SB3261

SECTION 1. Section 291E-1, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Ignition interlock device" means a device certified by the director of transportation and approved for use pursuant to section 321-161 and rules adopted thereunder that, when affixed to the ignition system of a motor vehicle, prevents the vehicle from being started without first testing, and thereafter from being operated without periodically retesting, a deep-lung breath sample of the person required to use the device that indicates the person's alcohol concentration is less than .02."

SECTION 2. Section 291E-34, Hawaii Revised Statutes, is amended by amending subsection (h) to read as follows:

"(h) The notice shall state that, if the administrative revocation is sustained at the hearing, a written decision shall be mailed to the respondent, or to the parent or guardian of the respondent if the respondent is under the age of eighteen, that shall contain, at a minimum, the following information:

(1) The effective date of the administrative revocation;

(2) The duration of the administrative revocation;

[~~(3)~~ ~~If applicable, the date by which any outstanding motor vehicle number plates issued to the respondent must be surrendered to the director;~~

~~(4)~~ ~~If applicable, that failure to surrender any motor vehicle number plates as required is a misdemeanor;~~

~~(5)~~] (3) Other conditions that may be imposed by law[;], including the use of an ignition interlock device; and

[~~(6)~~] (4) The right to obtain judicial review."

SECTION 3. Section 291E-41, Hawaii Revised Statutes, is amended to read as follows:

"§291E-41 Effective date, conditions, and period of administrative revocation; criteria. (a) Unless an administrative revocation is reversed or the temporary permit[~~, and temporary motor vehicle registration and temporary number plates if applicable, are~~] is extended by the director, administrative revocation shall become effective on the day specified in the notice of administrative revocation. Except as provided in section 291E-44, no license and privilege to operate a vehicle[~~, nor motor vehicle registration and number plates if applicable,~~] shall be restored under any circumstances[~~, and no conditional license permit shall be issued~~] during the administrative revocation period. Upon completion of the administrative revocation period, the respondent may reapply and be reissued a license pursuant to section 291E-45.

(b) Except as provided in paragraph (6), the respondent shall keep an ignition interlock device installed and operating on any vehicle the person operates during the revocation period. Installation and maintenance of the ignition interlock device shall be at the respondent's own expense. The periods of administrative revocation with respect to a license and privilege to operate a vehicle[~~, and motor vehicle registration if applicable,~~] that shall be imposed under this part are as follows:

(1) A minimum of three months up to a maximum of one year revocation of license and privilege to operate a vehicle, if the respondent's record shows no prior alcohol enforcement contact or drug enforcement contact during the five years preceding the date the notice of administrative revocation was issued;

(2) For a respondent who is a highly intoxicated driver, if the respondent's record shows no prior alcohol enforcement contact or drug enforcement contact during the five years preceding the date the notice of administrative revocation was issued, a minimum of six months up to a maximum of one year revocation of license and privilege to operate a vehicle [and of the registration of any motor vehicle registered to the highly intoxicated driver; provided that the highly intoxicated driver shall not qualify for a conditional license permit under section 291E‑44];

(3) A minimum of one year up to a maximum of two years revocation of license and privilege to operate a vehicle [~~and of the registration of any motor vehicle registered to the respondent~~], if the respondent's record shows one prior alcohol enforcement contact or drug enforcement contact during the five years preceding the date the notice of administrative revocation was issued;

(4) A minimum of two years up to a maximum of four years revocation of license and privilege to operate a vehicle [~~and of the registration of any motor vehicle registered to the respondent~~], if the respondent's record shows two prior alcohol enforcement contacts or drug enforcement contacts during the [~~seven~~] five years preceding the date the notice of administrative revocation was issued;

(5) Lifetime revocation of license and privilege to operate a vehicle [~~and of the registration of any motor vehicle registered to the respondent and a lifetime prohibition on any subsequent registration of motor vehicles by the respondent~~], if the respondent's record shows three or more prior alcohol enforcement contacts or drug enforcement contacts during the [~~ten~~] five years preceding the date the notice of administrative revocation was issued; or

(6) For respondents under the age of eighteen years who were arrested for a violation of section 291E‑61 or 291E‑61.5, revocation of license and privilege to operate a vehicle [~~either for the period remaining until the respondent's eighteenth birthday or, if applicable,~~] for the appropriate revocation period provided in paragraphs (1) to (5) or in subsection [~~(d), whichever is longer and such respondents shall not qualify for a conditional permit;~~] (c); provided that the respondent shall be prohibited from driving during the period preceding the respondent's eighteenth birthday and shall thereafter be subject to the ignition interlock requirement of this subsection for the balance of the revocation period;

provided that when more than one administrative revocation, suspension, or conviction arises out of the same arrest, it shall be counted as only one prior alcohol enforcement contact or drug enforcement contact, whichever revocation, suspension, or conviction occurs later.

