A.R.S. tit. 28 ch. 4 — Arizona Revised Statutes Title 28 Chapter 4 — Driving Under The Influence

28-1301. Definitions In this chapter, unless the context otherwise requires: 1. "Certified ignition interlock device" means an ignition interlock device that is certified pursuant to article 5 of this chapter. 2. "Circumvent" or "circumvention" means an attempted or successful bypass of the proper functioning of a certified ignition interlock device and includes all of the following: (a) The bump start of a motor vehicle with a certified ignition interlock device. (b) The introduction of a false sample other than a deep-lung breath sample from the person driving the motor vehicle. (c) The introduction of an intentionally contaminated or a filtered breath sample. (d) The intentional disruption or blocking of a digital image identification device. (e) The continued operation of the motor vehicle after the certified ignition interlock device detects breath alcohol exceeding the presumptive limit prescribed in section 28-1381, subsection G, paragraph 3 or, if the person is under twenty-one years of age, any attempt to operate the motor vehicle with any spirituous liquor in the person's body. (f) Operating a motor vehicle without a properly functioning certified ignition interlock device. (g) Allowing a person other than the person who is required to maintain a functioning certified ignition interlock device pursuant to this chapter to breathe into the certified ignition interlock device for the purpose of providing a breath alcohol sample to start the motor vehicle or for the rolling retest. 3. "Commercial motor vehicle" means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle either: (a) Has either a gross combined weight rating or a gross weight of twenty-six thousand one or more pounds inclusive of a towed unit with a gross vehicle weight rating or gross weight of more than ten thousand pounds, whichever is greater. (b) Has either a gross vehicle weight rating or a gross weight of twenty-six thousand one or more pounds, whichever is greater. (c) Is a school bus. (d) Is a bus. (e) Is used in the transportation of materials found to be hazardous for the purposes of the hazardous materials transportation act (49 United States Code sections 5101 through 5127) and is required to be placarded under 49 Code of Federal Regulations section 172.504, as adopted by the department pursuant to chapter 14 of this title. 4. "Education" means a program in which a person participates in at least sixteen hours of classroom instruction relating to alcohol or other drugs. 5. "Gross weight" has the same meaning prescribed in section 28-5431. 6. "Ignition interlock device" means a device that is based on alcohol specific electrochemical fuel sensor technology that meets the national highway traffic safety administration specifications, that connects a breath analyzer to a motor vehicle's ignition system, that is constantly available to monitor the concentration by weight of alcohol in the breath of any person attempting to start the motor vehicle by using its ignition system and that deters starting the motor vehicle by use of its ignition system unless the person attempting to start the motor vehicle provides an appropriate breath sample for the device and the device determines that the concentration by weight of alcohol in the person's breath is below a preset level. 7. "Ignition interlock service provider" means a person who is an authorized representative of a manufacturer and who is under contract with the department to install or oversee the installation of ignition interlock devices by the provider's authorized agents or subcontractors and to provide services to the public related to ignition interlock devices. 8. "License" means any license, temporary instruction permit or temporary license issued under the laws of this state or any other state pertaining to the licensing of persons to operate motor vehicles. 9. "Manufacturer" means a person or an organization that is located in the United States, that is responsible for the design, construction or production of an ignition interlock device and that is certified by the department to offer ignition interlock devices for installation in motor vehicles in this state. 10. "Rolling retest" means a breath alcohol test that is required of a person at random intervals after the motor vehicle is started and that is in addition to the initial test required to start the motor vehicle. 11. "Screening" means a preliminary interview and assessment of an offender to determine if the offender requires alcohol or other drug education or treatment. 12. "Tampering" means an overt or conscious attempt to physically disable or otherwise disconnect the certified ignition interlock device from its power source that allows the operator to start the engine without taking and passing the requisite breath test. 13. "Technician" means a person who is certified and properly trained by an ignition interlock service provider to install, inspect, repair, calibrate, service or remove certified ignition interlock devices. 14. "Treatment" means a program consisting of at least twenty hours of participation in a group setting dealing with alcohol or other drugs in addition to the sixteen hours of education. 28-1302. Applicability of chapter This chapter applies on highways and elsewhere in this state. 28-1303. Oversight council on driving or operating under the influence abatement; report A. The oversight council on driving or operating under the influence abatement is established consisting of the following ten members: 1. The director of the department of public safety or the director's designee. 2. The assistant director for the motor vehicle division of the department of transportation or the assistant director's designee. 3. The director of the governor's office of highway safety. 4. One member of the public who is appointed by the governor. 5. One member of the public who is appointed by the speaker of the house of representatives. 6. One member of the public who is appointed by the president of the senate. 7. One municipal law enforcement member who is appointed by the governor on the recommendation of an Arizona association of chiefs of police. 8. One county law enforcement member who is appointed by the governor on the recommendation of an Arizona county sheriff's association. 9. One city prosecutor who is appointed by the governor on the recommendation of the Arizona prosecuting attorney's advisory council. 