Chapter 65 Driving While Intoxicated

Subchapter 1 — General Provisions

5-65-101. Omnibus DWI Act — Application.

   This act shall be known as the “Omnibus DWI Act”.        


History..Acts 1983, No. 549, § 1; A.S.A. 1947, § 75-2501; 2007, No. 214, § 1.

5-65-102. Definitions.

   As used in this act:        

         (1)

               (A) “Controlled substance” means a drug, substance, or immediate precursor in Schedules I through VI.                    

               (B) The fact that any person charged with a violation of this act is or has been entitled to use that drug or controlled substance under the laws of this state does not constitute a defense against any charge of violating this act;                    

         (2) “Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination of alcohol, a controlled substance, or an intoxicant, to such a degree that the driver's reactions, motor skills, andjudgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians;              

         (3) “Sworn report” means a signed and written statement of a certified law enforcement officer, under penalty of perjury, on a form provided by the Director of the Department of Finance and Administration; and              

         (4) “Victim impact statement” means a voluntary written or oral statement of a victim, or relative of a victim, who has sustained serious injury due to a violation of this act.              


History..Acts 1983, No. 549, § 2; A.S.A. 1947, § 75-2502; Acts 1987, No. 765, § 1; 1997, No. 1325, § 1.

5-65-103. Unlawful acts.

   (a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.        

   (b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person's breath or blood was eight-hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in § 5-65-204.        


History..Acts 1983, No. 549, § 3; A.S.A. 1947, § 75-2503; Acts 2001, No. 561, § 2.

5-65-104. Seizure, suspension, and revocation of license — Temporary permits — Ignition interlock restricted license.

   (a)

         (1) At the time of arrest for operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more in the person's breath or blood, as provided in § 5-65-103, the arrested person shall immediately surrender his or her license, permit, or other evidence of driving privilege to the arresting law enforcement officer as provided in § 5-65-402.              

         (2) The Office of Driver Services or its designated official shall suspend or revoke the driving privilege of an arrested person or shall suspend any nonresident driving privilege of an arrested person, as provided in § 5-65-402. The suspension or revocation shall be based on the number of previous offenses as follows:              

               (A) Suspension for:                    

                     (i)

                           (a) Six (6) months for the first offense of operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of at least eight hundredths (0.08) by weight of alcohol in the person's blood or breath, § 5-65-103.                                

                           (b) If the Office of Driver Services allows the issuance of an ignition interlock restricted license under §  5-65-118, the ignition interlock restricted license shall be available immediately.                                

                           (c) The restricted driving permit under §  5-65-120 is not allowed for a suspension under this subdivision (a)(2)(A)(i); and                                

                     (ii)

                           (a) Suspension for six (6) months for the first offense of operating or being in actual physical control of a motor vehicle while intoxicated by the ingestion of or by the use of a controlled substance.                                

                           (b) The ignition interlock restricted license provision of § 5-65-118 does not apply to a suspension under subdivision (a)(2)(A)(ii)(a) of this section;                                

               (B)

                     (i) Suspension for twenty-four (24) months for a second offense of operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more by weight of alcohol in the person's blood or breath, § 5-65-103, within five (5) years of the first offense.                          

                     (ii) However, if the office allows the issuance of an ignition interlock restricted license under § 5-65-118, the suspension period for which no restricted license is available is a minimum of forty-five (45) days, followed by restricted driving privileges to allow driving in any and all of the following situations:                          

                           (a) To and from his or her employment;                                

                           (b) To and from an educational institution for the purpose of attending class at the educational institution;                                

                           (c) To and from an alcohol safety education and treatment course for drunk drivers; or                                

                           (d) To and from an ignition interlock service.                                

                     (iii) The ignition interlock restricted license provision of § 5-65-118 does not apply to the suspension under subdivisions (a)(2)(B)(i) and (ii) of this section if the person is arrested for an offense of operating or being in actual physical control of a motor vehicle while intoxicated by the ingestion of or by the use of a controlled substance;                          

               (C)

                     (i) Suspension for thirty (30) months for the third offense of operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more by weight of alcohol in the person's blood or breath, § 5-65-103, within five (5) years of the first offense.                          

                     (ii) However, if the office allows the issuance of an ignition interlock restricted license under § 5-65-118, the suspension period for which no restricted license is available is a minimum of forty-five (45) days, followed by restricted driving privileges to allow driving in any and all of the following situations:                          

                           (a) To and from his or her employment;                                

                           (b) To and from an educational institution for the purpose of attending class at the education institution;                                

                           (c) To and from an alcohol safety education and treatment course for drunk drivers; or                                

                           (d) To and from an ignition interlock service.                                

                     (iii) The ignition interlock restricted license provision of § 5-65-118 does not apply to the suspension under subdivisions (a)(2)(C)(i) and (ii) if the person is arrested for an offense of operating or being in actual physical control of a motor vehicle while intoxicated by the ingestion of or by the use of a controlled substance; and                          

               (D) Revocation for four (4) years, during which no restricted permits may be issued, for the fourth or subsequent offense of operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more by weight of alcohol in the person's blood or breath, § 5-65-103, within five (5) years of the first offense.                    

         (3) If a person is a resident who is convicted of driving without a license or permit to operate a motor vehicle and the underlying basis for the suspension, revocation, or restriction of the license was for a violation of § 5-65-103, in addition to any other penalties provided for under law, the office may restrict the offender to only an ignition interlock restricted license for a period of one (1) year prior to the reinstatement or reissuance of a license or permit after the person would otherwise be eligible for reinstatement or reissuance of the person's license.              

         (4) In order to determine the number of previous offenses to consider when suspending or revoking the arrested person's driving privileges, the office shall consider as a previous offense any of the following that occurred within the five (5) years immediately before the current offense:              

               (A) Any conviction for an offense of operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more in the person's breath or blood, including a violation of §  5-10-105(a)(1)(A) or (B), that occurred:                    

                     (i) In Arkansas; or                          

                     (ii) In another state;                          

               (B) Any suspension or revocation of driving privileges for an arrest for operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more in the person's breath or blood under § 5-65-103 when the person was not subsequently acquitted of the criminal charges; or                    

               (C) Any conviction under § 5-76-102 for an offense of operating a motorboat on the waters of this state while intoxicated or while there was an alcohol concentration in the person's breath or blood of eight hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in § 5-65-204 or refusing to submit to a chemical test under § 5-76-104 occurring on or after July 31, 2007, when the person was not subsequently acquitted of the criminal charges.                    

   (b)

         (1)

               (A) Any person whose license is suspended or revoked pursuant to this section is required to complete an alcohol education program or an alcohol treatment program as approved by the Office of Alcohol and Drug Abuse Prevention unless the charges are dismissed or the person is acquitted of the charges upon which the suspension or revocation is based.                    

               (B) If during the period of suspension or revocation under subdivision (b)(1)(A) of this section the person commits an additional violation of § 5-65-103, he or she is also required to complete an approved alcohol education program or alcohol treatment program for each additional violation, unless:                    

                     (i) The additional charges are dismissed; or                          

                     (ii) He or she is acquitted of the additional charges.                          

         (2) A person whose license is suspended or revoked pursuant to this section shall furnish proof of attendance at and completion of the alcohol education program or the alcohol treatment program required under subdivision (b)(1) of this section before reinstatement of his or her suspended or revoked driver's license or shall furnish proof of dismissal or acquittal of the charge on which the suspension or revocation is based.              

         (3) Even if a person has filed a de novo petition for review pursuant to former subsection (c) of this section, the person is entitled to reinstatement of driving privileges upon complying with this subsection and is not required to postpone reinstatement until the disposition of the de novo review in circuit court has occurred.              


History..Acts 1983, No. 549, § 13; 1985, No. 113, § 1; 1985, No. 1064, § 1; A.S.A. 1947, § 75-2511; Acts 1989, No. 368, § 1; 1989, No. 621, § 1; 1993, No. 736, § 1; 1995, No. 802, § 1; 1997, No. 830, § 1; 1997, No. 1325, § 2; 1999, No. 1077, § 9; 1999, No. 1468, § 1; 1999, No. 1508, § 7; 2001, No. 561, §§ 3-5; No. 1501, § 1; 2003, No. 541, § 1; 2003, No. 1036, § 1; 2003, No. 1462, § 1; 2003, No. 1779, § 1; 2005, No. 1234, § 3; 2005, No. 1768, § 1; 2007, No. 712, § 1; 2007, No. 827, § 75; 2007, No. 1196, § 1; 2009, No. 359, §§ 1—3; 2009, No. 650, § 2; 2009, No. 922, § 1; 2009, No. 1293, § 1.

5-65-105. Operation of motor vehicle during period of license suspension or revocation.

   Any person whose privilege to operate a motor vehicle has been suspended or revoked under a provision of this act who operates a motor vehicle in this state during the period of the suspension or revocation shall be imprisoned for ten (10) days and may be assessed a fine of not more than one thousand dollars ($1,000).        


History..Acts 1983, No. 549, § 14; A.S.A. 1947, § 75-2512; Acts 2001, No. 1715, § 1.

5-65-106. Impoundment of license plate.

   (a) When any law enforcement officer arrests a person for operating a motor vehicle while that person's operator's license or permit has been suspended or revoked under the laws of any state due to the person having previously been found guilty or having pleaded guilty or nolo contendere to violating § 5-65-103, and if the motor vehicle operated by the person is owned in whole or part by the person, the motor vehicle license plate shall be impounded by the law enforcement officer for no less than ninety (90) days.        

   (b) If the court determines it is in the best interest of dependents of the offender, the court shall instruct the Director of the Department of Finance and Administration to issue a temporary substitute license plate to that vehicle, and the license plate shall indicate that the original plate has been impounded.        


History..Acts 1983, No. 549, § 15; A.S.A. 1947, § 75-2513.

5-65-107. Persons arrested to be tried on charges — No charges reduced — Filing citations.

   (a) A person arrested for violating § 5-65-103 shall be tried on those charges or plead to those charges, and no such charges shall be reduced.        

   (b) Furthermore, when a law enforcement officer issues a citation for violating § 5-65-103, the citation shall be filed with the court as soon as possible.        


History..Acts 1983, No. 549, § 8; A.S.A. 1947, § 75-2508.

5-65-108. No probation prior to adjudication of guilt.

   (a) Section 16-93-301 et seq., allows a circuit court judge, district court judge, or city court judge to place on probation a first offender who pleads guilty or nolo contendere prior to an adjudication of guilt.        

   (b) Upon successful completion of the probation terms, the circuit court judge, district court judge, or city court judge is allowed to discharge the accused without a court adjudication of guilt and expunge the record.        

   (c)

         (1) No circuit court judge, district court judge, or city court judge may utilize the provisions of § 16-93-301 et seq. in an instance in which the defendant is charged with violating § 5-65-103.              

         (2) Notwithstanding the provisions of § 5-4-301, § 5-4-322, or subdivision (c)(1) of this section, in addition to the mandatory penalties required for a violation of § 5-65-103, a circuit court judge, district court judge, or city court judge may utilize probationary supervision solely for the purpose of monitoring compliance with his or her orders and require an offender to pay a reasonable fee in an amount to be established by the circuit court judge, district court judge, or city court judge.              