[~~(c) Whenever a motor vehicle registration is revoked under this part, the director shall cause the revocation to be entered electronically into the motor vehicle registration file of the respondent.~~

~~(d)~~] (c) If a respondent has refused to be tested after being informed:

(1) That the person may refuse to submit to testing in compliance with section 291E-11; and

(2) Of the sanctions of this part and then asked if the person still refuses to submit to a breath, blood, or urine test, in compliance with the requirements of section 291E-15,

the revocation imposed under subsection (b)(1), (3), (4), and (5) shall be for a period of one year, two years, four years, and a lifetime, respectively.

[~~(e) In addition to subsection (d), any motor vehicle registration of a respondent who is a repeat intoxicated driver and who refused to be tested after being informed:~~

~~(1)~~ ~~That the person may refuse to submit to testing in compliance with section 291E-11; and~~

~~(2)~~ ~~Of the sanctions of this part and then asked if the person still refuses to submit to a breath, blood, or urine test, in compliance with the requirements of section 291E-15,~~

~~shall be revoked for the periods specified in subsection (d), and the respondent shall be prohibited from subsequently registering any motor vehicle for the applicable revocation period.~~

~~(f)~~] (d) Whenever a license and privilege to operate a vehicle is administratively revoked under this part, the respondent shall be referred to the driver's education program for an assessment, by a certified substance abuse counselor, of the respondent's substance abuse or dependence and the need for treatment. The counselor shall submit a report with recommendations to the director. If the counselor's assessment establishes that the extent of the respondent's substance abuse or dependence warrants treatment, the director shall so order. All costs for assessment and treatment shall be paid by the respondent.

[~~(g)~~] (e) Alcohol and drug enforcement contacts that occurred prior to January 1, 2002, shall be counted in determining the administrative revocation period.

[~~(h)~~] (f) The requirement to provide proof of financial responsibility pursuant to section 287-20 shall not be based upon a revocation under subsection (b)(1)."

SECTION 4. Section 291E-44, Hawaii Revised Statutes, is amended to read as follows:

"§291E-44 [~~Conditional license~~] Ignition interlock permits[.]; driving for employment.

(a) (1) [~~During the administrative hearing, the director, at the request of a respondent who is subject to administrative revocation for a period as provided in section 291E‑41(b)(1), may~~] Except as provided in paragraph (2), upon proof that the respondent has installed an ignition interlock device in the respondent's vehicle, the director shall issue [~~a conditional license~~] an ignition interlock permit that will allow the respondent[~~, after a minimum period of absolute license revocation of thirty days,~~] to drive [~~for the remainder of~~] a vehicle equipped with an ignition interlock device during the revocation period[~~; provided that one or more of the following conditions are met:~~

~~(A)~~ ~~The respondent is gainfully employed in a position that requires driving and will be discharged if the respondent's driving privileges are administratively revoked; or~~

~~(B)~~ The respondent has no access to alternative transportation and therefore must drive to work or to a substance abuse treatment facility or counselor for treatment ordered by the director under section 291E-41]; or

(2) Notwithstanding any other law to the contrary, the director shall not issue [~~a conditional license~~] an ignition interlock permit to:

(A) A respondent whose license[~~, during the conditional license permit period,~~] is expired, suspended, or revoked as a result of action other than the instant revocation [~~for which the respondent is requesting a conditional license permit under this section;~~

~~(B)~~ ~~A respondent who has refused breath, blood, or urine tests for purposes of determining alcohol concentration or drug content of the person's breath, blood, or urine, as applicable;~~

~~(C)~~ ~~A respondent who is a highly intoxicated driver; and~~]; or

[~~(D)~~] (B) A respondent who holds either a category 4 license under section 286-102(b) or a commercial driver's license under section 286-239(b) [~~unless the conditional license permit is restricted to a category 1, 2, or 3 license under section 286‑102(b)~~].

[~~(b) A request made pursuant to subsection [(a)(1)(A)]~~ ~~shall be accompanied by:~~]

(b) (1) The director may issue a separate permit authorizing a respondent to operate a vehicle owned by the respondent's employer during the period of revocation without installation of an ignition interlock device if the respondent is gainfully employed in a position that requires driving and the respondent will be discharged if prohibited from driving a vehicle not equipped with an ignition interlock device.

