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2018 SESSION

18100329D
SENATE BILL NO. 398
Offered January 10, 2018
Prefiled January 9, 2018
A BILL to amend and reenact 18.2-270 of the Code of Virginia, relating to driving while intoxicated; fourth offense; penalty.
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Patron-- McDougle
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Referred to Committee for Courts of Justice
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Be it enacted by the General Assembly of Virginia:

1. That 18.2-270 of the Code of Virginia is amended and reenacted as follows:

18.2-270. Penalty for driving while intoxicated; subsequent offense; prior conviction.

A. Except as otherwise provided herein, any person violating any provision of 18.2-266 shall be guilty of a Class 1 misdemeanor with a mandatory minimum fine of $250. If the person's blood alcohol level as indicated by the chemical test administered as provided in this article or by any other scientifically reliable chemical test performed on whole blood under circumstances reliably establishing the identity of the person who is the source of the blood and the accuracy of the results (i) was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of five days or, (ii) if the level was more than 0.20, for an additional mandatory minimum period of 10 days.

B. 1. Any person convicted of a second offense committed within less than five years after a prior offense under 18.2-266 shall upon conviction of the second offense be punished by a mandatory minimum fine of $500 and by confinement in jail for not less than one month nor more than one year. Twenty days of such confinement shall be a mandatory minimum sentence.

2. Any person convicted of a second offense committed within a period of five to 10 years of a prior offense under 18.2-266 shall upon conviction of the second offense be punished by a mandatory minimum fine of $500 and by confinement in jail for not less than one month. Ten days of such confinement shall be a mandatory minimum sentence.

3. Upon conviction of a second offense within 10 years of a prior offense, if the person's blood alcohol level as indicated by the chemical test administered as provided in this article or by any other scientifically reliable chemical test performed on whole blood under circumstances reliably establishing the identity of the person who is the source of the blood and the accuracy of the results (i) was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 10 days or, (ii) if the level was more than 0.20, for an additional mandatory minimum period of 20 days. In addition, such person shall be fined a mandatory minimum fine of $500.

C. 1. Any person convicted of three offenses of 18.2-266 committed within a 10-year period shall upon conviction of the third offense be guilty of a Class 6 felony. The sentence of any person convicted of three offenses of 18.2-266 committed within a 10-year period shall include a mandatory minimum sentence of 90 days, unless the three offenses were committed within a five-year period, in which case the sentence shall include a mandatory minimum sentence of confinement for six months. In addition, such person shall be fined a mandatory minimum fine of $1,000.

2. A person who has been convicted of 18.2-36.1, 18.2-36.2, 18.2-51.4, 18.2-51.5, or a felony violation of 18.2-266 shall upon conviction of a subsequent violation of 18.2-266 be guilty of a Class 6 felony. The punishment of any person convicted of such a subsequent violation of 18.2-266 shall include a mandatory minimum term of imprisonment of one year and a mandatory minimum fine of $1,000.

3. The punishment of any Any person convicted of a fourth or subsequent offense of 18.2-266 committed within a 10-year period shall, upon conviction, be guilty of a Class 4 felony. The sentence of any person convicted of a fourth or subsequent offense of 18.2-266 committed within a 10-year period shall include a mandatory minimum term of imprisonment of one year. In addition, such person shall be fined a mandatory minimum fine of $1,000.

4. The vehicle solely owned and operated by the accused during the commission of a felony violation of 18.2-266 shall be subject to seizure and forfeiture. After an arrest for a felony violation of 18.2-266, the Commonwealth may file an information in accordance with 19.2-386.34.

D. In addition to the penalty otherwise authorized by this section or 16.1-278.9, any person convicted of a violation of 18.2-266 committed while transporting a person 17 years of age or younger shall be (i) fined an additional minimum of $500 and not more than $1,000 and (ii) sentenced to a mandatory minimum period of confinement of five days.

E. For the purpose of determining the number of offenses committed by, and the punishment appropriate for, a person under this section, an adult conviction of any person, or finding of guilty in the case of a juvenile, under the following shall be considered a conviction of 18.2-266: (i) the provisions of 18.2-36.1 or the substantially similar laws of any other state or of the United States, (ii) the provisions of 18.2-51.4, 18.2-266, former 18.1-54 (formerly 18-75), the ordinance of any county, city or town in this Commonwealth or the laws of any other state or of the United States substantially similar to the provisions of 18.2-51.4, or 18.2-266, or (iii) the provisions of subsection A of 46.2-341.24 or the substantially similar laws of any other state or of the United States.

F. Mandatory minimum punishments imposed pursuant to this section shall be cumulative, and mandatory minimum terms of confinement shall be served consecutively. However, in no case shall punishment imposed hereunder exceed the applicable statutory maximum Class 1 misdemeanor term of confinement or fine upon conviction of a first or second offense, or Class 6 felony term of confinement or fine upon conviction of a third or subsequent offense.

2. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 836 of the Acts of Assembly of 2017 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice.