SUMMARY OF HAWAII IMPAIRED DRIVING STATUES

(As of July 1, 2007)

COMMON ACRONYM USED TO DESCRIBE DRUNK DRIVING:

OVUII, OUI, DUI, Drunk Driving, Driving Under the Influence

PROHIBITED VEHICULAR ACTIVITY: 

To drive or assume actual physical control of a vehicle upon a public way, street, road, or highway or to navigate or otherwise use or assume actual physical control of a vessel underway on or in the waters of the State while under the influence of an intoxicant.  

COVERED VEHICLES OR DEVISES:

Motor vehicle, moped, and vessel  

COVERED LOCATIONS:

Any public way, street, road, highway, or on or in the waters of the State of Hawaii

DRINKING-DRIVING OFFENSES:

         I.       Operating a vehicle under the influence of an intoxicant (OVUII) (petty misdemeanor) (four methods of proof) (H.R.S. §291E-61(a)):

                  A.      While under the influence of alcohol, or

                  B.      While under the influence of any drug enumerated in schedules I through IV of H.R.S Chapter 329 or its metabolites, or

                  C.      With .08 or more grams of alcohol per 210 liters of breath, or

                  D.      With .08 or more grams of alcohol per 100 milliliters or cubic centimeters of blood.

         II.      Habitually operating a vehicle under the influence of an intoxicant (Class C felony) (H.R.S. §291E-61.5(a)):

                  A.      Any of the methods of proof listed above for H.R.S. §291E-61(a) plus the driver has been convicted or adjudicated as a minor in Hawaii three or more times within ten years of the instant offense of operating a vehicle under the influence of alcohol or drugs.

         III.      Operating a vehicle after license suspended or revoked for DUI (petty misdemeanor or misdemeanor) (H.R.S. §291E-62(a)):

                  A.      After having license revoked or suspended for DUI (alcohol or drugs) or administratively revoked for DUI in Hawaii, the person did operate or assume actual physical control of any vehicle:

(i) in violation of any restrictions placed on the persons license, or

(ii) while the driver’s license remains suspended or revoked.

         IV.     Operate any vehicle with a measurable amount of alcohol by person under the age of 21 (violation) (H.R.S. §291E-64(a)):

                   A.      “Measurable amount of alcohol” means a test result equal to or greater than .02 but less than .08 grams of alcohol per one hundred milliliters or cubic centimeters of blood or equal to or greater than .02 but less than .08 grams of alcohol per two hundred ten liters of breath.

DEGREE OF IMPAIRMENT REQUIRED FOR CONVICTION

         I.       For DUI alcohol where no chemical test - Impairment of the driver’s normal mental faculties or ability to care for oneself and guard against casualty

         II.      For DUI alcohol where there is also evidence of ingestion of legal or illegal drug(s) -- where a driver’s intoxication is due in any part to alcohol, it is immaterial that the driver may also have been affected by other drugs

         III.      For DUI drugs - Impairment of the person’s ability to operate a vehicle in careful and prudent manner

PENALTIES FOR CRIMINAL DRINKING-DRIVING OFFENSES:

         I.       Operating a vehicle under the influence of an intoxicant (petty misdemeanor) (H.R.S. §291E-61(a))

                  A.      First offense not within five years of a prior conviction:

                                      (i)      14-hour alcohol rehabilitation program,

                                       (ii)     90-day prompt license suspension,

                                       (iii)   any one or more of the following: 72 hours of community service, 48-hours to 5-day jail term, $150 to $1000 fine,

                                       (iv)    $25 neurotrauma surcharge, and

                                       (v)     assessment and treatment, if necessary.

                   B.      First offense by a highly intoxicated driver (.15 BAC or higher) not within five years of a prior conviction:

                                      (i)      14-hour alcohol rehabilitation program,

                                       (ii)     six-month absolute license suspension,

                                       (iii)   any one or more of the following: 72 hours of community service, 48-hours to 5-day jail term, $150 to $1000 fine,

                                       (iv)    $25 neurotrauma surcharge, and

                                       (v)     assessment and treatment, if necessary.

                   C.      For an offense that occurs within five years of a prior conviction:

                                       (i)      1 year license suspension,

                                       (ii)     either one of the following: 240 hours community service or 5 to 14 days jail term, at least 48 hours of which must be consecutive,

                                       (iii)    $500 to 1500 fine,

                                       (iv)    $25 neurotrauma surcharge, and

                                       (v)     assessment and treatment, if necessary.          

