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THE SENATE |
S.B. NO. |
2330 |
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THIRTIETH LEGISLATURE, 2020 |
S.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO OPERATING A VEHICLE UNDER THE INFLUENCE OF AN INTOXICANT.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 291E-1, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:
""Highly intoxicated driver" means a person whose measured amount of alcohol is 0.15 or more grams of alcohol per one hundred milliliters or cubic centimeters of the person's blood, or 0.15 or more grams of alcohol per two hundred ten liters of the person's breath."
SECTION 2. Section 291E-3, Hawaii Revised Statutes, is amended to read as follows:
"§291E-3 Evidence of intoxication. (a) In any criminal prosecution for a violation of section 291E-61 or 291E-61.5 or in any proceeding under part III:
(1) .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of the person's blood;
(2) .08 or more grams of alcohol per two hundred ten liters of the person's breath; or
(3) The presence of one or more drugs in an amount sufficient to impair the person's ability to operate a vehicle in a careful and prudent manner,
within three hours after the time of the alleged violation as shown by chemical analysis or other approved analytical techniques of the person's blood, breath, or urine shall be competent evidence that the person was under the influence of an intoxicant at the time of the alleged violation.
(b) In any criminal prosecution for a violation of section 291E-61 or 291E-61.5, the amount of alcohol found in the defendant's blood or breath within three hours after the time of the alleged violation as shown by chemical analysis or other approved analytical techniques of the defendant's blood or breath shall be competent evidence concerning whether the defendant was under the influence of an intoxicant at the time of the alleged violation and shall give rise to the following presumptions:
(1) If there were .05 or less grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or .05 or less grams of alcohol per two hundred ten liters of defendant's breath, it shall be presumed that the defendant was not under the influence of alcohol at the time of the alleged violation; and
(2) If there were in excess of .05 grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or .05 grams of alcohol per two hundred ten liters of defendant's breath, but less than .08 grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or .08 grams of alcohol per two hundred ten liters of defendant's breath, that fact may be considered with other competent evidence in determining whether the defendant was under the influence of alcohol at the time of the alleged violation, but shall not of itself give rise to any presumption.
(c) In any criminal
prosecution for a violation of section 291E-61 or in any proceeding under part
III:
(1) 0.15 or more grams
of alcohol per one hundred milliliters or cubic centimeters of the person's
blood, or
(2) 0.15 or more
grams of alcohol per two hundred ten liters of the person's breath,
within three hours at the time of the offense or
after the time of the alleged violation as shown by chemical analysis or other
approved analytical techniques of the person's blood or breath shall be
competent evidence that the person was a highly intoxicated driver at the time
of the alleged violation.
[(c)] (d) Nothing in this section shall be construed as
limiting the introduction, in any criminal proceeding for a violation under
section 291E-61 or 291E-61.5 or in any proceeding under part III, of relevant
evidence of a person's alcohol concentration or drug content obtained more than
three hours after an alleged violation; provided that the evidence is offered
in compliance with the Hawaii rules of evidence."
