HB565 By Representatives Mooney, Ledbetter, Hanes, Pettus, Farley, Fridy, Rowe, Butler, Standridge, Treadaway, Drake and Wingo RFD Public Safety and Homeland Security Rd 1 25-APR-17

SYNOPSIS: This bill would relate to persons charged with driving under the influence and the installation of ignition interlock devices on vehicles.

This bill would: Require each person approved for a pretrial diversion program to be required to have an ignition interlock device installed for a certain period of time; provide that a portion of the court fee would be distributed to the municipal court if the case is a municipal court case when the person is ordered or agrees to have an ignition interlock device; delete the requirement for indigents to pay for the services; provide that a person convicted of a third offense would be authorized or required to obtain an ignition interlock device after the completion of his or her incarceration; would require manufacturers to provide ignition interlock services to indigent under certain conditions without charge; and would specify the number of violations for extension of ignition interlock requirements to be consistent with Department of Forensic Sciences rules.

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL TO BE ENTITLED AN ACT

Relating to persons charged with driving under the influence; to amend Section 32-5A-191, as amended by Act 2016-259, 2016 Regular Session, and Section 32-5A-191.4, Code of Alabama 1975, to further require for the use of ignition interlock devices including by persons approved for pretrial diversion; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Section 32-5A-191, as amended by Act 2016-259, 2016 Regular Session, and Section 32-5A-191.4, Code of Alabama 1975, are amended to read as follows:

§32-5A-191.

"(a) A person shall not drive or be in actual physical control of any vehicle while:

"(1) There is 0.08 percent or more by weight of alcohol in his or her blood;

"(2) Under the influence of alcohol;

"(3) Under the influence of a controlled substance to a degree which renders him or her incapable of safely driving;

"(4) Under the combined influence of alcohol and a controlled substance to a degree which renders him or her incapable of safely driving; or

"(5) Under the influence of any substance which impairs the mental or physical faculties of such person to a degree which renders him or her incapable of safely driving.

"(b) A person who is under the age of 21 years shall not drive or be in actual physical control of any vehicle if there is 0.02 percent or more by weight of alcohol in his or her blood. The Alabama State Law Enforcement Agency shall suspend or revoke the driver's license of any person, including, but not limited to, a juvenile, child, or youthful offender, convicted or adjudicated of, or subjected to a finding of, delinquency based on this subsection. Notwithstanding the foregoing, upon the first violation of this subsection by a person whose blood alcohol level is between 0.02 and 0.08, the person's driver's license or driving privilege shall be suspended for a period of 30 days in lieu of any penalties provided in subsection (e) of this section, and there shall be no disclosure, other than to courts, law enforcement agencies, the person's attorney of record, and the person's employer, by any entity or person of any information, documents, or records relating to the person's arrest, conviction, or adjudication of or finding of delinquency based on this subsection.

"All persons, except as otherwise provided in this subsection for a first offense, including, but not limited to, a juvenile, child, or youthful offender, convicted or adjudicated of or subjected to a finding of delinquency based on this subsection shall be fined pursuant to this section, notwithstanding any other law to the contrary, and the person shall also be required to attend and complete a DUI or substance abuse court referral program in accordance with subsection (k).

"(c)(1) A school bus or day care driver shall not drive or be in actual physical control of any vehicle while in performance of his or her duties if there is greater than 0.02 percent by weight of alcohol in his or her blood. A person convicted pursuant to this subsection shall be subject to the penalties provided by this section, except that on the first conviction the Secretary of the Alabama State Law Enforcement Agency shall suspend the driving privilege or driver's license for a period of one year.

"(2) A person shall not drive or be in actual physical control of a commercial motor vehicle, as defined in 49 CFR Part 383.5 of the Federal Motor Carrier Safety Regulations as adopted pursuant to Section 32-9A-2, if there is 0.04 percent or greater by weight of alcohol in his or her blood. Notwithstanding the other provisions of this section, the commercial driver's license or commercial driving privilege of a person convicted of violating this subdivision shall be disqualified for the period provided in accordance with 49 CFR Part 383.51, as applicable, and the person's regular driver's license or privilege to drive a regular motor vehicle shall be governed by the remainder of this section if the person is guilty of a violation of another provision of this section.

"(3) Any commutation of suspension or revocation time as it relates to a court order, approval, and installation of an ignition interlock device shall not apply to commercial driving privileges or disqualifications.