(2) A request made pursuant to paragraph (1) shall be accompanied by:

[~~(1)~~] (A) A sworn statement from the respondent containing facts establishing that the respondent currently is employed in a position that requires driving and that the respondent will be discharged if [~~not allowed to drive;~~] prohibited from driving a vehicle not equipped with an ignition interlock device; and

[~~(2)~~] (B) A sworn statement from the respondent's employer establishing that the employer will, in fact, discharge the respondent if the respondent is prohibited from driving[.] a vehicle not equipped with an ignition interlock device and identifying the specific vehicle and hours of the day the respondent will drive, not to exceed twelve hours per day, for purposes of employment.

[~~(c) A request made pursuant to subsection [(a)(1)(B)~~] ~~shall be accompanied by a sworn statement by the respondent attesting to the specific facts upon which the request is based, which statement shall be verified by the director.~~

~~(d) A conditional license may~~] (c) A permit issued pursuant to subsection (b) shall include restrictions allowing the respondent to drive:

(1) Only during specified hours of employment, not to exceed twelve hours per day, and only for activities solely within the scope of the employment;

(2) Only [~~during daylight hours; or~~] the vehicle specified; and

(3) Only [~~for specified purposes or to specified destinations~~] if the permit is kept in the respondent's possession while operating the employer's vehicle.

In addition, the director may impose any other appropriate restrictions.

[~~(e) The duration of the conditional license permit shall be determined on the basis of the criteria set forth in subsections (b) and (c).~~

(f) If the respondent violates the conditions imposed under this section, the conditional license permit shall be rescinded, and administrative revocation shall be immediate for the appropriate period authorized by law.]"

SECTION 5. Section 291E-61, Hawaii Revised Statutes, is amended to read as follows:

"§291E-61 Operating a vehicle under the influence of an intoxicant. (a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:

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

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

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

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

(b) A person committing the offense of operating a vehicle under the influence of an intoxicant shall be sentenced as follows [~~without possibility of probation or suspension of sentence~~]:

(1) Except as provided in [~~paragraph~~] paragraphs (2)[,] and (5), for the first offense, or any offense not preceded within a five‑year period by a conviction for an offense under this section or section 291E‑4(a)[:], and notwithstanding section 706-623, by probation for not less than one year nor more than two years on the following conditions:

(A) A fourteen‑hour minimum substance abuse rehabilitation program, including education and counseling, or other comparable program deemed appropriate by the court;

(B) [Ninety‑day prompt suspension of license and privilege to operate a vehicle during the suspension period, or the court may impose, in lieu of the ninety‑day prompt suspension of license, a minimum thirty‑day prompt suspension of license with absolute prohibition from operating a vehicle and, for the remainder of the ninety‑day period, a restriction on the license that allows the person to drive for limited work‑related purposes and to participate in substance abuse treatment programs;] One-year revocation of license and privilege to operate a vehicle during the revocation period and installation during the revocation period of an ignition interlock device on any vehicle operated by the person;

(i) Seventy‑two hours of community service work;

(ii) Not less than forty‑eight hours and not more than five days of imprisonment; or

(iii) A fine of not less than $150 but not more than $1,000; and

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

(2) For a first offense committed by a highly intoxicated driver, or for any offense committed by a highly intoxicated driver not preceded within a five-year period by a conviction for an offense under this section or section 291E-4(a)[:], and notwithstanding section 706-623, by probation for not less than two years nor more than four years on the following conditions:

(A) A fourteen-hour minimum substance abuse rehabilitation program, including education and counseling, or other comparable program deemed appropriate by the court;

(B) [~~Prompt suspension of a license and privilege to operate a vehicle for a period of six months with an absolute prohibition from operating a vehicle during the suspension period;~~] Two-year revocation of license and privilege to operate a vehicle during the revocation period and installation during the revocation period of an ignition interlock device on any vehicle operated by the person;

(i) Seventy-two hours of community service work;

(ii) Not less than forty-eight hours and not more than five days of imprisonment; or

(iii) A fine of not less than $150 but not more than $1,000; and

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

(3) For an offense that occurs within five years of a prior conviction for an offense under this section or section 291E‑4(a)[~~by:~~], and notwithstanding section 706-623, by probation for not less than two years nor more than four years on the following conditions:

