Title:

Intoxicants; Use of While Operating Vehicle

Description:

Establishes offense of habitually operating a vehicle while under influence of an intoxicant. Adds certain offenses committed as a minor as "prior" offenses. (SD1)

THE SENATE

S.B. NO.

1105

TWENTY-SECOND LEGISLATURE, 2003

S.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to chapter 291e.

 

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

SECTION 1. Chapter 291E, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§291E- Habitually operating a vehicle under the influence of an intoxicant. (a) A person commits the offense of habitually operating a vehicle under the influence of an intoxicant if:

(1) The person is a habitual operator of a vehicle while under the influence of an intoxicant; and

(2) The person operates or assumes actual physical control of a vehicle:

(A) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty;

(B) While under the influence of any drug that impairs the person's ability to operate the vehicle in a careful and prudent manner;

(C) With .08 or more grams of alcohol per two hundred ten liters of breath; or

(D) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.

(b) For the purposes of this section:

(1) A person has the status of a "habitual operator of a vehicle while under the influence of an intoxicant" if the person has been convicted three or more times within ten years of the instant offense, for offenses of operating a vehicle under the influence.

(2) "Convicted three or more times for offenses of operating a vehicle under the influence" means that at the time of the behavior for which the person is charged under this section, the person has had, on three or more times within ten years of the instant offense:

(A) A judgment on a verdict or a finding of guilty, or a plea of guilty or nolo contendere, for a violation of this section or sections 291-4, 291-4.4, 291-7, 291E-61, or 707-702.5;

(B) A judgment on a verdict or a finding of guilty, or a plea of guilty or nolo contendere, for an offense that is comparable to this section or sections 291-4, 291-4.4, 291-7, 291E-61, or 707-702.5; or

(C) An adjudication, in the case of a minor, that the minor has committed a law or probation violation that if committed by an adult would constitute a violation of this section or sections 291-4, 291-4.4, 291-7, 291E-61, or 707-702.5

that, at the time of the instant offense, had not been expunged by pardon, reversed, or set aside. All convictions that have been expunged by pardon, reversed, or set aside prior to the instant offense shall not be deemed prior convictions for the purposes of proving the person's status as a habitual operator of a vehicle while under the influence of alcohol.

(c) Habitually operating a vehicle while under the influence of an intoxicant is a class C felony.

(d) For a conviction under this section the sentence shall be either:

(1) An indeterminate term of imprisonment of five years; or

(2) A term of probation of five years, with conditions to include:

(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 section 291E-61(d); and

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

SECTION 2. Section 291E-1, Hawaii Revised Statutes, is amended by amending the definition of "vehicle" to read as follows:

""Vehicle" includes a:

(1) Motor vehicle;

(2) Moped; [and]

(3) Vessel[.]; and

(4) Bicycle as defined in section 286-2."

SECTION 3. Section 291E-4, Hawaii Revised Statutes, is amended to read as follows:

"[[]§291E-4[]] Convictions and acts prior to January 1, 2002. (a) Any:

(1) Conviction for an offense under section 200-81, 291-4, 291-4.4, or 291-7, as those sections were in effect on December 31, 2001; [or]

(2) Conviction in any other state or federal jurisdiction for an offense that is comparable to 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; or

(3) Adjudication of a minor for law or probation violation that if committed by an adult would constitute a violation of section 200-81, 291-4, 291-4.4, 291-4.5, or 291-7 as those sections were in effect on December 31, 2001;

shall be counted as a prior offense for purposes of section 291E-41 or 291E-61.

(b) Any conviction of an offense under section 291-4, 291-4.4, 291-4.5, or 291-7 as those sections were in effect on December 31, 2001, shall be counted for purposes of imposing sentence for a violation under section 291E-62."

SECTION 4. Section 291E-11, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The test or tests shall be administered at the request of a law enforcement officer having probable cause to believe the person operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State is under the influence of an intoxicant or is under the age of twenty-one and has consumed a measurable amount of alcohol, only after[:

(1) A] a lawful arrest[; and

(2) The person has been informed by a law enforcement officer of the sanctions under section 291E-41 or 291E-65, as applicable to the offense]."

