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.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           1212
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 for impaired driving, boating, and zero
 
 8 tolerance offenders.  In eliminating disparate penalty
 
 9 provisions, the Act, in effect, reduces the maximum jail time
 
10 that may be imposed on impaired offenders from that presently
 
11 imposed upon certain drug impaired offenders.  It is the intent
 
12 of the legislature that this reduced jail time apply to all
 
13 pending cases involving operating a vehicle under the influence
 
14 of an intoxicant.  The legislature further intends that by making
 
15 this reduced penalty retroactive to pending cases, it be made
 
16 clear that such offenders are not entitled to a jury trial.  The
 
17 legislature finds that individuals who are charged under this Act
 
18 with an offense for operating a vehicle, including a vessel
 
19 underway, under the influence of an intoxicant shall not be
 
20 entitled to a jury trial if the maximum term of imprisonment for
 
21 the offense does not exceed thirty days.
 
22      The legislature has previously taken steps to indicate its
 
23 intent that defendants charged with driving under the influence
 

 
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 1 of intoxicating liquor not be entitled to a jury trial.  In Act
 
 2 128, Session Laws of Hawaii 1993, the legislature clearly stated
 
 3 that the first offense of driving under the influence of
 
 4 intoxicating liquor is a "petty offense" in the constitutional
 
 5 sense and reduced the maximum possible penalty to ensure that
 
 6 defendants charged with a first offense not be entitled to a jury
 
 7 trial.  Finding a critical need to take additional steps to
 
 8 relieve the then existing first circuit court congestion of cases
 
 9 awaiting jury trial, the legislature again took action in Act
 
10 226, Session Laws of Hawaii 1995, to reduce the maximum terms of
 
11 imprisonment for second and third offenses of driving under the
 
12 influence of intoxicating liquor.  The maximum term of
 
13 imprisonment for a second offense was reduced from sixty to
 
14 fourteen days and for a third offense from one hundred eighty to
 
15 thirty days to ensure that defendants charged with these offenses
 
16 are not entitled to jury trials.
 
17      Furthermore, the legislature notes that in State v. Lindsey,
 
18 77 Haw. 162 (1994), the Hawaii supreme court ruled that "if the
 
19 maximum term of imprisonment for a particular offense does not
 
20 exceed thirty days, it is presumptively a petty offense to which
 
21 the right to a jury trial does not attach."  The court further
 
22 stated that the "presumption can be overcome only in
 
23 extraordinary cases when consideration of other ... factors ...
 

 
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 1 unequivocally demonstrates that society demands that persons
 
 2 charged with the offense at issue be afforded the right to a jury
 
 3 trial."  Consequently, the legislature finds and intends that a
 
 4 term of imprisonment not to exceed thirty days will not entitle a
 
 5 defendant under this Act to a jury trial.
 
 6      The legislature is mindful that the statutory changes
 
 7 proposed in this Act will require the judiciary and law
 
 8 enforcement agencies to develop new procedures and forms to
 
 9 ensure compliance.  The legislature believes that an enactment
 
10 date of January 1, 2000, will provide sufficient time to
 
11 accommodate these development timetables.
 
12      Accordingly, the purpose of this Act is to make consistent,
 
13 where appropriate, the provisions relating to operating a vehicle
 
14 while using an intoxicant and to provide that individuals who are
 
15 charged with an offense for operating a vehicle under the
 
16 influence of an intoxicant shall not be entitled to a jury trial
 
17 if the maximum term of imprisonment does not exceed thirty days.
 
18      SECTION 2.  The Hawaii Revised Statutes is amended by adding
 
19 a new chapter to be appropriately designated and to read as
 
20 follows:
 
21                             "CHAPTER
 
22           USE OF INTOXICANTS WHILE OPERATING A VEHICLE
 
23                    PART I. GENERAL PROVISIONS
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1      § -1  Definitions.  As used in this chapter, unless the
 
 2 context otherwise requires:
 
 3      "Administrative revocation" means termination of the
 
 4 respondent's driver's license and the privilege to operate a
 
 5 vessel underway on or in the waters of the State pursuant to part
 
 6 III, but does not include any revocation imposed under
 
 7 section    -81.
 
 8      "Alcohol" means the product of distillation of any fermented
 
 9 liquid, regardless of whether rectified, whatever may be the
 
10 origin thereof, and includes ethyl alcohol, lower aliphatic
 
11 alcohol, and phenol as well as synthetic ethyl alcohol, but not
 
12 denatured or other alcohol that is considered not potable under
 
13 the customs laws of the United States.
 
14      "Alcohol concentration" means either grams of alcohol per
 
15 one hundred milliliters or cubic centimeters of blood or grams of
 
16 alcohol per two hundred ten liters of breath.
 
17      "Alcohol enforcement contact" means:  any administrative
 
18 revocation ordered pursuant to part III; any driver's license
 
19 suspension or revocation or any suspension or revocation of a
 
20 privilege to operate a vessel underway imposed by this or any
 
21 other state or federal jurisdiction for refusing to submit to a
 
22 test for alcohol concentration; or any conviction in this or any
 
23 other state or federal jurisdiction for operating or being in
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1 physical control of a vehicle while having an unlawful alcohol
 
 2 concentration, or while under the influence of alcohol.
 
 3       "Arrestee" means a person arrested for violation of
 
 4 section    -80 or    -81.
 
 5      "Certified substance abuse counselor" means any person
 
 6 certified by the department of health pursuant to section
 
 7 321-193(10), or any other substance abuse specialist or medical
 
 8 practitioner the director of health may appoint to carry out the
 
 9 functions of a certified substance abuse counselor under this
 
10 chapter.
 
11      "Director" means the administrative director of the courts
 
12 or any other person within the judiciary appointed by the
 
13 director to conduct administrative reviews or hearings or carry
 
14 out other functions relating to administrative revocation under
 
15 part III.
 
16      "Drug" means any controlled substance, as defined and
 
17 enumerated on schedules I through IV of chapter 329, or its
 
18 metabolites.
 
19      "Drug enforcement contact" means:  any administrative
 
20 revocation ordered pursuant to part III; any driver's license
 
21 suspension or revocation or any suspension or revocation of a
 
22 privilege to operate a vessel underway imposed by this or any
 
23 other state or federal jurisdiction for refusing to submit to a
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

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

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

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1 physical control of a vehicle or a person who operates, or who
 
 2 has charge of the navigation or use of, a vessel.
 
 3      "Respondent" means a person to whom a notice of
 
 4 administrative revocation has been issued following an arrest for
 
 5 a violation of section    -80 or    -81 or following the
 
 6 collection of a blood or urine sample from the person, pursuant
 
 7 to section    -21, because there was probable cause to believe
 
 8 that the person has violated section    -81.
 
 9      "State" means:  any state of the United States; the District
 
10 of Columbia; the Commonwealth of Puerto Rico; the United States
 
11 Virgin Islands; American Samoa; Guam; any province of the
 
12 Dominion of Canada; and the Commonwealth of the Northern Mariana
 
13 Islands, except when the word, in context, clearly refers to the
 
14 State of Hawaii.
 
15      "Temporary permit" means that portion of the notice of
 
16 administrative revocation that, when completed by the arresting
 
17 officer, permits the respondent to operate a vehicle for thirty
 
18 days in the case of an alcohol related offense and forty-four
 
19 days in the case of a drug related offense or until such time as
 
20 the director may establish under part III.
 
21      "Under the influence" means that a person is under the
 
22 influence of one or more intoxicants to the extent that the
 
23 person's normal faculties or ability to care for the person and
 

 
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 1 guard against casualty is impaired.
 
 2      "Underway" means that a vessel is not at anchor, made fast
 
 3 to the shore, or aground.
 
 4      "Vehicle" includes a:
 
 5      (1)  Motor vehicle as defined in section 286-2;
 
 6      (2)  Moped as defined in section 286-2; and
 
 7      (3)  Vessel.
 
 8      "Vessel" means all description of watercraft, used or
 
 9 capable of being used as a means of transportation on or in the
 
10 water, except a seaplane.
 
11      "Waters of the State" means any waters within the
 
12 jurisdiction of the State, the marginal seas adjacent to the
 
13 State, and the high seas when navigated as part of a journey or
 
14 ride to or from the shore of the State.
 
15                     PART II. IMPLIED CONSENT
 
16      § -11  Implied consent of driver of vehicle to submit to
 
17 testing to determine alcohol concentration and drug content.(a)
 
18 Any person who operates a vehicle in the State or on or in the
 
19 waters of the State shall be deemed to have given consent,
 
20 subject to this part, to a test or tests approved by the director
 
21 of health of the person's breath, blood, or urine for the purpose
 
22 of determining alcohol concentration or drug content of the
 
23 person's breath, blood, or urine, as applicable.
 

 
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 1      (b)  The test or tests shall be administered at the request
 
 2 of a law enforcement officer having probable cause to believe the
 
 3 person operating or in actual physical control of a vehicle in
 
 4 the State or on or in the waters is under the influence of an
 
 5 intoxicant or is under the age of twenty-one and has a measurable
 
 6 amount of alcohol concentration, only after:
 
 7      (1)  A lawful arrest; and
 
 8      (2)  The person has been informed by a law enforcement
 
 9           officer of the sanctions under part III;
 
10      (c)  If there is probable cause to believe that a person is
 
11 in violation of section    -80, as a result of being under the
 
12 age of twenty-one and having consumed a measurable amount of
 
13 alcohol, or section    -81, as a result of having consumed
 
14 alcohol, then the person shall take a breath or blood test, as
 
15 directed by the law enforcement officer, for the purpose of
 
16 determining the alcohol concentration.
 
17      (d)  If there is probable cause to believe that a person is
 
18 in violation of section    -81, as a result of having consumed
 
19 any drug, then the person shall take a blood or urine test, as
 
20 directed by the law enforcement officer, for the purpose of
 
21 determining the drug content.  Drug content shall be measured by
 
22 the presence of any drug or its metabolic products or both.  The
 
23 person shall be informed by a law enforcement officer of the
 

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

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

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1 tests in addition to any administered at the direction of a law
 
 2 enforcement officer.  The result of the test or tests may be used
 
 3 as provided in section    -83.  The failure or inability to
 
 4 obtain an additional test by a person shall not preclude the
 
 5 admission of the test or tests taken at the direction of a law
 
 6 enforcement officer.  Upon the request of the person who is
 
 7 tested, full information concerning the test or tests taken at
 
 8 the direction of the law enforcement officer shall be made
 
 9 available to that person.
 
