THE SENATE

S.B. NO.

1399

TWENTY-SIXTH LEGISLATURE, 2011

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO HIGHWAY SAFETY.

 

 

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

 


     SECTION 1.  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] absolute prohibition of operating a vehicle [during the revocation period and installation during the revocation period of an ignition interlock device on any vehicle operated by the person;], followed by a six-month revocation of license and installation of an ignition interlock device on any vehicle operated by the person; provided that the person may only drive subject to the requirements of subsection (i);

         (C)  Any one or more of the following:

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

       [(A)(B)  Revocation for not less than eighteen months nor more than [two] three years of license and [privilege to operate] an absolute prohibition of operating a vehicle [during the revocation period and installation during the revocation period of an ignition interlock device on any vehicle operated by the person;], followed by a revocation of license of not less than one year and more than eighteen months and installation of an ignition interlock device on any vehicle operated by the person; provided that the person may only drive subject to the requirements of subsection (i);

       [(B)(C)  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] one year and one day of imprisonment[, of which at least forty-eight hours shall be served consecutively];

       [(C)(D)  A fine of not less than $500 but not more than $1,500;

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

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

         (G)  Forfeiture under chapter 712A of the vehicle owned and operated by the person committing the offense if the fines and surcharges in subsections 291E(b)(2)(D),(E), and (F) are not paid within thirty days of conviction, guilty plea, or plea of nolo contendere; provided that the department of transportation shall provide storage for vehicles forfeited under this subparagraph;

     (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;] Ninety days at a long-term residential treatment program, or other comparable program deemed appropriate by the court;

         (B)  Revocation for [two] five years of license and [privilege to operate] absolute prohibition of operating 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] thirty days but not more than [thirty days] one year and one day 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;

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

         (G)  Forfeiture under chapter 712A of the vehicle owned and operated by the person committing the offense if the fines and surcharges in subsections 291E(b)(3)(D),(E), and (F) are not paid within sixty days of conviction, guilty plea, or plea of nolo contendere; provided that the department of transportation shall provide storage for vehicles forfeited under this section;

     (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 with absolute prohibition 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[,] allowing an interlock ignition device,

the person shall be absolutely prohibited from driving during the entire 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.

     (c)  Notwithstanding any other law to the contrary, the court shall not issue an ignition interlock permit to:

     (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; or

     (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(b), unless the ignition interlock permit is restricted to a category 1, 2, or 3 license under section 286-102(b).

     (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 following the period of absolute prohibition 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 is prohibited from driving a vehicle not equipped with an ignition interlock device and identifying the specific vehicle and hours of the day, not to exceed twelve hours per day, the defendant will drive 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, 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 providing evidence, such as a statement from the defendant's employer or proof of school registration, establishing that the defendant is currently employed or is a student, and 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[.] following the period of absolute prohibition for the specific hours, including commuting, that the defendant works or attends school; provided that the permit specifies those hours and is kept in the defendant's possession while driving.

     (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 entire 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)  Any person convicted under subsection (b)(2) or (3) shall be guilty of a class C felony."

     SECTION 2.  Section 712A-16, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

     "(1)  All property forfeited to the State under this chapter shall be transferred to the attorney general who:

    (a)   May transfer property, other than currency, which shall be distributed in accordance with subsection (2) to any local or state government entity, municipality, or law enforcement agency within the State;

    (b)   May sell forfeited property to the public by public sale; provided that for leasehold real property:

         (i)  The attorney general shall first offer the holder of the immediate reversionary interest the right to acquire the leasehold interest and any improvements built or paid for by the lessee for the then fair market value of the leasehold interest and improvements.  The holder of the immediate reversionary interest shall have thirty days after receiving written notice within which to accept or reject the offer in writing; provided that the offer shall be deemed to be rejected if the holder of the immediate reversionary interest has not communicated acceptance to the attorney general within the thirty-day period.  The holder of the immediate reversionary interest shall have thirty days after acceptance to tender to the attorney general the purchase price for the leasehold interest and any improvements, upon which tender the leasehold interest and improvements shall be conveyed to the holder of the immediate reversionary interest.

        (ii)  If the holder of the immediate reversionary interest fails to exercise the right of first refusal provided in subparagraph (i), the attorney general may proceed to sell the leasehold interest and any improvements by public sale.

       (iii)  Any dispute between the attorney general and the holder of the immediate reversionary interest as to the fair market value of the leasehold interest and improvements shall be settled by arbitration pursuant to chapter 658A;

    (c)   May sell or destroy all raw materials, products, and equipment of any kind used or intended for use in manufacturing, compounding, or processing a controlled substance or any untaxed cigarettes in violation of chapter 245;

    (d)   May compromise and pay valid claims against property forfeited pursuant to this chapter; [or]

    (e)   May make any other disposition of forfeited property authorized by law[.]; or

    (f)   In the case of vehicles forfeited pursuant to sections 291E-61 or 291E-61.5, shall sell the forfeited vehicle to the public by public sale and direct the proceeds to the judiciary."

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


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

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Drunk Driving; Penalties; Forfeiture

 

Description:

Increases penalties for operating a vehicle under the influence of an intoxicant.  Provides for forfeiture of vehicles if fines are not paid.  Provides that proceeds from forfeiture go to the judiciary.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.