REPORT TITLE:
DUI; ADLR


DESCRIPTION:
Reduces maximum jail time for DUI-drugs.  Provides for revocation
of motor vehicle registration for repeat intoxicated drivers
under the administrative revocation of driver's license
proceedings.  Amends driving impaired statutes to consolidate and
conform offenses relating to operating a vehicle while using an
intoxicant.  Makes conforming amendments.  (HB1881 CD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1881
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 2000                                S.D. 2
STATE OF HAWAII                                            C.D. 1
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO USE OF INTOXICANTS.



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

 1                              PART I
 
 2      SECTION 1.  The purpose of this part is to reduce the
 
 3 maximum jail time that may be imposed upon drug impaired
 
 4 offenders.  The effect of such a reduction will be to make the
 
 5 application of the right to a jury trial for driving under the
 
 6 influence of drugs consistent with that for operating a vehicle
 
 7 under the influence of intoxicating liquor.  The legislature
 
 8 further intends that, by making these reduced penalties
 
 9 retroactive to pending driving under the influence of drugs
 
10 cases, it be made clear that these offenders are not entitled to
 
11 a jury trial, as the offense is a "petty offense" in the
 
12 constitutional sense.
 
13      SECTION 2.  Section 291-7, Hawaii Revised Statutes, is
 
14 amended to read as follows:
 
15      "�291-7 Driving under the influence of drugs.(a)  A
 
16 person commits the offense of driving under the influence of
 
17 drugs if the person operates or assumes actual physical control
 
18 of the operation of any vehicle while under the influence of any
 
19 drug [which] that impairs [such] the person's ability to operate
 

 
Page 2                                                     1881
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 1 the vehicle in a careful and prudent manner.  The term "drug" as
 
 2 used in this section [shall mean] means any controlled substance
 
 3 as defined and enumerated on schedules I through IV of chapter
 
 4 329.
 
 5      (b)  A person committing the offense of driving under the
 
 6 influence of drugs shall be sentenced as follows without
 
 7 possibility of probation or suspension of sentence:
 
 8      (1)  For a first offense, or any offense not preceded within
 
 9           a five-year period by a conviction under this section,
 
10           by:
 
11           (A)  A fourteen-hour minimum drug abuse rehabilitation
 
12                program, including education and counseling, or
 
13                other comparable programs deemed appropriate by
 
14                the court; and
 
15           (B)  Ninety-day prompt suspension of license, with
 
16                absolute prohibition from operating a motor
 
17                vehicle during suspension of license, or the court
 
18                may impose, in lieu of the ninety-day prompt
 
19                suspension of license, a minimum thirty-day prompt
 
20                suspension of license with absolute prohibition
 
21                from operating a motor vehicle and, for the
 
22                remainder of the ninety-day period, a restriction
 

 
 
 
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 1                on the license that allows the person to drive for
 
 2                limited work-related purposes and to participate
 
 3                in drug treatment programs; and
 
 4           (C)  Any one or more of the following:
 
 5                (i)  Seventy-two hours of community service work;
 
 6               (ii)  Not less than forty-eight hours and not more
 
 7                     than five days of imprisonment; or
 
 8              (iii)  A fine of not less than $150 but not more
 
 9                     than $1,000[.];
 
10      (2)  For an offense [which] that occurs within five years of
 
11           a prior conviction under this section:
 
12           (A)  Prompt suspension of license for a period of one
 
13                year with the absolute prohibition from operating
 
14                a motor vehicle during suspension of license;
 
15           (B)  Either one of the following:
 
16                (i)  Not less than eighty hours of community
 
17                     service work; or
 
18               (ii)  Not less than forty-eight consecutive hours
 
19                     but not more than fourteen days of
 
20                     imprisonment[;] of which at least forty-eight
 
21                     hours shall be served consecutively; and
 
22           (C)  A fine of not less than $500 but not more than
 

 
 
 
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 1                $1,000 [.];
 
 2           and
 
 3      (3)  For an offense [which] that occurs within five years of
 
 4           two prior convictions under this section, by:
 
 5           (A)  A fine of not less than $500 but not more than
 
 6                $1,000;
 
 7           (B)  Revocation of license for a period of not less
 
 8                than one year but not more than five years; and
 
 9           (C)  Not less than ten days but not more than [one
 
10                hundred eighty] thirty days imprisonment[.] of
 
11                which at least forty-eight hours shall be served
 
12                consecutively.
 
13      [(4)] Notwithstanding any other law to the contrary, any
 
14 conviction for driving under the influence of drugs shall be
 
15 considered a prior conviction.
 
16      (c)  Whenever a court sentences a person pursuant to
 
17 subsection (b)(2) or (3), it also shall [also] require that the
 
18 offender be referred to a substance abuse counselor who has been
 
19 certified pursuant to section 321-193 for an assessment of the
 
20 offender's drug dependence and the need for appropriate
 
21 treatment.  The counselor shall submit a report with
 
22 recommendations to the court.  The court may require the offender
 

 
 
 
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 1 to obtain appropriate treatment.
 
 2      All costs for [such] the assessment or treatment or both
 
 3 shall be borne by the offender.
 
 4      (d)  Notwithstanding any other law to the contrary, whenever
 
 5 a court revokes a person's driver's license pursuant to [the
 
 6 provisions of] this section, the examiner of drivers shall not
 
 7 grant to [such] the person an application for a new driver's
 
 8 license for [such] a period of time as specified by the court.
 
 9      (e)  As used in this section[, the terms "driver",]:
 
10      "Driver", "driver's license", and "examiner of drivers"
 
11 shall have the same meanings as provided in section 286-2[; and
 
12 the term "vehicle"].
 
13      "Vehicle" shall have the same meaning as provided in section
 
14 291C-1."
 
15                              PART II
 
16      SECTION 3.  The legislature finds that section 5 of the
 
17 federal TEA-21 Restoration Act establishes a new program under
 
18 Section 164 of Chapter 1, Title 23 U.S.C., encouraging states to
 
19 enact repeat intoxicated driver laws.  States that do not have a
 
20 repeat intoxicated driver law by October 1, 2000, must transfer
 
21 1.5 per cent of federal aid highway funds to the state's Section
 
22 402 state and community highway safety funds for the first two
 

 
 
 
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 1 years.  If this part is not enacted by September 30, 2001, three
 
 2 per cent of the State's federal aid highway funds will be
 
 3 transferred until the State enacts this legislation.
 
 4      The legislature further finds that each state is required to
 
 5 have in effect a repeat intoxicated driver law that imposes on
 
 6 impaired drivers who have been convicted of a previous driving
 
 7 under the influence violation of the following minimum penalty:
 
 8      (1)  A driver's license suspension for not less than one
 
 9           year;
 
10      (2)  Vehicle impoundment, immobilization of each of the
 
11           individual's motor vehicles, or the installation of an
 
12           ignition interlock system on each of the motor
 
13           vehicles;
 
14      (3)  An assessment of the individual's degree of abuse of
 
15           alcohol and treatment; and
 
16      (4)  Community services for not less than thirty days or
 
17           five days of imprisonment for a second offense; and not
 
18           less than ten days of imprisonment for a third and
 
19           subsequent offenses.
 
20 The penalties for a first time offender are unchanged.
 
21      Accordingly, the purpose of this part is to amend the law
 
22 relating to the administrative revocation of driver's licenses by
 

 
 
 
Page 7                                                     1881
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 1 expanding that law to include the revocation of all motor vehicle
 
 2 registrations issued to a driver who has been convicted of a
 
 3 previous violation of driving under the influence of intoxicating
 
 4 liquor (section 291-4, Hawaii Revised Statutes) or habitually
 
 5 driving under the influence of intoxicating liquor or drugs
 
 6 (section 291-4.4).  In addition, this part increases the
 
 7 penalties for subsequent convictions under section 291-4.
 
 8      SECTION 4.  Chapter 249, Hawaii Revised Statutes, is amended
 
 9 by adding a new section to be appropriately designated and to
 
10 read as follows:
 
11      "�249-    Special series plates.  A qualified household
 
12 member, as defined in section 286-251, or a co-owner of a motor
 
13 vehicle owned by an arrestee under part XIV of this chapter, who
 
14 has been granted a special motor vehicle registration under
 
15 section 286-B, shall apply to the appropriate county director of
 
16 finance for special license plates that shall bear a special
 
17 series of numbers or letter so as to be readily identifiable by
 
18 law enforcement officers.  The director of finance may issue the
 
19 special plates only if:
 
20      (1)  The director of finance receives written approval for
 
21           the issuance of special plates from the administrative
 
22           director of the courts or the administrative director's
 
23           appointee under section 286-251;
 

 
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 1      (2)  The qualified household member or a co-owner of the
 
 2           motor vehicle has a driver's licence that has not
 
 3           expired or been suspended or revoked; and
 
 4      (3)  The applicant pays a fee for the special license plates
 
 5           that is equal to the cost of the license plates and tag
 
 6           or emblem, plus the administrative cost of furnishing
 
 7           the plates and tag or emblem and effecting the
 
 8           registration for each motor vehicle for which special
 
 9           plates are issued."
 
10      SECTION 5.  Chapter 286, Hawaii Revised Statutes, is amended
 
11 by adding three new sections to part XIV to be appropriately
 
12 designated and to read as follows:
 
13      "�286-A  Failure to surrender license plates.  Any person
 
14 who has had the person's motor vehicle registration and license
 
15 plates revoked pursuant to this part and subsequently fails to
 
16 comply with an order to surrender the motor vehicle license
 
17 plates shall be guilty of a misdemeanor.
 
18      �286-B  Special motor vehicle registration.  (a)  Anytime
 
19 after the effective date of revocation or after the
 
20 administrative hearing decision is mailed pursuant to section
 
21 286-259(i), a qualified household family member or co-owner of a
 

 
 
 
 
 
Page 9                                                     1881
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 1 motor vehicle with an arrestee who has had a motor vehicle
 
 2 registration revoked under this part may submit a sworn statement
 
 3 to the director requesting a special motor vehicle registration.
 
 4 The director may grant the request upon determining that the
 
 5 following conditions have been met:
 
 6      (1)  The applicant is a member of the arrestee's household
 
 7           or co-owner of the vehicle;
 
 8      (2)  The applicant has a driver's license that has not
 
 9           expired or been suspended or revoked;
 
10      (3)  The applicant is completely dependent on the motor
 
11           vehicle for the necessities of life; and
 
12      (4)  The director finds that the applicant will take
 
13           reasonable precautions to ensure that the arrestee will
 
14           not drive the vehicle.
 
15 A person to whom a special motor vehicle registration has been
 
16 granted shall apply to the appropriate county director of finance
 
17 for special series license plates, as provided in section
 
18 249-   .
 
19      (b)  The director shall revoke the special motor vehicle
 
20 registration if any conditions set forth in the application no
 
21 longer exist.
 
22      (c)  The applicant shall be under an affirmative duty to
 

 
 
 
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 1 report to the director any changes in the conditions to the
 
 2 special motor vehicle registration.
 
 3      (d)  The director shall adopt rules, pursuant to chapter 91,
 
 4 necessary to carry out the purposes of this section.
 
 5      �286-C  Transferring vehicle prohibited; exceptions.  (a)  A
 
 6 registered owner shall not sell or transfer a motor vehicle
 
 7 during the time period the motor vehicle's registration has been
 
 8 ordered revoked and license plates surrendered or during the time
 
 9 the motor vehicle bears the special series license plates, unless
 
10 the registered owner applies to the administrative director of
 
11 the courts or the administrative director's appointee under
 
12 section 286-251 for consent to transfer title to the motor
 
13 vehicle.  If the director is satisfied that:
 
14      (1)  The proposed sale is in good faith and for valid
 
15           consideration;
 
16      (2)  The registered owner will be deprived of the custody
 
17           and control of the motor vehicle; and
 
18      (3)  The sale is not for the purpose of circumventing the
 
19           provisions of this part,
 
20 the director may consent to the sale or transfer.  If the
 
21 director consents, the director shall issue a certified copy of
 
22 the written consent to the registered owner and forward a copy to
 

 
 
 
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 1 the appropriate county director of finance.
 
 2      (b)  The county director of finance, upon proper application
 
 3 and the presentation to the director of a certified copy of the
 
 4 written consent to the sale or transfer of a motor vehicle, shall
 
 5 transfer the certificate of title and ownership to the new owner
 
 6 pursuant to chapter 286 and shall issue new license plates to the
 
 7 new registered owner pursuant to chapter 249.
 
 8      (c)  Notwithstanding subsections (a) and (b), if the title
 
 9 to the motor vehicle is transferred by foreclosure of a chattel
 
10 mortgage, cancellation of a conditional sales contract, a sale
 
11 upon execution, or decree or order of a court of competent
 
12 jurisdiction, after the registration and license plates have been
 
13 revoked under this part, the county director of finance shall
 
14 transfer the certificate of title and ownership to the new owner
 
15 pursuant to chapter 286 and shall issue new license plates to the
 
16 new registered owner pursuant to chapter 249."
 
17      SECTION 6.  Chapter 286, part XIV, Hawaii Revised Statutes,
 
18 is amended by amending its title to read as follows:
 
19     "PART XIV.  ADMINISTRATIVE REVOCATION OF DRIVER'S LICENSE
 
20                  AND MOTOR VEHICLE REGISTRATION"
 
21      SECTION 7.  Section 286-251, Hawaii Revised Statutes, is
 
22 amended as follows:
 

 
 
 
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 1      1.  By adding four new definitions to be appropriately
 
 2 inserted and to read:
 
 3      ""Household member" means:
 
 4      (1)  Persons who reside in the same dwelling unit; or
 
 5      (2)  Persons under twenty-one years of age who are related
 
 6           to the arrestee by marriage, blood, or adoption, but
 
 7           regardless of whether they reside in the same dwelling
 
 8           with the arrestee.
 
 9      "Qualified household member" means a household member of the
 
10 arrestee who has a driver's license that has not expired or been
 
11 suspended or revoked.
 
12      "Repeat intoxicated driver" means a person who previously:
 
13           (1)  Has been convicted of one or more violations under
 
14                section 291-4 or 291-4.4 during the five years
 
15                preceding the date of arrest;
 
16           (2)  Has been convicted of three or more violations
 
17                under section 291-4 or 291-4.4 during the ten
 
18                years preceding the date of arrest; or
 
19           (3)  Has had one prior alcohol enforcement contact
 
20                during the five years preceding the date of
 
21                arrest, two prior alcohol enforcement contacts
 
22                during the seven years preceding the date of
 

 
 
 
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 1                arrest, or three or more prior alcohol enforcement
 
 2                contacts during the ten years preceding the date
 
 3                of arrest."
 
 4      "Temporary vehicle registration" means the portion of the
 
 5 notice of administrative revocation that, when completed by the
 
 6 arresting officer, permits the arrestee to drive the vehicles
 
 7 registered in the name of the arrestee for thirty days or until
 
 8 the time established by the director under this part."
 
 9      2.  By amending the definition of "administrative
 
10 revocation" to read:
 
11      ""Administrative revocation" means termination of the
 
12 arrestee's driver's license or the registration of all motor
 
13 vehicles registered to the arrestee, or both, pursuant to this
 
14 part and does not include any revocation imposed under section
 
15 291-4 or 291-4.4."
 
16      3.  By amending the definitions of "alcohol enforcement
 
17 contact" and "arrestee" to read:
 
18      ""Alcohol enforcement contact" means [any]:
 
19      (1)  Any administrative revocation ordered pursuant to this
 
20           part; [any driver's license]
 
21      (2)  Any suspension or revocation of any driver's license or
 
22           motor vehicle registration, or both, imposed by this or
 

 
 
 
Page 14                                                    1881
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 1           any other state or federal jurisdiction for refusing to
 
 2           submit to a test for alcohol concentration in the
 
 3           person's blood; or [any]
 
 4      (3)  Any conviction in this or any other state or federal
 
 5           jurisdiction for driving, operating, or being in
 
 6           physical control of a motor vehicle while having an
 
 7           unlawful concentration of alcohol in the blood, or
 
 8           while under the influence of alcohol.
 
 9      "Arrestee" means a person arrested for violation of section
 
10 291-4 or 291-4.4 and, for purposes of this part, also refers to a
 
11 person from whom a blood sample has been drawn pursuant to
 
12 section 286-163, because there was probable cause to believe that
 
13 the person has violated section 291-4[.] or 291-4.4."
 
14      SECTION 8.  Section 286-252, Hawaii Revised Statutes, is
 
15 amended to read as follows:
 
16      "�286-252  Notice of administrative revocation; effect.  As
 
17 used in this part, the notice of administrative revocation:
 
18      (1)  Establishes that the arrestee's driving privilege in
 
19           this State shall be terminated thirty days after the
 
20           date of arrest or [such] a later date as is established
 
21           by the director under section 286-259, if the director
 
22           administratively revokes the arrestee's license;
 

 
 
 
Page 15                                                    1881
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 1      (2)  Establishes that the registrations of all motor
 
 2           vehicles registered to an arrestee who is a repeat
 
 3           intoxicated driver shall be terminated thirty days
 
 4           after the date of an arrest pursuant to section
 
 5           286-255(b);
 
 6     [(2)] (3)  Establishes the date on which administrative
 
 7           revocation proceedings against the arrestee were
 
 8           initiated; and
 
 9     [(3)] (4)  Serves as a temporary driver's permit [to drive]
 
10           and temporary motor vehicle registration as provided in
 
11           section 286-255."
 
12      SECTION 9.  Section 286-254, Hawaii Revised Statutes, is
 
13 amended as follows:
 
14      1.  By amending subsections (b) to (e) to read:
 
15      "(b)  The notice, when completed by the arresting officer
 
16 and issued to the arrestee, shall contain at a minimum the
 
17 following information relating to the arrest:
 
18      (1)  Information identifying the arrestee;
 
19      (2)  The specific violation for which the person was
 
20           arrested;
 
21      (3)  The date issued and the date the administrative
 
22           revocation is scheduled to go into effect;
 

 
 
 
Page 16                                                    1881
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 1      (4)  That the arrestee was informed of the sanctions of this
 
 2           part and of the consequences of refusing to be tested
 
 3           for alcohol [content] concentration of the blood and
 
 4           whether or not the arrestee consented to be tested;
 
 5      (5)  The expiration date of the temporary driver's permit[;]
 
 6           and the temporary motor vehicle registration, if
 
 7           applicable; and
 
 8      (6)  That the arrest will be administratively reviewed.
 
 9      (c)  The notice shall provide, at a minimum, the following
 
10 information relating to the administrative review:
 
11      (1)  That the review is automatic;
 
12      (2)  That the arrestee [may], within three days of the
 
13           arrest, may submit written information demonstrating
 
14           why the arrestee's driver's license and motor vehicle
 
15           registration, if applicable, should not be
 
16           administratively revoked;
 
17      (3)  The address or location where the arrestee may submit
 
18           the information;
 
19      (4)  That the arrestee is not entitled to be present or
 
20           represented at the review; and
 
21      (5)  That the review decision shall be mailed to the
 
22           arrestee no later than eight days after the date of the
 

 
 
 
Page 17                                                    1881
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 1           arrest.
 
 2      (d)  The notice shall state that if the arrestee's license
 
 3 is not administratively revoked after the review, the arrestee's
 
 4 driver's license and motor vehicle registration and license
 
 5 plates, if applicable, shall be returned, unless a subsequent
 
 6 alcohol enforcement contact has occurred, along with a certified
 
 7 statement that the administrative revocation proceedings have
 
 8 been terminated.
 
 9      (e)  The notice shall state that if the arrestee's driver's
 
10 license [is] and motor vehicle registration, if applicable, are
 
11 administratively revoked after the review, a decision shall be
 
12 mailed to the arrestee containing, at a minimum, the following
 
13 information:
 
14      (1)  The reasons why the arrestee's driver's license [was]
 
15           and motor vehicle registration, if applicable, were
 
16           administratively revoked;
 
17      (2)  That the arrestee may request the director, within six
 
18           days of the date the decision is mailed, to schedule an
 
19           administrative hearing to review the administrative
 
20           revocation;
 
21      (3)  That if the [arrestee requests] arrestee's request for
 
22           an administrative hearing is received within six days,
 

 
 
 
Page 18                                                    1881
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 1           the hearing shall be scheduled to commence no later
 
 2           than twenty-five days after the date of arrest;
 
 3      (4)  The procedure to request an administrative hearing;
 
 4      (5)  That failure to request an administrative hearing
 
 5           within the time provided shall cause the administrative
 
 6           revocation to take effect for the period and under the
 
 7           conditions established by the director in the decision;
 
 8      (6)  That the arrestee may regain the right to a hearing by
 
 9           requesting the director, within sixty days after the
 
10           arrest, to schedule a hearing;
 
11      (7)  That the director shall schedule the hearing to
 
12           commence no later than thirty days after the request is
 
13           [made] received but that, except as provided in section
 
14           286-259(k), the temporary permit shall not[, in any
 
15           event,] be extended if the arrestee fails to request an
 
16           administrative hearing within the initial six-day
 
17           period provided for that purpose;
 
18      (8)  That failure to attend the hearing shall cause the
 
19           administrative revocation to take effect for the period
 
20           and under the conditions indicated; [and]
 
21      (9)  The duration of the administrative revocation and
 
22           other conditions [which] that may be imposed, including
 

 
 
 
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 1           referral to the driver's education program for alcohol
 
 2           counseling[,] and alcohol treatment[, and installation
 
 3           of an ignition interlock system.]; and
 
 4     (10)  That the director may grant a special registration to a
 
 5           qualified household member or to a co-owner of any
 
 6           motor vehicle owned by the arrestee upon a
 
 7           determination that the person is completely dependent
 
 8           on the motor vehicle for the necessities of life;
 
 9           provided that the special registration shall not be
 
10           valid for use by the arrestee."
 
11      2.  By amending subsections (g) and (h) to read:
 
12      "(g)  The notice shall state that if the administrative
 
13 revocation is reversed after the hearing, the arrestee's driver's
 
14 license and motor vehicle registration, if applicable, [and any
 
15 fees collected from the arrestee under this part shall be
 
16 returned] along with a certified statement that the
 
17 administrative revocation proceedings have been terminated.
 