10      §  -14  Consent of person incapable of refusal not
 
11 withdrawn.  The consent of a person deemed to have given the
 
12 person's consent pursuant to section    -11 shall not be
 
13 withdrawn by reason of the person's being dead, unconscious, or
 
14 in any other state that renders the person incapable of
 
15 consenting to examination, and the test may be given.  In such
 
16 event, a test of the person's blood or urine shall be
 
17 administered.
 
18      §  -15  Revocation of privilege to operate a vehicle upon
 
19 refusal to submit to breath, blood, or urine test.  If a person
 
20 under arrest refuses to submit to a breath, blood, or urine test,
 
21 none shall be given, except as provided in section    -21, but
 
22 the person shall be subject to the procedures and sanctions under
 
23 part III.
 

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

 
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                                     S.B. NO.           1212
                                                        
                                                        

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

 
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                                     S.B. NO.           1212
                                                        
                                                        

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

 
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                                     S.B. NO.           1212
                                                        
                                                        

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

 
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                                     S.B. NO.           1212
                                                        
                                                        

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

 
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                                     S.B. NO.           1212
                                                        
                                                        

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

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1      "Health care provider" means a person who is licensed,
 
 2 certified, or otherwise authorized or permitted by law to
 
 3 administer health care in the ordinary course of business or
 
 4 practice of a profession. 
 
 5           PART III.  ADMINISTRATIVE REVOCATION PROCESS
 
 6      § -31  Notice of administrative revocation; effect.  As
 
 7 used in this part, the notice of administrative revocation:
 
 8      (1)  Establishes that the respondent's license and privilege
 
 9           to operate a vehicle in the State on or in the waters
 
10           of the State shall be terminated:
 
11           (A)  Thirty days after the date the notice of
 
12                administrative revocation is issued in the case of
 
13                an alcohol related offense;
 
14           (B)  Forty-four days after the date the notice of
 
15                administrative revocation is issued in the case of
 
16                a drug related offense or an offense involving the
 
17                combined use of alcohol and drugs; or
 
18           (C)  Such later date as is established by the director
 
19                under section    -38;
 
20           if the director administratively revokes the
 
21           respondent's license;
 
22      (2)  Establishes the date on which administrative revocation
 
23           proceedings against the respondent were initiated; and
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1      (3)  Serves as a temporary permit to operate a vehicle as
 
 2           provided in section    -33.
 
 3      § -32  Criminal prosecution.(a)  Criminal prosecution
 
 4 under section    -81 may be commenced concurrently with
 
 5 administrative revocation proceedings under this part; provided
 
 6 that documentary and testimonial evidence provided by the
 
 7 respondent during the administrative proceeding shall not be
 
 8 admissible against the respondent in any proceeding under section
 
 9    -81 arising out of the same occurrence.
 
10      (b)  When a person's license and privilege to operate a
 
11 vehicle is revoked under this part and the person also is
 
12 convicted of an offense under section    -81 arising out of the
 
13 same occurrence, the total period of revocation imposed in the
 
14 two proceedings shall not exceed the longer period of revocation
 
15 imposed in either proceeding. If the person is convicted under
 
16 section    -81 prior to completion of administrative proceedings,
 
17 the person shall surrender the temporary permit issued under this
 
18 part at the time of entry of a plea of guilty or no contest,
 
19 entry of a verdict of guilty, or of sentencing, whichever occurs
 
20 first.
 
21      § -33  Probable cause determination; issuance of notice of
 
22 administrative revocation; procedures.(a)  Whenever a person is
 
23 arrested for a violation of section    -80 or    -81 on a
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1 determination by the arresting law enforcement officer that:
 
 2      (1)  There was reasonable suspicion to stop the vehicle, or
 
 3           that the vehicle was stopped at an intoxicant control
 
 4           roadblock established and operated in compliance with
 
 5           sections    -19 and    -20; and
 
 6      (2)  There was probable cause to believe that the arrestee
 
 7           was operating or in actual physical control of the
 
 8           vehicle:
 
 9           (A)  While under the influence of an intoxicant; or
 
10           (B)  While under the age of twenty-one and after
 
11                consuming a measurable amount of alcohol;
 
12 the law enforcement officer immediately shall take possession of
 
13 any license held by the person and request the arrestee to take a
 
14 test for concentration of alcohol in the blood, in the case of an
 
15 alcohol related offense, or a test for drug content in the blood
 
16 or urine, in the case of a drug related offense.  The law
 
17 enforcement officer shall inform the person that, in the case of
 
18 an alcohol related offense, the person shall take a breath test
 
19 or a blood test, as directed by the law enforcement officer
 
20 pursuant to section    -11.  In the case of a drug related
 
21 offense, the person shall take a blood test or a urine test, as
 
22 directed by the law enforcement officer pursuant to section
 
23    -11.  The law enforcement officer also shall inform the person
 

 
Page 24                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 of the sanctions under this part, including the sanction for
 
 2 refusing to take a breath, blood, or urine test.  Thereafter, the
 
 3 law enforcement officer shall complete and issue to the arrestee
 
 4 a notice of administrative revocation and shall indicate thereon
 
 5 whether the notice shall serve as a temporary permit.  The notice
 
 6 shall serve as a temporary permit, unless, at the time of arrest:
 
 7 the arrestee was unlicensed; the arrestee's license or privilege
 
 8 to operate a vehicle was revoked or suspended; or the arrestee
 
 9 had no license in the arrestee's possession.
 
10      (b)  Whenever a law enforcement officer determines that, as
 
11 the result of a blood or urine test performed pursuant to section
 
12    -21(b) and (c), there is probable cause to believe that a
 
13 person being treated in a hospital or medical facility has
 
14 violated section    -81, the law enforcement officer shall
 
15 complete and issue to the person a notice of administrative
 
16 revocation and shall indicate thereon whether the notice shall
 
17 serve as a temporary permit.  The notice shall serve as a
 
18 temporary permit unless, at the time the notice was issued:  the
 
19 person was unlicensed; the person's license or privilege to
 
20 operate a vehicle was revoked or suspended; or the person had no
 
21 license in the person's possession.
 
22      § -34  Notice of administrative revocation; contents.(a)
 
23 The notice of administrative revocation shall provide, at a
 

 
Page 25                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 minimum and in clear language, the following general information
 
 2 relating to administrative revocation:
 
 3      (1)  The statutory authority for administrative revocation;
 
 4      (2)  An explanation of the distinction between
 
 5           administrative revocation and a suspension or
 
 6           revocation imposed under section    -81; and
 
 7      (3)  That criminal charges filed pursuant to section    -81
 
 8           may be prosecuted concurrently with the administrative
 
 9           action.
 
10      (b)  The notice, when completed by the law enforcement
 
11 officer and issued to the respondent, shall contain at a minimum
 
12 the following information relating to the incident giving rise to
 
13 the issuance of the notice of administrative revocation:
 
14      (1)  Information identifying the respondent;
 
15      (2)  The specific violation for which the person was
 
16           arrested;
 
17      (3)  The date issued and the date the administrative
 
18           revocation is scheduled to go into effect;
 
19      (4)  That the respondent was informed of the sanctions of
 
20           this part and of the consequences of refusing to be
 
21           tested for alcohol concentration of the blood or drug
 
22           content in the blood or urine and whether or not the
 
23           respondent consented to be tested;
 

 
Page 26                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1      (5)  The expiration date of the temporary permit; and
 
 2      (6)  That the issuance of the notice of administrative
 
 3           revocation will be administratively reviewed.
 
 4      (c)  The notice shall provide, at a minimum, the following
 
 5 information relating to the administrative review:
 
 6      (1)  That the review is automatic;
 
 7      (2)  That the respondent, within three days of the issuance
 
 8           of the notice of administrative revocation in the case
 
 9           of an alcohol related offense and within seventeen days
 
10           of the issuance of the notice of administrative
 
11           revocation in the case of a drug related offense or an
 
12           offense involving the combined use of alcohol and
 
13           drugs, may submit written information demonstrating why
 
14           the respondent's license and privilege to operate a
 
15           vehicle should not be administratively revoked;
 
16      (3)  The address or location where the respondent may submit
 
17           the information;
 
18      (4)  That the respondent is not entitled to be present or
 
19           represented at the review; and
 
20      (5)  That the review decision shall be mailed to the
 
21           respondent, no later than eight days after the date of
 
22           the issuance of the notice of administrative revocation
 
23           in the case of an alcohol related offense and no later
 

 
Page 27                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1           than twenty-two days after the date of the issuance of
 
 2           the notice of administrative revocation in the case of
 
 3           a drug related offense or an offense involving the
 
 4           combined use of alcohol and drugs.
 
 5      (d)  The notice shall state that, if the respondent's
 
 6 license and privilege to operate a vehicle is not
 
 7 administratively revoked after the review, the respondent's
 
 8 license shall be returned, along with a certified statement that
 
 9 the administrative revocation proceedings have been terminated.
 
