Hawaii-2010-SB2345-Introduced

SECTION 1. The legislature finds that driving while intoxicated continues to be a serious problem in Hawaii. Hawaii averages about six thousand driving under the influence (DUI) arrests each year. In 2008, forty per cent of the car crash deaths in Hawaii involved a driver who had .08 per cent blood-alcohol content (the legal limit) or higher. There were forty-two of such deaths in 2008, all of which were preventable.

In May of 2009, a one-year-old Big Island girl, Aliyah Braden, was killed and her mother, Mayvelyn, was critically injured when their car was struck by a pickup truck whose driver had just run a red light. The truck driver was suspected of drunk driving. The driver had a prior DUI conviction for which she was sentenced, twenty-one years to the day before the fatal accident, to a ninety-day license suspension and a fine of $150.

Aliyah's father, Wayne Braden, has urged the legislature to more rigorously address drunk driving, for Aliyah and for others who may become statistics in the future: "Another lost child, a lost mother and father, grandmothers and grandfathers, friends and neighbors lost to alcohol-related traffic fatality, must end now. Any injury or death is unacceptable. . . . No one is to see the waxy skin of your dead child. We are to make the effort to protect them on the roadway and see them all grow and experience the lovely things of life."

The purpose of this Act is to ensure that our roadways are safer by:

(1) Mandating license suspension for liquor licensees who repeatedly over-serve their clients;

(2) Increasing the penalties for repeat DUI offenders and those drivers convicted of operating a vehicle while being highly intoxicated by requiring impoundment of the vehicle used in the commission of the offense, a mandatory prison sentence, or mandatory alcohol treatment; and

(3) Appropriate funds to be used by the counties to, among other things, increase the number of sobriety checkpoints at high risk areas.

SECTION 2. Section 281-78, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) At no time under any circumstances shall any licensee or its employee:

(1) Sell, serve, or furnish any liquor to, or allow the consumption of any liquor by:

(A) Any minor;

[~~(B)~~ ~~Any person at the time under the influence of liquor;~~

~~(C)~~] (B) Any person known to the licensee to be addicted to the excessive use of intoxicating liquor; or

[~~(D)~~] (C) Any person for consumption in any vehicle that is licensed to travel on public highways;

provided that the consumption or sale of liquor to a minor shall not be deemed to be a violation of this subsection if, in making the sale or allowing the consumption of any liquor by a minor, the licensee was misled by the appearance of the minor and the attending circumstances into honestly believing that the minor was of legal age and the licensee acted in good faith; and provided further that it shall be incumbent upon the licensee to prove that the licensee so acted in good faith;

(2) Permit any liquor to be consumed on the premises of the licensee or on any premises connected therewith, whether there purchased or not, except as permitted by the terms of its license;

(3) Permit any liquor to be sold or served by any person eighteen to twenty years of age except in licensed establishments where selling or serving the intoxicating liquor is part of the minor's employment, and where there is proper supervision of these minor employees to ensure that the minors shall not consume the intoxicating liquor;

(4) Permit any liquor to be sold or served by any person below the age of eighteen years upon any licensed premises, except in individually specified licensed establishments found to be otherwise suitable by the liquor commission in which an approved program of job training and employment for dining room waiters and waitresses is being conducted in cooperation with the University of Hawaii, the state community college system, or a federally sponsored personnel development and training program, under arrangements that ensure proper control and supervision of employees;

(5) Knowingly permit any person under the influence of liquor or disorderly person to be or remain in or on the licensed premises;

(6) Fail immediately to prevent or suppress any violent, quarrelsome, disorderly, lewd, immoral, or unlawful conduct of any person on the premises;

(7) Sell any draught beer unless upon the faucet, spigot, or outlet wherefrom the beer is drawn there is attached a clear and legible notice, placard, or marker which in the English language indicates and declares the name or brand adopted by the manufacturer of the draught beer, so situated as to be clearly legible for a distance of at least ten feet from the spigot, faucet, or outlet, to a purchaser with normal vision;

(8) Receive from a person, as payment or as a consideration for liquor, any personal or household goods, including clothing and food, or any implements of trade. Any person violating this paragraph shall be guilty of a misdemeanor and upon conviction shall be punished as provided in section 281-102[.]; or

(9) Sell, serve, or furnish any liquor to, or allow the consumption of any liquor by any person at the time under the influence of liquor. In addition to any criminal penalties which may be otherwise imposed upon the licensee by a court of law, any licensee who violates this paragraph more than twice within a two-year period shall have its license suspended as provided in part VI; provided, however, that the liquor commission or liquor control adjudication board may consider mitigating circumstances in determining the time period for which the suspension shall apply. In the event that there are no violations under this paragraph within twenty-four successive months from the date of the last violation, then the next violation shall be treated as the first violation."

