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Subchapter 3: Underage Driving Under the Influence Law

5-65-301.  Title.

This subchapter may be known and cited as the “Underage Driving Under the Influence Law” or the “Underage DUI Law”.

5-65-302.  Definitions.

As used in this subchapter:

(1) ”Influence” means being controlled or affected by the ingestion of an alcoholic beverage or similar intoxicant, or any combination of an alcoholic beverage or similar intoxicant, to such a degree that the driver’s reactions, motor skills, and judgment are altered or diminished, even to the slightest scale, and the underage driver, therefore, due to inexperience and lack of skill, constitutes a danger of physical injury or death to himself or herself and other motorists or pedestrians; and

(2) ”Underage” means any person who is under twenty-one (21) years of age and therefore may not legally consume alcoholic beverages in Arkansas.

5-65-303.  Conduct proscribed.

(a) It is unlawful and punishable as provided in this subchapter for any underage person to operate or be in actual physical control of a motor vehicle while under the influence of an alcoholic beverage or similar intoxicant.

(b) It is unlawful and punishable as provided in this subchapter for any underage person to operate or be in actual physical control of a motor vehicle if at that time there was an alcohol concentration of two-hundredths (0.02) but less than eight-hundredths (0.08) in the underage person’s breath or blood as determined by a chemical test of the underage person’s blood or breath or other bodily substance.

5-65-304.  Seizure, suspension, and revocation of license — Temporary permits.

(a) At the time of arrest for violating § 5-65-303, the arresting law enforcement officer shall seize the motor vehicle operator’s license of the underage person arrested and issue to the underage person a temporary driving permit as provided by § 5-65-402.

(b)  (1) The Office of Driver Services shall suspend or revoke the driving privileges of the arrested underage person under the provisions of § 5-65-402 and the arrested underage person shall have the same right to hearing and judicial review as provided under § 5-65-402.

(2) The suspension or revocation shall be as follows:

(A) Suspension for ninety (90) days for the first offense of violating § 5-65-303;

(B) Suspension for one (1) year for the second offense of violating § 5-65-303; and

(C)  (i) Revocation for the third or subsequent offense of violating § 5-65-303 occurring while the person is underage.

(ii) Revocation is until the underage person reaches twenty-one (21) years of age or for a period of three (3) years, whichever is longer.

(c) In order to determine the number of previous offenses to consider when suspending or revoking the arrested underage person’s driving privileges, the office shall consider as a previous offense:

(1) Any conviction for violating § 5-65-103 or § 5-65-303; and

(2) Any suspension or revocation of driving privileges for an arrest for a violation of § 5-65-103 or § 5-65-303 when the person was not subsequently acquitted of the criminal charge.

(d)  (1)  (A)  (i) The office shall charge a fee to be calculated as provided under subdivision (d)(2)(B) of this section for reinstating a driver’s license suspended because of a violation of § 5-65-303 or § 5-65-310.

(ii) Forty percent (40%) of the revenues derived from this fee shall be deposited into the State Treasury as special revenues and credited to the Public Health Fund to be used exclusively for the Blood Alcohol Program of the Department of Health.

(B) The reinstatement fee is calculated by multiplying twenty-five dollars ($25.00) by each separate occurrence of an offenses resulting in an administrative suspension order under § 5-65-303 unless the administrative suspension order has been removed because:

(i) The person has been found not guilty of the offense by a circuit court or district court; or

(ii) A de novo review of the administrative suspension order by the office results in the removal.

(C) The fee under this section is supplemental to and in addition to any fee imposed under § 5-65-119, § 5-65-310, § 27-16-508, or § 27-16-808.

(2) As used in this subsection, “occurrence” means each separate calendar date when an offense or offenses take place.

5-65-305.  Fines.

(a) Any person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-303 or § 5-65-310 shall be fined:

(1) No less than one hundred dollars ($100) and not more than five hundred dollars ($500) for the first offense;

(2) No less than two hundred dollars ($200) and not more than one thousand dollars ($1,000) for the second offense occurring underage; and

(3) No less than five hundred dollars ($500) and not more than two thousand dollars ($2,000) for the third or subsequent offense occurring underage.

(b) For the purpose of determining an underage person’s fine under this subchapter, an underage person who has one (1) or more previous convictions or suspensions for a violation of § 5-65-103 or § 5-65-205 is deemed to have a conviction for a violation of this subchapter for each conviction for driving while intoxicated.

5-65-306.  Public service work.

(a) Any underage person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-303 or § 5-65-310 shall be ordered by the court to perform public service work of the type and for the duration as deemed appropriate by the court.

(b) The period of community service shall be for:

(1) No less than thirty (30) days for a second offense of violating § 5-65-303; and

(2) No less than sixty (60) days for a third or subsequent offense of violating § 5-65-303.

5-65-307.  Alcohol and driving education program.

