SB645 SD1

SECTION 1. The legislature finds that it is in the interest of the State to decrease the incidence of operating a vehicle under the influence of an intoxicant. Therefore, it is vitally important that the State's ignition interlock program be strengthened and expanded by requiring compliance with the program prior to removal of an interlock device by providing courts the option to utilize a sobriety monitoring system. It is equally vital that persons convicted of operating a vehicle under the influence of an intoxicant not be allowed to "sit out" the interlock period thereby driving non-ignition interlock vehicles. Additionally, it is important for the program to be expanded to include other monitoring systems and technologies at the discretion of the court.

The purpose of this Act is to:

(1) Augment the State's existing ignition interlock program;

(2) Expand the program to include other monitoring systems or technologies; and

(3) Establish a rule-making authority within the department of transportation to develop, implement, and manage the compliance-based provisions of this Act.

SECTION 2. Section 286-118.5, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) A holder of a valid [~~ignition interlock~~] intoxicant control system permit may take any tests necessary to apply for relicensing no sooner than thirty days prior to expiration of the revocation period; provided that the driver's license shall not be issued until the completion of the revocation period."

SECTION 3. Section 291E-1, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Intoxicant Control System" means a system or other technology designed to monitor a driver's alcohol concentration, including a breath alcohol ignition interlock device, that is certified pursuant to section 291E-6 and rules adopted thereunder that, when correctly installed or used, prevents a vehicle from being started without first requiring a testing procedure that indicates the person's alcohol concentration is less than .02."

SECTION 4. Section 291E-5, Hawaii Revised Statutes, is amended to read as follows:

"§291E-5 [~~Ignition interlock~~] Intoxicant control system user affordability. The director of transportation shall contract with the selected [~~ignition interlock vendor~~] intoxicant control system vendors to provide partial financial relief for the installation and the periodic calibration charges to offenders who apply for such assistance and who are recipients, at the time of license revocation or suspension, of either food stamps under the Supplemental Nutrition Assistance Program, or free services under the Older Americans Act or Developmentally Disabled Assistance and Bill of Rights Act."

SECTION 5. Section 291E-6, Hawaii Revised Statutes, is amended by amending its title and subsections (a) through (d) to read as follows:

"§291E-6 [~~Ignition interlock devices;~~] Intoxicant control systems; certification. (a) The director of transportation shall establish and administer a statewide program relating to certification and monitoring of [~~ignition interlock devices~~] intoxicant control systems installed pursuant to chapter 291E and shall select a single vendor for each system to install and maintain them.

(b) The program shall include standards and procedures for the certification of [~~ignition interlock devices~~] intoxicant control systems installed pursuant to chapter 291E. At a minimum, the standards shall require that the devices:

(1) Be certified by an independent laboratory to meet or exceed the guidelines published by the National Highway Traffic Safety Administration;

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

(3) 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;

(4) 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; and

(5) Generate a record of vehicle usage, including dates and times driven.

(c) The program shall include standards and procedures for the certification of the vendor selected to install and maintain [~~ignition interlock devices~~] intoxicant control systems pursuant to chapter 291E. At a minimum, the standards shall require that the vendor:

(1) Install only an [~~ignition interlock device~~] intoxicant control system that is certified pursuant to this section;

(2) Offer or contract for [~~ignition interlock device~~] intoxicant control system installation and maintenance statewide;

(3) Train drivers who are required to install an [~~ignition interlock device,~~] intoxicant control system, pursuant to chapter 291E, in how to use the [~~device;~~] system;

(4) Schedule the driver for all necessary readings and maintenance of the [~~device;~~] system; and

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

(d) The [~~vendor~~] vendors selected for installation and maintenance of [~~ignition interlock devices~~] intoxicant control systems pursuant to chapter 291E shall be audited annually by the director of transportation pursuant to this section and the rules adopted thereunder. The director of transportation may require the vendor to pay for all or part of the costs incurred in conducting the audit."

