HOUSE OF REPRESENTATIVES

H.B. NO.

393

TWENTY-SIXTH LEGISLATURE, 2011

H.D. 2

STATE OF HAWAII

S.D. 2

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO CRIME.

 

 

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

 


PART I

     SECTION 1.  Section 286-124, Hawaii Revised Statutes, is amended to read as follows:

     "§286-124  Mandatory revocation of license by a court.  (a) Any court of competent jurisdiction shall [forthwith] immediately revoke the license of any driver for a period of up to ten years upon a conviction of the driver of manslaughter resulting from the operation of a motor vehicle.

     (b)  Any court of competent jurisdiction shall immediately revoke the license of any driver for a period of up to five years upon a conviction of the driver of negligent homicide in the first degree under section 707-702.5 or negligent homicide in the second degree under section 707-703."

     SECTION 2.  Section 706-624, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

     "(2)  Discretionary conditions.  The court may provide, as further conditions of a sentence of probation, to the extent that the conditions are reasonably related to the factors set forth in section 706-606 and to the extent that the conditions involve only deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 706‑606(2), that the defendant:

    (a)   Serve a term of imprisonment not exceeding two years in class A felony cases under part IV of chapter 712[,] and section 707-702, eighteen months in class B felony cases, one year in class C felony cases, six months in misdemeanor cases, and five days in petty misdemeanor cases; provided that notwithstanding any other provision of law, any order of imprisonment under this subsection that provides for prison work release shall require the defendant to pay thirty per cent of the defendant's gross pay earned during the prison work release period to satisfy any restitution order.  The payment shall be handled by the adult probation division and shall be paid to the victim on a monthly basis;

    (b)   Perform a specified number of hours of services to the community as described in section 706-605(1)(d);

    (c)   Support the defendant's dependents and meet other family responsibilities;

    (d)   Pay a fine imposed pursuant to section 706-605(1)(b);

    (e)   Work conscientiously at suitable employment or pursue conscientiously a course of study or vocational training that will equip the defendant for suitable employment;

    (f)   Refrain from engaging in a specified occupation, business, or profession bearing a reasonably direct relationship to the conduct constituting the crime or engage in the specified occupation, business, or profession only to a stated degree or under stated circumstances;

    (g)   Refrain from frequenting specified kinds of places or from associating unnecessarily with specified persons, including [but not limited to] the victim of the crime, any witnesses, regardless of whether they actually testified in the prosecution, law enforcement officers, co-defendants, or other individuals with whom contact may adversely affect the rehabilitation or reformation of the person convicted;

    (h)   Refrain from use of alcohol or any use of narcotic drugs or controlled substances without a prescription;

    (i)   Refrain from possessing a firearm, ammunition, destructive device, or other dangerous weapon;

    (j)   Undergo available medical or mental health treatment, including treatment for substance abuse dependency, and remain in a specified facility if required for that purpose;

    (k)   Reside in a specified place or area or refrain from residing in a specified place or area;

    (l)   Submit to periodic urinalysis or other similar testing procedure;

    (m)   Refrain from entering specified geographical areas without the court's permission;

    (n)   Refrain from leaving the person's dwelling place except to go to and from the person's place of employment, the office of the person's physician or dentist, the probation office, or any other location as may be approved by the person's probation officer pursuant to court order.  As used in this paragraph, "dwelling place" includes the person's yard or, in the case of condominiums, the common elements;

    (o)   Comply with a specified curfew;

    (p)   Submit to monitoring by an electronic monitoring device; or

    (q)   Satisfy other reasonable conditions as the court may impose."

     SECTION 3.  Section 706-659, Hawaii Revised Statutes, is amended to read as follows:

     "§706-659  Sentence of imprisonment for class A felony.  Notwithstanding part II; sections 706-605, 706-606, 706-606.5, 706-660.1, 706-661, and 706-662; and any other law to the contrary, a person who has been convicted of a class A felony, except class A felonies defined in chapter 712, part IV, or section 707-702, shall be sentenced to an indeterminate term of imprisonment of twenty years without the possibility of suspension of sentence or probation.  The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669.  A person who has been convicted of a class A felony defined in chapter 712, part IV, or section 707-702, may be sentenced to an indeterminate term of imprisonment, except as provided for in section 706‑660.1 relating to the use of firearms in certain felony offenses and section 706-606.5 relating to repeat offenders.  When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be twenty years.  The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669."

     SECTION 4.  This part does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

PART II

     SECTION 5.  Section 291E-44.5, Hawaii Revised Statutes, is amended to read as follows:

     "§291E-44.5  Ignition interlock permits; driving for employment.

