REPORT TITLE:
DUI; ADLR


DESCRIPTION:
Amends driving impaired statutes to consolidate and conform
offenses relating to operating a vehicle while using an
intoxicant.  Makes conforming amendments.  (SD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1212
THE SENATE                              S.B. NO.           S.D. 2
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO USE OF INTOXICANTS.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  House Concurrent Resolution No. 26, H.D. 2, S.D.
 
 2 1, entitled "Requesting the Department of Transportation to
 
 3 Review Hawaii's Impaired Driving Statutes and to Make
 
 4 Recommendations for Uniform Statutory Construction", directed the
 
 5 department of transportation to:  review Hawaii's impaired
 
 6 driving statutes to identify inconsistent statutory provisions,
 
 7 including disparate punishment provisions for similar offenses
 
 8 and provisions conferring a right to jury trial for some impaired
 
 9 driving offenses but not others; and make recommendations and
 
10 draft appropriate legislation to create more uniform and
 
11 consistent impaired driving statutes.  The department of
 
12 transportation solicited input in this effort from the governor's
 
13 highway safety council impaired driving task force (task force).
 
14 The task force is made up of over seventy-five individuals and
 
15 organizations from around the State.  Members include
 
16 representatives from the department of health, police,
 
17 prosecutors, defense bar, judiciary, administrative drivers'
 
18 license revocation office, emergency room physicians, Mothers
 
19 Against Drunk Driving, and others.  The task force's efforts have
 

 
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 1 resulted in proposed legislation that consolidates many
 
 2 provisions and provides for uniform and consistent treatment of
 
 3 impaired driving and boating offenses.
 
 4      It is the intent of the legislature to provide, where
 
 5 appropriate, uniform provisions, rights, and penalties, including
 
 6 immediate license revocation under the administrative revocation
 
 7 of license provisions and the same rights with respect to jury
 
 8 trials, for impaired driving, boating, and "zero tolerance"
 
 9 offenders.  The legislature further intends that individuals who
 
10 are charged under this Act with an offense for operating a
 
11 vehicle, including a vessel underway, under the influence of an
 
12 intoxicant shall not be entitled to a jury trial if the maximum
 
13 term of imprisonment for the offense does not exceed thirty days.
 
14      The legislature has previously taken steps to indicate its
 
15 intent that defendants charged with driving under the influence
 
16 of intoxicating liquor not be entitled to a jury trial.  In Act
 
17 128, Session Laws of Hawaii 1993, the legislature clearly stated
 
18 that the first offense of driving under the influence of
 
19 intoxicating liquor is a "petty offense" in the constitutional
 
20 sense and reduced the maximum possible penalty to ensure that
 
21 defendants charged with a first offense not be entitled to a jury
 
22 trial.  Finding a critical need to take additional steps to
 
23 relieve the then existing first circuit court congestion of
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 driving under the influence of intoxicating liquor cases awaiting
 
 2 jury trial, the legislature again took action in Act 226, Session
 
 3 Laws of Hawaii 1995, to reduce the maximum terms of imprisonment
 
 4 for second and third offenses of driving under the influence of
 
 5 intoxicating liquor.  The maximum term of imprisonment for a
 
 6 second offense was reduced from sixty to fourteen days and for a
 
 7 third offense from one hundred eighty to thirty days to ensure
 
 8 that defendants charged with these offenses are not entitled to
 
 9 jury trials.
 
10      Furthermore, the legislature notes that in State v. Lindsey,
 
11 77 Haw. 162 (1994), the Hawaii supreme court ruled that "if the
 
12 maximum term of imprisonment for a particular offense does not
 
13 exceed thirty days, it is presumptively a petty offense to which
 
14 the right to a jury trial does not attach."  The court further
 
15 stated that the "presumption can be overcome only in
 
16 extraordinary cases when consideration of other ... factors ...
 
17 unequivocally demonstrates that society demands that persons
 
18 charged with the offense at issue be afforded the right to a jury
 
19 trial."  Consequently, the legislature finds and intends that a
 
20 term of imprisonment not to exceed thirty days will not entitle a
 
21 defendant under this Act to a jury trial.
 
22      The legislature also is mindful that the statutory changes
 
23 proposed in this Act will require the judiciary and law
 

 
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 1 enforcement agencies to develop new procedures and forms to
 
 2 ensure compliance.  The legislature believes that an enactment
 
 3 date of July 1, 2000, will provide sufficient time to accommodate
 
 4 these development timetables.
 
 5      Accordingly, the purpose of this Act is to consolidate, for
 
 6 purposes of uniformity and consistency, where appropriate, the
 
 7 provisions relating to operating a vehicle while using an
 
 8 intoxicant.
 
 9      SECTION 2.  The Hawaii Revised Statutes is amended by adding
 
10 a new chapter to be appropriately designated and to read as
 
11 follows:
 
12                             "CHAPTER
 
13           USE OF INTOXICANTS WHILE OPERATING A VEHICLE
 
14                    PART I.  GENERAL PROVISIONS
 
15         -1  Definitions.  As used in this chapter, unless the
 
16 context otherwise requires:
 
17      "Administrative revocation" means termination of the
 
18 respondent's driver's license and the privilege to operate a
 
19 vessel underway on or in the waters of the State pursuant to part
 
20 III, but does not include any revocation imposed under section
 
21    -81.
 
22      "Alcohol" means the product of distillation of any fermented
 
23 liquid, regardless of whether rectified, whatever may be the
 

 
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 1 origin thereof, and includes ethyl alcohol, lower aliphatic
 
 2 alcohol, and phenol as well as synthetic ethyl alcohol, but not
 
 3 denatured or other alcohol that is considered not potable under
 
 4 the customs laws of the United States.
 
 5      "Alcohol concentration" means either grams of alcohol per
 
 6 one hundred milliliters or cubic centimeters of blood or grams of
 
 7 alcohol per two hundred ten liters of breath.
 
 8      "Alcohol enforcement contact" means:  any administrative
 
 9 revocation ordered pursuant to part III; any driver's license
 
10 suspension or revocation or any suspension or revocation of a
 
11 privilege to operate a vessel underway imposed by this or any
 
12 other state or federal jurisdiction for refusing to submit to a
 
13 test for alcohol concentration; or any conviction in this State
 
14 for operating or being in physical control of a vehicle while
 
15 having an unlawful alcohol concentration or while under the
 
16 influence of alcohol; or a conviction in any other state or
 
17 federal jurisdiction for an offense that is comparable to
 
18 operating or being in physical control of a vehicle while having
 
19 an unlawful alcohol concentration or while under the influence of
 
20 alcohol.
 
21      "Arrestee" means a person arrested for violation of
 
22 section    -81 or    -83.
 
23      "Certified substance abuse counselor" means any person
 

 
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 1 certified by the department of health pursuant to section
 
 2 321-193(10), or any other substance abuse specialist or medical
 
 3 practitioner the director of health may appoint to carry out the
 
 4 functions of a certified substance abuse counselor under this
 
 5 chapter.
 
 6      "Director" means the administrative director of the courts
 
 7 or any other person within the judiciary appointed by the
 
 8 director to conduct administrative reviews or hearings or carry
 
 9 out other functions relating to administrative revocation under
 
10 part III.
 
11      "Drug" means any controlled substance, as defined and
 
12 enumerated on schedules I through IV of chapter 329, or its
 
13 metabolites.
 
14      "Drug enforcement contact" means:  any administrative
 
15 revocation ordered pursuant to part III; any driver's license
 
16 suspension or revocation or any suspension or revocation of a
 
17 privilege to operate a vessel underway imposed by this or any
 
18 other state or federal jurisdiction for refusing to submit to a
 
19 test for drug concentration in the person's blood or urine; or
 
20 any conviction in this State for operating or being in physical
 
21 control of a vehicle while having an unlawful drug content in the
 
22 blood or urine or while under the influence of drugs; or a
 
23 conviction in any other state or federal jurisdiction for an
 

 
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 1 offense that is comparable to operating or being in physical
 
 2 control of a vehicle while having an unlawful drug content in the
 
 3 blood or urine or while under the influence of drugs.
 
 4      "Impair" means to weaken, to lessen in power, to diminish,
 
 5 to damage, or to make worse by diminishing in some material
 
 6 respect or otherwise affecting in an injurious manner.
 
 7      "Intoxicant" means any drug, alcohol, or any combination of
 
 8 alcohol or drugs.
 
 9      "Law enforcement officer" means any public servant, whether
 
10 employed by the State, a county, or by the United States, vested
 
11 by law with a duty to maintain public order or to make arrests
 
12 for offenses or to enforce the criminal laws, regardless of
 
13 whether that duty extends to all offenses or is limited to a
 
14 certain class of offense, and includes a conservation and
 
15 resources enforcement officer as defined in section 199-3.
 
16      "License" means any driver's license or any other license or
 
17 permit to operate a motor vehicle issued under, or granted by,
 
18 the laws of this State and includes:
 
19      (1)  Any learner's permit or instruction permit;
 
20      (2)  The privilege of any person to operate a motor vehicle,
 
21           regardless of whether the person holds a valid license;
 
22      (3)  Any nonresident's operating privilege; and
 
23      (4)  The eligibility, including future eligibility, of any
 

 
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 1           person to apply for a license or privilege to operate a
 
 2           motor vehicle.
 
 3      "Measurable amount of alcohol" means a test result equal to
 
 4 or greater than .02 but less than .08 grams of alcohol per one
 
 5 hundred milliliters or cubic centimeters of blood or equal to or
 
 6 greater than .02 but less than .08 grams of alcohol per two
 
 7 hundred ten liters of breath.
 
 8      "Motor vehicle" has the same meaning as in section 286-2,
 
 9 except that it specifically includes a "moped" as defined in
 
10 section 286-2.
 
11      "Nonresident's operating privilege" means the privilege
 
12 conferred by law upon a nonresident to operate a vehicle in this
 
13 State.
 
14      "Notice of administrative revocation" or "notice" means the
 
15 written notice issued to the respondent by a law enforcement
 
16 officer pursuant to section    -33.
 
17      "Operate" means to drive or assume actual physical control
 
18 of a vehicle in the State or to navigate or otherwise use a
 
19 vessel on or in the waters of the State.
 
20      "Operator" means a person who drives or assumes actual
 
21 physical control of a vehicle or a person who operates, or who
 
22 has charge of the navigation or use of, a vessel.
 
23      "Respondent" means a person to whom a notice of
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 administrative revocation has been issued following an arrest for
 
 2 a violation of section    -81 or    -83 or following the
 
 3 collection of a blood or urine sample from the person, pursuant
 
 4 to section    -21, because there was probable cause to believe
 
 5 that the person has violated section    -81.
 
 6      "State" means:  any state or possession of the United
 
 7 States; the District of Columbia; the Commonwealth of Puerto
 
 8 Rico; the United States Virgin Islands; American Samoa; Guam; any
 
 9 province or territory of the Dominion of Canada; and the
 
10 Commonwealth of the Northern Mariana Islands, except when the
 
11 word, in context, clearly refers to the State of Hawaii.
 
12      "Temporary permit" means that portion of the notice of
 
13 administrative revocation that, when completed by a law
 
14 enforcement officer, permits the respondent to operate a vehicle
 
15 for thirty days in the case of an alcohol related offense and
 
16 forty-four days in the case of a drug related offense or until
 
17 such time as the director may establish under part III.
 
18      "Under the influence of an intoxicant" means that a person
 
19 is under the influence of one or more intoxicants to the extent
 
20 that the person's normal faculties or ability to care for the
 
21 person and guard against casualty is impaired.
 
22      "Underway" means that a vessel is not at anchor, made fast
 
23 to the shore, or aground.
 

 
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 1      "Vehicle" includes a:
 
 2      (1)  Motor vehicle as defined in section 286-2;
 
 3      (2)  Moped as defined in section 286-2; and
 
 4      (3)  Vessel.
 
 5      "Vessel" means all description of watercraft, used or
 
 6 capable of being used as a means of transportation on or in the
 
 7 water, except a seaplane.
 
 8      "Waters of the State" means any waters within the
 
 9 jurisdiction of the State, the marginal seas adjacent to the
 
10 State, and the high seas when navigated as part of a journey or
 
11 ride to or from the shore of the State.
 
12         -2 Medical services.  The several county and state
 
13 government physicians shall, or any other qualified person may,
 
14 make whatever tests and analyses as may be requested of them by
 
15 any law enforcement officer in connection with the determination
 
16 of whether or not a person is or was under the influence of an
 
17 intoxicant or has consumed a measurable amount of alcohol for any
 
18 purpose under this chapter.
 
19         -3 Evidence of intoxication.(a)  In any criminal
 
20 prosecution for a violation of section    -81 or in any
 
21 proceeding under part III:
 
22      (1)  .08 or more grams of alcohol per one hundred
 
23           milliliters or cubic centimeters of the defendant's
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           blood;
 
 2      (2)  .08 or more grams of alcohol per two hundred ten liters
 
 3           of the defendant's breath; or
 
 4      (3)  The presence of one or more drugs or any combination of
 
 5           alcohol or drugs that impair the defendant's normal
 
 6           mental faculties or ability to care for the defendant
 
 7           and guard against casualty,
 
 8 within three hours after the time of the alleged violation as
 
 9 shown by chemical analysis or other approved analytical
 
10 techniques of the defendant's blood, breath, or urine shall be
 
11 competent evidence that the defendant was under the influence of
 
12 an intoxicant at the time of the alleged violation.
 