SECTION 6. Section 291E-31, Hawaii Revised Statutes, is amended to read as follows:

"§291E-31 Notice of administrative revocation; effect. As used in this part, the notice of administrative revocation:

(1) Establishes that the respondent's license and privilege to operate a vehicle in the State or on or in the waters of the State shall be terminated:

(A) Thirty days after the date the notice of administrative revocation is issued in the case of an alcohol related offense;

(B) Forty-four days after the date the notice of administrative revocation is issued in the case of a drug related offense; or

if the director administratively revokes the respondent's license and privilege;

(2) Establishes the date on which administrative revocation proceedings against the respondent were initiated;

(3) Serves as a temporary permit, if applicable, to operate a vehicle as provided in section 291E-33; and

(4) Notifies the respondent that the respondent shall obtain an [~~ignition interlock~~] intoxicant control system permit and keep an [~~ignition interlock device~~] intoxicant control system installed and operating in any vehicle the respondent operates during the revocation period if the respondent had a valid license at the time of the arrest."

SECTION 7. Section 291E-34, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (e) to read:

"(e) The notice shall state that, if the respondent's license and privilege to operate a vehicle is administratively revoked after the review, a 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 reasons why the respondent's license and privilege to operate a vehicle is administratively revoked;

(2) That the respondent may request the director, within six days of the date the decision is mailed, to schedule an administrative hearing to review the administrative revocation;

(3) That, if the respondent's request for an administrative hearing is received by the director within six days of the date the decision was mailed, the hearing shall be scheduled to commence:

(A) No later than twenty-five days after the date of the issuance of the notice of administrative revocation in the case of an alcohol related offense; and

(B) No later than thirty-nine days after the date of the issuance of the notice of administrative revocation in the case of a drug related offense;

(4) The procedure to request an administrative hearing;

(5) That failure to request an administrative hearing within the time provided shall cause the administrative revocation to take effect for the period and under the conditions established by the director in the decision;

(6) That the respondent may regain the right to a hearing by requesting the director, within sixty days after the issuance of the notice of administrative revocation, to schedule a hearing;

(7) That the director shall schedule the hearing to commence no later than thirty days after a request under paragraph (6) is received, but that, except as provided in section 291E-38(j), the temporary permit shall not be extended if the respondent fails to request an administrative hearing within the initial six-day period provided for that purpose;

(8) That failure to attend the hearing shall cause the administrative revocation to take effect for the period and under the conditions indicated;

(9) The duration of the administrative revocation and other conditions that may be imposed, including: referral to the driver's education program for an assessment of the respondent's substance abuse or dependence and the need for treatment; and

(10) That the respondent shall obtain an [~~ignition interlock~~] intoxicant control system permit in order to operate a vehicle during the revocation period if the respondent had a valid license at the time of the arrest."

2. By amending subsection (h) to read:

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

(4) The right to obtain judicial review."

SECTION 8. Section 291E-38, Hawaii Revised Statutes, is amended by amending subsection (k) to read as follows:

"(k) The director may grant a special motor vehicle registration, pursuant to section 291E-48, to a qualified household member or a co-owner of any motor vehicle upon determination that:

(1) The person is completely dependent on the motor vehicle for the necessities of life; and

(2) At the time of the application for a special motor vehicle registration, the respondent does not have a valid [~~ignition interlock~~] intoxicant control system permit.

The special motor vehicle registration shall not be valid for use by the respondent."

SECTION 9. Section 291E-41, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Except as provided in paragraph (5) and in section 291E-44.5, the respondent shall keep an [~~ignition interlock device~~] intoxicant control system installed and operating in any vehicle the respondent operates during the revocation period. Except as provided in section 291E-5, installation and maintenance of the [~~ignition interlock device~~] intoxicant control system 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 years preceding the date the notice of administrative revocation was issued;

(2) An eighteen month 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 years preceding the date the notice of administrative revocation was issued;

(3) A two-year revocation of license and privilege to operate a vehicle, if the respondent's record shows two prior alcohol enforcement contacts or drug enforcement contacts during the five 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;

(5) 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) 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 device~~] intoxicant control system requirement of this subsection for the balance of the revocation period; or

(6) For respondents, other than those excepted pursuant to section 291E-44.5(c), who do not install an [~~ignition interlock device~~] intoxicant control system in any vehicle the respondent operates during the revocation period, revocation of license and privilege to operate a vehicle for the period of revocation provided in paragraphs (1) to (5) 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~~] intoxicant control system 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."