(a)  (1)  (A) Any person who has his or her driving privileges suspended, revoked, or denied for violating § 3-3-203, § 5-65-310, or § 5-65-303 is required to complete an alcohol and driving education program for underage drivers as prescribed and approved by the Office of Alcohol and Drug Abuse Prevention or an alcoholism treatment program licensed by the Office of Alcohol and Drug Abuse Prevention, or both, in addition to any other penalty provided in this chapter.

(B) If during the period of suspension or revocation in subdivision (a)(1)(A) of this section the underage person commits an additional violation of § 3-3-203 or § 5-65-303, the underage person is also required to complete an approved alcohol and driving education program or alcoholism treatment program for each additional violation.

(2) The Office of Alcohol and Drug Abuse Prevention shall approve only those programs in alcohol and driving education that are targeted at the underage driving group and are intended to intervene and prevent repeat occurrences of driving under the influence or driving while intoxicated.

(3)  (A)  (i) The alcohol and driving education program may collect a program fee of up to one hundred twenty-five dollars ($125) per enrollee to offset program costs.

(ii) An underage person ordered to complete an alcohol and driving education program or an alcoholism treatment program under this section may be required to pay, in addition to the costs collected for the program, a fee of up to twenty-five dollars ($25.00) to offset the additional costs associated with reporting requirements under this subchapter.

(B) An approved alcohol and driving education program shall report monthly to the Office of Alcohol and Drug Abuse Prevention all revenue derived from these fees.

(b) Prior to reinstatement of a driver’s license suspended or revoked under this subchapter, the driver shall furnish proof of attendance at and completion of the alcohol and driving education program or alcoholism treatment program required under subdivision (a)(1) of this section.

(c) The Office of Alcohol and Drug Abuse Prevention may promulgate rules reasonably necessary to carry out the purposes of this section regarding the approval and monitoring of the alcohol and driving education programs.

(d)  (1)  (A) A person whose license is suspended or revoked for violating § 5-65-303 or § 5-65-310 shall:

(i) Both:

(a) Furnish proof of attendance at and completion of the alcohol and driving education program or alcoholism treatment program required under subdivision (a)(1) of this section and at a victim impact panel as provided in § 5-65-121 before reinstatement of his or her suspended or revoked driver’s license; and

(b) Pay any fee for reinstatement required under § 5-65-119, § 5-65-304, or § 5-65-121; or

(ii) Furnish proof of dismissal or acquittal of the charge on which the suspension or revocation is based.

(B) An application for reinstatement shall be made to the Office of Driver Services.

(2) Even if a person has filed a de novo petition for review pursuant to § 5-65-402, the person is entitled to reinstatement of driving privileges upon complying with this subsection and is not required to postpone reinstatement until the disposition of the de novo review in circuit court has occurred.

(3)  (A) A person suspended under this subchapter may enroll in an alcohol education program prior to disposition of the offense by the circuit court, district court, or city court, but is not entitled to any refund of fees paid if the charges are dismissed or if the person is acquitted of the charges.

(B) A person who enrolls in an alcohol education program is not entitled to any refund of fees paid if the person is subsequently acquitted.

(e) Any alcohol and driving education program shall remit the fees imposed under this section to the Office of Alcohol and Drug Abuse Prevention.

5-65-308.  No probation prior to adjudication of guilt.

(a)  (1) Section 16-93-301 et seq. allows a circuit court judge, district court judge, or city court judge to place on probation a first offender who plead guilty or nolo contendere prior to an adjudication of guilt, and upon successful completion of probation, the circuit court judge, district court judge, or city court judge may discharge the accused without a court adjudication of guilt and expunge the record.

(2)  (A) No circuit court judge, district court judge, or city court judge may utilize the provisions of § 16-93-301 et seq. in an instance in which an underage person is charged with violating § 5-65-303.

(B) Notwithstanding the provisions of § 5-4-301, § 5-4-322, or subdivision (a)(2)(A) of this section, in addition to the mandatory penalties required for a violation of § 5-65-303 a circuit court judge, district court judge, or city court judge may utilize probationary supervision solely for the purpose of monitoring compliance with his or her orders and require an offender to pay a reasonable fee in an amount to be established by the circuit court judge, district court judge, or city court judge.

(b) Any magistrate or judge of a court shall keep or cause to be kept a record of any violation of this subchapter presented to that court and shall keep a record of any official action by that court in reference to the violation of this subchapter, including, but not limited to, a record of any finding of guilt, plea of guilty or nolo contendere, or judgment of acquittal, and the amount of fine and other sentence.

(c) Within thirty (30) days after sentencing a person who has been found guilty or pleaded guilty or nolo contendere on a charge of violating any provision of this subchapter, any magistrate of the court or clerk of the court shall prepare and immediately forward to the Office of Driver Services an abstract of the record of the court covering the case in which the person was found guilty or pleaded guilty or nolo contendere, and the abstract shall be certified by the person so required to prepare it to be true and correct.

(d) The abstract shall be made upon a form furnished by the office and shall include:

(1) The name and address of the party charged;

(2) The number, if any, of the driver’s license of the party charged;

(3) The registration number of the vehicle involved;

(4) The date of hearing;

(5) The plea;

(6) The judgment; and

(7) The amount of the fine and other sentence, as the case may be.

