SB128

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to title 17 to be appropriately designated and to read as follows:

"Chapter

PHOTO NOISE VIolation MONITORING SYSTEMS

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

"County" means the counties of Hawaii, Kauai, Maui, and the city and county of Honolulu.

"County highway" has the same meaning as used in section 264-1.

"Decibel" has the same meaning as used in section 342F-1.

"Decibel reader" means a measuring instrument used to assess noise or sound levels by measuring sound pressure and which expresses such level in the unit of a decibel (dB).

"Department" means the department of transportation.

"Motor vehicle" has the same meaning as defined in section 291C-1.

"Owner" or "registered owner" has the same meaning as used in section 286-2.

"Photo noise violation monitoring system" means a mobile or fixed vehicle sensor installed to work in conjunction with a noise measuring device such as a decibel reader that automatically produces two or more photographs, two or more microphotographs, a videotape, or other recorded images of each vehicle at the time it is used or operated in violation of the motor vehicle noise limits pursuant to section 342F-30.5.

"Traffic-control signal" has the same meaning as defined in section 291C-1.

§ -2 Photo noise violation monitoring system program; established. There is established a photo noise violation monitoring system program to monitor vehicle noise limits under the state community noise control code pursuant to section 342F‑30.5, which may be implemented by the State, on any state or county highways within the respective county. Nothing in this chapter shall be deemed to supersede or override any provision of chapter 291D.

§ -3 State powers and duties. (a) The State shall establish and implement, in accordance with this chapter, a photo noise violation monitoring system imposing monetary liability on the registered owner of a motor vehicle for failure to comply with the state community noise control code pursuant to section 342F-30.5. The State shall provide for the:

(1) Procurement, location, and oversight of a photo noise violation monitoring system; and

(2) Installation, operation, maintenance, and repair of the photo noise monitoring system through a third party contractor.

(b) If the State establishes a photo noise violation monitoring system under this chapter, the compensation paid by the State to a manufacturer or vendor of the equipment used shall be based upon the value of the equipment and services provided or rendered in support of the photo noise violation monitoring system and shall not be based upon a portion of the fine or civil penalty imposed or the revenue generated by the equipment.

(c) Prior to the installation and operation of any photo noise violation monitoring system, for each intersection considered for enforcement via the photo noise monitoring system, the State shall:

(1) Conduct a comprehensive engineering review and study of each intersection and implement all necessary and appropriate engineering, design, and traffic-control signal measures; and

(2) Conduct a study to acquire a baseline average of the number of motor vehicles violating the state community noise control code pursuant to section 342F-30.5, over a period of not less than one week; provided that the baseline average shall be determined prior to the installation of any signs or other official traffic-control devices that indicate that an intersection is being considered for a photo noise violation monitoring system.

(d) At least sixty days prior to the photo noise violation monitoring system becoming operational, the department, in conjunction with any county that implements a photo noise violation monitoring system program pursuant to this chapter, shall conduct a comprehensive informational and educational campaign to inform motorists and the general public about the program.

(e) During the first thirty days of operation of an individual photo noise violation monitoring system at a particular intersection, a warning shall be issued for any violation and mailed to the registered owner of the motor vehicle at the address on record at the vehicle licensing division in lieu of a summons or citation pursuant to section -7.

§ -4 Photo noise violation monitoring system requirements. (a) Photo noise violation monitoring system detector equipment may be operated from a fixed pole, post, or other fixed structure on a state or county highway.

(b) Signs or other traffic-control signal devices indicating that traffic signal laws are enforced by a photo noise violation monitoring system shall be posted on major routes entering the area in question to provide, as far as practicable, notice to drivers of the existence and operation of the system.

(c) Proof of a violation of section 291C-31 shall be as evidenced by information obtained from the photo noise violation monitoring system authorized pursuant to this chapter. A certificate, sworn to or affirmed by the reviewing county police department, or a facsimile thereof, based upon inspection of any photograph, microphotograph, videotape, or other recorded image evidencing a violation shall be available for inspection in any proceeding to adjudicate the liability for that violation.