History..Acts 1983, No. 549, § 9; A.S.A. 1947, § 75-2509; Acts 2005, No. 1768, § 2; 2007, No. 827, § 76.

5-65-109. Presentencing report.

   (a) The court shall immediately request and the Office of Alcohol and Drug Abuse Prevention or its designee shall provide a presentence screening and assessment report of the defendant upon a plea of guilty or nolo contendere to or a finding of guilt of violating § 5-65-103 or § 5-65-303.        

   (b)

         (1) The presentence report shall be provided within thirty (30) days of the request, and the court shall not pronounce sentence until receipt of the presentence report.              

         (2)

               (A) After entry of a plea of guilty or nolo contendere or a finding of guilt and if the sentencing of the defendant is delayed by the defendant, the clerk of the court shall notify the defendant by first class mail sent to the defendant's last known address that the defendant has fifteen (15) days to appear and show cause for failing to appear for sentencing.                    

               (B) After expiration of the fifteen (15) days, the court may proceed with sentencing even in the absence of the defendant.                    

   (c) The report shall include, but not be limited to, the defendant's driving record, an alcohol problem assessment, and a victim impact statement when applicable.        


History..Acts 1983, No. 549, § 6; A.S.A. 1947, § 75-2506; Acts 1991, No. 899, § 1; 1999, No. 1077, § 10; 2003, No. 129, § 1; 2007, No. 251, § 1; 2007, No. 827, § 77.

5-65-110. Record of violations and court actions — Abstract.

   (a) Any magistrate or judge of a court shall keep or cause to be kept a record of any violation of this act presented to that court and shall keep a record of any official action by that court in reference to the violation including, but not limited to, a record of every finding of guilt, plea of guilty or nolo contendere, judgment of acquittal, and the amount of fine and jail sentence.        

   (b) Within thirty (30) days after sentencing a person who has been found guilty or pleaded guilty or nolo contendere on a charge of violating any provision of this act, the magistrate of the court or clerk of the court shall prepare and immediately forward to the Office of Driver Services an abstract of the record of the court covering the case in which the person was found guilty or pleaded guilty or nolo contendere, and the abstract shall be certified by the person so required to prepare it to be true and correct.        

   (c) The abstract shall be made upon a form furnished by the office and shall include:        

         (1) The name and address of the party charged;              

         (2) The number, if any, of the operator's or chauffeur's license of the party charged;              

         (3) The registration number of the vehicle involved;              

         (4) The date of hearing;              

         (5) The plea;              

         (6) The judgment; and              

         (7) The amount of the fine and jail sentence, as the case may be.              


History..Acts 1983, No. 549, § 10; A.S.A. 1947, § 75-2510.

5-65-111. Prison terms — Exception.

   (a)

         (1)

               (A) Any person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-103, for a first offense, may be imprisoned for no less than twenty-four (24) hours and no more than one (1) year.                    

               (B) However, the court may order public service in lieu of jail, and in that instance, the court shall include the reasons for the order of public service in lieu of jail in the court's written order or judgment.                    

         (2)

               (A) However, if a passenger under sixteen (16) years of age was in the vehicle at the time of the offense, a person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-103, for a first offense, may be imprisoned for no fewer than seven (7) days and no more than one (1) year.                    

               (B) However, the court may order public service in lieu of jail, and in that instance, the court shall include the reasons for the order of public service in lieu of jail in the court's written order or judgment.                    

   (b) Any person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-103 or any other equivalent penal law of another state or foreign jurisdiction shall be imprisoned or shall be ordered to perform public service in lieu of jail as follows:        

         (1)

               (A) For no fewer than seven (7) days but no more than one (1) year for the second offense occurring within five (5) years of the first offense or no fewer than thirty (30) days of community service.                    

               (B)

                     (i) However, if a person under sixteen (16) years of age was in the vehicle at the time of the offense, for no fewer than thirty (30) days but no more than one (1) year for the second offense occurring within five (5) years of the first offense or no fewer than sixty (60) days of community service.                          

                     (ii) If the court orders community service, the court shall clearly set forth in written findings the reasons for the order of community service;                          

         (2)

               (A) For no fewer than ninety (90) days but no more than one (1) year for the third offense occurring within five (5) years of the first offense or no fewer than ninety (90) days of community service.                    

               (B)

                     (i) However, if a person under sixteen (16) years of age was in the vehicle at the time of the offense, for no fewer than one hundred twenty days (120) days but no more than one (1) year for the third offense occurring within five (5) years of the first offense or no fewer than one hundred twenty (120) days of community service.                          

                     (ii) If the court orders community service, the court shall clearly set forth in written findings the reasons for the order of community service;                          

         (3)

               (A) For at least one (1) year but no more than six (6) years for the fourth offense occurring within five (5) years of the first offense or not less than one (1) year of community service and is guilty of a felony.                    

               (B)

                     (i) However, if a person under sixteen (16) years of age was in the vehicle at the time of the offense, for at least two (2) years but no more than six (6) years for the fourth offense occurring within five (5) years of the first offense or not less than two (2) years of community service and is guilty of a felony.                          

                     (ii) If the court orders community service, the court shall clearly set forth in written findings the reasons for the order of community service; and                          

         (4)

               (A)

                     (i) For at least two (2) years but no more than ten (10) years for the fifth or subsequent offense occurring within five (5) years of the first offense or not less than two (2) years of community service and is guilty of a felony.                          

                     (ii) If the court orders community service, the court shall clearly set forth in written findings the reasons for the order of community service.                          

               (B)

                     (i) However, if a person under sixteen (16) years of age was in the vehicle at the time of the offense, for at least three (3) years but no more than ten (10) years for the fifth offense occurring within five (5) years of the first offense or not less than three (3) years of community service and is guilty of a felony.                          

                     (ii) If the court orders community service, the court shall clearly set forth in written findings the reasons for the order of community service.                          

   (c) For any arrest or offense occurring before July 30, 1999, but that has not reached a final disposition as to judgment in court, the offense shall be decided under the law in effect at the time the offense occurred, and any defendant is subject to the penalty provisions in effect at that time and not under the provisions of this section.        

   (d) It is an affirmative defense to prosecution under subdivisions (a)(2), (b)(1)(B), (b)(2)(B), (b)(3)(B), and (b)(4)(B) of this section that the person operating or in actual physical control of the motor vehicle was not more than two (2) years older than the passenger.        

   (e) A prior conviction for § 5-10-105(a)(1)(A) or (B) is considered a previous offense for purposes of subsection (b) of this section.        


History..Acts 1983, No. 549, § 4; A.S.A. 1947, § 75-2504; Acts 1997, No. 1236, § 1; 1999, No. 1077, § 11; 2001, No. 1206, § 1; 2003, No. 1461, §§ 1, 2; 2009, No. 650, § 3.

5-65-112. Fines.

   Any person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-103 shall be fined:        

         (1) No less than one hundred fifty dollars ($150) and no more than one thousand dollars ($1,000) for the first offense;              

         (2) No less than four hundred dollars ($400) and no more than three thousand dollars ($3,000) for the second offense occurring within five (5) years of the first offense; and              

         (3) No less than nine hundred dollars ($900) and no more than five thousand dollars ($5,000) for the third or subsequent offense occurring within five (5) years of the first offense.              


History..Acts 1983, No. 549, § 5; A.S.A. 1947, § 75-2505; Acts 1993, No. 106, § 1; 1999, No. 1077, § 12.

5-65-113. [Repealed.]



5-65-114. Inability to pay — Alternative public service work.

   If it is determined that any individual against whom fines, fees, or court costs are levied for driving while intoxicated or driving while impaired is financially unable to pay the fines, fees, or costs, the court levying the fines, fees, or costs shall order the individual to perform public service work of such type and for such duration as deemed appropriate by the court.        


History..Acts 1983, No. 918, § 4; A.S.A. 1947, § 75-2533.

5-65-115. Alcohol treatment or education program — Fee.

   (a)

         (1) Any person whose driving privileges are suspended or revoked for violating § 5-65-103, § 5-65-303, § 5-65-310, or § 3-3-203 is required to complete an alcohol education program provided by a contractor with the Office of Alcohol and Drug Abuse Prevention or an alcoholism treatment program licensed by the Office of Alcohol and Drug Abuse Prevention.              

         (2)

               (A) The alcohol education program may collect a program fee of up to one hundred twenty-five dollars ($125) per enrollee to offset program costs.                    

               (B)

                     (i) A person ordered to complete an alcohol education program under this section may be required to pay, in addition to the costs collected for education or treatment, a fee of up to twenty-five dollars ($25.00) to offset the additional costs associated with reporting requirements under this subchapter.                          

                     (ii) The alcohol education program shall report monthly to the Office of Alcohol and Drug Abuse Prevention all revenue derived from this fee.                          

   (b)

         (1) A person whose license is suspended or revoked for violating § 5-65-103 shall:              

               (A) Both:                    

                     (i) Furnish proof of attendance at and completion of the alcoholism treatment program or alcohol education program required under § 5-65-104(b)(1) before reinstatement of his or her suspended or revoked driver's license; and                          

                     (ii) Pay any fee for reinstatement required under § 5-65-119 or § 5-65-304; or                          

               (B) Furnish proof of dismissal or acquittal of the charge on which the suspension or revocation is based.                    

         (2) An application for reinstatement shall be made to the Office of Driver Services.              

   (c) Even if a person has filed a de novo petition for review pursuant to § 5-65-402, the person is entitled to reinstatement of driving privileges upon complying with this section and is not required to postpone reinstatement until the disposition of the de novo review in circuit court has occurred.        

   (d)

         (1) A person suspended under this act may enroll in an alcohol education program prior to disposition of the offense by the circuit court, district court, or city court.              

         (2) However, the person is not entitled to any refund of a fee paid if the charges are dismissed or if the person is acquitted of the charges.              

   (e) Each alcohol education program or alcoholism treatment program shall remit the fees imposed under this section to the Office of Alcohol and Drug Abuse Prevention.        


History..Acts 1983, No. 549, § 7; 1985, No. 108, § 1; A.S.A. 1947, § 75-2507; Acts 1991, No. 486, § 1; 1995, No. 172, § 1; 1995, No. 263, § 1; 1995, No. 1032, § 1; 1995, No. 1256, § 20; 1995 (1st Ex. Sess.), No. 13, § 4; 1999, No. 1077, § 13; 2003, No. 1462, § 2; 2005, No. 1768, § 3; 2007, No. 251, § 2; 2007, No. 827, § 78; 2009, No. 748, § 28.

5-65-116. Denial of driving privileges for minor — Restricted permit.

   (a) As used in this section, “drug offense” means the same as in § 5-64-710.        

   (b)

         (1)

               (A) If a person who is less than eighteen (18) years of age pleads guilty or nolo contendere to or is found guilty of driving while intoxicated under § 5-65-101 et seq., or of any criminal offense involving the illegal possession or use of controlled substances, or of any drug offense, in this state or any other state, or is found by a juvenile court to have committed such an offense, the court having jurisdiction of the matter, including any federal court, shall prepare and transmit to the Department of Finance and Administration an order of denial of driving privileges for the minor.                    