10. One county attorney who is appointed by the governor on the recommendation of the Arizona prosecuting attorney's advisory council. B. Members appointed pursuant to subsection A, paragraphs 4, 5, 6, 7, 8, 9 and 10 of this section serve three-year staggered terms. C. Members appointed pursuant to subsection A, paragraphs 1, 2 and 3 of this section shall serve as advisory nonvoting members of the council. D. The voting members of the council shall annually elect a chairperson from among the members. E. Members of the council are not eligible to receive compensation, but members who are appointed pursuant to subsection A, paragraphs 4, 5, 6, 7, 8, 9 and 10 of this section are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2. F. The oversight council on driving or operating under the influence abatement may use the facilities for meeting and the staff of the Arizona criminal justice commission. G. The oversight council on driving or operating under the influence abatement may enter into interagency agreements with the Arizona criminal justice commission and other agencies for agency business. H. The council shall: 1. Make grants from the driving under the influence abatement fund established by section 28-1304 to political subdivisions and tribal governments that apply for monies for enforcement purposes, prosecutorial and judicial activities and alcohol abuse treatment services related to preventing and abating driving or operating under the influence occurrences in a motor vehicle or a motorized watercraft as defined in section 5-301. 2. Make grants from the driving under the influence abatement fund established by section 28-1304 to innovative programs that use emerging technologies to educate, prevent or deter occurrences of driving or operating under the influence in a motor vehicle or a motorized watercraft. 3. Receive quarterly reports from the entities receiving grants and evaluate their effectiveness. The council may make additional grants to the recipients and oversee the progress of those programs. 4. On or before December 1 of each year, submit a written report on the effectiveness of the grants provided in reducing the incidence of driving or operating under the influence to the governor, the speaker of the house of representatives and the president of the senate and shall provide a copy of this report to the secretary of state. 28-1304. Driving under the influence abatement fund A. The driving under the influence abatement fund is established consisting of monies deposited pursuant to section 4-213, subsection J, section 5-396, subsection I, paragraph 2, section 5-397, subsection D, paragraph 3 and subsection F, paragraph 3, section 28-1382, subsection D, paragraph 3 and subsection E, paragraph 3, section 28-1383, subsection J, paragraph 2 and section 28-1465. B. The oversight council on driving or operating under the influence abatement established by section 28-1303 shall administer the fund. C. Twenty-five per cent of the monies deposited in the fund shall be used for grants for innovative programs pursuant to section 28-1303, subsection H, paragraph 2 and seventy per cent of the monies deposited in the fund shall be used for grants to political subdivisions and tribal governments pursuant to section 28-1303, subsection H, paragraph 1. D. Not more than five per cent of the monies deposited in the fund shall be used for both of the following: 1. Administrative purposes of the oversight council on driving or operating under the influence abatement. 2. Payment of the costs of notification prescribed by section 28-1467. E. Monies in the fund are: 1. Continuously appropriated. 2. Exempt from the provisions of section 35-190 relating to lapsing of appropriations. F. On notice from the oversight council on driving or operating under the influence abatement, the state treasurer shall invest and divest monies in the fund as provided in section 35-313, and monies earned from investments shall be credited to the fund. 28-1321. Implied consent; tests; refusal to submit to test; order of suspension; hearing; review; temporary permit; notification of suspension; special ignition interlock restricted driver license A. A person who operates a motor vehicle in this state gives consent, subject to section 4-244, paragraph 34 or section 28-1381, 28-1382 or 28-1383, to a test or tests of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content if the person is arrested for any offense arising out of acts alleged to have been committed in violation of this chapter or section 4-244, paragraph 34 while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor as prescribed in section 28-1381 or drugs. The test or tests chosen by the law enforcement agency shall be administered at the direction of a law enforcement officer having reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle in this state either: 1. While under the influence of intoxicating liquor as prescribed in section 28-1381 or drugs. 2. If the person is under twenty-one years of age, with spirituous liquor in the person's body. B. After an arrest a violator shall be requested to submit to and successfully complete any test or tests prescribed by subsection A of this section, and if the violator refuses the violator shall be informed that the violator's license or permit to drive will be suspended or denied for twelve months, or for two years for a second or subsequent refusal within a period of eighty-four months, unless the violator expressly agrees to submit to and successfully completes the test or tests. A failure to expressly agree to the test or successfully complete the test is deemed a refusal. The violator shall also be informed that: 1. If the test results show a blood or breath alcohol concentration of 0.08 or more, if the results show a blood or breath alcohol concentration of 0.04 or more and the violator was driving or in actual physical control of a commercial motor vehicle, a vehicle for hire as defined in section 28-9501 or while providing transportation network services as defined in section 28-9551 as a transportation network company driver as defined in section 28-9551 or if the results show there is any drug defined in section 13-3401 or its metabolite in the person's body and the person does not possess a valid prescription for the drug, the violator's license or permit to drive will be suspended or denied for not less than ninety consecutive days. 2. The violator's driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege may be issued or reinstated following the period of suspension only if the violator completes alcohol or other drug screening. C. A person who is dead, unconscious or otherwise in a condition rendering the person incapable of refusal is deemed not to have withdrawn the consent provided by subsection A of this section and the test or tests may be administered, subject to section 4-244, paragraph 34 or section 28-1381, 28-1382 or 28-1383. D. If a person under arrest refuses to submit to the test designated by the law enforcement agency as provided in subsection A of this section: 1. The test shall not be given, except as provided in section 28-1388, subsection E or pursuant to a search warrant. 