PART I

PART IV. PROHIBITED CONDUCT

Revision Note

Sections 291E-61 to 291E-65 renumbered pursuant to §23G-15.

§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) [Repeal and reenactment on June 30, 2028. L 2023, c 148, §8(2).] 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) 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.

(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 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 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 cannot drive a vehicle that is not equipped with an ignition interlock device 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.

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

(i) Upon proof that the defendant has:

(1) Installed an ignition interlock device 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 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) As used in this section, the term "examiner of drivers" has the same meaning as provided in section 286-2. [L 2000, c 189, pt of §23; am L 2001, c 157, §25; am L 2002, c 160, §11; am L 2003, c 71, §3; am L 2004, c 90, §12; am L 2005, c 33, §1 and c 194, §1; am L 2006, c 201, §7; am L 2007, c 198, §4; am L 2008, c 171, §§8, 16, 20 and c 231, §17; am L 2009, c 11, §17 and c 45, §§1, 2 as superseded by c 88, §§6, 13, 17(2); am L 2010, c 166, §19; am L 2012, c 327, §21; am L 2014, c 72, §7; am L 2018, c 74, §2; am L 2019, c 111, §11 and c 169, §1; am L 2021, c 196, §§4, 11 and c 216, §5; am L 2022, c 94, §1; am L 2023, c 148, §4]

Note

The L 2021, c 216 amendment is exempt from the repeal and reenactment condition of L 2021, c 196, §11. L 2021, c 216, §10; L 2022, c 94, §4; L 2023, c 148, §9.

The L 2022, c 94 amendment is exempt from the repeal and reenactment condition of L 2021, c 196, §11. L 2022, c 94, §7; L 2023, c 148, §10.

Case Notes

As to the description of the offense, this section, which relates to operating a vehicle under the influence of an intoxicant, substantially reenacted §291-4.4, which pertained to the offense of habitually driving under the influence of intoxicating liquor or drugs. 106 H. 480, 107 P.3d 409 (2005).

Where indictment charged defendant under §291-4.4, the statute that was in effect at the time of defendant's arrest, there was no ex post facto problem. 106 H. 480, 107 P.3d 409 (2005).

Because a prior conviction, as described in subsection (b)(2) (2003), is an elemental attendant circumstance, intrinsic to the offense of operating a vehicle under the influence of an intoxicant, it was necessary that defendant's prior conviction be alleged in the charging instrument and proven at trial as preconditions to defendant's present conviction of operating a vehicle under the influence of an intoxicant for the second time within five years, in violation of subsections (a) and (b)(2) (2003). 114 H. 227, 160 P.3d 703 (2007).

Considerations of due process continue to require that the aggravating factors set forth in subsection (b) - all of which remain "attendant circumstances that are intrinsic to and 'enmeshed' in the hierarchy of offenses that this section as a whole describes" - be alleged in the charging instrument and proven beyond a reasonable doubt at trial. 114 H. 227, 160 P.3d 703 (2007).

The 2003 amendment to this section transformed subsection (b)(1) to (3) into status offenses. 114 H. 227, 160 P.3d 703 (2007).

Where complaint charging defendant with a violation of this section was silent with respect to the attendant circumstance of any prior conviction, complaint was insufficient as a matter of law in charging a violation of subsections (a) and (b)(2) (2003). 114 H. 227, 160 P.3d 703 (2007).

Although prosecution's oral charge failed to adequately set forth the essential elements of the offense described by subsections (a) and (b)(2) (2004), absent the phrase "for your second offense", the prosecution's oral charge set forth the essential elements of the included offense described by subsections (a) and (b)(1) (2004); thus, as record contained sufficient evidence that defendant committed the offense of operating a vehicle under the influence of an intoxicant under subsections (a) and (b)(1) (2004), case remanded for entry of judgment and resentencing under subsections (a) and (b)(1) (2004). 114 H. 411, 163 P.3d 1148 (2007).

Where prosecution failed to present sufficient foundational evidence for either the REA blood alcohol chemical testing procedure or the Abbott AxSYM testing instrument used to perform defendant's blood alcohol test, prosecution failed to prove beyond a reasonable doubt as required under this section that defendant was operating a vehicle with .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood; appeals court thus erred in affirming district court's admission into evidence of defendant's test results without a proper foundation. 121 H. 274, 218 P.3d 762 (2009).

Although the oral charge tracked the language of this section, where the charge failed to allege that defendant was driving defendant's vehicle upon a public way, street, road, or highway at the time of the offense, the charge was deficient, as the term "operate" as defined in §291E-1 did not comport with its commonly understood definition, required the conduct to take place "upon a public way, street, road, or highway", and was neither "unmistakable" nor "readily comprehensible to persons of common understanding". 121 H. 383, 219 P.3d 1170 (2009).

Section 291E-1 establishes an attendant circumstance of the offense of operating a vehicle under the influence of an intoxicant (OVUII), i.e., that the defendant's conduct occur "upon a public way, street, road, or highway"; the definition of "operate" in §291E-1 refers generally to the conduct of "operating" a vehicle under the influence as described in the title of this section, whether the conduct consists of driving the vehicle or otherwise assuming actual physical control of it; thus, the operation of a vehicle on a public way, street, road, or highway is an attendant circumstance of the offense of OVUII and therefore an element of the offense. 121 H. 383, 219 P.3d 1170 (2009).