                   D.      For an offense that occurs within five years of two prior convictions:

                                      (i)      $500 to $2500 fine,

                                      (ii)     1 to 5 years license revocation,

                                      (iii)    10 to 30-days jail term,

                                      (iv)    $25 neurotrauma surcharge,

                                      (v)     forfeiture of vehicle owned and operated by person, and

                                      (vi)    assessment and treatment, if necessary.

Further, any person 18 years of age or older who drives with a passenger under 15, an additional mandatory term of imprisonment of 48 hours, the total jail term not to exceed the statutory maximum.

         II.      Habitually operating a vehicle under the influence of an intoxicant (Class C felony) (H.R.S. §291E-61.5)

                   A.                (i)      An indeterminate term of imprisonment of five years

                                                           or

                                       (ii)     five years probation and mandatory revocation of license for 1 to 5 years,

                                       (iii)    10-day jail term of which at least 48 hours shall be served consecutively,

                                       (iv)    assessment and treatment, if necessary

                   B.      $25 neurotrauma surcharge,

                   C.      possible forfeiture of vehicle owned and operated by the driver pursuant to H.R.S. Chapter 712A, and

                   D.      assessment and treatment, if necessary.

         III.      Operating, etc., after license and privilege have been suspended or revoked for operating a vehicle under the influence of an intoxicant (H.R.S. §291E-62)

                   A.      First offense not within five years of a prior conviction:

                            (i)      3 to 30-day jail term,

                            (ii)     $250 to $1000 fine, and

                            (iii)    revocation of license for an additional year.

                  B.      For an offense that occurs within five years of a prior conviction:

                            (i)      30-day jail term,

                            (ii)     $1000 fine, and

                            (iii)    revocation of license for an additional two years.

                  C.      For an offense that occurs within five years of two prior convictions:

                            (i)      1-year jail term,

                            (ii)     $2000 fine, and

                            (iii)    permanent revocation of license.

         IV.     Operating , etc., after consuming a measurable amount of alcohol; persons under the age of 21 (H.R.S. §29E-64)

                   A.      For a first violation not within five years of a prior alcohol enforcement contact:

                            (i)      10 hours alcohol abuse education and counseling program,

                            (ii)     180-day suspension of license,

                            (iii)    any one or more of the following: 36 hours of community service, $150 to $500 fine, and

                            (iv)    assessment and treatment, if necessary.

                   B.      For a violation of within five years of a prior alcohol enforcement contact or, for a highly intoxicated driver (.15 BAC or higher):

                            (i)      1-year suspension of license,

                            (ii)     any of the following: 50 hours community service, $300 to $1000 fine, and

                            (iii)    assessment and treatment, if necessary.

                   C.      For a violation within five years of two prior alcohol enforcement contacts:

                            (i)      2-year license revocation,

                            (ii)     Any of the following: 100 hours of community service, $300 to $1000 fine,

                            (iii)    undergo assessment and treatment with the costs borne by the person,

                            (iv)    may be ordered to reimburse the county for any blood or urine tests conducted pursuant to H.R.S. §291E-11, and

                            (v)     assessment and treatment, if necessary.

ADDITIONAL ASSESSMENTS AND FEES

In addition to the above penalties, the court must impose the following

assessments and fees:

         1. Driver education assessment: all offenses $7,

         2. DUI driver education assessment: DUI and habitual DUI $100,

         3. Crime victim fee: petty misdemeanor $30, misdemeanor $55, felony $105-$550,

         4. Drug demand reduction fee: DUI $250, misdemeanor $500, class C felony $1000.

ALCOHOL ENFORCEMENT CONTACT means

         (1) Any administrative revocation ordered pursuant to part III of H.R.S. Chapter 291E;

         (2) Any administrative revocation ordered pursuant to part XIV of chapter 286, as that part was in effect on or before December 31, 2001;

         (3) Any suspension or revocation of any license or motor vehicle registration, or both, or any suspension or revocation of a privilege to operate a vessel underway imposed by this or any other state or federal jurisdiction for refusing to submit to a test for alcohol concentration;

         (4) Any conviction in Hawaii for operating or being in physical control of a vehicle while having an unlawful alcohol concentration or while under the influence of alcohol; or

         (5) Any 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 an unlawful alcohol concentration or while under the influence of alcohol.

STATUTORY DRINKING-DRIVING PRESUMPTIONS: For a BAC of .05% or less within three hours after the alleged offense - presumed not under the influence of intoxicating liquor. BAC or more than .05% but less than .08% within three hours after the alleged offense - admissible but no presumption. BAC of .08% or more within three hours after the alleged offense - competent evidence that the person was under the influence of an intoxicant at the time of the offense.