2. The law enforcement officer directing the administration of the test shall: (a) File a certified report of the refusal with the department within thirty days after the date of the arrest. If a certified report is not forwarded to the department as prescribed by this subdivision, the department shall not enter an order of suspension on its records unless the violation listed in subsection A of this section resulted in death or serious physical injury as defined in section 13-105. (b) On behalf of the department, do one of the following: (i) Serve an order of suspension on the person that is effective thirty days after the date the order is served. (ii) Advise the person that the certified report will be submitted to the department and that the department will notify the person in writing if an order of suspension is entered. The law enforcement officer shall direct the person to ensure the person's address is updated with the department pursuant to section 28-448. (c) Require the immediate surrender of any license or permit to drive that is issued by this state and that is in the possession or control of the person. The law enforcement agency may do either of the following to a driver license or permit taken into possession under this subdivision: (i) In compliance with sections 41-151.15 and 41-151.19, destroy the driver license or permit. (ii) Forward the driver license or permit to the department within thirty days after the issuance of the notice of suspension. (d) If the license or permit is not surrendered, state the reason why it is not surrendered. (e) If a valid license or permit is surrendered, issue a temporary driving permit that is valid for thirty days. (f) Forward the certified report of refusal, a copy of the completed notice of suspension and a copy of any completed temporary permit to the department within thirty days after the issuance of the notice of suspension. E. The certified report is subject to the penalty for perjury as prescribed by section 28-1561 and shall state all of the following: 1. The officer's reasonable grounds to believe that the arrested person was driving or in actual physical control of a motor vehicle in this state either: (a) While under the influence of intoxicating liquor as prescribed in section 28-1381 or drugs. (b) If the person is under twenty-one years of age, with spirituous liquor in the person's body. 2. The manner in which the person refused to submit to the test or tests. 3. That the person was advised of the consequences of refusal. F. On receipt of the certified report of refusal and a copy of the order of suspension, the department shall enter the order of suspension on its records. The order of suspension is effective thirty days after the date that the order was served unless a timely request for a hearing as provided in this section is filed by the accused person. If the department receives only the certified report of refusal, the department shall notify the person named in the report in writing sent by mail that: 1. Thirty days after the date of issuance of the notice the department will suspend the person's license or permit, driving privilege or nonresident driving privilege. 2. The department will provide an opportunity for a hearing if the person requests a hearing in writing or online and the request is received by the department within thirty days after the notice is sent. G. The order of suspension issued by a law enforcement officer or the department under this section shall notify the person that: 1. The person may submit a written or online request for a hearing. 2. The request for a hearing must be received by the department within thirty days after the date of the notice or the order of suspension will become final. 3. The affected person's license or permit to drive or right to apply for a license or permit or any nonresident operating privilege will be suspended for twelve months from that date or for two years from that date for a second or subsequent refusal within a period of eighty-four months. 4. The person's driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege may be issued or reinstated following the period of suspension only if the person completes alcohol or other drug screening. H. The order for suspension shall: 1. Be accompanied by printed forms that are ready to mail to the department, that may be filled out and signed by the person to indicate the person's desire for a hearing and that advise the person that the person may alternatively submit an online request for a hearing. 2. Advise the person that unless the person has surrendered any driver license or permit issued by this state the person's hearing request will not be accepted, except that the person may certify pursuant to section 28-3170 that the license or permit is lost or destroyed. I. On the receipt of a request for a hearing, the department shall set the hearing within sixty days. The department may hold the hearing in person, by telephone or by videoconference. If the department holds the hearing in person, the hearing shall be held in the county in which the person named in the report resides unless the law enforcement agency filing the certified report of refusal pursuant to subsection D of this section requests at the time of its filing that the hearing be held in the county where the refusal occurred. J. A timely request for a hearing stays the suspension until a hearing is held, except that the department shall not return any surrendered license or permit to the person but may issue temporary permits to drive that expire not later than when the department has made its final decision. If the person is a resident without a license or permit or has an expired license or permit, the department may allow the person to apply for a restricted license or permit. If the department determines the person is otherwise entitled to the license or permit, the department shall issue and retain a restricted license or permit subject to this section. K. Hearings requested under this section shall be conducted in the same manner and under the same conditions as provided in section 28-3306. For the purposes of this section, the scope of the hearing shall include only the issues of whether: 1. A law enforcement officer had reasonable grounds to believe that the person was driving or was in actual physical control of a motor vehicle in this state either: (a) While under the influence of intoxicating liquor as prescribed in section 28-1381 or drugs. (b) If the person is under twenty-one years of age, with spirituous liquor in the person's body. 2. The person was placed under arrest. 