San Carlos Apache Traffic Code Section 4
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
Sec. 4.01 Implied Consent to Blood, Breath or Urine Test: Suspension of License
Upon Refusal: Hearing: Review of Order Suspending
A. Any person who operates a motor vehicle upon the public highways of the reservation shall be deemed to have given consent subject to the provisions of
Section 4.02 to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if arrested for any offense
arising out
of actions alleged to have been committed while the person was drinking or in actual physical control of a motor vehicle while under the influence of
intoxicating ;liquor. The test or tests shall be administered at the direction of a Tribal Police Officer having reasonable grounds to believe the person to have
been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor.
B. Following an arrest a violator shall be requested to submit to and successfully complete any test prescribed by subsection (A) of this section, and if the
violator refuses he shall be informed that his license or permit to drive will be suspended or denied for twelve months unless he expressly agrees to the test and
successfully completes the test. A failure to expressly agree to the test or successfully complete the test is deemed a refusal. The violator shall also be informed
that if the test results show a blood alcohol concentration of 0.10 per cent or more his license or permit to drive will be suspended or denied for not less than
ninety consecutive days.
C. Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the
consent provided by subsection (A) and the test or tests may be administered, subject to the provisions of Section 4.02.
D. If a person under arrest refuses to submit to a chemical test designated by the law enforcement agency as provided in subsection (A), none shall be given.
The Tribal Court upon the receipt of a report of the law enforcement officer, certified and subject to the penalty for perjury as prescribed by Section 10.12,
that he had
reasonable grounds to believe the arrested person had been driving or as in actual physical control of a motor vehicle upon the public highways of the
reservation while under the influence of intoxicating liquor and that the person had refused to submit to the test, shall suspend his privilege to operate a motor
vehicle on the reservation for a period of six months.
E. The Tribal Court shall immediately notify the person named in the affidavit in writing of the action taken pursuant to this section and, upon his request in
writing received within fifteen days after the notice is sent, shall afford him an opportunity for a hearing.
1.) On the receipt of a request for a hearing, the Tribal Court shall set the hearing within thirty (30) days from date of receipt of the request.
F. At the arraignment or before the arraignment of the person who has submitted to a chemical test or tests, full information concerning the test or tests shall be
given in writing to him or his attorney. Such information shall be given in writing to him or his attorney. Such information shall be given by the prosecuting
attorney and if he fails to do so, by the court. At the same time, the court shall fully explain to the defendant any and all charges made against the defendant by
the arresting officer and the possible consequences of each plea the defendant may enter. The defendant shall be informed that he need not plead and that if he
fails to plead the court will proceed as if a not guilty plea had been entered. The court shall inform the defendant that he may request a trial and that such
request, if made, shall be granted as provided in Section 1.14 of the San Carlos Law and Order Code.
Sec. 4.02 Persons Under the Influence of Intoxicating Liquor or of Drugs
Amended by Res. FB-92-16
A. It is unlawful and punishable as provided in Section 4.03 for any person to drive or be in actual physical control of any vehicle within this state while there
is 0.10 percent or more by weight of alcohol in the person's blood.
B. In the trial of any civil or criminal action or proceeding for a violation of subsection (A) of this section relating to driving or being in actual physical control
of a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of
the defendant's blood, urine, breath or other bodily substance shall give rise to the following presumptions:
1.) If there was at the time 0.05 per cent or less by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was not under the
influence of intoxicating liquor.
2.) If there was at that time in excess of 0.05 per cent but less than 0.10 per cent by weight of alcohol in the defendant's blood, such fact shall not give rise to
any presumption that the defendant was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence
in determining the guilt or innocence of the defendant.
3). If there was at that time 0.10 per cent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence
of intoxicating liquor.
4.) Paragraph 1, 2 or 3 of this subsection shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of
whether or not the defendant was under the influence of intoxicating liquor.
C. Per cent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred cubic centimeters of blood.
D. Chemical analyses of the person's blood, urine, breath, or other bodily substance to be considered valid under the provisions of this section shall have been
performed according to methods approved by the Tribal Court for such purpose. The Tribal Court is authorized to approve satisfactory techniques or
methods, to ascertain the qualifications and competence of persons to conduct such analyses, and to issue permits which shall be subject to termination or
revocation at the discretion of the Tribal Court.
E. When a person shall submit to a blood or urine test only a physician or a registered nurse, or other qualified-person, other than the arresting officer, may
withdraw blood or take urine specimen for the purpose of determining the alcoholic content therein. Such limitation shall not apply to the taking of breath
specimens.
F. The person tested may have a physician or a qualified technician, chemist, registered nurse or other qualified person of his own choosing administer a
chemical test or tests in addition to any test administered at the direction of a law enforcement officer. The failure to or inability to obtain an additional test by
a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.
G. Upon the request of the person who shall submit to a chemical test or tests, full information concerning the test or tests shall be made available to him or his
attorney.
H. If a person under arrest refuses to submit to a chemical test, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of
acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle upon the public highways of the Reservation
while under the influence of intoxicating liquor.