               (B) A court within the State of Arkansas shall prepare and transmit any order under subdivision (b)(1)(A) of this section within twenty-four (24) hours after the plea or finding to the department.                    

               (C) A court outside Arkansas having jurisdiction over any person holding driving privileges issued by the State of Arkansas shall prepare and transmit any order under subdivision (b)(1)(A) of this section pursuant to an agreement or arrangement entered into between that state and the Director of the Department of Finance and Administration.                    

               (D) An arrangement or agreement under subdivision (b)(1)(C) of this section may also provide for the forwarding by the department of an order issued by a court within this state to the state where the person holds driving privileges issued by that state.                    

         (2) For any person holding driving privileges issued by the State of Arkansas, a court within this state in a case of extreme and unusual hardship may provide in an order for the issuance of a restricted driving permit to allow driving to and from a place of employment or driving to and from school.              

   (c) A penalty prescribed in this section or § 27-16-914 is in addition to any other penalty prescribed by law for an offense covered by this section and § 27-16-914.        

   (d) In regard to any offense involving illegal possession under this section, it is a defense if the controlled substance is the property of an adult who owns the vehicle.        


History..Acts 1989 (3rd Ex. Sess.), No. 93, §§ 1, 3, 4; 1993, No. 1257, § 2.

5-65-117. Seizure and sale of motor vehicles.

   (a)

         (1)

               (A) Any person who pleads guilty or nolo contendere or is found guilty of violating § 5-65-103 for a fourth offense occurring within three (3) years of the first offense, at the discretion of the court, may have his or her motor vehicle seized.                    

               (B) If the motor vehicle is seized, the title to the motor vehicle is forfeited to the state.                    

         (2)

               (A) If ordered by the court, it is the duty of the sheriff of the county where the offense occurred to seize the motor vehicle.                    

               (B) The court may issue an order directing the sheriff to sell the motor vehicle seized at a public auction to the highest bidder within thirty (30) days from the date of judgment.                    

   (b)

         (1) The sheriff shall advertise the motor vehicle for sale for a period of two (2) weeks prior to the date of sale by at least one (1) insertion per week in a newspaper having a bona fide circulation in the county.              

         (2) The notice shall include a brief description of the motor vehicle to be sold and the time, place, and terms of the sale.              

   (c) The proceeds of the sale of the seized motor vehicle shall be deposited into the county general fund.        

   (d)

         (1) After the sheriff has made the sale and has turned over the proceeds of the sale to the county treasurer, the sheriff shall report his or her actions to the court in which the defendant was tried.              

         (2) The report required by subdivision (d)(1) of this section shall be filed with the court within sixty (60) days from the date of judgment.              

   (e) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission.        


History..Acts 1989 (3rd Ex. Sess.), No. 94, § 1.

5-65-118. Additional penalties — Ignition interlock devices.

   (a)

         (1)

               (A)

                     (i) In addition to any other penalty authorized for a violation of this chapter, upon an arrest of a person for violating § 5-65-103 for a first or second offense, the Office of Driver Services may restrict the person to operating only a motor vehicle that is equipped with a functioning ignition interlock device.                          

                     (ii) The restriction may continue for a period of up to one (1) year after the person's license is no longer suspended or restricted under the provisions of § 5-65-104.                          

               (B) Upon a finding that a person is financially able to afford an ignition interlock device and upon an arrest for a violation of § 5-65-103 for a third or subsequent offense, the office may restrict the offender to operate only a motor vehicle that is equipped with a functioning ignition interlock device for up to one (1) year after the person's license is no longer suspended or restricted under § 5-65-104.                    

         (2) In accordance with the requirements under the provisions of § 5-65-104, the office may issue an ignition interlock restricted license to the person only after the person has verified installation of a functioning ignition interlock device to the office in any motor vehicle the person intends to operate, except for an exemption allowed under subsection (g) of this section.              

         (3) The office shall establish:              

               (A) A specific calibration setting no lower than two hundredths of one percent (.02%) nor more than five hundredths of one percent (.05%) of alcohol in the person's blood at which the ignition interlock device will prevent the motor vehicle's being started; and                    

               (B) The period of time that the person is subject to the restriction.                    

         (4) As used in this section, “ignition interlock device” means a device that connects a motor vehicle ignition system to a breath-alcohol analyzer and prevents a motor vehicle ignition from starting if a driver's blood alcohol level exceeds the calibration setting on the device.              

   (b) Upon restricting the offender to the use of an ignition interlock device, the office shall:        

         (1)

               (A) State on the record the requirement for and the period of use of the ignition interlock device.                    

               (B) However, if the office restricts the offender to the use of an ignition interlock device in conjunction with the issuance of an ignition interlock restricted license under a provision of § 5-65-104, the period of requirement of use of the ignition interlock device shall be at least the remaining time period of the original suspension imposed under § 5-65-104;                    

         (2) Ensure that the records of the office reflect that the person may not operate a motor vehicle that is not equipped with an ignition interlock device;              

         (3) Attach or imprint a notation on the driver's license of any person restricted under this section stating that the person may operate only a motor vehicle equipped with an ignition interlock device;              

         (4) Require the person restricted under this section to show proof of installation of a certified ignition interlock device prior to the issuance by the office of an ignition interlock restricted license under a provision of § 5-65-104;              

         (5) Require proof of the installation of the ignition interlock device and periodic reporting by the person for verification of the proper operation of the ignition interlock device;              

         (6) Require the person to have the ignition interlock device serviced and monitored at least every sixty-seven (67) days for proper use and accuracy by an entity approved by the Department of Health; and              

         (7)

               (A) Require the person to pay the reasonable cost of leasing or buying and monitoring and maintaining the ignition interlock device.                    

               (B) The office may establish a payment schedule for the reasonable cost of leasing or buying and monitoring and maintaining the ignition interlock device.                    

   (c)

         (1) A person restricted under this section to operate only a motor vehicle that is equipped with an ignition interlock device may not solicit or have another person start or attempt to start a motor vehicle equipped with an ignition interlock device.              

         (2) Except as provided in subsection (g) of this section, a violation of this subsection is a Class A misdemeanor.              

   (d)

         (1) A person may not start or attempt to start a motor vehicle equipped with an ignition interlock device for the purpose of providing an operable motor vehicle to a person who is restricted under this section to operate only a motor vehicle that is equipped with an ignition interlock device.              

         (2) Except as provided in subsection (g) of this section, a violation of this subsection is a Class A misdemeanor.              

   (e)

         (1) A person may not tamper with or in any way attempt to circumvent the operation of an ignition interlock device that has been installed in a motor vehicle.              

         (2) Except as provided in subsection (g) of this section, a violation of this subsection is a Class A misdemeanor.              

   (f)

         (1) A person may not knowingly provide a motor vehicle not equipped with a functioning ignition interlock device to another person who the provider of the vehicle knows or should know was restricted to operate only a motor vehicle equipped with an ignition interlock device.              

         (2) Except as provided in subsection (g) of this section, a violation of this subsection is a Class A misdemeanor.              

   (g)

         (1) Any person found to have violated subsections (c)-(f) of this section is guilty of a Class A misdemeanor.              

         (2) However, the penalty provided in subdivision (g)(1) of this section does not apply if:              

               (A) The starting of a motor vehicle or the request to start a motor vehicle equipped with an ignition interlock device is done for the purpose of safety or mechanical repair of the ignition interlock device or the motor vehicle and the person subject to the restriction does not operate the motor vehicle; or                    

               (B)

                     (i) The court finds that a person is required to operate a motor vehicle in the course and scope of the person's employment and, if the motor vehicle is owned by the employer, that the person may operate that motor vehicle during regular working hours for the purposes of his or her employment without installation of an ignition interlock device if the employer has been notified of the driving privilege restriction and if proof of that notification is with the motor vehicle.                          

                     (ii) However, the employment exemption in subdivision (g)(2)(B)(i) does not apply if the business entity that owns the motor vehicle is owned or controlled by the person who is prohibited from operating a motor vehicle not equipped with an ignition interlock device.                          

   (h) If the person restricted under this section cannot provide proof of installation of a functioning ignition interlock device to the office under subsection (a) of this section, the office shall not issue an ignition interlock restricted license as authorized under this section.        

   (i) In addition to any other penalty authorized under this section, if the office finds that a person has violated a condition under this section related to the proper use, circumvention, or maintenance of an ignition interlock device, the office shall revoke the ignition interlock restricted license and reinstate a license suspension for the term of the original license suspension.        

   (j) Any person whose license was suspended under § 5-65-104 who would otherwise be eligible to obtain an ignition interlock restricted license may petition the office for a hearing and the office or its designated official may issue an ignition interlock restricted license as authorized under the applicable provisions of §§ 5-65-104 and 5-65-205.        

   (k)

         (1) The department shall:              

               (A) Certify the ignition interlock devices for use in this state,                    

               (B) Approve the entities that install and monitor the ignition interlock devices; and                    

               (C) Adopt rules and regulations for the certification of the ignition interlock devices and ignition interlock device installation.                    

         (2) The rules and regulations shall require an ignition interlock device, at a minimum, to:              

               (A) Not impede the safe operation of the motor vehicle;                    

               (B) Minimize the opportunities to be bypassed;                    

               (C) Work accurately and reliably in an unsupervised environment;                    

               (D) Properly and accurately measure the person's blood alcohol levels;                    

               (E) Minimize the inconvenience to a sober user; and                    

               (F) Be manufactured by an entity that is responsible for installation, user training, and servicing and maintenance of the ignition interlock device, and that is capable of providing monitoring reports to the office.                    

         (3) The division shall develop a warning label to be affixed to any ignition interlock device used in the state to warn any person of the possible penalties for tampering with or attempting to circumvent the ignition interlock device.              

         (4) The division shall:              

               (A) Publish and update a list of certified ignition interlock device manufacturers and approved ignition interlock device installers; and                    

               (B) Periodically provide the list required by subdivision (k)(4)(A) of this section to the office.                    


History..Acts 1993, No. 298, § 1; 1995, No. 1296, § 8; 1999, No. 1468, § 2; 2001, No. 1206, § 2; 2001, No. 1501, § 2; 2005, No. 1234, § 2; 2007, No. 827, § 79.

5-65-119. Distribution of fee.

   (a) The Office of Driver Services shall charge a fee to be calculated as provided under subsection (b) of this section for reinstating a driving privilege suspended or revoked because of an arrest for operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight-hundredths (0.08) or more in the person's breath or blood, § 5-65-103, or refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance contents of the person's blood or breath, § 5-65-205, and the fee shall be distributed as follows:        

         (1) Seven percent (7%) of the revenues derived from this fee shall be deposited into the State Treasury as special revenues and credited to the Public Health Fund to be used exclusively for the Office of Alcohol Testing of the Division of Health of the Department of Health and Human Services;              

         (2) Thirty-three percent (33%) of the revenues derived from this fee shall be deposited as special revenues into the State Treasury into the Constitutional Officers Fund and the State Central Services Fund as a direct revenue to be used by the Office of Driver Services for use in supporting the administrative driver's licensing revocation and sanctions programs provided for in this subchapter;              

         (3) Ten percent (10%) of the revenues derived from this fee shall be deposited into the State Treasury, and the Treasurer of State shall credit them as general revenues to the various funds in the respective amounts to each and to be used for the purposes as provided in the Revenue Stabilization Law, § 19-5-101 et seq.; and              

         (4) Fifty percent (50%) of the revenues derived from this fee shall be deposited into the State Treasury as special revenues to the credit of the Department of Arkansas State Police Fund.              