"(d) The fact that any person charged with violating this section is or has been legally entitled to use alcohol or a controlled substance shall not constitute a defense against any charge of violating this section.

"(e) Upon first conviction, a person violating this section shall be punished by imprisonment in the county or municipal jail for not more than one year, or by fine of not less than six hundred dollars ($600) nor more than two thousand one hundred dollars ($2,100), or by both a fine and imprisonment. In addition, on a first conviction, the Secretary of the Alabama State Law Enforcement Agency shall suspend the driving privilege or driver's license of the person convicted for a period of 90 days. The 90-day suspension shall be stayed if the offender elects to have an approved ignition interlock device installed and operating on the designated motor vehicle driven by the offender for six months. The offender shall present proof of installation of the approved ignition interlock device to the Alabama State Law Enforcement Agency and obtain an ignition interlock restricted driver license. The remainder of the suspension shall be commuted upon the successful completion of the elected use, mandated use, or both, of the ignition interlock device. If, on a first conviction, any person refusing to provide a blood alcohol concentration or if a child under the age of 14 years was a passenger in the vehicle at the time of the offense or if someone else besides the offender was injured at the time of the offense, the Secretary of the Alabama State Law Enforcement Agency shall suspend the driving privilege or driver's license of the person convicted for a period of 90 days and the person shall be required to have an ignition interlock device installed and operating on the designated motor vehicle driven by the offender for a period of two years from the date of issuance of a driver's license indicating that the person's driving privileges are subject to the condition of the installation and use of a certified ignition interlock device on a motor vehicle. After a minimum of 45 days of the license revocation or suspension pursuant to Section 32-5A-304 or this section, or both, is completed, upon receipt of a court order from the convicting court, upon issuance of an ignition interlock restricted driver license, and upon proof of installation of an operational approved ignition interlock device on the designated vehicle of the person convicted, the mandated ignition interlock period of two years provided in this subsection shall start and the suspension period, revocation period, or both, as required under this subsection shall be stayed. The remainder of the driver license revocation period, suspension period, or both, shall be commuted upon the successful completion of the period of time in which the ignition interlock device is mandated to be installed and operational.

"(f) On a second conviction within a five-year period, a person convicted of violating this section shall be punished by a fine of not less than one thousand one hundred dollars ($1,100) nor more than five thousand one hundred dollars ($5,100) and by imprisonment, which may include hard labor in the county or municipal jail for not more than one year. The sentence shall include a mandatory sentence, which is not subject to suspension or probation, of imprisonment in the county or municipal jail for not less than five days or community service for not less than 30 days. In addition, the Secretary of the Alabama State Law Enforcement Agency shall revoke the driving privileges or driver's license of the person convicted for a period of one year and the offender shall be required to have an ignition interlock device installed and operating on the designated motor vehicle driven by the offender for a period of two years from the date of issuance of a driver's license indicating that the person's driving privileges are subject to the condition of the installation and use of a certified ignition interlock device on a motor vehicle. After a minimum of 45 days of the license revocation or suspension pursuant to Section 32-5A-304, this section, or both, is completed, upon receipt of a court order from the convicting court, upon issuance of an ignition interlock restricted driver license, and upon proof of installation or an operational approved ignition interlock device on the designated vehicle of the person convicted, the mandated ignition interlock period of two years approved in this subsection shall start and the suspension period, revocation period, or both, as required under this subsection shall be stayed. The remainder of the driver license revocation period, suspension period, or both, shall be commuted upon the successful completion of the period of time in which the ignition interlock device is mandated to be installed and operational.

"(g) On a third conviction, a person convicted of violating this section shall be punished by a fine of not less than two thousand one hundred dollars ($2,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment, which may include hard labor, in the county or municipal jail for not less than 60 days nor more than one year, to include a minimum of 60 days which shall be served in the county or municipal jail and cannot be probated or suspended. In addition, the Secretary of the Alabama State Law Enforcement Agency shall revoke the driving privilege or driver's license of the person convicted for a period of three years and the offender shall be required to have an ignition interlock device installed and operating on the designated motor vehicle driven by the offender for a period of three years from the date of issuance of a driver's license indicating that the person's driving privileges are subject to the condition of the installation and use of a certified ignition interlock device on a motor vehicle. After a minimum of 180 60 days of the license revocation or suspension pursuant to Section 32-5A-304, this section, or both, is completed, upon receipt of a court order from the convicting court, upon issuance of an ignition interlock restricted driver license, and upon proof of installation of an operational approved ignition interlock device on the designated vehicle of the person convicted, the mandated ignition interlock period of three years provided in this subsection shall start and the suspension period, revocation period, or both, as required under this subsection shall be stayed. The remainder of the driver license revocation period, suspension period, or both, shall be commuted upon the successful completion of the period of time in which the ignition interlock device is mandated to be installed and operational.

