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PRINTER'S NO. 19
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
38
Session of
2017
INTRODUCED BY HUTCHINSON, LANGERHOLC, SCHWANK, VULAKOVICH AND
RAFFERTY, JANUARY 12, 2017
REFERRED TO TRANSPORTATION, JANUARY 12, 2017
AN ACT
Amending Title 75 (Vehicles) of the Pennsylvania Consolidated
Statutes, in general provisions, further providing for
definitions; in licensing of drivers, further providing for
driving while operating privilege is suspended or revoked and
for chemical testing to determine amount of alcohol or
controlled substance; in commercial drivers, further
providing for implied consent requirements for commercial
motor vehicle drivers; in miscellaneous provisions, further
providing for reports by emergency room personnel; in driving
after imbibing alcohol or utilizing drugs, further providing
for driving under influence of alcohol or controlled
substance, for grading and for penalties; and, in powers of
Department of Transportation and local authorities, further
providing for enforcement agreements.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The definition of "chemical test or testing" in
section 102 of Title 75 of the Pennsylvania Consolidated
Statutes is amended to read:
§ 102. Definitions.
Subject to additional definitions contained in subsequent
provisions of this title which are applicable to specific
provisions of this title, the following words and phrases when
used in this title shall have, unless the context clearly
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indicates otherwise, the meanings given to them in this section:
* * *
"Chemical test or testing." Analysis performed on a
biological material, including but not limited to breath,
saliva, blood or urine, to determine the identity or
concentration or both of particular constituents such as alcohol
or controlled substances. Test procedures may rely on one or
more physical or chemical properties of the constituent and
utilize instrumental or chemical analysis techniques to
accomplish the determination.
* * *
Section 2. Section 1543(b)(1.1)(i) of Title 75 is amended to
read:
§ 1543. Driving while operating privilege is suspended or
revoked.
* * *
(b) Certain offenses.--
* * *
(1.1) (i) A person who has an amount of alcohol by
weight in his blood that is equal to or greater than .02%
at the time of testing or who at the time of testing has
in his blood or saliva any amount of a Schedule I or
nonprescribed Schedule II or III controlled substance, as
defined in the act of April 14, 1972 (P.L.233, No.64),
known as The Controlled Substance, Drug, Device and
Cosmetic Act, or its metabolite or who refuses testing of
blood, saliva or breath and who drives a motor vehicle on
any highway or trafficway of this Commonwealth at a time
when the person's operating privilege is suspended or
revoked as a condition of acceptance of Accelerated
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Rehabilitative Disposition for a violation of section
3802 or former section 3731 or because of a violation of
section 1547(b)(1) or 3802 or former section 3731 or is
suspended under section 1581 for an offense substantially
similar to a violation of section 3802 or former section
3731 shall, upon a first conviction, be guilty of a
summary offense and shall be sentenced to pay a fine of
$1,000 and to undergo imprisonment for a period of not
less than 90 days.
* * *
Section 3. Section 1547(a) introductory paragraph, (c), (h),
(i) and (j) of Title 75, amended May 25, 2016 (P.L.236, No.33),
are amended to read:
§ 1547. Chemical testing to determine amount of alcohol or
controlled substance.
(a) General rule.--Any person who drives, operates or is in
actual physical control of the movement of a vehicle in this
Commonwealth shall be deemed to have given consent to one or
more chemical tests of breath, saliva or blood for the purpose
of determining the alcoholic content of blood or the presence of
a controlled substance if a police officer has reasonable
grounds to believe the person to have been driving, operating or
in actual physical control of the movement of a vehicle:
* * *
(c) Test results admissible in evidence.--In any summary
proceeding or criminal proceeding in which the defendant is
charged with a violation of section 3802 or any other violation
of this title arising out of the same action, the amount of
alcohol or controlled substance in the defendant's blood, as
shown by chemical testing of the person's breath, saliva or
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blood, which tests were conducted by qualified persons using
approved equipment, shall be admissible in evidence.