   (b)

         (1)

               (A) The reinstatement fee shall be calculated by multiplying one hundred fifty dollars ($150) by each separate occurrence of an offense resulting in an administrative suspension order under § 5-65-103 or § 5-65-205 unless the administrative suspension order has been removed because:                    

                     (i) The person has been found not guilty of the offense by a circuit court or district court; or                          

                     (ii) A de novo review of the administrative suspension order by the Office of Driver Services results in the removal.                          

               (B) The fee under this section is supplemental to and in addition to any fee imposed under § 5-65-304, § 5-65-310, § 27-16-508, or § 27-16-808.                    

         (2) As used in this subsection, “occurrence” means each separate calendar date when an offense or offenses take place.              


History..Acts 1995, No. 802, § 2; 2001, No. 561, § 6; 2003, No. 1001, § 1; 2005, No. 1992, § 1.

5-65-120. Restricted driving permit.

   (a) Following an administrative hearing for suspension or revocation of a driver's license as provided for in § 5-65-402, or upon a request of a person whose privilege to drive has been denied or suspended, the Office of Driver Services or its designated agent may modify the denial or suspension in a case of extreme and unusual hardship by the issuance of a restricted driving permit when, upon a review of the person's driving record for a time period of five (5) years prior to the current denial, revocation, or suspension of driving privilege or a driver's license, at the discretion of the office or its designated agent it is determined that:        

         (1) The person:              

               (A) Is not a multiple traffic law offender; or                    

               (B) Does not present a threat to the general public; and                    

         (2) No other adequate means of transportation exists for the person except to allow driving in any of the following situations:              

               (A) To and from the person's place of employment;                    

               (B) In the course of the person's employment;                    

               (C) To and from an educational institution for the purpose of attending a class if the person is enrolled and regularly attending a class at the institution;                    

               (D) To and from an alcohol education program or alcoholism treatment program for drunk drivers; or                    

               (E) To and from a hospital or clinic for medical treatment or care for an illness, disease, or other medical condition of the person or a family member.                    

   (b) The restricted driving permit shall state the specific times and circumstances under which driving is permitted.        

   (c) The restricted driving permit shall not be granted to any person suspended for a second or subsequent offense of violating § 5-65-103, § 5-65-205, § 5-65-303, or § 5-65-310.        


History..Acts 1995, No. 802, §§ 3, 5; 1997, No. 1325, § 3; 1999, No. 1077, § 14; 2007, No. 827, § 80; 2009, No. 748, § 29; 2009, No. 1293, § 2.

5-65-121. Victim impact panel attendance — Fee.

   (a)

         (1) A person whose driving privileges are suspended or revoked for violating § 5-65-103, § 5-65-205, § 5-65-303, § 5-65-310, or § 3-3-203 shall attend a victim impact panel sponsored by an organization approved by the Office of Alcohol and Drug Abuse Prevention of the Department of Human Services.              

         (2) The organization selected by the office shall be an organization that provides statewide services to victims of drunk driving.              

   (b)

         (1) The organization approved by the office may collect a program fee of ten dollars ($10.00) per enrollee to offset program costs to be remitted to the organization.              

         (2) The organization approved by the office shall provide proof of attendance and completion to the person required to attend the victim impact panel upon completion of the victim impact panel.              


History..Acts 2009, No. 946, § 1.

Subchapter 2 — Chemical Analysis of Body Substances

5-65-201. Rules and regulations.

   The Division of Health of the Department of Health and Human Services may promulgate rules and regulations reasonably necessary to carry out the purposes of this subchapter.        


History..Acts 1969, No. 106, § 2; A.S.A. 1947, § 75-1046.

5-65-202. Implied consent.

   (a) Any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state is deemed to have given consent, subject to the provisions of § 5-65-203, to one (1) or more chemical tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her breath or blood if:        

         (1) The person is arrested for any offense arising out of an act alleged to have been committed while the person was driving while intoxicated or driving while there was an alcohol concentration of eight hundredths (0.08) or more in the person's breath or blood;              

         (2) The person is involved in an accident while operating or in actual physical control of a motor vehicle; or              

         (3) At the time the person is arrested for driving while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has an alcohol concentration of eight hundredths (0.08) or more in the person's breath or blood.              

   (b) Any person who is dead, unconscious, or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn the consent provided by subsection (a) of this section, and one (1) or more chemical tests may be administered subject to the provisions of § 5-65-203.        


History..Acts 1969, No. 106, § 1; 1971, No. 55, § 1; 1971, No. 306, § 1; 1973, No. 127, § 1; 1975, No. 660, § 1; 1983, No. 549, § 11; A.S.A. 1947, § 75-1045; Acts 1987, No. 75, § 1; 1993, No. 132, § 1; 2001, No. 561, § 7; 2009, No. 431, § 1.

5-65-203. Administration.

   (a) One (1) or more chemical tests authorized in § 5-65-202 shall be administered at the direction of a law enforcement officer having reasonable cause to believe the person to have been operating or in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more in the person's breath or blood.        

   (b)

         (1) The law enforcement agency by which the law enforcement officer is employed shall designate which chemical test or chemical tests shall be administered, and the law enforcement agency is responsible for paying any expense incurred in conducting the chemical test or chemical tests.              

         (2) If the person tested requests that additional chemical test or chemical tests be made, as authorized in § 5-65-204(e), the cost of the additional chemical test or chemical tests shall be borne by the person tested, unless the person is found not guilty in which case the arresting law enforcement agency shall reimburse the person for the cost of the additional chemical test or chemical tests.              

         (3) If any person objects to the taking of his or her blood for a chemical test, as authorized in this chapter, the breath or urine of the person may be used to make the chemical analysis.              


History..Acts 1969, No. 106, § 1; 1971, No. 55, § 1; 1971, No. 306, § 1; 1973, No. 127, § 1; 1975, No. 660, § 1; 1983, No. 549, § 11; A.S.A. 1947, § 75-1045; Acts 1987, No. 75, § 1; 2001, No. 561, § 8; 2009, No. 431, § 2.

5-65-204. Validity — Approved methods.

   (a)

         (1) “Alcohol concentration” means either:              

               (A) Grams of alcohol per one hundred milliliters (100 ml) or one hundred cubic centimeters (100 cc) of blood; or                    

               (B) Grams of alcohol per two hundred ten liters (210 l) of breath.                    

         (2) The alcohol concentration of other bodily substances is based upon grams of alcohol per one hundred milliliters (100 ml) or one hundred cubic centimeters (100 cc) of blood, the same being percent weight per volume or percent alcohol concentration.              

   (b)

         (1)

               (A) A chemical analyses made to determine the presence and amount of alcohol of a person's blood, urine, or breath to be considered valid under the provisions of this act shall be performed according to a method approved by the Division of Health of the Department of Health and Human Services or by an individual possessing a valid permit issued by the division for this purpose.                    

               (B) The division may:                    

                     (i) Approve satisfactory techniques or methods for the chemical analysis;                          

                     (ii) Ascertain the qualifications and competence of an individual to conduct the chemical analysis; and                          

                     (iii) Issue a permit that is subject to termination or revocation at the discretion of the division.                          

         (2) However, a method of chemical analysis of a person's blood, urine, or other bodily substance made by the State Crime Laboratory for determining the presence of one (1) or more controlled substances or any intoxicant is exempt from approval by the division or the State Board of Health.              

   (c) To be considered valid under the provisions of this section, a chemical analysis of a person's blood, urine, breath, or other bodily substance for determining the alcohol content of the blood or breath shall be performed according to a method approved by the board.        

   (d)

         (1) When a person submits to a blood test at the request of a law enforcement officer under a provision of this section, blood may be drawn by a physician or a person acting under the direction and supervision of a physician.              

         (2) The limitation in subdivision (d)(1) of this section does not apply to the taking of a breath or urine specimen.              

         (3)

               (A) No person, institution, or office in this state that withdraws blood for the purpose of determining alcohol or controlled substance content of the blood at the request of a law enforcement officer under a provision of this chapter shall be held liable for violating any criminal law of this state in connection with the withdrawing of the blood.                    

               (B) No physician, institution, or person acting under the direction or supervision of a physician shall be held liable in tort for the withdrawal of the blood unless the person is negligent in connection with the withdrawal of the blood or the blood is taken over the objections of the subject.                    

   (e)

         (1) The person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his or her own choice administer a complete chemical test in addition to any chemical test administered at the direction of a law enforcement officer.              

         (2) The law enforcement officer shall advise the person in writing of the right provided in subdivision (e)(1) of this section and that if the person chooses to have an additional chemical test and the person is found not guilty, the arresting law enforcement agency shall reimburse the person for the cost of the additional chemical test.              

         (3) The refusal or failure of a law enforcement officer to advise a person of the right provided in subdivision (e)(1) of this section and to permit and assist the person to obtain a chemical test under subdivision (e)(1) of this section precludes the admission of evidence relating to a chemical test taken at the direction of a law enforcement officer.              

   (f) Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the chemical test shall be made available to the person or to his or her attorney.        


History..Acts 1969, No. 106, §§ 1, 2; 1971, No. 55, § 1; 1971, No. 306, § 1; 1973, No. 127, § 1; 1975, No. 660, § 1; 1983, No. 549, § 11; 1985, No. 169, § 1; A.S.A. 1947, §§ 75-1045, 75-1046; Acts 1989, No. 361, § 1; 2001, No. 561, §§ 9, 10; 2005, No. 886, § 1.

5-65-205. Refusal to submit.

   (a)

         (1) If a person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test designated by the law enforcement agency, as provided in § 5-65-202, no chemical test shall be given, and the person's motor vehicle operator's license shall be seized by the law enforcement officer, and the law enforcement officer shall immediately deliver to the person from whom the motor vehicle operator's license was seized a temporary driving permit, as provided by § 5-65-402.              

         (2) Refusal to submit to a chemical test under this subsection is a strict liability offense and is a violation pursuant to § 5-1-108.              

   (b) The Office of Driver Services shall then proceed to suspend or revoke the driving privilege of the arrested person, as provided in § 5-65-402. The suspension shall be as follows:        

         (1)

               (A)

                     (i) Suspension for one hundred eighty (180) days for the first offense of refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of the person's blood or breath.                          

                     (ii)

                           (a) However, if the office allows the issuance of an ignition interlock restricted license under § 5-65-118, the ignition interlock restricted license shall be available immediately.                                

                           (b) The ignition interlock restricted license provision of § 5-65-118 does not apply to the suspension under subdivision (b)(1)(A)(i) of this section if the person is arrested for an offense of operating or being in actual physical control of a motor vehicle while intoxicated by the ingestion of or by the use of a controlled substance.                                

                     (iii) The restricted driving permit provision of § 5-65-120 does not apply to this suspension.                          

