 558-C.

3-A. Juvenile provisional license; suspension for OUI conviction or certain alcohol or THC 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 with a THC level of more than 0.00 nanograms or while 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. 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 or D 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 with a THC level of more than 0.00 nanograms or while 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;

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 with a THC level of more than 0.00 nanograms unless the person demonstrates that the THC level resulted from marijuana use in compliance with Title 22, chapter 558-C or with a confirmed positive blood or urine test for a drug or its metabolite and was under the influence of the confirmed drug; 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 Department of Health and Human Services.

A 2nd or subsequent offender may be issued a license following the completion of the period of suspension if the Secretary of State has received notice that the person has completed the alcohol and other drug program of the Department of Health and Human Services.

7. Reinstatement fee for suspensions for major offenses. Before a suspension issued to the holder of a license issued pursuant to this section resulting from a conviction or adjudication listed in section 2551-A, subsection 1, paragraph A, as limited by section 2551-A, subsection 3, is terminated and a license reinstated, a fee of $200 must be paid to the Secretary of State and the holder must complete any community service imposed by a court, up to 60 hours.

Sec. 6. 29-A MRSA §2503, sub-§1, as amended by PL 2011, c. 335, §12, 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, section 2453-A or section 2472, subsection 3, paragraph B or , C or D 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 or , C or D 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 or 2453-A.

summary

This bill contains the recommendations of the majority of the Working Group on Marijuana and Driving that was convened in 2015 by the Secretary of State. This bill is submitted by the Joint Standing Committee on Criminal Justice and Public Safety in order to begin consideration by the committee of the recommendations of the working group. The bill does the following:

1. It establishes a permissible inference of operating under the influence of intoxicants when a person operates a motor vehicle and has a level of delta-9-tetrahydrocannabinol, or THC, of 5 nanograms or more per milliliter of blood;

2. It establishes a permissible inference of operating under the influence of intoxicants when a person operates a motor vehicle and has a level of THC of 2 nanograms or more per milliliter of blood and an alcohol level of 0.05 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath;

3. It establishes a 0.00 nanogram level for THC for a person under 21 years of age and provides an affirmative defense for marijuana use in compliance with the Maine Medical Use of Marijuana Act; and

4. It permits a qualified law enforcement officer, without making an arrest, to request that a person who the officer reasonably believes has been operating under the influence take a preliminary breath test for alcohol level and allows the results to be used to determine whether there is probable cause to believe the person was operating under the influence.

SP0661 LD 1628	Session - 127th Maine Legislature		LR 2691 Item 1
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