SB645

SECTION 1. The legislature finds that it is in the interest of the State to decrease the incidence of operating a vehicle under the influence of an intoxicant. Therefore, it is vitally important that the State's ignition interlock program be strengthened and expanded by requiring compliance with the program prior to removal of an interlock device by providing courts the option to utilize a sobriety monitoring system. It is equally vital that persons convicted of operating a vehicle under the influence of an intoxicant not be allowed to "sit out" the interlock period thereby driving non-ignition interlock vehicles.

The purpose of this Act is to augment the State's existing ignition interlock program and to establish a rule-making authority within the department of transportation to develop, implement, and manage the compliance-based provisions of this Act.

SECTION 2. Section 291E-61, Hawaii Revised Statutes, is amended to read as follows:

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

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

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

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

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

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

(1) For the first offense, or any offense not preceded within a five-year period by a conviction for an offense under this section or section 291E-4(a):

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

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

(i) Seventy-two hours of community service work;

(ii) Not less than forty-eight hours and not more than five days of imprisonment; or

(iii) A fine of not less than $150 but not more than $1,000;

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

(E) A surcharge, if the court so orders, of up to $25 to be deposited into the trauma system special fund;

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

(A) Revocation for not less than eighteen months nor more than two years of license and privilege to operate a vehicle during the revocation period and installation during the revocation period of an ignition interlock device on any vehicle operated by the person;

(B) Either one of the following:

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

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

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

(E) A surcharge of up to $50 if the court so orders, to be deposited into the trauma system special fund;

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

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

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

(C) Not less than ten days but not more than thirty days imprisonment, of which at least forty-eight hours shall be served consecutively;

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

(E) A surcharge of up to $50 if the court so orders, to be deposited into the trauma system special fund;

(4) In addition to a sentence imposed under paragraphs (1) through (3), any person eighteen years of age or older who is convicted under this section and who operated a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of forty-eight hours; provided that the total term of imprisonment for a person convicted under this paragraph shall not exceed the maximum term of imprisonment provided in paragraph (1), (2), or (3), as applicable. Notwithstanding paragraphs (1) and (2), the revocation period for a person sentenced under this paragraph shall be not less than two years; and

(5) If the person demonstrates to the court that the person:

(A) Does not own or have the use of a vehicle in which the person can install an ignition interlock device during the revocation period; [or]

(B) Is otherwise unable to drive during the revocation period[,]; or

(C) After a determination from the department of transportation that the person is unable to operate an ignition interlock due to a physical disability; provided that the department of transportation's determination that a person is unable to operate an ignition interlock device shall be reasonable and based on substantial evidence; provided further that this determination is subject to review by a court of competent jurisdiction; provided further that the department of transportation may charge a person seeking a medical exemption under this subparagraph a reasonable fee for the assessment,

the person shall be absolutely prohibited from driving during the period of applicable revocation provided in paragraphs (1) to (4); provided that the court shall not issue an ignition interlock permit pursuant to subsection (i) and the person shall be subject to the penalties provided by section 291E-62 if the person drives during the applicable revocation period[.]; provided that the revocation period may be extended pursuant to subsection (l); provided further that the revocation shall remain in effect until the requirements of subsection (n) are met.

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

(2) A defendant who does not hold a valid license at the time of the instant offense;

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

(4) A defendant who holds a license that is a learner's permit or instruction permit.

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

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

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

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

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

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

(2) Only the vehicle specified; and

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

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

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

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

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

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

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

(i) Upon proof that the defendant has:

(1) Installed an ignition interlock device in any vehicle the defendant operates pursuant to subsection (b); and

(2) Obtained motor vehicle insurance or self-insurance that complies with the requirements under either section 431:10C-104 or section 431:10C-105,

the court shall issue an ignition interlock permit that will allow the defendant to drive a vehicle equipped with an ignition interlock device during the revocation period.

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

(k) Any person sentenced under this section may be ordered to reimburse the county for the cost of any blood or urine tests conducted pursuant to section 291E-11. The court shall order the person to make restitution in a lump sum, or in a series of prorated installments, to the police department or other agency incurring the expense of the blood or urine test. Except as provided in section 291E-5, installation and maintenance of the ignition interlock device required by subsection (b) shall be at the defendant's own expense.

(l) The period of license restriction under subsection (b) shall be tolled for any period in which the person does not have an ignition interlock device installed in a vehicle owned or operated by the person, unless otherwise provided by law.

(m) A person who is required to install an ignition interlock device in a vehicle pursuant to this chapter, but does not install the required ignition interlock device, may be sentenced as follows:

(1) For the first offense, or any offense not preceded within a ten-year period, a minimum of sixty days in a sobriety program, of which the last thirty days the person shall be in full compliance;

(2) For the second offense, a minimum of ninety days in a sobriety program, of which the last thirty days the person shall be in full compliance; or

(3) For the third offense, and any subsequent offense after, a minimum of one hundred twenty days in a sobriety program, of which the last thirty days the person shall be in full compliance.

(n) A restriction imposed under subsection (b) shall remain in effect until the department of transportation receives a declaration from the person's ignition interlock device vendor, in a form to be determined by the department of transportation, certifying that there have been none of the following incidents in the one hundred eighty consecutive days prior to the date of release:

(1) An attempt to start the vehicle with a breath alcohol concentration of 0.04 or more unless a subsequent test performed within ten minutes registers a breath alcohol concentration lower than 0.04 and the digital image confirms the same person provided both samples;

(2) Failure to take any random test unless a review of the digital image confirms that the vehicle was not occupied by the person at the time of the missed test;

(3) Failure to pass any random retest with a breath alcohol concentration of 0.025 or lower unless a subsequent test performed within ten minutes registers a breath alcohol concentration lower than 0.025, and the digital image confirms the same person provided both samples; or

(4) Failure of the person to appear at the ignition interlock device vendor when required for maintenance, repair, calibration, monitoring, inspection, or replacement of the device.

(o) In addition to the revocation period imposed under subsection (b), a court may require a defendant to enroll in an alcohol or substance abuse education or treatment program or a sobriety program; provided that a defendant may choose to enroll in such a program prior to conviction; provided further that if a defendant chooses to enroll, prior to conviction, in a compliant program, participation in that program shall count toward the period of alcohol or substance abuse education or treatment program, or a sobriety program participation, if such participation is later ordered by the judge.

For purposes of this subsection "sobriety program" means a sobriety and drug monitoring program which requires a person to:

(1) Abstain from alcohol and controlled substances for a specified period; or

(2) Be subject to testing to determine whether alcohol or a controlled substance is present in the person's body in the following manner:

(A) At least twice per day at a central location, to be determined by the department of transportation, where an immediate sanction can be effectively applied; or

(B) If testing creates a documented hardship or is geographically impractical, allow an alternative method of random alcohol monitoring and testing, approved by the department of transportation and consistent with a timely sanction.

(p) The director of transportation shall adopt rules pursuant to chapter 91 necessary for the purposes of this section.

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

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. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2019.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	645
THIRTIETH LEGISLATURE, 2019
STATE OF HAWAII