Bill Text: HI HB1935 | 2024 | Regular Session | Amended

Hawaii House Bill 1935

HI State Legislature page for HB1935

Bill Title: Relating To The Use Of Intoxicants While Operating A Vehicle.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-02-12 - Re-referred to TRN, JHA, FIN, referral sheet 11 [HB1935 Detail]

Download: Hawaii-2024-HB1935-Amended.html

HOUSE OF REPRESENTATIVES	H.B. NO.	1935
THIRTY-SECOND LEGISLATURE, 2024		H.D. 1
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO THE USE OF INTOXICANTS WHILE OPERATING A VEHICLE.

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

SECTION 1. The legislature finds that in 2013, the National Transportation Safety Board recommended that all fifty states adopt a blood alcohol concentration cutoff of 0.05 compared to the 0.08 standard. According to the National Transportation Safety Board, lowering the rate to 0.05 would save approximately five hundred to eight hundred lives annually. According to the National Transportation Safety Board, a driver having a blood alcohol concentration of 0.05 would be affected by exaggerated behavior, loss of small-muscle control and eye focus, impaired judgment, lowered alertness, and release of inhibition. This would result in reduced coordination, reduced ability to track moving objects, difficulty steering, and reduced response to emergency driving situations. The legislature further finds that lowering the threshold of blood alcohol concentration cutoff to 0.05 would save lives, prevent catastrophic injuries, and decrease medical costs.

Accordingly, the purpose of this Act is to:

(1) Lower the threshold of blood alcohol concentration from 0.08 to 0.05 for the offense of operating a vehicle while under the influence of an intoxicant;

(2) Make persons with a blood alcohol concentration between 0.05 and 0.08 eligible for a deferred acceptance of guilty plea or nolo contendere plea, under certain circumstances; and

(3) Appropriate funds from the state highway special fund for the purposes of a public education campaign informing the public of the new blood alcohol concentration limit.

SECTION 2. Section 291E-1, Hawaii Revised Statutes, is amended as follows:

1. By amending the definition of "measurable amount of alcohol" to read:

""Measurable amount of alcohol" means a test result equal to or greater than .02 but less than [~~.08~~] .05 grams of alcohol per one hundred milliliters or cubic centimeters of blood or equal to or greater than .02 but less than [~~.08~~] .05 grams of alcohol per two hundred ten liters of breath."

2. By amending the definition of "under the influence" to read:

""Under the influence" means that a person:

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

(3) Has [~~.08~~] .05 or more grams of alcohol per two hundred ten liters of the person's breath; or

(4) Has [~~.08~~] .05 or more grams of alcohol per one hundred milliliters or cubic centimeters of the person's blood."

SECTION 3. Section 291E-3, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(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~~] .05 or more grams of alcohol per one hundred milliliters or cubic centimeters of the person's blood;

(2) [~~.08~~] .05 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~~] .02 or less grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or [~~.05~~] .02 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~~] .02 grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or [~~.05~~] .02 grams of alcohol per two hundred ten liters of defendant's breath, but less than [~~.08~~] .05 grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or [~~.08~~] .05 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."

SECTION 4. Section 291E-35, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) In cases involving an alcohol related offense, if a test conducted in accordance with part II and section 321‑161 and the rules adopted thereunder shows that a respondent had an alcohol concentration less than [~~.08,~~] .05, the director or the arresting law enforcement agency immediately shall return the respondent's license along with a certified statement that administrative revocation proceedings have been terminated with prejudice."

SECTION 5. Section 291E-36, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Whenever a respondent has been arrested for a violation of section 291E-61 or 291E-61.5 and submits to a test that establishes: the respondent's alcohol concentration was [~~.08~~] .05 or more; the presence, in the respondent's blood or urine, of any drug that is capable of impairing the respondent's ability to operate a vehicle in a careful and prudent manner; or whenever a respondent has been involved in a collision resulting in injury or death and a blood or urine test performed pursuant to section 291E-21 establishes that the respondent's alcohol concentration was [~~.08~~] .05 or more or establishes the presence in the respondent's blood or urine of any drug that is capable of impairing the respondent's ability to operate a vehicle in a careful and prudent manner, the following shall be forwarded immediately to the director:

(1) A copy of the arrest report or the report of the law enforcement officer who issued the notice of administrative revocation to the person involved in a collision resulting in injury or death and the sworn statement of the arresting law enforcement officer or the officer who issued the notice of administrative revocation, stating facts that establish that:

(A) There was reasonable suspicion to stop the vehicle, the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20, or the respondent was tested pursuant to section 291E-21;

(B) There was probable cause to believe that the respondent had been operating the vehicle while under the influence of an intoxicant; and

(2) In a case involving an alcohol related offense, the sworn statement of the person responsible for maintenance of the testing equipment, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:

(A) The equipment used to conduct the test was approved for use as an alcohol testing device in this State;

(B) The person had been trained and at the time the test was conducted was certified and capable of maintaining the testing equipment; and

(C) The testing equipment used had been properly maintained and was in good working condition when the test was conducted;

(3) In a case involving an alcohol related offense, the sworn statement of the person who conducted the test, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:

(A) The person was trained and at the time the test was conducted was certified and capable of operating the testing equipment;

(B) The person followed the procedures established for conducting the test;

(C) The equipment used to conduct the test functioned in accordance with operating procedures and indicated that the respondent's alcohol concentration was at, or above, the prohibited level; and

(D) The person whose breath or blood was tested is the respondent;

(4) In a case involving a drug related offense, the sworn statement of the person responsible for maintenance of the testing equipment, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:

(A) The equipment used to conduct the test was approved for use in drug testing;

(B) The person conducting the test had been trained and, at the time of the test, was certified and capable of maintaining the testing equipment; and

(C) The testing equipment used had been properly maintained and was in good working condition when the test was conducted;

(5) In a case involving a drug related offense, the sworn statement of the person who conducted the test, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:

(A) At the time the test was conducted, the person was trained and capable of operating the testing equipment;

(B) The person followed the procedures established for conducting the test;

(C) The equipment used to conduct the test functioned in accordance with operating procedures and indicated the presence of one or more drugs or their metabolites in the respondent's blood or urine; and

(D) The person whose blood or urine was tested is the respondent;

(6) A copy of the notice of administrative revocation issued by the law enforcement officer to the respondent;

(7) Any license taken into possession by the law enforcement officer; and

(8) A listing of any prior alcohol or drug enforcement contacts involving the respondent."