SECTION 10. Section 291E-44.5, Hawaii Revised Statutes, is amended by amending its title and subsections (a) through (d) to read as follows:

"§291E-44.5 [~~Ignition interlock~~] Intoxicant control system permits; driving for employment. (a) Except as provided in subsection (b), upon proof that the respondent has installed an [~~ignition interlock device~~] intoxicant control system in any vehicle the respondent operates and obtained motor vehicle insurance or self-insurance that complies with the requirements of section 431:10C-104 or 431:10C-105, the director shall issue an [~~ignition interlock~~] intoxicant control system permit that will allow the respondent to drive a vehicle equipped with an [~~ignition interlock device~~] intoxicant control system during the revocation period.

(b) Except as provided in sections 286-118.5 and 291E‑61.6, the director shall not issue an [~~ignition interlock~~] intoxicant control system permit to:

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

(2) A respondent who does not hold a valid license at the time of arrest for the violation of section 291E-61;

(3) A respondent who holds a license that is a learner's permit or instruction permit; or

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

(c) Except as provided in subsection (b), 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~~] intoxicant control system 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.~~] intoxicant control system.

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

(1) 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 prohibited from driving a vehicle not equipped with an [~~ignition interlock device;~~] intoxicant control system; and

(2) A sworn statement from the respondent's employer establishing that the employer will, in fact, discharge the respondent if the respondent cannot drive a vehicle that is not equipped with an [~~ignition interlock device~~] intoxicant control system and identifying the specific vehicle or vehicles the respondent will drive for the purposes of employment and the hours of the day, not to exceed twelve hours per day, or the period of the specified assigned hours of work, the respondent will drive the vehicle or vehicles for purposes of employment."

SECTION 11. Section 291E-48, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Anytime after the effective date of revocation or after the administrative hearing decision is mailed pursuant to section 291E-38(i), a qualified household member or co-owner of a motor vehicle with a respondent who has had a motor vehicle registration revoked under this part may submit a sworn statement to the director requesting a special motor vehicle registration. The director may grant the request upon determining that the following conditions have been met:

(1) The applicant is a household member of the respondent's or a co-owner of the vehicle;

(2) The applicant has a license that has not expired or been suspended or revoked;

(3) The applicant is completely dependent on the motor vehicle for the necessities of life;

(4) The director finds that the applicant will take reasonable precautions to ensure that the respondent will not drive the vehicle; and

(5) The respondent does not have a valid [~~ignition interlock~~] intoxicant control system permit.

A person to whom a special motor vehicle registration has been granted shall apply to the director of the appropriate county agency for special series number plates, as provided in section 249-9.4."

SECTION 12. 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 without possibility of probation or suspension of sentence as follows:

(1) 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):

(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 the revocation period of an [~~ignition interlock device~~] intoxicant control system 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;

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

(E) 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 five years of a prior conviction for an offense under this section or section 291E-4(a):

(A) Revocation for not less than eighteen months nor more than two years of license and privilege to operate a vehicle during the revocation period and installation during the revocation period of an [~~ignition interlock device~~] intoxicant control system 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 thirty 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; and

(E) A surcharge of up to $50 if the court so orders, to be deposited into the trauma system special fund;

(3) For an offense that occurs within five years of two prior convictions for offenses under this section or section 291E-4(a):

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

(B) Revocation for two years of license and privilege to operate a vehicle during the revocation period and installation during the revocation period of an [~~ignition interlock device~~] intoxicant control system 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) A surcharge of up to $50 if the court so orders, to be deposited into the trauma system special fund;

(4) In addition to a sentence imposed under paragraphs (1) through (3), 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), (2), or (3), as applicable. Notwithstanding paragraphs (1) and (2), the revocation period for a person sentenced under this paragraph shall be not less than two years; and

(5) 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~~] intoxicant control system during the revocation period; [or]

(B) Is otherwise unable to drive during the revocation period[,]; or

(C) Is unable, as determined by the department of transportation, to operate an intoxicant control system due to a physical disability; provided that:

(i) The department of transportation's determination that a person is unable to operate an intoxicant control system shall be reasonable and based on substantial evidence;

(ii) This determination is subject to review by a court of competent jurisdiction; and

(iii) The department of transportation may charge a person seeking a medical exemption under this subparagraph a reasonable fee for an assessment in making the determination,

the person shall be absolutely prohibited from driving during the period of applicable revocation provided in paragraphs (1) to (4); provided that the court shall not issue an [~~ignition interlock~~] intoxicant control system 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[.]; provided that the revocation period may be extended pursuant to subsection (l); and revocation shall remain in effect until the requirements of subsection (n) are met.