SECTION 3. Section 291E-41, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (b) to read:
"(b) Except as provided in paragraph (5) and in
section 291E-44.5, the respondent shall keep an ignition interlock device
installed and operating in [any vehicle the respondent operates] one or
more vehicles registered to, and all vehicles operated by, the respondent
during the revocation period. Except as
provided in section 291E-5, installation and maintenance of the ignition
interlock device shall be at the respondent's expense. The periods of administrative revocation, with
respect to a license [and privilege] to operate a vehicle, that shall be
imposed under this part are as follows:
(1) A 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] ten years preceding the
date the notice of administrative revocation was issued;
(2) [An eighteen
month] A two-year revocation of license [and privilege] to
operate a vehicle, if the respondent's record shows one prior alcohol enforcement
contact or drug enforcement contact during the [five] ten years
preceding the date the notice of administrative revocation was issued;
(3) A [two-year]
four-year revocation of license and privilege to operate a vehicle, if
the respondent's record shows two or more prior alcohol enforcement
contacts or drug enforcement contacts during the [five] ten years
preceding the date the notice of administrative revocation was issued;
[(4) A minimum of
five years up to a maximum of ten years revocation of license and privilege to
operate a vehicle, if the respondent's record shows three or more prior alcohol
enforcement contacts or drug enforcement contacts during the ten years
preceding the date the notice of administrative revocation was issued;]
(4) 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 ten years
preceding the date the notice of administrative revocation was issued, an
eighteen month revocation of license to operate a vehicle, with mandatory
installation of an ignition interlock device in one or more vehicles registered
to, and all vehicles operated by the respondent during the revocation period;
(5) For a
respondent who is a highly intoxicated driver, if the respondent's record shows
one prior alcohol enforcement contact or drug enforcement contact during the
ten years preceding the date the notice of administrative revocation was
issued, a three-year revocation of license to operate a vehicle, with mandatory
installation of an ignition interlock device in one or more vehicles registered
to, and all vehicles operated by the respondent during the revocation period;
(6) For a
respondent who is a highly intoxicated driver, if the respondent's record shows
two or more prior alcohol enforcement contacts or drug enforcement contacts
during the ten years preceding the date the notice of administrative revocation
was issued, a six‑year revocation of license to operate a vehicle, with
mandatory installation of an ignition interlock device in one or more vehicles
registered to, and all vehicles operated by the respondent during the
revocation period;
[(5)] (7) 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 for the
appropriate revocation period provided in paragraphs (1) to [(4)] (3)
or in subsection (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; or
[(6)] (8) For respondents, other than those
excepted pursuant to section 291E-44.5(c), who do not install an ignition
interlock device in [any vehicle the respondent operates] one or more
vehicles registered to, and all vehicles operated by, the respondent during
the revocation period, revocation of license [and privilege] to operate
a vehicle for the period of revocation provided in paragraphs (1) to [(5)]
(4) or in subsection (c); provided that:
(A) The respondent shall be absolutely prohibited from driving during the revocation period and subject to the penalties provided by section 291E-62 if the respondent drives during the revocation period; and
(B) The director shall not issue an ignition interlock permit to the respondent pursuant to section 291E-44.5;
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."
2. By amending subsection (c) to read:
"(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), (2),
or (3)[, or (4)] shall be for a period of two years, [three
years,] four years, or [ten] eight years, respectively."
SECTION 4. Section 291E-61, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (b) to read:
"(b) A person committing the offense of operating a vehicle under the influence of an intoxicant shall be sentenced without possibility of probation or suspension of sentence as follows:
(1) [For] Except as provided in section 291E-61(b)(4),
for the
first offense, or any offense not preceded within a ten-year period by a
conviction for an offense under this section or section 291E‑4(a):
(A) A fourteen-hour minimum substance abuse rehabilitation program, including education and counseling, or other comparable program deemed appropriate by the court;
(B) One-year revocation
of license [and privilege] to operate a vehicle [during the
revocation period and installation during];
(C) During the
revocation period of an ignition interlock device on [any vehicle] one
or more vehicles registered to, and all vehicles operated by, the
person;
[(C)] (D) Any one or more of the following:
(i) Seventy-two hours of community service work;
(ii) No less than forty-eight hours and no more than five days of imprisonment; or
(iii) A fine of no less than $250 but no more than $1,000;
[(D)] (E)
A surcharge of $25 to be
deposited into the neurotrauma special fund; and
[(E)] (F)
A surcharge, if the court so
orders, of up to $25 to be deposited into the trauma system special fund;
(2) For an offense
that occurs within ten years of a prior conviction for an offense under this
section [or section 291E-4(a)]:
(A) A
thirty-six-hour minimum substance abuse rehabilitation program, including