(1) Chemical tests of breath shall be performed on
devices approved by the Department of Health using procedures
prescribed jointly by regulations of the Departments of
Health and Transportation. Devices shall have been calibrated
and tested for accuracy within a period of time and in a
manner specified by regulations of the Departments of Health
and Transportation. For purposes of breath testing, a
qualified person means a person who has fulfilled the
training requirement in the use of the equipment in a
training program approved by the Departments of Health and
Transportation. A certificate or log showing that a device
was calibrated and tested for accuracy and that the device
was accurate shall be presumptive evidence of those facts in
every proceeding in which a violation of this title is
charged.
(2) (i) Chemical tests of blood or saliva, if conducted
by a facility located in this Commonwealth, shall be
performed by a clinical laboratory licensed and approved
by the Department of Health for this purpose using
procedures and equipment prescribed by the Department of
Health or by a Pennsylvania State Police criminal
laboratory. For purposes of blood and saliva testing,
qualified person means an individual who is authorized to
perform those chemical tests under the act of September
26, 1951 (P.L.1539, No.389), known as The Clinical
Laboratory Act.
(ii) For purposes of blood and saliva testing to
determine blood alcohol or controlled substance content
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levels, the procedures and equipment prescribed by the
Department of Health shall be reviewed within 120 days of
the effective date of this subparagraph and at least
every two years thereafter to ensure that consideration
is given to scientific and technological advances so that
testing conducted in accordance with the prescribed
procedures utilizing the prescribed equipment will be as
accurate and reliable as science and technology permit.
(3) Chemical tests of blood or saliva, if conducted by a
facility located outside this Commonwealth, shall be
performed:
(i) by a facility licensed and approved by the
Department of Health for this purpose; or
(ii) by a facility licensed to conduct the tests by
the state in which the facility is located and licensed
pursuant to the Clinical Laboratory Improvement
Amendments of 1988 (Public Law 100-578, 102 Stat. 2903).
(4) For purposes of blood and saliva testing to
determine the amount of a Schedule I or nonprescribed
Schedule II or III controlled substance or a metabolite of
such a substance, the Department of Health shall prescribe
minimum levels of these substances which must be present in a
person's blood or saliva in order for the test results to be
admissible in a prosecution for a violation of section
1543(b)(1.1), 3802(d)(1), (2) or (3) or 3808(a)(2).
* * *
(h) Test by personal physician.--The person tested shall be
permitted to have a physician of his own choosing administer an
additional breath, saliva or blood chemical test and the results
of the test shall also be admissible in evidence. The chemical
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testing given at the direction of the police officer shall not
be delayed by a person's attempt to obtain an additional test.
(i) Request by driver for test.--Any person involved in an
accident or placed under arrest for a violation of section
1543(b)(1.1), 3802 or 3808(a)(2) may request a chemical test of
his breath, saliva or blood. Such requests shall be honored when
it is reasonably practicable to do so.
(j) Immunity from civil liability and reports.--No
physician, nurse or technician or hospital employing such
physician, nurse or technician, and no other employer of such
physician, nurse or technician shall be civilly liable for
withdrawing blood or obtaining a saliva sample and reporting
test results to the police at the request of a police officer
pursuant to this section. No physician, nurse or technician or
hospital employing such physician, nurse or technician may
administratively refuse to perform such tests and provide the
results to the police officer except as may be reasonably
expected from unusual circumstances that pertain at the time the
request is made.
* * *
Section 4. Sections 1613(a), 3755 and 3802(a)(2), (b), (c),
(d)(1), (e), (f)(1) and (g) introductory paragraph of Title 75
are amended to read:
§ 1613. Implied consent requirements for commercial motor
vehicle drivers.
(a) Implied consent.--A person who drives a commercial motor
vehicle in this Commonwealth is deemed to have given consent to
take a test or tests of the person's breath, blood, saliva or
urine for the purpose of determining the person's alcohol
concentration or the presence of other controlled substances.
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* * *
§ 3755. Reports by emergency room personnel.
(a) General rule.--If, as a result of a motor vehicle
accident, the person who drove, operated or was in actual
physical control of the movement of any involved motor vehicle
requires medical treatment in an emergency room of a hospital
and if probable cause exists to believe a violation of section
3802 (relating to driving under influence of alcohol or
controlled substance) was involved, the emergency room physician
or his designee shall promptly take blood and saliva samples
from those persons and transmit them within 24 hours for testing
to the Department of Health or a clinical laboratory licensed
and approved by the Department of Health and specifically
designated for this purpose. This section shall be applicable to
all injured occupants who were capable of motor vehicle
operation if the operator or person in actual physical control
of the movement of the motor vehicle cannot be determined. Test
results shall be released upon request of the person tested, his
attorney, his physician or governmental officials or agencies.