(c) Except as provided in sections 286-118.5 and 291E‑61.6, the court shall not issue an [~~ignition interlock~~] intoxicant control system permit to:

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

(2) A defendant who does not hold a valid license at the time of the instant offense;

(3) A defendant who holds either a category 4 license under section 286-102(b) or a commercial driver's license under section 286-239(a), unless the [~~ignition interlock~~] intoxicant control system permit is restricted to a category 1, 2, or 3 license under section 286-102(b); or

(4) A defendant who holds a license that is a learner's permit or instruction permit.

(d) Except as provided in subsection (c), 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~~] intoxicant control system 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.~~] intoxicant control system.

(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;~~] intoxicant control system; and

(2) A sworn statement from the defendant's employer establishing that the employer will, in fact, discharge the defendant if the defendant cannot drive a vehicle that is not equipped with an [~~ignition interlock device~~] intoxicant control system and identifying the specific vehicle the defendant will drive for purposes of employment and the hours of the day, not to exceed twelve hours per day, or the period of the specified assigned hours of work, the defendant will drive the vehicle 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, or the period of the specified assigned hours of work, 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.

(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~~] intoxicant control system 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~~] intoxicant control system 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, 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.

(i) Upon proof that the defendant has:

(1) Installed an [~~ignition interlock device~~] intoxicant control system in any vehicle the defendant operates pursuant to subsection (b); and

(2) Obtained motor vehicle insurance or self-insurance that complies with the requirements under either section 431:10C-104 or section 431:10C-105,

the court shall issue an [~~ignition interlock~~] intoxicant control system permit that will allow the defendant to drive a vehicle equipped with an [~~ignition interlock device~~] intoxicant control system 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[.] or as extended pursuant to section (l). 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.

(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. Except as provided in section 291E-5, installation and maintenance of the [~~ignition interlock device~~] intoxicant control system required by subsection (b) shall be at the defendant's own expense.

(l) The period of license revocation under subsection (b) shall be tolled for any period in which the person does not have an intoxicant control system installed in a vehicle owned or operated by the person, unless otherwise provided by law.

(m) A person who is required to install an intoxicant control system in a vehicle pursuant to this chapter, but does not install the required intoxicant control system, may be sentenced as follows:

(1) For the first offense, or any offense not preceded by another offense within a ten-year period, a minimum of sixty days in a sobriety program, in which the person shall be required to be fully compliant for at least thirty days;

(2) For the second offense, a minimum of ninety days in a sobriety program, in which the person shall be required to be fully compliant for at least thirty days; or

(3) For the third offense, and any subsequent offense after, a minimum of one hundred twenty days in a sobriety program, in which the person shall be required to be fully compliant for at least thirty days.

(n) A restriction imposed under subsection (b) shall remain in effect until the department of transportation receives a declaration from the person's intoxicant control system vendor, in a form to be determined by the department of transportation, certifying that there have been none of the following incidents in the one hundred eighty consecutive days prior to the date of release:

(1) An attempt to start the vehicle with a breath alcohol concentration of 0.04, or its equivalent measure per the device installed, or more unless a subsequent test performed within ten minutes registers a breath alcohol concentration lower than 0.04 or its equivalent measure per the device installed and the digital image confirms the same person provided both samples;

(2) Failure to take any random test unless a review of the digital image confirms that the vehicle was not occupied by the person at the time of the missed test;

(3) Failure to pass any random retest with a breath alcohol concentration of 0.025, or its equivalent measure per the device installed, or lower unless a subsequent test performed within ten minutes registers a breath alcohol concentration lower than 0.025 or its equivalent measure per the device installed, and the digital image confirms the same person provided both samples; or

(4) Failure of the person to appear at the intoxicant control system or technology vendor when required for maintenance, repair, calibration, monitoring, inspection, or replacement of the device, system, or technology.

(o) In addition to the revocation period imposed under subsection (b), a court may require a defendant to enroll or participate in an alcohol or substance abuse education or treatment program or a sobriety program. A defendant may choose to enroll in an alcohol or substance abuse education or treatment program prior to conviction. If the defendant enrolls in a compliant program prior to conviction, participation in that program shall count toward fulfilling a requirement to enroll or participate in an alcohol or substance abuse education or treatment program or a sobriety program, if enrollment or participation in such a program is later ordered by the judge.

