REPORT TITLE:
M/V; Drugs; Implied Consent


DESCRIPTION:
Establishes the offense of driving after ingestion of illegal
drugs for persons under age 21; provides for penalties.
Establishes implied consent provisions for driving with illegal
drugs in a person's blood or urine.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1976
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO HIGHWAY SAFETY.



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

 1      SECTION 1.  Chapter 291, Hawaii Revised Statutes, is amended
 
 2 by adding a new section to be appropriately designated and to
 
 3 read as follows:
 
 4      "291-     Driving after ingestion of illegal drugs; persons
 
 5 under the age of twenty-one.  (a)  It shall be unlawful for any
 
 6 person under the age of twenty-one years to drive, operate, or
 
 7 assume actual physical control of the operation of any vehicle
 
 8 with a measurable amount of an illegal drug in the person's blood
 
 9 or urine.  A law enforcement officer may arrest a person under
 
10 this section when the officer has probable cause to believe the
 
11 arrested person is under the age of twenty-one and had been
 
12 driving or was in actual physical control of a motor vehicle or
 
13 moped upon the public highways with a measurable amount of
 
14 illegal drugs in the person's blood or urine. 
 
15      For purposes of this section, the presence of a measurable
 
16 amount of an illegal drug in a person's urine or blood, which
 
17 amount is clearly indicative of actual drug use and not passive
 
18 inhalation, as shown by chemical analysis or other approved
 
19 analytical techniques of the person's urine or blood, shall
 

 
Page 2                                                     1976
                                     H.B. NO.           
                                                        
                                                        

 
 1 create a presumption that the drug is present in the person's 
 
 2 blood or urine as a result of actual use of that illegal drug and
 
 3 not passive inhalation.  This presumption may be overcome only by
 
 4 a showing by clear and convincing evidence that the drug is
 
 5 present in the person's blood or urine as a result of passive
 
 6 inhalation, or the consumption of prescribed medication or other
 
 7 legal substance.  The department may select, and from time to
 
 8 time change, the drugs targeted in tests to determine the
 
 9 presence of illegal drugs in a person's blood or urine.
 
10      For purposes of this section:
 
11      (1)  All substance abuse testing shall be conducted in
 
12           accordance with the requirements of chapter 329B; and
 
13      (2)  The standards applied for determining whether a sample
 
14           is positive shall be no more stringent than the
 
15           standards followed by the United States Department of
 
16           Defense in drug control programs applicable to
 
17           uniformed servicemembers.
 
18      (b)  A person who violates this section shall be sentenced
 
19 as follows:
 
20      (1)  For the first violation, or any violation not preceded
 
21           within a five-year period by a conviction under this
 
22           section:
 

 
 
 
Page 3                                                     1976
                                     H.B. NO.           
                                                        
                                                        

 
 1           (A)  The court shall impose:
 
 2                (i)  A requirement that the person and, if the
 
 3                     person is under the age of eighteen, the
 
 4                     person's parent or guardian attend for not
 
 5                     more than ten hours a substance abuse
 
 6                     rehabilitation program, including education
 
 7                     and counseling, or other comparable program
 
 8                     deemed appropriate by the court; and
 
 9               (ii)  One hundred eighty-day prompt suspension of
 
10                     license with absolute prohibition from
 
11                     operating a motor vehicle during suspension
 
12                     of license, or in the case of a person
 
13                     eighteen years of age or older, the court may
 
14                     impose, in lieu of the one hundred eighty-day
 
15                     prompt suspension of license, a minimum
 
16                     thirty-day prompt suspension of license with
 
17                     absolute prohibition from operating a motor
 
18                     vehicle and, for the remainder of the one
 
19                     hundred eighty-day period, a restriction on
 
20                     the license that allows the person to drive
 
21                     for limited work-related purposes and to
 
22                     participate in substance abuse education and
 

 
 
 
Page 4                                                     1976
                                     H.B. NO.           
                                                        
                                                        

 
 1                     treatment programs; and
 
 2           (B)  In addition, the court may impose any one or more
 
 3                of the following:
 
 4                (i)  Not more than thirty-six hours of community
 
 5                     service work; or
 
 6               (ii)  A fine of not less than $150 but not more
 
 7                     than $500.
 
 8      (2)  For a violation that occurs within five years of a
 
 9           prior conviction under this section:
 
10           (A)  The court shall impose prompt suspension of
 
11                license for a period of one year with the absolute
 
12                prohibition from operating a motor vehicle during
 
13                suspension of license; and
 
14           (B)  In addition, the court may impose any of the
 
15                following:
 
16                (i)  Not more than fifty hours of community
 
17                     service work; or
 
18               (ii)  A fine of not less than $300 but not more
 
19                     than $1,000.
 
20      (3)  For a violation that occurs within five years of two
 
21           prior convictions under this section:
 
22           (A)  The court shall impose revocation of license for a
 

 
 
 
Page 5                                                     1976
                                     H.B. NO.           
                                                        
                                                        

 
 1                period of two years; and
 
 2           (B)  In addition, the court may impose any of the
 
 3                following:
 
 4                (i)  Not more than one hundred hours of community
 
 5                     service work; or
 
 6               (ii)  A fine of not less than $300 but not more
 
 7                     than $1,000.
 
