291E-65 Refusal to submit to testing for measurable amount of alcohol; district court hearing; sanctions; appeals; admissibility. (a) If a person under arrest for operating a vehicle after consuming a measurable amount of alcohol, pursuant to section 291E-64, refuses to submit to a breath or blood test, none shall be given, except as provided in section 291E-21, but the arresting law enforcement officer, as soon as practicable, shall submit an affidavit to a district judge of the circuit in which the arrest was made, stating:

(1) That at the time of the arrest, the arresting officer had probable cause to believe the arrested person was under the age of twenty-one and had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State with a measurable amount of alcohol;

(2) That the arrested person was informed that the person may refuse to submit to a breath or blood test, in compliance with section 291E-11;

(3) That the person had refused to submit to a breath or blood test;

(4) That the arrested person was:

(A) Informed of the sanctions of this section; and then

(B) Asked if the person still refuses to submit to a breath or blood test, in compliance with the requirements of section 291E-15; and

(5) That the arrested person continued to refuse to submit to a breath or blood test.

(b) Upon receipt of the affidavit, the district judge shall hold a hearing within twenty days. The district judge shall hear and determine:

(1) Whether the arresting law enforcement officer had probable cause to believe that the person was under the age of twenty-one and had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State with a measurable amount of alcohol;

(2) Whether the person was lawfully arrested;

(3) Whether the person was informed that the person may refuse to submit to a breath or blood test, in compliance with section 291E-11;

(4) Whether the person refused to submit to a test of the person's breath or blood;

(5) Whether the person was:

(A) Informed of the sanctions of this section; and then

(B) Asked if the person still refuses to submit to a breath or blood test, in compliance with the requirements of section 291E-15; and

(6) Whether the person continued to refuse to submit to a breath or blood test.

(c) If the district judge finds the statements contained in the affidavit are true, the judge shall suspend the arrested person's license and privilege to operate a vehicle as follows:

(1) For a first suspension, or any suspension not preceded within a five-year period by a suspension under this section, for a period of twelve months; and

(2) For any subsequent suspension under this section, for a period not less than two years and not more than five years.

(d) An order of a district court issued under this section may be appealed to the supreme court. [L 2000, c 189, pt of 23; am L 2001, c 157, 29; am L 2006, c 64, 9; am L 2009, c 88, 7, 17(1)]

 

 

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