13      (b)  In any criminal prosecution for a violation of section
 
14    -81, the amount of alcohol found in the defendant's blood or
 
15 breath within three hours after the time of the alleged violation
 
16 as shown by chemical analysis or other approved analytical
 
17 techniques of the defendant's blood or breath shall be competent
 
18 evidence that the defendant was under the influence of an
 
19 intoxicant at the time of the alleged violation and shall give
 
20 rise to the following presumptions:
 
21      (1)  If there were .04 or less grams of alcohol per one
 
22           hundred milliliters or cubic centimeters of defendant's
 
23           blood or .04 or less grams of alcohol per two hundred
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           ten liters of defendant's breath, it shall be presumed
 
 2           that the defendant was not under the influence of
 
 3           intoxicating liquor at the time of the alleged
 
 4           violation; and
 
 5      (2)  If there were in excess of .04 grams of alcohol per one
 
 6           hundred milliliters or cubic centimeters of defendant's
 
 7           blood or .04 grams of alcohol per two hundred ten
 
 8           liters of defendant's breath, but less than .08 grams
 
 9           of alcohol per one hundred milliliters or cubic
 
10           centimeters of defendant's blood or .08 grams of
 
11           alcohol per two hundred ten liters of defendant's
 
12           breath, that fact may be considered with other
 
13           competent evidence in determining whether or not the
 
14           defendant was at the time of the alleged violation
 
15           under the influence of intoxicating liquor but shall
 
16           not of itself give rise to any presumption.
 
17      (c)  Nothing in this section shall be construed as limiting
 
18 the introduction, in any criminal proceeding for a violation
 
19 under section    -81 or in any proceeding under part III, of
 
20 relevant evidence of a person's alcohol concentration or drug
 
21 content obtained more than three hours after an alleged
 
22 violation; provided that the evidence is offered in compliance
 
23 with the Hawaii rules of evidence.
 

 
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 1         -4 Convictions and acts prior to July 1, 2000.(a)
 
 2 Any:
 
 3      (1)  Conviction for an offense under section 200-81, 291-4,
 
 4           or 291-7, as those sections were in effect on June 30,
 
 5           2000; or
 
 6      (2)  Conviction in any other state or federal jurisdiction
 
 7           for an offense that is comparable to operating or being
 
 8           in physical control of a vehicle while having either an
 
 9           unlawful alcohol concentration in the blood or an
 
10           unlawful drug content in the blood or urine or while
 
11           under the influence of an intoxicant;
 
12 shall be counted as a prior offense for purposes of section
 
13    -41 or    -81.
 
14      (b)  Any violation of section 291-4.5, as that section was
 
15 in effect on June 30, 2000, shall be counted as a prior violation
 
16 for purposes of section    -41 or    -83.
 
17                     PART II.  IMPLIED CONSENT
 
18         -11  Implied consent of operator of vehicle to submit to
 
19 testing to determine alcohol concentration and drug content.(a)
 
20 Any person who operates a vehicle in the State or on or in the
 
21 waters of the State shall be deemed to have given consent,
 
22 subject to this part, to a test or tests approved by the director
 
23 of health of the person's breath, blood, or urine for the purpose
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 of determining alcohol concentration or drug content of the
 
 2 person's breath, blood, or urine, as applicable.
 
 3      (b)  The test or tests shall be administered at the request
 
 4 of a law enforcement officer having probable cause to believe the
 
 5 person operating or in actual physical control of a vehicle in
 
 6 the State or on or in the waters of the State is under the
 
 7 influence of an intoxicant or is under the age of twenty-one and
 
 8 has consumed a measurable amount of alcohol concentration, only
 
 9 after:
 
10      (1)  A lawful arrest; and
 
11      (2)  The person has been informed by a law enforcement
 
12           officer of the sanctions under part III;
 
13      (c)  If there is probable cause to believe that a person is
 
14 in violation of section    -83, as a result of being under the
 
15 age of twenty-one and having consumed a measurable amount of
 
16 alcohol, or section    -81, as a result of having consumed
 
17 alcohol, then the person shall take a breath or blood test, as
 
18 chosen by the person, for the purpose of determining the alcohol
 
19 concentration.
 
20      (d)  If there is probable cause to believe that a person is
 
21 in violation of section    -81, as a result of having consumed
 
22 any drug, then the person shall take a blood or urine test, as
 
23 chosen by the person, for the purpose of determining the drug
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 content.  Drug content shall be measured by the presence of any
 
 2 drug or its metabolic products or both.  The person shall be
 
 3 informed by a law enforcement officer of the sanctions under part
 
 4 III for failure to take the test.
 
 5      (e)  A person who chooses to submit to a breath test under
 
 6 subsection (c) also may be requested to submit to a blood or
 
 7 urine test, if the officer has probable cause to believe that the
 
 8 person was operating a vehicle under the influence of any drugs
 
 9 under section    -81 or the combined influence of alcohol and
 
10 drugs and the officer has probable cause to believe that a blood
 
11 or urine test will reveal evidence of the person being under the
 
12 influence of drugs.  The officer shall state in the officer's
 
13 report the facts upon which that belief is based.  The person
 
14 shall take a blood or urine test, as chosen by the person, for
 
15 the purpose of determining the person's drug content.  Results of
 
16 a blood or urine test conducted to determine drug content also
 
17 shall be admissible for the purpose of determining the person's
 
18 alcohol concentration.  Submission to testing for drugs under
 
19 subsection (d) or this subsection shall not be a substitute for
 
20 alcohol tests requested under subsection (c).
 
21      (f)  A preliminary alcohol screen is not a substitute for a
 
22 breath, blood, or urine test required under this section.
 
23 Analysis from a preliminary alcohol screen shall be considered as
 

 
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 1 probable cause evidence only.
 
 2      (g)  Any person tested pursuant to this section who is
 
 3 convicted or has the person's license revoked pursuant to this
 
 4 section may be ordered to reimburse the county for the cost of
 
 5 any blood or urine tests, or both, conducted pursuant to this
 
 6 section.  The court or the director, as applicable, shall order
 
 7 the person to make restitution in a lump sum, or in a series of
 
 8 prorated installments, to the police department or other agency
 
 9 incurring the expense of the blood or urine test, or both.
 
10      (h)  For purposes of this section:
 
11      "Preliminary alcohol screening device" means a device
 
12 designed to detect and verify the presence of alcohol or provide
 
13 an estimated value of alcohol concentration.
 
14         -12  Persons qualified to take blood specimen.  No
 
15 person, other than a physician, registered nurse, phlebotomist
 
16 deemed qualified by the director of a clinical laboratory that is
 
17 licensed by the State, or person licensed in a clinical
 
18 laboratory occupation under section 321-13, may withdraw blood
 
19 for the purpose of determining the alcohol concentration or drug
 
20 content therein.  This limitation shall not apply to the taking
 
21 of a breath or urine specimen.
 
22         -13  Additional tests.  The person tested may choose any
 
23 physician, registered nurse, or person licensed in a clinical
 

 
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 1 laboratory occupation under section 321-13 to withdraw blood and
 
 2 also may choose any qualified person to administer a test or
 
 3 tests in addition to any administered under section     -11.  The
 
 4 result of the test or tests may be used as provided in
 
 5 section    -3.  The failure or inability to obtain an additional
 
 6 test by a person shall not preclude the admission of the test or
 
 7 tests administered under section     -11.  Upon the request of
 
 8 the person who is tested, full information concerning the test or
 
 9 tests administered under section     -11 shall be made available
 
10 to that person.
 
11         -14  Consent of person incapable of refusal not
 
12 withdrawn.  The consent of a person deemed to have given the
 
13 person's consent pursuant to section    -11 shall not be
 
14 withdrawn by reason of the person's being dead, unconscious, or
 
15 in any other condition that renders the person incapable of
 
16 consenting to examination, and the test may be given.  In such
 
17 event, a test of the person's blood or urine shall be
 
18 administered.
 
19         -15  Refusal to submit to breath, blood, or urine test;
 
20 subject to administrative revocation proceedings.  If a person
 
21 under arrest refuses to submit to a breath, blood, or urine test,
 
22 none shall be given, except as provided in section    -21, but
 
23 the person shall be subject to the procedures and sanctions under
 

 
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 1 part III.
 
 2         -16  Proof of refusal; admissibility.  If a legally
 
 3 arrested person refuses to submit to a test of the person's
 
 4 breath, blood, or urine, evidence of refusal shall be admissible
 
 5 only in a proceeding under part III and shall not be admissible
 
 6 in any other action or proceeding, whether civil or criminal.
 
 7         -17  Other evidence not excluded.  This part shall not
 
 8 limit the introduction of any other competent evidence bearing on
 
 9 the question of whether the person was under the influence of an
 
10 intoxicant or was operating a vehicle while under the age of
 
11 twenty-one and after consuming a measurable amount of alcohol.
 
12         -18  Test results to be collected.  The results of any
 
13 test for intoxicants made upon any person, including any person
 
14 who has been fatally injured in a traffic collision or the
 
15 operator of a vehicle involved in a collision that resulted in
 
16 another person's death, shall be sent to the state director of
 
17 transportation, who shall compile the data without revealing the
 
18 identity of any individual tested. This data shall be available
 
19 only to the state and county highway safety councils and to other
 
20 agencies the director of transportation deems necessary and
 
21 advisable.
 
22         -19  Authorization to establish intoxicant control
 
23 roadblock programs.  The police departments of the respective
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 counties may establish and implement intoxicant control roadblock
 
 2 programs in accordance with the minimum standards and guidelines
 
 3 provided in section    -20.  The chief of police in any county
 
 4 establishing an intoxicant control roadblock program pursuant to
 
 5 this section shall specify the procedures to be followed in
 
 6 carrying out the program in rules adopted under chapter 91;
 
 7 provided that the procedures shall be in conformity with and not
 
 8 more intrusive than the standards and guidelines described in
 
 9 section    -20.
 
10         -20  Minimum standards for roadblock procedures.(a)
 
11 Every intoxicant control roadblock program shall:
 
12      (1)  Require that all vehicles approaching roadblocks be
 
13           stopped, or that certain vehicles be stopped by
 
14           selecting vehicles in a specified numerical sequence or
 
15           pattern.
 
16      (2)  Require that roadblocks be located at fixed locations
 
17           for a maximum three-hour period.
 
18      (3)  Provide for the following minimum safety precautions at
 
19           every roadblock:
 
20           (A)  Proper illumination;
 
21           (B)  Off-road or otherwise safe and secure holding
 
22                areas for vehicles involved in any roadblock stop;
 
23           (C)  Uniformed police officers carrying proper
 

 
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 1                identification;
 
 2           (D)  Adequate advance warning of the fact and purpose
 
 3                of the roadblocks, either by sign posts, flares,
 
 4                or other alternative methods; and
 
 5           (E)  Termination of roadblocks at the discretion of the
 
 6                police officer in charge where traffic congestion
 
 7                would otherwise result.
 
 8      (4)  Provide for a sufficient quantity and visibility of
 
 9           uniformed officers and official vehicles to ensure
 
10           speedy compliance with the purpose of the roadblocks
 
11           and to move traffic with a minimum of inconvenience.
 
12      (b)  Nothing in this section shall prohibit the
 
13 establishment of procedures to make roadblock programs less
 
14 intrusive than required by the minimum standards provided in this
 
15 section.
 
16         -21  Applicable scope of part; mandatory testing in the
 
17 event of a collision resulting in injury or death.(a)  Nothing
 
18 in this part shall be construed to prevent a law enforcement
 
19 officer from obtaining a sample of breath, blood, or urine, from
 
20 the operator of any vehicle involved in a collision resulting in
 
21 injury to or the death of any person, as evidence that the
 
22 operator was under the influence of an intoxicant.
 
23      (b)  If a health care provider who is providing medical
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 care, in a health care facility, to any person involved in a
 
 2 vehicle collision:
 
 3      (1)  Becomes aware, as a result of any blood or urine test
 
 4           performed in the course of medical treatment, that:
 
 5           (A)  The alcohol concentration in the person's blood
 
 6                meets or exceeds the amount specified in
 
 7                section    -81(b)(3); or
 
 8           (B)  The persons's blood or urine contains one or more
 
 9                drugs; and
 
10      (2)  Has a reasonable belief that the person was the
 
11           operator of a vehicle involved in the collision,
 
12 the health care provider shall notify, as soon as reasonably
 
13 possible, any law enforcement officer present at the health care
 
14 facility to investigate the collision.  If no law enforcement
 
15 officer is present, the health care provider shall notify the
 
16 county police department in the county where the collision
 
17 occurred.  If the health care provider is aware of any blood or
 
18 urine test result, as provided in paragraph (1), but lacks
 
19 information to form a reasonable belief as to the identity of the
 
20 operator involved in a vehicle collision, as provided in
 
21 paragraph (2), then the health care provider shall give notice to
 
22 a law enforcement officer present or to the county police
 
23 department, as applicable, for each person involved in a vehicle
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 collision whose alcohol concentration in the person's blood meets
 
 2 or exceeds the amount specified in section    -81(b)(3) or whose
 
 3 blood or urine contains one or more drugs.  The notice by the
 
 4 health care provider shall consist of the name of the person
 
 5 being treated, the blood alcohol concentration or drug content
 
 6 disclosed by the test, and the date and time of the
 
 7 administration of the test.  This notice shall be deemed to
 
 8 satisfy the intoxication element necessary to establish the
 
 9 probable cause requirement set forth in subsection (c).
 
10      (c)  In the event of a collision resulting in injury or
 
11 death and if a law enforcement officer has probable cause to
 
12 believe that a person involved in the collision has committed a
 
13 violation of section 707-702.5, 707-703, 707-704, 707-705,
 
14 707-706, or    -81, the law enforcement officer shall request
 
15 that a sample of blood or urine be recovered from the vehicle
 
16 operator or any other person suspected of committing a violation
 
17 of section 707-702.5, 707-703, 707-704, 707-705, 707-706, or
 
18    -81.
 