For purposes of this subsection, "sobriety program" means a sobriety and drug monitoring program which requires a person to:

(1) Abstain from alcohol and controlled substances for a specified period; or

(2) Be subject to testing to determine whether alcohol or a controlled substance is present in the person's body in the following manner:

(A) At least twice per day at a central location, to be determined by the department of transportation, where an immediate sanction can be effectively applied; or

(B) If testing creates a documented hardship or is geographically impractical, allow an alternative method of random alcohol monitoring and testing, approved by the department of transportation and consistent with a timely sanction.

(p) The director of transportation shall adopt rules pursuant to chapter 91 necessary for the purposes of this section.

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

SECTION 13. Section 291E-61.6, Hawaii Revised Statutes, is amended as follows:

1. By amending its title to read:

"[[]§291E-61.6[]] Petition for [~~ignition interlock~~] intoxicant control system instruction permit and [~~ignition interlock~~] intoxicant control system permit; eligibility; requirements."

2. By amending subsections (b) through (e) to read:

"(b) Any person under subsection (a) may file a petition in the district court for permission to apply for an [~~ignition interlock~~] intoxicant control system instruction permit that will allow the person to take the driving demonstration portion of the driver's license examination. The petition shall be filed with the clerk of the district court in the district in which the arrest occurred and shall be accompanied by the required filing fee for civil actions. The petition shall include the following:

(1) A certified court abstract establishing that other than the instant offense, the petitioner has no pending traffic matters, outstanding fines, outstanding court costs, and outstanding restitution;

(2) A certified statement from the director establishing that the petitioner has complied with all requirements, including payment of applicable fees, undergone substance abuse assessment and treatment, and surrendered motor vehicle registration and vehicle number plates, if applicable; and

(3) A proposed order.

In determining whether the petitioner may be granted an [~~ignition interlock~~] intoxicant control system instruction permit, the district court shall consider whether the requirements of paragraphs (1) through (3) are met and may also consider any other factors, including but not limited to the petitioner's criminal and traffic record after receiving a lifetime license revocation, and based on the foregoing, the district court shall determine whether an order allowing the petitioner to apply to the director for an [~~ignition interlock~~] intoxicant control system instruction permit and requiring the director to remove any stopper placed on the petitioner's motor vehicle registration files pursuant to part III of chapter 291E, as applicable, shall be issued; provided that the petitioner complies with applicable driver licensing requirements under part VI of chapter 286, and proof of financial responsibility under chapter 287. Upon submission of the order to the director, the director shall remove any stopper placed on the person's motor vehicle registration files and issue a certified statement indicating eligibility for an [~~ignition interlock~~] intoxicant control system instruction permit.

(1) Present the certified statement of eligibility for [~~ignition interlock~~] intoxicant control system instruction permit, as provided in subsection (b), to the examiner of drivers;

(2) Pass the written portion of the driver's license examination in accordance with section 286-108;

(3) Install an [~~ignition interlock device~~] intoxicant control system on a vehicle to be used for the driving demonstration portion of the driver's license examination; and

(4) Submit to the director the following:

(A) Proof of passing the written portion of the driver's license examination;

(B) Proof of installation of the [~~ignition interlock device;~~] intoxicant control system;

(D) Proof of a valid motor vehicle registration.

Upon receipt of proof of the requirements of paragraph (4), the director shall issue an [~~ignition interlock~~] intoxicant control system instruction permit that allows the person to drive a category 1, 2, or 3 vehicle under section 286-102(b) that is equipped with an [~~ignition interlock device~~] intoxicant control system for the period as provided in section 286-110; provided that a holder of the [~~ignition interlock~~] intoxicant control system instruction permit for a category 3 vehicle shall be accompanied by a person who is twenty-one years of age or older and licensed to operate a category 3 vehicle. The licensed person shall occupy a passenger seat beside the permit holder while the category 3 vehicle equipped with an [~~ignition interlock device~~] intoxicant control system is being operated. For the purposes of this section, "examiner of drivers" shall have the same meaning as provided in section 286-2.