SECTION 5. Section 291E-16, Hawaii Revised Statutes, is amended to read as follows:

"[[]§291E-16[]] Proof of refusal; admissibility. If a legally arrested person refuses to submit to a test of the person's breath, blood, or urine, evidence of refusal shall be admissible [only] in a proceeding under part III or section 291E-65 and [shall not] may be admissible in any other action or proceeding, whether civil or criminal."

SECTION 6. Section 291E-33, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Whenever a person is arrested for a violation of section 291E-61 on a determination by the arresting law enforcement officer that:

(1) There was reasonable suspicion to stop the vehicle or the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20; and

(2) There was probable cause to believe that the person was operating the vehicle while under the influence of an intoxicant;

the law enforcement officer immediately shall take possession of any license held by the person and request the person to take a test for alcohol concentration[,] in the blood or breath, in the case of an alcohol related offense, or a test for drug content in the blood or urine, in the case of a drug related offense. The law enforcement officer shall inform the person that, in the case of an alcohol related offense, the person shall elect to take a breath test, a blood test, or both, pursuant to section 291E-11. In the case of a drug related offense, the person shall elect to take a blood test, a urine test, or both, pursuant to section 291E-11. [The law enforcement officer also shall inform the person of the sanctions under section 291E-41, including the sanction for refusing to take a breath, blood, or urine test.] Thereafter, the law enforcement officer shall complete and issue to the person a notice of administrative revocation and shall indicate thereon whether the notice shall serve as a temporary permit. The notice shall serve as a temporary permit, unless, at the time of arrest: the person was unlicensed; the person's license or privilege to operate a vehicle was revoked or suspended; or the person had no license in the person's possession."

SECTION 7. Section 291E-34, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) The notice of administrative revocation shall provide, at a minimum and in clear language, the following general information relating to administrative revocation:

(1) The statutory authority for administrative revocation;

[(2) An explanation of the distinction between administrative revocation and a suspension or revocation imposed under section 291E-61; and

(3)] (2) That criminal charges filed pursuant to section 291E-61 may be prosecuted concurrently with the administrative action[.]; and

(3) That the respondent may be subject to administrative revocation under this part or suspension or revocation of license under part IV, or both.

(b) The notice, when completed by the law enforcement officer and issued to the respondent, shall contain at a minimum the following information relating to the incident that gives rise to the issuance of the notice of administrative revocation:

(1) Information identifying the respondent;

(2) The specific violation for which the respondent was arrested;

(3) The date issued and the date the administrative revocation is scheduled to go into effect;

[(4) That the respondent was informed of the sanctions of this part and of the consequences of refusing to be tested for alcohol concentration or drug content in the blood or urine and whether the respondent consented to be tested;

(5)] (4) The expiration date of the temporary permit, and the temporary motor vehicle registration and temporary number plates if applicable; and

[(6)] (5) That the issuance of the notice of administrative revocation will be administratively reviewed."

SECTION 8. Section 291E-36, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) Whenever a respondent has been arrested for a violation of section 291E-61 and submits to a test that establishes: the respondent's alcohol concentration was .08 or more; the presence, in the respondent's blood or urine, of any drug that is capable of impairing the respondent's ability to operate a vehicle in a careful and prudent manner; or whenever a respondent has been involved in a collision resulting in injury or death and a blood or urine test performed pursuant to section 291E-21 establishes that the respondent's alcohol concentration was .08 or more or establishes the presence in the respondent's blood or urine of any drug that is capable of impairing the respondent's ability to operate a vehicle in a careful and prudent manner, the following shall be forwarded immediately to the director:

(1) A copy of the arrest report or the report of the law enforcement officer who issued the notice of administrative revocation to the person involved in a collision resulting in injury or death and the sworn statement of the arresting law enforcement officer or the officer who issued the notice of administrative revocation, stating facts that establish that:

(A) There was reasonable suspicion to stop the vehicle, the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20, or the respondent was tested pursuant to section 291E-21;

(B) There was probable cause to believe that the respondent had been operating the vehicle while under the influence of an intoxicant;

(C) The respondent was informed of:

[(i) The sanctions of section 291E-41;

(ii)] (i) The possibility that criminal charges may be filed; and

[(iii) The probable consequences of] (ii) That refusing to be tested for alcohol concentration or drug content[; and] may result in revocation of the respondent's driver's license and privilege to operate a vehicle or motor vehicle registration, or both; and

(D) The respondent agreed to be tested or the person was tested pursuant to section 291E-21;

