Report Title:

Motor Vehicles; Driving With Illegal Drugs in Blood

Description:

Establishes a new offense of operating a vehicle with a measurable amount of illegal drugs in a person's blood or urine, without the need to show that the drug must have impaired the person's ability to operate a vehicle in a careful and prudent manner. Provides for mandatory drug testing.

HOUSE OF REPRESENTATIVES

H.B. NO.

1592

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to Highway Safety.

 

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

SECTION 1. The purpose of this Act is to establish a new offense of operating a vehicle with a measurable amount of illegal drugs in a person's blood or urine, without the need to show that the drug must have impaired the person's ability to operate the vehicle. This Act also provides for mandatory drug testing to determine the person's illegal drug content.

This offense is different from the existing offense of operating a vehicle under the influence of an intoxicant under section 291E-61, Hawaii Revised Statutes, which also imposes penalties for driving with a drug in the person's blood or urine because section 291E-61 requires in addition that the operator of the vehicle be "under the influence" of the drug such that the drug "impairs the person's ability to operate the vehicle in a careful and prudent manner".

The legislature finds that an offense that is similar to the one enacted by this Act has already been enacted in Hawaii with respect to persons under age twenty-one who illegally consume alcohol. In particular, section 291E-64, Hawaii Revised Statutes, makes it unlawful for any person under the age of twenty-one years to operate a vehicle "with a measurable amount of alcohol". A law enforcement officer may arrest a person under that section when the officer has probable cause to believe the arrested person is under the age of twenty-one and had been operating a vehicle, without the need to show that the alcohol impaired the person's ability to operate the vehicle in a careful and prudent manner.

The legislature further finds that eight other states have adopted some form of "per se" or "zero tolerance" law with respect to illegal drugs to improve traffic safety. Generally, these laws make it a criminal offense to operate a vehicle while having a drug or metabolite in one's body or bodily fluids. Under these statutes, individuals can be found guilty of violating the law if they operated a motor vehicle while any prohibited substances were present in their system.

The legislature finds that this Act creates an important legal distinction between having to prove a nexus, or causal relationship, between the observed driver impairment and taking an illegal drug, and simply demonstrating that observed impaired driving behavior was associated with an illegal drug in the individual's body while operating the motor vehicle. This Act attempts to remedy the inequality of dealing with alcohol and other drugs by making the drug limit "a measurable amount" of an illegal drug, and by making the penalties for this offense equivalent to the driving under the influence of an intoxicant offense.

SECTION 2. Chapter 291E, Hawaii Revised Statutes, is amended by adding a new section to part IV to be appropriately designated and to read as follows:

"§291E- Operating a vehicle with a measurable amount of illegal drugs. (a) A person commits the offense of operating a vehicle with a measurable amount of illegal drugs if the person operates or assumes actual physical control of a vehicle with a measurable amount of any illegal drug in the person's blood or urine. A finding that the person was under the influence of an illegal drug that impaired the person's ability to operate the vehicle in a careful and prudent manner shall not be an element of the offense under this section. For the purposes of this section, the presence of a measurable amount of an illegal drug in the person's urine or blood, which amount is clearly indicative of actual drug use and not passive inhalation, as shown by chemical analysis or other approved analytical techniques of the person's urine or blood, shall create a presumption that the drug is present in the person's blood or urine as a result of actual use and not passive inhalation. This presumption may be overcome only by a showing by clear and convincing evidence that the drug is present in the person's blood or urine as a result of passive inhalation, or the consumption of prescribed medication or other legal substance.

(b) A person committing the offense of operating a vehicle with a measurable amount of illegal drugs shall be sentenced as follows without possibility of probation or suspension of sentence:

(1) For the first offense, or any offense not preceded within a five-year period by a conviction for an offense under this section, section 291E-4(a), or section 291E-61:

(A) A fourteen-hour minimum substance abuse rehabilitation program, including education and counseling, or other comparable program deemed appropriate by the court;

(B) Ninety-day prompt suspension of license and privilege to operate a vehicle during the suspension period, or the court may impose, in lieu of the ninety-day prompt suspension of license, a minimum thirty-day prompt suspension of license with absolute prohibition from operating a vehicle and, for the remainder of the ninety-day period, a restriction on the license that allows the person to drive for limited work-related purposes and to participate in substance abuse treatment programs;

(C) Any one or more of the following:

(i) Seventy-two hours of community service work;

(ii) Not less than forty-eight hours and not more than five days of imprisonment; or

(iii) A fine of not less than $150 but not more than $1,000; and

(D) A surcharge of $25 to be deposited into the neurotrauma special fund;

(2) For an offense that occurs within five years of a prior conviction for an offense under this section, section 291E-4(a), or section 291E-61 by:

(A) Prompt suspension of license and privilege to operate a vehicle for a period of one year with an absolute prohibition from operating a vehicle during the suspension period;

(B) Either one of the following:

(i) Not less than two hundred forty hours of community service work; or

(ii) Not less than five days but not more than fourteen days of imprisonment of which at least forty-eight hours shall be served consecutively;

