Preliminary and Evidentiary Testing for DUI

1.    Implied consent to submit to preliminary breath test
Any person who drives or is in actual physical control of a vehicle on a highway or on premises to which the public has access shall be deemed to have given his or her consent to a preliminary test of his or her breath to determine the concentration of alcohol in his or her breath when the test is administered at the direction of a police officer at the scene of a vehicle accident or collision or where the police officer stops a vehicle, if the officer has reasonable grounds to believe that the person to be tested was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance.  If the person fails to submit to the test, the officer shall seize the license or permit of the person to drive, arrest the person and take him or her to a convenient place for the administration of a reasonably available evidentiary test.

2.    Use of preliminary breath test
The result of the preliminary test must not be used in any criminal action, except to show there were reasonable grounds to make an arrest.

3    Implied consent to submit to evidentiary test
Any person who drives or is in actual physical control of a vehicle on a highway or on premises to which the public has access shall be deemed to have given his or her consent to an evidentiary test of his or her blood, urine, breath or other bodily substance to determine the concentration of alcohol in his or her blood or breath or to determine whether a controlled substance, chemical, poison, organic solvent or another prohibited substance is present, if such a test is administered at the direction of a police officer having reasonable grounds to believe that the person to be tested was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance.  If the concentration of alcohol in the blood or breath of the person to be tested is in issue, except as otherwise provided, the person may refuse to submit to a blood test if means are reasonably available to perform a breath test.  The person may request a blood test, but if means are reasonably available to perform a breath test when the blood test is requested, and the person is subsequently convicted, the person must pay for the cost of the blood test, including the fees and expenses of witnesses in court.  A police officer may direct the person to submit to a blood test if the officer has reasonable grounds to believe that the person (1) caused death or substantial bodily harm to another person as a result of driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance or (2) has been convicted within the previous 7 years of certain offenses.  If the presence of a controlled substance, chemical, poison, organic solvent or another prohibited substance in the blood or urine of the person is in issue, the officer may direct the person to submit to a blood or urine test, or both, in addition to the breath test.  If a person to be tested fails to submit to a required test as directed by a police officer pursuant to this section and the officer has reasonable grounds to believe that the person to be tested was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance the officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested. Not more than three such samples may be taken during the 5-hour period immediately following the time of the initial arrest. In such a circumstance, the officer is not required to provide the person with a choice of tests for determining the concentration of alcohol or presence of a controlled substance or another prohibited substance in his or her blood.  If a person who is less than 18 years of age is directed to submit to an evidentiary test pursuant to this section, the officer shall, before testing the person, make a reasonable attempt to notify the parent, guardian or custodian of the person, if known.

4.    Revocation of drivers license
If the result of a preliminary breath test or evidentiary test shows that a person had a concentration of alcohol of 0.08 or more in his or her blood or breath at the time of the test, the license, permit or privilege of the person to drive must be revoked and the person is not eligible for a license, permit or privilege for a period of 90 days.

5.    Seizure of license
The officer who obtained the result of a preliminary or evidentiary test shall immediately serve an order of revocation of the license, permit or privilege to drive on a person who has a concentration of alcohol of 0.08 or more in his or her blood or breath or has a detectable amount of a prohibited substance in his or her blood or urine, if that person is present, and shall seize the license or permit to drive of the person. The officer shall then advise the person of his or her right to administrative and judicial review of the revocation and that the person has a right to request a temporary license.  f the person is entitled to request a temporary license, the officer shall issue the person a temporary license on a form approved by the Department if the person requests one, which is effective for only 7 days including the date of issuance.  When a police officer has served an order of revocation of a driver’s license, permit or privilege on a person pursuant to subsection 1, or later receives the result of an evidentiary test which indicates that a person, not then present, had a concentration of alcohol of 0.08 or more in his or her blood or breath or had a detectable amount of a prohibited substance in his or her blood or urine, the officer shall immediately prepare and transmit to the Department, together with the seized license or permit and a copy of the result of the test, a written certificate that the officer had reasonable grounds to believe that the person had been driving or in actual physical control of a vehicle with a concentration of alcohol of 0.08 or more in his or her blood or breath or with a detectable amount of a prohibited substance in his or her blood or urine, as determined by a chemical test. The certificate must also indicate whether the officer served an order of revocation on the person and whether the officer issued the person a temporary license.  The Department, upon receipt of such a certificate for which an order of revocation has not been served, after examining the certificate and copy of the result of the chemical test, if any, and finding that revocation is proper, shall issue an order revoking the person’s license, permit or privilege to drive by mailing the order to the person at the person’s last known address. The order must indicate the grounds for the revocation and the period during which the person is not eligible for a license, permit or privilege to drive and state that the person has a right to administrative and judicial review of the revocation and to have a temporary license. The order of revocation becomes effective 5 days after mailing.

