§ 31-5-233 — Driving or having control of vehicle while under influence of intoxicating liquor or controlled substances; penalties

(a) As used in this section:
(i) "Alcohol concentration" means:
(A) The number of grams of alcohol per one
hundred (100) milliliters of blood;
(B) The number of grams of alcohol per two
hundred ten (210) liters of breath; or
(C) The number of grams of alcohol per
seventy-five (75) milliliters of urine.
(ii) "Controlled substance" includes:
(A) Any drug or substance defined by W.S.
35-7-1002(a)(iv);
(B) Any glue, aerosol or other toxic vapor which
when intentionally inhaled or sniffed results in impairment of
an individual's ability to drive safely;
(C) Any drug or psychoactive substance, or any
combination of these substances, capable of impairing a person's
physical or mental faculties.
(iii) "Conviction" means as defined in W.S.
31-7-102(a)(xi);
(iv) "Driver's license" means as defined in W.S.
31-7-102(a)(xxv) and includes nonresident operating privileges
as defined in W.S. 31-7-102(a)(xxx);
(v) "Other law prohibiting driving while under the
influence" means a statute of another state, the United States
or a territory or district of the United States or an ordinance
of a governmental entity of this or another state or of an
Indian tribe which prohibits driving while under the influence
of intoxicating liquor, alcohol, controlled substances or drugs;
(vi) "Child passenger" means a person traveling in a
vehicle who is under sixteen (16) years of age;
(vii) "Alcohol" means any substance or substances
containing any form of alcohol;
(viii) "Chemical test" means a test which analyzes an
individual's breath, blood, urine, saliva or other bodily fluids
or tissues for evidence of drug or alcohol use.
(b) No person shall drive or have actual physical control
of any vehicle within this state if the person:
(i) Has an alcohol concentration of eight one-
hundredths of one percent (0.08%) or more;
(ii) Has an alcohol concentration of eight one-
hundredths of one percent (0.08%) or more, as measured within
two (2) hours after the time of driving or being in actual
physical control of the vehicle following a lawful arrest
resulting from a valid traffic stop; or
(iii) To a degree which renders him incapable of
safely driving:
(A) Is under the influence of alcohol;
(B) Is under the influence of a controlled
substance; or
(C) Is under the influence of a combination of
any of the elements named in subparagraphs (A) and (B) of this
paragraph.
(c) Upon the trial of any criminal action or proceeding
arising out of acts alleged to have been committed by any person
while driving or being in actual physical control of a vehicle
while under the influence of alcohol, the amount of alcohol in
the person's blood at the time alleged as shown by chemical
analysis of the person's blood, urine, breath, or other bodily
substance shall give rise to the following presumptions:
(i) If there was at that time an alcohol
concentration of five one-hundredths of one percent (0.05%) or
less, it shall be presumed that the person was not under the
influence of alcohol;
(ii) If there was at that time an alcohol
concentration of more than five one-hundredths of one percent
(0.05%) and less than eight one-hundredths of one percent
(0.08%), that fact shall not give rise to any presumption that
the person was or was not under the influence of alcohol, but it
may be considered with other competent evidence in determining
whether the person was under the influence of alcohol to a
degree which renders him incapable of safely driving a motor
vehicle.
(d) Subsection (c) of this section shall not be construed
as limiting the introduction of any other competent evidence
bearing upon the question of whether the person was under the
influence of alcohol, including tests obtained more than two (2)
hours after the alleged violation. The fact that any person
charged with a violation of subsection (b) of this section is or
has been entitled to use the controlled substance under the laws
of this state shall not constitute a defense against any charge
under subsection (b) of this section.