18      (h)  The notice shall state that if the administrative
 
19 revocation is sustained at the hearing, a decision shall be
 
20 mailed to the arrestee containing, at a minimum, the following
 
21 information:
 
22      (1)  The effective date of the administrative revocation;
 

 
 
 
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 1      (2)  The duration of the administrative revocation;
 
 2      (3)  If applicable, the date by which all motor vehicle
 
 3           license plates issued to the arrestee must be
 
 4           surrendered to the director;
 
 5      (4)  If applicable, that failure to surrender all motor
 
 6           vehicle license plates as required is a misdemeanor;
 
 7     [(3)] (5)  Other conditions [which] that may be imposed by
 
 8           law; and
 
 9     [(4)] (6)  The right to obtain judicial review."
 
10      SECTION 10.  Section 286-255, Hawaii Revised Statutes, is
 
11 amended to read as follows:
 
12      "�286-255  Arrest; procedures.(a)  Whenever a person is
 
13 arrested for a violation of section 291-4 or 291-4.4, on a
 
14 determination by the arresting officer that:
 
15      (1)  There was reasonable suspicion to stop the motor
 
16           vehicle, or that the motor vehicle was stopped at an
 
17           intoxication and drug control roadblock established and
 
18           operated in compliance with sections 286-162.5 and
 
19           286-162.6; and
 
20      (2)  There was probable cause to believe that the arrestee
 
21           was driving, operating, or in actual physical control
 
22           of the motor vehicle while under the influence of
 

 
 
 
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 1           intoxicating liquor;
 
 2 the arresting officer immediately shall take possession of any
 
 3 license held by the person and request the arrestee to take a
 
 4 test for alcohol concentration.  The arresting officer shall
 
 5 inform the person that the person has the option to take a breath
 
 6 test, a blood test, or both.  The arresting officer also shall
 
 7 inform the person of the sanctions under this part, including the
 
 8 sanction for refusing to take a breath or a blood test.
 
 9 Thereafter, the arresting officer shall complete and issue to the
 
10 arrestee a notice of administrative revocation and shall indicate
 
11 thereon whether the notice shall serve as a temporary driver's
 
12 permit.  The notice shall serve as a temporary driver's permit,
 
13 unless, at the time of arrest, the arrestee was unlicensed, the
 
14 arrestee's license was revoked or suspended, or the arrestee had
 
15 no license in the arrestee's possession.
 
16      (b)  Whenever the police determine that, as the result of a
 
17 blood test performed pursuant to section 286-163(b) and (c),
 
18 there is probable cause to believe that a person being treated in
 
19 a hospital or medical facility has violated section 291-4[,] or
 
20 291-4.4, the police shall complete and issue to the person a
 
21 notice of administrative revocation and shall indicate thereon
 
22 whether the notice shall serve as a temporary driver's permit.
 

 
 
 
Page 22                                                    1881
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 1 The notice shall serve as a temporary driver's permit unless, at
 
 2 the time the notice was issued, the person was unlicensed, the
 
 3 person's license was revoked or suspended, or the person had no
 
 4 license in the person's possession.
 
 5      (c)  Whenever an arrestee under this section is a repeat
 
 6 intoxicated driver, the arresting officer shall take possession
 
 7 of the motor vehicle registration and, if the motor vehicle being
 
 8 driven by the arrestee is registered to the arrestee, remove the
 
 9 license plates and issue a temporary motor vehicle registration
 
10 and temporary license plates for the motor vehicle.  No temporary
 
11 motor vehicle registration and license plates shall be issued if
 
12 the arrestee's registration has expired or been revoked.  The
 
13 appropriate police department, upon determining that the arrestee
 
14 is a repeat intoxicated driver, shall notify the appropriate
 
15 county director of finance to enter a stopper on the motor
 
16 vehicle registration files to prevent the arrestee from
 
17 conducting any motor vehicle transactions, except as permitted
 
18 under this part."
 
19      SECTION 11.  Section 286-256, Hawaii Revised Statutes, is
 
20 amended to read as follows:
 
21      "�286-256  Immediate restoration of license[.] and motor
 
22 vehicle registration.  If a test conducted in accordance with
 

 
 
 
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                                                        S.D. 2
                                                        C.D. 1

 
 1 part VII and section 321-161 and the rules adopted thereunder
 
 2 shows that the arrestee's alcohol concentration was less than
 
 3 .08, the director or the arresting agency shall immediately
 
 4 return the arrestee's driver's license and motor vehicle
 
 5 registration and license plates, if applicable, along with a
 
 6 certified statement that administrative revocation proceedings
 
 7 have been terminated with prejudice."
 
 8      SECTION 12.  Section 286-257, Hawaii Revised Statutes, is
 
 9 amended to read as follows:
 
10      "�286-257  Sworn statements of law enforcement officials.
 
11 (a)  Whenever a person[:] is arrested for a violation of section
 
12 291-4 or 291-4.4 and submits to a test that establishes that the
 
13 arrestee's alcohol concentration was .08 or more; or has been
 
14 involved in a collision resulting in injury or death, and a blood
 
15 test performed pursuant to section 286-163 establishes that the
 
16 person's alcohol concentration was .08 or more, the following
 
17 shall be immediately forwarded to the director:
 
18      (1)  A copy of the arrest report or the report of the
 
19           officer who issued the notice of administrative
 
20           revocation to the person involved in a collision
 
21           resulting in injury or death and the sworn statement of
 
22           the arresting officer or the officer who issued the
 

 
 
 
Page 24                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           notice of administrative revocation stating facts that
 
 2           establish that:
 
 3           (A)  There was reasonable suspicion to stop the motor
 
 4                vehicle, the motor vehicle was stopped at an
 
 5                intoxication and drug control roadblock
 
 6                established and operated in compliance with
 
 7                sections 286-162.5 and 286-162.6, or the person
 
 8                was tested pursuant to section 286-163;
 
 9           (B)  There was probable cause to believe that the
 
10                arrestee had been driving, operating, or in actual
 
11                physical control of the motor vehicle while under
 
12                the influence of intoxicating liquor;
 
13           (C)  The arrestee was informed of the sanctions of this
 
14                part, that criminal charges may be filed, and the
 
15                consequences of refusing to be tested for alcohol
 
16                concentration; and
 
17           (D)  The arrestee agreed to be tested or the person was
 
18                tested pursuant to section 286-163;
 
19      (2)  The sworn statement of the person responsible for
 
20           maintenance of the testing equipment stating facts that
 
21           establish that pursuant to section 321-161 and rules
 
22           adopted thereunder:
 

 
 
 
Page 25                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           (A)  The equipment used to conduct the test was
 
 2                approved for use as an alcohol testing device in
 
 3                this State;
 
 4           (B)  The person had been trained and at the time the
 
 5                test was conducted was certified and capable of
 
 6                maintaining the testing equipment; and
 
 7           (C)  The testing equipment used had been properly
 
 8                maintained and was in good working condition when
 
 9                the test was conducted;
 
10      (3)  The sworn statement of the person who conducted the
 
11           test stating facts that establish that pursuant to
 
12           section 321-161 and rules adopted thereunder:
 
13           (A)  The person was trained and at the time the test
 
14                was conducted was certified and capable of
 
15                operating the testing equipment;
 
16           (B)  The person followed the procedures established for
 
17                conducting the test;
 
18           (C)  The equipment used to conduct the test functioned
 
19                in accordance with operating procedures and
 
20                indicated that the person's alcohol concentration
 
21                was at, or above, the prohibited level; and
 
22           (D)  The person whose breath or blood was tested was
 

 
 
 
Page 26                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1                the person arrested;
 
 2      (4)  A copy of the notice of administrative revocation
 
 3           issued to the arrestee;
 
 4      (5)  Any driver's license and motor vehicle registration and
 
 5           license plates, if applicable, taken into possession by
 
 6           the arresting officer; and
 
 7      (6)  A listing of any prior alcohol enforcement contacts
 
 8           involving the arrestee.
 
 9      (b)  Whenever a person is arrested for a violation of
 
10 section 291-4 or 291-4.4 and refuses to submit to a test to
 
11 determine alcohol concentration [in the blood], the following
 
12 shall be immediately forwarded to the director:
 
13      (1)  A copy of the arrest report and the sworn statement of
 
14           the arresting officer stating facts that establish
 
15           that:
 
16           (A)  There was reasonable suspicion to stop the motor
 
17                vehicle or the motor vehicle was stopped at an
 
18                intoxication control roadblock established and
 
19                operated in compliance with sections 286-162.5 and
 
20                286-162.6;
 
21           (B)  There was probable cause to believe that the
 
22                arrestee had been driving, operating, or in actual
 

 
 
 
Page 27                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1                physical control of the motor vehicle while under
 
 2                the influence of intoxicating liquor;
 
 3           (C)  The arrestee was informed of the sanctions of this
 
 4                part, that criminal charges may be filed, and the
 
 5                probable consequences of refusing to be tested for
 
 6                concentration of alcohol in the blood; and
 
 7           (D)  The arrestee refused to be tested;
 
 8      (2)  A copy of the notice of administrative revocation and
 
 9           the temporary driver's permit and temporary motor
 
10           vehicle registration, if applicable, issued to the
 
11           arrestee;
 
12      (3)  Any driver's license and motor vehicle registration and
 
13           license plates, if applicable, taken into possession;
 
14           and
 
15      (4)  A listing of all alcohol enforcement contacts involving
 
16           the arrestee."
 
17      SECTION 13.  Section 286-258, Hawaii Revised Statutes, is
 
18 amended to read as follows:
 
19      "�286-258  Administrative review; procedures.  (a)  The
 
20 director shall automatically review the issuance of a notice of
 
21 administrative revocation, and a written decision
 
22 administratively revoking the driver's license and motor vehicle
 

 
 
 
Page 28                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 registration, if applicable, or rescinding the notice of
 
 2 administrative revocation shall be mailed to the arrestee no
 
 3 later than eight days after the date the notice was issued.
 
 4      (b)  The arrestee shall have the opportunity to demonstrate
 
 5 in writing why the arrestee's driver's license and motor vehicle
 
 6 registration, if applicable, should not be administratively
 
 7 revoked and shall submit any written information within three
 
 8 days of the notice, either by mail or in person, to the
 
 9 director's office or to any office or address designated by the
 
10 director for that purpose.
 
11      (c)  In conducting the administrative review, the director
 
12 shall consider:
 
13      (1)  Any sworn or unsworn statement or other evidence
 
14           provided by the arrestee;
 
15      (2)  The breath or blood test results, if any; and
 
16      (3)  The sworn statements of the law enforcement officials,
 
17           and other evidence or information required by section
 
18           286-257.
 
19      (d)  The director shall administratively revoke the
 
20 arrestee's driver's license if the director determines that:
 
21      (1)  There existed reasonable suspicion to stop the motor
 
22           vehicle, the motor vehicle was stopped at an
 

 
 
 
Page 29                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           intoxication and drug control roadblock established and
 
 2           operated in compliance with sections 286-162.5 and
 
 3           286-162.6, or the person was tested pursuant to section
 
 4           286-163;
 
 5      (2)  There existed probable cause to believe that the
 
 6           arrestee drove, operated, or was in actual physical
 
 7           control of the motor vehicle while under the influence
 
 8           of intoxicating liquor; and
 
 9      (3)  The evidence proves by a preponderance that the
 
10           arrestee drove, operated, or was in actual physical
 
11           control of the motor vehicle while under the influence
 
12           of intoxicating liquor or while having an alcohol
 
13           concentration of .08 or more or that the arrestee
 
14           refused to submit to a breath or blood test after being
 
15           informed of the sanctions of this part.
 
16      (e)  The director shall administratively revoke the
 
17 registration of all vehicles owned or registered to the arrestee
 
18 and impound any license plate issued to the arrestee if the
 
19 director determines that the arrestee is a repeat intoxicated
 
20 driver and that:
 
21      (1)  There existed reasonable suspicion to stop the motor
 
22           vehicle, the motor vehicle was stopped at an
 

 
 
 
Page 30                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           intoxication and drug control roadblock established and
 
 2           operated in compliance with sections 286-162.5 and
 
 3           286-162.6, or the person was tested pursuant to section
 
 4           286-163;
 
 5      (2)  There existed probable cause to believe that the
 
 6           arrestee drove, operated, or was in actual physical
 
 7           control of the motor vehicle while under the influence
 
 8           of intoxicating liquor; and
 
 9      (3)  The evidence proves by a preponderance that the
 
10           arrestee drove, operated, or was in actual physical
 
11           control of the motor vehicle while under the influence
 
12           of intoxicating liquor or while having an alcohol
 
13           concentration of .08 or more or that the arrestee
 
14           refused to submit to a breath or blood test after being
 
15           informed of the sanctions of this part.
 
16      [(e)] (f)  If the evidence does not support administrative
 
17 revocation, the director shall rescind the notice of
 
18 administrative revocation and return the arrestee's driver's
 
19 license and motor vehicle registration and license plates, if
 
20 applicable, along with a certified statement that administrative
 
21 revocation proceedings have been terminated.
 
22      [(f)] (g)  If the director administratively revokes the
 

 
 
 
Page 31                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 arrestee's driver's license[,] and motor vehicle registration, if
 
 2 applicable, the director shall mail to the arrestee a written
 
 3 decision stating the reasons for the administrative revocation.
 
 4 The decision shall also indicate that the arrestee has six days
 
 5 from the date the decision is mailed to request an administrative
 
 6 hearing to review the director's decision.  The decision shall
 
 7 also explain the procedure by which to request an administrative
 
 8 hearing, and shall be accompanied by a form, postage prepaid,
 
 9 which the arrestee may fill out and mail in order to request an
 
10 administrative hearing.  The decision shall also inform the
 
11 arrestee of the right to review and copy all documents considered
 
12 at the review, including the arrest report and the sworn
 
13 statements of the law enforcement officials, prior to the
 
14 hearing.  Further, the decision shall state that the arrestee may
 
15 be represented by counsel at the hearing, submit evidence, give
 
16 testimony, and present and cross-examine witnesses, including the
 
17 arresting officer.
 
18      [(g)] (h)  Failure of the arrestee to request a hearing
 
19 within the time provided in section 286-259(a) shall cause the
 
20 administrative revocation to take effect for the period and under
 
21 the conditions provided in the administrative review decision
 
22 issued by the director under this section.  The arrestee may
 

 
 
 
Page 32                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 regain the right to a hearing by requesting the director, within
 
 2 sixty days of the arrest, to schedule a hearing.  The hearing
 
 3 shall be scheduled to commence no later than thirty days after
 
 4 the request is [made.] received by the director.  The
 
 5 administrative review decision issued by the director under this
 
 6 section shall clearly explain the consequences of failure to
 
 7 request an administrative hearing and the procedure by which the
 
 8 arrestee may regain the right to a hearing."
 
 9      SECTION 14.  Section 286-259, Hawaii Revised Statutes, is
 
10 amended to read as follows:
 
11      "�286-259  Administrative hearing.(a)  If the director
 
12 administratively revokes the arrestee's driver's license and
 
13 motor vehicle registration, if applicable, after administrative
 
14 review, the arrestee may request an administrative hearing to
 
15 review the decision within six days of the date the
 
16 administrative review decision is mailed.  [The] If the request
 
17 for the hearing is received by the director within six days of
 
18 this date, the hearing shall be scheduled to commence no later
 
19 than twenty-five days from the date the notice of administrative
 
20 revocation was issued.  The director may continue the hearing
 
21 only as provided in subsection (j).
 
22      (b)  The hearing shall be held at a place designated by the
 

 
 
 
Page 33                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 director, as close to the location of the arrest as practical.
 
 2      (c)  The arrestee may be represented by counsel.
 
 3      (d)  The director shall conduct the hearing and have
 
 4 authority to:
 
 5      (1)  Administer oaths and affirmations;
 
 6      (2)  Examine witnesses and take testimony;
 
 7      (3)  Receive and determine the relevance of evidence;
 
 8      (4)  Issue subpoenas, take depositions, or cause depositions
 
 9           or interrogatories to be taken;
 
10      (5)  Regulate the course and conduct of the hearing; and
 
11      (6)  Make a final ruling.
 
12      (e)  The director shall affirm the administrative revocation
 
13 only if the director determines that:
 
14      (1)  There existed reasonable suspicion to stop the motor
 
15           vehicle, the motor vehicle was stopped at an
 
16           intoxication and drug control roadblock established and
 
17           operated in compliance with sections 286-162.5 and
 
18           286-162.6, or the person was tested pursuant to section
 
19           286-163;
 
20      (2)  There existed probable cause to believe that the
 
21           arrestee drove, operated, or was in actual physical
 
22           control of the motor vehicle while under the influence
 

 
 
 
Page 34                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           of intoxicating liquor; and
 
 2      (3)  The evidence proves by a preponderance that the
 
 3           arrestee drove, operated, or was in actual physical
 
 4           control of the motor vehicle while under the influence
 
 5           of intoxicating liquor or while having an alcohol
 
 6           concentration of .08 or more or that the arrestee
 
 7           refused to submit to a breath or blood test after being
 
 8           informed of the sanctions of this part.
 
 9      (f)  In addition to subsection (e), the director shall
 
10 affirm the administrative revocation of the registration of all
 
11 motor vehicles owned by or registered to the arrestee only if the
 
12 director determines that the arrestee is a repeat intoxicated
 
13 driver.  If the director affirms the administrative revocation
 
14 pursuant to this subsection, the director shall order the
 
15 arrestee to surrender the license plates and motor vehicle
 
16 registrations of all motor vehicles owned by or registered to the
 
17 arrestee.  The director may destroy any license plates seized
 
18 from or surrendered by the arrestee.
 
19      [(f)] (g)  The arrestee's prior alcohol enforcement contacts
 
20 shall be entered into evidence.
 
21      [(g)] (h)  The sworn statements provided in section 286-257
 
22 shall be admitted into evidence.  Upon notice to the director no
 

 
 
 
Page 35                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 later than five days prior to the hearing that the arrestee
 
 2 wishes to examine a law enforcement official who made a sworn
 
 3 statement, the director shall issue a subpoena for the official
 
 4 to appear at the hearing.  If the official cannot appear, the
 
 5 official may at the discretion of the director testify by
 
 6 telephone.
 
 7      [(h)] (i)  The hearing shall be recorded in a manner to be
 
 8 determined by the director.
 
 9      [(i)] (j)  The director's decision shall be rendered in
 
10 writing and mailed to the arrestee no later than five days after
 
11 conclusion of the hearing.  If the decision is to reverse the
 
12 administrative revocation, the director shall return the
 
13 arrestee's driver's license, [and any fees collected from the
 
14 arrestee under this part] motor vehicle registration, and license
 
15 plates if applicable, along with a certified statement that
 
16 administrative revocation proceedings have been terminated.  If
 
17 the decision sustains the administrative revocation, the director
 
18 shall mail to the arrestee a written decision indicating the
 
19 duration of the administrative revocation and any other
 
20 conditions or restrictions as may be imposed pursuant to section
 
21 286-261.
 
22      [(j)] (k)  For good cause shown, the director may grant a
 

 
 
 
Page 36                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 continuance either of the commencement of the hearing or of a
 
 2 hearing that has already commenced.  If a continuance is granted
 
 3 at the request of the director, the director shall extend the
 
 4 validity of the temporary driver's permit or temporary motor
 
 5 vehicle registration, if applicable, for a period not to exceed
 
 6 the period of the continuance[.], unless the extension is
 
 7 otherwise prohibited.  If a continuance is granted at the request
 
 8 of the arrestee, the director shall not extend the validity of
 
 9 the temporary driver's permit[.] or temporary motor vehicle
 
10 registration, if applicable.  For purposes of this section a
 
11 continuance means a delay in the commencement of the hearing or
 
12 an interruption of a hearing that has commenced other than for
 
13 recesses during the day or at the end of the day or week.
 
14      (l)  The director may grant a special motor vehicle
 
15 registration, pursuant to section 286-8, to a qualified household
 
16 member or co-owner of any motor vehicle upon determination that
 
17 the person is dependent on the motor vehicle for the necessities
 
18 of life.  The special motor vehicle registration shall not be
 
19 valid for use by the arrestee.
 
20      [(k)] (m)  If the arrestee fails to appear at the hearing,
 
21 administrative revocation shall take effect for the period and
 
22 under the conditions established by the director in the
 

 
 
 
Page 37                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 administrative review decision issued by the director under
 
 2 section 286-258."
 
 3      SECTION 15.  Section 286-259.5, Hawaii Revised Statutes, is
 
 4 amended to read as follows:
 
 5      "[[]�286-259.5[]]  Fees and costs.  The director shall be
 
 6 authorized to assess and collect a [$15] $30 fee from the
 
 7 arrestee for the costs of processing the arrestee's request for
 
 8 an administrative hearing to cover costs which include but should
 
 9 not be limited to the cost of photocopying documents, the
 
10 issuance of subpoenas, conditional driver's license permits or
 
11 temporary motor vehicle registration and license plates, or
 
12 temporary driver's permit and relicensing forms, interpreter
 
13 services, law enforcement official mileage fees, and other
 
14 similar costs.  The director may waive the fee in the case of
 
15 indigent arrestees upon an appropriate inquiry into the financial
 
16 circumstances of the person seeking the waiver and an affidavit
 
17 or a certificate signed by such person demonstrating the person's
 
18 financial inability to pay the fee."
 
19      SECTION 16.  Section 286-261, Hawaii Revised Statutes, is
 
20 amended to read as follows:
 
21      "�286-261  Effective date and period of administrative
 
22 revocation; criteria.  (a)  Unless an administrative revocation
 

 
 
 
Page 38                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 is reversed or the temporary driver's license permit [is] and
 
 2 temporary motor vehicle registration and temporary license
 
 3 plates, if applicable, are extended by the director,
 
 4 administrative revocation shall become effective on the day
 
 5 specified in the notice.  Except as provided in section 286-264,
 
 6 no driver's license nor motor vehicle registration and license
 
 7 plates, if applicable, shall be restored under any circumstances
 
 8 and no conditional permit shall be issued during the
 
 9 administrative revocation period.
 