19      (d)  The law enforcement officer shall make the request
 
20 under subsection (c) to the hospital or medical facility treating
 
21 the person from whom the blood or urine is to be recovered.  Upon
 
22 the request of the law enforcement officer that blood or urine be
 
23 recovered pursuant to this section, and except where the
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 responsible attending personnel at the hospital or medical
 
 2 facility determines in good faith that recovering or attempting
 
 3 to recover blood or urine from the person represents an imminent
 
 4 threat to the health of the medical personnel or others, the
 
 5 hospital or medical facility shall: provide the law enforcement
 
 6 officer with the blood or urine sample requested; recover the
 
 7 sample in compliance with section 321-161; and assign a person
 
 8 authorized under section    -12 to withdraw the blood sample or
 
 9 obtain the urine.
 
10      (e)  Any person complying with this section shall be exempt
 
11 from liability pursuant to section 663-1.9 as a result of
 
12 compliance.
 
13      (f)  As used in this section, unless the context otherwise
 
14 requires:
 
15      "Health care facility" includes any program, institution,
 
16 place, building, or agency, or portion thereof, private or
 
17 public, whether organized for profit or not, that is used,
 
18 operated, or designed to provide medical diagnosis, treatment, or
 
19 rehabilitative or preventive care to any person.  The term
 
20 includes but is not limited to health care facilities that are
 
21 commonly referred to as hospitals, outpatient clinics, organized
 
22 ambulatory health care facilities, emergency care facilities and
 
23 centers, health maintenance organizations, and others providing
 

 
Page 24                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 similarly organized services regardless of nomenclature.
 
 2      "Health care provider" means a person who is licensed,
 
 3 certified, or otherwise authorized or permitted by law to
 
 4 administer health care in the ordinary course of business or
 
 5 practice of a profession. 
 
 6         -22  Presence of drugs or metabolic products;
 
 7 admissibility.  Any results reflecting the presence of drugs or
 
 8 metabolic products obtained from a blood or urine specimen
 
 9 obtained under this part shall not be admissible in any
 
10 proceeding brought under chapter 329 or 712.
 
11           PART III.  ADMINISTRATIVE REVOCATION PROCESS
 
12         -31  Notice of administrative revocation; effect.  As
 
13 used in this part, the notice of administrative revocation:
 
14      (1)  Establishes that the respondent's license and privilege
 
15           to operate a vehicle in the State or on or in the
 
16           waters of the State shall be terminated:
 
17           (A)  Thirty days after the date the notice of
 
18                administrative revocation is issued in the case of
 
19                an alcohol related offense;
 
20           (B)  Forty-four days after the date the notice of
 
21                administrative revocation is issued in the case of
 
22                a drug related offense or an offense involving the
 
23                combined use of alcohol and drugs; or
 

 
Page 25                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           (C)  Such later date as is established by the director
 
 2                under section    -38;
 
 3           if the director administratively revokes the
 
 4           respondent's license;
 
 5      (2)  Establishes the date on which administrative revocation
 
 6           proceedings against the respondent were initiated; and
 
 7      (3)  Serves as a temporary permit to operate a vehicle as
 
 8           provided in section    -33.
 
 9         -32  Criminal prosecution.(a)  Criminal prosecution
 
10 under section    -81 may be commenced concurrently with
 
11 administrative revocation proceedings under this part; provided
 
12 that documentary and testimonial evidence provided by the
 
13 respondent during the administrative proceeding shall not be
 
14 admissible against the respondent in any proceeding under section
 
15    -81 arising out of the same occurrence.
 
16      (b)  When a person's license and privilege to operate a
 
17 vehicle is revoked under this part and the person also is
 
18 convicted of an offense under section    -81 arising out of the
 
19 same occurrence, the total period of revocation imposed in the
 
20 two proceedings shall not exceed the longer period of revocation
 
21 imposed in either proceeding. If the person is convicted under
 
22 section    -81 prior to completion of administrative proceedings,
 
23 the person shall surrender the temporary permit issued under this
 

 
Page 26                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 part at the time of entry of a plea of guilty or no contest,
 
 2 entry of a verdict of guilty, or of sentencing, whichever occurs
 
 3 first.
 
 4         -33  Probable cause determination; issuance of notice of
 
 5 administrative revocation; procedures.(a)  Whenever a person is
 
 6 arrested for a violation of section    -81 or    -83 on a
 
 7 determination by the arresting law enforcement officer that:
 
 8      (1)  There was reasonable suspicion to stop the vehicle or
 
 9           the vehicle was stopped at an intoxicant control
 
10           roadblock established and operated in compliance with
 
11           sections    -19 and    -20; and
 
12      (2)  There was probable cause to believe that the arrestee
 
13           was operating or in actual physical control of the
 
14           vehicle:
 
15           (A)  While under the influence of an intoxicant; or
 
16           (B)  While under the age of twenty-one and after
 
17                consuming a measurable amount of alcohol;
 
18 the law enforcement officer immediately shall take possession of
 
19 any license held by the person and request the arrestee to take a
 
20 test for concentration of alcohol in the blood, in the case of an
 
21 alcohol related offense, or a test for drug content in the blood
 
22 or urine, in the case of a drug related offense.  The law
 
23 enforcement officer shall inform the person that, in the case of
 

 
Page 27                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 an alcohol related offense, the person shall take a breath test
 
 2 or a blood test, as chosen by the person pursuant to section
 
 3    -11.  In the case of a drug related offense, the person shall
 
 4 take a blood test or a urine test, as chosen by the person
 
 5 pursuant to section    -11.  The law enforcement officer also
 
 6 shall inform the person of the sanctions under this part,
 
 7 including the sanction for refusing to take a breath, blood, or
 
 8 urine test.  Thereafter, the law enforcement officer shall
 
 9 complete and issue to the arrestee a notice of administrative
 
10 revocation and shall indicate thereon whether the notice shall
 
11 serve as a temporary permit.  The notice shall serve as a
 
12 temporary permit, unless, at the time of arrest:  the arrestee
 
13 was unlicensed; the arrestee's license or privilege to operate a
 
14 vehicle was revoked or suspended; or the arrestee had no license
 
15 in the arrestee's possession.
 
16      (b)  Whenever a law enforcement officer determines that, as
 
17 the result of a blood or urine test performed pursuant to section
 
18    -21(b) or (c), there is probable cause to believe that a
 
19 person being treated in a hospital or medical facility has
 
20 violated section    -81, the law enforcement officer immediately
 
21 shall take possession of any license held by the person and shall
 
22 complete and issue to the person a notice of administrative
 
23 revocation and indicate thereon whether the notice shall serve as
 

 
Page 28                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 a temporary permit.  The notice shall serve as a temporary permit
 
 2 unless, at the time the notice was issued:  the person was
 
 3 unlicensed; the person's license or privilege to operate a
 
 4 vehicle was revoked or suspended; or the person had no license in
 
 5 the person's possession.
 
 6         -34  Notice of administrative revocation; contents.(a)
 
 7 The notice of administrative revocation shall provide, at a
 
 8 minimum and in clear language, the following general information
 
 9 relating to administrative revocation:
 
10      (1)  The statutory authority for administrative revocation;
 
11      (2)  An explanation of the distinction between
 
12           administrative revocation and a revocation imposed
 
13           under section    -81; and
 
14      (3)  That criminal charges filed pursuant to section    -81
 
15           may be prosecuted concurrently with the administrative
 
16           action.
 
17      (b)  The notice, when completed by the law enforcement
 
18 officer and issued to the respondent, shall contain at a minimum
 
19 the following information relating to the incident that gives
 
20 rise to the issuance of the notice of administrative revocation:
 
21      (1)  Information identifying the respondent;
 
22      (2)  The specific violation for which the person was
 
23           arrested, if applicable;
 

 
Page 29                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1      (3)  The date issued and the date the administrative
 
 2           revocation is scheduled to go into effect;
 
 3      (4)  That the respondent was informed of the sanctions of
 
 4           this part and of the consequences of refusing to be
 
 5           tested for alcohol concentration of the blood or drug
 
 6           content in the blood or urine and whether or not the
 
 7           respondent consented to be tested;
 
 8      (5)  The expiration date of the temporary permit; and
 
 9      (6)  That the issuance of the notice of administrative
 
10           revocation will be administratively reviewed.
 
11      (c)  The notice shall provide, at a minimum, the following
 
12 information relating to the administrative review:
 
13      (1)  That the review is automatic;
 
14      (2)  That the respondent, within three days of the issuance
 
15           of the notice of administrative revocation in the case
 
16           of an alcohol related offense and within seventeen days
 
17           of the issuance of the notice of administrative
 
18           revocation in the case of a drug related offense or an
 
19           offense involving the combined use of alcohol and
 
20           drugs, may submit written information demonstrating why
 
21           the respondent's license and privilege to operate a
 
22           vehicle should not be administratively revoked;
 
23      (3)  The address or location where the respondent may submit
 

 
Page 30                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           the information;
 
 2      (4)  That the respondent is not entitled to be present or
 
 3           represented at the review; and
 
 4      (5)  That the review decision shall be mailed to the
 
 5           respondent, no later than eight days after the date of
 
 6           the issuance of the notice of administrative revocation
 
 7           in the case of an alcohol related offense and no later
 
 8           than twenty-two days after the date of the issuance of
 
 9           the notice of administrative revocation in the case of
 
10           a drug related offense or an offense involving the
 
11           combined use of alcohol and drugs.
 
12      (d)  The notice shall state that, if the respondent's
 
13 license and privilege to operate a vehicle is not
 
14 administratively revoked after the review, the respondent's
 
15 license shall be returned, along with a certified statement that
 
16 the administrative revocation proceedings have been terminated.
 
17      (e)  The notice shall state that, if the respondent's
 
18 license and privilege to operate a vehicle are administratively
 
19 revoked after the review, a decision shall be mailed to the
 
20 respondent, or to the parent or guardian of the respondent if the
 
21 respondent is under the age of eighteen, which shall contain, at
 
22 a minimum, the following information:
 
23      (1)  The reasons why the respondent's license and privilege
 

 
Page 31                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           to operate a vehicle were administratively revoked;
 
 2      (2)  That the respondent may request the director, within
 
 3           six days of the date the decision is mailed, to
 
 4           schedule an administrative hearing to review the
 
 5           administrative revocation;
 
 6      (3)  That if the respondent requests an administrative
 
 7           hearing within six days, the hearing shall be scheduled
 
 8           to commence no later than:  twenty-five days after the
 
 9           date of the issuance of the notice of administrative
 
10           revocation in the case of an alcohol related offense;
 
11           and no later than thirty-nine days after the date of
 
12           the issuance of the notice of administrative revocation
 
13           in the case of a drug related offense or an offense
 
14           involving the combined use of alcohol and drugs;
 
15      (4)  The procedure to request an administrative hearing;
 
16      (5)  That failure to request an administrative hearing
 
17           within the time provided shall cause the administrative
 
18           revocation to take effect for the period and under the
 
19           conditions established by the director in the decision;
 
20      (6)  That the respondent may regain the right to a hearing
 
21           by requesting the director, within sixty days after the
 
22           issuance of the notice of administrative revocation, to
 
23           schedule a hearing;
 

 
Page 32                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1      (7)  That the director shall schedule the hearing to
 
 2           commence no later than thirty days after the request is
 
 3           made, but that the temporary permit shall not, in any
 
 4           event, be extended if the respondent fails to request
 
 5           an administrative hearing within the initial six-day
 
 6           period provided for that purpose;
 
 7      (8)  That failure to attend the hearing shall cause the
 
 8           administrative revocation to take effect for the period
 
 9           and under the conditions indicated; and
 
10      (9)  The duration of the administrative revocation and
 
11           other conditions that may be imposed, including:
 
12           alcohol or drug counseling, or both; alcohol or drug
 
13           treatment, or both; and installation of an ignition
 
14           interlock system.
 
15      (f)  The notice shall provide, at a minimum, the following
 
16 information relating to administrative hearings:
 
17      (1)  That the respondent shall have six days from the date
 
18           the review decision was mailed to request that an
 
19           administrative hearing be scheduled;
 
20      (2)  That a request for an administrative hearing shall
 
21           entitle the respondent to review and copy all documents
 
22           considered at the review, including the arrest report
 
23           and the sworn statements, prior to the hearing;
 

 
Page 33                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1      (3)  That the respondent may be represented by an attorney,
 
 2           submit evidence, give testimony, and present and cross-
 
 3           examine witnesses;
 
 4      (4)  That, in cases where the respondent is under the age of
 
 5           eighteen, a parent or guardian must be present; and
 
 6      (5)  That a written decision shall be mailed no later than
 
 7           five days after completion of the hearing.
 
 8      (g)  The notice shall state that if the administrative
 
 9 revocation is reversed after the hearing, the respondent's
 
10 license and any fees collected from the respondent under this
 
11 part shall be returned, along with a certified statement that the
 
12 administrative revocation proceedings have been terminated.
 
13      (h)  The notice shall state that, if the administrative
 
14 revocation is sustained at the hearing, a written decision shall
 
15 be mailed to the respondent, or to the parent or guardian of the
 
16 respondent if the respondent is under the age of eighteen, which
 
17 shall contain, at a minimum, the following information:
 
18      (1)  The effective date of the administrative revocation;
 
19      (2)  The duration of the administrative revocation;
 
20      (3)  Other conditions that may be imposed by law; and
 
21      (4)  The right to obtain judicial review.
 