An appellate court's remand for entry of judgment of conviction and resentencing for a lesser-included offense must be based on a jurisdictionally valid lesser-included charge; where defendant's charge under §291E-61.5 did not adequately allege the lesser-included offense of operating a vehicle under the influence of an intoxicant as a first offender under this section because the charge failed to allege an essential element, specifically, the attendant circumstance that defendant operated a vehicle on a public road, way, street, or highway, the appellate court did not err in vacating and remanding circuit court case. 126 H. 475, 273 P.3d 1161 (2012).

A charge of operating a vehicle under the influence of an intoxicant (OVUII) under subsection (a)(1) must allege the requisite mens rea in order to fully define the offense in unmistakable terms readily comprehensible to persons of common understanding, whereas an OVUII charge under subsection (a)(3) is an absolute liability offense for which mens rea need not be alleged or proven. 127 H. 48, 276 P.3d 617 (2012).

As the distinction between general and specific intent has been abandoned, appellate court erred in relying on general intent cases to hold that mens rea may be inferred from the allegations in an operating a vehicle under the influence of an intoxicant charge under subsection (a)(1). 127 H. 48, 276 P.3d 617 (2012).

A prior judgment of acquittal on a subsection (a)(3) method of proof in an operating a vehicle under the influence of an intoxicant trial is "in form only", but it serves as a factual finding that the State has not met its burden of proving breath alcohol content. As such, the collateral estoppel principle embodied in the double jeopardy clause of article I, §10 of the Hawaii constitution and article V of the U.S. Constitution prohibits the State from re-litigating breath alcohol content, whether in a re-prosecution of defendant on the subsection (a)(3) method of proof, or as part of the State's evidence in a subsequent trial on the subsection (a)(1) method of proof. 129 H. 146, 296 P.3d 359 (2013).

Where it was undisputed that the complaint against defendant failed to allege a mens rea and, therefore, was insufficient to charge a violation of subsection (a)(1), on remand, the charge under subsection (a)(1) should be dismissed without prejudice. 131 H. 1, 313 P.3d 690 (2013).

Where the written submission of plea form in which defendant entered a plea of no contest solely to the subsection (a)(1) method of proof, was silent regarding subsection (a)(3), and the hearing transcript revealed some ambiguity as to the State's and district court's understandings of the plea, the court construed the State as having given up its ability to prosecute defendant under subsection (a)(3) in exchange for defendant's conditional plea under subsection (a)(1); in these circumstances, permitting the State to prosecute defendant under subsection (a)(3) would allow the State to avoid its end of the bargain, and would thereby violate defendant's due process rights. 131 H. 1, 313 P.3d 690 (2013).

The oral charge for operating a vehicle under the influence of an intoxicant was defective because it omitted the requisite state of mind of intentional, knowing, or reckless. 131 H. 215, 317 P.3d 659 (2013).

Failure of charging instrument to fully allege the elements of the crime of operating a vehicle under the influence of an intoxicant as set forth in §291E–61(a)(1) did not abrogate the trial court's subject matter jurisdiction established under chapter 604. 136 H. 258, 361 P.3d 1161 (2015).

Complaint was not insufficient for failing to allege a mens rea where complaint alleged all the essential elements of the charged operating a vehicle under the influence of an intoxicant offense and provided the defendant with fair notice of the offense charged; with respect to the violation of subsection (a)(3), the violation is an absolute liability offense that does not require proof of mens rea, and with respect to the violation of subsection (a)(1), mens rea is not an essential element of that violation and could be inferred from the allegations in the complaint. 125 H. 232 (App.), 257 P.3d 245 (2011).

Full retroactive application of the Wheeler rule, i.e., the holding that an operating a vehicle under the influence of an intoxicant (OVUII) charge is deficient if it charges in the language of subsection (a) without specifically alleging the public-road element, to cases on collateral review was not warranted; limited or pipeline retroactive effect was sufficient and appropriate. Moreover, appellant had not shown that the deficiency in the OVUII charge entitled appellant to relief on collateral review. 131 H. 153 (App.), 315 P.3d 779 (2013).

State presented sufficient evidence to show that defendant was a repeat offender under this section, where the State introduced: (1) a case detail report, certified by a district court clerk, that showed that the district court accepted the no contest plea of defendant to a previous charge under this section, that defendant was sentenced, and that a "judgment and notice" was filed; and (2) a traffic abstract for defendant, certified by a district court clerk, that also showed the same information reflected in the case detail report. 134 H. 280 (App.), 339 P.3d 1081 (2014).

Where State's evidence showed that a person with the same name, residence address, date of birth, and last four digits of the social security number as defendant, with a similar appearing signature as defendant, and whose prior traffic convictions were included in defendant's abstract, was previously convicted under this section, there was sufficient evidence to show that defendant was the person previously convicted. 134 H. 280 (App.), 339 P.3d 1081 (2014).

Where the State's amendment before trial of charges under this section and §291E-62 to allege the requisite mens rea did not affect defendant's ability to prepare a defense and did not prejudice defendant's substantial rights, the district court did not err in permitting the State to amend the charges. 134 H. 280 (App.), 339 P.3d 1081 (2014).

Statutory exception for denatured or other non-potable alcohol was a defense to the offense of operating a vehicle under the influence of an intoxicant and not an element of the offense that was required to be alleged in the charge against defendant. 136 H. 333 (App.), 361 P.3d 1236 (2015).