10      (b)  The periods of administrative revocation with respect
 
11 to a driver's license and motor vehicle registration, if
 
12 applicable, that [may] shall be imposed under this part are as
 
13 follows:
 
14      (1)  [Three] A minimum of three months[,] up to a maximum of
 
15           one year revocation of driver's license, if the
 
16           arrestee's driving record shows no prior alcohol
 
17           enforcement contacts during the five years preceding
 
18           the date of arrest;
 
19      (2)  [One] A minimum of one year up to a maximum of two
 
20           years revocation of driver's license and all
 
21           registrations of motor vehicles registered to the
 
22           arrestee if the arrestee's driving record shows one
 

 
 
 
Page 39                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           prior alcohol enforcement contact during the five years
 
 2           preceding the date of arrest;
 
 3      (3)  [Two] A minimum of two years up to a maximum of four
 
 4           years revocation of driver's license and all
 
 5           registrations of motor vehicles registered to the
 
 6           arrestee if the arrestee's driving record shows two
 
 7           prior alcohol enforcement contacts during the seven
 
 8           years preceding the date of arrest;
 
 9      (4)  [For life] Lifetime revocation of driver's license and
 
10           prohibition on all subsequent motor vehicles
 
11           registrations by the arrestee if the arrestee's driving
 
12           record shows three or more prior alcohol enforcement
 
13           contacts during the ten years preceding the date of
 
14           arrest; or
 
15      (5)  For arrestees under the age of eighteen years, the
 
16           revocation of the driver's license for the period
 
17           remaining until the arrestee's eighteenth birthday, or
 
18           for the appropriate revocation period provided in
 
19           paragraphs (1) to (4) or in subsection [(c),] (d),
 
20           whichever is longer.
 
21      (c)  Whenever a motor vehicle registration is revoked under
 
22 this part, the director shall cause the revocation to be entered
 

 
 
 
Page 40                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 electronically into the motor vehicle registration file of the
 
 2 arrestee.
 
 3      [(c)] (d)  The driver's license of an arrestee who refuses
 
 4 to be tested after being informed of the sanctions of this part
 
 5 shall be revoked under subsection (b)(1), (2), [and] (3), and (4)
 
 6 for a period of one year, two years, [and] four years, and a life
 
 7 time, respectively.
 
 8      (e)  In addition to subsection (d), the motor vehicle
 
 9 registration and license plates of an arrestee who is a repeat
 
10 intoxicated driver and who refused to be tested after being
 
11 informed of the sanctions of this part shall be revoked for the
 
12 periods specified in subsection (d), and the arrestee shall be
 
13 prohibited from subsequently registering any motor vehicle for
 
14 the applicable revocation period.
 
15      [(d)] (f)  Whenever a driver's license is administratively
 
16 revoked under this part, the offender shall be referred to a
 
17 certified substance abuse counselor for an assessment of the
 
18 arrestee's alcohol abuse or dependence and the need for
 
19 treatment.  The counselor shall submit a report with
 
20 recommendations to the director.  If the counselor's assessment
 
21 establishes that the extent of the arrestee's alcohol abuse or
 
22 dependence warrants treatment, the director [may] shall so order.
 

 
 
 
Page 41                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 All costs for assessment and treatment shall be paid by the
 
 2 arrestee.
 
 3      [(e)] (g)  Alcohol enforcement contacts that occurred prior
 
 4 to August 1, 1991, shall be counted in determining the
 
 5 administrative revocation period.
 
 6      (h)  Alcohol enforcement contacts that occurred prior to the
 
 7 effective date of this Act shall be counted in determining the
 
 8 administrative revocation period for motor vehicle registration."
 
 9      SECTION 17.  Section 286-262, Hawaii Revised Statutes, is
 
10 amended to read as follows:
 
11      "[[]�286-262[]]  Notice to other states.  When a
 
12 nonresident's driving privilege [is] or driver's license and
 
13 motor vehicle registration, if applicable, are administratively
 
14 revoked under this part, the director shall notify, in writing,
 
15 the officials in charge of traffic control or public safety in
 
16 the nonresident's home state and in any other state in which the
 
17 nonresident has driving privileges, driver's licenses, and motor
 
18 vehicle registrations, as applicable, of the action taken in this
 
19 State and shall return to the appropriate issuing authority in
 
20 the other states any driver's license and any motor vehicle
 
21 registration seized under section 286-255."
 
22      SECTION 18.  Section 286-264, Hawaii Revised Statutes, is
 

 
 
 
Page 42                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 amended as follows:
 
 2      1.  By amending the title and subsection (a) to read:
 
 3      "�286-264  Conditional driver's license permits.  (a)  [If
 
 4 an arrestee subject to administrative revocation under this part
 
 5 submitted to a breath or blood test and has had no prior alcohol
 
 6 enforcement contacts during the five years preceding the date of
 
 7 arrest,] At the administrative hearing, the director, at the
 
 8 request of [the] an arrestee [at the administrative hearing,] who
 
 9 is subject to an administrative revocation period as provided in
 
10 section 286-261(b)(1), may issue a conditional driver's permit
 
11 [allowing] that will allow the arrestee, after a minimum period
 
12 of absolute license revocation of thirty days, to drive [after a
 
13 minimum period of absolute license revocation of thirty days if]
 
14 for the remainder of the revocation period, provided that one or
 
15 more of the following conditions are met:
 
16      (1)  The arrestee is gainfully employed in a position that
 
17           requires driving and will be discharged if the
 
18           arrestee's driving privileges are administratively
 
19           revoked; or
 
20      (2)  The arrestee has no access to alternative
 
21           transportation and therefore must drive to work or to a
 
22           substance abuse treatment facility or counselor for
 

 
 
 
Page 43                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           treatment ordered by the director under section
 
 2           286-261.
 
 3 The director shall not issue a conditional permit to an arrestee
 
 4 whose license, during the conditional permit period, is expired
 
 5 or is suspended or revoked as a result of action other than the
 
 6 instant revocation for which the arrestee is requesting a
 
 7 conditional permit under this section."
 
 8      2.  By amending subsection (d) to read:
 
 9      "(d)  A conditional permit may include restrictions allowing
 
10 the arrestee to drive: 
 
11      (1)  Only during hours of employment for activities solely
 
12           within the scope of the employment;
 
13      (2)  Only during daylight hours; or
 
14      (3)  Only for specified purposes or to specified
 
15           destinations.
 
16 In addition, the director may impose any other appropriate
 
17 restrictions[, including installation of an ignition interlock
 
18 system]."
 
19      SECTION 19.  Section 286-265, Hawaii Revised Statutes, is
 
20 amended to read as follows:
 
21      "�286-265  Eligibility for relicensing.  To be eligible for
 
22 relicensing after a period of administrative revocation has
 

 
 
 
Page 44                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 expired, the person shall:
 
 2      (1)  Submit proof to the director of compliance with all
 
 3           conditions imposed by the director or by the court;
 
 4      (2)  Obtain a certified statement from the director
 
 5           indicating eligibility for relicensing;
 
 6      (3)  Present the certified statement to the appropriate
 
 7           driver licensing and motor vehicle registration
 
 8           official; and
 
 9      (4)  Successfully complete each requirement for obtaining a
 
10           new driver's license and motor vehicle registration, if
 
11           applicable, in this State including payment of all
 
12           applicable fees."
 
13      SECTION 20.  Section 291-4, Hawaii Revised Statutes, is
 
14 amended by amending subsection (b) to read as follows:
 
15      "(b)  A person committing the offense of driving under the
 
16 influence of intoxicating liquor shall be sentenced as follows
 
17 without possibility of probation or suspension of sentence:
 
18      (1)  For the first offense, or any offense not preceded
 
19           within a five-year period by a conviction for driving
 
20           under the influence of intoxicating liquor under this
 
21           section or section 291-4.4 by:
 
22           (A)  A fourteen-hour minimum alcohol abuse
 

 
 
 
Page 45                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1                rehabilitation program including education and
 
 2                counseling, or other comparable program deemed
 
 3                appropriate by the court; and
 
 4           (B)  Ninety-day prompt suspension of license with
 
 5                absolute prohibition from operating a motor
 
 6                vehicle during suspension of license, or the court
 
 7                may impose, in lieu of the ninety-day prompt
 
 8                suspension of license, a minimum thirty-day prompt
 
 9                suspension of license with absolute prohibition
 
10                from operating a motor vehicle and, for the
 
11                remainder of the ninety-day period, a restriction
 
12                on the license that allows the person to drive for
 
13                limited work-related purposes and to participate
 
14                in alcoholism treatment programs; and
 
15           (C)  Any one or more of the following:
 
16                (i)  Seventy-two hours of community service work;
 
17               (ii)  Not less than forty-eight hours and not more
 
18                     than five days of imprisonment; or
 
19              (iii)  A fine of not less than $150 but not more
 
20                     than $1,000.
 
21      (2)  For an offense that occurs within five years of a prior
 
22           conviction for driving under the influence of
 

 
 
 
Page 46                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           intoxicating liquor under this section or section
 
 2           291-4.4 by:
 
 3           (A)  Prompt suspension of license for a period of one
 
 4                year with the absolute prohibition from operating
 
 5                a motor vehicle during suspension of license;
 
 6           (B)  Either one of the following:
 
 7                (i)  Not less than [one] two hundred forty hours
 
 8                     of community service work; or
 
 9               (ii)  Not less than [forty-eight consecutive hours]
 
10                     five days but not more than fourteen days of
 
11                     imprisonment of which at least forty-eight
 
12                     hours shall be served consecutively; and
 
13           (C)  A fine of not less than $500 but not more than
 
14                $1,500.
 
15      (3)  For an offense that occurs within five years of two
 
16           prior convictions for driving under the influence of
 
17           intoxicating liquor under this section or section
 
18           291-4.4 by:
 
19           (A)  A fine of not less than $500 but not more than
 
20                $2,500;
 
21           (B)  Revocation of license for a period not less than
 
22                one year but not more than five years; and
 

 
 
 
Page 47                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           (C)  Not less than ten days but not more than thirty
 
 2                days imprisonment of which at least forty-eight
 
 3                hours shall be served consecutively.
 
 4      (4)  Any person eighteen years of age or older, who is
 
 5           convicted under this section and who operated or
 
 6           assumed actual physical control of a vehicle with a
 
 7           passenger, in or on the vehicle, who was younger than
 
 8           fifteen years of age, shall be sentenced to an
 
 9           additional mandatory fine of $500, and an additional
 
10           mandatory term of imprisonment of forty-eight hours;
 
11           provided, however, that the total term of imprisonment
 
12           for a person convicted under this section shall not
 
13           exceed thirty days.
 
14      Notwithstanding any other law to the contrary, any
 
15 conviction for driving under the influence of intoxicating liquor
 
16 under this section or section 291-4.4 shall be considered a prior
 
17 conviction for purposes of imposing sentence under this section.
 
18      No license suspension or revocation shall be imposed
 
19 pursuant to this subsection if the person's license has
 
20 previously been administratively revoked pursuant to part XIV of
 
21 chapter 286 for the same offense; provided that, if the
 
22 administrative revocation is subsequently reversed, the person's
 

 
 
 
Page 48                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 license shall be suspended or revoked as provided in this
 
 2 subsection."
 
 3      SECTION 21.  Section 291-4.4, Hawaii Revised Statutes, is
 
 4 amended to read as follows:
 
 5      "�291-4.4  Habitually driving under the influence of
 
 6 intoxicating liquor or drugs.(a)  A person commits the offense
 
 7 of habitually driving under the influence of intoxicating liquor
 
 8 or drugs if, during a ten-year period the person has been
 
 9 convicted three or more times for a driving under the influence
 
10 offense; and
 
11      (1)  The person operates or assumes actual physical control
 
12           of the operation of any vehicle while under the
 
13           influence of intoxicating liquor, meaning that the
 
14           person is under the influence of intoxicating liquor in
 
15           an amount sufficient to impair the person's normal
 
16           mental faculties or ability to care for oneself and
 
17           guard against casualty;
 
18      (2)  The person operates or assumes actual physical control
 
19           of the operation of any vehicle with .08 or more grams
 
20           of alcohol per one hundred milliliters or cubic
 
21           centimeters of blood or .08 or more grams of alcohol
 
22           per two hundred ten liters of breath; or
 

 
 
 
Page 49                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (3)  A person operates or assumes actual physical control of
 
 2           the operation of any vehicle while under the influence
 
 3           of any drug which impairs such person's ability to
 
 4           operate the vehicle in a careful and prudent manner.
 
 5           The term "drug" as used in this section shall mean any
 
 6           controlled substance as defined and enumerated on
 
 7           schedules I through IV of chapter 329.
 
 8      (b)  For the purposes of this section, a driving under the
 
 9 influence offense means a violation of this section or section
 
10 291-4, 291-7, or 707-702.5, or violation of laws in another
 
11 jurisdiction that requires proof of each element of the offenses
 
12 punishable under either this section or section 291-4, 291-7, or
 
13 707-702.5 if committed in Hawaii.
 
14      (c)  Habitually driving under the influence of intoxicating
 
15 liquor or drugs is a class C felony.  In addition to any other
 
16 penalty imposed, a person convicted under this section shall be
 
17 sentenced to:
 
18      (1)  Revocation of driver's license for not less than one
 
19           year; and
 
20      (2)  Not less than ten days imprisonment of which at least
 
21           forty-eight hours shall be served consecutively.
 
22      No license suspension or revocation shall be imposed
 

 
 
 
Page 50                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 pursuant to this subsection if the person's license has
 
 2 previously been administratively revoked pursuant to part XIV of
 
 3 chapter 286 for the same act; provided that, if the
 
 4 administrative revocation is subsequently reversed, the person's
 
 5 license shall be suspended or revoked as provided in this
 
 6 subsection.
 
 7      (d)  Whenever a court sentences a person pursuant to
 
 8 subsection (c), it also shall require that the offender be
 
 9 referred to a substance abuse counselor who has been certified
 
10 pursuant to section 321-193 for an assessment of the offender's
 
11 alcohol abuse or dependence and the need for appropriate
 
12 treatment.  The counselor shall submit a report with
 
13 recommendations to the court.  The court shall require the
 
14 offender to obtain appropriate treatment if the counselor's
 
15 assessment establishes the offender's alcohol abuse or
 
16 dependence.
 
17      All cost for assessment or treatment or both shall be borne
 
18 by the offender."
 
19                             PART III
 
20      SECTION 22.  House Concurrent Resolution No. 26, H.D. 2,
 
21 S.D. 1 (1998), entitled "Requesting the Department of
 
22 Transportation to Review Hawaii's Impaired Driving Statutes and
 

 
 
 
Page 51                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 to Make Recommendations for Uniform Statutory Construction,"
 
 2 directed the department of transportation to:
 
 3      (1)  Review Hawaii's impaired driving statutes to identify
 
 4           inconsistent statutory provisions, including disparate
 
 5           punishment provisions for similar offenses and
 
 6           provisions conferring a right to jury trial for some
 
 7           impaired driving offenses but not others; and
 
 8      (2)  Make recommendations and draft appropriate legislation
 
 9           to create more uniform and consistent impaired driving
 
10           statutes.
 
11 The department of transportation solicited input in this effort
 
12 from the governor's highway safety council impaired driving task
 
13 force (task force).  The task force is made up of over seventy-
 
14 five individuals and organizations from around the State.
 
15 Members include representatives from the department of health,
 
16 police, prosecutors, defense bar, judiciary, administrative
 
17 drivers' license revocation office, emergency room physicians,
 
18 Mothers Against Drunk Driving, and others.  The task force's
 
19 efforts have resulted in proposed legislation that consolidates
 
20 many provisions and provides for uniform and consistent treatment
 
21 of impaired driving and boating offenses.  The provisions in this
 
22 part are based upon the task force's proposals.
 
23      It is the intent of the legislature to provide, where
 
24 appropriate, uniform provisions, rights, and penalties, including
 

 
Page 52                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 immediate license revocation under the administrative revocation
 
 2 of license provisions and the same rights with respect to jury
 
 3 trials, for impaired driving and boating offenders.  The
 
 4 legislature further intends that individuals who are charged
 
 5 under this part with an offense for operating a vehicle,
 
 6 including a vessel underway, under the influence of an intoxicant
 
 7 shall not be entitled to a jury trial if the maximum term of
 
 8 imprisonment for the offense does not exceed thirty days.
 
 9      The legislature has previously taken steps to indicate its
 
10 intent that defendants charged with driving under the influence
 
11 of intoxicating liquor not be entitled to a jury trial.  In Act
 
12 128, Session Laws of Hawaii 1993, the legislature clearly stated
 
13 its intent that the first offense of driving under the influence
 
14 of intoxicating liquor is a "petty offense" in the constitutional
 
15 sense and reduced the maximum possible penalty to ensure that
 
16 defendants charged with a first offense not be entitled to a jury
 
17 trial.  After finding a critical need to relieve the then
 
18 existing first circuit court congestion of driving under the
 
19 influence of intoxicating liquor cases awaiting jury trial, the
 
20 legislature again took action in Act 226, Session Laws of Hawaii
 
21 1995, to reduce the maximum terms of imprisonment for second and
 
22 third offenses of driving under the influence of intoxicating
 

 
 
 
Page 53                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 liquor.  The maximum term of imprisonment for a second offense
 
 2 was reduced from sixty to fourteen days and for a third offense
 
 3 from one hundred eighty to thirty days to ensure that defendants
 
 4 charged with these offenses are not entitled to jury trials.
 
 5      Furthermore, the legislature notes that in State v. Lindsey,
 
 6 77 Haw. 162 (1994), the Hawaii supreme court ruled that "if the
 
 7 maximum term of imprisonment for a particular offense does not
 
 8 exceed thirty days, it is presumptively a petty offense to which
 
 9 the right to a jury trial does not attach."  The court further
 
10 stated that the "presumption can be overcome only in
 
11 extraordinary cases when consideration of other ... factors ...
 
12 unequivocally demonstrates that society demands that persons
 
13 charged with the offense at issue be afforded the right to a jury
 
14 trial."  Consequently, the legislature finds and intends that a
 
15 term of imprisonment not to exceed thirty days will not entitle a
 
16 defendant under this part to a jury trial.
 
17      The legislature also is mindful that the statutory changes
 
18 proposed in this part will require the judiciary and law
 
19 enforcement agencies to develop new procedures and forms to
 
20 ensure compliance.  The legislature believes that an enactment
 
21 date of January 1, 2002, will provide sufficient time to
 
22 accommodate these development timetables.
 

 
 
 
Page 54                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      Accordingly, the purpose of this part is to consolidate, for
 
 2 purposes of uniformity and consistency, where appropriate, the
 
 3 provisions relating to operating a vehicle while using an
 
 4 intoxicant.
 
 5      SECTION 23.  The Hawaii Revised Statutes is amended by
 
 6 adding a new chapter to be appropriately designated and to read
 
 7 as follows:
 
 8                             "CHAPTER
 
 9           USE OF INTOXICANTS WHILE OPERATING A VEHICLE
 
10                    PART I.  GENERAL PROVISIONS
 
11      �   -1  Definitions.  As used in this chapter, unless the
 
12 context otherwise requires:
 
13      "Administrative revocation" means termination of the
 
14 respondent's driver's vehicle license or the privilege to operate
 
15 a vessel underway on or in the waters of the State pursuant to
 
16 part III, but does not include any revocation imposed under
 
17 section    -81.
 
18      "Alcohol" means the product of distillation of any fermented
 
19 liquid, regardless of whether rectified, whatever may be the
 
20 origin thereof, and includes ethyl alcohol, lower aliphatic
 
21 alcohol, and phenol as well as synthetic ethyl alcohol, but not
 
22 denatured or other alcohol that is considered not potable under
 

 
 
 
Page 55                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 the customs laws of the United States.
 
 2      "Alcohol concentration" means either grams of alcohol per
 
 3 one hundred milliliters or cubic centimeters of blood or grams of
 
 4 alcohol per two hundred ten liters of breath.
 
 5      "Alcohol enforcement contact" means:  any administrative
 
 6 revocation ordered pursuant to part III; any administrative
 
 7 revocation ordered pursuant to part XIV of chapter 286, as that
 
 8 part was in effect on December 31, 2001; any driver's license
 
 9 suspension or revocation or any suspension or revocation of a
 
10 privilege to operate a vessel underway imposed by this or any
 
11 other state or federal jurisdiction for refusing to submit to a
 
12 test for alcohol concentration; any conviction in this State for
 
13 operating or being in physical control of a vehicle while having
 
14 an unlawful alcohol concentration or while under the influence of
 
15 alcohol; or a conviction in any other state or federal
 
16 jurisdiction for an offense that is comparable to operating or
 
17 being in physical control of a vehicle while having an unlawful
 
18 alcohol concentration or while under the influence of alcohol.
 
19      "Certified substance abuse counselor" means any person
 
20 certified by the department of health pursuant to section
 
21 321-193(10), or any other substance abuse specialist or medical
 

 
 
 
 
 
Page 56                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 practitioner the director of health may appoint to carry out the
 
 2 functions of a certified substance abuse counselor under this
 
 3 chapter.
 
 4      "Director" means the administrative director of the courts
 
 5 or any other person within the judiciary appointed by the
 
 6 director to conduct administrative reviews or hearings or carry
 
 7 out other functions relating to administrative revocation under
 
 8 part III.
 
 9      "Drug" means any controlled substance, as defined and
 
10 enumerated on schedules I through IV of chapter 329, or its
 
11 metabolites.
 
12      "Drug enforcement contact" means:  any administrative
 
13 revocation ordered pursuant to part III; any administrative
 
14 revocation ordered pursuant to part XIV of chapter 286, as that
 
15 part was in effect on December 31, 2001; any driver's license
 
16 suspension or revocation or any suspension or revocation of a
 
17 privilege to operate a vessel underway imposed by this or any
 
18 other state or federal jurisdiction for refusing to submit to a
 
19 test for drug concentration in the person's blood or urine; any
 
20 conviction in this State for operating or being in physical
 
21 control of a vehicle while having an unlawful drug content in the
 
22 blood or urine or while under the influence of drugs; or a
 

 
 
 
Page 57                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 conviction in any other state or federal jurisdiction for an
 
 2 offense that is comparable to operating or being in physical
 
 3 control of a vehicle while having an unlawful drug content in the
 
 4 blood or urine or while under the influence of drugs.
 