I. It is unlawful for any person who is a habitual user of or under the influence of any narcotic drug or who is under the influence of any other drug to a degree
which renders him incapable of safely driving a vehicle, to drive a vehicle within the reservation. The fact that any person charged with a violation of this
subsection is or has been entitled to use such drug shall not constitute a defense against any charge of violating this subsection.
J. Notwithstanding any provision of law to the contrary if a law enforcement officer has probable cause to believe that a person has violated this section and a
blood sample is taken from that person for any reason a portion of that sample sufficient for analysis shall be provided to a law enforcement officer if
requested for law enforcement purposes.
K. A person qualified to withdraw blood or take a urine specimen under this section or any hospital, laboratory or clinic employing or utilizing the services of
the person shall not incur any civil liability as a result of these activities if requested by a law enforcement officer to withdraw blood or take urine specimens
unless the person, while performing the activity, is guilty of gross negligence.
Sec. 4.03 Punishment for Persons Under the Influence of Intoxicating liquor or Drugs
A. A person who is convicted of a violation of Section 4.02 shall be punished upon a first conviction by imprisonment for not less than 24 hours in jail, and
pay a fine of not less than three hundred ($300) nor more than three hundred dollars. In addition, the judge shall suspend the driving privileges of such a person
for 90 days. If in the court's opinion the offender has the problem of habitual abuse of alcohol or drugs, the court may require the person to obtain treatment
under its supervision; however, in no case shall an offender be excused from spending one day in jail.
B. The court may, upon pronouncement of any jail sentence under this section, provide in the sentence, that the defendant may be permitted, if he is employed
and can continue his employment, to continue such employment. for not more than twelve hours a day, nor more than six days a week, and the remaining day,
days or parts of days shall be spent in jail until the sentence is served. He shall be allowed out of jail only long enough to complete his actual hours of
employment and no longer.
C. If a person is convicted of a second violation of Section 4.02 or is convicted of a violation of Section 4.02 and has previously been convicted of an act in
another state, which, if committed within a period of sixty months in this reservation, would be a violation of Section 4.02, that person is guilty of a
misdemeanor and shall be sentenced to serve not less than sixty days in jail and shall have his license suspended for six (6) months. The judge shall order the
person to pay a fine of not less than five hundred dollars. The judge shall require the surrender to him of any operator's or chauffeur's license of such convicted
person and the court shall keep possession of the license until completion of the suspension. The dates of the commission of the offense shall be the
determining factor in applying this subsection. A second violation for which a conviction occurs as provided in this section shall not include a conviction for an
offense arising out of the same series of acts. A judge shall not grant probation to or suspend any part of or all of the imposition or execution of any sentence
required by this subsection except on the condition that the person serve not less than sixty days in jail and pay a fine of not less than five hundred dollars.
The judge shall require the surrender to him of any license of any person for a subsequent conviction. If in the court's opinion the offender has the problem of
habitual abuse of alcohol or drugs, the court shall require the person to obtain treatment under its supervision.
D. If a person is convicted of a third violation of Section 4.02 or is convicted of a violation of Section 4.02 and has previously been convicted of an act in
another state which if committed in this reservation within a period of sixty months, would be a violation of Section 4.02, that person is guilty of a
misdemeanor and shall
be sentenced to serve not less than six months in jail and a $500 fine, and/or suspend his license for 1 year. The Judge shall require the surrender to him of any
operator's or chauffeur's license of such convicted person, and the court shall keep possession of the license until completion of the suspension.
E. Punishment for DUI or drugs - six (6) months in jail or a $500 fine.
Sec. 4.04 Reckless Driving
A. Any person who drives any vehicle in a willful or wanton disregard for the safety of persons or property is guilty of reckless driving.
B. A person convicted of reckless driving shall be punished of a first conviction by imprisonment for not less than 10 days, nor more than 90 days in jail, and
in the discretion of the court, by a fine of not less than one hundred nor more than three hundred dollars. In addition, the judge may suspend the driving
privilege
of any person so convicted for up to 90 days.
C. When a person convicted of a violation of this subsection has been previously convicted of a violation of this section within a period of twenty-four
months, such person is guilty of a misdemeanor and shall not be eligible for probation, pardon, parole, commutation of suspension of sentence or release on
any other basis until such person has served not less than twenty days in jail. The judge shall require the surrender to him of any operator's or chauffeur's
license of such convicted person and shall immediately upon receipt thereof shall revoke the driving privilege of such person. The dates of the commission of
the offense shall be the determining factor in applying this rule. A second or subsequent violation for which a conviction occurs as provided in this section shall
not grant probation to or suspend the imposition or execution of a jail sentence or fail to secure the surrender to him of any license of any person for such a
second or subsequent conviction.
D. The court may, upon pronouncement of any jail sentence under this section, provide in the sentence that the defendant may be permitted, if he is employed
and can continue his employment, to continue such employment for not more than twelve hours per day nor more than six days per week, and the remaining
day, days or parts of days shall be spent in jail until the sentence is served. He shall be allowed out of jail only long enough to complete his actual hours of
employment and no longer.