18-8002. TESTS OF DRIVER FOR ALCOHOL CONCENTRATION, PRESENCE OF DRUGS OR OTHER INTOXICATING SUBSTANCES — PENALTY AND SUSPENSION UPON REFUSAL OF TESTS. (1) Any person who drives or is in actual physical control of a motor vehicle in this state shall be deemed to have given his consent to evidentiary testing for concentration of alcohol as defined in section 18-8004, Idaho Code, and to have given his consent to evidentiary testing for the presence of drugs or other intoxicating substances, provided that such testing is administered at the request of a peace officer having reasonable grounds to believe that person has been driving or was in actual physical control of a motor vehicle in violation of the provisions of section 18-8004 or 18-8006, Idaho Code.

(2) Such person shall not have the right to consult with an attorney before submitting to such evidentiary testing.

(3) At the time evidentiary testing for concentration of alcohol or for the presence of drugs or other intoxicating substances is requested, the person shall be informed that if he refuses to submit to or if he fails to complete evidentiary testing:

(a) He is subject to a civil penalty of two hundred fifty dollars ($250) for refusing to take the test;

(b) He is subject to mandatory installation of a state approved ignition interlock system, at his expense, on all of the motor vehicles operated by him for a period to end one (1) year following the end of the suspension period;

(c) He has the right to request a hearing within seven (7) days to show cause why he refused to submit to, or complete evidentiary testing;

(d) If he does not request a hearing or does not prevail at the hearing, the court shall sustain the civil penalty and shall order the required installation of a state approved ignition interlock system on all motor vehicles operated by him and his driver’s license will be suspended absolutely for one (1) year if this is his first refusal and two (2) years if this is his second refusal within ten (10) years;

(e) Provided however, if he is admitted to a problem solving court program and has served at least forty-five (45) days of an absolute suspension of driving privileges, then he may be eligible for a restricted permit for the purpose of getting to and from work, school or an alcohol treatment program, but only if a state approved ignition interlock system has been installed, at his expense, on all motor vehicles operated by him; and

(f) After submitting to evidentiary testing he may, when practicable, at his own expense, have additional tests made by a person of his own choosing.

(4) If the motorist refuses to submit to or complete evidentiary testing after the information has been given in accordance with subsection (3) of this section:

(a) He shall be fined a civil penalty of two hundred fifty dollars ($250);

(b) The court shall direct the installation, at his expense, of a state approved ignition interlock system meeting the requirements set forth in section 18-8008, Idaho Code, on all motor vehicles operated by him for a period of one (1) year following the end of the suspension period;

(c) A written request may be made within seven (7) calendar days for a hearing before the court; if requested, the hearing must be held within thirty (30) days of the date of service unless this period is, for good cause shown, extended by the court for one (1) additional thirty (30) day period. The hearing shall be limited to the question of why the defendant did not submit to, or complete, evidentiary testing, and the burden of proof shall be upon the defendant; the court shall sustain a two hundred fifty dollar ($250) civil penalty immediately, suspend all the defendant’s driving privileges immediately for one (1) year for a first refusal and two (2) years for a second refusal within ten (10) years and direct the installation, at his expense, of a state approved ignition interlock system meeting the requirements set forth in section 18-8008, Idaho Code, on all motor vehicles operated by him for a period to end one (1) year following the end of the suspension period, unless it finds that the peace officer did not have legal cause to stop and request him to take the test or that the request violated his civil rights;

(d) If a hearing is not requested by written notice to the court concerned within seven (7) calendar days, upon receipt of a sworn statement by the peace officer of the circumstances of the refusal, the court shall sustain a two hundred fifty dollar ($250) civil penalty, suspend the defendant’s driving privileges for one (1) year for a first refusal and two (2) years for a second refusal within ten (10) years, during which time he shall have absolutely no driving privileges of any kind, and direct the installation of a state approved ignition interlock system, at his expense, meeting the requirements set forth in section 18-8008, Idaho Code, on all motor vehicles operated by him for a period to end one (1) year following the end of the suspension period;