 5      "Impair" means to weaken, to lessen in power, to diminish,
 
 6 to damage, or to make worse by diminishing in some material
 
 7 respect or otherwise affecting in an injurious manner.
 
 8      "Intoxicant" means alcohol or any drug, as defined in this
 
 9 section.
 
10      "Law enforcement officer" means any public servant, whether
 
11 employed by the State, a county, or by the United States, vested
 
12 by law with a duty to maintain public order or to make arrests
 
13 for offenses or to enforce the criminal laws, and includes a
 
14 conservation and resources enforcement officer as defined in
 
15 section 199-3.
 
16      "License" means any driver's license or any other license or
 
17 permit to operate a motor vehicle issued under, or granted by,
 
18 the laws of this State and includes:
 
19      (1)  Any learner's permit or instruction permit;
 
20      (2)  The privilege of any person to operate a motor vehicle,
 
21           regardless of whether the person holds a valid license;
 
22      (3)  Any nonresident's operating privilege; and
 

 
 
 
Page 58                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (4)  The eligibility, including future eligibility, of any
 
 2           person to apply for a license or privilege to operate a
 
 3           motor vehicle.
 
 4      "Measurable amount of alcohol" means a test result equal to
 
 5 or greater than .02 but less than .08 grams of alcohol per one
 
 6 hundred milliliters or cubic centimeters of blood or equal to or
 
 7 greater than .02 but less than .08 grams of alcohol per two
 
 8 hundred ten liters of breath.
 
 9      "Moped" has the same meaning as in section 291C-1.
 
10      "Motor vehicle" has the same meaning as in section 291C-1,
 
11 except that it specifically includes a moped.
 
12      "Nonresident's operating privilege" means the privilege
 
13 conferred by law upon a nonresident to operate a vehicle in this
 
14 State.
 
15      "Notice of administrative revocation" or "notice" means the
 
16 written notice issued to the respondent pursuant to section
 
17    -33.
 
18      "Operate" means to drive or assume actual physical control
 
19 of a vehicle upon a public way, street, road, or highway or to
 
20 navigate or otherwise use or assume physical control of a vessel
 
21 underway on or in the waters of the State.
 
22      "Operator" means a person who drives or assumes actual
 

 
 
 
Page 59                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 physical control of a vehicle or a person who operates,
 
 2 navigates, or who has an essential role in the operation of a
 
 3 vessel underway.
 
 4      "Public way, street, road, or highway" includes:
 
 5      (1)  The entire width, including beam and shoulder, of every
 
 6           road, alley, street, way, right of way, lane, trail,
 
 7           highway, or bridge;
 
 8      (2)  A parking lot, when any part thereof is open for use by
 
 9           the public or to which the public is invited for
 
10           entertainment or business purposes;
 
11      (3)  Any bicycle lane, bicycle path, bicycle route, bikeway,
 
12           controlled-access highway, laned roadway, roadway, or
 
13           street, as defined in section 291C-1; or
 
14      (4)  Any public highway, as defined in section 264-1.
 
15      "Respondent" means a person to whom a notice of
 
16 administrative revocation has been issued following an arrest for
 
17 a violation of section    -81 or following the collection of a
 
18 blood or urine sample from the person, pursuant to section
 
19    -21, because there was probable cause to believe that the
 
20 person has violated section    -81.
 
21      "State" means:  any state or possession of the United
 
22 States; the District of Columbia; the Commonwealth of Puerto
 

 
 
 
Page 60                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 Rico; the United States Virgin Islands; American Samoa; Guam; any
 
 2 province or territory of the Dominion of Canada; and the
 
 3 Commonwealth of the Northern Mariana Islands, except when the
 
 4 word, in context, clearly refers to the State of Hawaii.
 
 5      "Substance" and "substance abuse" have the same meanings as
 
 6 provided in section 321-191.
 
 7      "Temporary permit" means that portion of the notice of
 
 8 administrative revocation that, when completed by a law
 
 9 enforcement officer, permits the respondent to operate a vehicle
 
10 for thirty days in the case of an alcohol related offense and
 
11 forty-four days in the case of a drug related offense or until
 
12 such time as the director may establish under part III.
 
13      "Under the influence" means that a person:
 
14      (1)  Is under the influence of alcohol in an amount
 
15           sufficient to impair the person's normal mental
 
16           faculties or ability to care for the person and guard
 
17           against casualty; 
 
18      (2)  Is under the influence of any drug that impairs the
 
19           person's ability to operate the vehicle in a careful
 
20           and prudent manner;
 
21      (3)  Has .08 or more grams of alcohol per two hundred ten
 
22           liters of the person's breath; or
 

 
 
 
Page 61                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (4)  Has .08 or more grams of alcohol per one hundred
 
 2           milliliters or cubic centimeters of the person's blood.
 
 3      "Underway" means that a vessel is not at anchor, made fast
 
 4 to the shore, or aground.
 
 5      "Vehicle" includes a:
 
 6      (1)  Motor vehicle;
 
 7      (2)  Moped; and
 
 8      (3)  Vessel.
 
 9      "Vessel" means all description of watercraft that are used
 
10 or are capable of being used as a means of transportation on or
 
11 in the water.
 
12      "Waters of the State" means any waters within the
 
13 jurisdiction of the State, the marginal seas adjacent to the
 
14 State, and the high seas when navigated as part of a journey or
 
15 ride to or from the shore of the State.
 
16      �   -2 Medical services.  The several county and state
 
17 government physicians shall, or any other qualified person may,
 
18 make whatever tests and analyses as may be requested of them by
 
19 any law enforcement officer in connection with the determination
 
20 of whether a person is or was under the influence of an
 
21 intoxicant or has consumed a measurable amount of alcohol for any
 
22 purpose under this chapter.
 

 
 
 
Page 62                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      �   -3 Evidence of intoxication.(a)  In any criminal
 
 2 prosecution for a violation of section    -81 or in any
 
 3 proceeding under part III:
 
 4      (1)  .08 or more grams of alcohol per one hundred
 
 5           milliliters or cubic centimeters of the person's blood;
 
 6      (2)  .08 or more grams of alcohol per two hundred ten liters
 
 7           of the person's breath; or
 
 8      (3)  The presence of one or more drugs in an amount
 
 9           sufficient to impair the person's ability to operate a
 
10           vehicle in a careful and prudent manner,
 
11 within three hours after the time of the alleged violation as
 
12 shown by chemical analysis or other approved analytical
 
13 techniques of the person's blood, breath, or urine shall be
 
14 competent evidence that the person was under the influence of an
 
15 intoxicant at the time of the alleged violation.
 
16      (b)  In any criminal prosecution for a violation of section
 
17    -81, the amount of alcohol found in the defendant's blood or
 
18 breath within three hours after the time of the alleged violation
 
19 as shown by chemical analysis or other approved analytical
 
20 techniques of the defendant's blood or breath shall be competent
 
21 evidence concerning whether the defendant was under the influence
 
22 of an intoxicant at the time of the alleged violation and shall
 

 
 
 
Page 63                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 give rise to the following presumptions:
 
 2      (1)  If there were .05 or less grams of alcohol per one
 
 3           hundred milliliters or cubic centimeters of defendant's
 
 4           blood or .05 or less grams of alcohol per two hundred
 
 5           ten liters of defendant's breath, it shall be presumed
 
 6           that the defendant was not under the influence of
 
 7           alcohol at the time of the alleged violation; and
 
 8      (2)  If there were in excess of .05 grams of alcohol per one
 
 9           hundred milliliters or cubic centimeters of defendant's
 
10           blood or .05 grams of alcohol per two hundred ten
 
11           liters of defendant's breath, but less than .08 grams
 
12           of alcohol per one hundred milliliters or cubic
 
13           centimeters of defendant's blood or .08 grams of
 
14           alcohol per two hundred ten liters of defendant's
 
15           breath, that fact may be considered with other
 
16           competent evidence in determining whether the defendant
 
17           was under the influence of alcohol at the time of the
 
18           alleged violation, but shall not of itself give rise to
 
19           any presumption.
 
20      (c)  Nothing in this section shall be construed as limiting
 
21 the introduction, in any criminal proceeding for a violation
 
22 under section    -81 or in any proceeding under part III, of
 

 
 
 
Page 64                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 relevant evidence of a person's alcohol concentration or drug
 
 2 content obtained more than three hours after an alleged
 
 3 violation; provided that the evidence is offered in compliance
 
 4 with the Hawaii rules of evidence.
 
 5      �   -4 Convictions and acts prior to January 1, 2002.(a)
 
 6 Any:
 
 7      (1)  Conviction for an offense under section 200-81, 291-4,
 
 8           291-4.4, or 291-7, as those sections were in effect on
 
 9           December 31, 2001; or
 
10      (2)  Conviction in any other state or federal jurisdiction
 
11           for an offense that is comparable to operating or being
 
12           in physical control of a vehicle while having either an
 
13           unlawful alcohol concentration or an unlawful drug
 
14           content in the blood or urine or while under the
 
15           influence of an intoxicant;
 
16 shall be counted as a prior offense for purposes of section
 
17    -41 or    -81.
 
18      (b)  Any conviction of an offense under section 291-4,
 
19 291-4.4, or 291-7 as those sections were in effect on December
 
20 31, 2001, shall be counted for purposes of imposing sentence for
 
21 a violation under section    -82.
 
22               PART II.  TESTING AND IMPLIED CONSENT
 

 
 
 
Page 65                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      �   -11  Implied consent of operator of vehicle to submit to
 
 2 testing to determine alcohol concentration and drug content.(a)
 
 3 Any person who operates a vehicle upon a public way, street,
 
 4 road, or highway or on or in the waters of the State shall be
 
 5 deemed to have given consent, subject to this part, to a test or
 
 6 tests approved by the director of health of the person's breath,
 
 7 blood, or urine for the purpose of determining alcohol
 
 8 concentration or drug content of the person's breath, blood, or
 
 9 urine, as applicable.
 
10      (b)  The test or tests shall be administered at the request
 
11 of a law enforcement officer having probable cause to believe the
 
12 person operating a vehicle upon a public way, street, road, or
 
13 highway or on or in the waters of the State is under the
 
14 influence of an intoxicant or is under the age of twenty-one and
 
15 has consumed a measurable amount of alcohol concentration, only
 
16 after:
 
17      (1)  A lawful arrest; and
 
18      (2)  The person has been informed by a law enforcement
 
19           officer of the sanctions under part III and section
 
20              -85;
 
21      (c)  If there is probable cause to believe that a person is
 
22 in violation of section    -84, as a result of being under the
 

 
 
 
Page 66                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 age of twenty-one and having consumed a measurable amount of
 
 2 alcohol, or section    -81, as a result of having consumed
 
 3 alcohol, then the person shall elect to take a breath or blood
 
 4 test, or both, for the purpose of determining the alcohol
 
 5 concentration.
 
 6      (d)  If there is probable cause to believe that a person is
 
 7 in violation of section    -81, as a result of having consumed
 
 8 any drug, then the person shall elect to take a blood or urine
 
 9 test, or both, for the purpose of determining the drug content.
 
10 Drug content shall be measured by the presence of any drug or its
 
11 metabolic products or both.
 
12      (e)  A person who chooses to submit to a breath test under
 
13 subsection (c) also may be requested to submit to a blood or
 
14 urine test, if the officer has probable cause to believe that the
 
15 person was operating a vehicle under the influence of any drug
 
16 under section    -81 and the officer has probable cause to
 
17 believe that a blood or urine test will reveal evidence of the
 
18 person being under the influence of any drug.  The officer shall
 
19 state in the officer's report the facts upon which that belief is
 
20 based.  The person shall elect to take a blood or urine test, or
 
21 both, for the purpose of determining the person's drug content.
 
22 Results of a blood or urine test conducted to determine drug
 

 
 
 
Page 67                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 content also shall be admissible for the purpose of determining
 
 2 the person's alcohol concentration.  Submission to testing for
 
 3 drugs under subsection (d) or this subsection shall not be a
 
 4 substitute for alcohol tests requested under subsection (c).
 
 5      (f)  Any person tested pursuant to this section who is
 
 6 convicted or has the person's license suspended or revoked
 
 7 pursuant to this chapter may be ordered to reimburse the county
 
 8 for the cost of any blood or urine tests, or both, conducted
 
 9 pursuant to this section.  If reimbursement is so ordered, the
 
10 court or the director, as applicable, shall order the person to
 
11 make restitution in a lump sum, or in a series of prorated
 
12 installments, to the police department or other agency incurring
 
13 the expense of the blood or urine test, or both.
 
14      �   -12  Persons qualified to take blood specimen.  No
 
15 person, other than a physician, registered nurse, phlebotomist
 
16 deemed qualified by the director of a clinical laboratory that is
 
17 licensed by the State, or person licensed in a clinical
 
18 laboratory occupation under section 321-13, may withdraw blood
 
19 for the purpose of determining the alcohol concentration or drug
 
20 content therein.  This limitation shall not apply to the taking
 
21 of a breath or urine specimen.
 
22      �   -13  Additional tests.  The person tested may choose any
 

 
 
 
Page 68                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 physician, registered nurse, or person licensed in a clinical
 
 2 laboratory occupation under section 321-13 to withdraw blood and
 
 3 also may choose any qualified person to administer a test or
 
 4 tests in addition to any administered at the direction of a law
 
 5 enforcement officer.  The result of the test or tests may be used
 
 6 as provided in section    -3.  The failure or inability to obtain
 
 7 an additional test by a person shall not preclude the admission
 
 8 of the test or tests administered at the direction of a law
 
 9 enforcement officer.  Upon the request of the person who is
 
10 tested, full information concerning the test or tests
 
11 administered shall be made available to that person.
 
12      �   -14  Consent of person incapable of refusal not
 
13 withdrawn.  The consent of a person deemed to have given the
 
14 person's consent pursuant to section    -11 shall not be
 
15 withdrawn by reason of the person's being dead, unconscious, or
 
16 in any other condition that renders the person incapable of
 
17 consenting to examination, and the test may be given.  In such
 
18 event, a test of the person's blood or urine shall be
 
19 administered.
 
20      �   -15  Refusal to submit to breath, blood, or urine test;
 
21 subject to administrative revocation proceedings.  If a person
 
22 under arrest refuses to submit to a breath, blood, or urine test,
 

 
 
 
Page 69                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 none shall be given, except as provided in section    -21, but
 
 2 the person shall be subject to the procedures and sanctions under
 
 3 part III or section    -85, as applicable.
 
 4      �   -16  Proof of refusal; admissibility.  If a legally
 
 5 arrested person refuses to submit to a test of the person's
 
 6 breath, blood, or urine, evidence of refusal shall be admissible
 
 7 only in a proceeding under part III or section    -85 and shall
 
 8 not be admissible in any other action or proceeding, whether
 
 9 civil or criminal.
 
10      �   -17  Other evidence not excluded.  This part shall not
 
11 limit the introduction of any other competent evidence bearing on
 
12 the question of whether the person was under the influence of an
 
13 intoxicant or was operating a vehicle while under the age of
 
14 twenty-one and after consuming a measurable amount of alcohol.
 
15      �   -18  Test results to be collected.  The results of any
 
16 test for intoxicants made upon any person, including any person
 
17 who has been fatally injured in a traffic collision or the
 
18 operator of a vehicle involved in a collision that resulted in
 
19 another person's death, shall be sent to the state director of
 
20 transportation, who shall compile the data without revealing the
 
21 identity of any individual tested.  This data shall be available
 
22 only to the state and county highway safety councils and to other
 

 
 
 
Page 70                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 agencies the director of transportation deems necessary and
 
 2 advisable.
 
 3      �   -19  Authorization to establish intoxicant control
 
 4 roadblock programs.  The police departments of the respective
 
 5 counties may establish and implement intoxicant control roadblock
 
 6 programs in accordance with the minimum standards and guidelines
 
 7 provided in section    -20.  The chief of police in any county
 
 8 establishing an intoxicant control roadblock program pursuant to
 
 9 this section shall specify the procedures to be followed in
 
10 carrying out the program in rules adopted under chapter 91;
 
11 provided that the procedures shall be in conformity with and not
 
12 more intrusive than the standards and guidelines described in
 
13 section    -20.  In the case of internal police standards that do
 
14 not fall within the definition of "rule" under section 91-1(4),
 
15 failure to comply scrupulously with such internal police
 
16 procedures shall not invalidate a roadblock that otherwise meets
 
17 the minimum statutory criteria provided in section    -20.
 
18      �   -20  Minimum standards for roadblock procedures.(a)
 
19 Every intoxicant control roadblock program shall:
 
20      (1)  Require that all vehicles approaching roadblocks be
 
21           stopped or that certain vehicles be stopped by
 
22           selecting vehicles in a specified numerical sequence or
 

 
 
 
Page 71                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           pattern;
 
 2      (2)  Require that roadblocks be located at fixed locations
 
 3           for a maximum three-hour period;
 
 4      (3)  Provide for the following minimum safety precautions at
 
 5           every roadblock:
 
 6           (A)  Proper illumination;
 
 7           (B)  Off-road or otherwise safe and secure holding
 
 8                areas for vehicles involved in any roadblock stop;
 
 9           (C)  Uniformed law enforcement officers carrying proper
 
10                identification;
 
11           (D)  Adequate advance warning of the fact and purpose
 
12                of the roadblocks, either by sign posts, flares,
 
13                or other alternative methods;
 
14           (E)  Termination of roadblocks at the discretion of the
 
15                law enforcement officer in charge where traffic
 
16                congestion would otherwise result; and
 
17      (4)  Provide for a sufficient quantity and visibility of
 
18           uniformed officers and official vehicles to ensure
 
19           speedy compliance with the purpose of the roadblocks
 
20           and to move traffic with a minimum of inconvenience.
 
21      (b)  Nothing in this section shall prohibit the
 
22 establishment of procedures to make roadblock programs less
 

 
 
 
Page 72                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 intrusive than required by the minimum standards provided in this
 
 2 section.
 
 3      �   -21  Applicable scope of part; mandatory testing in the
 
 4 event of a collision resulting in injury or death.(a)  Nothing
 
 5 in this part shall be construed to prevent a law enforcement
 
 6 officer from obtaining a sample of breath, blood, or urine, from
 
 7 the operator of any vehicle involved in a collision resulting in
 
 8 injury to or the death of any person, as evidence that the
 
 9 operator was under the influence of an intoxicant.
 
10      (b)  If a health care provider who is providing medical
 
11 care, in a health care facility, to any person involved in a
 
12 vehicle collision:
 
13      (1)  Becomes aware, as a result of any blood or urine test
 
14           performed in the course of medical treatment, that:
 
15           (A)  The alcohol concentration in the person's blood
 
16                meets or exceeds the amount specified in section
 
17                   -81(a)(4); or
 
18           (B)  The persons's blood or urine contains one or more
 
19                drugs that are capable of impairing a person's
 
20                ability to operate a vehicle in a careful and
 
21                prudent manner; and
 
22      (2)  Has a reasonable belief that the person was the
 

 
 
 
Page 73                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           operator of a vehicle involved in the collision,
 
 2 the health care provider shall notify, as soon as reasonably
 
 3 possible, any law enforcement officer present at the health care
 
 4 facility to investigate the collision.  If no law enforcement
 
 5 officer is present, the health care provider shall notify the
 
 6 county police department in the county where the collision
 
 7 occurred.  If the health care provider is aware of any blood or
 
 8 urine test result, as provided in paragraph (1), but lacks
 
 9 information to form a reasonable belief as to the identity of the
 
10 operator involved in a vehicle collision, as provided in
 
11 paragraph (2), then the health care provider shall give notice to
 
12 a law enforcement officer present or to the county police
 
13 department, as applicable, for each person involved in a vehicle
 
14 collision whose alcohol concentration in the person's blood meets
 
15 or exceeds the amount specified in section    -81(a)(4) or whose
 
16 blood or urine contains one or more drugs.  The notice by the
 
17 health care provider shall consist of the name of the person
 
18 being treated, the blood alcohol concentration or drug content
 
19 disclosed by the test, and the date and time of the
 
20 administration of the test.  This notice shall be deemed to
 
21 satisfy the intoxication element necessary to establish the
 
22 probable cause requirement set forth in subsection (c).
 

 
 
 
Page 74                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (c)  In the event of a collision resulting in injury or
 
 2 death and if a law enforcement officer has probable cause to
 
 3 believe that a person involved in the collision has committed a
 
 4 violation of section 707-702.5, 707-703, 707-704, 707-705,
 
 5 707-706, or    -81, the law enforcement officer shall request
 
 6 that a sample of blood or urine be recovered from the vehicle
 
 7 operator or any other person suspected of committing a violation
 
 8 of section 707-702.5, 707-703, 707-704, 707-705, 707-706, or
 
 9    -81.
 
10      (d)  The law enforcement officer shall make the request
 
11 under subsection (c) to the hospital or medical facility treating
 
12 the person from whom the blood or urine is to be recovered.  Upon
 
13 the request of the law enforcement officer that blood or urine be
 
14 recovered pursuant to this section, and except where the
 
15 responsible attending personnel at the hospital or medical
 
16 facility determines in good faith that recovering or attempting
 
17 to recover blood or urine from the person represents an imminent
 
18 threat to the health of the medical personnel or others, the
 
19 hospital or medical facility shall:
 
20      (1)  Provide the law enforcement officer with the blood or
 
21           urine sample requested;
 
22      (2)  Recover the sample in compliance with section 321-161;
 

 
 
 
Page 75                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           and
 
 2      (3)  Assign a person authorized under section    -12 to
 
 3           withdraw the blood sample or obtain the urine.
 
 4      (e)  Any person complying with this section shall be exempt
 
 5 from liability pursuant to section 663-1.9 as a result of
 
 6 compliance.
 