3. The person refused to submit to the test. 4. The person was informed of the consequences of refusal. L. If the department determines at the hearing to suspend the affected person's privilege to operate a motor vehicle, the suspension provided in this section is effective thirty days after giving written notice of the suspension, except that the department may issue or extend a temporary license that expires on the effective date of the suspension. If the person is a resident without a license or permit or has an expired license or permit to operate a motor vehicle in this state, the department shall deny to the person the issuance of a license or permit for a period of twelve months after the order of suspension becomes effective or for a period of two years after the order of suspension becomes effective for a second or subsequent refusal within a period of eighty-four months, and may reinstate the person's driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege following the period of suspension only if the person completes alcohol or other drug screening. M. If the suspension order is sustained after the hearing, a motion for rehearing is not required. Within thirty days after a suspension order is sustained, the affected person may file a petition in the superior court to review the final order of suspension or denial by the department in the same manner provided in section 28-3317. The court shall hear the review of the final order of suspension or denial on an expedited basis. N. If the suspension or determination that there should be a denial of issuance is not sustained, the ruling is not admissible in and has no effect on any administrative, civil or criminal court proceeding. O. If it has been determined under the procedures of this section that a nonresident's privilege to operate a motor vehicle in this state has been suspended, the department shall give information either in writing or by electronic means of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which the person has a license. P. After completing any alcohol or other drug screening that is ordered by the department pursuant to this chapter, a person whose driving privilege is suspended pursuant to this section may apply to the department for a special ignition interlock restricted driver license pursuant to section 28-1401. Unless the certified ignition interlock period is extended by the department pursuant to section 28-1461, a person who is issued a special ignition interlock restricted driver license as provided in this subsection shall maintain a functioning certified ignition interlock device in compliance with this chapter during the remaining period of the suspension prescribed by this section. This subsection does not apply to a person whose driving privilege is suspended for a second or subsequent refusal within a period of eighty-four months. Q. Notwithstanding section 28-1401, the department may issue a special ignition interlock restricted driver license to a person for an offense described in subsection A of this section. A person who applies for and who is issued a special ignition interlock restricted driver license pursuant to this subsection agrees to the administrative action taken by the department against the person's license. Once the department issues a special ignition interlock restricted driver license pursuant to this subsection, the person waives any right to an administrative hearing contesting the administrative action against the person's license pursuant to this section or section 28-1385. 28-1322. Preliminary breath tests; rules on approval of devices A. A law enforcement officer who has reasonable suspicion to believe that a person has committed a violation of section 28-1381 or 28-1382 may request that the person submit to a preliminary breath test or tests before an arrest. B. In addition to a breath test or tests, the officer may require that the person submit to further testing pursuant to section 28-1321. C. The director of the department of public safety shall adopt rules prescribing the approval of quantitative preliminary breath testing devices. 28-1323. Admissibility of breath test or other records A. The results of a breath test administered for the purpose of determining a person's alcohol concentration are admissible as evidence in any trial, action or proceeding on establishing the following foundational requirements: 1. The test was performed using a quantitative breath testing device approved by the department of health services or the department of public safety. A properly authenticated certification by the department of health services or the department of public safety or judicial notice of department of health services or department of public safety rules is sufficient to establish this requirement. 2. The operator who conducted the test possessed a valid permit issued by the department of health services or the department of public safety to operate the device used to conduct the test. 3. Duplicate tests were administered and the test results were within 0.02 alcohol concentration of each other or an operator observed the person charged with the violation for twenty minutes immediately preceding the administration of the test. 4. The operator who conducted the test followed an operational checklist approved by the department of health services or the department of public safety for the operation of the device used to conduct the test. The testimony of the operator is sufficient to establish this requirement. 