education and counseling, or other comparable program deemed appropriate by the
court;
[(A)] (B)
Revocation of license to operate
a vehicle for no less than [twenty-four months] two years nor
more than three years [of license and privilege to operate a vehicle during
the revocation period and installation];
(C) Installation
during the revocation period of an ignition interlock device on [any vehicle]
one or more vehicles registered to and all vehicles operated by the
person;
[(B)] (D) Either one of the following:
(i) No less than two hundred forty hours of community service work; or
(ii) No less than five days
but no more than thirty days of imprisonment, of which at least forty-eight
hours shall be served consecutively;
[(C)] (E)
A fine of no less than $1,000 but
no more than $3,000;
[(D)] (F)
A surcharge of $25 to be deposited
into the neurotrauma special fund; and
[(E)] (G)
A surcharge of up to $50, if the
court so orders, to be deposited into the trauma system special fund;
(3) In addition to a
sentence imposed under paragraphs (1) and (2), 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) or (2), as applicable. Notwithstanding paragraphs (1) and (2), the
revocation period for a person sentenced under this paragraph shall be no less
than two years; [and]
(4) In addition to
a sentence imposed under paragraph (1), any person who is convicted under this
section and was a highly intoxicated driver at the time of the subject
incident, shall be sentenced to an additional mandatory term of imprisonment of
forty-eight consecutive hours and an additional mandatory revocation period of
six months; 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). Notwithstanding
paragraph (1), the revocation period for a person sentenced under this
paragraph shall be no less than eighteen months; and
(5) In addition to
a sentence imposed under paragraph (2), any person who is convicted under this
section and was a highly intoxicated driver at the time of the subject
incident, shall be sentenced to an additional mandatory term of imprisonment of
ten consecutive days and additional mandatory revocation period of one year; 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 (2), as
applicable. Notwithstanding paragraph
(2), the revocation period for a person sentenced under this paragraph shall be
no less than three years; and
[(4)] (6) If the person demonstrates to the court
that the person:
(A) Does not own or have the use of a vehicle in which the person can install an ignition interlock device during the revocation period; or
(B) Is otherwise unable to drive during the revocation period,
the person shall be absolutely
prohibited from driving during the period of applicable revocation provided in
paragraphs (1) to [(3);] (4); provided that the court shall not issue
an ignition interlock permit pursuant to subsection (i) and the person shall be
subject to the penalties provided by section 291E-62 if the person drives
during the applicable revocation period."
2. By amending subsections (g) and (h) to read:
"(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
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
revocation is subsequently reversed, the person's license and privilege to
operate a vehicle shall be revoked as provided in this section. There shall be no requirement for the
installation of an ignition interlock device pursuant to this section if the
requirement has previously been imposed pursuant to part III for the same act;
provided that, if the requirement is subsequently reversed, a requirement for
the installation of an ignition interlock device shall be imposed as provided
in this section.]
(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[,] deemed
appropriate by the court, 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."
SECTION 5. Section 291E-61.5, Hawaii Revised Statutes, is amended to read as follows:
"§291E-61.5 Habitually operating a vehicle under the influence of an intoxicant. (a) A person commits the offense of habitually operating a vehicle under the influence of an intoxicant if:
(1) The person is a habitual operator of a vehicle while under the influence of an intoxicant; and
(2) The person operates or assumes actual physical control of a vehicle:
(A) 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;
(B) While under the influence of any drug that impairs the person's ability to operate the vehicle in a careful and prudent manner;
(C) With .08 or more grams of alcohol per two hundred ten liters of breath; or
(D) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.
(b) For the purposes of this section:
(1) "Convicted two or more times for offenses of operating a vehicle under the influence" means that, at the time of the behavior for which the person is charged under this section, the person had two or more times within ten years of the instant offense:
(A) A judgment on a
verdict or a finding of guilty, or a plea of guilty or nolo contendere, for [a
violation of section 291-4, 291-4.4, or 291-7 as those sections were in effect
on December 31, 2001, or] section 291E-61 or 707-702.5;
(B) A judgment on a
verdict or a finding of guilty, or a plea of guilty or nolo contendere, for an
offense that is comparable to [section 291-4, 291‑4.4, or 291-7 as
those sections were in effect on December 31, 2001, or] section 291E-61 or
707-702.5; or
(C) An adjudication of
a minor for a law or probation violation that, if committed by an adult, would
constitute a violation of section [291-4, 291-4.4, or 291-7 as those
sections were in effect on December 31, 2001, or] section 291E-61 or 707‑702.5,
that, at the time of the instant offense, had not been expunged by pardon, reversed, or set aside. All convictions that have been expunged by pardon, reversed, or set aside before the instant offense shall not be deemed prior convictions for the purposes of proving that the person is a habitual operator of a vehicle while under the influence of an intoxicant.
