HB1940

Report Title:

Motor Vehicles; Use of Intoxicants

Description:

Prohibits operation of a motor vehicle with illegal drugs in the bloodstream. Requires operator to submit to testing for the presence of illegal drugs in the bloodstream. Establishes penalties for failing test and refusing to submit to test.

HOUSE OF REPRESENTATIVES	H.B. NO.	1940
TWENTY-THIRD LEGISLATURE, 2006
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO ILLEGAL DRUGS.

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

SECTION 1. The legislature finds that, under current Hawaii law, it is illegal to drive a vehicle under the influence of an intoxicant, whether it is alcohol or drugs. Chapter 291E, Hawaii Revised Statutes, authorizes both the administrative revocation of the driver's license of a person arrested for driving under the influence of an intoxicant and the criminal prosecution of the offender. It also prohibits a minor from operating a vehicle after consuming any alcohol, even if the minor is not impaired, because it is generally illegal for a minor to consume alcohol.

The legislature further finds that, under the "implied consent law," also found in chapter 291E, Hawaii Revised Statutes, every driver is deemed to have given consent to a test of their blood, breath, or urine for alcohol or drug content if the person is lawfully arrested for driving offenses involving intoxicants and there is probable cause to believe the test will reveal evidence of the presence of the intoxicant in the person's system. However, there is no law that prohibits a person from operating a vehicle after consuming illegal drugs and existing law permits an arrest and test only if there is probable cause to believe the driver is under the influence of an intoxicant.

The purpose of this Act is to prohibit operating a vehicle after consuming illegal drugs, regardless of whether the driver is under the influence. This Act will permit police to require the driver to submit to a test to determine the presence in the person's blood, breath, or urine of an illegal drug if there is probable cause to believe the person has operated a vehicle after consuming an illegal drug.

The legislature finds that the approach taken in this Act is identical to that followed in section 291E-64 with respect to persons under age twenty-one who operate a motor vehicle after consuming a measurable amount of alcohol. Just as it is illegal for persons under the age of twenty-one to consume alcohol at any time, it is similarly illegal for any person (barring unusual circumstances) to use illegal drugs at any time.

While drug tests exist that can very reliably show that a person has consumed drugs, objective standards are not yet available to demonstrate impairment; rather, present administrative and criminal proceedings involve circumstantial evidence of impairment. Consequently, while the legislature, courts, and law enforcement agencies can be confident that a person with a blood/alcohol count greater than 0.8 is impaired for purposes of driving, no similarly objective measure presently exists for illegal drugs.

Consequently, the legislature finds that this Act will be an effective tool in combating the use of illegal drugs. To prevent innocent persons from being convicted, this Act specifically:

(1) Requires that the amount of an illegal drug consumed be high enough to demonstrate actual use and not passive inhalation; and

(2) Exempts consumption pursuant to prescription from a licensed physician.

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

"§291E- Operating a vehicle after consuming an illegal drug. (a) It shall be unlawful for any person to operate any vehicle after consuming any illegal drug. A law enforcement officer may arrest a person under this section when the officer has probable cause to believe the arrested person had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State after consuming any illegal drug.

No action shall be brought against any person under this section:

(1) Unless the results of any test indicate the presence of an illegal drug at a level that indicates actual consumption rather than mere passive inhalation; or

(2) If the consumption of the drug in question was pursuant to a prescription issued by a physician licensed under chapter 453 or 460, or comparable law of another jurisdiction.

(b) A person who violates this section shall be sentenced as follows:

(1) For a first violation or any violation not preceded within a five-year period by a prior alcohol or drug enforcement contact:

(A) The court shall impose:

(i) A requirement that the person attend a substance abuse education and counseling program for not more than ten hours; and

(ii) A one hundred eighty-day prompt suspension of license and privilege to operate a vehicle with absolute prohibition from operating a vehicle during the suspension period or a minimum thirty-day prompt suspension of license with absolute prohibition from operating a vehicle and, for the remainder of the one hundred eighty-day period, a restriction on the license that allows the person to drive for limited work-related purposes and to participate in alcohol abuse education and treatment programs; and

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

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

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

(2) For a violation that occurs within five years of a prior violation of this section or a prior alcohol or drug enforcement contact:

(A) The court shall impose prompt suspension of license and privilege to operate a vehicle for a period of one year with absolute prohibition from operating a vehicle during the suspension period; and

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

(i) Not more than fifty hours of community service work; or

(ii) A fine of not less than $300 but not more than $1,000; and

(3) For a violation that occurs within five years of two prior alcohol or drug enforcement contacts or two prior violations of this section:

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

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

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

(ii) A fine of not less than $300 but not more than $1,000.