(A) [~~Prompt suspension of license and privilege to operate a vehicle for a period of one year with an absolute prohibition from operating a vehicle during the suspension period;~~] Two-year revocation of license and privilege to operate a vehicle during the revocation period and installation during the revocation period of an ignition interlock device on any vehicle operated by the person;

(B) Either one of the following:

(i) Not less than two hundred forty hours of community service work; or

(ii) Not less than five days but not more than fourteen days of imprisonment of which at least forty‑eight hours shall be served consecutively;

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

(4) For an offense that occurs within five years of two prior convictions for offenses under this section or section 291E‑4(a)[:], and notwithstanding section 706‑623, by probation for not less than three years nor more than five years on the following conditions:

(A) A fine of not less than $500 but not more than $2,500;

(B) [~~Revocation of license and privilege to operate a vehicle for a period not less than one year but not more than five years;~~] Three-year revocation of license and privilege to operate a vehicle during the revocation period and installation during the revocation period of an ignition interlock device on any vehicle operated by the person;

(C) Not less than ten days but not more than thirty days imprisonment of which at least forty‑eight hours shall be served consecutively;

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

[~~(E)~~ Forfeiture under chapter 712A of the vehicle owned and operated by the person committing the offense; provided that the department of transportation shall provide storage for vehicles forfeited under this subsection; and]

(5) [~~Any~~] In addition to a sentence imposed under paragraphs (1) through (4), any person eighteen years of age or older who is convicted under this section and who operated a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of forty‑eight hours; provided that the total term of imprisonment for a person convicted under this paragraph shall not exceed the maximum term of imprisonment provided in paragraph (1), (3), or (4). Notwithstanding paragraph (1), the probation period for a person sentenced under this paragraph shall be not less than two years.

(1) A defendant whose license is expired, suspended, or revoked as a result of action other than the instant offense; or

(2) A defendant who holds either a category 4 license under section 286-102(b) or a commercial driver's license under section 286-239(b).

(d) The court may issue a separate permit authorizing a defendant to operate a vehicle owned by the defendant's employer during the period of revocation without installation of an ignition interlock device if the defendant is gainfully employed in a position that requires driving and the defendant will be discharged if prohibited from driving a vehicle not equipped with an ignition interlock device.

(e) A request made pursuant to subsection (d) shall be accompanied by:

(1) A sworn statement from the defendant containing facts establishing that the defendant currently is employed in a position that requires driving and that the defendant will be discharged if prohibited from driving a vehicle not equipped with an ignition interlock device; and

(2) A sworn statement from the defendant's employer establishing that the employer will, in fact, discharge the defendant if the defendant is prohibited from driving a vehicle not equipped with an ignition interlock device and identifying the specific vehicle and hours of the day, not to exceed twelve hours per day, the defendant will drive for purposes of employment.

(f) A permit issued pursuant to subsection (d) shall include restrictions allowing the defendant to drive:

(1) Only during specified hours of employment, not to exceed twelve hours per day, and only for activities solely within the scope of the employment;

(2) Only the vehicle specified; and

(3) Only if the permit is kept in the defendant's possession while operating the employer's vehicle.

[~~(c)~~] (g) Notwithstanding any other law to the contrary, any:

(1) Conviction under this section, section 291E-4(a), or section 291E-61.5;

(2) Conviction in any other state or federal jurisdiction for an offense that is comparable to operating or being in physical control of a vehicle while having either an unlawful alcohol concentration or an unlawful drug content in the blood or urine or while under the influence of an intoxicant or habitually operating a vehicle under the influence of an intoxicant; or

(3) Adjudication of a minor for a law violation that, if committed by an adult, would constitute a violation of this section or an offense under section 291E-4(a), or section 291E-61.5;

shall be considered a prior conviction for the purposes of imposing sentence under this section. Any judgment on a verdict or a finding of guilty, a plea of guilty or nolo contendere, or an adjudication, in the case of a minor, that at the time of the offense has not been expunged by pardon, reversed, or set aside shall be deemed a prior conviction under this section. No license and privilege suspension or revocation shall be imposed pursuant to this section if the person's license and privilege to operate a vehicle has previously been administratively revoked pursuant to part III for the same act; provided that, if the administrative suspension or revocation is subsequently reversed, the person's license and privilege to operate a vehicle shall be suspended or revoked as provided in this section.

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

[~~(e)~~] (i) Upon proof that the defendant has installed an ignition interlock device in the defendant's vehicle pursuant to subsection (b), the court shall issue an ignition interlock permit that will allow the defendant to drive a vehicle equipped with an ignition interlock device during the revocation period.