               (B) The office, in addition to any other penalty, shall deny to that person the issuance of an operator's license until that person has been issued an ignition interlock restricted license for a period of six (6) months;                    

         (2) Suspension for two (2) years, during which no restricted permit may be issued, for a second offense of refusing to submit to a chemical test of blood, breath, or urine for the purposes of determining the alcohol or controlled substance content of the person's blood or breath within five (5) years of the first offense;              

         (3) Revocation for three (3) years, during which no restricted permit may be issued, for the third offense of refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of the person's blood within five (5) years of the first offense; and              

         (4) Lifetime revocation, during which no restricted permit may be issued, for the fourth or subsequent offense of refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of the person's blood or breath within five (5) years of the first offense.              

   (c) [Repealed.]        

   (d) In order to determine the number of previous offenses to consider when suspending or revoking the arrested person's driving privileges, the office shall consider as a previous offense any of the following that occurred within the five (5) years immediately before the current offense:        

         (1) Any conviction for an offense of refusing to submit to a chemical test; and              

         (2) Any suspension or revocation of driving privileges for an arrest for refusing to submit to a chemical test when the person was not subsequently acquitted of the criminal charge.              

   (e) In addition to any other penalty provided for in this section:        

         (1) If the person is a resident without a license or permit to operate a motor vehicle in this state, the office shall deny to that person the issuance of a license or permit for a period of six (6) months for a first offense; and              

         (2) For a second or subsequent offense by a resident without a license or permit to operate a motor vehicle, the office shall deny to that person the issuance of a license or permit for a period of one (1) year.              


History..Acts 1969, No. 106, § 1; 1971, No. 55, § 1; 1971, No. 306, § 1; 1973, No. 127, § 1; 1975, No. 660, § 1; 1983, No. 549, § 11; A.S.A. 1947, § 75-1045; Acts 1987, No. 277, § 1; 1995, No. 802, §§ 4, 5; 1999, No. 1077, § 15; 2001, No. 1501, § 3; 2003, No. 1779, § 2; 2005, No. 1234, § 1; 2007, No. 712, § 2; 2009, No. 359, § 4; 2009, No. 633, § 4, 2009, No. 748, § 30.

5-65-206. Evidence in prosecution.

   (a) In any criminal prosecution of a person charged with the offense of driving while intoxicated, the amount of alcohol in the defendant's breath or blood at the time or within four (4) hours of the alleged offense, as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance gives rise to the following:        

         (1) If there was at that time an alcohol concentration of four hundredths (0.04) or less in the defendant's blood, urine, breath, or other bodily substance, it is presumed that the defendant was not under the influence of intoxicating liquor; and              

         (2) If there was at the time an alcohol concentration in excess of four hundredths (0.04) but less than eight hundredths (0.08) by weight of alcohol in the defendant's blood, urine, breath, or other bodily substance, this fact does not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.              

   (b) The provisions in subsection (a) of this section shall not be construed as limiting the introduction of any other relevant evidence bearing upon the question of whether or not the defendant was intoxicated.        

   (c) The chemical analysis referred to in this section shall be made by a method approved by the State Board of Health.        

   (d)

         (1)

               (A) Except as provided in subsection (e) of this section, a record or report of a certification, rule, evidence analysis, or other document pertaining to work performed by the Office of Alcohol Testing of the Department of Health under the authority of this chapter shall be received as competent evidence as to the matters contained in the record or report in a court of this state, subject to the applicable rules of criminal procedure when duly attested to by the Director of the Office of Alcohol Testing of the Department of Health or his or her assistant, in the form of an original signature or by certification of a copy.                    

               (B) A document described in subdivision (d)(1)(A) of this section is self-authenticating.                    

         (2) However, the instrument performing the chemical analysis shall have been duly certified at least one (1) time in the last three (3) months preceding arrest, and the operator of the instrument shall have been properly trained and certified.              

         (3) Nothing in this section is deemed to abrogate a defendant's right to confront the person who performs the calibration test or check on the instrument, the operator of the instrument, or a representative of the office.              

         (4) The testimony of the appropriate analyst or official may be compelled by the issuance of a proper subpoena by the party who wishes to call the appropriate analyst or official given ten (10) days prior to the date of hearing or trial, in which case the record or report is admissible through the analyst or official, who is subject to cross-examination by the defendant or his or her counsel.              

   (e) When a chemical analysis of a defendant's blood, urine, or other bodily substance is made by the State Crime Laboratory for the purpose of ascertaining the presence of one (1) or more controlled substances or any intoxicant, other than alcohol, in any criminal prosecution under § 5-65-103, § 5-65-303, or § 5-10-105, the provisions of § 12-12-313 govern the admissibility of the chemical analysis into evidence rather than the provisions of this section.        


History..Acts 1957, No. 346, § 1; 1961, No. 215, § 1; 1969, No. 17, § 1; 1971, No. 578, § 1; 1983, No. 549, § 12; A.S.A. 1947, § 75-1031.1; Acts 1989, No. 928, § 1; 1999, No. 462, § 1; 2001, No. 561, §§ 11, 12; 2005, No. 886, § 2; 2007, No. 650, § 1; 2009, No. 748, § 31.

5-65-207. Alcohol testing devices.

   (a)

         (1) Any instrument used to determine the alcohol content of the breath for the purpose of determining if the person was operating a motor vehicle while intoxicated or with an alcohol concentration of eight hundredths (0.08) or more shall be so constructed that the analysis is made automatically when a sample of the person's breath is placed in the instrument, and without any adjustment or other action of the person administering the analysis.              

         (2) The instrument shall be so constructed that the alcohol content is shown by visible digital display on the instrument and on an automatic readout.              

   (b) Any breath analysis made by or through the use of an instrument that does not conform to the requirements prescribed in this section is inadmissible in any criminal or civil proceeding.        

   (c)

         (1) The State Board of Health may adopt appropriate rules and regulations to carry out the intent and purposes of this section, and only instruments approved by the board as meeting the requirements of this section and regulations of the board shall be used for making the breath analysis for determining alcohol concentration.              

         (2)

               (A) The Department of Health specifically may limit by its rules the types or models of testing devices that may be approved for use in Arkansas for the purposes set forth in this section.                    

               (B) The approved types or models shall be specified by manufacturer's name and model.                    

   (d) Any law enforcement agency that conducts alcohol testing shall maintain full compliance with this section.        


History..Acts 1985, No. 533, §§ 1-3; A.S.A. 1947, §§ 75-1046.1 — 75-1046.3; Acts 1989, No. 419, § 1; 2001, No. 561, § 13; 2007, No. 827, § 81.

5-65-208. Collisions — Testing required.

   (a)

         (1) When the driver of a motor vehicle is involved in an accident resulting in loss of human life or when there is reason to believe death may result, in addition to a penalty established elsewhere under state law, a chemical test of the driver's blood, breath, or urine shall be administered to the driver, even if fatally injured, to determine the presence of and percentage of concentration of alcohol or the presence of drugs, or both, in the driver's body.              

   (b)

         (1) The law enforcement agency that investigates the collision, the physician in attendance, or any other person designated by state law shall order the chemical test as soon as practicable.              

         (2)

               (A) The medical personnel who conducted the chemical test under subsection (a) of this section of the driver's blood, breath, or urine shall forward the results of the chemical test to the Department of Arkansas State Police, and the department shall establish and maintain the results of the analyses required by subsection (a) of this section in a database.                    

               (B) The information in the database shall reflect the number of fatal motor vehicle accidents in which:                    

                     (i) Alcohol was found to be a factor, with the percentage of alcohol concentration involved;                          

                     (ii) Drugs were found to be a factor, listing the class of drugs so found and their amounts; and                          

                     (iii) Both alcohol and drugs were found to be factors, with the percentage of alcohol concentration involved, and listing the class of drugs so found and their amounts.                          

   (c) The results of the analyses required by this section shall be reported to the department and may be used by state and local officials for statistical purposes that do not reveal the identity of the deceased person or for any law enforcement purpose, including prosecution for the violation of any law.        


History..Acts 1995, No. 711, § 2; 1995, No. 1105, § 2; 2003, No. 950, § 1; 2009, No. 423, § 1.

Subchapter 3 — Underage Driving Under the Influence Law

5-65-301. Title.

   This subchapter may be known and cited as the “Underage Driving Under the Influence Law” or the “Underage DUI Law”.        


History..Acts 1993, No. 863, § 1.

5-65-302. Definitions.

   As used in this subchapter:        

         (1) “Influence” means being controlled or affected by the ingestion of an alcoholic beverage or similar intoxicant, or any combination of an alcoholic beverage or similar intoxicant, to such a degree that the driver's reactions, motor skills, and judgment are altered or diminished, even to the slightest scale, and the underage driver, therefore, due to inexperience and lack of skill, constitutes a danger of physical injury or death to himself or herself and other motorists or pedestrians; and              

         (2) “Underage” means any person who is under twenty-one (21) years of age and therefore may not legally consume alcoholic beverages in Arkansas.              


History..Acts 1993, No. 863, § 2.

5-65-303. Conduct proscribed.

   (a) It is unlawful and punishable as provided in this subchapter for any underage person to operate or be in actual physical control of a motor vehicle while under the influence of an alcoholic beverage or similar intoxicant.        

   (b) It is unlawful and punishable as provided in this subchapter for any underage person to operate or be in actual physical control of a motor vehicle if at that time there was an alcohol concentration of two-hundredths (0.02) but less than eight-hundredths (0.08) in the underage person's breath or blood as determined by a chemical test of the underage person's blood or breath or other bodily substance.        


History..Acts 1993, No. 863, § 3; 2001, No. 561, § 14.

5-65-304. Seizure, suspension, and revocation of license — Temporary permits.

   (a) At the time of arrest for violating § 5-65-303, the arresting law enforcement officer shall seize the motor vehicle operator's license of the underage person arrested and issue to the underage person a temporary driving permit as provided by § 5-65-402.        

   (b)

         (1) The Office of Driver Services shall suspend or revoke the driving privileges of the arrested underage person under the provisions of § 5-65-402 and the arrested underage person shall have the same right to hearing and judicial review as provided under § 5-65-402.              

         (2) The suspension or revocation shall be as follows:              

               (A) Suspension for ninety (90) days for the first offense of violating § 5-65-303;                    

               (B) Suspension for one (1) year for the second offense of violating § 5-65-303; and                    

               (C)

                     (i) Revocation for the third or subsequent offense of violating § 5-65-303 occurring while the person is underage.                          

                     (ii) Revocation is until the underage person reaches twenty-one (21) years of age or for a period of three (3) years, whichever is longer.                          

   (c) In order to determine the number of previous offenses to consider when suspending or revoking the arrested underage person's driving privileges, the office shall consider as a previous offense:        

         (1) Any conviction for violating § 5-65-103 or § 5-65-303; and              

         (2) Any suspension or revocation of driving privileges for an arrest for a violation of § 5-65-103 or § 5-65-303 when the person was not subsequently acquitted of the criminal charge.              

   (d)

         (1)

               (A)

                     (i) The office shall charge a fee to be calculated as provided under subdivision (d)(2)(B) of this section for reinstating a driver's license suspended because of a violation of § 5-65-303 or § 5-65-310.                          