(e) Except as otherwise provided, a person convicted of
violating this section shall be ordered to or shall receive a
substance use disorder assessment conducted by a substance use
disorder provider certified by the department of health pursuant
to W.S. 9-2-2701(c) at or before sentencing. Notwithstanding
any other provision of this subsection, a nonresident may
receive a substance use disorder assessment from a provider
certified by that person's state of residence. The cost of the
substance use disorder assessment shall be assessed to and paid
by the offender. Except as otherwise provided in this
subsection or subsection (h) or (m) of this section, a person
convicted of violating this section is guilty of a misdemeanor
punishable by imprisonment for not more than six (6) months, a
fine of not more than seven hundred fifty dollars ($750.00), or
both. On a second offense resulting in a conviction within ten
(10) years after a conviction for a violation of this section or
other law prohibiting driving while under the influence, he
shall be punished by imprisonment for not less than seven (7)
days nor more than six (6) months, he shall be ordered to or
shall receive a substance use disorder assessment conducted by a
substance use disorder provider certified by the department of
health pursuant to W.S. 9-2-2701(c) before sentencing and shall
not be eligible for probation or suspension of sentence or
release on any other basis until he has served at least seven
(7) days in jail. In addition, the person may be fined not less
than two hundred dollars ($200.00) nor more than seven hundred
fifty dollars ($750.00). On a third offense resulting in a
conviction within ten (10) years after a conviction for a
violation of this section or other law prohibiting driving while
under the influence, he shall be punished by imprisonment for
not less than thirty (30) days nor more than six (6) months,
shall receive a substance use disorder assessment pursuant to
W.S. 7-13-1302 and shall not be eligible for probation or
suspension of sentence or release on any other basis until he
has served at least thirty (30) days in jail except that the
court shall consider the substance use disorder assessment and
may order the person to undergo outpatient alcohol or substance
use disorder treatment during any mandatory period of
incarceration. The minimum period of imprisonment for a third
violation shall be mandatory, but the court, having considered
the substance use disorder assessment and the availability of
public and private resources, may suspend up to fifteen (15)
days of the mandatory period of imprisonment if, subsequent to
the date of the current violation, the offender completes an
inpatient treatment program approved by the court. In addition,
the person may be fined not less than seven hundred fifty
dollars ($750.00) nor more than three thousand dollars
($3,000.00). The judge may suspend part or all of the
discretionary portion of an imprisonment sentence under this
subsection and place the defendant on probation on condition
that the defendant pursues and completes an alcohol education or
treatment program as prescribed by the judge. Notwithstanding
any other provision of law, the term of probation imposed by a
judge under this section may exceed the maximum term of
imprisonment established for the offense under this subsection
provided the term of probation together with any extension
thereof, shall not exceed three (3) years for up to and
including a third conviction. On a fourth offense resulting in a
conviction or subsequent conviction within ten (10) years for a
violation of this section or other law prohibiting driving while
under the influence, he shall be guilty of a felony and fined
not more than ten thousand dollars ($10,000.00), punished by
imprisonment for not more than seven (7) years, or both.
(f) Any person convicted under this section or other law
prohibiting driving while under the influence as defined in W.S.
31-5-233(a)(v), or whose prosecution under this section is
deferred under W.S. 7-13-301, shall, in addition to the penalty
imposed:
(i) Have his driver's license suspended or revoked
pursuant to W.S. 31-7-127 or 31-7-128. The court shall forward
to the department a copy of the record pertaining to disposition
of the arrest or citation;
(ii) Except as provided in subsection (n) of this
section, for a first conviction, or for a prosecution deferred
under W.S. 7-13-301, where the department's administrative
action indicates the person had an alcohol concentration of
fifteen one-hundredths of one percent (0.15%) or more, operate
only vehicles equipped with an ignition interlock device,
pursuant to W.S. 31-7-401 through 31-7-404, for a period of six
(6) months. For purposes of this paragraph, the department's
administrative action shall be deemed to indicate a person had
an alcohol concentration of fifteen one-hundredths of one
percent (0.15%) or more only after the person is notified of and
given the opportunity to pursue the administrative procedures
provided by W.S. 31-7-105;
(iii) Except as provided in subsection (n) of this
section, for a second conviction, operate only vehicles equipped
with an ignition interlock device, pursuant to W.S. 31-7-401
through 31-7-404, for a period of one (1) year;
(iv) Except as provided in subsection (n) of this
section, for a third conviction, operate only vehicles equipped
with an ignition interlock device, pursuant to W.S. 31-7-401
through 31-7-404, for a period of two (2) years;
(v) For a fourth or subsequent conviction, operate
only vehicles equipped with an ignition interlock device,
pursuant to W.S. 31-7-401 through 31-7-404, for the remainder of
the offender's life, except five (5) years from the date of
conviction and every five (5) years thereafter, the offender may
apply to the court for removal of the ignition interlock device
required by this paragraph. The court may, for good cause
shown, remove the ignition interlock device requirement if the
offender has not been subsequently convicted of driving a motor
vehicle in violation of this section or other law prohibiting
driving while under the influence as defined in W.S.
31-5-233(a)(v).
(g) The court may, upon pronouncement of any jail sentence
under subsection (e) of this section, provide in the sentence
that the defendant may be permitted, if he is employed or
enrolled in school and can continue his employment or education,
to continue such employment or education for not more than the
time necessary as certified by his employer or school
administrator, 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 or education and a reasonable time to travel
to and from his place of employment or school. Unless the
defendant is indigent, the court shall require him as a
condition of special treatment under this subsection to pay a
reasonable amount for room and board as determined by the
sheriff.
(h) As used in this subsection, "serious bodily injury"
means as defined in W.S. 6-1-104(a)(x). Whoever causes serious
bodily injury to another person resulting from the violation of
this section shall be punished upon conviction as follows:
(i) If not subject to the penalty under paragraph
(ii) of this subsection, by a fine of not less than two thousand
dollars ($2,000.00) nor more than five thousand dollars
($5,000.00), imprisonment for not more than ten (10) years, or
both;
(ii) If previously convicted and sentenced under this
subsection, or any other law substantially conforming to the
provisions of this subsection, by imprisonment for not more than
twenty (20) years; and
(iii) Any person convicted under this subsection
shall have his driver's license revoked as provided in W.S.