(e) Notwithstanding the provisions of paragraphs (c) and (d) of this subsection, if the defendant is enrolled in and is a participant in good standing in a drug court or mental health court approved by the supreme court drug court and mental health court coordinating committee under the provisions of chapter 56, title 19, Idaho Code, or other similar problem solving court utilizing community-based sentencing alternatives, then the defendant shall be eligible for restricted noncommercial driving privileges for the purpose of getting to and from work, school or an alcohol treatment program, which may be granted by the presiding judge of the drug court or mental health court or other similar problem solving court, provided that the defendant has served a period of absolute suspension of driving privileges of at least forty-five (45) days, that a state approved ignition interlock system meeting the requirements set forth in section 18-8008, Idaho Code, is installed, at his expense, on all motor vehicles operated by him for a period to end one (1) year following the end of the suspension period and that the defendant has shown proof of financial responsibility as defined and in the amounts specified in section 49-117, Idaho Code, provided that the restricted noncommercial driving privileges and the requirement of a state approved ignition interlock system may be continued if the defendant successfully completes the drug court, mental health court or other similar problem solving court, and that the court may revoke such privileges for failure to comply with the terms of probation or with the terms and conditions of the drug court, mental health court or other similar problem solving court program; and

(f) After submitting to evidentiary testing at the request of the peace officer, he may, when practicable, at his own expense, have additional tests made by a person of his own choosing. The failure or inability to obtain an additional test or tests by a person shall not preclude the admission of results of evidentiary testing for alcohol concentration or for the presence of drugs or other intoxicating substances taken at the direction of the peace officer unless the additional test was denied by the peace officer.

(5) Any sustained sanction under this section or section 18-8002A, Idaho Code, shall be a sanction separate and apart from any other sanction imposed for a violation of other Idaho motor vehicle codes or for a conviction of an offense pursuant to this chapter and may be appealed to the district court.

(6) No hospital, hospital officer, agent, or employee, or health care professional licensed by the state of Idaho, whether or not such person has privileges to practice in the hospital in which a body fluid sample is obtained or an evidentiary test is made, shall incur any civil or criminal liability for any act arising out of administering an evidentiary test for alcohol concentration or for the presence of drugs or other intoxicating substances at the request or order of a peace officer in the manner described in this section and section 18-8002A, Idaho Code; provided that nothing in this section shall relieve any such person or legal entity from civil liability arising from the failure to exercise the community standard of care.

(a) This immunity extends to any person who assists any individual to withdraw a blood sample for evidentiary testing at the request or order of a peace officer, which individual is authorized to withdraw a blood sample under the provisions of section 18-8003, Idaho Code, regardless of the location where the blood sample is actually withdrawn.

(b) A peace officer is empowered to order an individual authorized in section 18-8003, Idaho Code, to withdraw a blood sample for evidentiary testing when the peace officer has probable cause to believe that the suspect has committed any of the following offenses:

(i) Aggravated driving under the influence of alcohol, drugs or other intoxicating substances as provided in section 18-8006, Idaho Code;

(ii) Vehicular manslaughter as provided in subsection (3)(a), (b) and (c) of section 18-4006, Idaho Code;

(iii) Aggravated operating of a vessel on the waters of the state while under the influence of alcohol, drugs or other intoxicating substances as provided in section 67-7035, Idaho Code; or

(iv) Any criminal homicide involving a vessel on the waters of the state while under the influence of alcohol, drugs or other intoxicating substances.

(c) Nothing herein shall limit the discretion of the hospital administration to designate the qualified hospital employee responsible to withdraw the blood sample.

(d) The law enforcement agency that requests or orders withdrawal of the blood sample shall pay the reasonable costs to withdraw such blood sample, perform laboratory analysis, preserve evidentiary test results, and testify in judicial proceedings. The court may order restitution pursuant to the provisions of section 18-8003(2), Idaho Code.