(d) The State shall maintain a daily camera log report for each photo noise violation monitoring system that:

(1) States the date and time when, and the location where, the system was set up; and

(2) States that the photo noise violation monitoring system passed the self-tests of the system before producing a recorded image that day. The State shall retain each daily camera log report until the date on which the photo noise violation monitoring system to which it applies has been permanently removed from use or the final resolution of all cases involving notices of violation issued based on any photograph, microphotograph, video, or other recorded image produced by the system, whichever is later.

(e) It shall be a defense to any prosecution for a violation of motor vehicle noise limits pursuant to this chapter that the photo noise violation monitoring system was malfunctioning at the time of the alleged violation.

(f) The conditions specified in this section shall not apply when the information gathered is used for highway safety research or to issue warning citations not involving a fine or court appearance.

§ -5. Annual calibration of systems. Each photo noise violation monitoring system shall undergo an annual calibration check performed by an independent calibration laboratory, which shall issue a signed certificate of calibration. The State shall keep each annual certificate of calibration on file until the final resolution of all cases involving a notice of violation issued during that year, which were based on any photograph, microphotograph, videotape, or other recorded image produced by the photo noise violation monitoring system.

§ -6 Recorded images; retention; deletion. (a) Any photograph, microphotograph, videotape, or other recorded image from a photo noise violation monitoring system shall be for the exclusive use of the State or county for the purpose of the adjudication of liability imposed pursuant to section -8, and of the motor vehicle owner receiving a notice of violation, and shall be destroyed by the State upon the final resolution of the notice of violation to which any photograph, microphotograph, videotape, or other recorded image relate, or one year following the date of issuance of notice of violation, whichever is later.

(b) Notwithstanding any law to the contrary, any photograph, microphotograph, videotape, or any other recorded image from a photo noise violation monitoring system shall not be available to the public, nor subject to civil or criminal process or discovery, nor used by any court or administrative or adjudicatory body in any action or proceeding therein except that which is necessary for the adjudication of a notice of violation; provided that any photograph, microphotograph, videotape, or other recorded image from such systems shall:

(1) Be available for inspection and copying and use by the registered owner for so long as any photograph, microphotograph, videotape, or other recorded image is required to be maintained or is maintained by any public entity, employee, officer or agent; and

(2) Be furnished when described in a search warrant issued by a court authorized to issue a search warrant where the search warrant states that there is reasonable cause to believe the information constitutes evidence of, or tends to demonstrate that, a misdemeanor or felony offense was committed in the State or county, or that a particular person participated in the commission of a misdemeanor or felony offense in the State; provided that the court shall only issue a warrant if the conduct comprising the offense would, if occurring in the State or county, constitute a misdemeanor or felony against the laws of the State; and

(3) Be furnished in response to a subpoena duces tecum signed by a judge of competent jurisdiction, or a judge or magistrate of a federal court authorized to issue a subpoena duces tecum under federal law, where the judge finds and the subpoena duces tecum under reasonable cause to believe the information is relevant and material to the prosecution, or the defense, or the investigation by an authorized law enforcement official, of the alleged commission of a misdemeanor of felony.

(c) The department shall utilize necessary technologies to ensure, to the extent practicable, that any photograph, microphotograph, videotape, or other recorded image produced by a photo noise violation monitoring system shall not include any image that identifies the driver, the passengers, or the contents of the vehicle; provided that no summons or citations issued pursuant to this chapter shall be dismissed solely because any photograph, microphotograph, videotape, or other recorded image allows for the identification of the driver, the passengers, or the contents of the vehicles where the department shows that it made reasonable efforts to comply with the provisions of this chapter.

