HB683

SECTION 1. The legislature finds that driving under the influence of an intoxicant is a major problem in the State of Hawaii. The 2021 Annual Report from the Honolulu Police Department shows that there were 2,391 adults arrested for driving under the influence in 2021, up from 1,884 arrested in 2020. In 2019, there were a total of thirty-six alcohol-impaired driving fatalities in Hawaii. In 2022, the number of traffic-related fatalities eclipsed the number of traffic-related fatalities recorded in 2021. The sheer number of arrests for driving under the influence of an intoxicant indicates that there poses a significant risk to the safety of many drivers on Hawaii roads.

The legislature further finds that deterring driving under the influence, while also creating restitution measures for victims, are both social goods that are worth pursuing. This measure is intended to achieve both.

The purpose of this Act is to deter driving under the influence of an intoxicant by requiring those convicted of driving under the influence of an intoxicant and as a result of this impairment, killed a parent of a minor child, to pay as restitution child support to the surviving child of the deceased parent.

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

"PART IV. PROHIBITED CONDUCT

§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) Except as provided in paragraph (4), for the first offense, or any offense not preceded within a ten-year period by a conviction for an offense under this section or section 291E-4(a):

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

(B) One-year revocation of license to operate a vehicle;

(D) Any one or more of the following:

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

(ii) No less than forty-eight hours and no more than five days of imprisonment; or

(iii) A fine of no less than $250 but no more than $1,000;

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

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

(2) For an offense that occurs within ten years of a prior conviction for an offense under this section:

(A) A substance abuse program of at least thirty-six hours, including education and counseling or other comparable programs deemed appropriate by the court;

(B) Revocation of license to operate a vehicle for no less than two years but no more than three years;

(D) Either one of the following:

(i) No less than two hundred forty hours of community service work; or

(ii) No less than five days but no more than thirty days of imprisonment, of which at least forty-eight hours shall be served consecutively;

(E) A fine of no less than $1,000 but no more than $3,000, to be deposited into the state drug and alcohol toxicology testing laboratory special fund;

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

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

(3) In addition to a sentence imposed under paragraphs (1) and (2), any person eighteen years of age or older who is convicted under this section and who operated a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of forty-eight hours; provided that the total term of imprisonment for a person convicted under this paragraph shall not exceed the maximum term of imprisonment provided in paragraph (1) or (2), as applicable. Notwithstanding paragraphs (1) and (2), the revocation period for a person sentenced under this paragraph shall be no less than two years;

(4) In addition to a sentence imposed under paragraph (1), for a first offense under this section, or an offense not preceded within a ten-year period by a conviction for an offense, any person who is convicted under this section and was a highly intoxicated driver at the time of the subject incident shall be sentenced to an additional mandatory term of imprisonment for forty-eight consecutive hours and an additional mandatory revocation period of six months; provided that the total term of imprisonment for a person convicted under this paragraph shall not exceed the maximum term of imprisonment provided in paragraph (1). Notwithstanding paragraph (1), the revocation period for a person sentenced under this paragraph shall be no less than eighteen months;

(5) In addition to a sentence under paragraph (2), for an offense that occurs within ten years of a prior conviction for an offense under this section, any person who is convicted under this section and was a highly intoxicated driver at the time of the subject incident shall be sentenced to an additional mandatory term of imprisonment of ten consecutive days and an additional mandatory revocation period of one year; provided that the total term of imprisonment for a person convicted under this paragraph shall not exceed the maximum term of imprisonment provided in paragraph (2), as applicable. Notwithstanding paragraph (2), the revocation period for a person sentenced under this paragraph shall be no less than three years; and

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

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

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

the person shall be absolutely prohibited from driving during the period of applicable revocation provided in paragraphs (1) to (3); 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.

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

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

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

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

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

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

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

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

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

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

(2) Only the vehicle specified; and

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

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

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

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

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

shall be considered a prior conviction for the purposes of imposing sentence under this section. Any judgment on a verdict or a finding of guilty, a plea of guilty or nolo contendere, or an adjudication, in the case of a minor, that at the time of the offense has not been expunged by pardon, reversed, or set aside shall be deemed a prior conviction under this section.

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

(i) Upon proof that the defendant has:

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

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

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

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

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

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

(m) Notwithstanding any law to the contrary, if a defendant is convicted of a violation of this section, and the deceased victim of the offense was the parent of a minor child, then the sentencing court shall order the defendant to pay restitution in the form of child maintenance to each of the victim's children until each child reaches eighteen (18) years of age and has graduated from high school, or the class of which the child is a member when the child reached eighteen (18) years of age has graduated from high school.

(n) The court shall determine an amount that is reasonable and necessary for the maintenance of the victim's child after considering all relevant factors, including:

(1) The financial needs and resources of the child;

(2) The financial resources and needs of the surviving parent or guardian of the child, including the state if the child is in the custody of the department of children's services;

(3) The standard of living to which the child is accustomed;

(4) The physical and emotional condition of the child and the child's educational needs;

(5) The child's physical and legal custody arrangements; and

(6) The reasonable work-related child care expenses of the surviving parent or guardian.

(o) The court shall order that child maintenance payments be made to the clerk of court as trustee for remittance to the child's surviving parent or guardian. The clerk shall remit the payments to the surviving parent or guardian within three (3) working days of receipt by the clerk. The clerk shall deposit all payments no later than the next working day after receipt.

(p) If a defendant who is ordered to pay child maintenance under this section is incarcerated and unable to pay the required maintenance, the defendant must have up to one (1) year after the release from incarceration to begin payment, including entering a payment plan to address any arrearage. If a defendant's child maintenance payments are set to terminate but the defendant's obligation is not paid in full, the child maintenance payments shall continue until the entire arrearage is paid.

(q) If the surviving parent or guardian of the child brings a civil action against the defendant prior to the sentencing court ordering child maintenance payments as restitution and the surviving parent or guardian obtains a judgment in the civil suit, no maintenance shall be ordered under this section. If the court orders the defendant to make child maintenance payments as restitution under this section and the surviving parent or guardian subsequently brings a civil action and obtains a judgment, the child maintenance order shall be offset by the amount of the judgment awarded in the civil action."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect on January 1, 2024.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	683
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII