STAND. COM. REP. NO.  322-12

Honolulu, Hawaii

                , 2012

RE:   H.B. No. 1928

Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Sixth State Legislature

Regular Session of 2012

State of Hawaii

Sir:

     Your Committee on Transportation, to which was referred H.B. No. 1928 entitled:

"A BILL FOR AN ACT RELATING TO TESTING FOR INTOXICANTS,"

begs leave to report as follows:

The purpose of this measure is to decriminalize the refusal to submit to a breath, blood, or urine test by persons suspected of operating a vehicle under the influence of an intoxicant.

The Department of the Prosecuting Attorney of the County of Maui testified in support of this measure.  Mothers Against Drunk Driving HAWAII and a concerned individual testified in opposition to this measure.

     The criminalization of the refusal to submit to a breath, blood, or urine test for the use of intoxicants when an individual was suspected of operating a vehicle under the influence of an intoxicant was enacted in an attempt to encourage compliance with the request for the test.  Prior to the criminalization of the refusal to submit to such a test, the law was clear that police were not required to inform an arrestee of their constitutional right to remain silent or their right to counsel for this refusal since there was no criminal penalty for refusing to submit to a such a test.

     However, your Committee has been informed that the criminalization of the refusal to submit to a breath, blood, or urine test is causing serious problems with the prosecution of individuals arrested for operating a vehicle under the influence of an intoxicant.   The possibility of criminal sanctions raises concerns regarding an individual's right to remain silent and to obtain counsel under the fifth and sixth amendment of the United States Constitution and several cases have already been dismissed because of this purported violation of constitutional rights.  This may result in a tedious arrest and testing process, which risks evidence being lost as law enforcement waits for counsel to arrive.

     While your Committee understands that there are questions and concerns raised by this measure and the effect it may have on other statutory provisions regarding the operation of a vehicle under the influence of an intoxicant, particularly Hawaii's ignition interlock program, this measure deserves further consideration.

     As affirmed by the record of votes of the members of your Committee on Transportation that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 1928 and recommends that it pass Second Reading and be referred to the Committee on Judiciary.

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

____________________________

JOSEPH M. SOUKI, Chair