"(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than 10 years. Any term of imprisonment may include hard labor for the county or state, and where imprisonment does not exceed three years confinement may be in the county jail. Where imprisonment does not exceed one year and one day, confinement shall be in the county jail. The minimum sentence shall include a term of imprisonment for at least one year and one day, provided, however, that there shall be a minimum mandatory sentence of 10 days which shall be served in the county jail. The remainder of the sentence may be suspended or probated, but only if as a condition of probation the defendant enrolls and successfully completes a state certified chemical dependency program recommended by the court referral officer and approved by the sentencing court. Where probation is granted, the sentencing court may, in its discretion, and where monitoring equipment is available, place the defendant on house arrest under electronic surveillance during the probationary term. In addition to the other penalties authorized, the Secretary of the Alabama State Law Enforcement Agency shall revoke the driving privilege or driver's license of the person convicted for a period of five years and the offender shall be required to have an ignition interlock device installed and operating on the designated motor vehicle driven by the offender for a period of five years from the date of issuance of a driver's license indicating that the person's driving privileges are subject to the condition of the installation and use of a certified ignition interlock device on a motor vehicle. After a minimum of one year of the license revocation or suspension pursuant to Section 32-5A-304, this section, or both, is completed, upon receipt of a court order from the convicting court, upon issuance of an ignition interlock restricted driver license, and upon proof of installation of an operational approved ignition interlock device on the designated vehicle of the person convicted, the mandated ignition interlock period of five years provided in this subsection shall start and the suspension period, revocation period, or both, as required under this subsection shall be stayed. The remainder of the driver license revocation period, suspension period, or both, shall be commuted upon the successful completion of the period of time in which the ignition interlock device is mandated to be installed and operational.

"The Alabama habitual felony offender law shall not apply to a conviction of a felony pursuant to this subsection, and a conviction of a felony pursuant to this subsection shall not be a felony conviction for purposes of the enhancement of punishment pursuant to Alabama's habitual felony offender law. However, prior misdemeanor or felony convictions for driving under the influence may be considered as part of the sentencing calculations or determinations under the Alabama Sentencing Guidelines or rules promulgated by the Alabama Sentencing Commission.

"(i) When any person convicted of violating this section is found to have had at least 0.15 percent or more by weight of alcohol in his or her blood while operating or being in actual physical control of a vehicle, he or she shall be sentenced to at least double the minimum punishment that the person would have received if he or she had had less than 0.15 percent by weight of alcohol in his or her blood. Upon the first violation of this subsection, the offender shall be ordered by the court to have an ignition interlock device installed and operating on his or her designated motor vehicle for a period of two years from the date of issuance of an ignition interlock-restricted driver's license. If the adjudicated offense is a misdemeanor, the minimum punishment shall be imprisonment for one year, all of which may be suspended except as otherwise provided for in subsections (f) and (g).

"(j) When any person over the age of 21 years is convicted of violating this section and it is found that a child under the age of 14 years was a passenger in the vehicle at the time of the offense, the person shall be sentenced to at least double the minimum punishment that the person would have received if the child had not been a passenger in the motor vehicle.

"(k)(1) In addition to the penalties provided herein, any person convicted of violating this section shall be referred to the court referral officer for evaluation and referral to appropriate community resources. The defendant shall, at a minimum, be required to complete a DUI or substance abuse court referral program approved by the Administrative Office of Courts and operated in accordance with provisions of the Mandatory Treatment Act of 1990, Sections 12-23-1 to 12-23-19, inclusive. The Alabama State Law Enforcement Agency shall not reissue a driver's license to a person convicted under this section without receiving proof that the defendant has successfully completed the required program.