§ -7 Summons or citations. (a) Notwithstanding any law to the contrary, beginning July 1, 2024, whenever any motor vehicle is determined, by means of a photo noise violation monitoring system, to have violated the state community noise control code pursuant to section 342F-30.5, the State's third party contractor shall cause a summons or citation, as described in this section, to be sent by first class mail, that is postmarked within ten-calendar days after the date of the incident, to the registered owner of the motor vehicle at the address on record at the vehicle licensing division. If the end of the ten-calendar day period falls on a Saturday, Sunday, or holiday, then the ending period shall run until the end of the next day that is not a Saturday, Sunday, or holiday.

(b) The form and content of the summons or citation shall be as adopted or prescribed by the administrative judge of the district courts and shall be printed on a form commensurate with the form of other summonses or citations used in modern methods of arrest, so designed to include all necessary information to make the summons or citation valid within the laws of the State; provided that any summons or citation pursuant to the photo noise violation monitoring systems program shall contain a clear and unobstructed photographic, digital, or other visual image of the motor vehicle license plate, and decibel units measured by the decibel reader, which shall be used as evidence of the violation.

(c) Every summons or citation shall be consecutively numbered and each copy thereof shall bear the number of its respective original.

(d) Prior to the mailing of the summons or citation for a traffic infraction pursuant to subsection (a), the applicable county police department shall review and verify the validity of the clear and unobstructed photographic, digital, or other visual image of the license plate of the motor vehicle required under this section.

(e) Upon receipt of the summons or citation the registered owner shall respond as provided for in chapter 291D. A record of the mailing of the summons or citations prepared in the ordinary course of business is prima facie evidence of notification. The registered owner shall be determined by the identification of the motor vehicle license plate.

§ -8 Registered owner's responsibility for a summons or citation. (a) In any proceeding for a violation of this chapter, the information contained in the summons or citation mailed in accordance with section -7 shall be deemed prima facie evidence that a violation of section 291C‑32(c) occurred. If the registered owner does not rebut the evidence presented in this subsection by presenting one or more of the defenses listed in subsection (b), the registered owner shall be strictly liable for a violation of section 291C-31.

(b) The registered owner of the motor vehicle may present evidence to rebut the evidence in subsection (a) by any one of the following:

(1) Submitting a written statement as provided in section 291D-6(b)(2);

(2) Testifying in open court under oath that the person named in the summons or citation was not the registered owner of the motor vehicle at the time of the alleged violation;

(3) Calling witnesses to testify in open court under oath that the person named in the summons or citation was not the registered owner of the motor vehicle at the time of the alleged violation; or

(4) Submitting to the court adjudicating the alleged violation, prior to the return date established on the citation or summons issued pursuant to this chapter, a letter of verification of loss from the county police department indicating that the motor vehicle or the motor vehicle license plates had been reported stolen.

§ -9 Failure to comply with summons or citation. If the registered owner of the motor vehicle fails to respond to a summons or citation within thirty days from the date of the mailing of the summons or citation, the district court shall issue, pursuant to section 291D-7(e), a notice of entry of judgment of default to the registered owner of the motor vehicle.

§ -10 Liability for rental or U-drive motor vehicle. Notwithstanding any law to the contrary, any registered owner of record who is the lessor of a rental or U-drive motor vehicle, including those defined in section 286-2, shall be liable for any summons or citation issued pursuant to this chapter. The registered owner shall not be precluded from pursuing reimbursement from any applicable renter or lessee.

§ -11 Penalty. (a) It shall be a violation for any person to violate any of the provisions of this chapter, unless the violation is by other law of the State declared to be a felony, misdemeanor, or petty misdemeanor.

(b) Every person who is determined to have violated any provision of this chapter for which another penalty is not provided shall be fined:

(1) Not more than $ for a first violation thereof;

(2) Not more than $ for a second violation committed within one year after the date of the first violation; and

(3) Not more than $ for a third or subsequent violation committed within one year after the date of the first violation.

(c) Any summons or citations issued or convictions resulting from this chapter shall not be recorded on a person's traffic abstract and shall not be used for insurance purposes in the provision of motor vehicle insurance coverage.