 7      (f)  As used in this section, unless the context otherwise
 
 8 requires:
 
 9      "Health care facility" includes any program, institution,
 
10 place, building, or agency, or portion thereof, private or
 
11 public, whether organized for profit or not, that is used,
 
12 operated, or designed to provide medical diagnosis, treatment, or
 
13 rehabilitative or preventive care to any person.  The term
 
14 includes health care facilities that are commonly referred to as
 
15 hospitals, outpatient clinics, organized ambulatory health care
 
16 facilities, emergency care facilities and centers, health
 
17 maintenance organizations, and others providing similarly
 
18 organized services regardless of nomenclature.
 
19      "Health care provider" means a person who is licensed,
 
20 certified, or otherwise authorized or permitted by law to
 
21 administer health care in the ordinary course of business or
 
22 practice of a profession.
 

 
 
 
Page 76                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      �   -22  Presence of drugs or metabolic products;
 
 2 admissibility.  Any results reflecting the presence of drugs or
 
 3 metabolic products obtained from a blood or urine specimen
 
 4 obtained under this part shall not be admissible in any
 
 5 proceeding brought under chapter 329 or 712.
 
 6           PART III.  ADMINISTRATIVE REVOCATION PROCESS
 
 7      �   -31  Notice of administrative revocation; effect.  As
 
 8 used in this part, the notice of administrative revocation:
 
 9      (1)  Establishes that the respondent's license and privilege
 
10           to operate a vehicle in the State or on or in the
 
11           waters of the State shall be terminated:
 
12           (A)  Thirty days after the date the notice of
 
13                administrative revocation is issued in the case of
 
14                an alcohol related offense;
 
15           (B)  Forty-four days after the date the notice of
 
16                administrative revocation is issued in the case of
 
17                a drug related offense; or
 
18           (C)  Such later date as is established by the director
 
19                under section    -38,
 
20           if the director administratively revokes the
 
21           respondent's license;
 
22      (2)  Establishes the date on which administrative revocation
 

 
 
 
Page 77                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           proceedings against the respondent were initiated; and
 
 2      (3)  Serves as a temporary permit, if applicable, to operate
 
 3           a vehicle as provided in section    -33.
 
 4      �   -32  Criminal prosecution.(a)  Criminal prosecution
 
 5 under section    -81 may be commenced concurrently with
 
 6 administrative revocation proceedings under this part; provided
 
 7 that documentary and testimonial evidence provided by the
 
 8 respondent during the administrative proceeding shall not be
 
 9 admissible against the respondent in any proceeding under section
 
10    -81 arising out of the same occurrence.
 
11      (b)  When a person's license and privilege to operate a
 
12 vehicle is revoked under this part and the person also is
 
13 convicted of an offense under section    -81 arising out of the
 
14 same occurrence, the total period of revocation imposed in the
 
15 two proceedings shall not exceed the longer period of revocation
 
16 imposed in either proceeding. If the person is convicted under
 
17 section    -81 prior to completion of administrative proceedings,
 
18 the person shall surrender the temporary permit issued under this
 
19 part at the time of entry of a plea of guilty or no contest,
 
20 entry of a verdict of guilty, or of sentencing, whichever occurs
 
21 first.
 
22      �   -33  Probable cause determination; issuance of notice of
 

 


 

Page 78                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 administrative revocation; procedures.(a)  Whenever a person is
 
 2 arrested for a violation of section    -81 on a determination by
 
 3 the arresting law enforcement officer that:
 
 4      (1)  There was reasonable suspicion to stop the vehicle or
 
 5           the vehicle was stopped at an intoxicant control
 
 6           roadblock established and operated in compliance with
 
 7           sections    -19 and    -20; and
 
 8      (2)  There was probable cause to believe that the person was
 
 9           operating the vehicle while under the influence of an
 
10           intoxicant;
 
11 the law enforcement officer immediately shall take possession of
 
12 any license held by the person and request the person to take a
 
13 test for concentration of alcohol in the blood, in the case of an
 
14 alcohol related offense, or a test for drug content in the blood
 
15 or urine, in the case of a drug related offense.  The law
 
16 enforcement officer shall inform the person that, in the case of
 
17 an alcohol related offense, the person shall elect to take a
 
18 breath test or a blood test, or both, pursuant to section    -11.
 
19 In the case of a drug related offense, the person shall elect to
 
20 take a blood test or a urine test, or both, pursuant to section
 
21    -11.  The law enforcement officer also shall inform the person
 
22 of the sanctions under this part, including the sanction for
 

 
Page 79                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 refusing to take a breath, blood, or urine test.  Thereafter, the
 
 2 law enforcement officer shall complete and issue to the person a
 
 3 notice of administrative revocation and shall indicate thereon
 
 4 whether the notice shall serve as a temporary permit.  The notice
 
 5 shall serve as a temporary permit, unless, at the time of arrest:
 
 6 the person was unlicensed; the person's license or privilege to
 
 7 operate a vehicle was revoked or suspended; or the person had no
 
 8 license in the person's possession.
 
 9      (b)  Whenever a law enforcement officer determines that, as
 
10 the result of a blood or urine test performed pursuant to section
 
11    -21(b) or (c), there is probable cause to believe that a
 
12 person being treated in a hospital or medical facility has
 
13 violated section    -81, the law enforcement officer immediately
 
14 shall take possession of any license held by the person and shall
 
15 complete and issue to the person a notice of administrative
 
16 revocation and indicate thereon whether the notice shall serve as
 
17 a temporary permit.  The notice shall serve as a temporary permit
 
18 unless, at the time the notice was issued:  the person was
 
19 unlicensed; the person's license or privilege to operate a
 
20 vehicle was revoked or suspended; or the person had no license in
 
21 the person's possession.
 
22      �   -34  Notice of administrative revocation; contents.(a)
 

 
 
 
Page 80                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 The notice of administrative revocation shall provide, at a
 
 2 minimum and in clear language, the following general information
 
 3 relating to administrative revocation:
 
 4      (1)  The statutory authority for administrative revocation;
 
 5      (2)  An explanation of the distinction between
 
 6           administrative revocation and a suspension or
 
 7           revocation imposed under section    -81; and
 
 8      (3)  That criminal charges filed pursuant to section    -81
 
 9           may be prosecuted concurrently with the administrative
 
10           action.
 
11      (b)  The notice, when completed by the law enforcement
 
12 officer and issued to the respondent, shall contain at a minimum
 
13 the following information relating to the incident that gives
 
14 rise to the issuance of the notice of administrative revocation:
 
15      (1)  Information identifying the respondent;
 
16      (2)  The specific violation for which the respondent was
 
17           arrested;
 
18      (3)  The date issued and the date the administrative
 
19           revocation is scheduled to go into effect;
 
20      (4)  That the respondent was informed of the sanctions of
 
21           this part and of the consequences of refusing to be
 
22           tested for alcohol concentration of the blood or drug
 

 
 
 
Page 81                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           content in the blood or urine and whether the
 
 2           respondent consented to be tested;
 
 3      (5)  The expiration date of the temporary permit; and
 
 4      (6)  That the issuance of the notice of administrative
 
 5           revocation will be administratively reviewed.
 
 6      (c)  The notice shall provide, at a minimum, the following
 
 7 information relating to the administrative review:
 
 8      (1)  That the review is automatic;
 
 9      (2)  That the respondent, within three days of the issuance
 
10           of the notice of administrative revocation in the case
 
11           of an alcohol related offense and within seventeen days
 
12           of the issuance of the notice of administrative
 
13           revocation in the case of a drug related offense, may
 
14           submit written information demonstrating why the
 
15           respondent's license and privilege to operate a vehicle
 
16           should not be administratively revoked;
 
17      (3)  The address or location where the respondent may submit
 
18           the information;
 
19      (4)  That the respondent is not entitled to be present or
 
20           represented at the administrative review; and
 
21      (5)  That the administrative review decision shall be mailed
 
22           to the respondent:
 

 
 
 
Page 82                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           (A)  No later than eight days after the date of the
 
 2                issuance of the notice of administrative
 
 3                revocation in the case of an alcohol related
 
 4                offense; and
 
 5           (B)  No later than twenty-two days after the date of
 
 6                the issuance of the notice of administrative
 
 7                revocation in the case of a drug related offense.
 
 8      (d)  The notice shall state that, if the respondent's
 
 9 license and privilege to operate a vehicle is not
 
10 administratively revoked after the review, the respondent's
 
11 license shall be returned, along with a certified statement that
 
12 the administrative revocation proceedings have been terminated.
 
13      (e)  The notice shall state that, if the respondent's
 
14 license and privilege to operate a vehicle are administratively
 
15 revoked after the review, a decision shall be mailed to the
 
16 respondent, or to the parent or guardian of the respondent if the
 
17 respondent is under the age of eighteen, that shall contain, at a
 
18 minimum, the following information:
 
19      (1)  The reasons why the respondent's license and privilege
 
20           to operate a vehicle were administratively revoked;
 
21      (2)  That the respondent may request the director, within
 
22           six days of the date the decision is mailed, to
 

 
 
 
Page 83                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           schedule an administrative hearing to review the
 
 2           administrative revocation;
 
 3      (3)  That, if the respondent's request for an administrative
 
 4           hearing is received by the director within six days of
 
 5           the date the decision was mailed, the hearing shall be
 
 6           scheduled to commence:
 
 7           (A)  No later than twenty-five days after the date of
 
 8                the issuance of the notice of administrative
 
 9                revocation in the case of an alcohol related
 
10                offense; and
 
11           (B)  No later than thirty-nine days after the date of
 
12                the issuance of the notice of administrative
 
13                revocation in the case of a drug related offense;
 
14      (4)  The procedure to request an administrative hearing;
 
15      (5)  That failure to request an administrative hearing
 
16           within the time provided shall cause the administrative
 
17           revocation to take effect for the period and under the
 
18           conditions established by the director in the decision;
 
19      (6)  That the respondent may regain the right to a hearing
 
20           by requesting the director, within sixty days after the
 
21           issuance of the notice of administrative revocation, to
 
22           schedule a hearing;
 

 
 
 
Page 84                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (7)  That the director shall schedule the hearing to
 
 2           commence no later than thirty days after a request
 
 3           under paragraph (6) is received, but that, except as
 
 4           provided in section    -38(j), the temporary permit
 
 5           shall not be extended if the respondent fails to
 
 6           request an administrative hearing within the initial
 
 7           six-day period provided for that purpose;
 
 8      (8)  That failure to attend the hearing shall cause the
 
 9           administrative revocation to take effect for the period
 
10           and under the conditions indicated; and
 
11      (9)  The duration of the administrative revocation and
 
12           other conditions that may be imposed, including:
 
13           referral to the driver's education program for alcohol
 
14           counseling, or substance abuse counseling or treatment,
 
15           or both.
 
16      (f)  The notice shall provide, at a minimum, the following
 
17 information relating to administrative hearings:
 
18      (1)  That the respondent shall have six days from the date
 
19           the administrative review decision was mailed to
 
20           request that an administrative hearing be scheduled;
 
21      (2)  That a request for an administrative hearing and
 
22           payment of $30 fee, unless waived, shall entitle the
 

 
 
 
Page 85                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           respondent to review and copy, prior to the hearing,
 
 2           all documents that were considered at the
 
 3           administrative review, including the arrest report and
 
 4           the sworn statements;
 
 5      (3)  That the respondent may be represented by an attorney,
 
 6           submit evidence, give testimony, and present and cross-
 
 7           examine witnesses;
 
 8      (4)  That, in cases where the respondent is under the age of
 
 9           eighteen, a parent or guardian must be present; and
 
10      (5)  That a written decision shall be mailed no later than
 
11           five days after completion of the hearing.
 
12      (g)  The notice shall state that, if the administrative
 
13 revocation is reversed after the hearing, the respondent's
 
14 license, along with a certified statement that the administrative
 
15 revocation proceedings have been terminated.
 
16      (h)  The notice shall state that, if the administrative
 
17 revocation is sustained at the hearing, a written decision shall
 
18 be mailed to the respondent, or to the parent or guardian of the
 
19 respondent if the respondent is under the age of eighteen, that
 
20 shall contain, at a minimum, the following information:
 
21      (1)  The effective date of the administrative revocation;
 
22      (2)  The duration of the administrative revocation;
 

 
 
 
Page 86                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (3)  Other conditions that may be imposed by law; and
 
 2      (4)  The right to obtain judicial review.
 
 3      (i)  The notice shall state that failure of the respondent,
 
 4 or of the parent or guardian of the respondent if the respondent
 
 5 is under the age of eighteen, to attend a scheduled hearing shall
 
 6 cause the administrative revocation to take effect as provided in
 
 7 the administrative review decision.
 
 8      �   -35  Immediate restoration of license.(a)  In cases
 
 9 involving an alcohol related offense, if a test conducted in
 
10 accordance with part II and section 321-161 and the rules adopted
 
11 thereunder shows that a respondent had an alcohol concentration
 
12 less than .08, the director or the arresting law enforcement
 
13 agency immediately shall return the respondent's license, along
 
14 with a certified statement that administrative revocation
 
15 proceedings have been terminated with prejudice.
 
16      (b)  In cases involving a drug related offense, if a test
 
17 conducted in accordance with part II and section 321-161 and the
 
18 rules adopted thereunder fails to show the presence, in the
 
19 respondent's blood or urine, of any drug that is capable of
 
20 impairing the respondent's ability to operate a vehicle in a
 
21 careful and prudent manner, the director or the arresting law
 
22 enforcement agency immediately shall return the respondent's
 

 
 
 
Page 87                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 license, along with a certified statement that administrative
 
 2 revocation proceedings have been terminated with prejudice.
 
 3      �   -36  Documents required to be submitted for
 
 4 administrative review; sworn statements of law enforcement
 
 5 officials.  (a)  Whenever a respondent has been arrested for a
 
 6 violation of section    -81 and submits to a test that
 
 7 establishes:  the respondent's alcohol concentration was .08 or
 
 8 more; the presence, in the respondent's blood or urine, of any
 
 9 drug that is capable of impairing the respondent's ability to
 
10 operate a vehicle in a careful and prudent manner; or whenever a
 
11 respondent has been involved in a collision resulting in injury
 
12 or death and a blood or urine test performed pursuant to section
 
13    -21 establishes that the respondent's alcohol concentration
 
14 was .08 or more or establishes the presence in the respondent's
 
15 blood or urine of any drug that is capable of impairing the
 
16 respondent's ability to operate a vehicle in a careful and
 
17 prudent manner, the following shall be forwarded immediately to
 
18 the director:
 
19      (1)  A copy of the arrest report or the report of the
 
20           officer who issued the notice of administrative
 
21           revocation to the person involved in a collision
 
22           resulting in injury or death and the sworn statement of
 

 
 
 
Page 88                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           the arresting law enforcement officer or the officer
 
 2           who issued the notice of administrative revocation,
 
 3           stating facts that establish that:
 
 4           (A)  There was reasonable suspicion to stop the
 
 5                vehicle, the vehicle was stopped at an intoxicant
 
 6                control roadblock established and operated in
 
 7                compliance with sections    -19 and    -20, or the
 
 8                respondent was tested pursuant to section    -21;
 
 9           (B)  There was probable cause to believe that the
 
10                respondent had been operating the vehicle while
 
11                under the influence of an intoxicant;
 
12           (C)  The respondent was informed of: the sanctions of
 
13                this part; that criminal charges may be filed; and
 
14                the consequences of refusing to be tested for
 
15                alcohol concentration or drug content; and
 
16           (D)  The respondent agreed to be tested or the person
 
17                was tested pursuant to section    -21;
 
18      (2)  In a case involving an alcohol related offense, the
 
19           sworn statement of the person responsible for
 
20           maintenance of the testing equipment, stating facts
 
21           that establish that, pursuant to section 321-161 and
 
22           rules adopted thereunder:
 

 
 
 
Page 89                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           (A)  The equipment used to conduct the test was
 
 2                approved for use as an alcohol testing device in
 
 3                this State;
 
 4           (B)  The person had been trained and at the time the
 
 5                test was conducted was certified and capable of
 
 6                maintaining the testing equipment; and
 
 7           (C)  The testing equipment used had been properly
 
 8                maintained and was in good working condition when
 
 9                the test was conducted;
 
10      (3)  In a case involving an alcohol related offense, the
 
11           sworn statement of the person who conducted the test,
 
12           stating facts that establish that, pursuant to section
 
13           321-161 and rules adopted thereunder:
 
14           (A)  The person was trained and at the time the test
 
15                was conducted was certified and capable of
 
16                operating the testing equipment;
 
17           (B)  The person followed the procedures established for
 
18                conducting the test;
 
19           (C)  The equipment used to conduct the test functioned
 
20                in accordance with operating procedures and
 
21                indicated that the respondent's alcohol
 
22                concentration was at, or above, the prohibited
 

 
 
 
Page 90                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1                level; and
 
 2           (D)  The person whose breath or blood was tested is the
 
 3                respondent;
 
 4      (4)  In a case involving a drug related offense, the sworn
 
 5           statement of the person responsible for maintenance of
 
 6           the testing equipment, stating facts that establish
 
 7           that, pursuant to section 321-161 and rules adopted
 
 8           thereunder:
 
 9           (A)  The equipment used to conduct the test was
 
10                approved for use in drug testing;
 
11           (B)  The person conducting the test had been trained
 
12                and, at the time of the test, was certified and
 
13                capable of maintaining the testing equipment; and
 
14           (C)  The testing equipment used had been properly
 
15                maintained and was in good working condition when
 
16                the test was conducted;
 
17      (5)  In a case involving an drug related offense, the sworn
 
18           statement of the person who conducted the test, stating
 
19           facts that establish that, pursuant to section 321-161
 
20           and rules adopted thereunder:
 
21           (A)  At the time the test was conducted, the person was
 
22                trained and capable of operating the testing
 

 
 
 
Page 91                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1                equipment;
 
 2           (B)  The person followed the procedures established for
 
 3                conducting the test;
 
 4           (C)  The equipment used to conduct the test functioned
 
 5                in accordance with operating procedures and
 
 6                indicated the presence of one or more drugs or
 
 7                their metabolites in the respondent's blood or
 
 8                urine; and
 
 9           (D)  The person whose blood or urine was tested is the
 
10                respondent;
 
11      (6)  A copy of the notice of administrative revocation
 
12           issued by the law enforcement officer to the
 
13           respondent;
 
14      (7)  Any driver's license taken into possession by the law
 
15           enforcement officer; and
 
16      (8)  A listing of any prior alcohol or drug enforcement
 
17           contacts involving the respondent.
 
18      (b)  Whenever a respondent has been arrested for a violation
 
19 of section    -81 and refuses to submit to a test to determine
 
20 alcohol concentration or drug content in the blood or urine, the
 
21 following shall be forwarded immediately to the director:
 
22      (1)  A copy of the arrest report and the sworn statement of
 

 
 
 
Page 92                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           the arresting law enforcement officer, stating facts
 
 2           that establish that:
 
 3           (A)  There was reasonable suspicion to stop the vehicle
 
 4                or the vehicle was stopped at an intoxicant
 
 5                control roadblock established and operated in
 
 6                compliance with sections    -19 and    -20;
 
 7           (B)  There was probable cause to believe that the
 
 8                respondent had been operating the vehicle while
 
 9                under the influence of an intoxicant;
 
10           (C)  The respondent was informed of:
 
11                (i)  The sanctions of this part; 
 
12               (ii)  The possibility that criminal charges may be
 
13                     filed; and 
 
14              (iii)  The probable consequences of refusing to be
 
15                     tested for alcohol concentration or drug
 
16                     content in the blood or urine; and
 
17           (D)  The respondent refused to be tested;
 
18      (2)  A copy of the notice of administrative revocation
 
19           issued to the respondent;
 
20      (3)  Any driver's license taken into possession; and
 
21      (4)  A listing of all alcohol and drug enforcement contacts
 
22           involving the respondent.
 

 
 
 
Page 93                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      �   -37  Administrative review; procedures; decision.(a)
 
 2 The director automatically shall review the issuance of a notice
 
 3 of administrative revocation and shall issue a written decision
 
 4 administratively revoking the license and privilege to operate a
 
 5 vehicle or rescinding the notice of administrative revocation.
 
 6 The written review decision shall be mailed to the respondent, or
 
 7 to the parent or guardian of the respondent if the respondent is
 
 8 under the age of eighteen, no later than:
 
 9      (1)  Eight days after the date the notice was issued in a
 
10           case involving an alcohol related offense; or
 
11      (2)  Twenty-two days after the date the notice was issued in
 
12           a case involving a drug related offense.
 
13      (b)  The respondent shall have the opportunity to
 
14 demonstrate in writing why the respondent's license and privilege
 
15 to operate a vehicle should not be administratively revoked and,
 
16 within three days of receiving the notice of administrative
 
17 revocation, as provided in section    -33, shall submit any
 
18 written information, either by mail or in person, to the
 
19 director's office or to any office or address designated by the
 
20 director for that purpose.
 
21      (c)  In conducting the administrative review, the director
 
22 shall consider:
 

 
 
 
Page 94                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (1)  Any sworn or unsworn written statement or other written
 
 2           evidence provided by the respondent;
 
 3      (2)  The breath, blood, or urine test results, if any; and
 
 4      (3)  The sworn statement of any law enforcement official or
 
 5           other evidence or information required by section
 
 6              -36.
 
 7      (d)  The director shall administratively revoke the
 
 8 respondent's license and privilege to operate a vehicle if the
 
 9 director determines that:
 
10      (1)  There existed reasonable suspicion to stop the vehicle,
 
11           the vehicle was stopped at an intoxicant control
 
12           roadblock established and operated in compliance with
 
13           sections    -19 and    -20, or the person was tested
 
14           pursuant to section    -21;
 
15      (2)  There existed probable cause to believe that the
 
16           respondent operated the vehicle while under the
 
17           influence of an intoxicant; and
 
18      (3)  The evidence proves by a preponderance that:
 
19           (A)  The respondent operated the vehicle while under
 
20                the influence of an intoxicant; or
 
21           (B)  The respondent operated the vehicle and refused to
 
22                submit to a breath, blood, or urine test after
 

 
 
 
Page 95                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1                being informed of the sanctions of this part.
 
 2      (e)  If the evidence does not support administrative
 
 3 revocation, the director shall rescind the notice of
 
 4 administrative revocation and return the respondent's license,
 
 5 along with a certified statement that administrative revocation
 
 6 proceedings have been terminated.
 