5. The device used to conduct the test was in proper operating condition. Records of periodic maintenance that show that the device was in proper operating condition are admissible in any proceeding as prima facie evidence that the device was in proper operating condition at the time of the test. Calibration checks with a standard alcohol concentration solution bracketing each person's duplicate breath test are one type of records of periodic maintenance that satisfies the requirements of this section. The records are public records. B. Compliance with subsection A of this section is the only requirement for the admission in evidence of a breath test result. C. The inability of any person to obtain manufacturer's schematics and software for a quantitative breath testing device that is approved as prescribed in subsection A of this section shall not affect the admissibility of the results of a breath test pursuant to this section. D. Records that may be obtained or that are otherwise maintained pursuant to section 28-1327 are admissible as evidence in any trial, action or proceeding. 28-1324. Breath test rules The director of the department of public safety shall adopt rules prescribing methods and procedures for the administration of breath tests to determine alcohol concentration. The rules shall include: 1. The approval of quantitative breath testing devices. 2. Procedures for ensuring the accuracy of results obtained from approved breath testing devices. 3. Qualifications for persons who conduct breath tests. 4. Qualifications for persons who instruct others in the operation of breath testing devices. 28-1325. Breath test operator permits A. The director of the department of public safety shall issue permits to operators who have received approved instruction and who have demonstrated their ability to accurately operate an approved breath testing device. B. The director of the department of public safety may revoke the permit of a person who fails to operate a breath testing device according to the rules adopted by the director of the department of public safety. 28-1326. Blood test; rules; permits A. The director of the department of public safety shall adopt rules prescribing the approval of methods for the analysis of blood or other bodily substances to determine blood alcohol concentration. B. The director of the department of public safety shall issue a permit to an analyst who has demonstrated the ability to accurately analyze blood or other bodily substances for alcohol concentration. C. The director of the department of public safety may revoke the permit of an analyst who either: 1. Has demonstrated an inability to accurately analyze blood or other bodily substances for alcohol concentration. 2. Fails to analyze blood or other bodily substances for alcohol concentration according to rules adopted by the director of the department of health services. 28-1327. Reproduction of records; admissibility; computer storage; definition A. The head of a law enforcement agency or the director of the department of health services may place on computer storage any records concerning a quantitative breath testing device. Signatures that are found on the records do not have to be placed on computer storage. B. A duplicate of any information that is placed on computer storage pursuant to subsection A is deemed to be an original of the record for all purposes and is admissible without further foundation in evidence if the following appears on each page: Pursuant to section 28-1327, Arizona Revised Statutes, this document is a certified duplicate of the information contained in computer storage devices of the (name of agency). C. For the purposes of this section, "duplicate" means a counterpart produced by any of the following: 1. The same impression or from the same matrix as the original. 2. Means of photography, including enlargements and miniatures. 3. Mechanical or electronic rerecording. 4. Chemical reproduction. 5. Any other equivalent technique that accurately reproduces the original. 28-1381. Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing; time limitation; violation; classification; definition A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances: 1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree. 2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle. 3. While there is any drug defined in section 13-3401 or its metabolite in the person's body. 4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more. 5. While operating a vehicle for hire as defined in section 28-9501 or while providing transportation network services as defined in section 28-9551 as a transportation network company driver as defined in section 28-9551 if the person has an alcohol concentration of 0.04 or more. B. It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state. C. A person who is convicted of a violation of this section is guilty of a class 1 misdemeanor. D. A person using a drug as prescribed by a medical practitioner who is licensed pursuant to title 32 and who is authorized to prescribe the drug is not guilty of violating subsection A, paragraph 3 of this section. E. In any prosecution for a violation of this section, the state shall allege, for the purpose of classification and sentencing pursuant to this section, all prior convictions of violating this section, section 28-1382 or section 28-1383 occurring within the past thirty-six months, unless there is an insufficient legal or factual basis to do so. F. At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted. G. In a trial, action or proceeding for a violation of this section or section 28-1383 other than a trial, action or proceeding involving a person who is driving or in actual physical control of a commercial motor vehicle or a vehicle for hire as defined in section 28-9501 or involving a person who is providing transportation network services as defined in section 28-9551 as a transportation network company driver as defined in section 28-9551, the defendant's alcohol concentration within two hours of the time of driving or being in actual physical control as shown by analysis of the defendant's blood, breath or other bodily substance gives rise to the following presumptions: 1. If there was at that time 0.05 or less alcohol concentration in the defendant's blood, breath or other bodily substance, it may be presumed that the defendant was not under the influence of intoxicating liquor. 