"(2) Upon conviction, the court shall notify the Alabama State Law Enforcement Agency if the person convicted is required to install and maintain an approved ignition interlock device. The agency shall suspend or revoke a person's driving privileges until completion of the mandatory suspension or revocation period required by this section, and clearance of all other suspensions, revocations, cancellations, or denials, and proof of installation of an approved ignition interlock device is presented to the agency. The agency shall not reissue a driver's license to a person who has been ordered by a court or is required by law to have the ignition interlock device installed until proof is presented that the person is eligible for reinstatement of driving privileges. Upon presentation of proof and compliance with all ignition interlock requirements, the agency shall issue a driver's license with a restriction indicating that the licensee may operate a motor vehicle only with the certified ignition interlock device installed and properly operating. If the licensee fails to maintain the approved ignition interlock device as required or is otherwise not in compliance with any order of the court, the court shall notify the agency of the noncompliance and the agency shall suspend the person's driving privileges until the agency receives notification from the court that the licensee is in compliance. The requirement that the licensee use the ignition interlock device may be removed only when the court of conviction confirms to the agency that the licensee is no longer subject to the ignition interlock device requirement.

"(l) Neither reckless driving nor any other traffic infraction is a lesser included offense under a charge of driving under the influence of alcohol or of a controlled substance.

"(m) Except for fines collected for violations of this section charged pursuant to a municipal ordinance, fines collected for violations of this section shall be deposited to the State General Fund; however, beginning October 1, 1995, of any amount collected over two hundred fifty dollars ($250) for a first conviction, over five hundred dollars ($500) for a second conviction within five years, over one thousand dollars ($1,000) for a third conviction within five years, and over two thousand dollars ($2,000) for a fourth or subsequent conviction within five years, the first one hundred dollars ($100) of that additional amount shall be deposited to the Alabama Chemical Testing Training and Equipment Trust Fund, after three percent of the one hundred dollars ($100) is deducted for administrative costs, and beginning October 1, 1997, and thereafter, the second one hundred dollars ($100) of that additional amount shall be deposited in the Alabama Head and Spinal Cord Injury Trust Fund after deducting five percent of the one hundred dollars ($100) for administrative costs and the remainder of the funds shall be deposited to the State General Fund. Fines collected for violations of this section charged pursuant to a municipal ordinance where the total fine is paid at one time shall be deposited as follows: The first three hundred fifty dollars ($350) collected for a first conviction, the first six hundred dollars ($600) collected for a second conviction within five years, the first one thousand one hundred dollars ($1,100) collected for a third conviction, and the first two thousand one hundred dollars ($2,100) collected for a fourth or subsequent conviction shall be deposited to the State Treasury with the first one hundred dollars ($100) collected for each conviction credited to the Alabama Chemical Testing Training and Equipment Trust Fund and the second one hundred dollars ($100) to the Alabama Head and Spinal Cord Injury Trust Fund after deducting five percent of the one hundred dollars ($100) for administrative costs and depositing this amount in the general fund of the municipality, and the balance credited to the State General Fund. Any amounts collected over these amounts shall be deposited as otherwise provided by law. Fines collected for violations of this section charged pursuant to a municipal ordinance, where the fine is paid on a partial or installment basis, shall be deposited as follows: The first two hundred dollars ($200) of the fine collected for any conviction shall be deposited to the State Treasury with the first one hundred dollars ($100) collected for any conviction credited to the Alabama Chemical Testing Training and Equipment Trust Fund and the second one hundred dollars ($100) for any conviction credited to the Alabama Head and Spinal Cord Injury Trust Fund after deducting five percent of the one hundred dollars ($100) for administrative costs and depositing this amount in the general fund of the municipality. The second three hundred dollars ($300) of the fine collected for a first conviction, the second eight hundred dollars ($800) collected for a second conviction, the second one thousand eight hundred dollars ($1,800) collected for a third conviction, and the second three thousand eight hundred dollars ($3,800) collected for a fourth conviction shall be divided with 50 percent of the funds collected to be deposited to the State Treasury to be credited to the State General Fund and 50 percent deposited as otherwise provided by law for municipal ordinance violations. Any amounts collected over these amounts shall be deposited as otherwise provided by law for municipal ordinance violations. Notwithstanding any provision of law to the contrary, 90 percent of any fine assessed and collected for any DUI offense charged by municipal ordinance violation in district or circuit court shall be computed only on the amount assessed over the minimum fine authorized, and upon collection shall be distributed to the municipal general fund with the remaining 10 percent distributed to the State General Fund. In addition to fines imposed pursuant to this subsection, a mandatory fee of one hundred dollars ($100) shall be collected from any individual that successfully completes any pretrial diversion or deferral program in any municipal, district, or circuit court where the individual was charged with a violation of this section or a corresponding municipal ordinance. The one hundred dollars ($100) shall be deposited into the Alabama Chemical Testing Training and Equipment Fund.

