Habitually operating a vehicle under the influence of an intoxicant
HRS §291E-61.5
in effect291E-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) Habitually operating a vehicle while under
the influence of an intoxicant is a class C felony.
(c) [Repeal and
reenactment on June 30, 2028. L 2023, c 148, §8(2).] 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 to
operate a vehicle for a period no less than three years but no more than five
years, with mandatory installation of an ignition interlock device in all
vehicles operated by the respondent during the revocation period;
(B) No less than ten days imprisonment, of
which at least forty-eight hours shall be served consecutively;
(C) A fine of no less than $2,000 but no more
than $5,000, to be deposited into the drug and alcohol toxicology testing
laboratory special fund;
(D) Referral to a certified substance abuse
counselor as provided in subsection (e);
(E) A surcharge of $25 to be deposited into
the neurotrauma special fund; and
(F) A surcharge of up to $50 to be deposited
into the trauma system special fund if the court so orders.
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.
(d) For any person who is convicted under this
section and was a highly intoxicated driver at the time of the subject
incident, the offense shall be a class B felony and the person shall be
sentenced to the following:
(1) An indeterminate term of imprisonment of ten
years; or
(2) A term of probation of five years, with
conditions to include the following:
(A) Permanent revocation of license to
operate a vehicle;
(B) No less than eighteen months
imprisonment;
(C) A fine of no less than $5,000 but no more
than $25,000; and
(D) Referral to a certified substance abuse
counselor as provided in subsection (e).
In addition to the foregoing, any vehicle owned and
operated by the person who committed the offense shall be subject to forfeiture
pursuant to chapter 712A.
(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:
"Convicted one or more times for offenses
of habitually 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 one 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 291-4.4 as that section was in effect on December 31, 2001;
(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 291-4.4 as that section was in effect on December 31,
2001; 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 291-4.4 as that section was in effect on December 31, 2001,
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 before 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.
"Convicted two 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 two
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 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
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
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 before the instant offense
shall not be deemed prior convictions for the purposes of proving that the
person is a habitual operator of a vehicle while under the influence of an
intoxicant.
"Examiner of drivers" has the same
meaning as provided in section 286-2.
"Habitual operator of a vehicle while
under the influence of an intoxicant" means that the person was convicted:
(1) Two or more times for offenses of operating a
vehicle under the influence; or
(2) One or more times for offenses of habitually
operating a vehicle under the influence.
[L 2003, c 71, §1; am L 2004, c 90,
§13; am L 2005, c 194, §2; am L 2008, c 231, §18; am L 2015, c 11, §1; am L
2019, c 169, §2; am L 2020, c 70, §44; am L 2021, c 196, §§5, 11 and c 216, §6;
am L 2023, c 148, §5]
Source: Hawaii State Legislature (capitol.hawaii.gov), via Internet Archive capturesURL: http://www.capitol.hawaii.gov/hrscurrent/Vol05_Ch0261-0319/HRS0291E/HRS_0291E-0061_0005.htmFetched: 11/10/2026