(d) Upon showing the [~~ignition interlock~~] intoxicant control system instruction permit to the examiner of drivers, an applicant may take the driving demonstration portion of the driver's license examination in accordance with section 286-108. Upon successful completion of the driving demonstration portion of the driver's license examination, an applicant may apply to the director for an [~~interlock~~] intoxicant control system instruction permit pursuant to section 291E-44.5. If granted, the [~~interlock~~] intoxicant control system instruction permit shall expire as provided in section 286-106 or upon the end of the revocation period, whichever occurs first.

(e) After a minimum period of five years from the issuance of an [~~interlock~~] intoxicant control system instruction permit under subsection (d), a person subject to a lifetime license revocation for operating a motor vehicle while under the influence of an intoxicant may file a petition in the district court to reinstate the person's eligibility for license and privilege to operate a vehicle without an [~~ignition interlock device.~~] intoxicant control system. The petition shall be filed with the clerk of the district court in the district in which the arrest occurred and shall be accompanied by the required filing fee for civil actions. A copy of the petition shall be served on the prosecuting attorney in the county in which the petition is filed. The petition shall include the following:

(1) A certified court abstract establishing that:

(A) The petitioner has no pending traffic matters, outstanding fines, outstanding court costs, and outstanding restitution; and

(B) The petitioner has not been convicted of any violation of section 291E-66 during the five-year period immediately preceding the petition;

(3) A certified statement from the director of transportation establishing that:

(A) The petitioner has had an [~~ignition interlock device~~] intoxicant control system installed in a vehicle without a cumulative break of more than thirty days during the five years immediately preceding the petition; and

(B) The petitioner has not attempted to operate a vehicle with .04 or more grams of alcohol per two hundred ten liters of breath or its equivalent measure per the device installed during the two years immediately preceding the petition;

(4) A certificate of service demonstrating the place, time, and manner of service of the petition on the prosecuting attorney;

(5) A certified record from the Hawaii Criminal Justice Information System that shows the petitioner's current criminal history record;

(6) A statement from the petitioner establishing where the petitioner has resided since the [~~ignition interlock~~] intoxicant control system permit was issued;

(7) A statement from the petitioner as to whether the petitioner has undergone substance abuse assessment and treatment and the outcome of this assessment and treatment; and

(8) A proposed order.

Within ten days of service of the petition, the prosecuting attorney may submit a written request for a hearing on the petition. The district court shall set a hearing and the prosecuting attorney shall serve notice of the hearing upon the petitioner at the petitioner's address shown on the petition and in accordance with the applicable court rules pertaining to service of civil process. The prosecuting attorney shall appear at the hearing on the petition and may offer evidence and argument in support of or against the granting of the petition. If the requirements of paragraphs (1) through (8) are met and it appears to the court that the petitioner no longer poses a danger to other persons using streets or highways and is not likely to operate a vehicle under the influence of an intoxicant, the district court shall grant the petition and issue an order declaring the person eligible for relicensing and reregistration, if applicable. In making its decision, the court, in addition to any other evidence, may consider the petitioner's [~~ignition interlock~~] intoxicant control system program driving records and history. If the prosecuting attorney fails to submit a timely request for a hearing, and the requirements of paragraphs (1) through (8) are met, the district court shall grant the petition and issue an order declaring the petitioner eligible for relicensing and reregistration, if applicable. If the court denies the petition, the person may file another petition under this subsection no sooner than one year from the date of the court order."

SECTION 14. Section 291E-62, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(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;

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

(3) Without installing an [~~ignition interlock device~~] intoxicant control system required by this chapter; or

(4) With an [~~ignition interlock~~] intoxicant control system permit unless the person has the [~~ignition interlock~~] intoxicant control system permit and a valid State of Hawaii identification card in the person's immediate possession."

2. By amending subsection (c) to read:

(c) Any person convicted of violating this section shall be sentenced as follows without possibility of probation or suspension of sentence:

(1) For a first offense, or any offense not preceded within a five-year period by conviction for an offense under this section, section 291E-66, or section 291‑4.5 as that section was in effect on December 31, 2001:

(A) A term of imprisonment of not less than three consecutive days but not more than thirty days;

(B) A fine of not less than $250 but not more than $1,000;

(D) Loss of the privilege to operate a vehicle equipped with an [~~ignition interlock device,~~] intoxicant control system, if applicable;