SECTION 6. Section 291E-61, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(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~~] .05 or more grams of alcohol per two hundred ten liters of breath; or

(4) With [~~.08~~] .05 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.

(b) [A] Except as provided in paragraph (8), 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) Except as provided in paragraph (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 programs deemed appropriate by the court;

(B) Revocation of license to operate a vehicle for no less than one year and no more than eighteen months;

(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 and no more than $1,000;

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

(F) A surcharge, if the court so orders, or 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:

(A) A substance abuse program of at least thirty-six hours, including education and counseling, or other comparable programs deemed appropriate by the court;

(B) Revocation of license to operate a vehicle for no less than two years and no more than three years;

(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 and no more than thirty days of imprisonment, of which at least forty-eight hours shall be served consecutively;

(E) A fine of no less than $1,000 and no more than $3,000, to be deposited into the drug and alcohol toxicology testing laboratory special fund;

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

(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;

(4) In addition to a sentence imposed under paragraph (1), for a first offense under this section, or an offense not preceded within a ten-year period by a conviction for an offense, 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 for 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;

(5) In addition to a sentence under paragraph (2), for an offense that occurs within ten years of a prior conviction for an offense under this section, 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 an 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;

(6) A person sentenced pursuant to paragraph (1)(B) may file a motion for early termination of the applicable revocation period if the person:

(A) Was not sentenced to any additional mandatory revocation period pursuant to paragraph (3) or (4);

(B) Actually installed and maintained an ignition interlock device on all vehicles operated by the person for a continuous period of six months, after which the person maintained the ignition interlock device on all vehicles operated by the person for a continuous period of three months without violation;

(C) Includes with the person's motion for early termination a certified court abstract establishing that the person was not sentenced to any additional mandatory revocation period pursuant to paragraph (3) or (4);

(D) Includes with the person's motion for early termination a certified statement from the director of transportation establishing that:

(i) The person installed and maintained an ignition interlock device on all vehicles operated by the person for a continuous period of six months; and

(ii) After the six-month period, the person maintained the ignition interlock device on all vehicles operated by the person for a continuous period of three months without violation; and

(E) Has complied with all other sentencing requirements.

Nothing in this paragraph shall require a court to grant early termination of the revocation period if the court finds that continued use of the ignition interlock device will further the person's rehabilitation or compliance with this section;

(7) 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 prohibited from driving during the period of applicable revocation provided in paragraphs (1) to (5); provided that the person shall be sentenced to the maximum license revocation period, 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; [~~and~~]

(8) A person with .05 or more grams and less than .08 grams of alcohol per two hundred ten liters of breath or with .05 or more grams and less than .08 grams of alcohol per one hundred milliliters or cubic centimeters of blood shall be eligible for a deferred acceptance of guilty plea or nolo contendere plea under chapter 853 if the person:

(A) Has not committed any other offense under this section;

(B) Has no prior convictions for an offense under this section within a ten-year period;

(D) Has not received a prior deferral under chapter 853 for an offense under this section; and

[~~(8)~~] (9) For purposes of this subsection, "violation" means:

(A) Providing a sample of .04 or more grams of alcohol per two hundred ten liters of breath when starting the vehicle, unless a subsequent test performed within ten minutes registers a breath alcohol concentration lower than .02 and the digital image confirmed the same person provided both samples;

(B) Providing a sample of .04 or more grams of alcohol per two hundred ten liters of breath on a rolling retest, unless a subsequent test performed within ten minutes registers a breath alcohol concentration lower than .02 and the digital image confirms the same person provided both samples;

(D) Violating section 291E-66; or

(E) Failing to provide a clear photo of the person when the person blows into the ignition interlock device."

SECTION 7. Section 291E-61.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(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;

(D) With [~~.08~~] .05 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood."

SECTION 8. There is appropriated out of the state highway special fund the sum of $ or so much thereof as may be necessary for fiscal year 2024-2025 for a public education campaign to inform the public of the new blood alcohol concentration limit under this Act.

The sum appropriated shall be expended by the department of transportation for the purposes of this Act.

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, 3000; provided that the amendments made to section 291E-61, Hawaii Revised Statutes, by section 6 of this Act shall not be repealed when that section is repealed and reenacted pursuant to Act 148, Session Laws of Hawaii 2023.

Report Title:

Vehicles; Operation; Intoxicants; Blood Alcohol Concentration; Deferred Acceptance of Guilty Plea; Nolo Contendere; State Highway Special Fund; Appropriation.

Description:

Lowers the threshold blood alcohol concentration for the offenses of operating a vehicle under the influence of an intoxicant and habitually operating a vehicle under the influence of an intoxicant. Makes eligible for a deferred acceptance of guilty plea or nolo contendere plea persons with a blood alcohol concentration between .05 and .08, under certain circumstances. Appropriates funds from the State Highway Special Fund for a public education campaign. Effective 7/1/3000. (HD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.