6.    DMV hearing
At any time while a person is not eligible for a license, permit or privilege to drive following an order of revocation, the person may request in writing a hearing by the Department to review the order of revocation, but the person is only entitled to one hearing. The hearing must be conducted within 15 days after receipt of the request, or as soon thereafter as is practicable, in the county where the requester resides unless the parties agree otherwise. The Director or agent of the Director may issue subpoenas for the attendance of witnesses and the production of relevant books and papers and may require a reexamination of the requester.  The scope of the hearing must be limited to the issue of whether the person, at the time of the test, had a concentration of alcohol of 0.08 or more in his or her blood or breath or a detectable amount of a prohibited substance in his or her blood or urine. Upon an affirmative finding on this issue, the Department shall affirm the order of revocation. Otherwise, the order of revocation must be rescinded.   If, after the hearing, the order of revocation is affirmed, the person whose license, privilege or permit has been revoked is entitled to a review of the same issues in district court. The court shall notify the Department upon the issuance of a stay, and the Department shall issue an additional temporary license for a period which is sufficient to complete the review.

7.    Admissibility of evidence of refusal to submit to preliminary and evidentiary tests
If a person refuses to submit to a preliminary or evidentiary test, evidence of that refusal is admissible in any criminal or administrative action arising out of acts alleged to have been committed while the person was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance.  Evidence of a required test is not admissible in a criminal or administrative proceeding unless it is shown by documentary or other evidence that the law enforcement agency calibrated the breath-testing device and otherwise maintained it as required by the regulations of the Committee on Testing for Intoxication.

8.    Admissibility of results of blood test in hearing or criminal action
The results of any blood test administered are not admissible in any hearing or criminal action arising out of acts alleged to have been committed by a person who was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance unless the blood tested was withdrawn by a person, other than an arresting officer, who is a physician, physician assistant, registered nurse, licensed practical nurse, emergency medical technician or a phlebotomist, technician, technologist or assistant employed in a medical laboratory or has special knowledge, skill, experience, training and education in withdrawing blood in a medically acceptable manner, including, without limitation, a person qualified as an expert on that subject in a court of competent jurisdiction or a person who has completed a course of instruction and the test was performed on whole blood, except if the sample was clotted when it was received by the laboratory, the test may be performed on blood serum or plasma.

9.    Evaluation/placement in treatment facility
For first offense with blood or breath alcohol over 0.18, for a second offense within 7 years, and for a first offense for violators under age 21, the court shall, before sentencing, require an evaluation of the offender to determine whether the offender is an abuser of alcohol or other drugs.  When a program of treatment is ordered, the court shall place the offender under the clinical supervision of a treatment facility for treatment in accordance with the report submitted to the court and the court shall either (a) order the offender confined in a treatment facility, then release the offender for supervised aftercare in the community or (b) release the offender for treatment in the community for the period of supervision ordered by the court.  The court shall require the treatment facility to submit monthly progress reports on the treatment of an offender pursuant to this section (b) order the offender, to the extent of his or her financial resources, to pay any charges for treatment pursuant to this section.