(2) For an offense that occurs within five years of a prior conviction for an offense under this section, section 291E-66, or section 291-4.5 as that section was in effect on December 31, 2001:

(A) Thirty days imprisonment;

(B) A $1,000 fine;

(D) Loss of the privilege to operate a vehicle equipped with an [~~ignition interlock device,~~] intoxicant control system, if applicable; and

(3) For an offense that occurs within five years of two or more prior convictions for offenses under this section, section 291E-66, or section 291-4.5 as that section was in effect on December 31, 2001, or any combination thereof:

(A) One year imprisonment;

(B) A $2,000 fine;

(D) Loss of the privilege to operate a vehicle equipped with an [~~ignition interlock device,~~] intoxicant control system, if applicable."

SECTION 15. Section 291E-66, Hawaii Revised Statutes, is amended to read as follows:

"[[]§291E-66[]] Circumvention of, or tampering with, an [~~ignition interlock device~~] intoxicant control system by a person who has been restricted to operating a vehicle equipped with an [~~ignition interlock device;~~] intoxicant control system; penalties. (a) No person whose driving privileges have been restricted to operating a vehicle equipped with an [~~ignition interlock device~~] intoxicant control system shall knowingly:

(1) Request, solicit, direct, or authorize another person to blow into an [~~ignition interlock device~~] intoxicant control system or start a vehicle equipped with the device for the purpose of providing an operable vehicle to a person who has been restricted by law to operating only a vehicle so equipped; or

(2) Tamper with an [~~ignition interlock device~~] intoxicant control system with the intent to render it inaccurate or inoperable.

(b) Any person required under subsection (a) to drive using an [~~ignition interlock device,~~] intoxicant control system, who violates subsection (a) shall be sentenced without possibility of probation or suspension of sentence as follows:

(1) For a first offense, or any offense not preceded within a five-year period by conviction under this section or section 291E-62(a)(3):

(A) A term of imprisonment of not less than three consecutive days but not more than thirty days;

(B) A fine of not less than $250 but not more than $1,000; and

(C) Loss of the privilege to operate a vehicle equipped with an [~~ignition interlock device;~~] intoxicant control system;

(2) For an offense that occurs within five years of a prior conviction for an offense under this section or section 291E-62(a)(3):

(A) Thirty days imprisonment;

(B) A $1,000 fine; and

(C) Loss of the privilege to operate a vehicle equipped with an [~~ignition interlock device;~~] intoxicant control system; and

(3) For an offense that occurs within five years of two or more prior convictions for offenses under this section or section 291E-62(a)(3), or any combination thereof:

(A) One year imprisonment;

(B) A $2,000 fine; and

(C) Loss of the privilege to operate a vehicle equipped with an [~~ignition interlock device.~~] intoxicant control system."

SECTION 16. Section 291E-67, Hawaii Revised Statutes, is amended by amending its title and subsections (a) and (b) to read as follows:

"[[]§291E-67[]] Assisting or abetting the circumvention of, or tampering with, an [~~ignition interlock device;~~] intoxicant control system; penalties. (a) No person shall knowingly:

(1) Blow into, access, otherwise interact with, or start a vehicle equipped with an [~~ignition interlock device~~] intoxicant control system for the purposes of providing an operable vehicle to another person who has been restricted by law to operating only a vehicle equipped with an [~~ignition interlock device;~~] intoxicant control system;

(2) Tamper with an [~~ignition interlock device~~] intoxicant control system with the intent to render it inaccurate or inoperable to permit another person, who has been restricted by law to operating only a vehicle equipped with an [~~ignition interlock device,~~] intoxicant control system, to operate the vehicle; or

(3) Rent, lease, or lend a vehicle to another person who has been restricted by law to operating only vehicles equipped with an [~~ignition interlock device,~~] intoxicant control system, when the rented, leased, or loaned vehicle is not equipped with a functioning certified [~~ignition interlock device.~~] intoxicant control system.

(b) Subsection (a) shall not apply to any act taken for the purpose of safety or mechanical repair of the device; provided that the person who is restricted to operating a vehicle equipped with the [~~interlock device~~] intoxicant control system does not operate the vehicle."

SECTION 17. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 18. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 19. This Act shall take effect on July 1, 2019.

THE SENATE	S.B. NO.	645
THIRTIETH LEGISLATURE, 2019		S.D. 1
STATE OF HAWAII