                     (ii) Forty percent (40%) of the revenues derived from this fee shall be deposited into the State Treasury as special revenues and credited to the Public Health Fund to be used exclusively for the Blood Alcohol Program of the Department of Health.                          

               (B) The reinstatement fee is calculated by multiplying twenty-five dollars ($25.00) by each separate occurrence of an offenses resulting in an administrative suspension order under § 5-65-303 unless the administrative suspension order has been removed because:                    

                     (i) The person has been found not guilty of the offense by a circuit court or district court; or                          

                     (ii) A de novo review of the administrative suspension order by the office results in the removal.                          

               (C) The fee under this section is supplemental to and in addition to any fee imposed under § 5-65-119, § 5-65-310, § 27-16-508, or § 27-16-808.                    

         (2) As used in this subsection, “occurrence” means each separate calendar date when an offense or offenses take place.              


History..Acts 1993, No. 863, § 4; 1999, No. 1077, § 16; 2005, No. 1992, § 2; 2007, No. 712, § 3.

5-65-305. Fines.

   (a) Any person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-303 or § 5-65-310 shall be fined:        

         (1) No less than one hundred dollars ($100) and not more than five hundred dollars ($500) for the first offense;              

         (2) No less than two hundred dollars ($200) and not more than one thousand dollars ($1,000) for the second offense occurring underage; and              

         (3) No less than five hundred dollars ($500) and not more than two thousand dollars ($2,000) for the third or subsequent offense occurring underage.              

   (b) For the purpose of determining an underage person's fine under this subchapter, an underage person who has one (1) or more previous convictions or suspensions for a violation of § 5-65-103 or § 5-65-205 is deemed to have a conviction for a violation of this subchapter for each conviction for driving while intoxicated.        


History..Acts 1993, No. 863, § 5; 1999, No. 1077, § 17.

5-65-306. Public service work.

   (a) Any underage person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-303 or § 5-65-310 shall be ordered by the court to perform public service work of the type and for the duration as deemed appropriate by the court.        

   (b) The period of community service shall be for:        

         (1) No less than thirty (30) days for a second offense of violating § 5-65-303; and              

         (2) No less than sixty (60) days for a third or subsequent offense of violating § 5-65-303.              


History..Acts 1993, No. 863, § 6; 1999, No. 1077, § 18.

5-65-307. Alcohol and driving education program.

   (a)

         (1)

               (A) Any person who has his or her driving privileges suspended, revoked, or denied for violating § 3-3-203, § 5-65-310, or § 5-65-303 is required to complete an alcohol and driving education program for underage drivers as prescribed and approved by the Office of Alcohol and Drug Abuse Prevention or an alcoholism treatment program licensed by the Office of Alcohol and Drug Abuse Prevention, or both, in addition to any other penalty provided in this chapter.                    

               (B) If during the period of suspension or revocation in subdivision (a)(1)(A) of this section the underage person commits an additional violation of § 3-3-203 or § 5-65-303, the underage person is also required to complete an approved alcohol and driving education program or alcoholism treatment program for each additional violation.                    

         (2) The Office of Alcohol and Drug Abuse Prevention shall approve only those programs in alcohol and driving education that are targeted at the underage driving group and are intended to intervene and prevent repeat occurrences of driving under the influence or driving while intoxicated.              

         (3)

               (A)

                     (i) The alcohol and driving education program may collect a program fee of up to one hundred twenty-five dollars ($125) per enrollee to offset program costs.                          

                     (ii) An underage person ordered to complete an alcohol and driving education program or an alcoholism treatment program under this section may be required to pay, in addition to the costs collected for the program, a fee of up to twenty-five dollars ($25.00) to offset the additional costs associated with reporting requirements under this subchapter.                          

               (B) An approved alcohol and driving education program shall report monthly to the Office of Alcohol and Drug Abuse Prevention all revenue derived from these fees.                    

   (b) Prior to reinstatement of a driver's license suspended or revoked under this subchapter, the driver shall furnish proof of attendance at and completion of the alcohol and driving education program or alcoholism treatment program required under subdivision (a)(1) of this section.        

   (c) The Office of Alcohol and Drug Abuse Prevention may promulgate rules reasonably necessary to carry out the purposes of this section regarding the approval and monitoring of the alcohol and driving education programs.        

   (d)

         (1)

               (A) A person whose license is suspended or revoked for violating § 5-65-303 or § 5-65-310 shall:                    

                     (i) Both:                          

                           (a) Furnish proof of attendance at and completion of the alcohol and driving education program or alcoholism treatment program required under subdivision (a)(1) of this section and at a victim impact panel as provided in § 5-65-121 before reinstatement of his or her suspended or revoked driver's license; and                                

                           (b) Pay any fee for reinstatement required under § 5-65-119, § 5-65-304, or § 5-65-121; or                                

                     (ii) Furnish proof of dismissal or acquittal of the charge on which the suspension or revocation is based.                          

         (2) Even if a person has filed a de novo petition for review pursuant to § 5-65-402, the person is entitled to reinstatement of driving privileges upon complying with this subsection and is not required to postpone reinstatement until the disposition of the de novo review in circuit court has occurred.              

         (3)

               (A) A person suspended under this subchapter may enroll in an alcohol education program prior to disposition of the offense by the circuit court, district court, or city court, but is not entitled to any refund of fees paid if the charges are dismissed or if the person is acquitted of the charges.                    

               (B) A person who enrolls in an alcohol education program is not entitled to any refund of fees paid if the person is subsequently acquitted.                    

   (e) Any alcohol and driving education program shall remit the fees imposed under this section to the Office of Alcohol and Drug Abuse Prevention.        


History..Acts 1993, No. 863, § 7; 1995, No. 1256, § 20; 1995 (1st Ex. Sess.), No. 13, § 4; 1999, No. 1077, § 19; 2003, No. 1462, § 3; 2005, No. 1768, § 4; 2007, No. 251, § 3; 2009, No. 946, § 2.

5-65-308. No probation prior to adjudication of guilt.

   (a)

         (1) Section 16-93-301 et seq. allows a circuit court judge, district court judge, or city court judge to place on probation a first offender who plead guilty or nolo contendere prior to an adjudication of guilt, and upon successful completion of probation, the circuit court judge, district court judge, or city court judge may discharge the accused without a court adjudication of guilt and expunge the record.              

         (2)

               (A) No circuit court judge, district court judge, or city court judge may utilize the provisions of § 16-93-301 et seq. in an instance in which an underage person is charged with violating § 5-65-303.                    

               (B) Notwithstanding the provisions of § 5-4-301, § 5-4-322, or subdivision (a)(2)(A) of this section, in addition to the mandatory penalties required for a violation of § 5-65-303 a circuit court judge, district court judge, or city court judge may utilize probationary supervision solely for the purpose of monitoring compliance with his or her orders and require an offender to pay a reasonable fee in an amount to be established by the circuit court judge, district court judge, or city court judge.                    

   (b) Any magistrate or judge of a court shall keep or cause to be kept a record of any violation of this subchapter presented to that court and shall keep a record of any official action by that court in reference to the violation of this subchapter, including, but not limited to, a record of any finding of guilt, plea of guilty or nolo contendere, or judgment of acquittal, and the amount of fine and other sentence.        

   (c) Within thirty (30) days after sentencing a person who has been found guilty or pleaded guilty or nolo contendere on a charge of violating any provision of this subchapter, any magistrate of the court or clerk of the court shall prepare and immediately forward to the Office of Driver Services an abstract of the record of the court covering the case in which the person was found guilty or pleaded guilty or nolo contendere, and the abstract shall be certified by the person so required to prepare it to be true and correct.        

   (d) The abstract shall be made upon a form furnished by the office and shall include:        

         (1) The name and address of the party charged;              

         (2) The number, if any, of the driver's license of the party charged;              

         (3) The registration number of the vehicle involved;              

         (4) The date of hearing;              

         (5) The plea;              

         (6) The judgment; and              

         (7) The amount of the fine and other sentence, as the case may be.              


History..Acts 1993, No. 863, § 8; 2005, No. 1768, § 5.

5-65-309. Implied consent.

   (a) Any underage person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state is deemed to have given consent, subject to the provisions of § 5-65-203, to a chemical test of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her breath or blood if:        

         (1) The underage person is arrested for any offense arising out of an act alleged to have been committed while the underage person was driving while under the influence or driving while there was an alcohol concentration of two-hundredths (0.02) but less than eight-hundredths (0.08) in his or her breath or blood;              

         (2) The underage person is involved in an accident while operating or in actual physical control of a motor vehicle; or              

         (3) The underage person is stopped by a law enforcement officer who has reasonable cause to believe that the underage person, while operating or in actual physical control of a motor vehicle, is under the influence or has an alcohol concentration of two-hundredths (0.02) but less than eight-hundredths (0.08) in his or her breath or blood.              

   (b) Any underage person who is dead, unconscious, or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn the consent provided by subsection (a) of this section, and a chemical test may be administered subject to the provisions of § 5-65-203.        


History..Acts 1993, No. 863, § 9; 2001, No. 561, § 15.

5-65-310. Refusal to submit.

   (a)

         (1) If an underage person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test designated by the law enforcement agency, as provided in § 5-65-309, no chemical test shall be given, and the underage person's driver's license shall be seized by the law enforcement officer, and the law enforcement officer shall immediately deliver to the underage person from whom the driver's license was seized a temporary driving permit, as provided by § 5-65-402.              

         (2) Refusal to submit to a chemical test under this subsection is a strict liability offense and is a violation pursuant to § 5-1-108.              

   (b)

         (1) The Office of Driver Services shall suspend or revoke the driving privileges of the arrested underage person under § 5-65-402.              

         (2) The office shall suspend the underage person's driving privileges as follows:              

               (A) Suspension for ninety (90) days for a first offense under this section;                    

               (B) Suspension for one (1) year for a second offense under this section; and                    

               (C)

                     (i) Revocation for the third or subsequent offense occurring while the person is underage.                          

                     (ii) Revocation is until the underage person reaches twenty-one (21) years of age or for a period of three (3) years, whichever is longer.                          

   (c) In order to determine the number of previous offenses to consider when suspending or revoking the arrested underage person's driving privileges, the office shall consider as a previous offense:        

         (1) Any conviction for violating § 5-65-310; and              

         (2) Any suspension or revocation of driving privileges for an arrest for a violation of § 5-65-310 when the person was not subsequently acquitted of the criminal charge.              

   (d) In addition to any other penalty provided for in this section, if the underage person is a resident without a license or permit to operate a motor vehicle in this state:        

         (1) The office shall deny to that underage person the issuance of a license or permit for a period of six (6) months for a first offense; and              

         (2) For a second or subsequent offense by an underage resident without a license or permit to operate a motor vehicle, the office shall deny to that underage person the issuance of a license or permit for a period of one (1) year.              

   (e) When an underage nonresident's privilege to operate a motor vehicle in this state has been suspended, the office shall notify the office of issuance of that underage person's nonresident motor vehicle license of action taken by the office.        

   (f)

         (1)

               (A) The office shall charge a reinstatement fee to be calculated as provided under subdivision (f)(1)(B) of this section for reinstating a driver's license suspended or revoked for a violation of this section.                    