"(n) A person who has been arrested for violating this section shall not be released from jail under bond or otherwise, until there is less than the same percent by weight of alcohol in his or her blood as specified in subsection (a)(1) or, in the case of a person who is under the age of 21 years, subsection (b) hereof.

"(o) Upon verification that a defendant arrested pursuant to this section is currently on probation from another court of this state as a result of a conviction for any criminal offense, the prosecutor shall provide written or oral notification of the defendant's subsequent arrest and pending prosecution to the court in which the prior conviction occurred.

"(p) A prior conviction within a five-year period for driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory or a municipality of another state or territory shall be considered by a court for imposing a sentence pursuant to this section.

"(q) Any person convicted of driving under the influence of alcohol, or a controlled substance, or both, or any substance which impairs the mental or physical faculties in violation of this section, a municipal ordinance adopting this section, or a similar law from another state or territory or a municipality of another state or territory more than once in a five-year period shall have his or her motor vehicle registration for all vehicles owned by the repeat offender suspended by the Alabama Department of Revenue for the duration of the offender's driver's license suspension period, unless such action would impose an undue hardship to any individual, not including the repeat offender, who is completely dependent on the motor vehicle for the necessities of life, including any family member of the repeat offender and any co-owner of the vehicle or, in the case of a repeat offender, if the repeat offender has a functioning ignition interlock device installed on the designated vehicle for the duration of the offender's driver's license suspension period.

"(r)(1) Any person ordered by the court to have an ignition interlock device installed on a designated vehicle, and any person who elects to have the ignition interlock device installed on a designated vehicle for the purpose of reducing a period of suspension or revocation of his or her driver's license, shall pay to the court, for each of the first four months following his or her conviction or the first four months following the installation of the ignition interlock device on his or her vehicle, seventy-five dollars ($75) per month two hundred dollars ($200), which may be paid in installments and which shall be divided as follows:

"a. Forty-five Seventeen percent to the Alabama Interlock Indigent Fund.

"b. Twenty For cases in the district or circuit court, 30 percent to the State Judicial Administration Fund administered by the Administrative Office of Courts and for cases in the municipal court, 30 percent to the municipal judicial administration fund of the municipality where the municipal court is located to be used for the operation of the municipal court.

"c. Twenty Thirty percent to the Highway Traffic Safety Fund administered by the Alabama State Law Enforcement Agency.

"d. Fifteen Twenty-three percent to the District Attorney's Solicitor Fund.

"(2) In addition to paying the court clerk seventy-five dollars ($75) per month for the first four months the fee required above following the conviction or the voluntary installation of the ignition interlock device, the defendant shall pay all costs associated with the installation, purchase, maintenance, or lease of the ignition interlock devices to an approved ignition interlock provider pursuant to the rules of the Department of Forensic Sciences, unless the defendant is subject to Section 32-5A-191.4(g)(4) during which he or she shall pay one-half the cost for the available indigency period 32-5A-191.4(i)(4).

"(s) The defendant shall designate the vehicle to be used by identifying the vehicle by the vehicle identification number to the court. The defendant, at his or her own expense, may designate additional motor vehicles on which an ignition interlock device may be installed for the use of the defendant.

"(t)(1) Any person who is required to comply with the ignition interlock provisions of this section as a condition of restoration or reinstatement of his or her driver's license, shall only operate the designated vehicle equipped with a functioning ignition interlock device for the period of time consistent with the offense for which he or she was convicted as provided for in this section.

"(2) The duration of the time an ignition interlock device is required by this section shall be doubled if the offender refused the prescribed chemical test for intoxication, or if the offender's blood alcohol concentration was 0.15 grams percent or greater unless already doubled by a previous section.

"(u)(1) The Alabama State Law Enforcement Agency may set a fee of not more than one hundred fifty dollars ($150) for the issuance of a driver's license indicating that the person's driving privileges are subject to the condition of the installation and use of a certified ignition interlock device on a motor vehicle. Fifteen percent of the fee shall be distributed to the general fund of the county where the person was convicted to be utilized for law enforcement purposes. Eighty-five percent shall be distributed to the State General Fund. In addition, at the end of the time the person's driving privileges are subject to the above conditions, the agency shall set a fee of not more than seventy-five dollars ($75) to reissue a regular driver's license. The fee shall be deposited as provided in Sections 32-6-5, 32-6-6, and 32-6-6.1.

