SB2119

SECTION 1. The legislature finds that the use of mobile electronic devices contributes to the increase of distracted driving. The use of mobile electronic devices, such as cellular phones during the task of driving can be a distraction and pose a risk of harm to the driver and others in the vehicle or on the road. According to the National Safety Council, in 2016 more than forty thousand Americans died in automobile accidents, which was an increase of six per cent over 2015 and a fourteen per cent increase over 2014.

The legislature notes that existing law prohibits a person from operating a motor vehicle or commercial motor vehicle while using a mobile electronic device. However, law enforcement has a difficult time enforcing these laws, especially after an accident where it is impossible to discern whether the driver of the motor vehicle was using a cellular phone immediately prior to or at the time of the accident. Enabling law enforcement with technology that is able to immediately determine mobile electronic device usage without an inquiry into the device's content, will allow better enforcement of the laws prohibiting the use of a mobile electronic device while operating a motor vehicle while protecting the privacy rights.

The purpose of this Act is to:

(1) Require the driver of any motor vehicle that is involved in an accident involving death, serious bodily injury, substantial bodily injury, bodily injury, or damage to vehicle or property and in possession of a mobile electronic device at or near the time of the accident to, at the request of a police officer, submit the mobile electronic device to the police officer for the sole purpose of field testing of the device;

(2) Establish procedures to allow police officers responding to a motor vehicle accident involving death or serious bodily injury, substantial bodily injury, bodily injury, or damage to vehicle or property to field test a mobile electronic device; and

(3) Impose penalties if a driver of the motor vehicle involved in an accident fails to submit the driver's mobile electronic device for the field testing.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

field testing of a mobile electronic device used while operating a motor vehicle involved in an accident

§ -1 Definitions. As used in this chapter, unless the context otherwise requires:

"Bodily injury" means physical pain, illness, or any impairment of physical condition.

"Driver" means every person who drives or is in actual physical control of a motor vehicle.

"Field testing" means the use of an electronic scanning device to determine whether the driver of a motor vehicle was using a mobile electronic device in violation of section 291-17 or 291C-137, as applicable; provided that the use of the electronic scanning device shall be limited to determining whether the driver of a motor vehicle was using a mobile electronic device in violation of section 291-17 or 291C-137, as applicable, at or near the time of the accident. The electronic scanning device shall not include the content or origin of any communication or game conducted, or image or electronic data viewed on a mobile electronic device.

"Highway" means the entire width between the boundary lines of every way publicly maintained and those private streets, as defined in section 46-16, over which the application of this chapter has been extended by ordinance, when any part thereof is open to the use of the public for purposes of vehicular travel.

"License" means any driver's license or any other license or permit to operate a motor vehicle issued under, or granted by, the laws of this State and includes:

(1) Any learner's permit or instruction permit;

(2) The privilege of any person to operate a motor vehicle, regardless of whether the person holds a valid license;

(3) Any nonresident's operating privilege; and

(4) The eligibility, including future eligibility, of any person to apply for a license or privilege to operate a motor vehicle.

"Mobile electronic device" means any handheld or other portable electronic equipment capable of providing wireless or data communication between two or more persons or of providing amusement, including but not limited to a cellular phone, text messaging device, paging device, personal digital assistant, laptop computer, video game, or digital photographic device, but does not include any audio equipment or any equipment installed in a motor vehicle for the purpose of providing navigation, emergency assistance to the driver of the motor vehicle, or video entertainment to the passengers in the rear seats of the motor vehicle.

"Motor vehicle" means every vehicle that is self-propelled or propelled by electric power, but not operated upon rails.

"Police officer" means every officer authorized to direct or regulate traffic or to make arrests for violations of traffic regulations.

"Serious bodily injury" means bodily injury that creates a substantial risk of death or causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

"Substantial bodily injury" means bodily injury that causes a major avulsion, laceration, or penetration of the skin; a chemical, electrical, friction, or scalding burn of second degree severity; a bone fracture; a serious concussion; or a tearing, rupture, or corrosive damage to the esophagus, viscera, or other internal organs.

"Use" or "using" means holding a mobile electronic device while operating a motor vehicle.

§ -2 Accidents involving the use of a mobile electronic device; field testing. (a) In addition to any requirements under part II of chapter 291C, the driver of any motor vehicle that is involved in an accident involving death, serious bodily injury, substantial bodily injury, bodily injury, or damage to vehicle or property and in possession of a mobile electronic device at or near the time of the accident shall, at the request of a police officer, submit the mobile electronic device to the police officer for the sole purpose of field testing of the device.