2. If there was at that time in excess of 0.05 but less than 0.08 alcohol concentration in the defendant's blood, breath or other bodily substance, that fact shall not give rise to a presumption that the defendant was or was not under the influence of intoxicating liquor, but that fact may be considered with other competent evidence in determining the guilt or innocence of the defendant. 3. If there was at that time 0.08 or more alcohol concentration in the defendant's blood, breath or other bodily substance, it may be presumed that the defendant was under the influence of intoxicating liquor. H. Subsection G of this section does not limit the introduction of any other competent evidence bearing on the question of whether or not the defendant was under the influence of intoxicating liquor. I. A person who is convicted of a violation of this section: 1. Shall be sentenced to serve not less than ten consecutive days in jail and is not eligible for probation or suspension of execution of sentence unless the entire sentence is served. 2. Shall pay a fine of not less than $250. 3. May be ordered by a court to perform community restitution. 4. Shall pay an additional assessment of $500 to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. 5. Shall pay an additional assessment of $500 to be deposited by the state treasurer in the public safety equipment fund established by section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. 6. If the violation involved intoxicating liquor, shall be required by the department, on report of the conviction, to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date the person successfully completes the alcohol or other drug screening, education or treatment program or evidence-based psychotherapy requirements of this title and the person is otherwise eligible to reinstate the person's driver license or driving privilege. The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter. 7. Shall be required by the department to attend and successfully complete an approved traffic survival school course. 8. At the person's option, may be ordered by the court to participate in a religious program that is approved by the court. The person's participation in a religious program must be voluntary, and the purpose of the religious program may not include any effort to coerce the person to adopt or change any religious affiliation or beliefs. J. Notwithstanding subsection I, paragraph 1 of this section, at the time of sentencing the judge may suspend all but one day of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program or evidence-based psychotherapy. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program or evidence-based psychotherapy and has not been placed on probation, the court shall issue an order to show cause to the defendant as to why the remaining jail sentence should not be served. K. If within a period of eighty-four months a person is convicted of a second violation of this section or is convicted of a violation of this section and has previously been convicted of a violation of section 28-1382 or 28-1383 or an act in another jurisdiction that if committed in this state would be a violation of this section or section 28-1382 or 28-1383, the person: 1. Shall be sentenced to serve not less than ninety days in jail, thirty days of which shall be served consecutively, and is not eligible for probation or suspension of execution of sentence unless the entire sentence has been served. 2. Shall pay a fine of not less than $500. 3. Shall be ordered by a court to perform at least thirty hours of community restitution. 4. Shall have the person's driving privilege revoked for one year. The court shall report the conviction to the department. On receipt of the report, the department shall revoke the person's driving privilege and, if the violation involved intoxicating liquor, shall require the person to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date the person successfully completes the alcohol or other drug screening, education or treatment program or evidence-based psychotherapy requirements of this title and the person is otherwise eligible to reinstate the person's driver license or driving privilege. The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter. 5. Shall pay an additional assessment of $1,250 to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. 6. Shall pay an additional assessment of $1,250 to be deposited by the state treasurer in the public safety equipment fund established by section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. 7. Shall be required by the department to attend and successfully complete an approved traffic survival school course. L. Notwithstanding subsection K, paragraph 1 of this section, at the time of sentencing, the judge may suspend all but thirty days of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program or evidence-based psychotherapy. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program or evidence-based psychotherapy and has not been placed on probation, the court shall issue an order to show cause as to why the remaining jail sentence should not be served. M. In applying the eighty-four month provision of subsection K of this section, the dates of the commission of the offense shall be the determining factor, irrespective of the sequence in which the offenses were committed. N. A second violation for which a conviction occurs as provided in this section shall not include a conviction for an offense arising out of the same series of acts. O. A person whose driving privilege is revoked for a violation of this section and who is sentenced pursuant to subsection K of this section is eligible for a special ignition interlock restricted driver license pursuant to section 28-1401. P. The court may order a person who is convicted of a violation of this section that does not involve intoxicating liquor to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. On receipt of the report of conviction and certified ignition interlock device requirement, the department shall require the person to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date the person successfully completes the alcohol or other drug screening, education or treatment program or evidence-based psychotherapy requirements of this title and the person is otherwise eligible to reinstate the person's driver license or driving privilege. The person who operates a motor vehicle with a certified ignition interlock device under this subsection shall comply with article 5 of this chapter. Q. A prosecution for a violation of this section involving a collision that resulted in serious physical injury or death as identified in a written accident report completed pursuant to section 28-667 must be commenced within two years after actual discovery of the offense by the state or the political subdivision having jurisdiction or discovery by the state or the political subdivision that should have occurred with the exercise of reasonable diligence, whichever first occurs. R. For the purposes of this section, "evidence-based psychotherapy" means psychotherapy services that are offered by any of the following and that integrate the best available scientific research with clinical expertise based on the context of the patient's characteristics, culture and preferences: 1. A psychologist who is licensed pursuant to title 32, chapter 19.1. 