  (a)(1)  Except as provided in paragraph (2), upon proof that the respondent has installed an ignition interlock device in the respondent's vehicle, or pursuant to an order of eligibility for an ignition interlock permit issued by the court and proof that the respondent has installed an ignition interlock device in the respondent's vehicle, as authorized under section 291E-61(l), the director shall issue an ignition interlock permit that will allow the respondent to drive a vehicle equipped with an ignition interlock device during the revocation period; provided that the director shall issue an ignition interlock permit within three days of the director's receipt of the order of eligibility for an ignition interlock permit and proof that the respondent has installed an ignition interlock device in the respondent's vehicle; or

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

         (A)  A respondent whose license is expired, suspended, or revoked as a result of action other than the instant revocation[;], except as authorized in section 291E-61(l);

         (B)  A respondent who does not hold a valid license at the time of arrest for the violation of section 291E-61; or

         (C)  A respondent 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).

  (b)(1)  Except as provided in subsection (a)(2), the director may issue a separate permit authorizing a respondent to operate a vehicle owned by the respondent's employer during the period of revocation without installation of an ignition interlock device if the respondent is gainfully employed in a position that requires driving and the respondent will be discharged if prohibited from driving a vehicle not equipped with an ignition interlock device. 

     (2)  A request made pursuant to paragraph (1) shall be accompanied by:

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

         (B)  A sworn statement from the respondent's employer establishing that the employer will, in fact, discharge the respondent if the respondent is prohibited from driving a vehicle not equipped with an ignition interlock device and identifying the specific vehicle and hours of the day the respondent will drive, not to exceed twelve hours per day, for purposes of employment.

     (c)  A permit issued pursuant to subsection (b) shall include restrictions allowing the respondent 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 respondent's possession while operating the employer's vehicle.

In addition, the director may impose other appropriate restrictions.

     (d)  Upon the receipt by the director of an order of eligibility for an ignition interlock permit and an order directing the director to issue temporary number plates and temporary motor vehicle registration, the director shall issue temporary number plates and temporary motor vehicle registration to the respondent named in the order.  The temporary number plates and temporary motor vehicle registration shall be for a period not exceeding ten business days.  Upon proof of the installation of an ignition interlock device and receipt of the order of eligibility for an ignition interlock permit under subsection (a)(1), the director shall issue the ignition interlock device and shall suspend the revocation of the motor vehicle registration and the number plates for the motor vehicle upon which the respondent has installed the ignition interlock device."

     SECTION 6.  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;

         (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)  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;

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

         (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,

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.

     (c)  Notwithstanding any other law to the contrary[,] except for subsection (l), 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 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 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)  Any person whose driving privilege is currently suspended or revoked:

     (1)  As a result of an alcohol enforcement contact, as defined in section 291E-1, or pursuant to a conviction under this section;

     (2)  Whose suspension or revocation occurred on or before December 31, 2010;

     (3)  Who has not been convicted pursuant to section 291E-61.5, 291E-62, 707-702.5, or 707-703, or pursuant to section 707-702 when the conviction resulted from the operation of a motor vehicle;

     (4)  Whose suspension or revocation was not permanent; and

     (5)  Who is not otherwise disqualified from being issued an ignition interlock permit pursuant to subsection (c),

may by motion apply to the court for an order of eligibility for an ignition interlock permit for a period not to exceed the remainder of the suspension or revocation period.  Upon proof that the person meets the eligibility criteria described in paragraphs (1) through (5), inclusive, the court shall order the order of eligibility for an ignition interlock permit and an order to the director to issue temporary motor vehicle registration and temporary number plates for the person's motor vehicle that were previously seized or revoked pursuant to the suspension or revocation for a period not exceeding ten business days.  The person shall, within seven business days provide proof to the director that the person has installed an ignition interlock device on the person's motor vehicle.  A person who meets the eligibility requirements of paragraphs (1) through (5), inclusive may also apply to the court for a permit pursuant to subsection (d) of this section, subject to the procedures and requirements therein.

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

     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, 2051.

 



 

Report Title:

Judicial Sentencing; Penal Code; Manslaughter; Negligent Homicide

 

Description:

Establishes a procedure that allows certain DUI offenders whose privilege to drive was suspended or revoked prior to the effective date of the ignition interlock law to obtain an ignition interlock permit or permit to drive their employers' vehicles, subject to restrictions and limitations.  Amends the driver's license revocation provision to require a maximum license revocation period of up to ten years upon conviction of a driver for manslaughter involving the operation of a vehicle.  Gives discretion to the courts to revoke the license of any driver for up to five years upon a conviction of a driver of negligent homicide in the first degree or negligent homicide in the second degree.  Allows up to two years of imprisonment when a convicted defendant is sentenced to probation for manslaughter.  Clarifies that probation is an applicable sentence for manslaughter.  Effective July 1, 2051.  (SD2)

 

 

 

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