 7      (f)  If the director administratively revokes the
 
 8 respondent's license and privilege to operate a vehicle, the
 
 9 director shall mail a written review decision to the respondent,
 
10 or to the parent or guardian of the respondent if the respondent
 
11 is under the age of eighteen.  The written review decision shall:
 
12      (1)  State the reasons for the administrative revocation;
 
13      (2)  Indicate that the respondent has six days from the date
 
14           the decision is mailed to request an administrative
 
15           hearing to review the director's decision;
 
16      (3)  Explain the procedure by which to request an
 
17           administrative hearing;
 
18      (4)  Be accompanied by a form, postage prepaid, that the
 
19           respondent may fill out and mail in order to request an
 
20           administrative hearing;
 
21      (5)  Inform the respondent of the right to review and copy
 
22           all documents considered at the review, including the
 

 
 
 
Page 96                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           arrest report and the sworn statements of the law
 
 2           enforcement officials, prior to the hearing; and
 
 3      (6)  State that the respondent may be represented by counsel
 
 4           at the hearing, submit evidence, give testimony, and
 
 5           present and cross-examine witnesses, including the
 
 6           arresting officer.
 
 7      (g)  Failure of the respondent to request a hearing within
 
 8 the time provided in section    -38(a) shall cause the
 
 9 administrative revocation to take effect for the period and under
 
10 the conditions provided in the administrative review decision
 
11 issued by the director under this section.  The respondent may
 
12 regain the right to an administrative hearing by requesting the
 
13 director, within sixty days of the issuance of the notice of
 
14 administrative revocation as provided in section    -33, to
 
15 schedule an administrative hearing.  The administrative hearing
 
16 shall be scheduled to commence no later than thirty days after
 
17 the request is received by the director.  The administrative
 
18 review decision issued by the director under this section shall
 
19 explain clearly the consequences of failure to request an
 
20 administrative hearing and the procedure by which the respondent
 
21 may regain the right to a hearing.
 
22      �   -38  Administrative hearing; procedure; decision.(a)
 

 
 
 
Page 97                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 If the director administratively revokes the respondent's license
 
 2 and privilege to operate a vehicle after the administrative
 
 3 review, the respondent may request an administrative hearing to
 
 4 review the decision within six days of the date the
 
 5 administrative review decision is mailed.  If the request for
 
 6 hearing is received by the director within six days of the date
 
 7 the decision is mailed, the hearing shall be scheduled to
 
 8 commence no later than:
 
 9      (1)  Twenty-five days from the date the notice of
 
10           administrative revocation was issued in a case
 
11           involving an alcohol related offense; or
 
12      (2)  Thirty-nine days from the date the notice of
 
13           administrative revocation was issued in a case
 
14           involving a drug related offense.
 
15 The director may continue the hearing only as provided in
 
16 subsection (j).
 
17      (b)  The hearing shall be held at a place designated by the
 
18 director, as close to the location where the notice of
 
19 administrative revocation was issued as practical.
 
20      (c)  The respondent may be represented by counsel and, if
 
21 the respondent is under the age of eighteen, must be accompanied
 
22 by a parent or guardian.
 

 
 
 
Page 98                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (d)  The director shall conduct the hearing and have
 
 2 authority to:
 
 3      (1)  Administer oaths and affirmations;
 
 4      (2)  Examine witnesses and take testimony;
 
 5      (3)  Receive and determine the relevance of evidence;
 
 6      (4)  Issue subpoenas, take depositions, or cause depositions
 
 7           or interrogatories to be taken;
 
 8      (5)  Regulate the course and conduct of the hearing; and
 
 9      (6)  Make a final ruling.
 
10      (e)  The director shall affirm the administrative revocation
 
11 only if the director determines that:
 
12      (1)  There existed reasonable suspicion to stop the vehicle,
 
13           the vehicle was stopped at an intoxicant control
 
14           roadblock established and operated in compliance with
 
15           sections    -19 and    -20, or the person was tested
 
16           pursuant to section    -21;
 
17      (2)  There existed probable cause to believe that the
 
18           respondent operated the vehicle while under the
 
19           influence of an intoxicant; and
 
20      (3)  The evidence proves by a preponderance that:
 
21           (A)  The respondent operated the vehicle while under
 
22                the influence of an intoxicant; or
 

 
 
 
Page 99                                                    1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           (B)  The respondent operated the vehicle and, after
 
 2                being informed of the sanctions of this part,
 
 3                refused to submit to a breath, blood, or urine
 
 4                test.
 
 5      (f)  The respondent's prior alcohol and drug enforcement
 
 6 contacts shall be entered into evidence.
 
 7      (g)  The sworn statements provided in section    -36 shall
 
 8 be admitted into evidence.  Upon notice to the director, no later
 
 9 than five days prior to the hearing, that the respondent wishes
 
10 to examine a law enforcement official who made a sworn statement,
 
11 the director shall issue a subpoena for the official to appear at
 
12 the hearing.  If the official cannot appear, the official, at the
 
13 discretion of the director, may testify by telephone.
 
14      (h)  The hearing shall be recorded in a manner to be
 
15 determined by the director.
 
16      (i)  The director's decision shall be rendered in writing
 
17 and mailed to the respondent, or to the parent or guardian of the
 
18 respondent if the respondent is under the age of eighteen, no
 
19 later than five days after the hearing is concluded.  If the
 
20 decision is to reverse the administrative revocation, the
 
21 director shall return the respondent's license, along with a
 
22 certified statement that administrative revocation proceedings
 

 
 
 
Page 100                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 have been terminated.  If the decision sustains the
 
 2 administrative revocation, the director shall mail to the
 
 3 respondent a written decision indicating the duration of the
 
 4 administrative revocation and any other conditions or
 
 5 restrictions as may be imposed pursuant to section    -41.
 
 6      (j)  For good cause shown, the director may grant a
 
 7 continuance either of the commencement of the hearing or of a
 
 8 hearing that has already commenced.  If a continuance is granted
 
 9 at the request of the director, the director shall extend the
 
10 validity of the temporary permit, unless otherwise prohibited,
 
11 for a period not to exceed the period of the continuance.  If a
 
12 continuance is granted at the request of the respondent, the
 
13 director shall not extend the validity of the temporary permit.
 
14 For purposes of this section, a continuance means a delay in the
 
15 commencement of the hearing or an interruption of a hearing that
 
16 has commenced, other than for recesses during the day or at the
 
17 end of the day or week.
 
18      (k)  If the respondent fails to appear at the hearing, or if
 
19 an respondent under the age of eighteen fails to appear with a
 
20 parent or guardian, administrative revocation shall take effect
 
21 for the period and under the conditions established by the
 
22 director in the administrative review decision issued by the
 

 
 
 
Page 101                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 director under section    -37.
 
 2      �   -39  Fees and costs.  The director may assess and
 
 3 collect a $30 fee from the respondent to cover the costs of
 
 4 processing the respondent's request for an administrative
 
 5 hearing.  These costs include but should not be limited to: the
 
 6 cost of photocopying documents; the issuance of subpoenas,
 
 7 conditional permits, and relicensing forms; interpreter services;
 
 8 law enforcement official mileage fees; and other similar costs.
 
 9 The director may waive the fee in the case of an indigent
 
10 respondent, upon an appropriate inquiry into the financial
 
11 circumstances of the respondent seeking the waiver and an
 
12 affidavit or a certificate signed by the respondent demonstrating
 
13 the respondent's financial inability to pay the fee.
 
14      �   -40  Judicial review; procedure.  (a)  If the director
 
15 sustains the administrative revocation after an administrative
 
16 hearing, the respondent, or parent or guardian of an respondent
 
17 under the age of eighteen, may file a petition for judicial
 
18 review within thirty days after the administrative hearing
 
19 decision is mailed.  The petition shall be filed with the clerk
 
20 of the district court in the district in which the incident
 
21 occurred and shall be accompanied by the required filing fee for
 
22 civil actions.  The filing of the petition shall not operate as a
 

 
 
 
Page 102                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 stay of the administrative revocation, nor shall the court stay
 
 2 the administrative revocation pending the outcome of the judicial
 
 3 review.  The petition shall be appropriately captioned.  The
 
 4 petition shall state with specificity the grounds upon which the
 
 5 petitioner seeks reversal of the administrative revocation.
 
 6      (b)  The court shall schedule the judicial review as quickly
 
 7 as practicable, and the review shall be on the record of the
 
 8 administrative hearing without taking of additional testimony or
 
 9 evidence.  If the petitioner fails to appear without just cause
 
10 or, in the case of a petitioner under the age of eighteen, the
 
11 petitioner fails to appear with a parent or guardian, the court
 
12 shall affirm the administrative revocation.
 
13      (c)  The sole issues before the court shall be whether the
 
14 director:
 
15      (1)  Exceeded constitutional or statutory authority;
 
16      (2)  Erroneously interpreted the law;
 
17      (3)  Acted in an arbitrary or capricious manner;
 
18      (4)  Committed an abuse of discretion; or
 
19      (5)  Made a determination that was unsupported by the
 
20           evidence in the record.
 
21      (d)  The court shall not remand the matter back to the
 
22 director for further proceedings consistent with its order.
 

 
 
 
Page 103                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      �   -41  Effective date and period of administrative
 
 2 revocation; criteria.  (a)  Unless an administrative revocation
 
 3 is reversed or the temporary permit is extended by the director,
 
 4 administrative revocation shall become effective on the day
 
 5 specified in the notice of administrative revocation.  Except as
 
 6 provided in section    -44, no license and privilege to operate a
 
 7 vehicle shall be restored under any circumstances and no
 
 8 conditional permit shall be issued during the administrative
 
 9 revocation period.  Upon completion of the administrative
 
10 revocation period, the respondent may reapply and be reissued a
 
11 license pursuant to section    -45.
 
12      (b)  The periods of administrative revocation that shall be
 
13 imposed under this part are as follows:
 
14      (1)  A minimum of three months up to a maximum of one year,
 
15           if the respondent's record shows no prior alcohol or
 
16           drug enforcement contact during the five years
 
17           preceding the date the notice of administrative
 
18           revocation was issued;
 
19      (2)  A minimum of one year up to a maximum of two years, if
 
20           the respondent's record shows one prior alcohol or drug
 
21           enforcement contact during the five years preceding the
 
22           date the notice of administrative revocation was
 

 
 
 
Page 104                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           issued;
 
 2      (3)  A minimum of two years up to a maximum of four years,
 
 3           if the respondent's record shows two prior alcohol or
 
 4           drug enforcement contacts during the seven years
 
 5           preceding the date the notice of administrative
 
 6           revocation was issued;
 
 7      (4)  For life, if the respondent's record shows three or
 
 8           more prior alcohol or drug enforcement contacts during
 
 9           the ten years preceding the date the notice of
 
10           administrative revocation was issued; or
 
11      (5)  For respondents under the age of eighteen years who
 
12           were arrested for a violation of section    -81, either
 
13           for the period remaining until the respondent's
 
14           eighteenth birthday or for the appropriate revocation
 
15           period provided in paragraphs (1) to (4) or in
 
16           subsection (c), if applicable, whichever is longer.
 
17      (c)  If a respondent has refused to be tested after being
 
18 informed of the sanctions of this part, the revocation imposed
 
19 under subsection (b)(1), (2), and (3) shall be for a period of
 
20 one year, two years, and four years, respectively.
 
21      (d)  Whenever a license and privilege to operate a vehicle
 
22 is administratively revoked under this part, the respondent shall
 

 
 
 
Page 105                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 be referred to a certified substance abuse counselor for an
 
 2 assessment of the respondent's substance abuse or dependence and
 
 3 the need for treatment.  The counselor shall submit a report with
 
 4 recommendations to the director.  If the counselor's assessment
 
 5 establishes that the extent of the respondent's substance abuse
 
 6 or dependence warrants treatment, the director may so order.  All
 
 7 costs for assessment and treatment shall be paid by the
 
 8 respondent.
 
 9      (e)  Alcohol and drug enforcement contacts that occurred
 
10 prior to the effective date of this Act shall be counted in
 
11 determining the administrative revocation period.
 
12      (f)  The requirement to provide proof of financial
 
13 responsibility pursuant to section 287-20 shall not be based upon
 
14 a revocation under subsection (b)(1).
 
15      �   -42  Notice to other states.  When a nonresident's
 
16 driving and boating privileges are administratively revoked under
 
17 this part, the director shall:
 
18      (1)  Notify, in writing, the officials in charge of traffic
 
19           control, boating control, or public safety in the
 
20           nonresident's home state, and in any other state in
 
21           which the nonresident has driving and boating
 
22           privileges, of the action taken in this State; and
 

 
 
 
Page 106                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (2)  Return to the appropriate issuing authority in the
 
 2           other states any license seized under section    -33.
 
 3      �   -43  Administrative Procedure Act.  Neither the
 
 4 administrative review nor the administrative hearing provided
 
 5 under this part shall be subject to the contested case
 
 6 requirements of chapter 91.  The availability of administrative
 
 7 review of an order of administrative revocation shall have no
 
 8 effect upon the availability of judicial review under this part.
 
 9      �   -44  Conditional permits.  (a)  During the
 
10 administrative hearing, the director, at the request of a
 
11 respondent who is subject to administrative revocation for a
 
12 period as provided in section    -41(b)(1), may issue a
 
13 conditional permit that will allow the respondent, after a
 
14 minimum period of absolute license revocation of thirty days, to
 
15 drive for the remainder of the revocation period, provided that
 
16 one or more of the following conditions are met:
 
17      (1)  The respondent is gainfully employed in a position that
 
18           requires driving and will be discharged if the
 
19           respondent's driving privileges are administratively
 
20           revoked; or
 
21      (2)  The respondent has no access to alternative
 
22           transportation and therefore must drive to work or to a
 

 
 
 
Page 107                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           substance abuse treatment facility or counselor for
 
 2           treatment ordered by the director under section    -41.
 
 3 The director shall not issue a conditional permit to a respondent
 
 4 whose license, during the conditional permit period, is expired
 
 5 or is suspended or revoked as a result of action other than the
 
 6 instant revocation for which the arrestee is requesting a
 
 7 conditional permit under this section.
 
 8      (b)  A request made pursuant to subsection (a)(1) shall be
 
 9 accompanied by:
 
10      (1)  A sworn statement from the respondent containing facts
 
11           establishing that the respondent currently is employed
 
12           in a position that requires driving and that the
 
13           respondent will be discharged if not allowed to drive;
 
14           and
 
15      (2)  A sworn statement from the respondent's employer
 
16           establishing that the employer will, in fact, discharge
 
17           the respondent if the respondent is prohibited from
 
18           driving.
 
19      (c)  A request made pursuant to subsection (a)(2) shall be
 
20 accompanied by a sworn statement by the respondent attesting to
 
21 the specific facts upon which the request is based, which
 
22 statement shall be verified by the director.
 

 
 
 
Page 108                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (d)  A conditional permit may include restrictions allowing
 
 2 the respondent to drive: 
 
 3      (1)  Only during hours of employment for activities solely
 
 4           within the scope of the employment;
 
 5      (2)  Only during daylight hours; or
 
 6      (3)  Only for specified purposes or to specified
 
 7           destinations.
 
 8 In addition, the director may impose any other appropriate
 
 9 restrictions.
 
10      (e)  The duration of the conditional permit shall be
 
11 determined on the basis of the criteria set forth in subsections
 
12 (b) and (c).
 
13      (f)  If the respondent violates the conditions imposed under
 
14 this section, the conditional permit shall be rescinded, and
 
15 administrative revocation shall be immediate for the appropriate
 
16 period authorized by law.
 
17      �   -45  Eligibility for relicensing.  To be eligible for
 
18 relicensing after a period of administrative revocation has
 
19 expired, the person shall:
 
20      (1)  Submit proof to the director of compliance with all
 
21           conditions imposed by the director or by the court;
 
22      (2)  Obtain a certified statement from the director
 

 
 
 
Page 109                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           indicating eligibility for relicensing;
 
 2      (3)  Present the certified statement to the appropriate
 
 3           licensing official; and
 
 4      (4)  Successfully complete each requirement for obtaining a
 
 5           new license in this State, including payment of all
 
 6           applicable fees.
 
 7      �   -46  Computation of time.  The time in which any act
 
 8 provided in this part is to be done is computed by excluding the
 
 9 first day and including the last, unless the last day is a
 
10 Saturday, Sunday, or holiday, and then it also is excluded.
 
11                   PART IV.  PROHIBITED CONDUCT
 
12      �   -81  Operating a vehicle under the influence of an
 
13 intoxicant. (a)  A person commits the offense of operating a
 
14 vehicle under the influence of an intoxicant if the person
 
15 operates or assumes actual physical control of a vehicle:
 
16      (1)  While under the influence of alcohol in an amount
 
17           sufficient to impair the person's normal mental
 
18           faculties or ability to care for the person and guard
 
19           against casualty; 
 
20      (2)  While under the influence of any drug that impairs the
 
21           person's ability to operate the vehicle in a careful
 
22           and prudent manner;
 

 
 
 
Page 110                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (3)  With .08 or more grams of alcohol per two hundred ten
 
 2           liters of breath; or
 
 3      (4)  With .08 or more grams of alcohol per one hundred
 
 4           milliliters or cubic centimeters of blood.
 
 5      (b)  A person committing the offense of operating a vehicle
 
 6 under the influence of an intoxicant shall be sentenced as
 
 7 follows without possibility of probation or suspension of
 
 8 sentence:
 
 9      (1)  For the first offense, or any offense not preceded
 
10           within a five-year period by a conviction for an
 
11           offense under this section or section    -4(a):
 
12           (A)  A fourteen-hour minimum substance abuse
 
13                rehabilitation program, including education and
 
14                counseling, or other comparable program deemed
 
15                appropriate by the court; and
 
16           (B)  Ninety-day prompt suspension of license and
 
17                privilege to operate a vehicle with absolute
 
18                prohibition from operating a vehicle during the
 
19                suspension period, or the court may impose, in
 
20                lieu of the ninety-day prompt suspension of
 
21                license, a minimum thirty-day prompt suspension of
 
22                license with absolute prohibition from operating a
 

 
 
 
Page 111                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1                vehicle and, for the remainder of the ninety-day
 
 2                period, a restriction on the license that allows
 
 3                the person to drive for limited work-related
 
 4                purposes and to participate in substance abuse
 
 5                treatment programs; and
 
 6           (C)  Any one or more of the following:
 
 7                (i)  Seventy-two hours of community service work;
 
 8               (ii)  Not less than forty-eight hours and not more
 
 9                     than five days of imprisonment; or
 
10              (iii)  A fine of not less than $150 but not more
 
11                     than $1,000.
 
12      (2)  For an offense that occurs within five years of a prior
 
13           conviction for an offense under this section or section
 
14              -4(a):
 
15           (A)  Prompt suspension of license and privilege to
 
16                operate a vehicle for a period of one year with an
 
17                absolute prohibition from operating a vehicle
 
18                during the suspension period;
 
19           (B)  Either one of the following:
 
20                (i)  Not less than one-hundred hours of community
 
21                     service work; or
 
22               (ii)  Not less than forty-eight consecutive hours
 

 
 
 
Page 112                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1                     but not more than fourteen days of
 
 2                     imprisonment of which at least forty-eight
 
 3                     hours shall be served consecutively; and
 
 4           (C)  A fine of not less than $500 but not more than
 
 5                $1,500.
 
 6      (3)  For an offense that occurs within five years of two
 
 7           prior convictions for offenses under this section or
 
 8           section    -4(a):
 
 9           (A)  A fine of not less than $500 but not more than
 
10                $2,500;
 
11           (B)  Revocation of license and privilege to operate a
 
12                vehicle for a period not less than one year but
 
13                not more than five years; and
 
14           (C)  Not less than ten days but not more than thirty
 
15                days imprisonment of which at least forty-eight
 
16                hours shall be served consecutively.
 
17      (4)  For an offense that occurs within ten years of three or
 
18           more prior convictions for offenses under this section,
 
19           section 707-702.5, or section    -4(a):
 
20           (1)  Mandatory revocation of license and privilege to
 
21                operate a vehicle for a period not less than one
 
22                year but not more than five years;
 

 
 
 
Page 113                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           (2)  Not less than ten days imprisonment, of which at
 
 2                least forty-eight hours shall be served
 
 3                consecutively; and
 
 4           (3)  Referral to a substance abuse counselor as
 
 5                provided in subsection (d).
 
 6           An offense under this paragraph is a class C felony.
 
 7      (5)  Any person eighteen years of age or older who is
 
 8           convicted under this section and who operated a vehicle
 
 9           with a passenger, in or on the vehicle, who was younger
 
10           than fifteen years of age, shall be sentenced to an
 
11           additional mandatory fine of $500 and an additional
 
12           mandatory term of imprisonment of forty-eight hours;
 
13           provided, however, that the total term of imprisonment
 
14           for a person sentenced under this paragraph and
 
15           paragraphs (1), (2), or (3) shall not exceed thirty
 
16           days.
 
17      (c)  Notwithstanding any other law to the contrary, any:
 
18      (1)  Conviction under this section or section    -4(a); or
 
19      (2)  Conviction in any other state or federal jurisdiction
 
20           for an offense that is comparable to operating or being
 
21           in physical control of a vehicle while having either an
 
22           unlawful alcohol concentration or an unlawful drug
 

 
 
 
Page 114                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           content in the blood or urine or while under the
 
 2           influence of an intoxicant;
 
 3 shall be considered a prior conviction for the purposes of
 
 4 imposing sentence under this section.  No license and privilege
 
 5 suspension or revocation shall be imposed pursuant to this
 
 6 subsection if the person's license and privilege to operate a
 
 7 vehicle has previously been administratively revoked pursuant to
 
 8 part III for the same act; provided that, if the administrative
 
 9 suspension or revocation is subsequently reversed, the person's
 
10 license and privilege to operate a vehicle shall be revoked as
 
11 provided in this subsection.
 