10      (e)  The notice shall state that, if the respondent's
 
11 license and privilege to operate a vehicle are administratively
 
12 revoked after the review, a decision shall be mailed to the
 
13 respondent or to the parent or guardian of the respondent if the
 
14 respondent is under the age of eighteen.  The notice shall
 
15 contain, at a minimum, the following information:
 
16      (1)  The reasons why the respondent's license and privilege
 
17           to operate a vehicle were administratively revoked;
 
18      (2)  That the respondent may request the director, within
 
19           six days of the date the decision is mailed, to
 
20           schedule an administrative hearing to review the
 
21           administrative revocation;
 
22      (3)  That if the respondent requests an administrative
 
23           hearing within six days, the hearing shall be scheduled
 

 
Page 28                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1           to commence no later than twenty-five days after the
 
 2           date of the issuance of the notice of administrative
 
 3           revocation in the case of an alcohol related offense
 
 4           and no later than thirty-nine days after the date of
 
 5           the issuance of the notice of administrative revocation
 
 6           in the case of a drug related offense or an offense
 
 7           involving the combined use of alcohol and drugs;
 
 8      (4)  The procedure to request an administrative hearing;
 
 9      (5)  That failure to request an administrative hearing
 
10           within the time provided shall cause the administrative
 
11           revocation to take effect for the period and under the
 
12           conditions established by the director in the decision;
 
13      (6)  That the respondent may regain the right to a hearing
 
14           by requesting the director, within sixty days after the
 
15           issuance of the notice of administrative revocation, to
 
16           schedule a hearing;
 
17      (7)  That the director shall schedule the hearing to
 
18           commence no later than thirty days after the request is
 
19           made, but that the temporary permit shall not, in any
 
20           event, be extended if the respondent fails to request
 
21           an administrative hearing within the initial six-day
 
22           period provided for that purpose;
 
23      (8)  That failure to attend the hearing shall cause the
 

 
Page 29                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1           administrative revocation to take effect for the period
 
 2           and under the conditions indicated; and
 
 3      (9)  The duration of the administrative revocation and
 
 4           other conditions that may be imposed including: alcohol
 
 5           or drug counseling, or both; alcohol or drug treatment,
 
 6           or both; and installation of an ignition interlock
 
 7           system.
 
 8      (f)  The notice shall provide, at a minimum, the following
 
 9 information relating to administrative hearings:
 
10      (1)  That the respondent shall have six days from the date
 
11           the review decision was mailed to request that an
 
12           administrative hearing be scheduled;
 
13      (2)  That a request for an administrative hearing shall
 
14           entitle the respondent to review and copy all documents
 
15           considered at the review, including the arrest report
 
16           and the sworn statements, prior to the hearing;
 
17      (3)  That the respondent may be represented by an attorney,
 
18           submit evidence, give testimony, and present and cross-
 
19           examine witnesses;
 
20      (4)  That, in cases where the respondent is under the age of
 
21           eighteen, a parent or guardian must be present; and
 
22      (5)  That a written decision shall be mailed no later than
 
23           five days after completion of the hearing.
 

 
Page 30                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1      (g)  The notice shall state that if the administrative
 
 2 revocation is reversed after the hearing, the respondent's
 
 3 license and any fees collected from the respondent under this
 
 4 part shall be returned, along with a certified statement that the
 
 5 administrative revocation proceedings have been terminated.
 
 6      (h)  The notice shall state that, if the administrative
 
 7 revocation is sustained at the hearing, a decision shall be
 
 8 mailed to the respondent or to the parent or guardian of the
 
 9 respondent if the respondent is under the age of eighteen.  The
 
10 decision shall contain, at a minimum, the following information:
 
11      (1)  The effective date of the administrative revocation;
 
12      (2)  The duration of the administrative revocation;
 
13      (3)  Other conditions that may be imposed by law; and
 
14      (4)  The right to obtain judicial review.
 
15      (i)  The notice shall state that failure of the respondent,
 
16 and of the parent or guardian of the respondent if the respondent
 
17 is under the age of eighteen, to attend a scheduled hearing shall
 
18 cause the administrative revocation to take effect as provided in
 
19 the administrative review decision.
 
20      § -35  Immediate restoration of license.(a)  In cases
 
21 involving an alcohol related offense, if a test conducted in
 
22 accordance with part II and section 321-161 and the rules adopted
 
23 thereunder shows that a respondent:
 

 
Page 31                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1      (1)  Twenty-one years or older at the time of the arrest,
 
 2           had an alcohol concentration less than .08; or
 
 3      (2)  Under the age of twenty-one years, had an alcohol
 
 4           concentration less than .02,
 
 5 the director or the arresting law enforcement agency shall
 
 6 immediately return the respondent's license, along with a
 
 7 certified statement that administrative revocation proceedings
 
 8 have been terminated with prejudice.
 
 9      (b)  In cases involving a drug related offense or an offense
 
10 involving the combined influence of alcohol and drugs, if a test
 
11 conducted in accordance with part II and section 321-161 and the
 
12 rules adopted thereunder shows no drug content in the
 
13 respondent's blood or urine, the director or the arresting law
 
14 enforcement agency immediately shall return the respondent's
 
15 license, along with a certified statement that administrative
 
16 revocation proceedings have been terminated with prejudice.
 
17      § -36  Sworn statements of law enforcement officials.  (a)
 
18 Whenever a respondent has been arrested for a violation of
 
19 section    -80 or    -81 and submits to a test that establishes:
 
20 the respondent's alcohol concentration was .08 or more; a drug
 
21 content in the respondent's blood or urine; or a respondent,
 
22 under the age of twenty-one, had consumed a measurable amount of
 
23 alcohol; or whenever a respondent has been involved in a
 

 
Page 32                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 collision resulting in injury or death and a blood or urine test
 
 2 performed pursuant to section    -21 establishes that the
 
 3 respondent's alcohol concentration was .08 or more or establishes
 
 4 the respondent's drug content, the following shall be forwarded
 
 5 immediately to the director:
 
 6      (1)  A copy of the arrest report or the report of the
 
 7           officer who issued the notice of administrative
 
 8           revocation to the person involved in a collision
 
 9           resulting in injury or death and the sworn statement of
 
10           the arresting law enforcement officer or the officer
 
11           who issued the notice of administrative revocation,
 
12           stating facts that establish that:
 
13           (A)  There was reasonable suspicion to stop the
 
14                vehicle, the vehicle was stopped at an intoxicant
 
15                control roadblock established and operated in
 
16                compliance with sections    -19 and    -20, or the
 
17                respondent was tested pursuant to section    -21;
 
18           (B)  There was probable cause to believe that the
 
19                respondent had been operating or in actual
 
20                physical control of the vehicle:
 
21                (i)  While under the influence of an intoxicant;
 
22                     or
 
23               (ii)  While under the age of twenty-one and after
 

 
Page 33                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1                     consuming a measurable amount of alcohol;
 
 2           (C)  The respondent was informed of: the sanctions of
 
 3                this part; that criminal charges may be filed; and
 
 4                the consequences of refusing to be tested for
 
 5                alcohol concentration or drug content; and
 
 6           (D)  The respondent agreed to be tested or the person
 
 7                was tested pursuant to section    -21;
 
 8      (2)  In a case involving an alcohol related offense, the
 
 9           sworn statement of the person responsible for
 
10           maintenance of the testing equipment, stating facts
 
11           that establish that, pursuant to section 321-161 and
 
12           rules adopted thereunder:
 
13           (A)  The equipment used to conduct the test was
 
14                approved for use as an alcohol testing device in
 
15                this State;
 
16           (B)  The person had been trained and at the time the
 
17                test was conducted was certified and capable of
 
18                maintaining the testing equipment; and
 
19           (C)  The testing equipment used had been properly
 
20                maintained and was in good working condition when
 
21                the test was conducted;
 
22      (3)  In a case involving an alcohol related offense, the
 
23           sworn statement of the person who conducted the test,
 

 
Page 34                                                    
                                     S.B. NO.           1212
                                                        
                                                        

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

 
Page 35                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1                capable of maintaining the testing equipment; and
 
 2           (C)  The testing equipment used had been properly
 
 3                maintained and was in good working condition when
 
 4                the test was conducted;
 
 5      (5)  In a case involving an drug related offense, the sworn
 
 6           statement of the person who conducted the test, stating
 
 7           facts that establish that, pursuant to section 321-161
 
 8           and rules adopted thereunder:
 
 9           (A)  At the time the test was conducted, the person was
 
10                trained and capable of operating the testing
 
11                equipment;
 
12           (B)  The person followed the procedures established for
 
13                conducting the test;
 
14           (C)  The equipment used to conduct the test functioned
 
15                in accordance with operating procedures and
 
16                indicated the presence of one or more drugs or
 
17                their metabolites in the respondent's blood or
 
18                urine; and
 
19           (D)  The person whose blood or urine was tested is the
 
20                respondent;
 
21      (6)  A copy of the notice of administrative revocation
 
22           issued to the respondent;
 
23      (7)  Any driver's license taken into possession by the law
 

 
Page 36                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1           enforcement officer; and
 
 2      (8)  A listing of any prior alcohol or drug enforcement
 
 3           contacts involving the respondent.
 
 4      (b)  Whenever a respondent has been arrested for a violation
 
 5 of section    -80 or    -81 and refuses to submit to a test to
 
 6 determine alcohol concentration or drug content in the blood or
 
 7 urine, the following shall be forwarded immediately to the
 
 8 director:
 
 9      (1)  A copy of the arrest report and the sworn statement of
 
10           the arresting law enforcement officer, stating facts
 
11           that establish that:
 
12           (A)  There was reasonable suspicion to stop the vehicle
 
13                or the vehicle was stopped at an intoxicant
 
14                control roadblock established and operated in
 
15                compliance with sections    -19 and    -20;
 
16           (B)  There was probable cause to believe that the
 
17                respondent had been operating or in actual
 
18                physical control of the vehicle:
 
19                (i)  While under the influence of an intoxicant;
 
20                     or
 
21               (ii)  While under the age of twenty-one and after
 
22                     consuming a measurable amount of alcohol;
 
23           (C)  The respondent was informed of: the sanctions of
 

 
Page 37                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1                this part; the possibility that criminal charges
 
 2                may be filed; and the probable consequences of
 
 3                refusing to be tested for concentration of alcohol
 
 4                or drug content in the blood or urine; and
 
 5           (D)  The respondent refused to be tested;
 
 6      (2)  A copy of the notice of administrative revocation and
 
 7           the temporary permit issued to the respondent;
 
 8      (3)  Any driver's license taken into possession; and
 
 9      (4)  A listing of all alcohol and drug enforcement contacts
 
10           involving the respondent.
 
11      § -37  Administrative review; procedures.(a)  The
 
12 director automatically shall review the issuance of a notice of
 
13 administrative revocation and shall issue a written decision
 
14 administratively revoking the license and privilege to operate a
 
15 vehicle or rescinding the notice of administrative revocation.
 
16 The written decision shall be mailed to the respondent, or to the
 
17 parent or guardian of the respondent if the respondent is under
 
18 the age of eighteen, no later than:  eight days after the date
 
19 the notice was issued in a case involving an alcohol related
 
20 offense; or twenty-two days after the date the notice was issued
 
21 in a case involving a drug related offense or an offense
 
22 involving the combined use of alcohol and drugs.
 