2. A health professional who is licensed pursuant to title 32, chapter 33 and who is authorized to engage in the practice of behavioral health. 3. A health professional who is licensed in this state pursuant to title 32 and whose scope of practice authorizes the health professional to independently provide psychotherapy, including: (a) A psychiatric nurse practitioner who is licensed pursuant to title 32, chapter 15. (b) A psychiatric physician assistant who is licensed pursuant to title 32, chapter 25. (c) A psychiatrist who is licensed pursuant to title 32, chapters 13 and 17. 28-1382. Driving or actual physical control while under the extreme influence of intoxicating liquor; trial by jury; sentencing; time limitation; violation; classification A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state if the person has an alcohol concentration as follows within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle: 1. 0.15 or more but less than 0.20. 2. 0.20 or more. B. A person who is convicted of a violation of this section is guilty of driving or being in actual physical control of a vehicle while under the extreme influence of intoxicating liquor. C. At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted. D. A person who is convicted of a violation of this section: 1. Shall be sentenced to serve not less than thirty consecutive days in jail and is not eligible for probation or suspension of execution of sentence unless the entire sentence is served if the person is convicted of a violation of subsection A, paragraph 1 of this section. A person who is convicted of a violation of subsection A, paragraph 2 of this section shall be sentenced to serve not less than forty-five consecutive days in jail and is not eligible for probation or suspension of execution of sentence unless the entire sentence is served. 2. Shall pay a fine of not less than $250, except that a person who is convicted of a violation of subsection A, paragraph 2 of this section shall pay a fine of not less than $500. The fine prescribed in this paragraph and any assessments, restitution and incarceration costs shall be paid before the assessment prescribed in paragraph 3 of this subsection. 3. Shall pay an additional assessment of $250. If the conviction occurred in the superior court or a justice court, the court shall transmit the monies received pursuant to this paragraph to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the monies received pursuant to this paragraph to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. The state treasurer shall deposit the monies received in the driving under the influence abatement fund established by section 28-1304. 4. May be ordered by a court to perform community restitution. 5. Shall be required by the department, on receipt of the report of conviction, to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date the person successfully completes the alcohol or other drug screening, education or treatment program or evidence-based psychotherapy requirements of this title and the person is otherwise eligible to reinstate the person's driver license or driving privilege. The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter. 6. Shall pay an additional assessment of $1,000 to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. 7. Shall pay an additional assessment of $1,000 to be deposited by the state treasurer in the public safety equipment fund established by section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. 8. Shall be required by the department to attend and successfully complete an approved traffic survival school course. E. If within a period of eighty-four months a person is convicted of a second violation of this section or is convicted of a violation of this section and has previously been convicted of a violation of section 28-1381 or 28-1383 or an act in another jurisdiction that if committed in this state would be a violation of this section or section 28-1381 or 28-1383, the person: 1. Shall be sentenced to serve not less than one hundred twenty days in jail, sixty days of which shall be served consecutively, and is not eligible for probation or suspension of execution of sentence unless the entire sentence has been served if the person is convicted of a violation of subsection A, paragraph 1 of this section. A person who is convicted of a violation of subsection A, paragraph 2 of this section shall be sentenced to serve not less than one hundred eighty days in jail, ninety of which shall be served consecutively, and is not eligible for probation or suspension of execution of sentence unless the entire sentence has been served. 2. Shall pay a fine of not less than $500, except that a person who is convicted of a violation of subsection A, paragraph 2 of this section shall pay a fine of not less than $1,000. The fine prescribed in this paragraph and any assessments, restitution and incarceration costs shall be paid before the assessment prescribed in paragraph 3 of this subsection. 3. Shall pay an additional assessment of $250. If the conviction occurred in the superior court or a justice court, the court shall transmit the monies received pursuant to this paragraph to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the monies received pursuant to this paragraph to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. The state treasurer shall deposit the monies received in the driving under the influence abatement fund established by section 28-1304. 4. Shall be ordered by a court to perform at least thirty hours of community restitution. 