THE SENATE

S.B. NO.

1142

TWENTY-EIGHTH LEGISLATURE, 2015

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO HIGHWAY SAFETY.

 

 

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

 


PART I

TRAFFIC VIOLATIONS

     SECTION 1.  Section 291-3.3, Hawaii Revised Statutes, is amended to read as follows:

     "§291-3.3  Storage of opened container containing intoxicating liquor or consumption at scenic lookout.  (a)  No person shall keep in a motor vehicle, or on a moped when such vehicle or moped is upon any public street, road, or highway or at any scenic lookout, any bottle, can, or other receptacle containing any intoxicating liquor which has been opened, or a seal broken, or the contents of which have been partially removed or fully removed, unless such container is kept in the trunk of the vehicle, or [kept in some other area of the vehicle not normally occupied by the driver or passengers, if the vehicle is not equipped with a trunk.] if the vehicle is not equipped with a trunk, unless such container is kept in an area of the vehicle not normally occupied by the driver or passengers, including the area behind the last designed upright seat in the vehicle, or any locked vehicle compartments.  A utility or glove compartment shall be deemed to be within the area occupied by the driver and passengers.

     (b)  No person shall consume any intoxicating liquor at any scenic lookout.

     (c)  Subsection (a) shall not apply to [a recreational or other vehicle not having a separate trunk compartment.] the storage of any bottle, can, or other receptacle containing any intoxicating liquor which has been opened, or a seal broken, or the contents of which have been partially removed or fully removed within the living quarters of a recreational vehicle, house coach, or house trailer, or the possession of such bottle, can, or other receptacle in the living quarters of a recreational vehicle, house coach, or house trailer, by a passenger of such a vehicle.

     (d)  Any person violating this section shall be guilty of a violation."

PART II

USE OF INTOXICANTS WHILE OPERATING A VEHICLE

     SECTION 2.  Section 291E-6, Hawaii Revised Statutes, is amended to read as follows:

     "§291E-6  Ignition interlock devices; certification[.], monitoring, and operations and compliance.  (a)  The director of transportation shall establish and administer a statewide program relating to certification, [and] monitoring, and operations and compliance of ignition interlock devices installed pursuant to chapter 291E and shall select a single vendor to install and maintain them.

     (b)  The program shall include standards established by the National Highway Traffic Safety Administration and procedures for the certification of ignition interlock devices installed pursuant to chapter 291E.  At a minimum, the standards shall require that the devices:

     (1)  Be certified by an independent laboratory to meet or exceed the guidelines published by the National Highway Traffic Safety Administration;

     (2)  Operate using an alcohol-specific sensor technology;

     (3)  Employ a digital camera by which a photograph of the person using the device can be incorporated into the electronic record generated by each use of the device;

     (4)  Require a rolling retest by which the driver must, within a specified period of time or distance driven after starting the vehicle, be retested and found to have an alcohol concentration of less than .02, with a margin of error of .01; and

     (5)  Generate a record of vehicle usage, including dates and times driven.

     (c)  The program shall include standards and procedures for the certification of the vendor selected to install and maintain ignition interlock devices pursuant to chapter 291E.  At a minimum, the standards shall require that the vendor:

     (1)  Install only an ignition interlock device that is certified pursuant to this section;

     (2)  Offer or contract for ignition interlock device installation and maintenance statewide;

     (3)  Train drivers who are required to install an ignition interlock device, pursuant to chapter 291E, in how to use the device;

     (4)  Schedule the driver for all necessary readings and maintenance of the device; and

     (5)  Provide periodic reports regarding the use of each ignition interlock device installed pursuant to chapter 291E, including incidents of test failure, attempts to circumvent the device, and dates, times, and distances the vehicle was driven.

     (d)  The vendor selected for installation and maintenance of ignition interlock devices pursuant to chapter 291E shall be audited annually by the director of transportation pursuant to this section and the rules adopted thereunder.  The director of transportation may require the vendor to pay for all or part of the costs incurred in conducting the audit.

     (e)  The director of transportation shall review all ignition interlock reports submitted by the vendor and monitor these reports for compliance with established rules.

     [(e)] (f)  The director of transportation shall adopt rules pursuant to chapter 91 necessary for the purposes of this section."

     SECTION 3.  Section 291E-44.5, Hawaii Revised Statutes, is amended to read as follows:

     "§291E-44.5  Ignition interlock permits; driving for employment.  (a)  Except as provided in subsection (b), upon proof that the respondent has installed an ignition interlock device in any vehicle the respondent operates and obtained motor vehicle insurance or self-insurance that complies with the requirements of section 431:10C-104 or 431:10C-105, 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.

     (b)  Except as provided in sections 286-118.5 and 291E-61.6, the director shall not issue an ignition interlock permit to:

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

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

     (3)  A respondent who holds a license that is a learner's permit or instruction permit; or

     (4)  A respondent 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).

     (c)  Except as provided in subsection (b), 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[.]; provided that the respondent's license has not been previously revoked for sections 291E-41, 291E-61, or 291E-61.5 in the preceding five years, other than the instant revocation.

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

     (1)  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

     (2)  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 or vehicles and hours of the day the respondent will drive, not to exceed twelve hours per day, for purposes of employment.

     (e)  A permit issued pursuant to subsection (c) 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 vehicles specified; and

     (3)  Only if the permit is kept in the respondent's possession while operating the employer's vehi1cle.

In addition, the director may impose other appropriate restrictions."

