§291E-65 Refusal to submit to testing for measurable amount of alcohol; district court hearing; sanctions; appeals; admissibility.

531 words·~2 min read·/hi/291e-65

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(a)If a person under arrest for operating a vehicle after consuming a measurable amount of alcohol, pursuant to section 291E-64, refuses to submit to a breath or blood test, none shall be given, except as provided in section 291E-21, but the arresting law enforcement officer, as soon as practicable, shall submit an affidavit to a district judge of the circuit in which the arrest was made, stating:

(1)That at the time of the arrest, the arresting officer had probable cause to believe the arrested person was under the age of twenty-one and had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State with a measurable amount of alcohol;

(2)That the arrested person was informed that the person may refuse to submit to a breath or blood test, in compliance with section 291E-11;

(3)That the person had refused to submit to a breath or blood test;

(4)That the arrested person was:

(A)Informed of the sanctions of this section; and then

(B)Asked if the person still refuses to submit to a breath or blood test, in compliance with the requirements of section 291E-15; and

(5)That the arrested person continued to refuse to submit to a breath or blood test.

(b)Upon receipt of the affidavit, the district judge shall hold a hearing within twenty days. The district judge shall hear and determine:

(1)Whether the arresting law enforcement officer had probable cause to believe that the person was under the age of twenty-one and had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State with a measurable amount of alcohol;

(2)Whether the person was lawfully arrested;

(3)Whether the person was informed that the person may refuse to submit to a breath or blood test, in compliance with section 291E-11;

(4)Whether the person refused to submit to a test of the person's breath or blood;

(5)Whether the person was:

(A)Informed of the sanctions of this section; and then

(B)Asked if the person still refuses to submit to a breath or blood test, in compliance with the requirements of section 291E-15; and

(6)Whether the person continued to refuse to submit to a breath or blood test.

(c)If the district judge finds the statements contained in the affidavit are true, the judge shall suspend the arrested person's license and privilege to operate a vehicle as follows:

(1)For a first suspension, or any suspension not preceded within a five-year period by a suspension under this section, for a period of twelve months; and

(2)For any subsequent suspension under this section, for a period not less than two years and not more than five years.

(d)An order of a district court issued under this section may be appealed to the supreme court. [L 2000, c 189, pt of §23; am L 2001, c 157, §29; am L 2006, c 64, §9; am L 2009, c 88, §§7, 17(1)]