(2) In a case involving an alcohol related offense, the sworn statement of the person responsible for maintenance of the testing equipment, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:

(A) The equipment used to conduct the test was approved for use as an alcohol testing device in this State;

(B) The person had been trained and at the time the test was conducted was certified and capable of maintaining the testing equipment; and

(C) The testing equipment used had been properly maintained and was in good working condition when the test was conducted;

(3) In a case involving an alcohol related offense, the sworn statement of the person who conducted the test, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:

(A) The person was trained and at the time the test was conducted was certified and capable of operating the testing equipment;

(B) The person followed the procedures established for conducting the test;

(C) The equipment used to conduct the test functioned in accordance with operating procedures and indicated that the respondent's alcohol concentration was at, or above, the prohibited level; and

(D) The person whose breath or blood was tested is the respondent;

(4) In a case involving a drug related offense, the sworn statement of the person responsible for maintenance of the testing equipment, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:

(A) The equipment used to conduct the test was approved for use in drug testing;

(B) The person conducting the test had been trained and, at the time of the test, was certified and capable of maintaining the testing equipment; and

(C) The testing equipment used had been properly maintained and was in good working condition when the test was conducted;

(5) In a case involving a drug related offense, the sworn statement of the person who conducted the test, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:

(A) At the time the test was conducted, the person was trained and capable of operating the testing equipment;

(B) The person followed the procedures established for conducting the test;

(C) The equipment used to conduct the test functioned in accordance with operating procedures and indicated the presence of one or more drugs or their metabolites in the respondent's blood or urine; and

(D) The person whose blood or urine was tested is the respondent;

(6) A copy of the notice of administrative revocation issued by the law enforcement officer to the respondent;

(7) Any license, and motor vehicle registration and number plates if applicable, taken into possession by the law enforcement officer; and

(8) A listing of any prior alcohol or drug enforcement contacts involving the respondent.

(b) Whenever a respondent has been arrested for a violation of section 291E-61 and refuses to submit to a test to determine alcohol concentration or drug content in the blood or urine, the following shall be forwarded immediately to the director:

(1) A copy of the arrest report and the sworn statement of the arresting law enforcement officer, stating facts that establish that:

(A) There was reasonable suspicion to stop the vehicle or the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20;

(B) There was probable cause to believe that the respondent had been operating the vehicle while under the influence of an intoxicant;

(C) The respondent was informed of:

[(i) The sanctions of section 291E-41;

(ii)] (i) The possibility that criminal charges may be filed; and

[(iii) The probable consequences of] (ii) That refusing to be tested for alcohol concentration or drug content in the blood or urine[;] may result in revocation of the respondent's driver's license and privilege to operate a vehicle or motor vehicle registration, or both; and

(D) The respondent refused to be tested;

(2) A copy of the notice of administrative revocation issued to the respondent;

(3) Any driver's license, and motor vehicle registration and number plates if applicable, taken into possession; and

(4) A listing of all alcohol and drug enforcement contacts involving the respondent."

SECTION 9. Section 291E-37, Hawaii Revised Statutes, is amended by amending subsections (d) and (e) to read as follows:

"(d) The director shall administratively revoke the respondent's license and privilege to operate a vehicle if the director determines that:

(1) There existed reasonable suspicion to stop the vehicle, the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20, or the person was tested pursuant to section 291E-21;

(2) There existed probable cause to believe that the respondent operated the vehicle while under the influence of an intoxicant; and

(3) The evidence proves by a preponderance that:

(A) The respondent operated the vehicle while under the influence of an intoxicant; or

(B) The respondent operated the vehicle and refused to submit to a breath, blood, or urine test [after being informed of the sanctions of this part].

(e) The director shall administratively revoke the registration of any vehicle owned or registered to the respondent and take custody of any number plates issued to the respondent if the director determines that the respondent is a repeat intoxicated driver and that:

(1) There existed reasonable suspicion to stop the vehicle, the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20, or the person was tested pursuant to section 291E-21;

(2) There existed probable cause to believe that the respondent operated the vehicle while under the influence of an intoxicant; and

(3) The evidence proves by a preponderance that:

(A) The respondent operated the vehicle while under the influence of an intoxicant; or

(B) The respondent operated the vehicle and refused to submit to a breath, blood, or urine test [after being informed of the sanctions of this part]."

