(a) A person commits the offense of habitually operating a vehicle under the influence of an intoxicant if:

Attorney's Note

Under the Hawaii Revised Statutes, punishments for crimes depend on the classification. In the case of this section:
ClassPrisonFine
Class B felonyup to 10 yearsup to $25,000
Class C felonyup to 5 yearsup to $10,000
For details, see Haw. Rev. Stat. § 706-660
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Terms Used In Hawaii Revised Statutes 291E-61.5 v2

  • Alcohol: means ethanol or any substance containing ethanol. See Hawaii Revised Statutes 291E-1
  • Certified substance abuse counselor: means any person certified by the department of health pursuant to section 321-193(10), or any other substance abuse specialist or medical practitioner the director of health may appoint to carry out the functions of a certified substance abuse counselor under this chapter. See Hawaii Revised Statutes 291E-1
  • Conviction: A judgement of guilt against a criminal defendant.
  • county: includes the city and county of Honolulu. See Hawaii Revised Statutes 1-22
  • Drug: means any controlled substance, as defined and enumerated in schedules I through IV of chapter 329, or its metabolites, or any substance that, when taken into the human body, can impair the ability of a person to operate a vehicle safely. See Hawaii Revised Statutes 291E-1
  • Highly intoxicated driver: means a person whose measurable amount of alcohol is:

    (1) . See Hawaii Revised Statutes 291E-1
  • Ignition interlock device: means a breath alcohol ignition interlock device that is certified pursuant to section 291E-6 and rules adopted thereunder that, when affixed to the ignition system of a motor vehicle, prevents the vehicle from being started without first testing, and thereafter from being operated without periodically retesting, a deep-lung breath sample of the person required to use the device that indicates the person's alcohol concentration is less than . See Hawaii Revised Statutes 291E-1
  • Impair: means to weaken, to lessen in power, to diminish, to damage, or to make worse by diminishing in some material respect or otherwise affecting in an injurious manner. See Hawaii Revised Statutes 291E-1
  • Intoxicant: means alcohol or any drug, as defined in this section. See Hawaii Revised Statutes 291E-1
  • License: means any driver's license or any other license or permit to operate a motor vehicle issued under, or granted by, the laws of this State and includes:

    (1) Any learner's permit or instruction permit;
    (2) The privilege of any person to operate a motor vehicle, regardless of whether the person holds a valid license;
    (3) Any nonresident's operating privilege; and
    (4) The eligibility, including future eligibility, of any person to apply for a license or privilege to operate a motor vehicle. See Hawaii Revised Statutes 291E-1
  • Nolo contendere: No contest-has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.
  • Operate: means 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 physical control of a vessel underway on or in the waters of the State. See Hawaii Revised Statutes 291E-1
  • Operator: means a person who drives or assumes actual physical control of a vehicle or a person who operates, navigates, or who has an essential role in the operation of a vessel underway. See Hawaii Revised Statutes 291E-1
  • Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
  • Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
  • Respondent: means a person to whom a notice of administrative revocation has been issued following an arrest for a violation of § 291E-61 or 291E-61. See Hawaii Revised Statutes 291E-1
  • Restitution: The court-ordered payment of money by the defendant to the victim for damages caused by the criminal action.
  • Substance: means any plant, medication, poison, natural or synthetic chemical, or any compound or combination of these, and includes but is not limited to central nervous system depressants, central nervous systems stimulants, hallucinogens, dissociative anesthetics, narcotic analgesics, inhalants, and cannabis. See Hawaii Revised Statutes 291E-1
  • Substance abuse: means the use or misuse of alcohol, any drug on schedules I through IV of chapter 329, or any substance as defined in this section, to any extent deemed deleterious or detrimental to the user, to others, or to society. See Hawaii Revised Statutes 291E-1
  • Under the influence: means that a person:

    (1) Is 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) Is under the influence of any drug that impairs the person's ability to operate the vehicle in a careful and prudent manner;
    (3) Has . See Hawaii Revised Statutes 291E-1
  • Vehicle: includes a:

    (1) Motor vehicle;
    (2) Moped; and
    (3) Vessel. See Hawaii Revised Statutes 291E-1
  • Verdict: The decision of a petit jury or a judge.
(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) 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 § 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 December31, 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 § 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 § 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 § 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.
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