(C) A fine of not less than $500 but not more than $1,500; and

(D) A surcharge of $25 to be deposited into the neurotrauma special fund;

(3) For an offense that occurs within five years of two prior convictions for offenses under this section, section 291E-4(a), or section 291E-61:

(A) A fine of not less than $500 but not more than $2,500;

(B) Revocation of license and privilege to operate a vehicle for a period not less than one year but not more than five years;

(C) Not less than ten days but not more than thirty days imprisonment of which at least forty-eight hours shall be served consecutively; and

(D) A surcharge of $25 to be deposited into the neurotrauma special fund;

(4) For an offense that occurs within ten years of three or more prior convictions for offenses under this section, section 707-702.5, section 291E-4(a), or section 291E-61:

(A) Mandatory revocation of license and privilege to operate a vehicle for a period not less than one year but not more than five years;

(B) Not less than ten days imprisonment, of which at least forty-eight hours shall be served consecutively;

(C) Referral to a substance abuse counselor as provided in subsection (d); and

(D) A surcharge of $25 to be deposited into the neurotrauma special fund.

An offense under this paragraph is a class C felony; and

(5) Any person eighteen years of age or older who is convicted under this section or section 291E-61 and who operated a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of forty-eight hours; provided that the total term of imprisonment for a person convicted under this paragraph and paragraphs (1), (2), or (3) shall not exceed thirty days.

(c) Notwithstanding any other law to the contrary, any:

(1) Conviction under this section, section 291E-4(a), or section 291E-61; or

(2) Conviction in any other state or federal jurisdiction for an offense that is comparable to operating a vehicle with a measurable amount of illegal drugs under this section, or operating or being in physical control of a vehicle while having either an unlawful alcohol concentration or an unlawful drug content in the blood or urine or while under the influence of an intoxicant;

shall be considered a prior conviction for the purposes of imposing sentence under this section. No license and privilege suspension or revocation shall be imposed pursuant to this section if the person's license and privilege to operate a vehicle has previously been administratively revoked pursuant to part III for the same act; provided that, if the administrative suspension or revocation is subsequently reversed, the person's license and privilege to operate a vehicle shall be suspended or revoked as provided in this section.

(d) Whenever a court sentences a person pursuant to subsection (b), it also shall require that the offender be referred to the driver's education program for an assessment, by a certified substance abuse counselor, of the offender's substance abuse or dependence and the need for appropriate treatment. The counselor shall submit a report with recommendations to the court. The court shall require the offender to obtain appropriate treatment if the counselor's assessment establishes the offender's substance abuse or dependence. All costs for assessment and treatment shall be borne by the offender.

(e) Notwithstanding any other law to the contrary, whenever a court revokes a person's driver's license pursuant to this section, the examiner of drivers shall not grant to the person a new driver's license until the expiration of the period of revocation determined by the court. After the period of revocation is completed, the person may apply for and the examiner of drivers may grant to the person a new driver's license.

(f) Any person sentenced under this section may be ordered to reimburse the county for the cost of any blood or urine tests conducted pursuant to section 291E-11. The court shall order the person to make restitution in a lump sum, or in a series of prorated installments, to the police department or other agency incurring the expense of the blood or urine test.

(g) The requirement to provide proof of financial responsibility pursuant to section 287-20 shall not be based upon a sentence imposed under subsection (b)(1).

(h) As used in this section:

"Examiner of drivers" has the same meaning as provided in section 286-2.

"Illegal drug" means:

(1) Any controlled substance, as defined and enumerated in schedules I through IV of chapter 329, or its metabolites, the possession of which would be illegal under state law; or

(2) Any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate as those terms are defined in section 712-1240."

SECTION 3. Section 291E-11, Hawaii Revised Statutes, is amended by amending subsections (d) and (e) to read as follows:

"(d) If there is probable cause to believe that a person is in violation of section 291E-61[,] or 291- , as a result of having consumed any drug, then the person shall [elect]:

(1) Elect to take a blood or urine test, or both, for the purpose of determining the drug content[.] under section 291E-61; or

(2) Take both blood and urine tests for the purpose of determining the person's illegal drug content under section 291E- .

Drug content shall be measured by the presence of any drug or its metabolic products, or both.

(e) A person who chooses to submit to a breath test under subsection (c) also may be requested to submit to a blood or urine test, if the law enforcement officer has probable cause to believe that the person was operating a vehicle while under the influence of any drug under section 291E-61 or 291- and the officer has probable cause to believe that a blood or urine test will reveal evidence of the person being under the influence of any drug. The law enforcement officer shall state in the officer's report the facts upon which that belief is based. The person shall [elect]:

(1) Elect to take a blood or urine test, or both, for the purpose of determining the person's drug content[.] under section 291E-61; or

(2) Take both blood and urine tests for the purpose of determining the person's illegal drug content under section 291E- .

Results of a blood or urine test conducted to determine drug content also shall be admissible for the purpose of determining the person's alcohol concentration. Submission to testing for drugs under subsection (d) or this subsection shall not be a substitute for alcohol tests requested under subsection (c)."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. Statutory material to be repealed is bracketed. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:

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