STAND. COM. REP. NO. 3347

                                   Honolulu, Hawaii
                                                     , 2000

                                   RE:  H.B. No. 1881
                                        H.D. 2
                                        S.D. 2




Honorable Norman Mizuguchi
President of the Senate
Twentieth State Legislature
Regular Session of 2000
State of Hawaii

Sir:

     Your Committee on Judiciary, to which was referred H.B. No.
1881, H.D. 2, S.D. 1, entitled: 

     "A BILL FOR AN ACT RELATING TO USE OF INTOXICANTS,"

begs leave to report as follows:

     The purpose of this bill is to consolidate and conform
offenses relating to operating a vehicle under the influence of
an intoxicant.

     Your Committee has under consideration two additional bills
relating to operating vehicles under intoxicants: H.B. No. 2691,
S.D. 1, relating to driving under the influence of drugs, and
H.B. No. 2618, H.D. 2, requiring revocation of motor vehicle
registrations for repeat intoxicated drivers.

     Your Committee finds that there has been concern and
confusion expressed over the definition of "drug" both in H.B.
No. 2691, S.D. 1, and H.B. No. 1881, S.D. 1.  Specifically, there
appears to be the perception that the definition of "drug" is
being changed and expanded in scope.  Your Committee notes,
however, that the definition of "drug" used in H.B. No. 2691,
S.D. 1 (at page 1, line 18, through page 2, line 2), is unchanged
from its present definition in section 291-7, Hawaii Revised
Statutes.  This present statutory language, which defines "drug"
as "any controlled substance as defined and enumerated on

 
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schedules I through IV of chapter 329", was adopted by Act 221,
Session Laws of Hawaii 1986.  Your Committee further notes that
Act 221, in fact, narrowed the scope of the term "drug".  Prior
to its amendment by Act 221, section 291-7 referred to "any drug"
and specifically stated that the fact that a person charged under
this section "is, or has been, legally authorized to use a drug
shall not constitute a defense to such a charge."  Accordingly,
prior to Act 221, section 291-7 encompassed any drug that
impaired a person's ability to operate a vehicle in a careful and
prudent manner.  In contrast, under the present statutory
language, the drug must be enumerated on schedules I through IV
of chapter 329 and must be found to impair a person's ability to
operate a vehicle in a careful and prudent manner.  Your
Committee also notes that the definition of "drug" used in H.B.
No. 1881, S.D. 1, reflects the present definition found in
section 291-7, except that it includes "metabolites" of the
controlled substances enumerated on schedules I through IV.

     Accordingly, your Committee believes that any
characterization that the use of drugs that are presently legal
will be made illegal under these bills is misleading.
Furthermore, given the potentially serious outcomes of impaired
driving and the Legislature's efforts in recent years to reduce
the incidents of impaired driving, your Committee considers it
unwise to narrow the present scope of "drugs" applicable to
impaired driving, absent reliable evidence that the drugs to be
exempted do not impair the ability to operate a vehicle in a
careful and prudent manner.

     Upon further consideration, your Committee has amended this
bill by consolidating it with H.B. No. 2691, S.D. 1 and H.B. No.
2618, H.D. 2.  The resulting bill, H.B. No. 1881, S.D. 2,
consists of four separate parts, which have different effective
dates, as follows:

                             PART 1
                   (Sections 1-2 of the bill)

     Part 1 consists of the provisions formerly contained in H.B.
No. 2691, S.D. 1, which reduce the maximum jail periods for
section 291-7, Hawaii Revised Statutes (DUI-drugs), and apply
retroactively to restrict the right to a jury trial in pending
section 291-7 cases.  Your Committee has amended these provisions
to ensure penalties are not increased and to eliminate the
duplicative definition of "drugs".  The effective date of this
part is "upon approval" and it is your Committee's intent that
the part apply retroactively to pending driving under the

 
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influence of drug cases under section 291-7, Hawaii Revised
Statutes.

                             PART 2
                   (Sections 3-21 of the bill)

     Part 2 consists of the provisions formerly contained in H.B.
No. 2618, H.D. 2, relating to sanctions for repeat intoxicated
drivers, including revocation of motor vehicle registrations.
Your Committee finds that H.B. No. 2618, H.D. 2, was in response
to section 5 of the federal TEA-21 Restoration Act, which
establishes a new program under Section 164 of Chapter 1, Title
23 U.S.C., encouraging states to enact repeat intoxicated driver
laws.  States that do not have a repeat intoxicated driver law by
October 1, 2000, must transfer 1.5 per cent of federal aid
highway funds to their state's Section 402 state and community
highway safety funds for the first two years.  Your Committee
further finds that, if this part is not enacted by September 30,
2001, the percentage of Hawaii's federal aid highway funds that
must be transferred until the State meets these federal
requirements will increase to three per cent.