"(2) The defendant shall provide proof of installation of an approved ignition interlock device to the Alabama State Law Enforcement Agency as a condition of the issuance of a restricted driver's license.

"(3) Any ignition interlock driving violation committed by the offender during the mandated ignition interlock period shall extend the duration of ignition interlock use for six months from the date of violation. Ignition interlock driving violations include any of the following:

"a. A breath sample at or above a minimum blood alcohol concentration level of 0.02 recorded more than four or more times during the monthly reporting period.

"b. Any tampering, circumvention, or bypassing of the ignition interlock device, or attempt thereof.

"c. Failure to comply with the servicing or calibration requirements of the ignition interlock device every 30 days.

"(v) Nothing in this section and Section 32-5A-191.4 shall require an employer to install an ignition interlock device in a vehicle owned or operated by the employer for use by an employee required to use the device as a condition of driving pursuant to this section and Section 32-5A-191.4.

"(w) The provisions in this section and Section 32-5A-191.4 relating to ignition interlock devices shall not apply to persons who commit violations of this section while under 19 years of age and who are adjudicated in juvenile court, unless specifically ordered otherwise by the court.

"(x)(1) The amendatory language in Act 2014-222 to this section, authorizing the Alabama State Law Enforcement Agency to stay a driver's license suspension or revocation upon compliance with the ignition interlock requirement shall apply retroactively if any of the following occurs:

"a. The offender files an appeal with the court of jurisdiction requesting all prior suspensions or revocation, or both, be stayed upon compliance with the ignition interlock requirement.

"b. The offender wins appeal with the court of jurisdiction relating to this section.

"c. The court of jurisdiction notifies the Alabama State Law Enforcement Agency that the offender is eligible to have the driver's license stayed.

"d. The Alabama State Law Enforcement Agency issues an ignition interlock restricted driver's license.

"e. The offender remains in compliance of ignition interlock requirements.

"(2) The remainder of the driver license revocation, suspension, or both, shall be commuted upon the successful completion of the period of time in which the ignition interlock device is mandated to be installed and operational.

"(y) Any person charged in a district, circuit, or municipal court with a violation of this section or a municipal ordinance adopted in conformance with this section who is approved for any pretrial diversion program or similar program shall be required to install an ignition interlock device for a minimum of six months or the duration of the pretrial diversion program, whichever is greater, and meet all the requirements of this section and Section 32-5A-191.4 that a person convicted of a violation of this section or a municipal ordinance is required to meet. A participant in a pretrial diversion program shall be eligible for indigency status if the program enrolls indigent defendants and waives fees for indigent defendants.

§32-5A-191.4.

"(a) As used in Section 32-5A-191, the term, "ignition interlock device" means a constant monitoring device that prevents a motor vehicle from being started at any time without first determining the equivalent blood alcohol level of the operator through the taking of a breath sample for testing. The system shall be calibrated so that the motor vehicle may not be started if the blood alcohol level of the operator, as measured by the test, reaches a blood alcohol concentration level of 0.02.

"(b) The ignition interlock device shall be installed, calibrated, and monitored directly by trained technicians who shall train the offender for whom the device is being installed in the proper use of the device. The use of a mail in or remote calibration system where the technician is not in the immediate proximity of the vehicle being calibrated is prohibited. The Department of Forensic Sciences shall promulgate rules for punishment and appeal for ignition interlock providers relating to violation of this subsection.

"(c) The Department of Forensic Sciences shall formulate and promulgate rules for the proper approval, installation, and use of ignition interlock devices. Additionally, the Department of Forensic Sciences shall maintain and make public the list of approved ignition interlock devices.

"(d) The Department of Forensic Sciences may adopt in whole or relevant part the guidelines, rules, regulations, studies, or independent laboratory tests performed or relied upon by other states, their agencies, or commissions.

"(e) The Department of Forensic Sciences shall promulgate rules regulating approved ignition interlock providers related to areas of consumer coverage. The rules shall address areas of consumer coverage and shall provide for a two-year period from July 1, 2014, to allow provider compliance.