     SECTION 4.  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 the 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] $300 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 the 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] $1,000 but not more than $2,500;

         (B)  Revocation for two years of license [and privilege to operate a vehicle during the revocation period] and the installation 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)  Except as provided in sections 286-118.5 and 291E-61.6, 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;

     (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[.][.]; provided that the respondent's license has not been previously revoked for sections 291E-41, 291E-61, or 291E-61.5 in the preceding five years, other than the instant revocation; provided that it is the defendant's first conviction within a five-year period or any previous conviction for an offense under this section or section 291E-61.5 or 291E-4(a).

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

     SECTION 5.  Section 291E-61.5, Hawaii Revised Statutes, is amended to read as follows:

     "§291E-61.5  Habitually operating a vehicle under the influence of an intoxicant.  (a)  A person commits the offense of habitually operating a vehicle under the influence of an intoxicant if:

     (1)  The person is a habitual operator of a vehicle while under the influence of an intoxicant; and

     (2)  The person operates or assumes actual physical control of a vehicle:

         (A)  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;

         (B)  While under the influence of any drug that impairs the person's ability to operate the vehicle in a careful and prudent manner;

         (C)  With .08 or more grams of alcohol per two hundred ten liters of breath; or

         (D)  With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.

     (b)  For the purposes of this section:

     "Convicted three or more times for offenses of operating a vehicle under the influence" means that, at the time of the behavior for which the person is charged under this section, the person had three or more times within ten years of the instant offense:

     (1)  A judgment on a verdict or a finding of guilty, or a plea of guilty or nolo contendere, for a violation of this section or section 291-4, 291-4.4, or 291-7 as those sections were in effect on December 31, 2001, or section 291E-61 or 707-702.5;

     (2)  A judgment on a verdict or a finding of guilty, or a plea of guilty or nolo contendere, for an offense that is comparable to this section or section 291-4, 291-4.4, or 291-7 as those sections were in effect on December 31, 2001, or section 291E-61 or 707-702.5; or

     (3)  An adjudication of a minor for a law or probation violation that, if committed by an adult, would constitute a violation of this section or section 291-4, 291-4.4, or 291-7 as those sections were in effect on December 31, 2001, or section 291E-61 or 707-702.5;

that, at the time of the instant offense, had not been expunged by pardon, reversed, or set aside.  All convictions that have been expunged by pardon, reversed, or set aside prior to the instant offense shall not be deemed prior convictions for the purposes of proving the person's status as a habitual operator of a vehicle while under the influence of an intoxicant.

     A person has the status of a "habitual operator of a vehicle while under the influence of an intoxicant" if the person has been convicted three or more times within ten years of the instant offense, for offenses of operating a vehicle under the influence of an intoxicant.

     (c)  Habitually operating a vehicle while under the influence of an intoxicant is a class C felony.

     (d)  For a conviction under this section, the sentence shall be either:

     (1)  An indeterminate term of imprisonment of five years; or

     (2)  A term of probation of five years, with conditions to include:

         (A)  Mandatory revocation of license and privilege to operate a vehicle for a period not less than [one year] three years but not more than five years[;] and the installation during the revocation period of an ignition interlock device on any vehicle operated by the person to commence after imprisonment;

         (B)  Not less than ten days imprisonment[, of which at least forty-eight hours shall be served consecutively];

         (C)  Referral to a certified substance abuse counselor as provided in section 291E-61(d);

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

         (E)  May be charged a surcharge of up to $50 to be deposited into the trauma system special fund if the court so orders.

         (F)  If the person demonstrates to the court that the person:  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 is otherwise unable to drive during the revocation period; and

                   (i)  The person shall be absolutely prohibited from driving during the period of applicable revocation as provided in paragraph (2)(A); and the court shall not issue an ignition interlock permit pursuant to subsection (2)(A) and the person shall be subject to the penalties provided by section 291E-62 if the person drives during the applicable revocation period; and

                   (ii) The courts shall require that the person be subject to an alcohol monitoring device or drug testing or both and require the person be tested for either or both at unannounced times during the revocation period.

In addition to the foregoing, any vehicle owned and operated by the person committing the offense shall be subject to forfeiture pursuant to chapter 712A, provided that the department of transportation shall provide storage for vehicles forfeited under this subsection.

     (e)  Whenever a court sentences a person under this section, it shall also 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.

     (f)  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 expiration of the period of revocation determined by the court.  After the period of revocation is complete, the person may apply for and the examiner of drivers may grant to the person a new driver's license.

     (g)  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.

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

PART III

     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.

PART IV

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

     SECTION 8.  This Act shall take effect upon approval.

 

INTRODUCED BY:

_____________________________

 

 

BY REQUEST


 


 

Report Title:

Highway Safety; Ignition Interlock; Motor Vehicle

 

Description:

Amends the law for operating a vehicle under the influence of an intoxicant.  Mandates the use of an ignition interlock for all offenders convicted and adjudicated for the offense of operating a vehicle under the influence of an intoxicant.  Increases the fines for the violation.  Removes the exemption for the repeat offender to drive without an ignition interlock if employed and required to drive a company vehicle for employment.  Authorizes the director of transportation to make administrative rules governing the certification, monitoring, operation and compliance of the ignition interlock and authorizes penalties under these rules.

 

Amends the law relating to the storage of opened container that contains intoxicating liquor or the consumption at the scenic lookout and clarify where intoxicating liquor may be kept in a motor vehicle.  Further clarifies who and where an opened container may be possessed in a recreational vehicle, house coach or house trailer.

 

 

 

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