23      (b)  The respondent shall have the opportunity to
 

 
Page 38                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 demonstrate in writing why the respondent's license and privilege
 
 2 to operate a vehicle should not be administratively revoked and,
 
 3 within three days of the receiving the notice of administrative
 
 4 revocation, shall submit any written information, either by mail
 
 5 or in person, to the director's office or to any office or
 
 6 address designated by the director for that purpose.
 
 7      (c)  In conducting the administrative review, the director
 
 8 shall consider:
 
 9      (1)  Any sworn or unsworn written statement or other written
 
10           evidence provided by the respondent;
 
11      (2)  The breath, blood, or urine test results, if any; and
 
12      (3)  The sworn statement of any law enforcement official or
 
13           other evidence or information required by section
 
14              -36.
 
15      (d)  The director shall administratively revoke the
 
16 respondent's license and privilege to operate a vehicle if the
 
17 director determines that:
 
18      (1)  There existed reasonable suspicion to stop the vehicle,
 
19           the vehicle was stopped at an intoxicant control
 
20           roadblock established and operated in compliance with
 
21           sections    -19 and    -20, or the person was tested
 
22           pursuant to section    -21;
 
23      (2)  There existed probable cause to believe that the
 

 
Page 39                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1           respondent operated or was in actual physical control
 
 2           of the vehicle:
 
 3           (A)  While under the influence of an intoxicant; or
 
 4           (B)  While under the age of twenty-one and after
 
 5                consuming a measurable amount of alcohol; and
 
 6      (3)  The evidence proves by a preponderance that:
 
 7           (A)  The respondent operated or was in actual physical
 
 8                control of the vehicle:
 
 9                (i)  While under the influence of an intoxicant;
 
10                     or
 
11               (ii)  While under the age of twenty-one and after
 
12                     consuming a measurable amount of alcohol; or
 
13           (B)  The respondent operated or was in actual physical
 
14                control of the vehicle and refused to submit to a
 
15                breath, blood, or urine test after being informed
 
16                of the sanctions of this part.
 
17      (e)  If the evidence does not support administrative
 
18 revocation, the director shall rescind the notice of
 
19 administrative revocation and return the respondent's license,
 
20 along with a certified statement that administrative revocation
 
21 proceedings have been terminated.
 
22      (f)  If the director administratively revokes the
 
23 respondent's license and privilege to operate a vehicle, the
 

 
Page 40                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 written decision mailed to the respondent, or to the parent or
 
 2 guardian of the respondent if the respondent is under the age of
 
 3 eighteen, shall:
 
 4      (1)  State the reasons for the administrative revocation;
 
 5      (2)  Indicate that the respondent has six days from the date
 
 6           the decision is mailed to request an administrative
 
 7           hearing to review the director's decision;
 
 8      (3)  Explain the procedure by which to request an
 
 9           administrative hearing;
 
10      (4)  Be accompanied by a form, postage prepaid, which the
 
11           respondent may fill out and mail in order to request an
 
12           administrative hearing;
 
13      (5)  Inform the respondent of the right to review and copy
 
14           all documents considered at the review, including the
 
15           arrest report and the sworn statements of the law
 
16           enforcement officials, prior to the hearing; and
 
17      (6)  State that the respondent may be represented by counsel
 
18           at the hearing, submit evidence, give testimony, and
 
19           present and cross-examine witnesses, including the
 
20           arresting officer.
 
21      (g)  Failure of the respondent to request a hearing within
 
22 the time provided in section    -38(a) shall cause the
 
23 administrative revocation to take effect for the period and under
 

 
Page 41                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 the conditions provided in the administrative review decision
 
 2 issued by the director under this section.  The respondent may
 
 3 regain the right to a hearing by requesting the director, within
 
 4 sixty days of the issuance of the notice of administrative
 
 5 revocation, to schedule a hearing.  The hearing shall be
 
 6 scheduled to commence no later than thirty days after the request
 
 7 is made.  The administrative review decision issued by the
 
 8 director under this section shall clearly explain the
 
 9 consequences of failure to request an administrative hearing and
 
10 the procedure by which the respondent may regain the right to a
 
11 hearing.
 
12      § -38  Administrative hearing.(a)  If the director
 
13 administratively revokes the respondent's license and privilege
 
14 to operate a vehicle after administrative review, the respondent
 
15 may request an administrative hearing to review the decision
 
16 within six days of the date the administrative review decision is
 
17 mailed.  The hearing shall be scheduled to commence no later
 
18 than: twenty-five days from the date the notice of administrative
 
19 revocation was issued in a case involving an alcohol related
 
20 offense; or thirty-nine days from the date the notice of
 
21 administrative revocation was issued in a case involving an drug
 
22 related offense or an offense involving the combined use of
 
23 alcohol and drugs.  The director may continue the hearing only as
 

 
Page 42                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 provided in subsection (j).
 
 2      (b)  The hearing shall be held at a place designated by the
 
 3 director, as close to the location where the notice of
 
 4 administrative revocation was issued as practical.
 
 5      (c)  The respondent may be represented by counsel and, if
 
 6 the respondent is under the age of eighteen, must be accompanied
 
 7 by a parent or guardian.
 
 8      (d)  The director shall conduct the hearing and have
 
 9 authority to:
 
10      (1)  Administer oaths and affirmations;
 
11      (2)  Examine witnesses and take testimony;
 
12      (3)  Receive and determine the relevance of evidence;
 
13      (4)  Issue subpoenas, take depositions, or cause depositions
 
14           or interrogatories to be taken;
 
15      (5)  Regulate the course and conduct of the hearing; and
 
16      (6)  Make a final ruling.
 
17      (e)  The director shall affirm the administrative revocation
 
18 only if the director determines that:
 
19      (1)  There existed reasonable suspicion to stop the vehicle,
 
20           the vehicle was stopped at an intoxicant control
 
21           roadblock established and operated in compliance with
 
22           sections    -19 and    -20, or the person was tested
 
23           pursuant to section    -21;
 

 
Page 43                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1      (2)  There existed probable cause to believe that the
 
 2           respondent operated or was in actual physical control
 
 3           of the vehicle:
 
 4           (A)  While under the influence of an intoxicant; or
 
 5           (B)  While under the age of twenty-one and after
 
 6                consuming a measurable amount of alcohol; and
 
 7      (3)  The evidence proves by a preponderance that:
 
 8           (A)  The respondent operated or was in actual physical
 
 9                control of the vehicle:
 
10                (i)  While under the influence of an intoxicant;
 
11                     or
 
12               (ii)  While under the age of twenty-one and after
 
13                     consuming a measurable amount of alcohol; or
 
14           (B)  The respondent operated or was in actual physical
 
15                control of the vehicle and, after being informed
 
16                of the sanctions of this part, refused to submit
 
17                to a breath, blood, or urine test.
 
18      (f)  The respondent's prior alcohol and drug enforcement
 
19 contacts shall be entered into evidence.
 
20      (g)  The sworn statements provided in section    -36 shall
 
21 be admitted into evidence.  Upon notice to the director, no later
 
22 than five days prior to the hearing, that the respondent wishes
 
23 to examine a law enforcement official who made a sworn statement,
 

 
Page 44                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 the director shall issue a subpoena for the official to appear at
 
 2 the hearing.  If the official cannot appear, the official, at the
 
 3 discretion of the director, may testify by telephone.
 
 4      (h)  The hearing shall be recorded in a manner to be
 
 5 determined by the director.
 
 6      (i)  The director's decision shall be rendered in writing
 
 7 and mailed to the respondent, or to the parent or guardian of the
 
 8 respondent if the respondent is under the age of eighteen, no
 
 9 later than five days after the hearing.  If the decision is to
 
10 reverse the administrative revocation, the director shall return
 
11 the respondent's license and any fees collected from the
 
12 respondent under this part, along with a certified statement that
 
13 administrative revocation proceedings have been terminated.  If
 
14 the decision sustains the administrative revocation, the director
 
15 shall mail to the respondent a written decision indicating the
 
16 duration of the administrative revocation and any other
 
17 conditions or restrictions as may be imposed pursuant to section
 
18    -41.
 
19      (j)  For good cause shown, the director may grant a
 
20 continuance either of the commencement of the hearing or of a
 
21 hearing that has already commenced.  If a continuance is granted
 
22 at the request of the director, the director shall extend the
 
23 validity of the temporary permit for a period not to exceed the
 

 
Page 45                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 period of the continuance.  If a continuance is granted at the
 
 2 request of the respondent, the director shall not extend the
 
 3 validity of the temporary permit.  For purposes of this section,
 
 4 a continuance means a delay in the commencement of the hearing or
 
 5 an interruption of a hearing that has commenced other than for
 
 6 recesses during the day or at the end of the day or week.
 
 7      (k)  If the respondent fails to appear at the hearing, or if
 
 8 an respondent under the age of eighteen fails to appear with a
 
 9 parent or guardian, administrative revocation shall take effect
 
10 for the period and under the conditions established by the
 
11 director in the administrative review decision issued by the
 
12 director under section     -37.
 
13      § -39  Fees and costs.  The director shall be authorized
 
14 to assess and collect a $15 fee from the respondent for the costs
 
15 of processing the respondent's request for an administrative
 
16 hearing to cover costs, which include but should not be limited
 
17 to the cost of photocopying documents, the issuance of subpoenas,
 
18 conditional permits, and relicensing forms, interpreter services,
 
19 law enforcement official mileage fees, and other similar costs.
 
20 The director may waive the fee in the case of indigent
 
21 respondents, upon an appropriate inquiry into the financial
 
22 circumstances of the person seeking the waiver and an affidavit
 
23 or a certificate signed by the person demonstrating the person's
 

 
Page 46                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 financial inability to pay the fee.
 
 2      § -40  Judicial review; procedure.  (a)  If the director
 
 3 sustains the administrative revocation after administrative
 
 4 hearing, the respondent, or parent or guardian of an respondent
 
 5 under the age of eighteen, may file a petition for judicial
 
 6 review within thirty days after the administrative hearing
 
 7 decision is mailed.  The petition shall be filed with the clerk
 
 8 of the district court in the district in which the incident
 
 9 occurred and shall be accompanied by the required filing fee for
 
10 civil actions.  The filing of the petition shall not operate as a
 
11 stay of the administrative revocation, nor shall the court stay
 
12 the administrative revocation pending the outcome of the judicial
 
13 review.  The petition shall be appropriately captioned.  The
 
14 petition shall state with specificity the grounds upon which the
 
15 petitioner seeks reversal of the administrative revocation.
 