     Your Committee has amended the former provisions of H.B. No.
2618, H.D. 2, in part 2 of the bill as follows:

     (1)  By changing the period during which a household member
          may apply for a special motor vehicle registration from
          30 days to "anytime" after the effective date of the
          revocation;

     (2)  By substituting the definitions used in the Senate
          companion bill (S.B. No. 2318, S.D. 2), including the
          definition "repeat intoxicated driver", and making
          conforming changes relating to the use of the term
          "repeat intoxicated driver";

     (3)  By clarifying, with respect to the definition of
          "repeat intoxicated driver", the application of
          sanctions to a third DUI offense;

     (4)  By deleting the requirement that the Judiciary return
          fees if the administrative revocation is reversed;

     (5)  By clarifying the time for the scheduling of the
          administrative hearing;


 
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     (6)  By clarifying the Legislature's intent that the
          administrator may issue conditional driving permits
          only to those first-time violators subject to
          revocation under section 286-261(b)(1) who are not
          otherwise subject to license suspension or revocation
          or whose licenses have not expired;

     (7)  By deleting any reference to a "maximum" jail term;

     (8)  By changing the effective date for the provisions of
          part 2 to September 30, 2000; and

     (9)  By making a number of technical nonsubstantive changes
          for purposes of style, clarity, and consistency.

                             PART 3
                  (Sections 22-36 of the bill)

     Part 3 consists of the provisions formerly contained in H.B.
No. 1881, S.D. 1, which consolidates, into a new chapter within
the HRS, all provisions relating to impaired (alcohol or drugs)
driving or boating, including provisions relating to implied
consent in part VII of chapter 286 and administrative license
revocation in part XIV of chapter 286.  More specifically, these
provisions consolidate impaired driving and boating offenses,
under present sections 291-4 (alcohol), 291-7 (drugs), and 200-81
(boating), into one single offense (operating a vehicle under the
influence of an intoxicant), with uniform penalties.  This
offense also includes the present class C felony habitual DUI
(section 291-4.4).

     Your Committee finds that consolidation of the habitual
offense will ensure that all DUI convictions, whether under
section 291-4 or 291-4.4, count as priors for purposes of
sentencing.  Furthermore, the provisions incorporate present drug
(section 291-7) and boating (section 200-81) impaired offenses
and refusal to be tested for those offenses (sections 286-157.3,
et. seq., and 200-89, respectively) into the administrative
license revocation provisions.  Finally, the provisions
incorporate boating into the "zero tolerance" law, but otherwise
keeps penalties for driving with measurable amount of alcohol
(section 291-4.3) or refusing to be tested (section 286-151.5)
the same as in present law.

     Your Committee finds that the present language used in the
definition "under the influence" is confusing and imprecise,
especially with reference to the phrases "impair" and "normal

 
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mental faculties".  Your Committee believes the definition should
be straightforward and less subjective.

     Your Committee also finds that H.B. No. 1881, S.D. 1,
eliminates the impaired driving laws' application to mopeds.
Accordingly, under this version of the bill, a person could never
be arrested and have sanctions imposed, either under the
administrative revocation process or criminally, for driving a
moped while impaired due to alcohol or drugs.   Your Committee
notes this exemption of mopeds from impaired driving laws is a
substantial change from present law that has applied impaired
driving statutes to "mopeds" since the enactment of Act 222,
Session Laws of Hawaii 1986.  Your Committee strongly believes
that to exempt mopeds from impaired driving laws after fourteen
years of including them is extremely unwise and actually will
encourage persons who have been abusing substances to leave their
cars behind and drive mopeds with impunity.

     Your Committee has amended the former provisions of H.B. No.
1881, S.D. 1, in part 3 of the bill as follows:

     (1)  By amending the definition of "under the influence" and
          making necessary conforming changes;

     (2)  By reinstating "mopeds" under the impaired driving
          statutes to ensure that a person may not legally
          operate a moped while under the influence of an
          intoxicant;

     (3)  By clarifying when the administrator may issue
          conditional permits under the administrative revocation
          provisions;

     (4)  By adding mandatory ten days imprisonment and substance
          abuse treatment for a fourth or more offense, as
          required under section 5 of the federal TEA-21
          Restoration Act; and

     (5)  By making a number of technical nonsubstantive changes
          for purposes of style, clarity, and consistency.

The effective date of Part 3 is January 1, 2002.

                             PART 4
                  (Sections 37-41 of the bill)


 
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     Part 4 consists of miscellaneous provisions, such as
sections relating to severability, Ramseyer conventions, and the
effective date.

     Your Committee also has amended the bill to include a new
section in this part directing the Legislative Reference Bureau
to propose and draft legislation prior to the regular session of
2001 as necessary to consolidate the varying statutory provisions
of parts 1, 2, and 3 of the bill.

     As affirmed by the record of votes of the members of your
Committee on Judiciary that is attached to this report, your
Committee is in accord with the intent and purpose of H.B. No.
1881, H.D. 2, S.D. 1, as amended herein, and recommends that it
pass Third Reading in the form attached hereto as H.B. No. 1881,
H.D. 2, S.D. 2.

                                   Respectfully submitted on
                                   behalf of the members of the
                                   Committee on Judiciary,



                                   ______________________________
                                   AVERY B. CHUMBLEY, Co-Chair



                                   ______________________________
                                   MATTHEW M. MATSUNAGA, Co-Chair

 
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