IMPLIED CONSENT LAWS: Tests permitted:

         A.      Alcohol: Blood and/or breath test as designated by person tested.

         B.      Drug(s): Blood and/or uring test as designated by person tested.

No implied consent advice required unless driver refuses any chemical test, then the sanctions of H.R.S. §291E-41(b) must be read to driver.

PERIODS OF ADMINISTRATIVE REVOCATION:

         (1) A minimum of three months up to a maximum of one year revocation of license and privilege to operate a vehicle, if the driver’s record shows no prior alcohol enforcement contact or drug enforcement contact during the five years preceding the date the notice of administrative revocation was issued;

         (2) A minimum of six months up to a maximum of one year revocation of license and privilege to operate a vehicle and of the registration of any motor vehicle if the driver is a highly intoxicated driver (.15 BAC or higher) and record shows no prior alcohol enforcement contact or drug enforcement contact during the five years preceding the date the notice of administrative revocation was issued;

         (3) A minimum of one year up to a maximum of two years revocation of license and privilege to operate a vehicle and of the registration of any motor vehicle registered to the driver, if the driver's record shows one prior alcohol enforcement contact or drug enforcement contact during the five years preceding the date the notice of administrative revocation was issued;

         (4) A minimum of two years up to a maximum of four years revocation of license and privilege to operate a vehicle and of the registration of any motor vehicle registered to the driver, if the driver's record shows two prior alcohol enforcement contacts or drug enforcement contacts during the seven years preceding the date the notice of administrative revocation was issued;

         (5) Lifetime revocation of license and privilege to operate a vehicle and of the registration of any motor vehicle registered to the driver and a lifetime prohibition on any subsequent registration of motor vehicles by the driver, if the driver's record shows three or more prior alcohol enforcement contacts or drug enforcement contacts during the ten years preceding the date the notice of administrative revocation was issued; or

         (6) For drivers under the age of eighteen years who were arrested for a violation of section 291E-61 or 291E-61.5, revocation of license and privilege to operate a vehicle either for the period remaining until the driver's eighteenth birthday or, if applicable, for the appropriate revocation period provided in paragraphs (1) to (4) or in subsection (d), whichever is longer and such drivers shall not qualify for a conditional permit.

         When more than one administrative revocation, suspension, or conviction arises out of the same arrest, it shall be counted as only one prior alcohol enforcement contact or drug enforcement contact, whichever revocation, suspension, or conviction occurs later.

ADMISSIBILITY OF REFUSAL:

Admissible only in license revocation hearing, not in criminal DUI prosecution.

CONDITIONAL DRIVING PERMITS: A conditional driving permit following a license suspension and/or revocation may be granted only in the following situations:

         (1) Following a conviction for a first offense DUI under H.R.S. §291E-61(a) other than a highly intoxicated driver (.15 BAC or higher), a conditional driving permit may be granted for the last 60 days of the 90 day suspension limited to work-related purposes and participation in substance abuse treatment programs.

         (2) Following a conviction for a first offense driving with a measurable amount of alcohol, a conditional driving permit may be granted to a driver 18 years or older after the first 30 days of the revocation period for the remainder of the period limited to work-related purposes and participation in substance abuse treatment programs.

         (3) Following an administrative driver’s license revocation to a driver who has taken a chemical test (breath, blood, or urine), conditional driving permit may be granted after the first 30 days of the revocation period for the remaining period of the revocation provided the driver’s employment requires driving to avoid discharge or there is no access to alternative transportation to work or substance abuse treatment.

COMMERCIAL DRIVER’S LICENSES:

Any holder of a commercial driver’s license under H.R.S. §286-239(b) or a category 4 license under H.R.S. §286-102(b) is not entitled to a conditional driving permit under any circumstances.

CHEMICAL TEST LAWS:

General provisions: Delegated to State Department of Health

Administrative rules & regulations: Adopted by Department of Health, Chapter 1-114-1 et seq.

Disclosure of test information: Full information must be provided upon request.

BLOOD-DRAWING STATUTE: Only a physician, registered nurse, or person licensed in a clinical laboratory occupation under H.R.S. §291E-12, may withdraw blood for the purpose of chemical testing.

INDEPENDENT TEST STATUTE: The person tested may have physician or other qualified individual of the person’s own choosing withdraw blood and administer a test in addition to the police test. The result of such a test is admissible as provided in H.R.S. §291E-13 & 3. The failure or inability to obtain additional test does not preclude admission in evidence of the police test.

PLEA BARGAINING STATUTE: None. There is no plea bargaining in Hawaii.

Mr. Head thanks Earle A. Partington for editing and adding to the Summary of Hawaii law. Visit his website at www.info@partington-foley.com.