22      (i)  The notice shall state that failure of the respondent,
 
23 and of the parent or guardian of the respondent if the respondent
 

 
Page 34                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 is under the age of eighteen, to attend a scheduled hearing shall
 
 2 cause the administrative revocation to take effect as provided in
 
 3 the administrative review decision.
 
 4         -35  Immediate restoration of license.(a)  In cases
 
 5 involving an alcohol related offense, if a test conducted in
 
 6 accordance with part II and section 321-161 and the rules adopted
 
 7 thereunder shows that a respondent:
 
 8      (1)  Twenty-one years or older at the time of the arrest,
 
 9           had an alcohol concentration less than .08; or
 
10      (2)  Under the age of twenty-one years, had an alcohol
 
11           concentration less than .02,
 
12 the director or the arresting law enforcement agency shall
 
13 immediately return the respondent's license, along with a
 
14 certified statement that administrative revocation proceedings
 
15 have been terminated with prejudice.
 
16      (b)  In cases involving a drug related offense, if a test
 
17 conducted in accordance with part II and section 321-161 and the
 
18 rules adopted thereunder shows no drug content in the
 
19 respondent's blood or urine, the director or the arresting law
 
20 enforcement agency immediately shall return the respondent's
 
21 license, along with a certified statement that administrative
 
22 revocation proceedings have been terminated with prejudice.
 
23         -36  Documents required to be submitted for
 

 


 

Page 35                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 administrative review; sworn statements of law enforcement
 
 2 officials.  (a)  Whenever a respondent has been arrested for a
 
 3 violation of section    -81 or    -83 and submits to a test that
 
 4 establishes:  the respondent's alcohol concentration was .08 or
 
 5 more; a drug content in the respondent's blood or urine; or a
 
 6 respondent, under the age of twenty-one, had consumed a
 
 7 measurable amount of alcohol; or whenever a respondent has been
 
 8 involved in a collision resulting in injury or death and a blood
 
 9 or urine test performed pursuant to section    -21 establishes
 
10 that the respondent's alcohol concentration was .08 or more or
 
11 establishes the respondent's drug content, the following shall be
 
12 forwarded immediately to the director:
 
13      (1)  A copy of the arrest report or the report of the
 
14           officer who issued the notice of administrative
 
15           revocation to the person involved in a collision
 
16           resulting in injury or death and the sworn statement of
 
17           the arresting law enforcement officer or the officer
 
18           who issued the notice of administrative revocation,
 
19           stating facts that establish that:
 
20           (A)  There was reasonable suspicion to stop the
 
21                vehicle, the vehicle was stopped at an intoxicant
 
22                control roadblock established and operated in
 
23                compliance with sections    -19 and    -20, or the
 

 
Page 36                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1                respondent was tested pursuant to section    -21;
 
 2           (B)  There was probable cause to believe that the
 
 3                respondent had been operating or in actual
 
 4                physical control of the vehicle:
 
 5                (i)  While under the influence of an intoxicant;
 
 6                     or
 
 7               (ii)  While under the age of twenty-one and after
 
 8                     consuming a measurable amount of alcohol;
 
 9           (C)  The respondent was informed of: the sanctions of
 
10                this part; that criminal charges may be filed; and
 
11                the consequences of refusing to be tested for
 
12                alcohol concentration or drug content; and
 
13           (D)  The respondent agreed to be tested or the person
 
14                was tested pursuant to section    -21;
 
15      (2)  In a case involving an alcohol related offense, the
 
16           sworn statement of the person responsible for
 
17           maintenance of the testing equipment, stating facts
 
18           that establish that, pursuant to section 321-161 and
 
19           rules adopted thereunder:
 
20           (A)  The equipment used to conduct the test was
 
21                approved for use as an alcohol testing device in
 
22                this State;
 
23           (B)  The person had been trained and at the time the
 

 
Page 37                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1                test was conducted was certified and capable of
 
 2                maintaining the testing equipment; and
 
 3           (C)  The testing equipment used had been properly
 
 4                maintained and was in good working condition when
 
 5                the test was conducted;
 
 6      (3)  In a case involving an alcohol related offense, the
 
 7           sworn statement of the person who conducted the test,
 
 8           stating facts that establish that, pursuant to section
 
 9           321-161 and rules adopted thereunder:
 
10           (A)  The person was trained and at the time the test
 
11                was conducted was certified and capable of
 
12                operating the testing equipment;
 
13           (B)  The person followed the procedures established for
 
14                conducting the test;
 
15           (C)  The equipment used to conduct the test functioned
 
16                in accordance with operating procedures and
 
17                indicated that the respondent's alcohol
 
18                concentration was at, or above, the prohibited
 
19                level; and
 
20           (D)  The person whose breath or blood was tested is the
 
21                respondent;
 
22      (4)  In a case involving a drug related offense, the sworn
 
23           statement of the person responsible for maintenance of
 

 
Page 38                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           the testing equipment, stating facts that establish
 
 2           that, pursuant to section 321-161 and rules adopted
 
 3           thereunder:
 
 4           (A)  The equipment used to conduct the test was
 
 5                approved for use in drug testing;
 
 6           (B)  The person conducting the test had been trained
 
 7                and, at the time of the test, was certified and
 
 8                capable of maintaining the testing equipment; and
 
 9           (C)  The testing equipment used had been properly
 
10                maintained and was in good working condition when
 
11                the test was conducted;
 
12      (5)  In a case involving an drug related offense, the sworn
 
13           statement of the person who conducted the test, stating
 
14           facts that establish that, pursuant to section 321-161
 
15           and rules adopted thereunder:
 
16           (A)  At the time the test was conducted, the person was
 
17                trained and capable of operating the testing
 
18                equipment;
 
19           (B)  The person followed the procedures established for
 
20                conducting the test;
 
21           (C)  The equipment used to conduct the test functioned
 
22                in accordance with operating procedures and
 
23                indicated the presence of one or more drugs or
 

 
Page 39                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1                their metabolites in the respondent's blood or
 
 2                urine; and
 
 3           (D)  The person whose blood or urine was tested is the
 
 4                respondent;
 
 5      (6)  A copy of the notice of administrative revocation and
 
 6           the temporary permit issued to the respondent;
 
 7      (7)  Any driver's license taken into possession by the law
 
 8           enforcement officer; and
 
 9      (8)  A listing of any prior alcohol or drug enforcement
 
10           contacts involving the respondent.
 
11      (b)  Whenever a respondent has been arrested for a violation
 
12 of section    -81 or    -83 and refuses to submit to a test to
 
13 determine alcohol concentration in the blood or drug content in
 
14 the blood or urine, the following shall be forwarded immediately
 
15 to the director:
 
16      (1)  A copy of the arrest report and the sworn statement of
 
17           the arresting law enforcement officer, stating facts
 
18           that establish that:
 
19           (A)  There was reasonable suspicion to stop the vehicle
 
20                or the vehicle was stopped at an intoxicant
 
21                control roadblock established and operated in
 
22                compliance with sections    -19 and    -20;
 
23           (B)  There was probable cause to believe that the
 

 
Page 40                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1                respondent had been operating or in actual
 
 2                physical control of the vehicle:
 
 3                (i)  While under the influence of an intoxicant;
 
 4                     or
 
 5               (ii)  While under the age of twenty-one and after
 
 6                     consuming a measurable amount of alcohol;
 
 7           (C)  The respondent was informed of: the sanctions of
 
 8                this part; the possibility that criminal charges
 
 9                may be filed; and the probable consequences of
 
10                refusing to be tested for concentration of alcohol
 
11                in the blood or drug content in the blood or
 
12                urine; and
 
13           (D)  The respondent refused to be tested;
 
14      (2)  A copy of the notice of administrative revocation and
 
15           the temporary permit issued to the respondent;
 
16      (3)  Any driver's license taken into possession; and
 
17      (4)  A listing of all alcohol and drug enforcement contacts
 
18           involving the respondent.
 
19         -37  Administrative review; procedures; decision.(a)
 
20 The director automatically shall review the issuance of a notice
 
21 of administrative revocation and shall issue a written decision
 
22 administratively revoking the license and privilege to operate a
 
23 vehicle or rescinding the notice of administrative revocation.
 

 
Page 41                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 The written decision shall be mailed to the respondent, or to the
 
 2 parent or guardian of the respondent if the respondent is under
 
 3 the age of eighteen, no later than:  eight days after the date
 
 4 the notice was issued in a case involving an alcohol related
 
 5 offense; or twenty-two days after the date the notice was issued
 
 6 in a case involving a drug related offense or an offense
 
 7 involving the combined use of alcohol and drugs.
 
 8      (b)  The respondent shall have the opportunity to
 
 9 demonstrate in writing why the respondent's license and privilege
 
10 to operate a vehicle should not be administratively revoked and,
 
11 within three days of receiving the notice of administrative
 
12 revocation, shall submit any written information, either by mail
 
13 or in person, to the director's office or to any office or
 
14 address designated by the director for that purpose.
 
15      (c)  In conducting the administrative review, the director
 
16 shall consider:
 
17      (1)  Any sworn or unsworn written statement or other written
 
18           evidence provided by the respondent;
 
19      (2)  The breath, blood, or urine test results, if any; and
 
20      (3)  The sworn statement of any law enforcement official or
 
21           other evidence or information required by section
 
22              -36.
 
23      (d)  The director shall administratively revoke the
 

 
Page 42                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 respondent's license and privilege to operate a vehicle if the
 
 2 director determines that:
 
 3      (1)  There existed reasonable suspicion to stop the vehicle,
 
 4           the vehicle was stopped at an intoxicant control
 
 5           roadblock established and operated in compliance with
 
 6           sections    -19 and    -20, or the person was tested
 
 7           pursuant to section    -21;
 
 8      (2)  There existed probable cause to believe that the
 
 9           respondent operated or was in actual physical control
 
10           of the vehicle:
 
11           (A)  While under the influence of an intoxicant; or
 
12           (B)  While under the age of twenty-one and after
 
13                consuming a measurable amount of alcohol; and
 
14      (3)  The evidence proves by a preponderance that:
 
15           (A)  The respondent operated or was in actual physical
 
16                control of the vehicle:
 
17                (i)  While under the influence of an intoxicant;
 
18                     or
 
19               (ii)  While under the age of twenty-one and after
 
20                     consuming a measurable amount of alcohol; or
 
21           (B)  The respondent operated or was in actual physical
 
22                control of the vehicle and refused to submit to a
 
23                breath, blood, or urine test after being informed
 

 
Page 43                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1                of the sanctions of this part.
 
 2      (e)  If the evidence does not support administrative
 
 3 revocation, the director shall rescind the notice of
 
 4 administrative revocation and return the respondent's license,
 
 5 along with a certified statement that administrative revocation
 
 6 proceedings have been terminated.
 
 7      (f)  If the director administratively revokes the
 
 8 respondent's license and privilege to operate a vehicle, the
 
 9 director shall mail a written decision to the respondent, or to
 
10 the parent or guardian of the respondent if the respondent is
 
11 under the age of eighteen.  The written decision shall:
 
12      (1)  State the reasons for the administrative revocation;
 
13      (2)  Indicate that the respondent has six days from the date
 
14           the decision is mailed to request an administrative
 
15           hearing to review the director's decision;
 
16      (3)  Explain the procedure by which to request an
 
17           administrative hearing;
 
18      (4)  Be accompanied by a form, postage prepaid, which the
 
19           respondent may fill out and mail in order to request an
 
20           administrative hearing;
 
21      (5)  Inform the respondent of the right to review and copy
 
22           all documents considered at the review, including the
 
23           arrest report and the sworn statements of the law
 

 
Page 44                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           enforcement officials, prior to the hearing; and
 
 2      (6)  State that the respondent may be represented by counsel
 
 3           at the hearing, submit evidence, give testimony, and
 
 4           present and cross-examine witnesses, including the
 
 5           arresting officer.
 
 6      (g)  Failure of the respondent to request a hearing within
 
 7 the time provided in section    -38(a) shall cause the
 
 8 administrative revocation to take effect for the period and under
 
 9 the conditions provided in the administrative review decision
 
10 issued by the director under this section.  The respondent may
 
11 regain the right to a hearing by requesting the director, within
 
12 sixty days of the issuance of the notice of administrative
 
13 revocation, to schedule a hearing.  The hearing shall be
 
14 scheduled to commence no later than thirty days after the request
 
15 is made.  The administrative review decision issued by the
 
16 director under this section shall clearly explain the
 
17 consequences of failure to request an administrative hearing and
 
18 the procedure by which the respondent may regain the right to a
 
19 hearing.
 
20         -38  Administrative hearing; procedure; decision.(a)
 
21 If the director administratively revokes the respondent's license
 
22 and privilege to operate a vehicle after administrative review,
 
23 the respondent may request an administrative hearing to review
 

 
Page 45                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 the decision within six days of the date the administrative
 
 2 review decision is mailed.  The hearing shall be scheduled to
 
 3 commence no later than: twenty-five days from the date the notice
 
 4 of administrative revocation was issued in a case involving an
 
 5 alcohol related offense; or thirty-nine days from the date the
 
 6 notice of administrative revocation was issued in a case
 
 7 involving a drug related offense or an offense involving the
 
 8 combined use of alcohol and drugs.  The director may continue the
 
 9 hearing only as provided in subsection (j).
 
10      (b)  The hearing shall be held at a place designated by the
 
11 director, as close to the location where the notice of
 
12 administrative revocation was issued as practical.
 
13      (c)  The respondent may be represented by counsel and, if
 
14 the respondent is under the age of eighteen, must be accompanied
 
15 by a parent or guardian.
 