"(f) The Department of Forensic Sciences shall charge an application fee of two thousand dollars ($2,000) to any ignition interlock provider to evaluate the instrument. Any ignition interlock provider whose ignition interlock device is approved by the Department of Forensic Sciences shall be permitted to install and calibrate its approved device in Alabama. Each year during the month of April, the Department of Forensic Sciences may receive applications and instruments to review for approval.

"(g) The Department of Public Safety shall be responsible for enforcing the rules promulgated by the Department of Forensic Sciences related to ignition interlock devices and providers. The Department of Public Safety shall promulgate rules regulating the inspection and enforcement of approved ignition interlock providers and any associate service locations.

"(h) In the absence of negligence, wantonness, or willful misconduct, no person or employer or agent of a person who installs an ignition interlock device pursuant to Section 32-5A-191 shall be liable for any occurrence related to the device, including, but not limited to, occurrences resulting from or related to a malfunction of the device or use of, misuse of, or failure to use the device or the vehicle in which the device was installed.

"(i)(1) When the court imposes the use of an ignition interlock device as required by Section 32-5A-191, the court shall require that the person provide proof of installation of a device to the court or a probation officer within 30 days of the date the defendant becomes eligible to receive an ignition interlock-restricted license from the Department of Public Safety. If the person fails to provide proof of installation within that period, absent a finding by the court of good cause for that failure which is entered into the court record, the court may revoke the person's probation where applicable after a petition to revoke probation has been filed and the defendant has been given notice and an opportunity to be heard on the petition. The court in which the defendant is convicted shall notify the department that the defendant is restricted to the operation of a motor vehicle only when an approved ignition interlock device is installed and properly operating. Nothing in this subsection shall permit a person who does not own a vehicle or otherwise have an ignition interlock device installed on a motor vehicle to operate a motor vehicle without an approved ignition interlock device installed and properly operating.

"(2) Proof of installation for the purpose of this subsection may be furnished by either a certificate of installation or a copy of the lease agreement in the name of the offender for the designated vehicle with an approved ignition interlock device company.

"(3) A defendant who is determined by the court to be indigent for the purpose of ignition interlock may have an ignition interlock device installed by an ignition interlock provider as provided in this subsection. Criteria for determining indigency for the purpose of ignition interlock shall be the same criteria as set forth in Section 15-12-5(b) and (c) after the report is complete. In determining whether the defendant is indigent for the purpose of ignition interlock, the judge shall require an investigation and report by a sheriff, adult probation officer, or other officer of the court. The report may include input from the district attorney or municipal prosecutor. The defendant shall execute an affidavit of substantial hardship on a form approved by the Supreme Court. The completed affidavit of substantial hardship and the subsequent order of the court either denying or granting indigency status for the purpose of ignition interlock to the offender shall become a part of the official court record in the case and shall be submitted by the offender to the interlock provider.

"(4) Any offender granted indigency status for the purpose of ignition interlock shall pay one-half of not be required to pay the costs associated with installing and maintaining an interlock device for a the period of no more than two years at which time the offender shall pay the full remaining cost for any sentence left for ignition interlock. The defendant shall pay any fees for any violation of ignition interlock requirements and for any optional services elected by the defendant and for any missing or damaged equipment. This section shall not affect any fees associated with the driver's license of the defendant.

"(5)a. All interlock providers shall be required to pay one and one-half percent of all payments collected less any payments made by a defendant determined as indigent for the purpose of ignition interlock to the Alabama Ignition Interlock Indigent Fund in the State Treasury. ALEA shall require each approved manufacturer to provide a minimum number of indigent defendants with ignition interlock services, including installation, lease, calibration, and removal at no cost to the indigent defendant. The minimum number of indigent defendants provided services shall be equal to five percent of the total installations provided by the manufacturer during the prior calendar year.

"b. ALEA shall oversee the administration of indigent services on an annual basis by doing all of the following:

"1. Verifying the total number of installations provided by the manufacturer each year.

"2. Verifying the number of installations for indigent defendants provided each year by each manufacturer.

"3. Conducting random audits of payments based on the list of indigent defendants serviced by each manufacturer.

"c. Each manufacturer who fails to meet the five percent threshold for indigent defendants shall be subject to a civil penalty of five hundred dollars ($500) for each indigent defendant the manufacturer failed to provided services below the five percent threshold. All fines shall be collected by ALEA and deposited in the Alabama Ignition Interlock Indigent Fund.