16      (b)  The court shall schedule the judicial review as quickly
 
17 as practicable, and the review shall be on the record of the
 
18 administrative hearing without taking of additional testimony or
 
19 evidence.  If the petitioner fails to appear without just cause
 
20 or, in the case of a petitioner under the age of eighteen, the
 
21 petitioner fails to appear with a parent or guardian, the court
 
22 shall affirm the administrative revocation.
 
23      (c)  The sole issues before the court shall be whether the
 

 
Page 47                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 director:
 
 2      (1)  Exceeded constitutional or statutory authority;
 
 3      (2)  Erroneously interpreted the law;
 
 4      (3)  Acted in an arbitrary or capricious manner;
 
 5      (4)  Committed an abuse of discretion; or
 
 6      (5)  Made a determination that was unsupported by the
 
 7           evidence in the record.
 
 8      (d)  The court shall not remand the matter back to the
 
 9 director for further proceedings consistent with its order.
 
10      § -41  Effective date and period of administrative
 
11 revocation; criteria.  (a)  Unless an administrative revocation
 
12 is reversed or the temporary permit is extended by the director,
 
13 administrative revocation shall become effective on the day
 
14 specified in the notice of administrative revocation.  Except as
 
15 provided in section    -44, no license and privilege to operate a
 
16 vehicle shall be restored under any circumstances and no
 
17 conditional permit shall be issued during the administrative
 
18 revocation period.
 
19      (b)  The periods of administrative revocation that shall be
 
20 imposed under this part are as follows:
 
21      (1)  Three months, if the respondent's record shows no prior
 
22           alcohol or drug enforcement contacts during the five
 
23           years preceding the date the notice of administrative
 

 
Page 48                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1           revocation was issued; or six months, if the respondent
 
 2           is under the age of twenty-one;
 
 3      (2)  One year, if the respondent's record shows one prior
 
 4           alcohol or drug enforcement contact during the five
 
 5           years preceding the date the notice of administrative
 
 6           revocation was issued;
 
 7      (3)  Two years, if the respondent's record shows two prior
 
 8           alcohol or drug enforcement contacts during the seven
 
 9           years preceding the date the notice of administrative
 
10           revocation was issued;
 
11      (4)  For life, if the respondent's record shows three or
 
12           more prior alcohol or drug enforcement contacts during
 
13           the ten years preceding the date the notice of
 
14           administrative revocation was issued; or
 
15      (5)  For respondents under the age of eighteen years, the
 
16           period remaining until the respondent's eighteenth
 
17           birthday or for the appropriate revocation period
 
18           provided in paragraphs (1) to (4) or in subsection (c),
 
19           whichever is longer.
 
20      (c)  If a respondent has refused to be tested after being
 
21 informed of the sanctions of this part, the revocation imposed
 
22 under subsection (b)(1), (2), and (3) shall be for a period of
 
23 one year, two years, and four years, respectively.
 

 
Page 49                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1      (d)  Whenever a license and privilege to operate a vehicle
 
 2 is administratively revoked under this part, the respondent shall
 
 3 be referred to a certified substance abuse counselor for an
 
 4 assessment of the respondent's alcohol or drug abuse or
 
 5 dependence and the need for treatment.  The counselor shall
 
 6 submit a report with recommendations to the director.  If the
 
 7 counselor's assessment establishes that the extent of the
 
 8 respondent's alcohol or drug abuse or dependence warrants
 
 9 treatment, the director may so order.  Whenever the license and
 
10 privilege to operate a vehicle of a respondent under the age of
 
11 twenty-one is revoked for operating a vehicle after consuming a
 
12 measurable amount of alcohol, the respondent shall attend a
 
13 youthful offender alcohol abuse education and counseling program
 
14 for not more than ten hours.  If the respondent is under the age
 
15 of eighteen, the respondent's parent or guardian also shall
 
16 attend the program.  All costs for assessment and treatment shall
 
17 be paid by the respondent.
 
18      (e)  Alcohol and drug enforcement contacts that occurred
 
19 prior to the effective date of this Act shall be counted in
 
20 determining the administrative revocation period.
 
21      § -42  Notice to other states.  When a nonresident's
 
22 driving and boating privileges are administratively revoked under
 
23 this part, the director shall:
 

 
Page 50                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1      (1)  Notify, in writing, the officials in charge of traffic
 
 2           control, boating control, or public safety in the
 
 3           nonresident's home state, and in any other state in
 
 4           which the nonresident has driving and boating
 
 5           privileges, of the action taken in this State; and
 
 6      (2)  Return to the appropriate issuing authority in the
 
 7           other states any license seized under section    -34.
 
 8      § -43  Administrative procedure act.  Neither the
 
 9 administrative review nor the administrative hearing provided
 
10 under this part shall be subject to the contested case
 
11 requirements of chapter 91.  The availability of administrative
 
12 review of an order of administrative revocation shall have no
 
13 effect upon the availability of judicial review under this part.
 
14      § -44  Conditional permits.  (a)  If a respondent subject
 
15 to administrative revocation under this part submitted to a
 
16 breath, blood, or urine test and has had no prior alcohol or drug
 
17 enforcement contacts during the five years preceding the date the
 
18 notice of administrative revocation was issued, the director, at
 
19 the request of the respondent at the administrative hearing, may
 
20 issue a conditional permit allowing the respondent to drive,
 
21 after a minimum period of absolute license revocation of thirty
 
22 days, if one or more of the following conditions are met:
 
23      (1)  The respondent is gainfully employed in a position that
 

 
Page 51                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1           requires driving and will be discharged if the
 
 2           respondent's driving privileges are administratively
 
 3           revoked; or
 
 4      (2)  The respondent has no access to alternative
 
 5           transportation and therefore must drive to work or to a
 
 6           substance abuse treatment facility or counselor for
 
 7           treatment ordered by the director under section    -41.
 
 8      (b)  A request made pursuant to subsection (a)(1) shall be
 
 9 accompanied by:
 
10      (1)  A sworn statement from the respondent containing facts
 
11           establishing the respondent's current employment in a
 
12           position that requires driving and that the respondent
 
13           will be discharged if not allowed to drive; and
 
14      (2)  A sworn statement from the respondent's employer
 
15           establishing that the employer will in fact discharge
 
16           the respondent if the respondent is prohibited from
 
17           driving.
 
18      (c)  A request made pursuant to subsection (a)(2) shall be
 
19 accompanied by a sworn statement by the respondent attesting to
 
20 the specific facts upon which the request is based, which
 
21 statement shall be verified by the director.
 
22      (d)  A conditional permit may include restrictions allowing
 
23 the respondent to drive: 
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1      (1)  Only during hours of employment for activities solely
 
 2           within the scope of the employment;
 
 3      (2)  Only during daylight hours; or
 
 4      (3)  Only for specified purposes or to specified
 
 5           destinations.
 
 6 In addition, the director may impose any other appropriate
 
 7 restrictions, including installation of an ignition interlock
 
 8 system.
 
 9      (e)  The duration of the conditional permit shall be
 
10 determined on the basis of the criteria set forth in subsections
 
11 (b) and (c).
 
12      (f)  If the respondent violates the conditions imposed under
 
13 this section, the conditional permit shall be rescinded and
 
14 administrative revocation shall be immediate for the appropriate
 
15 period authorized by law.
 
16                   PART IV.  PROHIBITED CONDUCT
 
17      § -80  Operating a vehicle after consuming a measurable
 
18 amount of alcohol; under the age of twenty-one.(a)  No person
 
19 under the age of twenty-one shall operate or be in actual
 
20 physical control of the operation of a vehicle after consuming a
 
21 measurable amount of alcohol.
 
22      (b)  When a law enforcement officer has probable cause to
 
23 believe that a person under the age of twenty-one operated or was
 

 
Page 53                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 in actual physical control of the operation of a vehicle after
 
 2 consuming a measurable amount of alcohol, that officer may arrest
 
 3 the person for purposes of imposing sanctions under part III.
 
 4      § -81  Operating a vehicle under the influence of an
 
 5 intoxicant.(a)  A person commits the offense of operating a
 
 6 vehicle under the influence of an intoxicant if the person, while
 
 7 under the influence of an intoxicant, intentionally, knowingly,
 
 8 or recklessly operates or assumes actual physical control of the
 
 9 operation of any vehicle.  The state of mind under this
 
10 subsection shall apply only to the element of operating or
 
11 assuming control of a vehicle.
 
12      (b)  Operating a vehicle under the influence of an
 
13 intoxicant may be established by any of the following methods of
 
14 proof:
 
15      (1)  The person operates or assumes actual physical control
 
16           of the operation of any vehicle while under the
 
17           influence of an intoxicant;
 
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 54                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1           centimeters of blood.
 
 2      (c)  A person committing the offense of driving under the
 
 3 influence of an intoxicant shall be sentenced as follows without
 
 4 possibility of probation or suspension of sentence:
 
 5      (1)  For the first offense, or any offense not preceded
 
 6           within a five-year period by an offense under this
 
 7           section or section 291-4, 291-7, or 200-81, by:
 
 8           (A)  A fourteen-hour minimum alcohol or drug abuse
 
 9                rehabilitation program, or both, including
 
10                education and counseling, or other comparable
 
11                program deemed appropriate by the court; and
 
12           (B)  Ninety-day prompt revocation of license and
 
13                privilege to operate a vehicle with absolute
 
14                prohibition from operating a vehicle during the
 
15                revocation period, or the court may impose, in
 
16                lieu of the ninety-day prompt revocation of
 
17                license, a minimum thirty-day prompt revocation of
 
18                license with absolute prohibition from operating a
 
19                vehicle and, for the remainder of the ninety-day
 
20                period, a restriction on the license that allows
 
21                the person to drive for limited work-related
 
22                purposes and to participate in alcohol or drug
 
23                treatment programs; and
 

 
Page 55                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1           (C)  Any one or more of the following:
 
 2                (i)  Seventy-two hours of community service work;
 
 3               (ii)  Not less than forty-eight hours and not more
 
 4                     than five days of imprisonment; or
 
 5              (iii)  A fine of not less than $150 but not more
 
 6                     than $1,000.
 