5-65-309.  Implied consent.

(a) Any underage person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state is deemed to have given consent, subject to the provisions of § 5-65-203, to a chemical test of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her breath or blood if:

(1) The underage person is arrested for any offense arising out of an act alleged to have been committed while the underage person was driving while under the influence or driving while there was an alcohol concentration of two-hundredths (0.02) but less than eight-hundredths (0.08) in his or her breath or blood;

(2) The underage person is involved in an accident while operating or in actual physical control of a motor vehicle; or

(3) The underage person is stopped by a law enforcement officer who has reasonable cause to believe that the underage person, while operating or in actual physical control of a motor vehicle, is under the influence or has an alcohol concentration of two-hundredths (0.02) but less than eight-hundredths (0.08) in his or her breath or blood.

(b) Any underage person who is dead, unconscious, or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn the consent provided by subsection (a) of this section, and a chemical test may be administered subject to the provisions of § 5-65-203.

5-65-310.  Refusal to submit.

(a)  (1) If an underage person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test designated by the law enforcement agency, as provided in § 5-65-309, no chemical test shall be given, and the underage person’s driver’s license shall be seized by the law enforcement officer, and the law enforcement officer shall immediately deliver to the underage person from whom the driver’s license was seized a temporary driving permit, as provided by § 5-65-402.

(2) Refusal to submit to a chemical test under this subsection is a strict liability offense and is a violation pursuant to § 5-1-108.

(b)  (1) The Office of Driver Services shall suspend or revoke the driving privileges of the arrested underage person under § 5-65-402.

(2) The office shall suspend the underage person’s driving privileges as follows:

(A) Suspension for ninety (90) days for a first offense under this section;

(B) Suspension for one (1) year for a second offense under this section; and

(C)  (i) Revocation for the third or subsequent offense occurring while the person is underage.

(ii) Revocation is until the underage person reaches twenty-one (21) years of age or for a period of three (3) years, whichever is longer.

(c) In order to determine the number of previous offenses to consider when suspending or revoking the arrested underage person’s driving privileges, the office shall consider as a previous offense:

(1) Any conviction for violating § 5-65-310; and

(2) Any suspension or revocation of driving privileges for an arrest for a violation of § 5-65-310 when the person was not subsequently acquitted of the criminal charge.

(d) In addition to any other penalty provided for in this section, if the underage person is a resident without a license or permit to operate a motor vehicle in this state:

(1) The office shall deny to that underage person the issuance of a license or permit for a period of six (6) months for a first offense; and

(2) For a second or subsequent offense by an underage resident without a license or permit to operate a motor vehicle, the office shall deny to that underage person the issuance of a license or permit for a period of one (1) year.

(e) When an underage nonresident’s privilege to operate a motor vehicle in this state has been suspended, the office shall notify the office of issuance of that underage person’s nonresident motor vehicle license of action taken by the office.

(f)  (1)  (A) The office shall charge a reinstatement fee to be calculated as provided under subdivision (f)(1)(B) of this section for reinstating a driver’s license suspended or revoked for a violation of this section.

(B) The reinstatement fee is calculated by multiplying twenty-five dollars ($25.00) by the number of offenses resulting in an administrative suspension order under § 5-65-310 unless the administrative suspension order has been removed because:

(i) The person has been found not guilty of the offense by a circuit court or district court; or

(ii) The office has entered an administrative suspension order.

(C) The fee under subdivision (f)(1)(A) of this section is supplemental to and in addition to any fee imposed by § 5-65-119, § 5-65-304, § 27-16-508, or § 27-16-808.

(2) Forty percent (40%) of the revenues derived from the reinstatement fee under this subsection shall be deposited into the State Treasury as special revenues and credited to the Public Health Fund to be used exclusively for the Blood Alcohol Program of the Department of Health.

5-65-311.  Relationship to other laws.

(a) A penalty prescribed in this subchapter for underage driving under the influence is in addition to any other penalty prescribed by law for the offense under another law of the State of Arkansas.

(b) For the purposes of this subchapter, there is no presumption, as there is found in § 5-65-206, that an underage person is not under the influence of an intoxicating substance, such as alcohol or a similar intoxicant, if the underage person’s alcohol concentration is four hundredths (0.04) or less.

(c) The following are the same for a chemical test or instrument used for testing breath or blood alcohol concentration under the Omnibus DWI Act, § 5-65-101 et seq:

(1) The administration of a chemical test for breath or blood alcohol;

(2) The instrument used to administer the chemical test;

(3) The procedure used to calibrate and maintain the instrument; and

(4) The use of the chemical test results as evidence.

(d) If there is evidence of an alcohol concentration of more than four-hundredths (0.04) but less than eight-hundredths (0.08) in an underage person’s blood, breath, or other bodily substance, this fact does not preclude the underage person from being prosecuted for driving while intoxicated under the Omnibus DWI Act, § 5-65-101 et seq.


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