12      (d)  Whenever a court sentences a person pursuant to
 
13 subsection (b), it also shall require that the offender be
 
14 referred to a substance abuse counselor who has been certified
 
15 pursuant to section 321-193 for an assessment of the offender's
 
16 substance abuse or dependence and the need for appropriate
 
17 treatment.  The counselor shall submit a report with
 
18 recommendations to the court.  The court shall require the
 
19 offender to obtain appropriate treatment if the counselor's
 
20 assessment establishes the offender's substance abuse or
 
21 dependence.  All cost for assessment or treatment or both shall
 
22 be borne by the offender.
 

 
 
 
Page 115                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (e)  Notwithstanding any other law to the contrary, whenever
 
 2 a court revokes a person's driver's license pursuant to this
 
 3 section, the examiner of drivers shall not grant to the person a
 
 4 new driver's license until the expiration of the period of
 
 5 revocation determined by the court.  After the period of
 
 6 revocation is completed, the person may apply for and the
 
 7 examiner of drivers may grant to the person a new driver's
 
 8 license.
 
 9      (f)  Any person sentenced under this section may be ordered
 
10 to reimburse the county for the cost of any blood or urine tests
 
11 conducted pursuant to section    -11.  The court shall order the
 
12 person to make restitution in a lump sum, or in a series of
 
13 prorated installments, to the police department or other agency
 
14 incurring the expense of the blood or urine test.
 
15      (g)  The requirement to provide proof of financial
 
16 responsibility pursuant to section 287-20 shall not be based upon
 
17 a sentence imposed under subsection (b)(1).
 
18      (h)  As used in this section, the term "examiner of drivers"
 
19 has the same meaning as provided in section 286-2.
 
20      �   -82  Operating a vehicle after license and privilege
 
21 have been suspended or revoked for operating a vehicle under the
 
22 influence of an intoxicant; penalties.  (a)  No person whose
 

 
 
 
Page 116                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 license and privilege to operate a vehicle has been revoked,
 
 2 suspended, or otherwise restricted pursuant to part III or
 
 3 section    -81 or to part VII or part XIV of chapter 286 or
 
 4 section 200-81, 291-4, 291-4.4, or 291-7, as those provisions
 
 5 were in effect on December 31, 2001, shall operate or assume
 
 6 actual physical control of any vehicle:
 
 7      (1)  In violation of any restrictions placed on the person's
 
 8           license; 
 
 9      (2)  While the person's license remains suspended or
 
10           revoked; or
 
11      (3)  While the person's privilege to operate a vehicle has
 
12           been revoked.
 
13      (b)  Any person convicted of violating this section shall be
 
14 sentenced as follows:
 
15      (1)  For a first offense, or any offense not preceded within
 
16           a five-year period by conviction for an offense under
 
17           this section:
 
18           (A)  A term of imprisonment of not less than three
 
19                consecutive days but not more than thirty days;
 
20           (B)  A fine of not less than $250 but not more than
 
21                $1,000; and
 
22           (C)  Revocation of license and privilege to operate a
 

 
 
 
Page 117                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1                vehicle for an additional year;
 
 2      (2)  For an offense that occurs within five years of a prior
 
 3           conviction for an offense under this section:
 
 4           (A)  Thirty days imprisonment;
 
 5           (B)  A $1,000 fine; and
 
 6           (C)  Revocation of license and privilege to operate a
 
 7                vehicle for an additional two years; and
 
 8      (3)  For an offense that occurs within five years of two or
 
 9           more prior convictions for offenses under this section:
 
10           (A)  One year imprisonment;
 
11           (B)  A $2,000 fine; and
 
12           (C)  Permanent revocation of the person's license and
 
13                privilege to operate a vehicle.
 
14 The period of revocation shall commence upon the release of the
 
15 person from the period of imprisonment imposed pursuant to this
 
16 section.
 
17      �   -83  Records of convictions and suspensions of operating
 
18 privileges to be maintained.  The department of land and natural
 
19 resources shall maintain a record of all persons convicted of
 
20 offenses or violations involving vessels under this part and the
 
21 period of suspension of operator privileges ordered by the court
 
22 under this part.
 

 
 
 
Page 118                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      �   -84  Operating a vehicle after consuming a measurable
 
 2 amount of alcohol; persons under the age of twenty-one.  (a)  It
 
 3 shall be unlawful for any person under the age of twenty-one
 
 4 years to operate any vehicle with a measurable amount of alcohol
 
 5 concentration.  A law enforcement officer may arrest a person
 
 6 under this section when the officer has probable cause to believe
 
 7 the arrested person is under the age of twenty-one and had been
 
 8 operating a motor vehicle upon a public way, street, road, or
 
 9 highway or on or in the waters of the State with a measurable
 
10 amount of alcohol.  For purposes of this section, "measurable
 
11 amount of alcohol" means a test result equal to or greater than
 
12 .02 but less than .08 grams of alcohol per one hundred
 
13 milliliters or cubic centimeters of blood or equal to or greater
 
14 than .02 but less than .08 grams of alcohol per two hundred ten
 
15 liters of breath.
 
16      (b)  A person who violates this section shall be sentenced
 
17 as follows:
 
18      (1)  For a first violation or any violation not preceded
 
19           within a five-year period by a prior alcohol
 
20           enforcement contact:
 
21           (A)  The court shall impose:
 
22                (i)  A requirement that the person and, if the
 

 
 
 
Page 119                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1                     person is under the age of eighteen, the
 
 2                     person's parent or guardian attend an alcohol
 
 3                     abuse education and counseling program for
 
 4                     not more than ten hours; and
 
 5               (ii)  One hundred eighty-day prompt suspension of
 
 6                     license and privilege to operate a vehicle
 
 7                     with absolute prohibition from operating a
 
 8                     vehicle during the suspension period, or in
 
 9                     the case of a person eighteen years of age or
 
10                     older, the court may impose, in lieu of the
 
11                     one hundred eighty-day prompt suspension of
 
12                     license, a minimum thirty-day prompt
 
13                     suspension of license with absolute
 
14                     prohibition from operating a vehicle and, for
 
15                     the remainder of the one hundred eighty-day
 
16                     period, a restriction on the license that
 
17                     allows the person to drive for limited work-
 
18                     related purposes and to participate in
 
19                     alcohol abuse education and  treatment
 
20                     programs; and
 
21           (B)  In addition, the court may impose any one or more
 
22                of the following:
 

 
 
 
Page 120                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1                (i)  Not more than thirty-six hours of community
 
 2                     service work; or
 
 3               (ii)  A fine of not less than $150 but not more
 
 4                     than $500.
 
 5      (2)  For a violation that occurs within five years of a
 
 6           prior alcohol enforcement contact:
 
 7           (A)  The court shall impose prompt suspension of
 
 8                license and privilege to operate a vehicle for a
 
 9                period of one year with absolute prohibition from
 
10                operating a vehicle during the suspension period;
 
11                and
 
12           (B)  In addition, the court may impose any of the
 
13                following:
 
14                (i)  Not more than fifty hours of community
 
15                     service work; or
 
16               (ii)  A fine of not less than $300 but not more
 
17                     than $1,000.
 
18      (3)  For a violation that occurs within five years of two
 
19           prior alcohol enforcement contacts:
 
20           (A)  The court shall impose revocation of license and
 
21                privilege to operate a vehicle for a period of two
 
22                years; and
 

 
 
 
Page 121                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           (B)  In addition, the court may impose any of the
 
 2                following:
 
 3                (i)  Not more than one hundred hours of community
 
 4                     service work; or
 
 5               (ii)  A fine of not less than $300 but not more
 
 6                     than $1,000.
 
 7      (c)  Notwithstanding any other law to the contrary, any
 
 8 conviction or plea under this section shall be considered a prior
 
 9 alcohol enforcement contact.
 
10      (d)  Whenever a court sentences a person pursuant to
 
11 subsection (b)(2) or (3), it also shall require that the person
 
12 be referred to a substance abuse counselor who has been certified
 
13 pursuant to section 321-193 for an assessment of the person's
 
14 alcohol abuse or dependence and the need for appropriate
 
15 treatment.  The counselor shall submit a report with
 
16 recommendations to the court.  The court shall require the person
 
17 to obtain appropriate treatment if the counselor's assessment
 
18 establishes the person's alcohol abuse or dependence.  All costs
 
19 for assessment or treatment or both shall be borne by the person
 
20 or by the person's parent or guardian, if the person is under the
 
21 age of eighteen.
 
22      (e)  Notwithstanding section 831-3.2 or any other law to the
 

 
 
 
Page 122                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 contrary, a person convicted of a first-time violation under
 
 2 subsection (b)(1), who had no prior alcohol enforcement contacts,
 
 3 may apply to the court for an expungement order upon attaining
 
 4 the age of twenty-one, or thereafter, if the person has fulfilled
 
 5 the terms of the sentence imposed by the court and has had no
 
 6 subsequent alcohol or drug-related enforcement contacts.
 
 7      (f)  Notwithstanding any other law to the contrary, whenever
 
 8 a court revokes a person's driver's license pursuant to this
 
 9 section, the examiner of drivers shall not grant to the person an
 
10 application for a new driver's license for a period to be
 
11 determined by the court.
 
12      (g)  Any person sentenced under this section may be ordered
 
13 to reimburse the county for the cost of any blood tests conducted
 
14 pursuant to section    -11.  The court shall order the person to
 
15 make restitution in a lump sum, or in a series of prorated
 
16 installments, to the police department or other agency incurring
 
17 the expense of the blood test.
 
18      (h)  The requirement to provide proof of financial
 
19 responsibility pursuant to section 287-20 shall not be based upon
 
20 a sentence imposed under subsection (b)(1).
 
21      (i)  Any person who violates this section shall be guilty of
 
22 a violation.
 

 
 
 
Page 123                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (j)  As used in this section, the terms "driver's license"
 
 2 and "examiner of drivers" have the same meanings as provided in
 
 3 section 286-2.
 
 4      �   -85  Refusal to submit to testing for measurable amount
 
 5 of alcohol; district court hearing; sanctions; appeals;
 
 6 admissibility.(a)  If a person under arrest for operating a
 
 7 vehicle after consuming a measurable amount of alcohol, pursuant
 
 8 to section    -84, refuses to submit to a breath or blood test,
 
 9 none shall be given, except as provided in section    -21, but
 
10 the arresting officer, as soon as practicable, shall submit an
 
11 affidavit to a district judge of the circuit in which the arrest
 
12 was made, stating:
 
13      (1)  That at the time of the arrest, the arresting officer
 
14           had probable cause to believe the arrested person was
 
15           under the age of twenty-one and had been operating a
 
16           vehicle upon a public way, street, road, or highway or
 
17           on or in the waters of the State with a measurable
 
18           amount of alcohol concentration;
 
19      (2)  That the arrested person had been informed of the
 
20           sanctions of this section; and
 
21      (3)  That the person had refused to submit to a breath or
 
22           blood test.
 

 
 
 
Page 124                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      (b)  Upon receipt of the affidavit, the district judge shall
 
 2 hold a hearing within twenty days.  The district judge shall hear
 
 3 and determine:
 
 4      (1)  Whether the arresting officer had probable cause to
 
 5           believe that the person was under the age of twenty-one
 
 6           and had been operating a vehicle upon a public way,
 
 7           street, road, or highway or on or in the waters of the
 
 8           State with a measurable amount of alcohol
 
 9           concentration;
 
10      (2)  Whether the person was lawfully arrested;
 
11      (3)  Whether the arresting officer had informed the person
 
12           of the sanctions of this section; and
 
13      (4)  Whether the person refused to submit to a test of the
 
14           person's breath or blood.
 
15      (c)  If the district judge finds the statements contained in
 
16 the affidavit are true, the judge shall suspend the arrested
 
17 person's license and privilege to operate a vehicle as follows:
 
18      (1)  For a first suspension, or any suspension not preceded
 
19           within a five-year period by a suspension under this
 
20           section, for a period of twelve months; and
 
21      (2)  For any subsequent suspension under this section, for a
 
22           period not less than two years and not more than five
 

 
 
 
Page 125                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           years.
 
 2      (d)  An order of a district court issued under this section
 
 3 may be appealed to the supreme court.
 
 4      (e)  If a legally arrested person under the age of twenty-
 
 5 one refuses to submit to a test of the person's breath or blood,
 
 6 proof of refusal shall be admissible only in a hearing under this
 
 7 section or part III of this chapter and shall not be admissible
 
 8 in any other action or proceeding, whether civil or criminal."
 
 9      SECTION 24.  Section 199-3, Hawaii Revised Statutes, is
 
10 amended by amending subsection (a) to read as follows:
 
11      "(a)  The conservation and resources enforcement officers,
 
12 with respect to all state lands, including public lands, state
 
13 parks, forest reserves, forests, aquatic life and wildlife areas,
 
14 Kaho`olawe island reserve, and any other lands and waters subject
 
15 to the jurisdiction of the department of land and natural
 
16 resources, shall:
 
17      (1)  Enforce title 12, chapters 6E and 6K, and rules adopted
 
18           thereunder;
 
19      (2)  Investigate complaints, gather evidence, conduct
 
20           investigations, and conduct field observations and
 
21           inspections as required or assigned;
 
22      (3)  Cooperate with enforcement authorities of the State,
 

 
 
 
Page 126                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           counties, and federal government in development of
 
 2           programs and mutual agreements for conservation and
 
 3           resources enforcement activities within the State;
 
 4      (4)  Cooperate with established search and rescue agencies
 
 5           of the counties and the federal government in
 
 6           developing plans and programs[,] and mutual aid
 
 7           agreements for search and rescue activities within the
 
 8           State;
 
 9      (5)  Check and verify all leases, permits, and licenses
 
10           issued by the department of land and natural resources;
 
11      (6)  Enforce the laws relating to firearms, ammunition, and
 
12           dangerous weapons contained in chapter 134;
 
13      (7)  Enforce the laws in chapter     relating to operating a
 
14           vessel on or in the waters of the State while using
 
15           intoxicants;
 
16     [(7)] (8)  Whether through a specifically designated marine
 
17           patrol or otherwise, enforce the rules in the areas of
 
18           boating safety, conservation, and search and rescue
 
19           relative to the control and management of boating
 
20           facilities owned or controlled by the State, ocean
 
21           waters, and navigable streams and any activities
 
22           thereon or therein, and beaches encumbered with
 

 
 
 
Page 127                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           easements in favor of the public, and the rules
 
 2           regulating vessels and their use in the waters of the
 
 3           State; and
 
 4     [(8)] (9)  Carry out [such] other duties and responsibilities
 
 5           as the board of land and natural resources from time to
 
 6           time may direct."
 
 7      SECTION 25.  Section 287-20, Hawaii Revised Statutes, is
 
 8 amended by amending subsections (a) and (b) to read as follows:
 
 9      "(a)  Whenever a driver's license has been suspended or
 
10 revoked:
 
11      (1)  Pursuant to [section 286-151.5 or part XIV of chapter
 
12           286,] section    -85 or part III of chapter    , except
 
13           as provided in section [291-4(f);]    -41(f);
 
14      (2)  Upon a conviction of any offense pursuant to law; or
 
15      (3)  In the case of minors, pursuant to part V of chapter
 
16           571,
 
17 the license shall not at any time thereafter be issued to the
 
18 person whose license has been suspended or revoked, nor shall the
 
19 person thereafter operate a motor vehicle, unless and until the
 
20 person has furnished and thereafter maintains proof of financial
 
21 responsibility; provided that this section shall not apply to a
 
22 license suspended pursuant to section [291-4.3(b)(1),]
 

 
 
 
Page 128                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1    -81(b)(1) or    -84(b)(1), any conviction of a moving
 
 2 violation, any administrative license suspension pursuant to
 
 3 chapter 291A, or the first conviction within a five-year period
 
 4 for driving without a valid motor vehicle insurance policy.
 
 5      (b)  Whenever by reason of a conviction of, or adjudication
 
 6 under part V of chapter 571 by reason of, any of the offenses
 
 7 listed in this subsection, under the laws of the State or
 
 8 ordinances of any [political subdivision,] county, a court of
 
 9 competent jurisdiction has discretion to revoke or suspend a
 
10 driver's license but does not revoke or suspend the license, the
 
11 administrator [shall] nevertheless, after the expiration of
 
12 thirty days from the date of conviction or adjudication, shall
 
13 suspend the license and shall keep the [same] license suspended,
 
14 and the person so convicted or adjudicated shall not thereafter
 
15 operate a motor vehicle, unless and until the person so convicted
 
16 or adjudicated furnishes and thereafter maintains proof of
 
17 financial responsibility.  The offenses referred to are:
 
18      (1)  Reckless or inattentive driving, operating a vehicle
 
19           while under the influence of an intoxicant, driving
 
20           while under the influence of intoxicating liquor,
 
21           driving while under the influence of drugs, and driving
 
22           while that person's license has been suspended or
 

 
 
 
Page 129                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           revoked, and operating a vehicle after license and
 
 2           privilege to operate a vehicle have been suspended or
 
 3           revoked, except when a person's license has been
 
 4           suspended or revoked for the first conviction of
 
 5           driving without a motor vehicle insurance policy; and
 
 6      (2)  Conviction or adjudication under part V of chapter 571
 
 7           by reason of any moving violation offense involving a
 
 8           motor vehicle if the motor vehicle is in any manner
 
 9           involved in an accident in which any person is killed
 
10           or injured, or in which damage to property results to
 
11           an apparent extent in excess of $3,000 and there are
 
12           reasonable grounds for the administrator to believe
 
13           that the defendant is at fault."
 
14      SECTION 26.  Section 663-1.9, Hawaii Revised Statutes, is
 
15 amended to read as follows:
 
16      "�663-1.9  Exception to liability for health care provider
 
17 authorized person withdrawing blood or urine at the direction of
 
18 a police officer.(a)  Any health care provider who, in good
 
19 faith in compliance with section [286-163,]    -21, provides
 
20 notice concerning the alcohol concentration of a person's blood
 
21 or drug content of a person's blood or urine shall be immune from
 
22 any civil liability in any action based upon the compliance.  The
 

 
 
 
Page 130                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 health care provider also shall [also] be immune from any civil
 
 2 liability for participating in any subsequent judicial proceeding
 
 3 relating to the person's compliance.
 
 4      (b)  Any authorized person who properly withdraws blood or
 
 5 collects urine from another person at the written request of a
 
 6 police officer for testing of the blood's [alcoholic] alcohol
 
 7 concentration or drug content[,] or the drug content of the
 
 8 urine, and any hospital, laboratory, or clinic, employing or
 
 9 utilizing the services of such person, and owning or leasing the
 
10 premises on which [such] the tests are performed, shall not be
 
11 liable for civil damages resulting from the authorized person's
 
12 acts or omissions in withdrawing the blood[,] or collecting
 
13 urine, except for such damages as may result from the authorized
 
14 person's gross negligence or wanton acts or omissions.
 
15      (c)  For the purpose of this section:
 
16      "Authorized person" means a person authorized under
 
17 section [286-152]    -12 to withdraw blood at the direction of a
 
18 police officer.
 
19      "Health care provider" has the same meaning as in
 
20 section [286-163.]    -21."
 
21      SECTION 27.  Chapter 200, part VII, Hawaii Revised Statutes,
 
22 is repealed.
 

 
 
 
Page 131                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1      SECTION 28.  Chapter 286, part VII, Hawaii Revised Statutes,
 
 2 is repealed.
 
 3      SECTION 29.  Chapter 286, part XIV, Hawaii Revised Statutes,
 
 4 is repealed.
 
 5      SECTION 30.  Section 291-4, Hawaii Revised Statutes, is
 
 6 repealed.
 
 7      ["�291-4 Driving under the influence of intoxicating
 
 8 liquor.(a)  A person commits the offense of driving under the
 
 9 influence of intoxicating liquor if:
 
10      (1)  The person operates or assumes actual physical control
 
11           of the operation of any vehicle while under the
 
12           influence of intoxicating liquor, meaning that the
 
13           person concerned is under the influence of intoxicating
 
14           liquor in an amount sufficient to impair the person's
 
15           normal mental faculties or ability to care for oneself
 
16           and guard against casualty; or
 
17      (2)  The person operates or assumes actual physical control
 
18           of the operation of any vehicle with .08 or more grams
 
19           of alcohol per one hundred milliliters or cubic
 
20           centimeters of blood or .08 or more grams of alcohol
 
21           per two hundred ten liters of breath.
 
22      (b)  A person committing the offense of driving under the
 

 
 
 
Page 132                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 influence of intoxicating liquor shall be sentenced as follows
 
 2 without possibility of probation or suspension of sentence:
 
 3      (1)  For the first offense, or any offense not preceded
 
 4           within a five-year period by a conviction for driving
 
 5           under the influence of intoxicating liquor under this
 
 6           section or section 291-4.4 by:
 
 7           (A)  A fourteen-hour minimum alcohol abuse
 
 8                rehabilitation program including education and
 
 9                counseling, or other comparable program deemed
 
10                appropriate by the court; and
 
11           (B)  Ninety-day prompt suspension of license with
 
12                absolute prohibition from operating a motor
 
13                vehicle during suspension of license, or the court
 
14                may impose, in lieu of the ninety-day prompt
 
15                suspension of license, a minimum thirty-day prompt
 
16                suspension of license with absolute prohibition
 
17                from operating a motor vehicle and, for the
 
18                remainder of the ninety-day period, a restriction
 
19                on the license that allows the person to drive for
 
20                limited work-related purposes and to participate
 
21                in alcoholism treatment programs; and
 
22           (C)  Any one or more of the following:
 

 
 
 
Page 133                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1                (i)  Seventy-two hours of community service work;
 
 2               (ii)  Not less than forty-eight hours and not more
 
 3                     than five days of imprisonment; or
 
 4              (iii)  A fine of not less than $150 but not more
 
 5                     than $1,000.
 
 6      (2)  For an offense that occurs within five years of a prior
 
 7           conviction for driving under the influence of
 
 8           intoxicating liquor under this section or section 291-
 
 9           4.4 by:
 
10           (A)  Prompt suspension of license for a period of one
 
11                year with the absolute prohibition from operating
 
12                a motor vehicle during suspension of license;
 
13           (B)  Either one of the following:
 
14                (i)  Not less than one hundred hours of community
 
15                     service work; or
 
16               (ii)  Not less than forty-eight consecutive hours
 
17                     but not more than fourteen days of
 
18                     imprisonment of which at least forty-eight
 
19                     hours shall be served consecutively; and
 
20           (C)  A fine of not less than $500 but not more than
 
21                $1,500.
 