               (B) The reinstatement fee is calculated by multiplying twenty-five dollars ($25.00) by the number of offenses resulting in an administrative suspension order under § 5-65-310 unless the administrative suspension order has been removed because:                    

                     (i) The person has been found not guilty of the offense by a circuit court or district court; or                          

                     (ii) The office has entered an administrative suspension order.                          

               (C) The fee under subdivision (f)(1)(A) of this section is supplemental to and in addition to any fee imposed by § 5-65-119, § 5-65-304, § 27-16-508, or § 27-16-808.                    

         (2) Forty percent (40%) of the revenues derived from the reinstatement fee under this subsection shall be deposited into the State Treasury as special revenues and credited to the Public Health Fund to be used exclusively for the Blood Alcohol Program of the Department of Health.              


History..Acts 1993, No. 863, § 10; 1999, No. 1077, § 20; 2005, No. 1992, § 5; 2007, No. 712, § 4; 2009, No. 633, § 5.

5-65-311. Relationship to other laws.

   (a) A penalty prescribed in this subchapter for underage driving under the influence is in addition to any other penalty prescribed by law for the offense under another law of the State of Arkansas.        

   (b) For the purposes of this subchapter, there is no presumption, as there is found in § 5-65-206, that an underage person is not under the influence of an intoxicating substance, such as alcohol or a similar intoxicant, if the underage person's alcohol concentration is four hundredths (0.04) or less.        

   (c) The following are the same for a chemical test or instrument used for testing breath or blood alcohol concentration under the Omnibus DWI Act, § 5-65-101 et seq:        

         (1) The administration of a chemical test for breath or blood alcohol;              

         (2) The instrument used to administer the chemical test;              

         (3) The procedure used to calibrate and maintain the instrument; and              

         (4) The use of the chemical test results as evidence.              

   (d) If there is evidence of an alcohol concentration of more than four-hundredths (0.04) but less than eight-hundredths (0.08) in an underage person's blood, breath, or other bodily substance, this fact does not preclude the underage person from being prosecuted for driving while intoxicated under the Omnibus DWI Act, § 5-65-101 et seq.        


History..Acts 1993, No. 863, § 11; 2001, No. 561, § 16.

Subchapter 4 — Administrative Driver's License Suspension

5-65-401. Definitions.

   As used in this subchapter:        

         (1) “Disqualification” means a prohibition against driving a commercial motor vehicle;              

         (2) “Immobilization” means revocation or suspension of the registration or license plate of a motor vehicle; and              

         (3) “Sworn report” means a signed and written statement of a certified law enforcement officer, under penalty of perjury, on a form provided by the Director of the Department of Finance and Administration.              


History..Acts 1999, No. 1077, § 21.

5-65-402. Surrender of license or permit to arresting officer.

   (a)

         (1)

               (A) At the time of arrest for violating § 3-3-203(a), § 5-27-503(a)(3), § 5-65-103, § 5-65-205, § 5-65-303, § 5-65-310, § 27-23-114(a)(1), § 27-23-114(a)(2), or § 27-23-114(a)(5), the arrested person shall immediately surrender his or her license, permit, or other evidence of driving privilege to the arresting law enforcement officer.                    

               (B) The arresting law enforcement officer shall seize the license, permit, or other evidence of driving privilege surrendered by the arrested person or found on the arrested person during a search.                    

               (C)

                     (i) If a juvenile, as defined in the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., is arrested for violating § 3-3-203(a) or § 5-27-503(a)(3), the arresting officer shall issue the juvenile a citation to appear for a juvenile intake with a juvenile intake officer.                          

                     (ii) The arresting officer shall forward a copy of the citation and the license, permit, or other evidence of the driving privilege to the juvenile office before the scheduled juvenile intake.                          

                     (iii) Juveniles subject to the jurisdiction of the circuit court under § 9-27-301 et seq. shall not be subject to this section, except as provided in this subdivision (a)(1).                          

         (2)

               (A)

                     (i) If the license, permit, or other evidence of driving privilege seized by the arresting law enforcement officer has not expired and otherwise appears valid to the arresting law enforcement officer, the arresting law enforcement officer shall issue to the arrested person a dated receipt for that license, permit, or other evidence of driving privilege on a form prescribed by the Office of Driver Services.                          

                     (ii) This receipt shall be recognized as a license and authorizes the arrested person to operate a motor vehicle for a period not to exceed thirty (30) days.                          

               (B)

                     (i) The receipt form shall contain and shall constitute a notice of suspension, disqualification, or revocation of driving privileges by the office, effective in thirty (30) days, notice of the right to a hearing within twenty (20) days, and if a hearing is to be requested, as notice that the hearing request is required to be made within seven (7) calendar days of the notice being given.                          

                     (ii) The receipt shall also contain phone numbers and the address of the office and inform the driver of the procedure for requesting a hearing.                          

               (C) If the office is unable to conduct a hearing within the twenty-day period, a temporary permit shall be issued and is valid until the date of the hearing.                    

               (D)

                     (i) The seized license, permit, or other evidence of driving privilege and a copy of the receipt form issued to the arrested person shall be attached to the sworn report of the arresting law enforcement officer and shall be submitted by mail or in person to the office or its designated representative within seven (7) days of the issuance of the receipt.                          

                     (ii) The failure of the arresting law enforcement officer to timely file the sworn report does not affect the authority of the office to suspend, disqualify, or revoke the driving privilege of the arrested person.                          

         (3)

               (A) Any notice from the office required under this subchapter that is not personally delivered shall be sent by certified mail and is deemed to have been delivered on the date when postmarked and shall be sent to the last known address on file with the office.                    

               (B) Refusal of the addressee to accept delivery or attempted delivery of the notice at the address obtained by the arresting law enforcement officer or on file with the office does not constitute nonreceipt of notice.                    

               (C) For any notice that is personally delivered, the person shall be asked to sign a receipt acknowledging he or she received the required notice.                    

         (4)

               (A) The office or its designated official shall suspend, revoke, or disqualify the driving privilege of an arrested person or any nonresident driving privilege of an arrested person when it receives a sworn report from the arresting law enforcement officer that he or she had reasonable grounds to believe the arrested person:                    

                     (i) Was under twenty-one (21) years of age and purchased or was in possession of intoxicating liquor, wine, or beer in violation of § 3-3-203(a);                          

                     (ii) Was under twenty-one (21) years of age and attempted to purchase an alcoholic beverage or use a fraudulent or altered personal identification document for the purpose of purchasing an alcoholic beverage illegally or other material or substance restricted to adult purchase or possession under existing law in violation of § 5-27-503(a)(3); or                          

                     (iii) Had been operating or was in actual physical control of a motor vehicle in violation of § 5-65-103, § 5-65-303, § 27-23-114(a)(1), or § 27-23-114(a)(2) and the sworn report is accompanied by:                          

                           (a) A written chemical test report or a sworn report that the arrested person was operating or in actual physical control of a motor vehicle in violation of § 5-65-103, § 5-65-303, or § 27-23-114; or                                

                           (b) A sworn report that the arrested person refused to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of the arrested person's blood in violation of § 5-65-205, § 5-65-310, or § 27-23-114(a)(5).                                

               (B) The suspension, disqualification, or revocation shall be based as follows:                    

                     (i) The driving privileges of any person violating § 5-65-103 shall be suspended or revoked as provided by § 5-65-104;                          

                     (ii) The driving privileges of any person violating § 5-65-205(a) shall be suspended or revoked as provided by § 5-65-205(b);                          

                     (iii) The driving privileges of any person violating § 5-65-303 shall be suspended or revoked as provided by § 5-65-304(b);                          

                     (iv) The driving privileges of any person violating § 5-65-310(a) shall be suspended or revoked as provided by § 5-65-310(b);                          

                     (v) The driving privileges of any person violating § 27-23-114(a)(1) or § 27-23-114(a)(2) shall be disqualified as provided by § 27-23-112;                          

                     (vi) The driving privileges of any person violating § 27-23-114(a)(5) shall be disqualified as provided by § 27-23-112;                          

                     (vii) The driving privileges of any person violating § 3-3-203(a) shall be suspended, revoked, or disqualified as provided by § 3-3-203(c); and                          

                     (viii) The driving privileges of any person violating § 5-27-503(a)(3) shall be suspended, revoked, or disqualified as provided by § 5-27-503(d).                          

         (5) In addition to any other penalty provided for in this section, if the arrested person is a resident without a license or permit to operate a motor vehicle in this state:              

               (A) The office shall deny to that arrested person the issuance of a license or permit for a period of six (6) months for a first offense; and                    

               (B) For a second or subsequent offense by a resident without a license or permit to operate a motor vehicle, the office shall deny to that arrested person the issuance of a license or permit for a period of one (1) year.                    

         (6)

               (A)

                     (i) If the arrested person is a nonresident, the arrested person's privilege to operate a motor vehicle in Arkansas shall be suspended in the same manner as that of a resident.                          

                     (ii) The office shall notify the office that issued the nonresident's motor vehicle license of the action taken by the office.                          

               (B) When the arrested person is a nonresident without a license or permit to operate a motor vehicle, the office shall notify the office of issuance for that arrested person's state of residence of action taken by the office.                    

         (7)

               (A) Upon the written request of a person whose privilege to drive has been revoked, denied, disqualified, or suspended, or who has received a notice of revocation, suspension, disqualification, or denial by the arresting law enforcement officer, the office shall grant the person an opportunity to be heard if the request is received by the office within seven (7) calendar days after the notice of the revocation, suspension, disqualification, or denial is given in accordance with this section or as otherwise provided in this chapter.                    

               (B) A request described in subdivision (a)(7)(A) of this section does not operate to stay the revocation, suspension, disqualification, or denial by the office until the disposition of the hearing.                    

         (8)

               (A) The hearing shall be before the office or its authorized agent, in the office of the Revenue Division of the Department of Finance and Administration nearest the county where the alleged event occurred for which the person was arrested, unless the office or its authorized agent and the arrested person agree otherwise to the hearing's being held in some other county or that the office or its authorized agent may schedule the hearing or any part of the hearing by telephone and conduct the hearing by telephone conference call.                    

               (B) The hearing shall not be recorded.                    

               (C) At the hearing, the burden of proof is on the state and the decision shall be based on a preponderance of the evidence.                    

               (D) The scope of the hearing shall cover the issues of whether the arresting law enforcement officer had reasonable grounds to believe that the person:                    

                     (i) Had been operating or was in actual physical control of a motor vehicle or commercial motor vehicle while:                          

                           (a) Intoxicated or impaired;                                

                           (b) The person's blood alcohol concentration measured by weight of alcohol in the person's blood was equal to or greater than the blood alcohol concentration prohibited by § 5-65-103(b);                                

                           (c) The blood alcohol concentration of a person under twenty-one (21) years of age was equal to or greater than the blood alcohol concentration prohibited by § 5-65-303; or                                

                           (d) The person's blood alcohol concentration measured by weight of alcohol in the person's blood was equal to or greater than the blood alcohol concentration prohibited by § 27-23-114;                                

                     (ii) Refused to submit to a chemical test of the blood, breath, or urine for the purpose of determining the alcohol or controlled substance contents of the person's blood and whether the person was placed under arrest;                          

                     (iii) Was under twenty-one (21) years of age and purchased or was in possession of any intoxicating liquor, wine, or beer; or                          

                     (iv) Was under twenty-one (21) years of age and attempted to purchase an alcoholic beverage or use a fraudulent or altered personal identification document for the purpose of purchasing an alcoholic beverage illegally or other material or substance restricted to adult purchase or possession under existing law.                          