 8      (4)  Notwithstanding any other law to the contrary, any
 
 9           conviction or plea under this section shall be
 
10           considered a prior conviction.
 
11      (c)  Whenever a court sentences a person pursuant to
 
12 subsection (b), it also shall require that the person be referred
 
13 to a substance abuse counselor who has been certified pursuant to
 
14 section 321-193 for an assessment of the person's substance abuse
 
15 or dependence and the need for appropriate treatment.  The
 
16 counselor shall submit a report with recommendations to the
 
17 court.  The court may require the person to obtain appropriate
 
18 treatment if the counselor's assessment establishes the person's
 
19 substance abuse or dependence.  All cost for assessment or
 
20 treatment or both shall be borne by the person or by the person's
 
21 parent or guardian, if the person is under the age of eighteen.
 
22      (d)  Notwithstanding section 831-3.2 or any other law to the
 

 
 
 
Page 6                                                     1976
                                     H.B. NO.           
                                                        
                                                        

 
 1 contrary, a person convicted of a first-time violation under
 
 2 subsection (b)(1), who had no prior violation, may apply to the
 
 3 court for an expungement order upon attaining the age of twenty-
 
 4 one, or thereafter, if the person has fulfilled the terms of the
 
 5 sentence imposed by the court and has had no subsequent alcohol
 
 6 or drug-related enforcement contacts.
 
 7      (e)  Not withstanding any other law to the contrary,
 
 8 whenever a court revokes a person's driver's license pursuant to
 
 9 the provisions of this section, the examiner of drivers shall not
 
10 grant to the person an application for a new driver's license for
 
11 a period to be determined by the court.
 
12      (f)  Any person sentenced under this section may be ordered
 
13 to reimburse the county for the cost of any blood or urine tests
 
14 conducted under section 286-152.  The court shall order the
 
15 person to make restitution in a lump sum, or in a series of
 
16 prorated installments, to the police department or other agency
 
17 incurring the expense of the test.
 
18      (g)  The requirement to provide proof of financial
 
19 responsibility pursuant to section 287-20 shall not be based upon
 
20 a revocation imposed under subsection (b)(1).
 
21      (h)  Any person who violates this section shall be guilty of
 
22 a violation.
 

 
 
 
Page 7                                                     1976
                                     H.B. NO.           
                                                        
                                                        

 
 1      (i)  As used in this section the terms "driver", "driver's
 
 2 license", and "examiner of drivers", shall have the same meanings
 
 3 as provided in section 286-2, the term "illegal drug" refers to
 
 4 any controlled substance included in schedule I, II, III, IV, or
 
 5 V, pursuant to chapter 329, the possession of which would be
 
 6 illegal under state law and includes any dangerous drug,
 
 7 detrimental drug, harmful drug, intoxicating compound, marijuana,
 
 8 or marijuana concentrate as those terms are defined in section
 
 9 712-1240, and the term "vehicle" shall have the same meaning as
 
10 provided in section 291C-1.
 
11      (j)  No person shall be convicted under subsection (a) based
 
12 solely upon evidence that the person consumed only a prescribed
 
13 medication for which the person has a valid prescription or an
 
14 over the counter medication."
 
15      SECTION 2.  Section 286-151, Hawaii Revised Statutes, is
 
16 amended to read as follows:
 
17      "286-151  Implied consent of driver of motor vehicle or
 
18 moped to submit to testing to determine alcohol concentration and
 
19 drug content.(a)  Any person who operates a motor vehicle or
 
20 moped on the public highways of the State shall be deemed to have
 
21 given consent, subject to this part, to a test or tests approved
 
22 by the director of health of the person's breath, blood, or urine
 

 
 
 
Page 8                                                     1976
                                     H.B. NO.           
                                                        
                                                        

 
 1 for the purpose of determining alcohol concentration or drug
 
 2 content of the person's breath, blood, or urine, as applicable.
 
 3      (b)  The test or tests shall be administered at the request
 
 4 of a police officer having probable cause to believe the person
 
 5 driving or in actual physical control of a motor vehicle or moped
 
 6 upon the public highways is under the influence of intoxicating
 
 7 liquor or drugs, or is under the age of twenty-one and has a
 
 8 measurable amount of alcohol concentration[,] or drug content,
 
 9 only after:
 
10      (1)  A lawful arrest; and
 
11      (2)  The person has been informed by a police officer of the
 
12           sanctions under part XIV and sections 286-151.5 and
 
13           286-157.3.
 
14      (c)  If there is probable cause to believe that a person is
 
15 in violation of section 291-4 or section 291-4.3, then the person
 
16 shall have the option to take a breath or blood test, or both,
 
17 for the purpose of determining the alcohol concentration.
 