(c) Notwithstanding any other law to the contrary, any conviction or plea under this section shall be considered a prior drug enforcement contact.

(d) Whenever a court sentences a person pursuant to subsection (b)(2) or (3), it also shall require that the person be referred to the driver's education program for an assessment, by a certified substance abuse counselor, of the person's drug abuse or dependence and the need for appropriate treatment. The counselor shall submit a report with recommendations to the court. The court shall require the person to obtain appropriate treatment if the counselor's assessment establishes the person's alcohol abuse or dependence. All costs for assessment and treatment shall be borne by the person.

(e) Notwithstanding any other law to the contrary, whenever a court revokes a person's driver's license pursuant to this section, the examiner of drivers shall not grant to the person an application for a new driver's license for a period to be determined by the court.

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

(g) Any person who violates this section shall be guilty of a violation.

(h) As used in this section:

(1) "Driver's license" and "examiner of drivers" have the same meanings as provided in section 286-2; and

(2) "Illegal drug" means any controlled substance, as defined and enumerated in schedules I through IV of chapter 329, or its metabolites, for which the operator does not have a lawful prescription."

SECTION 3. Chapter 291E, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§291E- Refusal to submit to testing for illegal drugs; district court hearing; sanctions; appeals; admissibility. (a) If a person under arrest for operating a vehicle after consuming an illegal drug, pursuant to section 291E- , refuses to submit to a breath or blood test, none shall be given, except as provided in section 291E-21, but the arresting law enforcement officer, as soon as practicable, shall submit an affidavit to a district judge of the circuit in which the arrest was made, stating:

(1) That at the time of the arrest, the arresting officer had probable cause to believe the arrested person had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State after consuming an illegal drug;

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

(3) That the person had refused to submit to a blood or urine test.

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

(1) Whether the arresting law enforcement officer had probable cause to believe that the person had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State after consuming an illegal drug;

(2) Whether the person was lawfully arrested;

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

(4) Whether the person refused to submit to a test of the person's blood or urine.

(c) If the district judge finds the statements contained in the affidavit are true, the judge shall suspend the arrested person's license and privilege to operate a vehicle as follows:

(1) For a first suspension, or any suspension not preceded within a five-year period by a suspension under this section, for a period of twelve months; and

(2) For any subsequent suspension under this section, for a period not less than two years and not more than five years.

(d) An order of a district court issued under this section may be appealed to the supreme court.

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

SECTION 4. Section 291E-11, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (b) to read:

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

(1) A lawful arrest; and

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

2. By amending subsections (d) and (e) to read:

"(d) If there is probable cause to believe that a person is in violation of section 291E-61 [or], 291E-61.5, or 291E- , as a result of having consumed any drug, then the person shall elect to take a blood or urine test, or both, for the purpose of determining the drug content. Drug content shall be measured by the presence of any drug or its metabolic products, or both.

(e) A person who chooses to submit to a breath test under subsection (c) also may be requested to submit to a blood or urine test, if the law enforcement officer has probable cause to believe that the person was operating a vehicle while under the influence of any drug under section 291E-61 or 291E-61.5 or that the person was operating a vehicle after consuming any illegal drug under section 291E- and the officer has probable cause to believe that a blood or urine test will reveal evidence of the person being under the influence of any drug. The law enforcement officer shall state in the officer's report the facts upon which that belief is based. The person shall elect to take a blood or urine test, or both, for the purpose of determining the person's drug content. Results of a blood or urine test conducted to determine drug content also shall be admissible for the purpose of determining the person's alcohol concentration. Submission to testing for drugs under subsection (d) or this subsection shall not be a substitute for alcohol tests requested under subsection (c)."

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________