 7      (2)  For an offense that occurs within five years of a prior
 
 8           offense under this section or section 291-4, 291-7, or
 
 9           200-81, by:
 
10           (A)  Prompt revocation of license and privilege to
 
11                operate a vehicle for a period of one year with
 
12                the absolute prohibition from operating a vehicle
 
13                during the revocation period;
 
14           (B)  Either one of the following:
 
15                (i)  Not less than one hundred hours of community
 
16                     service work; or
 
17               (ii)  Not less than forty-eight consecutive hours
 
18                     but not more than fourteen days of
 
19                     imprisonment of which at least forty-eight
 
20                     hours shall be served consecutively; and
 
21           (C)  A fine of not less than $500 but not more than
 
22                $1,500.
 
23      (3)  For an offense that occurs within five years of two
 

 
Page 56                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1           prior offenses under this section or section 291-4,
 
 2           291-7, or 200-81, by:
 
 3           (A)  A fine of not less than $500 but not more than
 
 4                $2,500;
 
 5           (B)  Revocation of license and privilege to operate a
 
 6                vehicle for a period not less than one year but
 
 7                not more than five years; and
 
 8           (C)  Not less than ten days but not more than thirty
 
 9                days imprisonment of which at least forty-eight
 
10                hours shall be served consecutively.
 
11      (4)  For an offense that occurs within ten years of three
 
12           prior offenses under this section or section 291-4,
 
13           291-7, or 200-81, by:
 
14           (A)  A fine of not less than $1,000 but not more than
 
15                $10,000;
 
16           (B)  Revocation of license and privilege to operate a
 
17                vehicle for a period not less than five years but
 
18                not more than ten years; and
 
19           (C)  Not less than six months but not more than five
 
20                years imprisonment.  This offense is a class C
 
21                felony.
 
22      (5)  For an offense that occurs within ten years of five
 
23           prior offenses under this section or section 291-4,
 

 
Page 57                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1           291-7, or 200-81, by:
 
 2           (A)  A fine of not less than $2,000 but not more than
 
 3                $25,000;
 
 4           (B)  Revocation of license and privilege to operate a
 
 5                vehicle for life; and
 
 6           (C)  Not less than one year but not more than ten years
 
 7                imprisonment.  This offense is a class B felony.
 
 8      (6)  For an offense that occurs within ten years of seven
 
 9           prior offenses under this section or section 291-4,
 
10           291-7, or 200-81, by:
 
11           (A)  A fine of not less than $5,000 but not more than
 
12                $50,000;
 
13           (B)  Revocation of license and privilege to operate a
 
14                vehicle for life; and
 
15           (C)  Not less than two years but not more than twenty
 
16                years imprisonment.  This offense is a class A
 
17                felony.
 
18      (7)  For an offense that occurs within ten years of eight or
 
19           more prior offenses under this section or section
 
20           291-4, 291-7, or 200-81, by:
 
21           (A)  A fine of not less than $10,000 but not more than
 
22                $50,000;
 
23           (B)  Revocation of license and privilege to operate a
 

 
Page 58                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1                vehicle for life; and
 
 2           (C)  Not less than five years but not more than twenty
 
 3                years imprisonment.  This offense is a class A
 
 4                felony.
 
 5      Notwithstanding any other law to the contrary, any offense
 
 6 of operating a vehicle under the influence of intoxicating
 
 7 liquor, drugs, or the combined influence of liquor and drugs
 
 8 shall be considered a prior offense.  No license revocation shall
 
 9 be imposed pursuant to this subsection if the person's license
 
10 has previously been administratively revoked pursuant to part III
 
11 for the same offense; provided that, if the administrative
 
12 revocation is subsequently reversed, the person's license shall
 
13 be revoked as provided in this subsection.
 
14      (d)  Whenever a court sentences a person pursuant to
 
15 subsection (c), it also shall require that the offender be
 
16 referred to a substance abuse counselor who has been certified
 
17 pursuant to section 321-193 for an assessment of the offender's
 
18 alcohol or drug abuse or dependence and the need for appropriate
 
19 treatment.  The counselor shall submit a report with
 
20 recommendations to the court.  The court may require the offender
 
21 to obtain appropriate treatment if the counselor's assessment
 
22 establishes the offender's alcohol or drug abuse or dependence.
 
23 All cost for assessment or treatment or both shall be borne by
 

 
Page 59                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 the offender.
 
 2      (e)  Notwithstanding any other law to the contrary, whenever
 
 3 a court revokes a person's driver's license pursuant to the
 
 4 provisions of this section, the examiner of drivers shall not
 
 5 grant to the person an application for a new driver's license for
 
 6 a period to be determined by the court.
 
 7      (f)  Any person sentenced under this section may be ordered
 
 8 to reimburse the county for the cost of any blood or urine tests
 
 9 conducted pursuant to section    -12.  The court shall order the
 
10 person to make restitution in a lump sum, or in a series of
 
11 prorated installments, to the police department, or other agency
 
12 incurring the expense of the blood or urine test.
 
13      (g)  The requirement to provide proof of financial
 
14 responsibility pursuant to section 287-20 shall not be based upon
 
15 a revocation under part III unless the person's license had been
 
16 previously revoked under that part in the five-year period
 
17 immediately preceding the revocation at issue, nor shall the
 
18 requirement to provide proof of financial responsibility pursuant
 
19 to section 287-20 be based upon a sentence imposed under
 
20 subsection (c)(1).
 
21      (h)  As used in this section the terms "examiner of drivers"
 
22 shall have the same meaning as provided in section 286-2.
 
23      § -82  Operating a vehicle after license suspended or
 

 


 

Page 60                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 revoked for operating a vehicle under the influence of an
 
 2 intoxicant; penalties.  (a)  No person whose license and
 
 3 privilege to operate a vehicle has been revoked, suspended, or
 
 4 otherwise restricted pursuant to part III or section    -81,
 
 5 291-4, 291-7, or 200-81 shall operate or assume actual physical
 
 6 control of the operation of any vehicle in the State or on or in
 
 7 the waters of this State:
 
 8      (1)  In violation of any restrictions placed on the person's
 
 9           license; 
 
10      (2)  While the person's license remains suspended or
 
11           revoked; or
 
12      (3)  While the person's privilege to operate a vehicle has
 
13           been revoked.
 
14 The period of suspension or revocation shall commence upon the
 
15 release of the person from the period of imprisonment imposed
 
16 pursuant to this section.
 
17      (b)  Any person convicted of violating this section shall be
 
18 sentenced as follows:
 
19      (1)  For a first offense, or any offense not preceded within
 
20           a five-year period by an offense under this section:
 
21           (A)  A term of imprisonment at least three consecutive
 
22                days but not more than thirty days;
 
23           (B)  A fine not less than $250 but not more than
 

 
Page 61                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1                $1,000; and
 
 2           (C)  Revocation of license and privilege to operate a
 
 3                vehicle for an additional year;
 
 4      (2)  For an offense that occurs within five years of a prior
 
 5           offense under this section:
 
 6           (A)  Thirty days imprisonment;
 
 7           (B)  A fine of $1,000; and
 
 8           (C)  Revocation of license and privilege to operate a
 
 9                vehicle for an additional two years; and
 
10      (3)  For an offense that occurs within five years of two or
 
11           more prior offenses under this section:
 
12           (A)  One year imprisonment;
 
13           (B)  A $2,000 fine; and
 
14           (C)  Permanent revocation of the person's license and
 
15                privilege to operate a vehicle.
 
16      § -83  Evidence of intoxication.(a)  In any criminal
 
17 prosecution for a violation of section    -81 or in any
 
18 proceeding under part III:
 
19      (1)  .08 or more grams of alcohol per one hundred
 
20           milliliters or cubic centimeters of the defendant's
 
21           blood;
 
22      (2)  .08 or more grams of alcohol per two hundred ten liters
 
23           of the defendant's breath; or
 

 
Page 62                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1      (3)  The presence of one or more drugs or any combination of
 
 2           alcohol or drugs that impair the defendant's normal
 
 3           mental faculties or ability to care for the defendant
 
 4           and guard against casualty,
 
 5 within three hours after the time of the alleged violation as
 
 6 shown by chemical analysis or other approved analytical
 
 7 techniques of the defendant's blood, breath, or urine shall be
 
 8 competent evidence that the defendant was under the influence of
 
 9 an intoxicant at the time of the alleged violation.
 
10      (b)  In any criminal prosecution for a violation of section
 
11    -81, less than .08 grams of alcohol per one hundred
 
12 milliliters or cubic centimeters of the defendant's blood or less
 
13 than .08 grams of alcohol per two hundred ten liters of the
 
14 defendant's breath within three hours after the time of the
 
15 alleged violation as shown by chemical analysis or other approved
 
16 analytical techniques of the defendant's blood or breath may be
 
17 considered with other competent evidence in determining whether
 
18 the defendant was under the influence of an intoxicant at the
 
19 time of the alleged violation.
 
20      (c)  Nothing in this section shall be construed as limiting
 
21 the introduction, in any criminal proceeding for a violation
 
22 under section    -81 or in any proceeding under part III, of
 
23 relevant evidence of a person's alcohol or drug content obtained
 

 
Page 63                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 more than three hours after an alleged violation; provided that
 
 2 the evidence is offered in compliance with the Hawaii rules of
 
 3 evidence."
 
