38.02.160 Revocation of Privilege to Drive Motor Vehicle upon Refusal to Submit to Testing

(a) If a person refuses to submit to testing under Section 38.02.100 or this section, none may be given, but the law enforcement officer shall immediately take possession of the person's operator's license if it is then available and shall immediately issue to that person a temporary operator's permit, if the person then has valid operating privileges, extending driving privileges for the next twenty-five days or until earlier terminated by a decision of a hearing officer under Section 38.02.180. The law enforcement officer shall sign and note the date on the temporary operator's permit. The temporary operator's permit serves as the director's official notification to the person of the director's intent to revoke driving privileges in this state and of the hearing procedures under this chapter. The director, upon the receipt of that person's operator's license and a certified written report of the law enforcement officer in the form required by the commissioner, forwarded by the officer within five days after issuing the temporary operator's permit, showing that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while in violation of Section 38.02.080 or equivalent ordinance or, for purposes of Section 38.02.260, had a reason to believe that the person committed a moving traffic violation or was involved in traffic accident as a driver, and in conjunction with the violation or accident the officer has, through the officer's observations, formulated an opinion that the person's body contains alcohol, that the person was lawfully arrested if applicable, and that the person had refused to submit to the test or tests under Section 38.02.100 or 38.0226, shall revoke that person's license or permit to drive and any nonresident operating privilege for the appropriate period under this section, or if the person is a resident without a license or a permit to operate a motor vehicle in this state, the commissioner shall deny to the person the issuance of a license of permit for the appropriate period under the section after the date of the alleged violation, subject to the opportunity for a pre-revocation hearing and post-revocation review as provided in this chapter. In the revocation of the person's operator's license the commissioner shall give credit for time in which the person was without an operator's license after the day of the person's refusal to submit to the test except that the commissioner may not give credit for time in which the person retained driving privileges through a temporary operator's permit issued under this Section 38.02.150. The period of revocation of denial of issuance of a license or permit under this section is:

(1) One year if the person's driving record shows that within the five years preceding the most recent violation of this section, the person's operator's license has not previously been suspended, revoked, or issuance denied for a violation of this chapter or Section 38.02.080 or equivalent ordinance.

(2) Two years if the person's driving record shows that within the five' years preceding the most recent violation of this section, the person's operator's license has been once previously suspended, revoked, or issuance denied for a violation of this chapter or Section 38.02.080 or equivalent ordinance.

(3) Three years if the person's driving record shows that within the five years preceding the most recent violation of this section, the person's operator's license has at least twice previously been suspended, revoked, or issuance denied under this chapter, or for a violation of Section 38.02.080 or equivalent ordinance, or any combination thereof, and the suspensions, revocations, or denials resulted from at least two separate arrests.

(b) A person's driving privileges are not subject to revocation under this section if all of the following criteria are met:

(1) No administrative hearing request is made under Section 38.02.180.

(2) The person mails an affidavit to the director within ten days after the temporary operator's permit is issued. The affidavit must state that the person:

(3) Intends to voluntarily plead guilty to violating Section 38.02.080 or equivalent ordinance within twenty-five days after the temporary operator's permit is issued;

(4) Acknowledges the right to a Section 38.02.180 administrative hearing and Section 38.02.190 judicial review and voluntarily and knowingly waives these rights; and

(5) Agrees that the person's driving privileges must be revoked as provided under this judicial review, if the person does not plead guilty within twenty-five (25) days after the temporary operator's permit is issued or the court does not accept the guilty plea, or the guilty plea is withdrawn.

(6) The person pleads guilty to violating Section 38.02.080 or equivalent ordinance within twenty-five (25) days after the temporary operator's permit is issued;

(7) The court accepts the person's guilty plea and a notice of that fact is mailed to the director within twenty-five days after the temporary operator's permit is issued; and

(8) A copy of the final order or judgment of conviction evidencing the acceptance of the person's guilty plea is received by the director prior to the return or reinstatement of the person's driving privileges.

(c) The court must mail a copy of an order granting a withdrawal of guilty plea to violating Section 38.02.080, or equivalent ordinance, to the director within ten days after it is ordered. Upon receipt of the order, the director shall immediately revoke the person's driving privileges as provided under this section without providing an administrative hearing.