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. Requires drug testing for anyone arrested for DUI. (SD1)

THE SENATE

S.B. NO.

2237

TWENTY-SECOND LEGISLATURE, 2004

S.D. 1

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 drug content of any person arrested for driving under the influence of an intoxicant, driving after consuming a measurable amount of alcohol and being under the age of twenty-one, and the new offense established by this Act.

The legislature recognizes that the new 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 person'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 after consuming 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, 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 or an offense involving illegal drugs under section 291E-4(a) or section 291E-61:

(A) A substance abuse education and counseling program, or other comparable program deemed appropriate by the court;

(B) A one hundred eighty-day prompt suspension of license and privilege to operate a vehicle during the suspension period, or the court may impose, in lieu of the one hundred eighty-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 one hundred fifty-day period, a restriction on the license that allows the person to drive for limited work-related purposes and to participate in substance abuse education and counseling programs; and

(C) Any one or more of the following:

(i) Not more than thirty-six hours of community service work; or

(ii) A fine of not less than $150 but not more than $500;

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

(A) The court shall impose 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; and

(B) In addition, the court may impose any of the following:

(i) Not more than seventy-two hours of community service work; or

(ii) A fine of not less than $250 but not more than $1,000;

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

(A) The court shall impose revocation of license and privilege to operate a vehicle for a period of two years; and

(B) In addition, the court may impose any of the following:

(i) Not more than one hundred forty-four hours of community service work; or

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

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

(d) Whenever a court sentences a person pursuant to subsection (b)(2) or (3), 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) The right of refusal under section 291E-15 to take a breath, blood, or urine test shall not apply to a urine or blood test for the purpose of determining the person's drug content under section 291E-61 and illegal drug content under this section.

(i) As used in this section:

"Driver's license" and "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 as follows:

1. 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 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.]

or has consumed a measurable amount of illegal drugs, only after a lawful arrest."

2. 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, as a result of having consumed any drug, or is in violation of section 291E-  , as a result of having taken any illegal drug, then the person shall [elect to take]:

(1) 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-  .

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] shall be required 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 291E-   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 to take a blood or urine test, or both, for the purpose of determining the person's drug content. 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. Section 291E-15, Hawaii Revised Statutes, is amended to read as follows:

"[[]291E-15[]] Refusal to submit to breath, blood, or urine test; subject to administrative revocation proceedings. [If] Except as provided in section 291E-  , if a person under arrest refuses to submit to a breath, blood, or urine test, none shall be given, except as provided in section 291E-21, but the person shall be subject to the procedures and sanctions under part III or section 291E-65, as applicable."

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

"[[]291E-16[]] Proof of refusal; admissibility. [If] Except as provided in section 291E-  , 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 be admissible in any other action or proceeding, whether civil or criminal."

SECTION 6. Section 291E-32, Hawaii Revised Statutes, is amended to read as follows:

"291E-31 Criminal prosecution. (a) Criminal prosecution under section 291E-61 or 201E-   may be commenced concurrently with administrative revocation proceedings under this part; provided that documentary and testimonial evidence provided by the respondent during the administrative proceeding shall not be admissible against the respondent in any proceeding under section 291E-61 or 291E-   arising out of the same occurrence.

(b) When a person's license and privilege to operate a vehicle is revoked under this part and the person also is convicted of an offense under section 291E-61

or 291E-   arising out of the same occurrence, the total period of revocation imposed in the two proceedings shall not exceed the longer period of revocation imposed in either proceeding. If the person is convicted under section 291E-61 or 291E-   prior to completion of administrative proceedings, the person shall surrender the temporary permit issued under this part at the time of entry of a plea of guilty or no contest, entry of a verdict of guilty, or of sentencing, whichever occurs first."

SECTION 7. Section 291E-33, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) Whenever a person is arrested for a violation of section 291E-61 or 291E-   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 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, except as provided in section 291E-  , 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.

(b) Whenever a law enforcement officer determines that, as the result of a blood or urine test performed pursuant to section 291E-21, there is probable cause to believe that a person being treated in a hospital or medical facility has violated section 291E-61[,] or 291E-  , the law enforcement officer immediately shall take possession of any license held by the person and shall complete and issue to the person a notice of administrative revocation and indicate thereon whether the notice shall serve as a temporary permit. The notice shall serve as a temporary permit unless, at the time the notice was issued: 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 8. 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-610[;

or 291E-  ; and

(3) That criminal charges filed pursuant to section 291E-61 or 291E-   may be prosecuted concurrently with the administrative action.

(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, except as provided in section 291E-  , 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) The expiration date of the temporary permit, and the temporary motor vehicle registration and temporary number plates if applicable; and

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

SECTION 9. Section 291E-36, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Whenever a respondent has been arrested for a violation of section 291E-61 or 291E-   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) The possibility that criminal charges may be filed; and

(iii) The probable consequences of refusing to be tested for alcohol concentration or drug content[; and], except as provided in section 291E-  ;

(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."

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, except as provided in section 291E-  , refused to submit to a breath, blood, or urine test."

SECTION 11. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 12. Statutory material to be repealed is bracketed. New statutory material is underscored.

SECTION 13. This Act shall take effect upon its approval.