5. Shall have the person's driving privilege revoked for at least one year. The court shall report the conviction to the department. On receipt of the report, the department shall revoke the person's driving privilege and shall require the person to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date the person successfully completes the alcohol or other drug screening, education or treatment program or evidence-based psychotherapy requirements of this title and the person is otherwise eligible to reinstate the person's driver license or driving privilege. The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter. 6. Shall pay an additional assessment of $1,250 to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. 7. Shall pay an additional assessment of $1,250 to be deposited by the state treasurer in the public safety equipment fund established by section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. 8. Shall be required by the department to attend and successfully complete an approved traffic survival school course. F. In applying the eighty-four month provision of subsection E of this section, the dates of the commission of the offense shall be the determining factor, irrespective of the sequence in which the offenses were committed. G. A second violation for which a conviction occurs as provided in this section shall not include a conviction for an offense arising out of the same series of acts. H. A person whose driving privilege is revoked for a violation of this section and who is sentenced pursuant to subsection E of this section is eligible for a special ignition interlock restricted driver license pursuant to section 28-1401. I. Notwithstanding subsection D, paragraph 1 of this section, at the time of sentencing if the person is convicted of a violation of subsection A, paragraph 1 of this section, the judge may suspend all but nine days of the sentence if the person equips any motor vehicle the person operates with a certified ignition interlock device for a period of twelve months. If the person is convicted of a violation of subsection A, paragraph 2 of this section, the judge may suspend all but fourteen days of the sentence if the person equips any motor vehicle the person operates with a certified ignition interlock device for a period of twelve months. If the person fails to comply with article 5 of this chapter and has not been placed on probation, the court shall issue an order to show cause as to why the remaining jail sentence should not be served. J. A prosecution for a violation of this section involving a collision that resulted in serious physical injury or death as identified in a written accident report completed pursuant to section 28-667 must be commenced within two years after actual discovery of the offense by the state or the political subdivision having jurisdiction or discovery by the state or the political subdivision that should have occurred with the exercise of reasonable diligence, whichever first occurs. K. A person who is convicted of a violation of this section is guilty of a class 1 misdemeanor. 28-1383. Aggravated driving or actual physical control while under the influence; county jail program; annual report; violation; classification; definitions A. A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does any of the following: 1. Commits a violation of section 28-1381, section 28-1382 or this section while the person's driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person's driver license or privilege to drive as a result of violating section 28-1381 or 28-1382 or under section 28-1385. 2. Within a period of eighty-four months commits a third or subsequent violation of section 28-1381, section 28-1382 or this section or is convicted of a violation of section 28-1381, section 28-1382 or this section and has previously been convicted of any combination of convictions of section 28-1381, section 28-1382 or this section or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section. 3. While a person under fifteen years of age is in the vehicle, commits a violation of either: (a) Section 28-1381. (b) Section 28-1382. 4. While the person is ordered by the court or required pursuant to section 28-3319 by the department to equip any motor vehicle the person operates with a certified ignition interlock device, commits a violation of section 28-1381, section 28-1382 or this section. 5. Commits a violation of section 28-1381, section 28-1382 or this section while driving the wrong way on a highway. B. The dates of the commission of the offenses are the determining factor in applying the eighty-four month provision provided in subsection A, paragraph 2 of this section regardless of the sequence in which the offenses were committed. For the purposes of this section, a third or subsequent violation for which a conviction occurs does not include a conviction for an offense arising out of the same series of acts. The time that a probationer is found to be on absconder status or the time that a person is incarcerated in any state, federal, county or city jail or correctional facility is excluded when determining the eighty-four month period provided in subsection A, paragraph 2 and subsection E of this section. C. The notice to a person of the suspension, cancellation, revocation or refusal of a driver license or privilege to drive is effective as provided in section 28-3318 or pursuant to the laws of the state issuing the license. D. A person is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than four months in prison if the person is convicted under any of the following: 1. Subsection A, paragraph 1 of this section. 2. Subsection A, paragraph 2 of this section and within an eighty-four month period has been convicted of two prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section. 3. Subsection A, paragraph 5 of this section. E. A person who is convicted under subsection A, paragraph 2 of this section and who within an eighty-four month period has been convicted of three or more prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than eight months in prison. F. A person who is convicted under subsection A, paragraph 3, subdivision (a) of this section shall serve at least the minimum term of incarceration required pursuant to section 28-1381. G. A person who is convicted under subsection A, paragraph 3, subdivision (b) of this section shall serve at least the minimum term of incarceration required pursuant to section 28-1382. H. A person who is convicted of a viol