               (E)

                     (i) The office or its agent at the hearing shall consider any document submitted to the office by the arresting law enforcement agency, document submitted by the arrested person, and the statement of the arrested person.                          

                     (ii) The office shall not have the power to compel the production of documents or the attendance of witnesses.                          

               (F)

                     (i) If the revocation, suspension, disqualification, or denial is based upon a chemical test result indicating that the arrested person was intoxicated or impaired and a sworn report from the arresting law enforcement officer, the scope of the hearing shall also cover the issues as to whether:                          

                           (a) The arrested person was advised that his or her privilege to drive would be revoked, disqualified, suspended, or denied if the chemical test result reflected an alcohol concentration equal to or in excess of the amount by weight of blood provided by law or the presence of other intoxicating substances;                                

                           (b) The breath, blood, or urine specimen was obtained from the arrested person within the established and certified criteria of the Department of Health;                                

                           (c) The chemical testing procedure used was in accordance with existing rules; and                                

                           (d) The chemical test result in fact reflects an alcohol concentration, the presence of other intoxicating substances, or a combination of alcohol concentration or other intoxicating substance.                                

                     (ii) If the revocation, suspension, disqualification, or denial is based upon the refusal of the arrested person to submit to a chemical test as provided in § 5-65-205, § 5-65-310, or § 27-23-114(a)(5), reflected in a sworn report by the arresting law enforcement officer, the scope of the hearing shall also include whether:                          

                           (a) The arrested person refused to submit to the chemical test; and                                

                           (b) The arrested person was informed that his or her privilege to drive would be revoked, disqualified, suspended, or denied if the arrested person refused to submit to the chemical test.                                

   (b) After the hearing, the office or its authorized agent shall order the revocation, suspension, disqualification, or denial to be rescinded or sustained and shall then advise any person whose license is revoked, suspended, or denied that he or she may request a restricted permit as otherwise provided for by this chapter.        

   (c)

         (1)

               (A) A person adversely affected by the hearing disposition order of the office or its authorized agent may file a de novo petition for review within thirty (30) days in the circuit court in the county where the offense took place.                    

               (B) A copy of the decision of the office shall be attached to the petition.                    

         (2)

               (A) The filing of a petition for review does not stay or place in abeyance the decision of the office or its authorized agent.                    

               (B) If the circuit court issues an order staying the decision or placing the decision in abeyance, the circuit court shall transmit a copy of the order to the office in the same manner that convictions and orders relating to driving records are sent to that office.                    

               (C)

                     (i) The circuit court shall hold a final hearing on the de novo review within one hundred twenty (120) days after the date that the order staying the decision or placing the decision in abeyance is entered.                          

                     (ii) The circuit court may conduct the final hearing by telephone conference with the consent of the parties.                          

         (3) An administrative hearing held pursuant to this section is exempt from the Arkansas Administrative Procedure Act, § 25-15-201 et seq.              

         (4)

               (A) On review, the circuit court shall hear the case de novo in order to determine based on a preponderance of the evidence whether a ground exists for revocation, suspension, disqualification, or denial of the person's privilege to drive.                    

               (B) If the results of a chemical test of blood, breath, or urine are used as evidence in the suspension, revocation, or disqualification of the person's privilege to drive, then the provisions of § 5-65-206 shall apply in the circuit court proceeding.                    

   (d)

         (1) Any decision rendered at an administrative hearing held under this section shall have no effect on any criminal case arising from any violation of § 3-3-203(a), § 5-27-503(a)(3), § 5-65-103, § 5-65-205, § 5-65-303, § 5-65-310, § 27-23-114(a)(1), § 27-23-114(a)(2), or § 27-23-114(a)(5).              

         (2) Any decision rendered by a court of law for a criminal case arising from any violation of § 3-3-203(a), § 5-27-503(a)(3), § 5-65-103, § 5-65-205, § 5-65-303, § 5-65-310, § 27-23-114(a)(1), § 27-23-114(a)(2), or § 27-23-114(a)(5) shall affect the administrative suspension, disqualification, or revocation of the driver's license as follows:              

               (A) A plea of guilty or nolo contendere or a finding of guilt by the court has no effect on any administrative hearing held under this section;                    

               (B)

                     (i) An acquittal on the charges or a dismissal of charges serves to reverse the suspension, disqualification, or revocation of the driver's license suspended or revoked under this section.                          

                     (ii) The office shall reinstate the person's driver's license at no cost to the person, and the charges shall not be used to determine the number of previous offenses when administratively suspending, disqualifying, or revoking the driving privilege of any arrested person in the future; and                          

               (C) The office shall convert any initial administrative suspension or revocation of a driver's license for violating § 5-65-103 to a suspension or revocation for violating § 5-65-303, if the person is convicted of violating § 5-65-303 instead of § 5-65-103.                    

   (e) Any person whose privilege to drive has been denied, suspended, disqualified, or revoked shall remain under the denial, suspension, disqualification, or revocation and remain subject to penalties as provided in § 5-65-105 until such time as that person applies for, and is granted by the office, reinstatement of the privilege to drive.        

   (f) The administrative suspension, disqualification, or revocation of a driver's license as provided for by this section is supplementary to and in addition to a suspension, disqualification, or revocation of a driver's license that is ordered by a court of competent jurisdiction for an offense under §§ 5-64-710, 5-65-116, and 27-16-914, or any other traffic or criminal offense in which a suspension, disqualification, or revocation of the driver's license is a penalty for the violation.        

   (g) [Repealed.]        

   (h)

         (1)

               (A) A person whose license is suspended or revoked pursuant to this section shall:                    

                     (i) Both:                          

                           (a) Furnish proof of attendance at and completion of the alcoholism treatment program, alcohol education program, or alcohol and driving education program required by § 5-65-104(b)(1) or § 5-65-307(a)(1) and, if applicable, at a victim impact panel as provided in § 5-65-121 before reinstatement of his or her suspended or revoked driver's license; and                                

                           (b) Pay any fee for reinstatement required under § 5-65-119, § 5-65-304, or, if applicable, § 5-65-121; or                                

                     (ii) Furnish proof of dismissal or acquittal of the charge on which the suspension or revocation is based.                          

               (B) An application for reinstatement shall be made to the office.                    

         (2) Even if a person has filed a de novo petition for review pursuant to subsection (c) of this section, the person is entitled to reinstatement of driving privileges upon complying with this subsection and is not required to postpone reinstatement until the disposition of the de novo review in circuit court has occurred.              

         (3) A person suspended under this section may enroll in an alcohol education program prior to disposition of the offense by the circuit court, district court, or city court, but is not entitled to any refund of a fee paid if the charge is dismissed or if the person is acquitted of the charge.              

   (i) Except as provided in subsection (a) of this section, this section shall not apply to juveniles subject to § 9-27-301 et seq.        


History..Acts 1999, No. 1077, § 21; 2003, No. 541, §§ 2-5; 2005, No. 1535, § 2; 2005, No. 1768, § 6; 2007, No. 922, § 2; 2009, No. 748, § 32; 2009, No. 946, § 3; 2009, No. 956, § 2, 3.

5-65-403. Notice and receipt from arresting officer.

   (a) At the time of arrest for violating § 5-65-103, § 5-65-303, § 27-23-114(a)(1), or § 27-23-114(a)(2), the arresting law enforcement officer shall provide written notice to the arrested person:        

         (1) That if the arrested person's driving privileges have been suspended, disqualified, or revoked for violating § 5-65-103, § 5-65-303, § 27-23-114(a)(1), or § 27-23-114(a)(2) in the previous five (5) years, the registration of any motor vehicle owned by the arrested person is suspended effective in thirty (30) days;              

         (2) Of the right to a hearing within twenty (20) days; and              

         (3) That if a hearing is to be requested the hearing request is required to be made within seven (7) calendar days of the notice being given.              

   (b) The receipt shall also contain phone numbers and the address of the Office of Driver Services and inform the arrested person of the procedure for requesting a hearing.        

   (c) If the office is unable to conduct a hearing within the twenty-day period, a temporary permit shall be issued and is valid until the date of the hearing.        

   (d)

         (1) The seized license, permit, or other evidence of driving privilege and a copy of the receipt form issued to the arrested person shall be attached to the sworn report of the arresting law enforcement officer and shall be submitted by mail or in person to the Director of the Department of Finance and Administration or his or her designated representative within seven (7) days of the issuance of the receipt.              

         (2) The failure of the arresting law enforcement officer to timely file the sworn report does not affect the authority of the office to suspend the registration of any motor vehicle owned by the arrested person.              

   (e) Any notice from the office required under this section that is not personally delivered shall be sent as provided by § 5-65-402.        

   (f)

         (1) If the arrested person is a nonresident, the arrested person's motor vehicle registration in Arkansas shall be suspended in the same manner as that of a resident.              

         (2) The office shall notify the office that issued the nonresident's motor vehicle registration of the action taken by the office.              

   (g) The hearing shall be held by the office at the conclusion of any hearing under § 5-65-402 and the scope of the hearing is limited to:        

         (1) Determining if the arrested person's driving privileges had been suspended, revoked, or disqualified for violation of § 5-65-103, § 5-65-303, § 27-23-114(a)(1), or § 27-23-114(a)(2) in the five (5) years prior to the current offense; and              

         (2) Determining if any motor vehicle is licensed or registered in the arrested person's name as either owner or co-owner of the motor vehicle.              

   (h)

         (1)

               (A) A person adversely affected by the hearing disposition order of the office or its authorized agent may file a de novo petition for review within thirty (30) days in the circuit court in the county where the offense took place.                    

               (B) The filing of a petition for review does not stay or place in abeyance the decision of the office or its authorized agent.                    

         (2) An administrative hearing held pursuant to this section is exempt from the Arkansas Administrative Procedure Act, § 25-15-201 et seq.              

         (3) On review, the circuit court shall hear the case de novo in order to determine whether, based on a preponderance of the evidence, a ground exist for suspension of the person's motor vehicle registration.              

   (i) The suspension ordered shall be equal to the suspension of driving privileges ordered under § 5-65-402 or one (1) year, whichever is longer, but shall not exceed five (5) years.        

   (j)

         (1)

               (A) Upon determination that a person is completely dependent on the motor vehicle for the necessities of life, the Director of the Department of Finance and Administration may grant a restricted registration to a family member or co-owner of any immobilized motor vehicle.                    

               (B) A restricted registration is not valid for use by the person whose driving privileges have been suspended or revoked.                    

         (2) Operation of a motor vehicle in a manner inconsistent with the restricted registration or license plate has the same effect as operating an unlicensed motor vehicle.              

   (k) If the director orders immobilization of a motor vehicle, notice of immobilization shall be sent by first class mail to any persons, other than the arrested person, listed as an owner or co-owner of the immobilized motor vehicle in the records of the Office of Motor Vehicle.        


History..Acts 1999, No. 1077, § 21.