(b) Immunity from civil or criminal liability.--No
physician, nurse or technician or hospital employing such
physician, nurse or technician and no other employer of such
physician, nurse or technician shall be civilly or criminally
liable for withdrawing blood or obtaining a urine or saliva
sample and reporting test results to the police pursuant to this
section or for performing any other duty imposed by this
section. No physician, nurse or technician or hospital employing
such physician, nurse or technician may administratively refuse
to perform such tests and provide the results to the police
officer except as may be reasonably expected from unusual
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circumstances that pertain at the time of admission.
§ 3802. Driving under influence of alcohol or controlled
substance.
(a) General impairment.--
* * *
(2) An individual may not drive, operate or be in actual
physical control of the movement of a vehicle after imbibing
a sufficient amount of alcohol such that the alcohol
concentration in the individual's blood, saliva or breath is
at least 0.08% but less than 0.10% within two hours after the
individual has driven, operated or been in actual physical
control of the movement of the vehicle.
(b) High rate of alcohol.--An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle after imbibing a sufficient amount of alcohol such that
the alcohol concentration in the individual's blood, saliva or
breath is at least 0.10% but less than 0.16% within two hours
after the individual has driven, operated or been in actual
physical control of the movement of the vehicle.
(c) Highest rate of alcohol.--An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle after imbibing a sufficient amount of alcohol such that
the alcohol concentration in the individual's blood, saliva or
breath is 0.16% or higher within two hours after the individual
has driven, operated or been in actual physical control of the
movement of the vehicle.
(d) Controlled substances.--An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle under any of the following circumstances:
(1) There is in the individual's blood or saliva any
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amount of a:
(i) Schedule I controlled substance, as defined in
the act of April 14, 1972 (P.L.233, No.64), known as The
Controlled Substance, Drug, Device and Cosmetic Act;
(ii) Schedule II or Schedule III controlled
substance, as defined in The Controlled Substance, Drug,
Device and Cosmetic Act, which has not been medically
prescribed for the individual; or
(iii) metabolite of a substance under subparagraph
(i) or (ii).
* * *
(e) Minors.--A minor may not drive, operate or be in actual
physical control of the movement of a vehicle after imbibing a
sufficient amount of alcohol such that the alcohol concentration
in the minor's blood, saliva or breath is 0.02% or higher within
two hours after the minor has driven, operated or been in actual
physical control of the movement of the vehicle.
(f) Commercial or school vehicles.--An individual may not
drive, operate or be in actual physical control of the movement
of a commercial vehicle, school bus or school vehicle in any of
the following circumstances:
(1) After the individual has imbibed a sufficient amount
of alcohol such that the alcohol concentration in the
individual's blood, saliva or breath is:
(i) 0.04% or greater within two hours after the
individual has driven, operated or been in actual
physical control of the movement of a commercial vehicle
other than a school bus or a school vehicle.
(ii) 0.02% or greater within two hours after the
individual has driven, operated or been in actual
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physical control of the movement of a school bus or a
school vehicle.
* * *
(g) Exception to two-hour rule.--Notwithstanding the
provisions of subsection (a), (b), (c), (e) or (f), where
alcohol or controlled substance concentration in an individual's
blood, saliva or breath is an element of the offense, evidence
of such alcohol or controlled substance concentration more than
two hours after the individual has driven, operated or been in
actual physical control of the movement of the vehicle is
sufficient to establish that element of the offense under the
following circumstances:
* * *
Section 5. Section 3803(b)(2) and (4) of Title 75 are
amended and the subsection is amended by adding a paragraph to
read:
§ 3803. Grading.
* * *
(b) Other offenses.--
* * *
(2) An individual who violates section 3802(a)(1) where
the individual refused testing of blood, saliva or breath, or
who violates section 3802(c) or (d) and who has no prior
offenses commits a misdemeanor for which the individual may
be sentenced to a term of imprisonment of not more than six
months and to pay a fine under section 3804.