(e) The withdrawal of the blood sample may be delayed or terminated if:

(i) In the reasonable judgment of the hospital personnel, withdrawal of the blood sample may result in serious bodily injury to hospital personnel or other patients; or

(ii) The licensed health care professional treating the suspect believes the withdrawal of the blood sample is contraindicated because of the medical condition of the suspect or other patients.

(7) "Actual physical control" as used in this section and section 18-8002A, Idaho Code, shall be defined as being in the driver’s position of the motor vehicle with the motor running or with the motor vehicle moving.

(8) Any written notice required by this section shall be effective upon mailing.

(9) For the purposes of this section and section 18-8002A, Idaho Code, "evidentiary testing" shall mean a procedure or test or series of procedures or tests, including the additional test authorized in subsection (10) of this section, utilized to determine the concentration of alcohol or the presence of drugs or other intoxicating substances in a person.

(10) A person who submits to a breath test for alcohol concentration, as defined in subsection (4) of section 18-8004, Idaho Code, may also be requested to submit to a second evidentiary test of blood or urine for the purpose of determining the presence of drugs or other intoxicating substances if the peace officer has reasonable cause to believe that a person was driving under the influence of any drug or intoxicating substance or the combined influence of alcohol and any drug or intoxicating substance. The peace officer shall state in his or her report the facts upon which that belief is based.

(11) Notwithstanding any other provision of law to the contrary, the civil penalty imposed under the provisions of this section must be paid, as ordered by the court, to the county justice fund or the county current expense fund where the incident occurred. If a person does not pay the civil penalty imposed as provided in this section within thirty (30) days of the imposition, unless this period has been extended by the court for good cause shown, the prosecuting attorney representing the political subdivision where the incident occurred may petition the court in the jurisdiction where the incident occurred to file the order imposing the civil penalty as an order of the court. Once entered, the order may be enforced in the same manner as a final judgment of the court. In addition to the civil penalty, attorney’s fees, costs and interest may be assessed against any person who fails to pay the civil penalty.

(12) Upon motion of the person required to install an ignition interlock device pursuant to subsection (4)(b) of this section, a court in its discretion may relieve the person from the installation of the device where the court finds it clear and convincing that the person will not present a danger to the public or that there are exceptional or mitigating circumstances demonstrating that installation of the device is unnecessary or unwarranted. Financial hardship, standing alone, is not an exceptional or mitigating circumstance.

(13) A court may determine that an offender is eligible to utilize available funds from the court interlock device and electronic monitoring device fund, as outlined in section 18-8010, Idaho Code, for the installation and operation of an ignition interlock device, based on evidence of financial hardship.

(14) As used in this section, "at his expense" includes the cost of obtaining, installing, using and maintaining an ignition interlock system.

History:

[18-8002, added 1984, ch. 22, sec. 2, p. 27; am. 1987, ch. 122, sec. 1, p. 248; am. 1987, ch. 132, sec. 1, p. 263; am. 1987, ch. 220, sec. 2, p. 469; am. 1989, ch. 88, sec. 60, p. 199; am. 1989, ch. 366, sec. 1, p. 915; am. 1989, ch. 367, sec. 1, p. 920; am. 1990, ch. 45, sec. 43, p. 111; am. 1992, ch. 115, sec. 39, p. 381; am. 1992, ch. 133, sec. 1, p. 416; am. 1993, ch. 413, sec. 1, p. 1516; am. 2006, ch. 224, sec. 1, p. 665; am. 2006, ch. 261, sec. 1, p. 800; am. 2009, ch. 108, sec. 1, p. 344; am. 2009, ch. 184, sec. 1, p. 584; am. 2011, ch. 15, sec. 1, p. 43; am. 2011, ch. 265, sec. 1, p. 710; am. 2014, ch. 63, sec. 2, p. 152; am. 2018, ch. 254, sec. 2, p. 587.]