"b.d. The Alabama Ignition Interlock Indigent Fund is created in the State Treasury. The fund shall be administered by the Department of Public Safety ALEA. All Except as provided in paragraph e., all of the money in the fund shall be used to reimburse ignition interlock device providers who have installed devices in vehicles of indigent persons pursuant to court orders issued under this section. No provider shall be reimbursed for an interlock device installed without the completed affidavit of substantial hardship and the subsequent order of the court granting indigency status. Payments to interlock device providers pursuant to this subdivision shall be made every three months. If the amount of money in the fund at the time payments are made is not sufficient to pay all requests for reimbursement submitted during that three-month period, the Comptroller shall make payments on a pro rata basis and those payments shall be considered payment in full for the requests submitted. At the end of each fiscal year, all monies above five hundred thousand dollars ($500,000) remaining in the Alabama Ignition Interlock Indigent Fund shall be divided as follows:

"1. Thirty percent to the Highway Traffic Safety Fund administered by the Department of Public Safety.

"2. Twenty percent to the Alabama Chemical Testing Training and Equipment Trust Fund administered by the Department of Forensic Sciences.

"3. Thirty percent to the District Attorney's Solicitor’s Fund.

"4. Twenty percent to the Office of Prosecution Services.

"e. Notwithstanding the provisions of paragraph d., 10 percent of the first five hundred thousand dollars ($500,000) collected in the fund each year may be used by ALEA for any of the following additional purposes on an annual basis:

"1. Annual reporting and assessment of manufacturer compliance with indigent service requirements.

"2. Notice and collection of any fines for noncompliance.

"3. Annual inspection of interlock service centers by ALEA.

"(6) Any defendant who does not own a vehicle or otherwise have an ignition interlock device installed on a vehicle shall be required to pay seventy-five dollars ($75) per month for the entire period the defendant is required or elects to have an ignition interlock device. The defendant shall still serve all license suspension or revocation, or both, during this period. Any monies paid pursuant to this subdivision shall be paid to the court clerk and shall be deposited in the Alabama Impaired Driving Prevention and Enforcement Fund in the State Treasury to be used by the Department of Public Safety for impaired driving education and enforcement.

"(j) No person who is prohibited from operating a motor vehicle unless it is equipped with an ignition interlock device as provided in Section 32-5A-191 shall knowingly:

"(1) Operate, lease, or borrow a motor vehicle unless that vehicle is equipped with a functioning ignition interlock device.

"(2) Request or solicit any other person to blow into an ignition interlock device or to start a motor vehicle equipped with the device for the purpose of providing the person so restricted with an operable motor vehicle.

"(k)(1) Any person who operates a motor vehicle in violation of subsection (j) shall be immediately removed from the vehicle and taken into custody. The vehicle, regardless of ownership or possessory interest of the operator or person present in the vehicle, except when the owner of the vehicle or another family member of the owner is present in the vehicle and presents a valid driver's license, shall be impounded by any duly sworn law enforcement officer pursuant to Section 32-6-19(c). If there is an emergency or medical necessity jeopardizing life or limb, the law enforcement officer may elect not to impound the vehicle.

"(2) A violation of subsection (j) on the first offense is a Class A misdemeanor and punishable as provided by law. In addition, the time the defendant is required to use an ignition interlock device shall be extended by six months. Upon second conviction of a violation of subsection (j), the sentence shall include a mandatory sentence, which is not subject to suspension or probation, of imprisonment in the county or municipal jail for not less than 48 hours and the time the defendant is required to use an ignition interlock device shall be extended by six months. Upon a third or subsequent conviction of a violation of subsection (j), the sentence shall include a mandatory sentence, which is not subject to suspension or probation, of imprisonment in the county or municipal jail for not less than five days and the time the defendant shall be required to use an ignition interlock device shall be extended by one year.

"(l) No person shall blow into an ignition interlock device or start a motor vehicle equipped with the device for the purpose of providing an operable motor vehicle to a person who is prohibited from operating a motor vehicle without an ignition interlock device.

"(m) No person shall intentionally attempt to tamper with, defeat, or circumvent the operation of an ignition interlock device.

"(n) Any person convicted of a violation of this section other than subsection (j) shall be punished by imprisonment for not more than six months or a fine of not more than five hundred dollars ($500), or both."

Section 2. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 3. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Crimes and Offenses

Criminal Law and Procedure

Pretrial Diversion Programs

Ignition Interlock

Court, Municipal

Driving Under the Influence

Alcoholic Beverages

Code Amended