§ -12 Fines for unauthorized disclosure. All personal and confidential information made available by a photo noise violation monitoring system to an officer, employee, or agent of the State or any county, including third party contractors, shall be kept confidential and shall be used only for the purposes for which the information was furnished. Any officer, employee, or agent of the State or any county, including a third party contractor, who intentionally discloses or provides a copy of personal and confidential information obtained from a photo noise violation monitoring system to any person or agency without authorization shall be fined not more than $500; provided that the fine shall not preclude the application of penalties or fines otherwise provided for by law.

§ -13 Rules. The department shall adopt rules pursuant to chapter 91 as may be necessary to implement this chapter.

§ -14 Report to the legislature. The department shall submit an annual report to the legislature no later than twenty days prior to the convening of each regular session, including:

(1) The locations and dates when photo noise violation monitoring systems were used;

(2) The number of violations recorded within the State and county, in the aggregate on a daily, weekly, and monthly basis;

(3) The total number of summons or citations issued for violations recorded by the photo noise violation monitoring system;

(4) The number of fines levied and total amount of fines paid for violations recorded by the photo noise violation monitoring system;

(5) The number of violations adjudicated and the results of such adjudications, including a breakdown of dispositions made for violations recorded by the photo noise violation monitoring system;

(6) The total amount of revenue realized by the department in connection with the program;

(7) The expenses incurred by the State in connection with the program; and

(8) The quality of the adjudication process and its results.

§ -15 Photo noise violation monitoring system program special fund; established. (a) There is established in the state treasury a photo noise violation monitoring system program special fund to be administered by the department, into which shall be paid the revenues collected pursuant to this chapter.

(b) All fines collected under this chapter shall be deposited into the photo noise violation monitoring system program special fund. Moneys in the fund shall be expended by the department in the county in which the fine was imposed, for the purposes that include the establishment, implementation, operation, oversight, repair, and maintenance of a photo noise violation monitoring system."

SECTION 2. Section 291-23, Hawaii Revised Statutes, is amended to read as follows:

"§291-23 Penalty. Whoever is convicted of violating any of the provisions of section 291-22 shall be fined not more than [~~$100.~~] $300."

SECTION 3. Section 342F-30.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]§342F-30.5[]] Noise control. (a) By June 30, 1996, the department shall adopt a state community noise code pursuant to chapter 91, which recognizes differences in noise level standards in urban and non-urban areas of the State and noise level standards of each county.

(b) By June 30, 2024, the department shall adopt rules pursuant to chapter 91 for the control, prevention, and abatement of noise pollution emitted by vehicles in the State. The rules shall regulate the emission of noise by the measure of decibels, and shall include provision that state the following:

(1) No person shall operate a vehicle that emits noise in excess of the decibel limitation or limitations adopted pursuant to this subsection;

(2) No owner of a vehicle shall allow a vehicle to emit noise in excess of the decibel limitation or limitations adopted pursuant to this subsection; and

(3) No person shall sell or offer for sale a vehicle that emits noise in excess of the decibel limitation or limitations adopted pursuant to this subsection.

Any county may adopt a rule or ordinance that places stricter limitations on vehicles than are promulgated by the department pursuant to this subsection. To the extent of a conflict, the more restrictive requirement shall apply.

SECTION 4. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2023-2024 and the same sum or so much thereof as may be necessary for fiscal year 2024-2025 to be deposited into the photo noise violation monitoring system special fund.

SECTION 5. There is appropriated out of the photo noise violation monitoring system special fund the sum of $ or so much thereof as may be necessary for fiscal year 2023-2024 and the same sum or so much thereof as may be necessary for fiscal year 2024-2025 for establishment and implementation of the photo noise violation monitoring system.

The sums appropriated shall be expended by the department of transportation for the purposes of this Act.

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect on July 1, 2023.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	128
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII