§ 9.28.023. Driving under the influence—Chemical analysis of breath or blood.

A.

Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating, driving or in actual physical control of a motor vehicle or operating an aircraft or a watercraft under the influence under subsection 9.28.020B.1 or B.3, the amount of alcohol in the person's breath or blood at the time alleged shall give rise to the following presumptions:

1.

If there was 0.04 percent or less by weight of alcohol in the person's blood, or 40 milligrams or less of alcohol per 100 milliliters of his blood, or 0.04 grams or less of alcohol per 210 liters of the person's breath, it shall be presumed that the person was not under the influence of an alcoholic beverage.

2.

If there was in excess of 0.05 percent but less than 0.08 percent by weight of alcohol in the person's blood, or in excess of 40 but less than 80 milligrams of alcohol per 100 milliliters of the person's blood, or in excess of 0.04 grams but less than 0.08 grams of alcohol per 210 liters of the person's breath, that fact does not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage.

3.

If there was 0.08 percent or more by weight of alcohol in the person's blood, or 80 milligrams or more of alcohol per 100 milliliters of the person's blood, or 0.08 grams or more of alcohol per 210 liters of the person's breath, it shall be presumed that the person was under the influence of an alcoholic beverage.

B.

Upon the trial of a civil or criminal action or proceedings arising out of acts alleged to have been committed by a person operating, driving or in actual physical control of a commercial motor vehicle under the influence in violation of section 9.28.020.B.5, if there was less than 0.04 percent by weight of alcohol in the person's blood, or less than 40 milligrams of alcohol per 100 milliliters of the person's blood, or less than 0.04 gram of alcohol per 210 liters of the person's breath, that fact does not give rise to a presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage. If there was 0.04 percent or more by weight of alcohol in the person's blood, or 40 milligrams or more of alcohol per 100 milliliters of the person's blood, or 0.04 gram or more of alcohol per 210 liters of the person's breath, it is presumed that the person was under the influence of an alcoholic beverage.

C.

For purposes of this chapter, percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 100 milliliters of blood.

D.

The provisions of subsection A of this section may not be construed to limit the introduction of any other competent evidence bearing upon the question of whether the person was or was not intoxicated.

E.

To be considered valid under the provisions of this section, the chemical analysis of the person's breath or blood shall have been performed according to methods approved by the state department of public safety. If it is established at trial that a chemical analysis of breath or blood was performed according to approved methods by a person trained according to techniques, methods and standards of training approved by the state department of public safety, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary.

F.

The person tested may have a physician or a qualified technician, chemist, registered nurse or other qualified person of the person's own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer. The fact that the person under arrest sought to obtain such an additional test, and failed or was unable to do so, is likewise admissible in evidence. The person who administers the chemical test shall clearly and expressly inform the person tested of that person's right to an independent test described under this subsection, and, if the person being tested requests an independent test, the department shall make reasonable and good-faith efforts to assist the person being tested in contacting a person qualified to perform an independent chemical test of the person's breath or blood.

G.

Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the test, including the results of it, shall be made available to the person or the person's attorney.

(CAC 9.28.020; AO No. 78-72; AO No. 79-194; AO No. 80-122; AO No. 81-75; AO No. 82-126; AO No. 90-41; AO No. 94-68(S), § 12, 8-11-94; AO No. 2001-51, § 1, 2-27-01; AO No. 2001-150, § 4, 8-28-01; AO No. 2002-125, § 5, 8-20-02; AO No. 2011-113(S), § 62, 11-22-11, eff. 12-22-11)

Editor's note

AO No. 2001-150, as amended lowered the legal limits effective 9/1/01.

Cross reference

Drinking while driving, § 9.36.200.