16      (d)  The director shall conduct the hearing and have
 
17 authority to:
 
18      (1)  Administer oaths and affirmations;
 
19      (2)  Examine witnesses and take testimony;
 
20      (3)  Receive and determine the relevance of evidence;
 
21      (4)  Issue subpoenas, take depositions, or cause depositions
 
22           or interrogatories to be taken;
 
23      (5)  Regulate the course and conduct of the hearing; and
 

 
Page 46                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1      (6)  Make a final ruling.
 
 2      (e)  The director shall affirm the administrative revocation
 
 3 only if the director determines that:
 
 4      (1)  There existed reasonable suspicion to stop the vehicle,
 
 5           the vehicle was stopped at an intoxicant control
 
 6           roadblock established and operated in compliance with
 
 7           sections    -19 and    -20, or the person was tested
 
 8           pursuant to section    -21;
 
 9      (2)  There existed probable cause to believe that the
 
10           respondent operated or was in actual physical control
 
11           of the vehicle:
 
12           (A)  While under the influence of an intoxicant; or
 
13           (B)  While under the age of twenty-one and after
 
14                consuming a measurable amount of alcohol; and
 
15      (3)  The evidence proves by a preponderance that:
 
16           (A)  The respondent operated or was in actual physical
 
17                control of the vehicle:
 
18                (i)  While under the influence of an intoxicant;
 
19                     or
 
20               (ii)  While under the age of twenty-one and after
 
21                     consuming a measurable amount of alcohol; or
 
22           (B)  The respondent operated or was in actual physical
 
23                control of the vehicle and, after being informed
 

 
Page 47                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1                of the sanctions of this part, refused to submit
 
 2                to a breath, blood, or urine test.
 
 3      (f)  The respondent's prior alcohol and drug enforcement
 
 4 contacts shall be entered into evidence.
 
 5      (g)  The sworn statements provided in section    -36 shall
 
 6 be admitted into evidence.  Upon notice to the director, no later
 
 7 than five days prior to the hearing, that the respondent wishes
 
 8 to examine a law enforcement official who made a sworn statement,
 
 9 the director shall issue a subpoena for the official to appear at
 
10 the hearing.  If the official cannot appear, the official, at the
 
11 discretion of the director, may testify by telephone.
 
12      (h)  The hearing shall be recorded in a manner to be
 
13 determined by the director.
 
14      (i)  The director's decision shall be rendered in writing
 
15 and mailed to the respondent, or to the parent or guardian of the
 
16 respondent if the respondent is under the age of eighteen, no
 
17 later than five days after the hearing.  If the decision is to
 
18 reverse the administrative revocation, the director shall return
 
19 the respondent's license and any fees collected from the
 
20 respondent under this part, along with a certified statement that
 
21 administrative revocation proceedings have been terminated.  If
 
22 the decision sustains the administrative revocation, the director
 
23 shall mail to the respondent a written decision indicating the
 

 
Page 48                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 duration of the administrative revocation and any other
 
 2 conditions or restrictions as may be imposed pursuant to section
 
 3    -41.
 
 4      (j)  For good cause shown, the director may grant a
 
 5 continuance either of the commencement of the hearing or of a
 
 6 hearing that has already commenced.  If a continuance is granted
 
 7 at the request of the director, the director shall extend the
 
 8 validity of the temporary permit for a period not to exceed the
 
 9 period of the continuance.  If a continuance is granted at the
 
10 request of the respondent, the director shall not extend the
 
11 validity of the temporary permit.  For purposes of this section,
 
12 a continuance means a delay in the commencement of the hearing or
 
13 an interruption of a hearing that has commenced, other than for
 
14 recesses during the day or at the end of the day or week.
 
15      (k)  If the respondent fails to appear at the hearing, or if
 
16 an respondent under the age of eighteen fails to appear with a
 
17 parent or guardian, administrative revocation shall take effect
 
18 for the period and under the conditions established by the
 
19 director in the administrative review decision issued by the
 
20 director under section     -37.
 
21         -39  Fees and costs.  The director shall be authorized
 
22 to assess and collect a $15 fee from the respondent to cover the
 
23 costs of processing the respondent's request for an
 

 
Page 49                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 administrative hearing.  These costs include but are not limited
 
 2 to the cost of photocopying documents, the issuance of subpoenas,
 
 3 conditional permits, and relicensing forms, interpreter services,
 
 4 law enforcement official mileage fees, and other similar costs.
 
 5 The director may waive the fee in the case of an indigent
 
 6 respondent, upon an appropriate inquiry into the financial
 
 7 circumstances of the person seeking the waiver and an affidavit
 
 8 or a certificate signed by the person demonstrating the person's
 
 9 financial inability to pay the fee.
 
10         -40  Judicial review; procedure.  (a)  If the director
 
11 sustains the administrative revocation after an administrative
 
12 hearing, the respondent, or parent or guardian of an respondent
 
13 under the age of eighteen, may file a petition for judicial
 
14 review within thirty days after the administrative hearing
 
15 decision is mailed.  The petition shall be filed with the clerk
 
16 of the district court in the district in which the incident
 
17 occurred and shall be accompanied by the required filing fee for
 
18 civil actions.  The filing of the petition shall not operate as a
 
19 stay of the administrative revocation, nor shall the court stay
 
20 the administrative revocation pending the outcome of the judicial
 
21 review.  The petition shall be appropriately captioned.  The
 
22 petition shall state with specificity the grounds upon which the
 
23 petitioner seeks reversal of the administrative revocation.
 

 
Page 50                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1      (b)  The court shall schedule the judicial review as quickly
 
 2 as practicable, and the review shall be on the record of the
 
 3 administrative hearing without taking of additional testimony or
 
 4 evidence.  If the petitioner fails to appear without just cause
 
 5 or, in the case of a petitioner under the age of eighteen, the
 
 6 petitioner fails to appear with a parent or guardian, the court
 
 7 shall affirm the administrative revocation.
 
 8      (c)  The sole issues before the court shall be whether the
 
 9 director:
 
10      (1)  Exceeded constitutional or statutory authority;
 
11      (2)  Erroneously interpreted the law;
 
12      (3)  Acted in an arbitrary or capricious manner;
 
13      (4)  Committed an abuse of discretion; or
 
14      (5)  Made a determination that was unsupported by the
 
15           evidence in the record.
 
16      (d)  The court shall not remand the matter back to the
 
17 director for further proceedings consistent with its order.
 
18         -41  Effective date and period of administrative
 
19 revocation; criteria.  (a)  Unless an administrative revocation
 
20 is reversed or the temporary permit is extended by the director,
 
21 administrative revocation shall become effective on the day
 
22 specified in the notice of administrative revocation.  Except as
 
23 provided in section    -44, no license and privilege to operate a
 

 
Page 51                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 vehicle shall be restored under any circumstances and no
 
 2 conditional permit shall be issued during the administrative
 
 3 revocation period.  Upon completion of the administrative
 
 4 revocation period, the respondent may reapply and be reissued a
 
 5 license pursuant to section    -45, notwithstanding the
 
 6 provisions of section 286-126.
 
 7      (b)  The periods of administrative revocation that shall be
 
 8 imposed under this part are as follows:
 
 9      (1)  Three months, if the respondent's record shows no prior
 
10           alcohol or drug enforcement contacts during the five
 
11           years preceding the date the notice of administrative
 
12           revocation was issued; or six months, if the respondent
 
13           is under the age of twenty-one;
 
14      (2)  One year, if the respondent's record shows one prior
 
15           alcohol or drug enforcement contact during the five
 
16           years preceding the date the notice of administrative
 
17           revocation was issued;
 
18      (3)  Two years, if the respondent's record shows two prior
 
19           alcohol or drug enforcement contacts during the seven
 
20           years preceding the date the notice of administrative
 
21           revocation was issued;
 
22      (4)  For life, if the respondent's record shows three or
 
23           more prior alcohol or drug enforcement contacts during
 

 
Page 52                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           the ten years preceding the date the notice of
 
 2           administrative revocation was issued; or
 
 3      (5)  For respondents under the age of eighteen years, either
 
 4           for the period remaining until the respondent's
 
 5           eighteenth birthday or for the appropriate revocation
 
 6           period provided in paragraphs (1) to (4) or in
 
 7           subsection (c), if applicable, whichever is longer.
 
 8      (c)  If a respondent has refused to be tested after being
 
 9 informed of the sanctions of this part, the revocation imposed
 
10 under subsection (b)(1), (2), and (3) shall be for a period of
 
11 one year, two years, and four years, respectively.
 
12      (d)  Whenever a license and privilege to operate a vehicle
 
13 is administratively revoked under this part, the respondent shall
 
14 be referred to a certified substance abuse counselor for an
 
15 assessment of the respondent's alcohol or drug abuse or
 
16 dependence and the need for treatment.  The counselor shall
 
17 submit a report with recommendations to the director.  If the
 
18 counselor's assessment establishes that the extent of the
 
19 respondent's alcohol or drug abuse or dependence warrants
 
20 treatment, the director may so order.  Whenever the license and
 
21 privilege to operate a vehicle of a respondent under the age of
 
22 twenty-one is revoked for operating a vehicle after consuming a
 
23 measurable amount of alcohol, the respondent shall attend a
 

 
Page 53                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 youthful offender alcohol abuse education and counseling program
 
 2 for not more than ten hours.  If the respondent is under the age
 
 3 of eighteen, the respondent's parent or guardian also shall
 
 4 attend the program.  All costs for assessment and treatment shall
 
 5 be paid by the respondent.
 
 6      (e)  Alcohol and drug enforcement contacts that occurred
 
 7 prior to the effective date of this Act shall be counted in
 
 8 determining the administrative revocation period.
 
 9      (f)  The requirement to provide proof of financial
 
10 responsibility pursuant to section 287-20 shall not be based upon
 
11 a revocation under this part, unless the person's license has
 
12 been revoked previously under this part during the five-year
 
13 period immediately preceding the revocation at issue.
 
14         -42  Notice to other states.  When a nonresident's
 
15 driving and boating privileges are administratively revoked under
 
16 this part, the director shall:
 
17      (1)  Notify, in writing, the officials in charge of traffic
 
18           control, boating control, or public safety in the
 
19           nonresident's home state, and in any other state in
 
20           which the nonresident has driving and boating
 
21           privileges, of the action taken in this State; and
 
22      (2)  Return to the appropriate issuing authority in the
 
23           other states any license seized under section    -33.
 

 
Page 54                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1         -43  Administrative procedure act.  Neither the
 
 2 administrative review nor the administrative hearing provided
 
 3 under this part shall be subject to the contested case
 
 4 requirements of chapter 91.  The availability of administrative
 
 5 review of an order of administrative revocation shall have no
 
 6 effect upon the availability of judicial review under this part.
 
 7         -44  Conditional permits.  (a)  If a respondent subject
 
 8 to administrative revocation under this part submitted to a
 
 9 breath, blood, or urine test and has had no prior alcohol or drug
 
10 enforcement contacts during the five years preceding the date the
 
11 notice of administrative revocation was issued, the director, at
 
12 the request of the respondent at the administrative hearing, may
 
13 issue a conditional permit allowing the respondent to drive,
 
14 after a minimum period of absolute license revocation of thirty
 
15 days, if one or more of the following conditions are met:
 
16      (1)  The respondent is gainfully employed in a position that
 
17           requires driving and will be discharged if the
 
18           respondent's driving privileges are administratively
 
19           revoked; or
 
20      (2)  The respondent has no access to alternative
 
21           transportation and therefore must drive to work or to a
 
22           substance abuse treatment facility or counselor for
 
23           treatment ordered by the director under section    -41.
 

 
Page 55                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1      (b)  A request made pursuant to subsection (a)(1) shall be
 
 2 accompanied by:
 
 3      (1)  A sworn statement from the respondent containing facts
 
 4           establishing the respondent's current employment in a
 
 5           position that requires driving and that the respondent
 
 6           will be discharged if not allowed to drive; and
 
 7      (2)  A sworn statement from the respondent's employer
 
 8           establishing that the employer will in fact discharge
 
 9           the respondent if the respondent is prohibited from
 
10           driving.
 
11      (c)  A request made pursuant to subsection (a)(2) shall be
 
12 accompanied by a sworn statement by the respondent attesting to
 
13 the specific facts upon which the request is based, which
 
14 statement shall be verified by the director.
 
15      (d)  A conditional permit may include restrictions allowing
 
16 the respondent to drive: 
 
17      (1)  Only during hours of employment for activities solely
 
18           within the scope of the employment;
 
19      (2)  Only during daylight hours; or
 
20      (3)  Only for specified purposes or to specified
 
21           destinations.
 
22 In addition, the director may impose any other appropriate
 
23 restrictions, including installation of an ignition interlock
 

 
Page 56                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 system.
 
 2      (e)  The duration of the conditional permit shall be
 
 3 determined on the basis of the criteria set forth in subsections
 
 4 (b) and (c).
 
 5      (f)  If the respondent violates the conditions imposed under
 
 6 this section, the conditional permit shall be rescinded and
 
 7 administrative revocation shall be immediate for the appropriate
 
 8 period authorized by law.
 
 9         -45  Eligibility for relicensing.  To be eligible for
 
10 relicensing after a period of administrative revocation has
 
11 expired, the person shall:
 
12      (1)  Submit proof to the director of compliance with all
 
13           conditions imposed by the director or by the court;
 
14      (2)  Obtain a certified statement from the director
 
15           indicating eligibility for relicensing;
 
16      (3)  Present the certified statement to the appropriate
 
17           licensing official; and
 
18      (4)  Successfully complete each requirement for obtaining a
 
19           new license in this State, including payment of all
 
20           applicable fees.
 