 4      SECTION 3.  Section 199-3, Hawaii Revised Statutes, is
 
 5 amended by amending subsection (a) to read as follows:
 
 6      "(a)  The conservation and resources enforcement officers,
 
 7 with respect to all state lands, including public lands, state
 
 8 parks, forest reserves, forests, aquatic life and wildlife areas,
 
 9 Kaho`olawe island reserve, and any other lands and waters subject
 
10 to the jurisdiction of the department of land and natural
 
11 resources, shall:
 
12      (1)  Enforce title 12, chapters 6E and 6K, and rules adopted
 
13           thereunder;
 
14      (2)  Investigate complaints, gather evidence, conduct
 
15           investigations, and conduct field observations and
 
16           inspections as required or assigned;
 
17      (3)  Cooperate with enforcement authorities of the State,
 
18           counties, and federal government in development of
 
19           programs and mutual agreements for conservation and
 
20           resources enforcement activities within the State;
 
21      (4)  Cooperate with established search and rescue agencies
 
22           of the counties and the federal government in
 
23           developing plans and programs[,] and mutual aid
 

 
Page 64                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1           agreements for search and rescue activities within the
 
 2           State;
 
 3      (5)  Check and verify all leases, permits, and licenses
 
 4           issued by the department of land and natural resources;
 
 5      (6)  Enforce the laws relating to firearms, ammunition, and
 
 6           dangerous weapons contained in chapter 134;
 
 7      (7)  Enforce the laws in chapter     relating to operating a
 
 8           vessel on or in the waters of the State while using
 
 9           intoxicants;
 
10     [(7)] (8)  Whether through a specifically designated marine
 
11           patrol or otherwise, enforce the rules in the areas of
 
12           boating safety, conservation, and search and rescue
 
13           relative to the control and management of boating
 
14           facilities owned or controlled by the State, ocean
 
15           waters, and navigable streams and any activities
 
16           thereon or therein, and beaches encumbered with
 
17           easements in favor of the public, and the rules
 
18           regulating vessels and their use in the waters of the
 
19           State; and
 
20     [(8)] (9)  Carry out [such] other duties and responsibilities
 
21           as the board of land and natural resources from time to
 
22           time may direct."
 
23      SECTION 4.  Section 287-20, Hawaii Revised Statutes, is
 

 
Page 65                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 amended by amending subsection (a) to read as follows:
 
 2      "(a)  Whenever a driver's license has been suspended or
 
 3 revoked:
 
 4      (1)  Pursuant to [section 286-151.5 or part XIV of chapter
 
 5           286,] part III of chapter    , except as provided in
 
 6           section [291-4(f);]    -81(g);
 
 7      (2)  Upon a conviction of any offense pursuant to law; or
 
 8      (3)  In the case of minors, pursuant to part V of chapter
 
 9           571,
 
10 the license shall not at any time thereafter be issued to the
 
11 person whose license has been suspended or revoked, nor shall the
 
12 person thereafter operate a motor vehicle, unless and until the
 
13 person has furnished and thereafter maintains proof of financial
 
14 responsibility; provided that this section shall not apply to a
 
15 license [suspended] revoked for operating a vehicle while under
 
16 the age of twenty-one and after consuming a measurable amount of
 
17 alcohol pursuant to section [291-4.3(b)(1),]    -41(b)(1), any
 
18 conviction of a moving violation, any administrative license
 
19 suspension pursuant to chapter 291A, or the first conviction
 
20 within a five-year period for driving without a valid motor
 
21 vehicle insurance policy."
 
22      SECTION 5.  Section 663-1.9, Hawaii Revised Statutes, is
 
23 amended by amending subsections (a) and (b) to read as follows:
 

 
Page 66                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1      "(a)  Any health care provider who, in good faith in
 
 2 compliance with section 286-163, provides notice concerning the
 
 3 alcohol or drug content of a person's blood or urine shall be
 
 4 immune from any civil liability in any action based upon the
 
 5 compliance.  The health care provider shall also be immune from
 
 6 any civil liability for participating in any subsequent judicial
 
 7 proceeding relating to the person's compliance.
 
 8      (b)  Any authorized person who properly withdraws blood or
 
 9 collects urine from another person at the written request of a
 
10 police officer for testing of the blood's alcoholic or drug
 
11 content[,] or the drug content of the urine, and any hospital,
 
12 laboratory, or clinic, employing or utilizing the services of
 
13 such person, and owning or leasing the premises on which such
 
14 tests are performed, shall not be liable for civil damages
 
15 resulting from the authorized person's acts or omissions in
 
16 withdrawing the blood[,] or collecting urine, except for such
 
17 damages as may result from the authorized person's gross
 
18 negligence or wanton acts or omissions."
 
19      SECTION 6.  Chapter 200, part VII, Hawaii Revised Statutes,
 
20 is repealed.
 
21      SECTION 7.  Chapter 286, part VII, Hawaii Revised Statutes,
 
22 is repealed.
 
23      SECTION 8.  Chapter 286, part XIV, Hawaii Revised Statutes,
 

 
Page 67                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1 is repealed.
 
 2      SECTION 9.  Section 291-4, Hawaii Revised Statutes, is
 
 3 repealed.
 
 4      ["§291-4 Driving under the influence of intoxicating
 
 5 liquor.(a)  A person commits the offense of driving under the
 
 6 influence of intoxicating liquor if:
 
 7      (1)  The person operates or assumes actual physical control
 
 8           of the operation of any vehicle while under the
 
 9           influence of intoxicating liquor, meaning that the
 
10           person concerned is under the influence of intoxicating
 
11           liquor in an amount sufficient to impair the person's
 
12           normal mental faculties or ability to care for oneself
 
13           and guard against casualty; or
 
14      (2)  The person operates or assumes actual physical control
 
15           of the operation of any vehicle with .08 or more grams
 
16           of alcohol per one hundred milliliters or cubic
 
17           centimeters of blood or .08 or more grams of alcohol
 
18           per two hundred ten liters of breath.
 
19      (b)  A person committing the offense of driving under the
 
20 influence of intoxicating liquor shall be sentenced as follows
 
21 without possibility of probation or suspension of sentence:
 
22      (1)  For the first offense, or any offense not preceded
 
23           within a five-year period by a conviction under this
 

 
Page 68                                                    
                                     S.B. NO.           1212
                                                        
                                                        

 
 1           section, by:
 
 2           (A)  A fourteen-hour minimum alcohol abuse
 
 3                rehabilitation program including education and
 
 4                counseling, or other comparable program deemed
 
 5                appropriate by the court; and
 
 6           (B)  Ninety-day prompt suspension of license with
 
 7                absolute prohibition from operating a motor
 
 8                vehicle during suspension of license, or the court
 
 9                may impose, in lieu of the ninety-day prompt
 
10                suspension of license, a minimum thirty-day prompt
 
11                suspension of license with absolute prohibition
 
12                from operating a motor vehicle and, for the
 
13                remainder of the ninety-day period, a restriction
 
14                on the license that allows the person to drive for
 
15                limited work-related purposes and to participate
 
16                in alcoholism treatment programs; and
 
17           (C)  Any one or more of the following:
 
18                (i)  Seventy-two hours of community service work;
 
19               (ii)  Not less than forty-eight hours and not more
 
20                     than five days of imprisonment; or
 
21              (iii)  A fine of not less than $150 but not more
 
22                     than $1,000.
 
23      (2)  For an offense which occurs within five years of a
 

 
Page 69                                                    
                                     S.B. NO.           1212
                                                        
                                                        

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

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1           conviction for driving under the influence of
 
 2           intoxicating liquor, shall be considered a prior
 
 3           conviction.
 
 4      (5)  No license suspension or revocation shall be imposed
 
 5           pursuant to this subsection if the person's license has
 
 6           previously been administratively revoked pursuant to
 
 7           part XIV of chapter 286 for the same offense; provided
 
 8           that, if the administrative revocation is subsequently
 
 9           reversed, the person's license shall be suspended or
 
10           revoked as provided in this subsection.
 
11      (c)  Whenever a court sentences a person pursuant to
 
12 subsection (b), it shall also require that the offender be
 
13 referred to a substance abuse counselor who has been certified
 
14 pursuant to section 321-193 for an assessment of the offender's
 
15 alcohol abuse or dependence and the need for appropriate
 
16 treatment.  The counselor shall submit a report with
 
17 recommendations to the court.  The court may require the offender
 
18 to obtain appropriate treatment if the counselor's assessment
 
19 establishes the offender's alcohol abuse or dependence.
 
20      All cost for assessment or treatment or both shall be borne
 
21 by the offender.
 
22      (d)  Notwithstanding any other law to the contrary, whenever
 
23 a court revokes a person's driver's license pursuant to the
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1 provisions of this section, the examiner of drivers shall not
 
 2 grant to the person an application for a new driver's license for
 
 3 a period to be determined by the court.
 
 4      (e)  Any person sentenced under this section may be ordered
 
 5 to reimburse the county for the cost of any blood tests conducted
 
 6 under section 286-152.  The court shall order the person to make
 
 7 restitution in a lump sum, or in a series of prorated
 
 8 installments, to the police department, or other agency incurring
 
 9 the expense of the blood test.
 
10      (f)  The requirement to provide proof of financial
 
11 responsibility pursuant to section 287-20 shall not be based upon
 
12 a revocation under part XIV of chapter 286 unless the person's
 
13 license had been previously revoked under that part in the
 
14 five-year period immediately preceding the revocation at issue,
 
15 nor shall the requirement to provide proof of financial
 
16 responsibility pursuant to section 287-20 be based upon a
 
17 sentence imposed under subsection (b)(1).
 
18      (g)  As used in this section the terms "driver", "driver's
 
19 license", and "examiner of drivers", shall have the same meanings
 
20 as provided in section 286-2 and the term "vehicle" shall have
 
21 the same meaning as provided in section 291C-1."]
 
22      SECTION 10.  Section 291-4.3, Hawaii Revised Statutes, is
 
23 repealed.
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1      ["[§291-4.3]  Driving after consuming a measurable amount of
 
 2 alcohol; persons under the age of twenty-one.  (a)  It shall be
 
 3 unlawful for any person under the age of twenty-one years to
 
 4 drive, operate, or assume actual physical control of the
 
 5 operation of any vehicle with a measurable amount of alcohol
 
 6 concentration.  A law enforcement officer may arrest a person
 
 7 under this section when the officer has probable cause to believe
 
 8 the arrested person is under the age of twenty-one and had been
 
 9 driving or was in actual physical control of a motor vehicle or
 
10 moped upon the public highways with a measurable amount of
 
11 alcohol.  For purposes of this section, "measurable amount of
 
12 alcohol" means a test result equal to or greater than .02 but
 
13 less than .08 grams of alcohol per one hundred milliliters or
 
14 cubic centimeters of blood or equal to or greater than .02 but
 
15 less than .08 grams of alcohol per two hundred ten liters of
 
16 breath.
 