(j) Notwithstanding any other law to the contrary, whenever a court revokes a person's driver's license pursuant to this section, the examiner of drivers shall not grant to the person a new driver's license until the expiration of the period of revocation determined by the court. After the period of revocation is completed, the person may apply for and the examiner of drivers may grant to the person a new driver's license.

[~~(f)~~] (k) Any person sentenced under this section may be ordered to reimburse the county for the cost of any blood or urine tests conducted pursuant to section 291E-11. The court shall order the person to make restitution in a lump sum, or in a series of prorated installments, to the police department or other agency incurring the expense of the blood or urine test. Installation and maintenance of the ignition interlock device required by subsection (b) shall be at the defendant's own expense.

[~~(g)~~] (l) The requirement to provide proof of financial responsibility pursuant to section 287-20 shall not be based upon a sentence imposed under subsection (b)(1).

[~~(h)~~] (m) As used in this section, the term "examiner of drivers" has the same meaning as provided in section 286-2."

SECTION 6. Section 291E-62, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) No person whose license and privilege to operate a vehicle have been revoked, suspended, or otherwise restricted pursuant to this section or to part III or section 291E-61 or 291E-61.5, or to part VII or part XIV of chapter 286 or section 200-81, 291-4, 291-4.4, 291-4.5, or 291-7 as those provisions were in effect on December 31, 2001, shall operate or assume actual physical control of any vehicle:

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

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

(3) Without installing an ignition interlock device required by this chapter; or

(4) After disabling or circumventing an ignition interlock."

SECTION 7. Section 321-161, Hawaii Revised Statutes, is amended to read as follows:

"§321-161 Chemical testing for alcohol concentration or drug content. (a) The department of health shall establish and administer a statewide program relating to chemical testing of alcohol concentrations or drug content for the purposes of chapters 286, 291, 291C, and 291E, with the consultation of the state director of transportation. Under the program, appropriate procedures shall be established for specifying:

(1) The qualifications of personnel who administer chemical tests used to determine alcohol concentrations or drug content;

(2) The procedures for specimen selection, collection, handling, and analysis; and

(3) The manner of reporting and tabulating the results.

(b) The program shall include standards and procedures for the certification of ignition interlock devices installed pursuant to chapter 291E and for vendors who install and maintain them. At a minimum, the standards shall require that the device:

(1) Operate using an alcohol-specific sensor technology;

(2) Employ a digital camera by which a photograph of the person using the device can be incorporated into the electronic record generated by each use of the device;

(3) Require a rolling retest by which the driver must, within a specified period of time or distance driven after starting the vehicle, be retested and found to have an alcohol concentration of less than .02, with a margin of error of .01;

(4) Generate a record of vehicle usage, including dates, times, and distances driven; and

(5) Meet or exceed any applicable standards of the National Highway Traffic Safety Administration.

(c) The program shall include standards and procedures for the certification for vendors who install and maintain ignition interlock devices pursuant to chapter 291E. At a minimum, the standards shall require that a vendor:

(1) Offer or contract for ignition interlock device installation and maintenance statewide;

(2) Train drivers required to install an ignition interlock device pursuant to chapter 291E how to use the device;

(3) Schedule the driver for all necessary readings and maintenance of the device; and

(4) Provide periodic reports regarding the use of each ignition interlock device installed pursuant to chapter 291E, including incidents of test failure, attempts to circumvent the device, and dates, times, and distances the vehicle was driven.

(d) Each vendor who sells or installs an ignition interlock device pursuant to chapter 291E shall be certified annually by the director of transportation pursuant to this section and the rules adopted under it. The vendor shall pay a certification fee to the director of transportation.

[~~(b)~~] (e) The director of health [~~may~~] shall adopt rules pursuant to chapter 91 necessary for the purposes of this section."

SECTION 8. The judiciary shall identify before July 1, 2009, by request for proposal issued pursuant to chapter 103D, Hawaii Revised Statutes, a single vendor to provide, at no cost to the State, the ignition interlock device installation and maintenance service required by this Act. The vendor's product and service shall comply with the requirements of section 321‑161, Hawaii Revised Statutes, as amended by this Act, and the cost of installation and maintenance services shall be borne entirely by the driver required to install the ignition interlock device.

SECTION 9. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect on July 1, 2008; provided that sections 1 through 7 shall take effect on July 1, 2009.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	3261
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII