31-5-233. Driving or having control of vehicle while under influence of intoxicating liquor or controlled substances; penalties.

(a) As used in this section:

(i) "Alcohol concentration" means:

(A) The number of grams of alcohol per one hundred (100) milliliters of blood;

(B) The number of grams of alcohol per two hundred ten (210) liters of breath; or

(C) The number of grams of alcohol per seventy-five (75) milliliters of urine.

(ii) "Controlled substance" includes:

(A) Any drug or substance defined by W.S. 35-7-1002(a)(iv);

(B) Any glue, aerosol or other toxic vapor which when intentionally inhaled or sniffed results in impairment of an individual's ability to drive safely;

(C) Any drug or psychoactive substance, or any combination of these substances, capable of impairing a person's physical or mental faculties.

(iii) "Conviction" means as defined in W.S. 31-7-102(a)(xi);

(iv) "Driver's license" means as defined in W.S. 31-7-102(a)(xxv) and includes nonresident operating privileges as defined in W.S. 31-7-102(a)(xxx);

(v) "Other law prohibiting driving while under the influence" means a statute of another state, the United States or a territory or district of the United States or an ordinance of a governmental entity of this or another state or of an Indian tribe which prohibits driving while under the influence of intoxicating liquor, alcohol, controlled substances or drugs;

(vi) "Child passenger" means a person traveling in a vehicle who is under sixteen (16) years of age;

(vii) "Alcohol" means any substance or substances containing any form of alcohol;

(viii) "Chemical test" means a test which analyzes an individual's breath, blood, urine, saliva or other bodily fluids or tissues for evidence of drug or alcohol use.

(b) No person shall drive or have actual physical control of any vehicle within this state if the person:

(i) Has an alcohol concentration of eight one-hundredths of one percent (0.08%) or more;

(ii) Has an alcohol concentration of eight one-hundredths of one percent (0.08%) or more, as measured within two (2) hours after the time of driving or being in actual physical control of the vehicle following a lawful arrest resulting from a valid traffic stop; or

(iii) To a degree which renders him incapable of safely driving:

(A) Is under the influence of alcohol;

(B) Is under the influence of a controlled substance; or

(C) Is under the influence of a combination of any of the elements named in subparagraphs (A) and (B) of this paragraph.

(c) Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or being in actual physical control of a vehicle while under the influence of alcohol, the amount of alcohol in the person's blood at the time alleged as shown by chemical analysis of the person's blood, urine, breath, or other bodily substance shall give rise to the following presumptions:

(i) If there was at that time an alcohol concentration of five one-hundredths of one percent (0.05%) or less, it shall be presumed that the person was not under the influence of alcohol;

(ii) If there was at that time an alcohol concentration of more than five one-hundredths of one percent (0.05%) and less than eight one-hundredths of one percent (0.08%), that fact shall not give rise to any presumption that the person was or was not under the influence of alcohol, but it may be considered with other competent evidence in determining whether the person was under the influence of alcohol to a degree which renders him incapable of safely driving a motor vehicle.

(d) Subsection (c) of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcohol, including tests obtained more than two (2) hours after the alleged violation. The fact that any person charged with a violation of subsection (b) of this section is or has been entitled to use the controlled substance under the laws of this state shall not constitute a defense against any charge under subsection (b) of this section.

(e) Except as otherwise provided, a person convicted of violating this section shall be ordered to or shall receive a substance abuse assessment conducted by a substance abuse provider certified by the department of health pursuant to W.S. 9-2-2701(c) at or before sentencing. Notwithstanding any other provision of this subsection, a nonresident may receive a substance abuse assessment from a provider certified by that person's state of residence. The cost of the substance abuse assessment shall be assessed to and paid by the offender. Except as otherwise provided in this subsection or subsection (h) or (m) of this section, a person convicted of violating this section is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both. On a second offense resulting in a conviction within ten (10) years after a conviction for a violation of this section or other law prohibiting driving while under the influence, he shall be punished by imprisonment for not less than seven (7) days nor more than six (6) months, he shall be ordered to or shall receive a substance abuse assessment conducted by a substance abuse provider certified by the department of health pursuant to W.S. 9-2-2701(c) before sentencing and shall not be eligible for probation or suspension of sentence or release on any other basis until he has served at least seven (7) days in jail. In addition, the person may be fined not less than two hundred dollars ($200.00) nor more than seven hundred fifty dollars ($750.00). On a third offense resulting in a conviction within ten (10) years after a conviction for a violation of this section or other law prohibiting driving while under the influence, he shall be punished by imprisonment for not less than thirty (30) days nor more than six (6) months, shall receive a substance abuse assessment pursuant to W.S. 7-13-1302 and shall not be eligible for probation or suspension of sentence or release on any other basis until he has served at least thirty (30) days in jail except that the court shall consider the substance abuse assessment and may order the person to undergo outpatient alcohol or substance abuse treatment during any mandatory period of incarceration. The minimum period of imprisonment for a third violation shall be mandatory, but the court, having considered the substance abuse assessment and the availability of public and private resources, may suspend up to fifteen (15) days of the mandatory period of imprisonment if, subsequent to the date of the current violation, the offender completes an inpatient treatment program approved by the court. In addition, the person may be fined not less than seven hundred fifty dollars ($750.00) nor more than three thousand dollars ($3,000.00). The judge may suspend part or all of the discretionary portion of an imprisonment sentence under this subsection and place the defendant on probation on condition that the defendant pursues and completes an alcohol education or treatment program as prescribed by the judge. Notwithstanding any other provision of law, the term of probation imposed by a judge under this section may exceed the maximum term of imprisonment established for the offense under this subsection provided the term of probation together with any extension thereof, shall not exceed three (3) years for up to and including a third conviction. On a fourth offense resulting in a conviction or subsequent conviction within ten (10) years for a violation of this section or other law prohibiting driving while under the influence, he shall be guilty of a felony and fined not more than ten thousand dollars ($10,000.00), punished by imprisonment for not more than seven (7) years, or both.