* * *
(4) An individual who violates section 3802(a)(1) where
the individual refused testing of blood, saliva or breath[,]
or, except as set forth in paragraph (4.1), who violates
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section 3802(c) or (d) and who has one or more prior offenses
commits a misdemeanor of the first degree.
(4.1) An individual who violates section 3802(d) commits
a felony of the third degree for a third or subsequent
offense in a 10-year period.
* * *
Section 6. Section 3804(c) and (e) of Title 75 are amended
and the section is amended by adding a subsection to read:
§ 3804. Penalties.
* * *
(c) Incapacity; highest blood alcohol[; controlled
substances].--An individual who violates section 3802(a)(1) and
refused testing of blood, saliva or breath or an individual who
violates section 3802(c) [or (d)] shall be sentenced as follows:
(1) For a first offense, to:
(i) undergo imprisonment of not less than 72
consecutive hours;
(ii) pay a fine of not less than $1,000 nor more
than $5,000;
(iii) attend an alcohol highway safety school
approved by the department; and
(iv) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
(2) For a second offense, to:
(i) undergo imprisonment of not less than 90 days;
(ii) pay a fine of not less than $1,500;
(iii) attend an alcohol highway safety school
approved by the department; and
(iv) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
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(3) For a third or subsequent offense, to:
(i) undergo imprisonment of not less than one year;
(ii) pay a fine of not less than $2,500; and
(iii) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
* * *
(c.2) Controlled substances.--An individual who violates
section 3802(d) shall be sentenced as follows:
(1) For a first offense, to:
(i) undergo imprisonment of not less than 72
consecutive hours;
(ii) pay a fine of not less than $1,000 nor more
than $5,000;
(iii) attend an alcohol highway safety school
approved by the department; and
(iv) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
(2) For a second offense, to:
(i) undergo imprisonment of not less than 90 days;
(ii) pay a fine of not less than $1,500;
(iii) attend an alcohol highway safety school
approved by the department; and
(iv) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
(3) For a third offense, to:
(i) undergo imprisonment of not less than one year;
(ii) pay a fine of not less than $2,500; and
(iii) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
(4) For a fourth or subsequent offense, to:
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(i) undergo imprisonment for a term of not less than
two years;
(ii) pay a fine of not less than $5,000; and
(iii) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
* * *
(e) Suspension of operating privileges upon conviction.--
* * *
(2) Suspension under paragraph (1) shall be in
accordance with the following:
(i) Except as provided for in subparagraph [(iii)]
(v), 12 months for an ungraded misdemeanor or misdemeanor
of the second degree under this chapter.
(ii) 18 months for a misdemeanor of the first degree
under this chapter.
(iii) 18 to 24 months for a felony of the third
degree for a third offense under section 3802(d) within
10 years.
(iv) 18 to 36 months for a felony of the third
degree for a fourth or subsequent offense under section
3802(d) within 10 years.
[(iii)] (v) There shall be no suspension for an
ungraded misdemeanor under section 3802(a) where the
person is subject to the penalties provided in subsection
(a) and the person has no prior offense.
[(iv)] (vi) For suspensions imposed under paragraph
(1)(ii), notwithstanding any provision of law or
enforcement agreement to the contrary, all of the
following apply:
(A) Suspensions shall be in accordance with
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Subchapter D of Chapter 15 (relating to the Driver's
License Compact).
(B) In calculating the term of a suspension for
an offense that is substantially similar to an
offense enumerated in section 3802, the department
shall presume that if the conduct reported had
occurred in this Commonwealth then the person would
have been convicted under section 3802(a)(2).
[(v)] (vii) Notwithstanding any other provision of
law or enforcement agreement to the contrary, the
department shall suspend the operating privilege of a
driver for six months upon receiving a certified record
of a consent decree granted under 42 Pa.C.S. Ch. 63
(relating to juvenile matters) based on section 3802.
* * *
Section 7. Section 6146(5) of Title 75 is amended to read:
§ 6146. Enforcement agreements.
The secretary may enter into agreements relating to
enforcement of this title, including, but not limited to:
* * *
(5) agreements to take measures to assure taking of
chemical tests of breath, blood, saliva or urine and payment
of fines or attendance at hearings by persons charged with
these or other violations.
Section 8. This act shall take effect in 60 days.
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