21         -46  Computation of time.  The time in which any act
 
22 provided in this part is to be done is computed by excluding the
 
23 first day and including the last, unless the last day is a
 

 
Page 57                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 Saturday, Sunday, or holiday, and then it is also excluded. 
 
 2                   PART IV.  PROHIBITED CONDUCT
 
 3         -81  Operating a vehicle under the influence of an
 
 4 intoxicant.(a)  A person commits the offense of operating a
 
 5 vehicle under the influence of an intoxicant if the person, while
 
 6 under the influence of an intoxicant, intentionally, knowingly,
 
 7 or recklessly operates or assumes actual physical control of the
 
 8 operation of any vehicle.  The state of mind under this
 
 9 subsection shall apply only to the element of operating or
 
10 assuming control of a vehicle.
 
11      (b)  Operating a vehicle under the influence of an
 
12 intoxicant may be established by any of the following methods of
 
13 proof:
 
14      (1)  The person operates or assumes actual physical control
 
15           of the operation of any vehicle while under the
 
16           influence of an intoxicant within the meaning of
 
17           section    -1;
 
18      (2)  The person operates or assumes actual physical control
 
19           of the operation of any vehicle with .08 or more grams
 
20           of alcohol per two hundred ten liters of breath; or
 
21      (3)  The person operates or assumes actual physical control
 
22           of the operation of any vehicle with .08 or more grams
 
23           of alcohol per one hundred milliliters or cubic
 

 
Page 58                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           centimeters of blood.
 
 2      (c)  A person committing the offense of operating a vehicle
 
 3 under the influence of an intoxicant shall be sentenced as
 
 4 follows without possibility of probation or suspension of
 
 5 sentence:
 
 6      (1)  For the first offense, or any offense not preceded
 
 7           within a five-year period by a conviction for an
 
 8           offense under this section or section    -4(a):
 
 9           (A)  A fourteen-hour minimum alcohol or drug abuse
 
10                rehabilitation program, or both, including
 
11                education and counseling, or other comparable
 
12                program deemed appropriate by the court; and
 
13           (B)  Ninety-day prompt revocation of license and
 
14                privilege to operate a vehicle with absolute
 
15                prohibition from operating a vehicle during the
 
16                revocation period, or the court may impose, in
 
17                lieu of the ninety-day prompt revocation of
 
18                license, a minimum thirty-day prompt revocation of
 
19                license with absolute prohibition from operating a
 
20                vehicle and, for the remainder of the ninety-day
 
21                period, a restriction on the license that allows
 
22                the person to drive for limited work-related
 
23                purposes and to participate in alcohol or drug
 

 
Page 59                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1                treatment programs; and
 
 2           (C)  Any one or more of the following:
 
 3                (i)  Seventy-two hours of community service work;
 
 4               (ii)  Not less than forty-eight hours and not more
 
 5                     than five days of imprisonment; or
 
 6              (iii)  A fine of not less than $150 but not more
 
 7                     than $1,000.
 
 8      (2)  For an offense that occurs within five years of a prior
 
 9           conviction for an offense under this section or section
 
10              -4(a):
 
11           (A)  Prompt revocation of license and privilege to
 
12                operate a vehicle for a period of one year with an
 
13                absolute prohibition from operating a vehicle
 
14                during the revocation period;
 
15           (B)  Either one of the following:
 
16                (i)  Not less than one hundred hours of community
 
17                     service work; or
 
18               (ii)  Not less than forty-eight consecutive hours
 
19                     but not more than fourteen days of
 
20                     imprisonment of which at least forty-eight
 
21                     hours shall be served consecutively; and
 
22           (C)  A fine of not less than $500 but not more than
 
23                $1,500.
 

 
Page 60                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1      (3)  For an offense that occurs within five years of two
 
 2           prior convictions for offenses under this section or
 
 3           section    -4(a):
 
 4           (A)  A fine of not less than $500 but not more than
 
 5                $2,500;
 
 6           (B)  Revocation of license and privilege to operate a
 
 7                vehicle for a period not less than one year but
 
 8                not more than five years; and
 
 9           (C)  Not less than ten days but not more than thirty
 
10                days imprisonment of which at least forty-eight
 
11                hours shall be served consecutively.
 
12      (4)  For an offense that occurs within ten years of three
 
13           prior convictions for offenses under this section or
 
14           section    -4(a):
 
15           (A)  A fine of not less than $1,000 but not more than
 
16                $10,000;
 
17           (B)  Revocation of license and privilege to operate a
 
18                vehicle for a period not less than five years but
 
19                not more than ten years; and
 
20           (C)  Not less than six months but not more than five
 
21                years imprisonment.
 
22           This offense is a class C felony.
 
23      (5)  For an offense that occurs within ten years of five
 

 
Page 61                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           prior convictions for offenses under this section or
 
 2           section    -4(a):
 
 3           (A)  A fine of not less than $2,000 but not more than
 
 4                $25,000;
 
 5           (B)  Revocation of license and privilege to operate a
 
 6                vehicle for life; and
 
 7           (C)  Not less than one year but not more than ten years
 
 8                imprisonment.
 
 9           This offense is a class C felony.
 
10      (d)  Notwithstanding any other law to the contrary, any:
 
11      (1)  Conviction of or guilty plea or nolo contendere plea to
 
12           the offense of operating a vehicle under the influence
 
13           of an intoxicant, intoxicating liquor, drugs, or the
 
14           combined influence of liquor and drugs; or
 
15      (2)  Conviction, guilty plea, or nolo contendere plea in any
 
16           other state or federal jurisdiction for an offense that
 
17           is comparable to operating or being in physical control
 
18           of a vehicle while having either an unlawful alcohol
 
19           concentration in the blood or an unlawful drug content
 
20           in the blood or urine or while under the influence of
 
21           an intoxicant;
 
22 shall be considered a prior conviction for the purposes of this
 
23 part.  No license and privilege revocation shall be imposed
 

 
Page 62                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 pursuant to this subsection if the person's license and privilege
 
 2 to operate a vehicle has previously been administratively revoked
 
 3 pursuant to part III for the same offense; provided that, if the
 
 4 administrative revocation is subsequently reversed, the person's
 
 5 license and privilege to operate a vehicle shall be revoked as
 
 6 provided in this subsection.
 
 7      (e)  Whenever a court sentences a person pursuant to
 
 8 subsection (c), it also shall require that the offender be
 
 9 referred to a substance abuse counselor who has been certified
 
10 pursuant to section 321-193 for an assessment of the offender's
 
11 alcohol or drug abuse or dependence and the need for appropriate
 
12 treatment.  The counselor shall submit a report with
 
13 recommendations to the court.  The court may require the offender
 
14 to obtain appropriate treatment if the counselor's assessment
 
15 establishes the offender's alcohol or drug abuse or dependence.
 
16 All cost for assessment or treatment or both shall be borne by
 
17 the offender.
 
18      (f)  Notwithstanding any other law to the contrary, whenever
 
19 a court revokes a person's driver's license pursuant to this
 
20 section, the examiner of drivers shall not grant to the person a
 
21 new driver's license until the expiration of the period of
 
22 revocation determined by the court.  After the period of
 
23 revocation is completed, the person may apply for and the
 

 
Page 63                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 examiner of drivers may grant to the person a new driver's
 
 2 license notwithstanding the provisions of section 286-126.
 
 3      (g)  Any person sentenced under this section may be ordered
 
 4 to reimburse the county for the cost of any blood or urine tests
 
 5 conducted pursuant to section    -11.  The court shall order the
 
 6 person to make restitution in a lump sum, or in a series of
 
 7 prorated installments, to the police department or other agency
 
 8 incurring the expense of the blood or urine test.
 
 9      (h)  The requirement to provide proof of financial
 
10 responsibility pursuant to section 287-20 shall not be based upon
 
11 a sentence imposed under subsection (c)(1).
 
12      (i)  As used in this section, the term "examiner of drivers"
 
13 shall have the same meaning as provided in section 286-2.
 
14         -82  Operating a vehicle after license and privilege
 
15 have been suspended or revoked for operating a vehicle under the
 
16 influence of an intoxicant; penalties.  (a)  No person whose
 
17 license and privilege to operate a vehicle has been revoked,
 
18 suspended, or otherwise restricted pursuant to part III or
 
19 section    -81, or to part VII or part XIV of chapter 286 or
 
20 section 291-4, 291-7, or 200-81, as those provisions were in
 
21 effect on June 30, 2000, shall operate or assume actual physical
 
22 control of the operation of any vehicle in the State or on or in
 
23 the waters of the State:
 

 
Page 64                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1      (1)  In violation of any restrictions placed on the person's
 
 2           license; 
 
 3      (2)  While the person's license remains suspended or
 
 4           revoked; or
 
 5      (3)  While the person's privilege to operate a vehicle has
 
 6           been revoked.
 
 7      (b)  Any person convicted of violating this section shall be
 
 8 sentenced as follows:
 
 9      (1)  For a first offense, or any offense not preceded within
 
10           a five-year period by conviction for an offense under
 
11           this section:
 
12           (A)  A term of imprisonment of not less than three
 
13                consecutive days but not more than thirty days;
 
14           (B)  A fine of not less than $250 but not more than
 
15                $1,000; and
 
16           (C)  Revocation of license and privilege to operate a
 
17                vehicle for an additional year;
 
18      (2)  For an offense that occurs within five years of a prior
 
19           conviction for an offense under this section:
 
20           (A)  Thirty days imprisonment;
 
21           (B)  A $1,000 fine; and
 
22           (C)  Revocation of license and privilege to operate a
 
23                vehicle for an additional two years; and
 

 
Page 65                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1      (3)  For an offense that occurs within five years of two or
 
 2           more prior convictions for offenses under this section:
 
 3           (A)  One year imprisonment;
 
 4           (B)  A $2,000 fine; and
 
 5           (C)  Permanent revocation of the person's license and
 
 6                privilege to operate a vehicle.
 
 7 The period of revocation shall commence upon the release of the
 
 8 person from the period of imprisonment imposed pursuant to this
 
 9 section.
 
10         -83  Operating a vehicle after consuming a measurable
 
11 amount of alcohol; under the age of twenty-one.(a)  No person
 
12 under the age of twenty-one shall operate or be in actual
 
13 physical control of the operation of a vehicle after consuming a
 
14 measurable amount of alcohol.
 
15      (b)  When a law enforcement officer has probable cause to
 
16 believe that a person under the age of twenty-one operated or was
 
17 in actual physical control of the operation of a vehicle after
 
18 consuming a measurable amount of alcohol, that officer may arrest
 
19 the person for purposes of imposing sanctions under part III."
 
20      SECTION 3.  Section 199-3, Hawaii Revised Statutes, is
 
21 amended by amending subsection (a) to read as follows:
 
22      "(a)  The conservation and resources enforcement officers,
 
23 with respect to all state lands, including public lands, state
 

 
Page 66                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 parks, forest reserves, forests, aquatic life and wildlife areas,
 
 2 Kaho`olawe island reserve, and any other lands and waters subject
 
 3 to the jurisdiction of the department of land and natural
 
 4 resources, shall:
 
 5      (1)  Enforce title 12, chapters 6E and 6K, and rules adopted
 
 6           thereunder;
 
 7      (2)  Investigate complaints, gather evidence, conduct
 
 8           investigations, and conduct field observations and
 
 9           inspections as required or assigned;
 
10      (3)  Cooperate with enforcement authorities of the State,
 
11           counties, and federal government in development of
 
12           programs and mutual agreements for conservation and
 
13           resources enforcement activities within the State;
 
14      (4)  Cooperate with established search and rescue agencies
 
15           of the counties and the federal government in
 
16           developing plans and programs[,] and mutual aid
 
17           agreements for search and rescue activities within the
 
18           State;
 
19      (5)  Check and verify all leases, permits, and licenses
 
20           issued by the department of land and natural resources;
 
21      (6)  Enforce the laws relating to firearms, ammunition, and
 
22           dangerous weapons contained in chapter 134;
 
23      (7)  Enforce the laws in chapter     relating to operating a
 

 
Page 67                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           vessel on or in the waters of the State while using
 
 2           intoxicants;
 
 3     [(7)] (8)  Whether through a specifically designated marine
 
 4           patrol or otherwise, enforce the rules in the areas of
 
 5           boating safety, conservation, and search and rescue
 
 6           relative to the control and management of boating
 
 7           facilities owned or controlled by the State, ocean
 
 8           waters, and navigable streams and any activities
 
 9           thereon or therein, and beaches encumbered with
 
10           easements in favor of the public, and the rules
 
11           regulating vessels and their use in the waters of the
 
12           State; and
 
13     [(8)] (9)  Carry out [such] other duties and responsibilities
 
14           as the board of land and natural resources from time to
 
15           time may direct."
 
16      SECTION 4.  Section 287-20, Hawaii Revised Statutes, is
 
17 amended by amending subsections (a) and (b) to read as follows:
 
18      "(a)  Whenever a driver's license has been suspended or
 
19 revoked:
 
20      (1)  Pursuant to [section 286-151.5 or part XIV of chapter
 
21           286,] part III of chapter    , except as provided in
 
22           section [291-4(f);]    -41(f);
 

 
 
 
Page 68                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1      (2)  Upon a conviction of any offense pursuant to law; or
 
 2      (3)  In the case of minors, pursuant to part V of chapter
 
 3           571,
 
 4 the license shall not at any time thereafter be issued to the
 
 5 person whose license has been suspended or revoked, nor shall the
 
 6 person thereafter operate a motor vehicle, unless and until the
 
 7 person has furnished and thereafter maintains proof of financial
 
 8 responsibility; provided that this section shall not apply to a
 
 9 license [suspended] revoked for operating a vehicle while under
 
10 the age of twenty-one and after consuming a measurable amount of
 
11 alcohol pursuant to section [291-4.3(b)(1),]    -41(b)(1), any
 
12 conviction of a moving violation, any administrative license
 
13 suspension pursuant to chapter 291A, or the first conviction
 
14 within a five-year period for driving without a valid motor
 
15 vehicle insurance policy.
 