SECTION 3. Section 291E-61, Hawaii Revised Statutes, is amended to read as follows:

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

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

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

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

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

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

(1) Except as provided in paragraph (2), 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) Ninety-day prompt suspension of license and privilege to operate a vehicle during the suspension period, or the court may impose, in lieu of the ninety-day prompt suspension of license, a minimum thirty-day prompt suspension of license with absolute prohibition from operating a vehicle and, for the remainder of the ninety-day period, a restriction on a category (1), (2), or (3) license under section 286-102(b) that allows the person to drive for limited work-related purposes and to participate in substance abuse treatment programs;

(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) [~~May be charged~~] If the court so orders, a surcharge of up to $25 to be deposited into the trauma system special fund [~~if the court so orders~~];

(2) For a first offense committed by a highly intoxicated driver, or for any offense committed by a highly intoxicated driver not preceded within a five-year period by a conviction for an offense under this section or section 291E-4(a):

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

(B) Prompt suspension of a license and privilege to operate a vehicle for a period of six months with an absolute prohibition from operating a vehicle during the suspension period;

(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) [~~May be charged~~] If the court so orders, a surcharge of up to $50 to be deposited into the trauma system special fund [~~if the court so orders~~]; and

(F) By order of the court, seizure and impoundment for a period of one year of any vehicle used in the commission of the offense, whether or not owned by the defendant, at the sole cost and expense of the owner of the vehicle;

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

(A) Prompt suspension of license and privilege to operate a vehicle for a period of one year with an absolute prohibition from operating a vehicle during the suspension period;

(B) Either one of the following:

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

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

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

(E) [~~May be charged~~] If the court so orders, a surcharge of up to $50 to be deposited into the trauma system special fund [~~if the court so orders~~];

(F) Enrollment in and completion of a substance abuse rehabilitation program, including education and counseling, or other comparable program of a duration deemed appropriate by the court; and

(G) By order of the court, seizure and impoundment for a period of one year of any vehicle used in the commission of the offense, whether or not owned by the defendant, at the sole cost and expense of the owner of the vehicle;

(4) 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 of license and privilege to operate a vehicle for a period not less than one year but not more than five years;

(C) [~~Not less than ten days but not more than thirty days imprisonment of which at least forty-eight hours shall be served consecutively;~~] A mandatory minimum sentence of one year of imprisonment;

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

(E) [~~May be charged~~] If the court so orders, a surcharge of up to $50 to be deposited into the trauma system special fund [~~if the court so orders~~]; and

(F) Either one of the following:

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

(ii) By order of the court, seizure and impoundment for a period of five years of any vehicle used in the commission of the offense, if not owned by the defendant, at the sole cost and expense of the owner of the vehicle; and

(G) Enrollment in and completion of a substance abuse rehabilitation program, including education and counseling, or other comparable program of a duration deemed appropriate by the court;

(5) Any person eighteen years of age or older who is convicted under this section and who operated a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of forty-eight hours; provided that the total term of imprisonment for a person convicted under this paragraph shall not exceed the maximum term of imprisonment provided in paragraph (1), (3), or (4).

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

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

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

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

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

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

(f) 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.

(g) The requirement to provide proof of financial responsibility pursuant to section 287-20 shall not be based upon a sentence imposed under subsection (b)(1) or (b)(2).

(h) For any vehicle impoundment pursuant to subsection (b), the following shall apply:

(1) Within twenty-four hours of sentencing, the defendant shall surrender the vehicle to the appropriate authorities. If the vehicle is not owned by the defendant or the defendant does not surrender the vehicle, then the vehicle may be seized pursuant to a court order;

(2) The court, within seventy-two hours of impoundment, shall send, or cause to be sent, by certified mail, return receipt requested, a notice of impoundment to all registered or documented owners and any lien holders of the vehicle;

(3) The State shall have a lien upon the vehicle in favor of the State, arising as of the date of the defendant's sentencing, and, from and after the time the lien arises, it shall be a paramount lien upon the vehicle and rights to the vehicle against all parties, whether their interest arose before or after that time; and

(4) Custody of the vehicle shall be returned to the vehicle's owner when the impoundment period has expired, except that custody may be transferred and the lien against the vehicle may be released at an earlier date as provided below:

(A) If the vehicle is sold to a third party during the impoundment period, then upon payment to the State of all impoundment fees as of the date of transfer of ownership of the vehicle and other fines due and owing to the State by the defendant, the lien shall be released and custody of the vehicle may be given to the third party upon presentation of proof of sale;

(B) If the vehicle is repossessed by a lien holder of the vehicle, then upon payment to the State of all impoundment fees as of the date of repossession and other fines due and owing to the State by the defendant, the lien shall be released and custody of the vehicle may be given to the lien holder of the vehicle upon presentation of proof of lawful repossession of the vehicle; or

(C) If the vehicle used in the commission of the offense is not owned by the defendant at the time of the defendant's sentencing, then upon payment to the State of all impoundment fees for the entire impoundment period and any other fines due and owing to the State by the defendant, the lien shall be released and custody of the vehicle may be given to the registered owner of the vehicle upon presentation of proof of lawful ownership of the vehicle.