(b) If the field testing determines that the driver of the motor vehicle was using the mobile electronic device, the results of the field test shall be evidence of a violation of section 291-17 or 291C-137, as applicable.

§ -3 Implied consent. Any driver who operates a motor vehicle upon highways and elsewhere throughout the State shall be deemed to have given consent to field testing of the driver's mobile electronic device for the purpose of determining the use of the mobile electronic device while operating a motor vehicle; provided that field testing:

(1) Is conducted by or under the direction of a police officer; and

(2) Occurs after the driver is involved in an accident involving death, serious bodily injury, substantial bodily injury, bodily injury, or damage to vehicle or property.

§ -4 Refusal to submit mobile electronic device for field testing. If a driver of any motor vehicle involved in an accident involving death, serious bodily injury, substantial bodily injury, bodily injury, or damage to vehicle or property refuses to submit the driver's mobile electronic device to a police officer for the sole purpose of field testing, field testing shall not be conducted and the driver shall be subject to penalties pursuant to section -5; provided that the police officer shall:

(1) Request the driver of the motor vehicle involved in an accident submit the driver's mobile electronic device for the sole purpose of field testing; and

(2) Inform the driver of the motor vehicle involved in an accident that refusal to submit the driver's mobile electronic device for field testing shall subject the driver to penalties pursuant to section -5, regardless of whether the driver is convicted of violating section 291-17 or 291C-137, as applicable;

provided further that if the police officer fails to comply with paragraphs (1) and (2), the driver shall not be subject to the penalties pursuant to section -5.

§ -5 Refusal to submit mobile electronic device for field testing; affidavit; penalties. (a) If the police officer complies with section -4, but the driver refuses to submit the driver's mobile electronic device for field testing, then the police officer, as soon as practicable, shall submit an affidavit to a district court judge of the circuit in which the accident occurred, stating that:

(1) The police officer who responded to the motor vehicle accident involving death, serious bodily injury, substantial bodily injury, bodily injury, or damage to vehicle or property, requested that the driver of the motor vehicle involved in the accident submit the driver's mobile electronic device for field testing;

(2) The driver of the motor vehicle involved in the accident refused to submit the driver's mobile electronic device for field testing;

(3) The driver of the motor vehicle involved in the accident was:

(A) Informed of the penalties pursuant this section; and

(B) Asked if the driver still refuses to submit the driver's mobile electronic device in compliance with section -2; and

(4) The driver continued to refuse to submit the driver's mobile electronic device.

(b) Upon receipt of the affidavit, the district court judge shall hold a hearing within twenty-one days. The district court judge shall hear and determine:

(1) Whether the police officer who responded to the motor vehicle accident involving death, serious bodily injury, substantial bodily injury, bodily injury, or damage to vehicle or property, requested that the driver of the motor vehicle involved in the accident submit the driver's mobile electronic device for field testing;

(2) Whether the driver of the motor vehicle involved in the accident refused to submit the driver's mobile electronic device for field testing;

(3) Whether the driver of the motor vehicle involved in the accident was:

(A) Informed of the penalties pursuant this section; and

(B) Asked if the driver still refuses to submit the driver's mobile electronic device in compliance with section -2; and

(4) Whether the driver continued to refuse to submit the driver's mobile electronic device.

(c) If the district judge finds the statements contained in the affidavit are true, the judge shall suspend the driver's license to operate a motor vehicle as follows:

(1) For the first suspension, or any suspension not preceded within a five-year period by a suspension under this section, for a period of twelve months; and

(2) For any subsequent suspension under this section, for a period no less than two years and no more than five years.

(d) An order of the district court issued under this section may be appealed to the supreme court.

§ -6 Proof of refusal; admissibility. If a driver of any motor vehicle involved in an accident involving death, serious bodily injury, substantial bodily injury, bodily injury, or damage to vehicle or property refuses to submit the driver's mobile electronic device to a police officer for the sole purpose of field testing, evidence of refusal shall be admissible only in a proceeding under section -5 and shall not be admissible in any other action or proceeding, whether civil or criminal."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2119
TWENTY-NINTH LEGISLATURE, 2018
STATE OF HAWAII