SECTION 10. Section 291E-38, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:

"(e) The director shall affirm the administrative revocation only if the director determines that:

(1) There existed reasonable suspicion to stop the vehicle, the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20, or the person was tested pursuant to section 291E-21;

(2) There existed probable cause to believe that the respondent operated the vehicle while under the influence of an intoxicant; and

(3) The evidence proves by a preponderance that:

(A) The respondent operated the vehicle while under the influence of an intoxicant; or

(B) The respondent operated the vehicle and[, after being informed of the sanctions of this part,] refused to submit to a breath, blood, or urine test."

SECTION 11. Section 291E-41, Hawaii Revised Statutes, is amended by amending subsections (d) and (e) to read as follows:

"(d) If a respondent has refused to be tested [after being informed of the sanctions of this part], the revocation imposed under subsection (b)(1), (2), (3), and (4) shall be for a period of one year, two years, four years, and a lifetime, respectively.

(e) In addition to subsection (d), any motor vehicle registration of an respondent who is a repeat intoxicated driver and who refused to be tested [after being informed of the sanctions of this part] shall be revoked for the periods specified in subsection (d), and the respondent shall be prohibited from subsequently registering any motor vehicle for the applicable revocation period."

SECTION 12. Section 291E-61, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:

"(b) A person committing the offense of operating a vehicle under the influence of an intoxicant 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 or section 291E-4(a):

(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 or section 291E-4(a) 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 or section 291E-4(a):

(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, or section 291E-4(a):

(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.

(5)] (4) Any person eighteen years of age or older who is convicted under this section 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] paragraph (1), (2), or (3) shall not exceed thirty days.

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

(1) Conviction under this section or section 291E-4(a); [or]

(2) Conviction in any other state or federal jurisdiction for an offense that is comparable to 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; or

(3) Adjudication, in the case of a minor, that the minor has committed a law or probation violation that if committed by an adult would constitute a violation of this section or an offense under section 291E-4(a);

shall be considered a prior conviction for the purposes of imposing sentence under this section[.] any judgment on a verdict or a finding of guilty, a plea of guilty or nolo contendere, or an adjudication in the case of a minor, that at the time of the offense has not been expunged by pardon, reversed, or set aside shall be deemed a prior conviction 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."

SECTION 13. Section 291E-62, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) No person whose license and privilege to operate a vehicle have been revoked, suspended, or otherwise restricted pursuant to part III or section 291E-61, or to part VII or part XIV of chapter 286 or section 200-81, 291-4, 291-4.4, 291-4.5, or 291-7 as those provisions were in effect on December 31, 2001, shall operate or assume actual physical control of any vehicle:

(1) In violation of any restrictions placed on the person's license; or

(2) While the person's license or privilege to operate a vehicle remains suspended or revoked."

SECTION 14. Section 291E-65, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) If a person under arrest for operating a vehicle after consuming a measurable amount of alcohol, pursuant to section 291E-64, refuses to submit to a breath or blood test, none shall be given, except as provided in section 291E-21, but the arresting law enforcement officer, as soon as practicable, shall submit an affidavit to a district judge of the circuit in which the arrest was made, stating:

(1) That at the time of the arrest, the arresting officer had probable cause to believe the arrested person was under the age of twenty-one and had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State with a measurable amount of alcohol; and

[(2) That the arrested person had been informed of the sanctions of this section; and

(3)] (2) That the person had refused to submit to a breath or blood test.

(b) Upon receipt of the affidavit, the district judge shall hold a hearing within twenty days. The district judge shall hear and determine:

(1) Whether the arresting law enforcement officer had probable cause to believe that the person was under the age of twenty-one and had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State with a measurable amount of alcohol;

(2) Whether the person was lawfully arrested; and

[(3) Whether the arresting officer had informed the person of the sanctions of this section; and

[(4)] (3) Whether the person refused to submit to a test of the person's breath or blood."

SECTION 15. Section 291E-65, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:

"(e) If a legally arrested person under the age of twenty-one refuses to submit to a test of the person's breath or blood, proof of refusal shall be admissible [only] in a hearing under this section or part III and [shall not] be admissible in any other action or proceeding, whether civil or criminal."

SECTION 16. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 17. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 18. This Act shall take effect on January 1, 2004.