22      (3)  For an offense that occurs within five years of two
 

 
 
 
Page 134                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1           prior convictions for driving under the influence of
 
 2           intoxicating liquor under this section or section 291-
 
 3           4.4 by:
 
 4           (A)  A fine of not less than $500 but not more than
 
 5                $2,500;
 
 6           (B)  Revocation of license for a period not less than
 
 7                one year but not more than five years; and
 
 8           (C)  Not less than ten days but not more than thirty
 
 9                days imprisonment of which at least forty-eight
 
10                hours shall be served consecutively.
 
11      (4)  Any person eighteen years of age or older, who is
 
12           convicted under this section and who operated or
 
13           assumed actual physical control of a vehicle with a
 
14           passenger, in or on the vehicle, who was younger than
 
15           fifteen years of age, shall be sentenced to an
 
16           additional mandatory fine of $500, and an additional
 
17           mandatory term of imprisonment of forty-eight hours;
 
18           provided, however, that the total term of imprisonment
 
19           for a person convicted under this section shall not
 
20           exceed thirty days.
 
21      Notwithstanding any other law to the contrary, any
 
22 conviction for driving under the influence of intoxicating liquor
 

 
 
 
Page 135                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 under this section or section 291-4.4 shall be considered a prior
 
 2 conviction for purposes of imposing sentence under this section.
 
 3      No license suspension or revocation shall be imposed
 
 4 pursuant to this subsection if the person's license has
 
 5 previously been administratively revoked pursuant to part XIV of
 
 6 chapter 286 for the same offense; provided that, if the
 
 7 administrative revocation is subsequently reversed, the person's
 
 8 license shall be suspended or revoked as provided in this
 
 9 subsection.
 
10      (c)  Whenever a court sentences a person pursuant to
 
11 subsection (b), it shall also require that the offender be
 
12 referred to a substance abuse counselor who has been certified
 
13 pursuant to section 321-193 for an assessment of the offender's
 
14 alcohol abuse or dependence and the need for appropriate
 
15 treatment.  The counselor shall submit a report with
 
16 recommendations to the court.  The court may require the offender
 
17 to obtain appropriate treatment if the counselor's assessment
 
18 establishes the offender's alcohol abuse or dependence.
 
19      All cost for assessment or treatment or both shall be borne
 
20 by the offender.
 
21      (d)  Notwithstanding any other law to the contrary, whenever
 
22 a court revokes a person's driver's license pursuant to the
 

 
 
 
Page 136                                                   1881
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        C.D. 1

 
 1 provisions of this section, the examiner of drivers shall not
 
 2 grant to the person an application for a new driver's license for
 
 3 a period to be determined by the court.
 
 4      (e)  Any person sentenced under this section may be ordered
 
 5 to reimburse the county for the cost of any blood tests conducted
 
 6 under section 286-152.  The court shall order the person to make
 
 7 restitution in a lump sum, or in a series of prorated
 
 8 installments, to the police department, or other agency incurring
 
 9 the expense of the blood test.
 
10      (f)  The requirement to provide proof of financial
 
11 responsibility pursuant to section 287-20 shall not be based upon
 
12 a revocation under part XIV of chapter 286 unless the person's
 
13 license had been previously revoked under that part in the
 
14 five-year period immediately preceding the revocation at issue,
 
15 nor shall the requirement to provide proof of financial
 
16 responsibility pursuant to section 287-20 be based upon a
 
17 sentence imposed under subsection (b)(1).
 
18      (g)  As used in this section the terms "driver", "driver's
 
19 license", and "examiner of drivers", shall have the same meanings
 
20 as provided in section 286-2 and the term "vehicle" shall have
 
21 the same meaning as provided in section 291C-1."]
 
22      SECTION 31.  Section 291-4.3, Hawaii Revised Statutes, is
 

 
 
 
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 1 repealed.
 
 2      "[�291-4.3  Driving after consuming a measurable amount of
 
 3 alcohol; persons under the age of twenty-one.  (a)  It shall be
 
 4 unlawful for any person under the age of twenty-one years to
 
 5 drive, operate, or assume actual physical control of the
 
 6 operation of any vehicle with a measurable amount of alcohol
 
 7 concentration.  A law enforcement officer may arrest a person
 
 8 under this section when the officer has probable cause to believe
 
 9 the arrested person is under the age of twenty-one and had been
 
10 driving or was in actual physical control of a motor vehicle or
 
11 moped upon the public highways with a measurable amount of
 
12 alcohol.  For purposes of this section, "measurable amount of
 
13 alcohol" means a test result equal to or greater than .02 but
 
14 less than .08 grams of alcohol per one hundred milliliters or
 
15 cubic centimeters of blood or equal to or greater than .02 but
 
16 less than .08 grams of alcohol per two hundred ten liters of
 
17 breath.
 
18      (b)  A person who violates this section shall be sentenced
 
19 as follows:
 
20      (1)  For a first violation or any violation not preceded
 
21           within a five-year period by a prior alcohol
 
22           enforcement contact:
 

 
 
 
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 1           (A)  The court shall impose:
 
 2                (i)  A requirement that the person and, if the
 
 3                     person is under the age of eighteen, the
 
 4                     person's parent or guardian attend an alcohol
 
 5                     abuse education and counseling program for
 
 6                     not more than ten hours; and
 
 7               (ii)  One hundred eighty-day prompt suspension of
 
 8                     license with absolute prohibition from
 
 9                     operating a motor vehicle during suspension
 
10                     of license, or in the case of a person
 
11                     eighteen years of age or older, the court may
 
12                     impose, in lieu of the one hundred eighty-day
 
13                     prompt suspension of license, a minimum
 
14                     thirty-day prompt suspension of license with
 
15                     absolute prohibition from operating a motor
 
16                     vehicle and, for the remainder of the one
 
17                     hundred eighty-day period, a restriction on
 
18                     the license that allows the person to drive
 
19                     for limited work-related purposes and to
 
20                     participate in alcohol abuse education and
 
21                     treatment programs; and
 
22           (B)  In addition, the court may impose any one or more
 

 
 
 
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 1                of the following:
 
 2                (i)  Not more than thirty-six hours of community
 
 3                     service work; or
 
 4               (ii)  A fine of not less than $150 but not more
 
 5                     than $500.
 
 6      (2)  For a violation that occurs within five years of a
 
 7           prior alcohol enforcement contact:
 
 8           (A)  The court shall impose prompt suspension of
 
 9                license for a period of one year with the absolute
 
10                prohibition from operating a motor vehicle during
 
11                suspension of license; and
 
12           (B)  In addition, the court may impose any of the
 
13                following:
 
14                (i)  Not more than fifty hours of community
 
15                     service work; or
 
16               (ii)  A fine of not less than $300 but not more
 
17                     than $1,000.
 
18      (3)  For a violation that occurs within five years of two
 
19           prior alcohol enforcement contacts:
 
20           (A)  The court shall impose revocation of license for a
 
21                period of two years; and
 
22           (B)  In addition, the court may impose any of the
 

 
 
 
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 1                following:
 
 2                (i)  Not more than one hundred hours of community
 
 3                     service work; or
 
 4               (ii)  A fine of not less than $300 but not more
 
 5                     than $1,000.
 
 6      (4)  Notwithstanding any other law to the contrary, any
 
 7           conviction or plea under this section shall be
 
 8           considered a prior alcohol enforcement contact.
 
 9      (c)  Whenever a court sentences a person pursuant to
 
10 subsection (b)(2) or (3), it also shall require that the person
 
11 be referred to a substance abuse counselor who has been certified
 
12 pursuant to section 321-193 for an assessment of the person's
 
13 alcohol abuse or dependence and the need for appropriate
 
14 treatment.  The counselor shall submit a report with
 
15 recommendations to the court.  The court shall require the person
 
16 to obtain appropriate treatment if the counselor's assessment
 
17 establishes the person's alcohol abuse or dependence.  All costs
 
18 for assessment or treatment or both shall be borne by the person
 
19 or by the person's parent or guardian, if the person is under the
 
20 age of eighteen.
 
21      (d)  Notwithstanding section 831-3.2 or any other law to the
 
22 contrary, a person convicted of a first-time violation under
 

 
 
 
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 1 subsection (b)(1), who had no prior alcohol enforcement contacts,
 
 2 may apply to the court for an expungement order upon attaining
 
 3 the age of twenty-one, or thereafter, if the person has fulfilled
 
 4 the terms of the sentence imposed by the court and has had no
 
 5 subsequent alcohol or drug-related enforcement contacts.
 
 6      (e)  Notwithstanding any other law to the contrary, whenever
 
 7 a court revokes a person's driver's license pursuant to this
 
 8 section, the examiner of drivers shall not grant to the person an
 
 9 application for a new driver's license for a period to be
 
10 determined by the court.
 
11      (f)  Any person sentenced under this section may be ordered
 
12 to reimburse the county for the cost of any blood tests conducted
 
13 pursuant to section 286-152.  The court shall order the person to
 
14 make restitution in a lump sum, or in a series of prorated
 
15 installments, to the police department or other agency incurring
 
16 the expense of the blood test.
 
17      (g)  The requirement to provide proof of financial
 
18 responsibility pursuant to section 287-20 shall not be based upon
 
19 a sentence imposed under subsection (b)(1).
 
20      (h)  Any person who violates this section shall be guilty of
 
21 a violation.
 
22      (i)  As used in this section, the terms "driver", "driver's
 

 
 
 
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 1 license", and "examiner of drivers", shall have the same meanings
 
 2 as provided in section 286-2, the term "alcohol enforcement
 
 3 contact" shall have the same meaning as in section 286-251, and
 
 4 the term "vehicle" shall have the same meaning as provided in
 
 5 section 291C-1."]
 
 6      SECTION 32.  Section 291-4.4. Hawaii Revised Statutes, is
 
 7 repealed.
 
 8      ["[�291-4.4]  Habitually driving under the influence of
 
 9 intoxicating liquor or drugs.(a)  A person commits the offense
 
10 of habitually driving under the influence of intoxicating liquor
 
11 or drugs if, during a ten-year period the person has been
 
12 convicted three or more times for a driving under the influence
 
13 offense; and
 
14      (1)  The person operates or assumes actual physical control
 
15           of the operation of any vehicle while under the
 
16           influence of intoxicating liquor, meaning that the
 
17           person is under the influence of intoxicating liquor in
 
18           an amount sufficient to impair the person's normal
 
19           mental faculties or ability to care for oneself and
 
20           guard against casualty;
 
21      (2)  The person operates or assumes actual physical control
 
22           of the operation of any vehicle with .08 or more grams
 

 
 
 
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 1           of alcohol per one hundred milliliters or cubic
 
 2           centimeters of blood or .08 or more grams of alcohol
 
 3           per two hundred ten liters of breath; or
 
 4      (3)  A person operates or assumes actual physical control of
 
 5           the operation of any vehicle while under the influence
 
 6           of any drug which impairs such person's ability to
 
 7           operate the vehicle in a careful and prudent manner.
 
 8           The term "drug" as used in this section shall mean any
 
 9           controlled substance as defined and enumerated on
 
10           schedules I through IV of chapter 329.
 
11      (b)  For the purposes of this section, a driving under the
 
12 influence offense means a violation of this section or section
 
13 291-4, 291-7, or 707-702.5, or violation of laws in another
 
14 jurisdiction that requires proof of each element of the offenses
 
15 punishable under either this section or section 291-4, 291-7, or
 
16 707-702.5 if committed in Hawaii.
 
17      (c)  Habitually driving under the influence of intoxicating
 
18 liquor or drugs is a class C felony."]
 
19      SECTION 33.  Section 291-4.5, Hawaii Revised Statutes, is
 
20 repealed.
 
21      ["�291-4.5  Driving after license suspended or revoked for
 
22 driving under the influence of intoxicating liquor; penalties.
 

 


 

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 1 (a)  No person whose driver's license has been revoked,
 
 2 suspended, or otherwise restricted pursuant to chapter 286 or
 
 3 section 291-4 or 291-7 shall operate a motor vehicle upon the
 
 4 highways of this State either while the person's license remains
 
 5 suspended or revoked or in violation of the restrictions placed
 
 6 on the person's license.  The period of suspension or revocation
 
 7 shall commence upon the release of the person from the period of
 
 8 imprisonment imposed pursuant to this section.
 
 9      (b)  Any person convicted of violating this section shall be
 
10 sentenced as follows:
 
11      (1)  For a first offense, or any offense not preceded within
 
12           a five-year period by a conviction under this section:
 
13           (A)  A term of imprisonment at least three consecutive
 
14                days but not more than thirty days;
 
15           (B)  A fine not less than $250 but not more than
 
16                $1,000; and
 
17           (C)  License suspension or revocation for an additional
 
18                year;
 
19      (2)  For an offense which occurs within five years of a
 
20           prior conviction under this section:
 
21           (A)  Thirty days imprisonment;
 
22           (B)  A fine of $1,000; and
 

 
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 1           (C)  License suspension or revocation for an additional
 
 2                two years; and
 
 3      (3)  For an offense that occurs within five years of two or
 
 4           more prior convictions under this section:
 
 5           (A)  One year imprisonment;
 
 6           (B)  A $2,000 fine; and
 
 7           (C)  Permanent revocation of the person's license."]
 
 8      SECTION 34.  Section 291-5, Hawaii Revised Statutes, is
 
 9 repealed.
 
10      ["�291-5 Evidence of intoxication.(a)  In any criminal
 
11 prosecution for a violation of section 291-4, .08 or more grams
 
12 of alcohol per one hundred milliliters or cubic centimeters of
 
13 the defendant's blood or .08 or more grams of alcohol per two
 
14 hundred ten liters of the defendant's breath within three hours
 
15 after the time of the alleged violation as shown by chemical
 
16 analysis or other approved analytical techniques of the
 
17 defendant's blood or breath shall be competent evidence that the
 
18 defendant was under the influence of intoxicating liquor at the
 
19 time of the alleged violation.
 
20      (b)  In any criminal prosecution for a violation of section
 
21 291-4, the amount of alcohol found in the defendant's blood or
 
22 breath within three hours after the time of the alleged violation
 

 
 
 
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 1 as shown by chemical analysis or other approved analytical
 
 2 techniques of the defendant's blood or breath shall be competent
 
 3 evidence that the defendant was under the influence of
 
 4 intoxicating liquor at the time of the alleged violation and
 
 5 shall give rise to the following presumptions:
 
 6      (1)  If there were .05 or less grams of alcohol per one
 
 7           hundred milliliters or cubic centimeters of blood or
 
 8           .05 or less grams of alcohol per two hundred ten liters
 
 9           of defendant's breath, it shall be presumed that the
 
10           defendant was not under the influence of intoxicating
 
11           liquor at the time of the alleged violation; and
 
12      (2)  If there were in excess of .05 grams of alcohol per one
 
13           hundred milliliters or cubic centimeters of defendant's
 
14           blood or .05 grams of alcohol per two hundred ten
 
15           liters of defendant's breath, but less than .08 grams
 
16           of alcohol per one hundred milliliters or cubic
 
17           centimeters of defendant's blood or .08 grams of
 
18           alcohol per two hundred ten liters of defendant's
 
19           breath, that fact may be considered with other
 
20           competent evidence in determining whether or not the
 
21           defendant was at the time of the alleged violation
 
22           under the influence of intoxicating liquor but shall
 

 
 
 
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 1           not of itself give rise to any presumption.
 
 2      (c)  Nothing in this section shall be construed as limiting
 
 3 the introduction, in any criminal proceeding for a violation
 
 4 under section 291-4 or in any proceeding under part XIV of
 
 5 chapter 286, of relevant evidence of a person's alcohol content
 
 6 obtained more than three hours after an alleged violation;
 
 7 provided that the evidence is offered in compliance with the
 
 8 Hawaii rules of evidence."]
 
 9      SECTION 35.  Section 291-6, Hawaii Revised Statutes, is
 
10 repealed.
 
11      ["�291-6 Medical services.  The several county and
 
12 government physicians shall, or any other qualified person may,
 
13 make such tests and analyses as may be requested of them by any
 
14 police officer in connection with the determination of whether or
 
15 not a person is or was under the influence of intoxicating liquor
 
16 for the purposes of sections 291-4 and 291-5."]
 
17      SECTION 36.  Section 291-7, Hawaii Revised Statues, is
 
18 repealed.
 
19      ["�291-7 Driving under the influence of drugs.(a)  A
 
20 person commits the offense of driving under the influence of
 
21 drugs if the person operates or assumes actual physical control
 
22 of the operation of any vehicle while under the influence of any
 

 
 
 
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 1 drug which impairs such person's ability to operate the vehicle
 
 2 in a careful and prudent manner.  The term "drug" as used in this
 
 3 section shall mean any controlled substance as defined and
 
 4 enumerated on schedules I through IV of chapter 329.
 
 5      (b)  A person committing the offense of driving under the
 
 6 influence of drugs shall be sentenced as follows without
 
 7 possibility of probation or suspension of sentence:
 
 8      (1)  For a first offense, or any offense not preceded within
 
 9           a five-year period by a conviction under this section,
 
10           by:
 
11           (A)  A fourteen-hour minimum drug abuse rehabilitation
 
12                program, including education and counseling, or
 
13                other comparable programs deemed appropriate by
 
14                the court; and
 
15           (B)  Ninety-day prompt suspension of license with
 
16                absolute prohibition from operating a motor
 
17                vehicle during suspension of license, or the court
 
18                may impose, in lieu of the ninety-day prompt
 
19                suspension of license, a minimum thirty-day prompt
 
20                suspension of license with absolute prohibition
 
21                from operating a motor vehicle and, for the
 
22                remainder of the ninety-day period, a restriction
 

 
 
 
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 1                on the license that allows the person to drive for
 
 2                limited work-related purposes and to participate
 
 3                in drug treatment programs; and
 
 4           (C)  Any one or more of the following:
 
 5                (i)  Seventy-two hours of community service work;
 
 6               (ii)  Not less than forty-eight hours of
 
 7                     imprisonment; or
 
 8              (iii)  A fine of not less than $150 but not more
 
 9                     than $1,000.
 
10      (2)  For an offense which occurs within five years of a
 
11           prior conviction under this section:
 
12           (A)  Prompt suspension of license for a period of one
 
13                year with the absolute prohibition from operating
 
14                a motor vehicle during suspension of license;
 
15           (B)  Either one of the following:
 
16                (i)  Not less than eighty hours of community
 
17                     service work; or
 
18               (ii)  Not less than forty-eight consecutive hours
 
19                     of imprisonment; and
 
20           (C)  A fine of not less than $500 but not more than
 
21                $1,000.
 
22      (3)  For an offense which occurs within five years of two
 

 
 
 
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 1           prior convictions under this section, by:
 
 2           (A)  A fine of not less than $500 but not more than
 
 3                $1,000;
 
 4           (B)  Revocation of license for a period not less than
 
 5                one year but not more than five years; and
 
 6           (C)  Not less than ten days but not more than one
 
 7                hundred eighty days imprisonment.
 
 8      (4)  Notwithstanding any other law to the contrary, any
 
 9           conviction for driving under the influence of drugs
 
10           shall be considered a prior conviction.
 
11      (c)  Whenever a court sentences a person pursuant to
 
12 subsection (b)(2) or (3), it shall also require that the offender
 
13 be referred to a substance abuse counselor who has been certified
 
14 pursuant to section 321-193 for an assessment of the offender's
 
15 drug dependence and the need for treatment.  The counselor shall
 
16 submit a report with recommendations to the court.  The court may
 
17 require the offender to obtain appropriate treatment.
 
18      All costs for such assessment or treatment or both shall be
 
19 borne by the offender.
 
20      (d)  Notwithstanding any other law to the contrary, whenever
 
21 a court revokes a person's driver's license pursuant to the
 
22 provisions of this section, the examiner of drivers shall not
 

 
 
 
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 1 grant to such person an application for a new driver's license
 
 2 for such period as specified by the court.
 
 3      (e)  As used in this section, the terms "driver", "driver's
 
 4 license", and "examiner of drivers" shall have the same meanings
 
 5 as provided in section 286-2; and the term "vehicle" shall have
 
 6 the same meaning as provided in section 291C-1."]
 
 7                              PART IV
 
 8      SECTION 37.  If any provision of this Act, or the
 
 9 application thereof to any person or circumstance is held
 
10 invalid, the invalidity does not affect other provisions or
 
11 applications of the Act which can be given effect without the
 
12 invalid provision or application,and to this end the provisions
 
13 of this Act are severable.
 
14      SECTION 38.  In codifying the new sections added by section
 
15 5 of part 2 of this Act, the revisor of statutes shall substitute
 
16 appropriate section numbers for the letters used in designating
 
17 the new sections in this Act.
 
18      SECTION 39.  The legislative reference bureau shall prepare
 
19 proposed legislation as necessary to conform and consolidate the
 
20 varying statutory provisions of parts I, II, and III of this Act,
 
21 and to make necessary amendments to statutes affected by the
 
22 repeal of part VII of chapter 200, parts VII and XIV of chapter
 

 
 
 
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 1 286, and sections 291-4, 291-4.3, 291-4.4, 291-4.5, 291-5, 291-6,
 
 2 and 291-7.  The bureau shall transmit such proposed legislation
 
 3 to the legislature not later than twenty days prior to the
 
 4 convening of the regular session of 2001.
 
 5      SECTION 40.  Statutory material to be repealed is bracketed.
 
 6 New statutory material is underscored.
 
 7      SECTION 41.  This Act shall take effect upon approval;
 
 8 provided that:
 
 9      (1)  Part I shall take effect upon approval and shall apply
 
10           retroactively to all pending cases for driving under
 
11           the influence of drugs under section 291-7, Hawaii
 
12           Revised Statutes;
 
13      (2)  Part II shall take effect on September 30, 2000; and
 
14      (3)  Part III shall take effect on January 1, 2002.