16      (b)  Whenever by reason of a conviction of, or adjudication
 
17 under part V of chapter 571 by reason of, any of the offenses
 
18 listed in this subsection, under the laws of the State or
 
19 ordinances of any [political subdivision,] county, a court of
 
20 competent jurisdiction has discretion to revoke or suspend a
 
21 driver's license but does not revoke or suspend the license, the
 
22 administrator [shall] nevertheless, after the expiration of
 
23 thirty days from the date of conviction or adjudication, shall
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 suspend the license and shall keep the [same] license suspended,
 
 2 and the person so convicted or adjudicated shall not thereafter
 
 3 operate a motor vehicle, unless and until the person so convicted
 
 4 or adjudicated furnishes and thereafter maintains proof of
 
 5 financial responsibility.  The offenses referred to are:
 
 6      (1)  Reckless or inattentive driving, [driving] operating a
 
 7           vehicle while under the influence of [intoxicating
 
 8           liquor, driving while under the influence of drugs,] an
 
 9           intoxicant, and [driving while that person's] operating
 
10           a vehicle after license [has] and privilege to operate
 
11           a vehicle have been suspended or revoked, except when a
 
12           person's license has been suspended or revoked for the
 
13           first conviction of driving without a motor vehicle
 
14           insurance policy;
 
15      (2)  Conviction or adjudication under part V of chapter 571
 
16           by reason of any moving violation offense involving a
 
17           motor vehicle if the motor vehicle is in any manner
 
18           involved in an accident in which any person is killed
 
19           or injured, or in which damage to property results to
 
20           an apparent extent in excess of $3,000 and there are
 
21           reasonable grounds for the administrator to believe
 
22           that the defendant is at fault; and
 
23      (3)  Driving without a valid motor vehicle insurance policy
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           if the conviction occurs within a five-year period from
 
 2           any prior conviction."
 
 3      SECTION 5.  Section 663-1.9, Hawaii Revised Statutes, is
 
 4 amended by amending subsections (a), (b), and (c) to read as
 
 5 follows:
 
 6      "(a)  Any health care provider who, in good faith in
 
 7 compliance with section [286-163,]    -21, provides notice
 
 8 concerning the alcohol concentration of a person's blood or drug
 
 9 content of a person's blood or urine shall be immune from any
 
10 civil liability in any action based upon the compliance.  The
 
11 health care provider shall also be immune from any civil
 
12 liability for participating in any subsequent judicial proceeding
 
13 relating to the person's compliance.
 
14      (b)  Any authorized person who properly withdraws blood or
 
15 collects urine from another person at the written request of a
 
16 police officer for testing of the blood's [alcoholic] alcohol
 
17 concentration or drug content[,] or the drug content of the
 
18 urine, and any hospital, laboratory, or clinic, employing or
 
19 utilizing the services of such person, and owning or leasing the
 
20 premises on which such tests are performed, shall not be liable
 
21 for civil damages resulting from the authorized person's acts or
 
22 omissions in withdrawing the blood[,] or collecting urine, except
 
23 for such damages as may result from the authorized person's gross
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 negligence or wanton acts or omissions.
 
 2      (c)  For the purpose of this section:
 
 3      "Authorized person" means a person authorized under
 
 4 section [286-152]    -12 to withdraw blood at the direction of a
 
 5 police officer.
 
 6      "Health care provider" has the same meaning as in
 
 7 section [286-163.]    -21."
 
 8      SECTION 6.  Chapter 200, part VII, Hawaii Revised Statutes,
 
 9 is repealed.
 
10      SECTION 7.  Chapter 286, part VII, Hawaii Revised Statutes,
 
11 is repealed.
 
12      SECTION 8.  Chapter 286, part XIV, Hawaii Revised Statutes,
 
13 is repealed.
 
14      SECTION 9.  Section 291-4, Hawaii Revised Statutes, is
 
15 repealed.
 
16      ["291-4 Driving under the influence of intoxicating
 
17 liquor.(a)  A person commits the offense of driving under the
 
18 influence of intoxicating liquor if:
 
19      (1)  The person operates or assumes actual physical control
 
20           of the operation of any vehicle while under the
 
21           influence of intoxicating liquor, meaning that the
 
22           person concerned is under the influence of intoxicating
 
23           liquor in an amount sufficient to impair the person's
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           normal mental faculties or ability to care for oneself
 
 2           and guard against casualty; or
 
 3      (2)  The person operates or assumes actual physical control
 
 4           of the operation of any vehicle with .08 or more grams
 
 5           of alcohol per one hundred milliliters or cubic
 
 6           centimeters of blood or .08 or more grams of alcohol
 
 7           per two hundred ten liters of breath.
 
 8      (b)  A person committing the offense of driving under the
 
 9 influence of intoxicating liquor shall be sentenced as follows
 
10 without possibility of probation or suspension of sentence:
 
11      (1)  For the first offense, or any offense not preceded
 
12           within a five-year period by a conviction under this
 
13           section, by:
 
14           (A)  A fourteen-hour minimum alcohol abuse
 
15                rehabilitation program including education and
 
16                counseling, or other comparable program deemed
 
17                appropriate by the court; and
 
18           (B)  Ninety-day prompt suspension of license with
 
19                absolute prohibition from operating a motor
 
20                vehicle during suspension of license, or the court
 
21                may impose, in lieu of the ninety-day prompt
 
22                suspension of license, a minimum thirty-day prompt
 
23                suspension of license with absolute prohibition
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1                from operating a motor vehicle and, for the
 
 2                remainder of the ninety-day period, a restriction
 
 3                on the license that allows the person to drive for
 
 4                limited work-related purposes and to participate
 
 5                in alcoholism treatment programs; and
 
 6           (C)  Any one or more of the following:
 
 7                (i)  Seventy-two hours of community service work;
 
 8               (ii)  Not less than forty-eight hours and not more
 
 9                     than five days of imprisonment; or
 
10              (iii)  A fine of not less than $150 but not more
 
11                     than $1,000.
 
12      (2)  For an offense which occurs within five years of a
 
13           prior conviction under this section, by:
 
14           (A)  Prompt suspension of license for a period of one
 
15                year with the absolute prohibition from operating
 
16                a motor vehicle during suspension of license;
 
17           (B)  Either one of the following:
 
18                (i)  Not less than one hundred hours of community
 
19                     service work; or
 
20               (ii)  Not less than forty-eight consecutive hours
 
21                     but not more than fourteen days of
 
22                     imprisonment of which at least forty-eight
 
23                     hours shall be served consecutively; and
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           (C)  A fine of not less than $500 but not more than
 
 2                $1,500.
 
 3      (3)  For an offense which occurs within five years of two
 
 4           prior convictions under this section, by:
 
 5           (A)  A fine of not less than $500 but not more than
 
 6                $2,500;
 
 7           (B)  Revocation of license for a period not less than
 
 8                one year but not more than five years; and
 
 9           (C)  Not less than ten days but not more than thirty
 
10                days imprisonment of which at least forty-eight
 
11                hours shall be served consecutively.
 
12      (4)  Notwithstanding any other law to the contrary, any
 
13           conviction for driving under the influence of
 
14           intoxicating liquor, shall be considered a prior
 
15           conviction.
 
16      (5)  No license suspension or revocation shall be imposed
 
17           pursuant to this subsection if the person's license has
 
18           previously been administratively revoked pursuant to
 
19           part XIV of chapter 286 for the same offense; provided
 
20           that, if the administrative revocation is subsequently
 
21           reversed, the person's license shall be suspended or
 
22           revoked as provided in this subsection.
 
23      (c)  Whenever a court sentences a person pursuant to
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 subsection (b), it shall also require that the offender be
 
 2 referred to a substance abuse counselor who has been certified
 
 3 pursuant to section 321-193 for an assessment of the offender's
 
 4 alcohol abuse or dependence and the need for appropriate
 
 5 treatment.  The counselor shall submit a report with
 
 6 recommendations to the court.  The court may require the offender
 
 7 to obtain appropriate treatment if the counselor's assessment
 
 8 establishes the offender's alcohol abuse or dependence.
 
 9      All cost for assessment or treatment or both shall be borne
 
10 by the offender.
 
11      (d)  Notwithstanding any other law to the contrary, whenever
 
12 a court revokes a person's driver's license pursuant to the
 
13 provisions of this section, the examiner of drivers shall not
 
14 grant to the person an application for a new driver's license for
 
15 a period to be determined by the court.
 
16      (e)  Any person sentenced under this section may be ordered
 
17 to reimburse the county for the cost of any blood tests conducted
 
18 under section 286-152.  The court shall order the person to make
 
19 restitution in a lump sum, or in a series of prorated
 
20 installments, to the police department, or other agency incurring
 
21 the expense of the blood test.
 
22      (f)  The requirement to provide proof of financial
 
23 responsibility pursuant to section 287-20 shall not be based upon
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 a revocation under part XIV of chapter 286 unless the person's
 
 2 license had been previously revoked under that part in the
 
 3 five-year period immediately preceding the revocation at issue,
 
 4 nor shall the requirement to provide proof of financial
 
 5 responsibility pursuant to section 287-20 be based upon a
 
 6 sentence imposed under subsection (b)(1).
 
 7      (g)  As used in this section the terms "driver", "driver's
 
 8 license", and "examiner of drivers", shall have the same meanings
 
 9 as provided in section 286-2 and the term "vehicle" shall have
 
10 the same meaning as provided in section 291C-1."]
 
11      SECTION 10.  Section 291-4.3, Hawaii Revised Statutes, is
 
12 repealed.
 
13      ["[291-4.3]  Driving after consuming a measurable amount of
 
14 alcohol; persons under the age of twenty-one.  (a)  It shall be
 
15 unlawful for any person under the age of twenty-one years to
 
16 drive, operate, or assume actual physical control of the
 
17 operation of any vehicle with a measurable amount of alcohol
 
18 concentration.  A law enforcement officer may arrest a person
 
19 under this section when the officer has probable cause to believe
 
20 the arrested person is under the age of twenty-one and had been
 
21 driving or was in actual physical control of a motor vehicle or
 
22 moped upon the public highways with a measurable amount of
 
23 alcohol.  For purposes of this section, "measurable amount of
 

 
Page 77                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 alcohol" means a test result equal to or greater than .02 but
 
 2 less than .08 grams of alcohol per one hundred milliliters or
 
 3 cubic centimeters of blood or equal to or greater than .02 but
 
 4 less than .08 grams of alcohol per two hundred ten liters of
 
 5 breath.
 
 6      (b)  A person who violates this section shall be sentenced
 
 7 as follows:
 
 8      (1)  For a first violation or any violation not preceded
 
 9           within a five-year period by a prior alcohol
 
10           enforcement contact:
 
11           (A)  The court shall impose:
 
12                (i)  A requirement that the person and, if the
 
13                     person is under the age of eighteen, the
 
14                     person's parent or guardian attend an alcohol
 
15                     abuse education and counseling program for
 
16                     not more than ten hours; and
 
17               (ii)  One hundred eighty-day prompt suspension of
 
18                     license with absolute prohibition from
 
19                     operating a motor vehicle during suspension
 
20                     of license, or in the case of a person
 
21                     eighteen years of age or older, the court may
 
22                     impose, in lieu of the one hundred eighty-day
 
23                     prompt suspension of license, a minimum
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1                     thirty-day prompt suspension of license with
 
 2                     absolute prohibition from operating a motor
 
 3                     vehicle and, for the remainder of the one
 
 4                     hundred eighty-day period, a restriction on
 
 5                     the license that allows the person to drive
 
 6                     for limited work-related purposes and to
 
 7                     participate in alcohol abuse education and
 
 8                     treatment programs; and
 
 9           (B)  In addition, the court may impose any one or more
 
10                of the following:
 
11                (i)  Not more than thirty-six hours of community
 
12                     service work; or
 
13               (ii)  A fine of not less than $150 but not more
 
14                     than $500.
 
15      (2)  For a violation that occurs within five years of a
 
16           prior alcohol enforcement contact:
 
17           (A)  The court shall impose prompt suspension of
 
18                license for a period of one year with the absolute
 
19                prohibition from operating a motor vehicle during
 
20                suspension of license; and
 
21           (B)  In addition, the court may impose any of the
 
22                following:
 
23                (i)  Not more than fifty hours of community
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1                     service work; or
 
 2               (ii)  A fine of not less than $300 but not more
 
 3                     than $1,000.
 
 4      (3)  For a violation that occurs within five years of two
 
 5           prior alcohol enforcement contacts:
 
 6           (A)  The court shall impose revocation of license for a
 
 7                period of two years; and
 
 8           (B)  In addition, the court may impose any of the
 
 9                following:
 
10                (i)  Not more than one hundred hours of community
 
11                     service work; or
 
12               (ii)  A fine of not less than $300 but not more
 
13                     than $1,000.
 
14      (4)  Notwithstanding any other law to the contrary, any
 
15           conviction or plea under this section shall be
 
16           considered a prior alcohol enforcement contact.
 