17      (b)  A person who violates this section shall be sentenced
 
18 as follows:
 
19      (1)  For a first violation or any violation not preceded
 
20           within a five-year period by a prior alcohol
 
21           enforcement contact:
 
22           (A)  The court shall impose:
 
23                (i)  A requirement that the person and, if the
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1                     person is under the age of eighteen, the
 
 2                     person's parent or guardian attend an alcohol
 
 3                     abuse education and counseling program for
 
 4                     not more than ten hours; and
 
 5               (ii)  One hundred eighty-day prompt suspension of
 
 6                     license with absolute prohibition from
 
 7                     operating a motor vehicle during suspension
 
 8                     of license, or in the case of a person
 
 9                     eighteen years of age or older, the court may
 
10                     impose, in lieu of the one hundred eighty-day
 
11                     prompt suspension of license, a minimum
 
12                     thirty-day prompt suspension of license with
 
13                     absolute prohibition from operating a motor
 
14                     vehicle and, for the remainder of the one
 
15                     hundred eighty-day period, a restriction on
 
16                     the license that allows the person to drive
 
17                     for limited work-related purposes and to
 
18                     participate in alcohol abuse education and
 
19                     treatment programs; and
 
20           (B)  In addition, the court may impose any one or more
 
21                of the following:
 
22                (i)  Not more than thirty-six hours of community
 
23                     service work; or
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1               (ii)  A fine of not less than $150 but not more
 
 2                     than $500.
 
 3      (2)  For a violation that occurs within five years of a
 
 4           prior alcohol enforcement contact:
 
 5           (A)  The court shall impose prompt suspension of
 
 6                license for a period of one year with the absolute
 
 7                prohibition from operating a motor vehicle during
 
 8                suspension of license; and
 
 9           (B)  In addition, the court may impose any of the
 
10                following:
 
11                (i)  Not more than fifty hours of community
 
12                     service work; or
 
13               (ii)  A fine of not less than $300 but not more
 
14                     than $1,000.
 
15      (3)  For a violation that occurs within five years of two
 
16           prior alcohol enforcement contacts:
 
17           (A)  The court shall impose revocation of license for a
 
18                period of two years; and
 
19           (B)  In addition, the court may impose any of the
 
20                following:
 
21                (i)  Not more than one hundred hours of community
 
22                     service work; or
 
23               (ii)  A fine of not less than $300 but not more
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1                     than $1,000.
 
 2      (4)  Notwithstanding any other law to the contrary, any
 
 3           conviction or plea under this section shall be
 
 4           considered a prior alcohol enforcement contact.
 
 5      (c)  Whenever a court sentences a person pursuant to
 
 6 subsection (b)(2) or (3), it also shall require that the person
 
 7 be referred to a substance abuse counselor who has been certified
 
 8 pursuant to section 321-193 for an assessment of the person's
 
 9 alcohol abuse or dependence and the need for appropriate
 
10 treatment.  The counselor shall submit a report with
 
11 recommendations to the court.  The court shall require the person
 
12 to obtain appropriate treatment if the counselor's assessment
 
13 establishes the person's alcohol abuse or dependence.  All costs
 
14 for assessment or treatment or both shall be borne by the person
 
15 or by the person's parent or guardian, if the person is under the
 
16 age of eighteen.
 
17      (d)  Notwithstanding section 831-3.2 or any other law to the
 
18 contrary, a person convicted of a first-time violation under
 
19 subsection (b)(1), who had no prior alcohol enforcement contacts,
 
20 may apply to the court for an expungement order upon attaining
 
21 the age of twenty-one, or thereafter, if the person has fulfilled
 
22 the terms of the sentence imposed by the court and has had no
 
23 subsequent alcohol or drug-related enforcement contacts.
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1      (e)  Notwithstanding any other law to the contrary, whenever
 
 2 a court revokes a person's driver's license pursuant to this
 
 3 section, the examiner of drivers shall not grant to the person an
 
 4 application for a new driver's license for a period to be
 
 5 determined by the court.
 
 6      (f)  Any person sentenced under this section may be ordered
 
 7 to reimburse the county for the cost of any blood tests conducted
 
 8 pursuant to section 286-152.  The court shall order the person to
 
 9 make restitution in a lump sum, or in a series of prorated
 
10 installments, to the police department or other agency incurring
 
11 the expense of the blood test.
 
12      (g)  The requirement to provide proof of financial
 
13 responsibility pursuant to section 287-20 shall not be based upon
 
14 a sentence imposed under subsection (b)(1).
 
15      (h)  Any person who violates this section shall be guilty of
 
16 a violation.
 
17      (i)  As used in this section, the terms "driver", "driver's
 
18 license", and "examiner of drivers", shall have the same meanings
 
19 as provided in section 286-2, the term "alcohol enforcement
 
20 contact" shall have the same meaning as in section 286-251, and
 
21 the term "vehicle" shall have the same meaning as provided in
 
22 section 291C-1."]
 
23      SECTION 11.  Section 291-4.4. Hawaii Revised Statutes, is
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1 repealed.
 
 2      ["[§291-4.4]  Habitually driving under the influence of
 
 3 intoxicating liquor or drugs.(a)  A person commits the offense
 
 4 of habitually driving under the influence of intoxicating liquor
 
 5 or drugs if, during a ten-year period the person has been
 
 6 convicted three or more times for a driving under the influence
 
 7 offense; and
 
 8      (1)  The person operates or assumes actual physical control
 
 9           of the operation of any vehicle while under the
 
10           influence of intoxicating liquor, meaning that the
 
11           person is under the influence of intoxicating liquor in
 
12           an amount sufficient to impair the person's normal
 
13           mental faculties or ability to care for oneself and
 
14           guard against casualty;
 
15      (2)  The person operates or assumes actual physical control
 
16           of the operation of any vehicle with .08 or more grams
 
17           of alcohol per one hundred milliliters or cubic
 
18           centimeters of blood or .08 or more grams of alcohol
 
19           per two hundred ten liters of breath; or
 
20      (3)  A person operates or assumes actual physical control of
 
21           the operation of any vehicle while under the influence
 
22           of any drug which impairs such person's ability to
 
23           operate the vehicle in a careful and prudent manner.
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1           The term "drug" as used in this section shall mean any
 
 2           controlled substance as defined and enumerated on
 
 3           schedules I through IV of chapter 329.
 
 4      (b)  For the purposes of this section a driving under the
 
 5 influence offense means a violation of section 291-4, 291-7, or
 
 6 707-702.5, or violation of laws in another jurisdiction which
 
 7 requires proof of each element of the offenses punishable under
 
 8 either section 291-4, 291-7, or 707-702.5 if committed in Hawaii.
 
 9      (c)  Habitually driving under the influence of intoxicating
 
10 liquor or drugs is a class C felony."]
 
11      SECTION 12.  Section 291-7, Hawaii Revised Statues, is
 
12 repealed.
 
13      ["§291-7 Driving under the influence of drugs.(a)  A
 
14 person commits the offense of driving under the influence of
 
15 drugs if the person operates or assumes actual physical control
 
16 of the operation of any vehicle while under the influence of ay
 
17 drug which impairs such person's ability to operate the vehicle
 
18 in a careful and prudent manner.  The term "drug" as used in this
 
19 section shall mean any controlled substance as defined and
 
20 enumerated on schedules I through IV of chapter 329.
 
21      (b)  A person committing the offense of driving under the
 
22 influence of drugs shall be sentenced as follows without
 
23 possibility of probation or suspension of sentence:
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1      (1)  For a first offense, or any offense not preceded within
 
 2           a five-year period by a conviction under this section,
 
 3           by:
 
 4           (A)  A fourteen-hour minimum drug abuse rehabilitation
 
 5                program, including education and counseling, or
 
 6                other comparable programs deemed appropriate by
 
 7                the court; and
 
 8           (B)  Ninety-day prompt suspension of license with
 
 9                absolute prohibition from operating a motor
 
10                vehicle during suspension of license, or the court
 
11                may impose, in lieu of the ninety-day prompt
 
12                suspension of license, a minimum thirty-day prompt
 
13                suspension of license with absolute prohibition
 
14                from operating a motor vehicle and, for the
 
15                remainder of the ninety-day period, a restriction
 
16                on the license that allows the person to drive for
 
17                limited work-related purposes and to participate
 
18                in drug treatment programs; and
 
19           (C)  Any one or more of the following:
 
20                (i)  Seventy-two hours of community service work;
 
21               (ii)  Not less than forty-eight hours of
 
22                     imprisonment; or
 
23              (iii)  A fine of not less than $150 but not more
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

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

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1           shall be considered a prior conviction.
 
 2      (c)  Whenever a court sentences a person pursuant to
 
 3 subsection (b)(2) or (3), it shall also require that the offender
 
 4 be referred to a substance abuse counselor who has been certified
 
 5 pursuant to section 321-193 for an assessment of the offender's
 
 6 drug dependence and the need for treatment.  The counselor shall
 
 7 submit a report with recommendations to the court.  The court may
 
 8 require the offender to obtain appropriate treatment.
 
 9      All costs for such assessment or treatment or both shall be
 
10 borne 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 such person an application for a new driver's license
 
15 for such period as specified by the court.
 
16      (e)  As used in this section, the terms "driver", "driver's
 
17 license", and "examiner of drivers" shall have the same meanings
 
18 as provided in section 286-2; and the term "vehicle" shall have
 
19 the same meaning as provided in section 291C-1."]
 
20      SECTION 13.  If any provision of this Act, or the
 
21 application thereof to any person or circumstance is held
 
22 invalid, the invalidity does not affect other provisions or
 
23 applications of the Act which can be given effect without the
 

 
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                                     S.B. NO.           1212
                                                        
                                                        

 
 1 invalid provision or application,and to this end the provisions
 
 2 of this Act are severable.
 
 3      SECTION 14.  Statutory material to be repealed is bracketed.
 
 4 New statutory material is underscored.
 
 5      SECTION 15.  This Act shall take effect on January 1, 2000;
 
 6 provided that part IV shall be retroactive for all pending cases
 
 7 for operating a vehicle, including a vessel underway, under the
 
 8 influence of an intoxicant.
 
 9 
 
10                           INTRODUCED BY:  _______________________