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

SECTION 4. Section 291E-61, Hawaii Revised Statutes, is amended to read as follows:

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

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

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

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

(b) A person committing the offense of operating a vehicle under the influence of an intoxicant shall be sentenced as follows:

(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 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) [~~May be charged~~] If the court so orders, a surcharge of up to $25 to be deposited into the trauma system special fund [~~if the court so orders~~]; and

(F) If the offense was committed by a highly intoxicated driver, then seizure and impoundment of the vehicle used in the commission of the offense at the sole cost and expense of the owner of the vehicle by order of the court, whether or not the vehicle owned by the defendant;

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

(A) Revocation of license and privilege to operate a vehicle during the probation period and installation during the probation period of an ignition interlock device on any vehicle operated by the person;

(B) Either one of the following:

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

(ii) Not more than five 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) [~~May be charged~~] If the court so orders, a surcharge of up to $50 to be deposited into the trauma system special fund [~~if the court so orders~~];

(F) Enrollment in and completion of a substance abuse rehabilitation program, including education and counseling, or other comparable program of a duration deemed appropriate by the court; and

(3) For an offense that occurs within five years of two prior convictions for offenses under this section or section 291E-4(a), and notwithstanding section 706‑623, by probation for two years on the following conditions:

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

(B) Revocation of license and privilege to operate a vehicle during the probation period and installation during the probation period of an ignition interlock device on any vehicle operated by the person;

(C) [~~Up to five days imprisonment of which at least forty-eight hours shall be served consecutively;~~] A mandatory minimum sentence of one year of imprisonment;

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

(E) [~~May be charged~~] If the court so orders, a surcharge of up to $50 to be deposited into the trauma system special fund [~~if the court so orders~~];

(F) Enrollment in and completion of a substance abuse rehabilitation program, including education and counseling, or other comparable program of a duration deemed appropriate by the court; and

(G) By order of the court, seizure and impoundment for a period of five years of any vehicle used in the commission of the offense, whether or not owned by the defendant, at the sole cost and expense of the owner of the vehicle;

(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 paragraph (2), the probation 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 during the probation period; or

(B) Is otherwise unable to drive during the probation period,

the person shall be absolutely prohibited from driving during the period of probation provided in paragraphs (1) to (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 probation period.

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

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

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

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

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

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

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

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

(2) Only the vehicle specified; and

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

(g) Notwithstanding any other law to the contrary, any:

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

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

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

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

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

(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 required by subsection (b) shall be at the defendant's own expense.

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

(m) For any vehicle impoundment pursuant to subsection (b), the following shall apply:

(3) The State shall have a lien in favor of the State upon the vehicle, arising as of the date of the defendant's sentencing, and, from and after the time the lien arises, it shall be a paramount lien upon the vehicle and rights to the vehicle against all parties, whether their interest arose before or after that time; and

(D) If the defendant is the owner of the vehicle or will have access to the vehicle, the owner of the vehicle may petition the court to return custody of the vehicle to the owner and to have the lien against the vehicle released provided that all impoundment fees for the entire impoundment period and any other fines due and owing to the State by the defendant are paid and the vehicle owner makes arrangements to have an ignition interlock system installed on the vehicle within ten days of release of the vehicle;

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

SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $1,000,000 or so much thereof as may be necessary for fiscal year 2010-2011 for the counties for the purposes of this Act, and to increase the number of sobriety checkpoints at all high risk sites. The appropriation to each county for fiscal year 2010-2011 shall be as follows:

(A) City and county of Honolulu $

(B) Hawaii county $

(D) Maui county $

The sum appropriated shall be expended by the respective counties for the purposes of this section.

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 on July 1, 2010; provided that the amendments made to section 291E-61(b), Hawaii Revised Statutes, by section 3 of this Act shall be repealed on December 31, 2010; and provided further that section 4 shall take effect on January 1, 2011.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2345
TWENTY-FIFTH LEGISLATURE, 2010
STATE OF HAWAII