17      (c)  Whenever a court sentences a person pursuant to
 
18 subsection (b)(2) or (3), it also shall require that the person
 
19 be referred to a substance abuse counselor who has been certified
 
20 pursuant to section 321-193 for an assessment of the person's
 
21 alcohol abuse or dependence and the need for appropriate
 
22 treatment.  The counselor shall submit a report with
 
23 recommendations to the court.  The court shall require the person
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 to obtain appropriate treatment if the counselor's assessment
 
 2 establishes the person's alcohol abuse or dependence.  All costs
 
 3 for assessment or treatment or both shall be borne by the person
 
 4 or by the person's parent or guardian, if the person is under the
 
 5 age of eighteen.
 
 6      (d)  Notwithstanding section 831-3.2 or any other law to the
 
 7 contrary, a person convicted of a first-time violation under
 
 8 subsection (b)(1), who had no prior alcohol enforcement contacts,
 
 9 may apply to the court for an expungement order upon attaining
 
10 the age of twenty-one, or thereafter, if the person has fulfilled
 
11 the terms of the sentence imposed by the court and has had no
 
12 subsequent alcohol or drug-related enforcement contacts.
 
13      (e)  Notwithstanding any other law to the contrary, whenever
 
14 a court revokes a person's driver's license pursuant to this
 
15 section, the examiner of drivers shall not grant to the person an
 
16 application for a new driver's license for a period to be
 
17 determined by the court.
 
18      (f)  Any person sentenced under this section may be ordered
 
19 to reimburse the county for the cost of any blood tests conducted
 
20 pursuant to section 286-152.  The court shall order the person to
 
21 make restitution in a lump sum, or in a series of prorated
 
22 installments, to the police department or other agency incurring
 
23 the expense of the blood test.
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1      (g)  The requirement to provide proof of financial
 
 2 responsibility pursuant to section 287-20 shall not be based upon
 
 3 a sentence imposed under subsection (b)(1).
 
 4      (h)  Any person who violates this section shall be guilty of
 
 5 a violation.
 
 6      (i)  As used in this section, the terms "driver", "driver's
 
 7 license", and "examiner of drivers", shall have the same meanings
 
 8 as provided in section 286-2, the term "alcohol enforcement
 
 9 contact" shall have the same meaning as in section 286-251, and
 
10 the term "vehicle" shall have the same meaning as provided in
 
11 section 291C-1."]
 
12      SECTION 11.  Section 291-4.4. Hawaii Revised Statutes, is
 
13 repealed.
 
14      ["[291-4.4]  Habitually driving under the influence of
 
15 intoxicating liquor or drugs.(a)  A person commits the offense
 
16 of habitually driving under the influence of intoxicating liquor
 
17 or drugs if, during a ten-year period the person has been
 
18 convicted three or more times for a driving under the influence
 
19 offense; and
 
20      (1)  The person operates or assumes actual physical control
 
21           of the operation of any vehicle while under the
 
22           influence of intoxicating liquor, meaning that the
 
23           person is under the influence of intoxicating liquor in
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           an amount sufficient to impair the person's normal
 
 2           mental faculties or ability to care for oneself and
 
 3           guard against casualty;
 
 4      (2)  The person operates or assumes actual physical control
 
 5           of the operation of any vehicle with .08 or more grams
 
 6           of alcohol per one hundred milliliters or cubic
 
 7           centimeters of blood or .08 or more grams of alcohol
 
 8           per two hundred ten liters of breath; or
 
 9      (3)  A person operates or assumes actual physical control of
 
10           the operation of any vehicle while under the influence
 
11           of any drug which impairs such person's ability to
 
12           operate the vehicle in a careful and prudent manner.
 
13           The term "drug" as used in this section shall mean any
 
14           controlled substance as defined and enumerated on
 
15           schedules I through IV of chapter 329.
 
16      (b)  For the purposes of this section a driving under the
 
17 influence offense means a violation of section 291-4, 291-7, or
 
18 707-702.5, or violation of laws in another jurisdiction which
 
19 requires proof of each element of the offenses punishable under
 
20 either section 291-4, 291-7, or 707-702.5 if committed in Hawaii.
 
21      (c)  Habitually driving under the influence of intoxicating
 
22 liquor or drugs is a class C felony."]
 
23      SECTION 12.  Section 291-4.5, Hawaii Revised Statutes, is
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 repealed.
 
 2      ["291-4.5  Driving after license suspended or revoked for
 
 3 driving under the influence of intoxicating liquor; penalties.
 
 4 (a)  No person whose driver's license has been revoked,
 
 5 suspended, or otherwise restricted pursuant to chapter 286 or
 
 6 section 291-4 or 291-7 shall operate a motor vehicle upon the
 
 7 highways of this State either while the person's license remains
 
 8 suspended or revoked or in violation of the restrictions placed
 
 9 on the person's license.  The period of suspension or revocation
 
10 shall commence upon the release of the person from the period of
 
11 imprisonment imposed pursuant to this section.
 
12      (b)  Any person convicted of violating this section shall be
 
13 sentenced as follows:
 
14      (1)  For a first offense, or any offense not preceded within
 
15           a five-year period by a conviction under this section:
 
16           (A)  A term of imprisonment at least three consecutive
 
17                days but not more than thirty days;
 
18           (B)  A fine not less than $250 but not more than
 
19                $1,000; and
 
20           (C)  License suspension or revocation for an additional
 
21                year;
 
22      (2)  For an offense which occurs within five years of a
 
23           prior conviction under this section:
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           (A)  Thirty days imprisonment;
 
 2           (B)  A fine of $1,000; and
 
 3           (C)  License suspension or revocation for an additional
 
 4                two years; and
 
 5      (3)  For an offense that occurs within five years of two or
 
 6           more prior convictions under this section:
 
 7           (A)  One year imprisonment;
 
 8           (B)  A $2,000 fine; and
 
 9           (C)  Permanent revocation of the person's license."]
 
10      SECTION 13.  Section 291-5, Hawaii Revised Statutes, is
 
11 repealed.
 
12      ["291-5 Evidence of intoxication.(a)  In any criminal
 
13 prosecution for a violation of section 291-4, .08 or more grams
 
14 of alcohol per one hundred milliliters or cubic centimeters of
 
15 the defendant's blood or .08 or more grams of alcohol per two
 
16 hundred ten liters of the defendant's breath within three hours
 
17 after the time of the alleged violation as shown by chemical
 
18 analysis or other approved analytical techniques of the
 
19 defendant's blood or breath shall be competent evidence that the
 
20 defendant was under the influence of intoxicating liquor at the
 
21 time of the alleged violation.
 
22      (b)  In any criminal prosecution for a violation of section
 
23 291-4, the amount of alcohol found in the defendant's blood or
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 breath within three hours after the time of the alleged violation
 
 2 as shown by chemical analysis or other approved analytical
 
 3 techniques of the defendant's blood or breath shall be competent
 
 4 evidence that the defendant was under the influence of
 
 5 intoxicating liquor at the time of the alleged violation and
 
 6 shall give rise to the following presumptions:
 
 7      (1)  If there were .05 or less grams of alcohol per one
 
 8           hundred milliliters or cubic centimeters of blood or
 
 9           .05 or less grams of alcohol per two hundred ten liters
 
10           of defendant's breath, it shall be presumed that the
 
11           defendant was not under the influence of intoxicating
 
12           liquor at the time of the alleged violation; and
 
13      (2)  If there were in excess of .05 grams of alcohol per one
 
14           hundred milliliters or cubic centimeters of defendant's
 
15           blood or .05 grams of alcohol per two hundred ten
 
16           liters of defendant's breath, but less than .08 grams
 
17           of alcohol per one hundred milliliters or cubic
 
18           centimeters of defendant's blood or .08 grams of
 
19           alcohol per two hundred ten liters of defendant's
 
20           breath, that fact may be considered with other
 
21           competent evidence in determining whether or not the
 
22           defendant was at the time of the alleged violation
 
23           under the influence of intoxicating liquor but shall
 

 
Page 86                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           not of itself give rise to any presumption.
 
 2      (c)  Nothing in this section shall be construed as limiting
 
 3 the introduction, in any criminal proceeding for a violation
 
 4 under section 291-4 or in any proceeding under part XIV of
 
 5 chapter 286, of relevant evidence of a person's alcohol content
 
 6 obtained more than three hours after an alleged violation;
 
 7 provided that the evidence is offered in compliance with the
 
 8 Hawaii rules of evidence."]
 
 9      SECTION 14.  Section 291-6, Hawaii Revised Statutes, is
 
10 repealed.
 
11      ["291-6 Medical services.  The several county and
 
12 government physicians shall, or any other qualified person may,
 
13 make such tests and analyses as may be requested of them by any
 
14 police officer in connection with the determination of whether or
 
15 not a person is or was under the influence of intoxicating liquor
 
16 for the purposes of sections 291-4 and 291-5."]
 
17      SECTION 15.  Section 291-7, Hawaii Revised Statues, is
 
18 repealed.
 
19      ["291-7 Driving under the influence of drugs.(a)  A
 
20 person commits the offense of driving under the influence of
 
21 drugs if the person operates or assumes actual physical control
 
22 of the operation of any vehicle while under the influence of ay
 
23 drug which impairs such person's ability to operate the vehicle
 

 
Page 87                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 in a careful and prudent manner.  The term "drug" as used in this
 
 2 section shall mean any controlled substance as defined and
 
 3 enumerated on schedules I through IV of chapter 329.
 
 4      (b)  A person committing the offense of driving under the
 
 5 influence of drugs shall be sentenced as follows without
 
 6 possibility of probation or suspension of sentence:
 
 7      (1)  For a first offense, or any offense not preceded within
 
 8           a five-year period by a conviction under this section,
 
 9           by:
 
10           (A)  A fourteen-hour minimum drug abuse rehabilitation
 
11                program, including education and counseling, or
 
12                other comparable programs deemed appropriate by
 
13                the court; and
 
14           (B)  Ninety-day prompt suspension of license with
 
15                absolute prohibition from operating a motor
 
16                vehicle during suspension of license, or the court
 
17                may impose, in lieu of the ninety-day prompt
 
18                suspension of license, a minimum thirty-day prompt
 
19                suspension of license with absolute prohibition
 
20                from operating a motor vehicle and, for the
 
21                remainder of the ninety-day period, a restriction
 
22                on the license that allows the person to drive for
 
23                limited work-related purposes and to participate
 

 
Page 88                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1                in drug treatment programs; and
 
 2           (C)  Any one or more of the following:
 
 3                (i)  Seventy-two hours of community service work;
 
 4               (ii)  Not less than forty-eight hours of
 
 5                     imprisonment; or
 
 6              (iii)  A fine of not less than $150 but not more
 
 7                     than $1,000.
 
 8      (2)  For an offense which occurs within five years of a
 
 9           prior conviction under this section:
 
10           (A)  Prompt suspension of license for a period of one
 
11                year with the absolute prohibition from operating
 
12                a motor vehicle during suspension of license;
 
13           (B)  Either one of the following:
 
14                (i)  Not less than eighty hours of community
 
15                     service work; or
 
16               (ii)  Not less than forty-eight consecutive hours
 
17                     of imprisonment; and
 
18           (C)  A fine of not less than $500 but not more than
 
19                $1,000.
 
20      (3)  For an offense which occurs within five years of two
 
21           prior convictions under this section, by:
 
22           (A)  A fine of not less than $500 but not more than
 
23                $1,000;
 

 
Page 89                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1           (B)  Revocation of license for a period not less than
 
 2                one year but not more than five years; and
 
 3           (C)  Not less than ten days but not more than one
 
 4                hundred eighty days imprisonment.
 
 5      (4)  Notwithstanding any other law to the contrary, any
 
 6           conviction for driving under the influence of drugs
 
 7           shall be considered a prior conviction.
 
 8      (c)  Whenever a court sentences a person pursuant to
 
 9 subsection (b)(2) or (3), it shall also require that the offender
 
10 be referred to a substance abuse counselor who has been certified
 
11 pursuant to section 321-193 for an assessment of the offender's
 
12 drug dependence and the need for treatment.  The counselor shall
 
13 submit a report with recommendations to the court.  The court may
 
14 require the offender to obtain appropriate treatment.
 
15      All costs for such assessment or treatment or both shall be
 
16 borne by the offender.
 
17      (d)  Notwithstanding any other law to the contrary, whenever
 
18 a court revokes a person's driver's license pursuant to the
 
19 provisions of this section, the examiner of drivers shall not
 
20 grant to such person an application for a new driver's license
 
21 for such period as specified by the court.
 
22      (e)  As used in this section, the terms "driver", "driver's
 
23 license", and "examiner of drivers" shall have the same meanings
 

 
Page 90                                                    1212
                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 as provided in section 286-2; and the term "vehicle" shall have
 
 2 the same meaning as provided in section 291C-1."]
 
 3      SECTION 16.  If any provision of this Act, or the
 
 4 application thereof to any person or circumstance is held
 
 5 invalid, the invalidity does not affect other provisions or
 
 6 applications of the Act which can be given effect without the
 
 7 invalid provision or application,and to this end the provisions
 
 8 of this Act are severable.
 
 9      SECTION 17.  The revisor of statutes shall prepare proposed
 
10 conforming legislation to make necessary amendments to statutes
 
11 affected by the repeal of part VII of chapter 200, parts VII and
 
12 XIV of chapter 286, and sections 291-4, 291-4.3, 291-4.4,
 
13 291-4.5, 291-5, 291-6, and 291-7.  The revisor of statutes shall
 
14 transmit such proposed legislation to the legislature not later
 
15 than twenty days prior to the convening of the regular session of
 
16 2000.
 
17      SECTION 18.  Statutory material to be repealed is bracketed.
 
18 New statutory material is underscored.
 
19      SECTION 19.  This Act shall take effect on July 1, 2000, and
 
20 shall apply to any act occurring after its effective date.