(2) "Convicted one or more times for offenses of habitually operating a vehicle under the influence" means that, at the time of the behavior for which the person is charged under this section, the person had one or more times within ten years of the instant offense:
(A) A judgment on a verdict or a finding of guilty, or a plea of guilty or nolo contendere, for a violation of this section or section 291-4.4 as that section was in effect on December 31, 2001;
(B) A judgment on a verdict or a finding of guilty, or a plea of guilty or nolo contendere, for an offense that is comparable to this section or section 291-4.4 as that section was in effect on December 31, 2001; or
(C) An adjudication of a minor for a law or probation violation that, if committed by an adult, would constitute a violation of this section or section 291-4.4 as that section was in effect on December 31, 2001,
that, at the time of the instant offense, had not been expunged by pardon, reversed, or set aside. All convictions that have been expunged by pardon, reversed, or set aside before the instant offense shall not be deemed prior convictions for the purposes of proving the person's status as a habitual operator of a vehicle while under the influence of an intoxicant.
(3) "Habitual operator of a vehicle while under the influence of an intoxicant" means that the person:
(A) Was convicted two or more times for offenses of operating a vehicle under the influence; or
(B) Was convicted one or more times for offenses of habitually operating a vehicle under the influence.
[(c) Habitually operating a vehicle while under
the influence of an intoxicant is a class C felony.]
(1) An indeterminate term of imprisonment of five years; or
(2) A term of probation of five years, with conditions to include:
(A) Mandatory revocation of license [and
privilege] to operate a vehicle for a period no less than three years but no
more than five years[;], with mandatory installation of an ignition
interlock device in one or more vehicles registered to, and all vehicles
operated by the respondent during the revocation period;
(B) No less than ten days imprisonment, of which at least forty-eight hours shall be served consecutively;
(C) A fine of no less than $2,000 but no more than $5,000;
(D) Referral to a certified substance abuse
counselor deemed appropriate by the court, as provided in section [291E-61(d);]
291E-61(h);
(E) A surcharge of $25 to be deposited into
the neurotrauma special fund; and
(F) May be charged a surcharge of up to $50 to be deposited into the trauma system special fund if the court so orders.
In addition to
the foregoing, any vehicle owned and operated by the person committing the
offense shall be subject to forfeiture pursuant to chapter 712A[; provided
that the department of transportation shall provide storage for vehicles forfeited
under this subsection].
(d)
For an offense that occurs within ten
years of a prior conviction for an offense under this section, the offense
shall be a class B felony, and the person shall be sentenced to:
(1) An indeterminate term of
imprisonment of ten years; or
(2) A term of probation of five years,
with conditions to include:
(A) Permanent revocation of license to
operate a vehicle;
(B) No less than eighteen months
imprisonment;
(C) A fine of no less than $5,000 but no
more than $25,000;
(D) Referral to a certified substance
abuse counselor deemed appropriate by the court, as provided in section
291E-61(h);
(E) A surcharge of $50 to be deposited
into the neurotrauma special fund; and
(F) May be charged a surcharge of up to
$100 to be deposited into the trauma system special fund if the court so
orders.
In addition
to the foregoing, any vehicle owned and operated by the person committing the
offense shall be subject to forfeiture pursuant to chapter 712A.
(e) Whenever a court sentences a person under this section, it shall also 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.
(f) 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 expiration of the period of revocation determined by the court. After the period of revocation is complete, the person may apply for and the examiner of drivers may grant to the person a new driver's license.
(g) 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.
(h) As used in this section, the term "examiner of drivers" has the same meaning as provided in section 286-2."
SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect upon its approval.
Report Title:
Operating a Vehicle Under the Influence of an Intoxicant; Penalty Increases
Description:
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.