18      (d)  If there is probable cause to believe that a person is
 
19 in violation of section 291-7[,] or section 291-   , then the
 
20 person shall have the option to take a blood or urine test, or
 
21 both, for the purpose of determining the drug content.  Drug
 
22 content shall be measured by the presence of any scheduled drug
 

 
 
 
Page 9                                                     1976
                                     H.B. NO.           
                                                        
                                                        

 
 1 as provided in section 291-7, section 291-   ,  or its metabolic
 
 2 products or both.  The person shall be informed of the sanctions
 
 3 of section 286-157.3 for failure to take either test.
 
 4      (e)  A person who chooses to submit to a breath test under
 
 5 subsection (c) also may be requested to submit to a blood or
 
 6 urine test, if the officer has probable cause to believe that the
 
 7 person was driving under the influence of any drug under
 
 8 section 291-7, section 291-   , or the combined influence of
 
 9 alcohol and drugs and the officer has probable cause to believe
 
10 that a blood or urine test will reveal evidence of the person
 
11 being under the influence of drugs.  The officer shall state in
 
12 the officer's report the facts upon which that belief is based.
 
13 The person shall have the option to take a blood or urine test,
 
14 or both, for the purpose of determining the person's drug
 
15 content.  Results of a blood or urine test conducted to determine
 
16 drug content also shall be admissible for the purpose of
 
17 determining the person's alcohol content.  Submission to testing
 
18 for drugs under subsection (d) or this subsection shall not be a
 
19 substitute for alcohol tests requested under subsection (c)."
 
20      SECTION 3.  Section 286-151.5, Hawaii Revised Statutes, is 
 
21 amended to read as follows:
 
22      "[[]286-151.5[]]  Refusal to submit to testing for
 

 


 

Page 10                                                    1976
                                     H.B. NO.           
                                                        
                                                        

 
 1 measurable amount of alcohol[;] or illegal drugs; district court
 
 2 hearing; sanctions; appeals; admissibility.(a)  If a person
 
 3 under arrest for driving after consuming a measurable amount of
 
 4 alcohol, pursuant to section 291-4.3, or driving after ingesting
 
 5 illegal drugs, pursuant to section 291-   , refuses to submit to
 
 6 a breath or blood test, none shall be given, except as provided
 
 7 in section 286-163, but the arresting officer, as soon as
 
 8 practicable, shall submit an affidavit to a district judge of the
 
 9 circuit in which the arrest was made, stating:
 
10      (1)  That at the time of the arrest, the arresting officer
 
11           had probable cause to believe the arrested person was
 
12           under the age of twenty-one and had been operating a
 
13           motor vehicle or moped upon the public highways with a
 
14           measurable amount of alcohol concentration[;] or
 
15           illegal drug content;
 
16      (2)  That the arrested person had been informed of the
 
17           sanctions of this section; and
 
18      (3)  That the person had refused to submit to a breath or
 
19           blood test.
 
20      (b)  Upon receipt of the affidavit, the district judge shall
 
21 hold a hearing within twenty days.  The district judge shall hear
 
22 and determine:
 

 
Page 11                                                    1976
                                     H.B. NO.           
                                                        
                                                        

 
 1      (1)  Whether the arresting officer had probable cause to
 
 2           believe that the person was under the age of twenty-one
 
 3           and had been operating a motor vehicle or moped upon
 
 4           the public highway with a measurable amount of alcohol
 
 5           concentration[;] or illegal drug content; 
 
 6      (2)  Whether the person was lawfully arrested;
 
 7      (3)  Whether the arresting officer had informed the person
 
 8           of the sanctions of this section; and
 
 9      (4)  Whether the person refused to submit to a test of the
 
10           person's breath or blood.
 
11      (c)  If the district judge finds the statements contained in
 
12 the affidavit are true, the judge shall suspend the arrested
 
13 person's operating privilege as follows:
 
14      (1)  For a first suspension, or any suspension not preceded
 
15           within a five-year period by a suspension under this
 
16           section, for a period of twelve months; and
 
17      (2)  For any subsequent suspension under this section, for a
 
18           period not less than two years and not more than five
 
19           years.
 
20      (d)  An order of a district court issued under this section
 
21 may be appealed to the supreme court.
 
22      (e)  If a legally arrested person under the age of twenty-
 

 
 
 
Page 12                                                    1976
                                     H.B. NO.           
                                                        
                                                        

 
 1 one refuses to submit to a test of the person's breath or blood,
 
 2 proof of refusal shall be admissible only in a hearing under this
 
 3 section or part XIV of this chapter and shall not be admissible
 
 4 in any other action or proceeding, whether civil or criminal.
 
 5      (f)  The term "measurable amount of alcohol" shall have the
 
 6 same meaning as provided in section 291-4.3. 
 
 7      (g)  The term "measurable amount of an illegal drug" shall
 
 8 have the same meaning as provided in section 291-   ."
 
 9      SECTION 4.  This Act does not affect rights and duties that
 
10 matured, penalties that were incurred, and proceedings that were
 
11 begun, before its effective date.
 
12      SECTION 5.  Statutory material to be repealed is bracketed.
 
13 New statutory material is underscored.
 
14      SECTION 6.  This Act shall take effect upon its approval.
 
15 
 
16                           INTRODUCED BY:  _______________________