(f) Any person convicted under this section or other law prohibiting driving while under the influence as defined in W.S. 31-5-233(a)(v), or whose prosecution under this section is deferred under W.S. 7-13-301, shall, in addition to the penalty imposed:

(i) Have his driver's license suspended or revoked pursuant to W.S. 31-7-127 or 31-7-128. The court shall forward to the department a copy of the record pertaining to disposition of the arrest or citation;

(ii) Except as provided in subsection (n) of this section, for a first conviction, or for a prosecution deferred under W.S. 7-13-301, where the department's administrative action indicates the person had an alcohol concentration of fifteen one-hundredths of one percent (0.15%) or more, operate only vehicles equipped with an ignition interlock device, pursuant to W.S. 31-7-401 through 31-7-404, for a period of six (6) months. For purposes of this paragraph, the department's administrative action shall be deemed to indicate a person had an alcohol concentration of fifteen one-hundredths of one percent (0.15%) or more only after the person is notified of and given the opportunity to pursue the administrative procedures provided by W.S. 31-7-105;

(iii) Except as provided in subsection (n) of this section, for a second conviction, operate only vehicles equipped with an ignition interlock device, pursuant to W.S. 31-7-401 through 31-7-404, for a period of one (1) year;

(iv) Except as provided in subsection (n) of this section, for a third conviction, operate only vehicles equipped with an ignition interlock device, pursuant to W.S. 31-7-401 through 31-7-404, for a period of two (2) years;

(v) For a fourth or subsequent conviction, operate only vehicles equipped with an ignition interlock device, pursuant to W.S. 31-7-401 through 31-7-404, for the remainder of the offender's life, except five (5) years from the date of conviction and every five (5) years thereafter, the offender may apply to the court for removal of the ignition interlock device required by this paragraph. The court may, for good cause shown, remove the ignition interlock device requirement if the offender has not been subsequently convicted of driving a motor vehicle in violation of this section or other law prohibiting driving while under the influence as defined in W.S. 31-5-233(a)(v).

(g) The court may, upon pronouncement of any jail sentence under subsection (e) of this section, provide in the sentence that the defendant may be permitted, if he is employed or enrolled in school and can continue his employment or education, to continue such employment or education for not more than the time necessary as certified by his employer or school administrator, and the remaining day, days or parts of days shall be spent in jail until the sentence is served. He shall be allowed out of jail only long enough to complete his actual hours of employment or education and a reasonable time to travel to and from his place of employment or school. Unless the defendant is indigent, the court shall require him as a condition of special treatment under this subsection to pay a reasonable amount for room and board as determined by the sheriff.

(h) As used in this subsection, "serious bodily injury" means as defined in W.S. 6-1-104(a)(x). Whoever causes serious bodily injury to another person resulting from the violation of this section shall be punished upon conviction as follows:

(i) If not subject to the penalty under paragraph (ii) of this subsection, by a fine of not less than two thousand dollars ($2,000.00) nor more than five thousand dollars ($5,000.00), imprisonment for not more than ten (10) years, or both;

(ii) If previously convicted and sentenced under this subsection, or any other law substantially conforming to the provisions of this subsection, by imprisonment for not more than twenty (20) years; and

(iii) Any person convicted under this subsection shall have his driver's license revoked as provided in W.S. 31-7-127.

(j) Any person charged under this section or a municipal ordinance which substantially conforms to the provisions of this section shall be prosecuted under this section or the ordinance and not under a reduced charge or dismissed unless the prosecuting attorney in open court moves or files a statement to reduce the charge or dismiss, with supporting facts, stating that there is insufficient evidence to sustain the charge.

(k) Chemical analysis of a person's blood, breath or urine to determine alcohol concentration or controlled substance content shall be performed in accordance with W.S. 31-6-105(a).

(m) Any person eighteen (18) years of age or older who has a child passenger in the vehicle during a violation of this section shall be punished upon conviction as follows:

(i) For a first conviction under this subsection, by imprisonment for not more than one (1) year, a fine of not more than seven hundred fifty dollars ($750.00), or both;

(ii) If previously convicted and sentenced under this subsection, or any other law substantially conforming to the provisions of this subsection, by imprisonment for not more than five (5) years.

(n) The court may, as an alternative or in addition to the requirements of W.S. 31-5-233(f)(ii) through (iv), require a person otherwise restricted to operating only motor vehicles equipped with an ignition interlock device under W.S. 31-5-233(f)(ii) through (iv) to participate in a program established under the 24/7 Sobriety Program Act, W.S. 7-13-1701 et seq., for the period specified in W.S. 31-5-233(f)(ii) through (iv). A person required to participate in a 24/7 sobriety program as an alternative to the requirements of W.S. 31-5-233(f)(ii) through (iv) shall be granted a restricted driver's license under W.S. 31-7-109(m) upon proper application under rules established by the department and provided that the person enrolls in and complies with the requirements of the 24/7 sobriety program.