SECTION 1. The legislature finds that studies indicate that many traffic collisions and fatalities involve "highly intoxicated" impaired drivers. For nearly a decade, traffic safety advocates across the State have collaborated to promote traffic safety legislation to deter impaired driving, strive for accountability in the criminal justice system, and save lives. Furthermore, alcohol abuse trends demonstrate a need to take appropriate action to promote public health and protect public safety.

Under existing law, enhancements exist for individuals convicted of the offense of operating a vehicle under the influence of an intoxicant deemed to be a highly intoxicated driver. However, these enhancements are limited to additional fines, minimal jail time, and an additional driver's license revocation period, while the offense itself remains a petty misdemeanor. These enhancements are not sufficient to address the concerns and deter this hazardous conduct. In addition to the possibility of a prison term, if the facts and circumstances so warrant, a class C felony sanction will provide court supervision authorities with an appropriate period to assess, monitor, and rehabilitate highly intoxicated drivers and properly address any potential alcohol abuse or dependence needs through appropriate treatment.

The purpose of this Act is to enhance public safety by:

(1) Specifying that operating a vehicle under the influence of an intoxicant while a highly intoxicated driver is a misdemeanor for a first offense, or any offense not preceded within a ten-year period;

(2) Specifying and imposing additional sentencing and probation requirements for a person convicted of a misdemeanor operating a vehicle under the influence of an intoxicant offense;

(3) Upgrading the offense of operating a vehicle under the influence of an intoxicant while a highly intoxicated driver to a class C felony under certain conditions;

(4) Specifying and imposing additional sentencing and probation requirements for a class C felony offense of operating a vehicle under the influence of an intoxicant while a highly intoxicated driver; and

(5) Prohibiting a deferred acceptance of guilty plea guilty for persons convicted of operating a vehicle under the influence of an intoxicant.

SECTION 2. Section 291E-61, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(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) [~~Except as provided in paragraph (4), for~~] For the first offense, or any offense not preceded within a ten-year period by a conviction for an offense under this section or section 291E-4(a), except as provided in paragraph (4), shall be sentenced without possibility of probation or suspension of sentence to each of the following:

(A) A fourteen-hour minimum substance abuse rehabilitation program, including education and counseling, or other comparable programs deemed appropriate by the court;

(B) Revocation of license to operate a vehicle for [no] not less than one year and [no] not more than eighteen months;

(D) Any one or more of the following:

(i) Seventy-two hours of community service work;

(ii) [No] Not less than forty-eight hours and [no] not more than five days of imprisonment; or

(iii) A fine of [no] not less than $250 and [no] not more than $1,000;

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

(F) A surcharge[~~, if the court so orders, or~~] of up to $25, if the court so orders, to be deposited into the trauma system special fund;

(2) For an offense that occurs within ten years of a prior conviction for an offense under this section[:], except as provided in paragraph (5), shall be sentenced without possibility of probation or suspension of sentence to each of the following:

(A) A substance abuse program of at least thirty-six hours, including education and counseling, or other comparable programs deemed appropriate by the court;

(B) Revocation of license to operate a vehicle for [no] not less than two years and [no] not more than three years;

(D) Either one of the following:

(i) [No] Not less than two hundred forty hours of community service work; or

(ii) [No] Not less than five days and no more than thirty days of imprisonment, of which at least forty-eight hours shall be served consecutively;

(E) A fine of [no] not less than $1,000 and [no] not more than $3,000, to be deposited into the drug and alcohol toxicology testing laboratory special fund;

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

(G) A surcharge of up to $50, if the court so orders, to be deposited into the trauma system special fund;

(3) In addition to a sentence imposed under paragraphs (1) and (2), 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) or (2), as applicable. Notwithstanding paragraphs (1) and (2), the revocation period for a person sentenced under this paragraph shall be [no] not less than two years;

(4) [~~In addition to a sentence imposed under paragraph (1), for a~~] For the first offense [~~under this section, or an~~] or any offense not preceded within a ten-year period by a conviction for an offense[~~, any person who is convicted~~] under this section, and was a highly intoxicated driver at the time of the subject incident, shall be [sentenced to an additional mandatory term of imprisonment for forty-eight consecutive hours and an additional mandatory revocation period of six months; 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). Notwithstanding paragraph (1), the revocation period for a person sentenced under this paragraph shall be no less than eighteen months;] guilty of a misdemeanor and the sentence shall be either:

(A) A term of imprisonment of not less than ten days and each of the following:

(i) A fourteen-hour minimum substance abuse rehabilitation program, including education and counseling, or other comparable programs deemed appropriate by the court;

(ii) Revocation of license to operate a vehicle for not less than eighteen months and not more than two years;

(iii) Installation during the revocation period of an ignition interlock device on all vehicles operated by the person;

(iv) A fine of not less than $500 and not more than $2,000;

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

(vi) A surcharge of up to $25, if the court so orders, to be deposited into the neurotrauma special fund; or

(B) A term of probation of four years, with the following conditions:

(i) A fourteen-hour minimum substance abuse rehabilitation program, including education and counseling, or other comparable programs deemed appropriate;

(ii) Revocation of license to operate a vehicle for not less than eighteen months and not more than two years;

(iii) Install during the revocation period of an ignition interlock device on all vehicles operated by the person;

(iv) A term of imprisonment of not less than five days;

(v) A fine of not less than $500 and not more than $2,000;

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

(vii) A surcharge of up to $25, if the court so orders, to be deposited into the trauma system special fund;

(5) [~~In addition to a sentence under paragraph (2), for~~] For an offense that occurs within ten years of a prior conviction for an offense under this section, [~~any person who is convicted under this section~~] and was a highly intoxicated driver at the time of the subject incident, shall be [sentenced to an additional mandatory term of imprisonment of ten consecutive days and an additional mandatory revocation period of one year; 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 (2), as applicable. Notwithstanding paragraph (2), the revocation period for a person sentenced under this paragraph shall be no less than three years;] guilty of a class C felony and shall be sentenced to either:

(A) An indefinite term of imprisonment of five years; or

(B) A term of probation of four years, with the following conditions:

(i) Commitment to a substance abuse of at least thirty-six hours, including education counseling, or other comparable programs as deemed appropriate by the court;

(ii) Revocation of license to operate a vehicle for not less than three years and not more than four years;

(iii) Installation during the revocation period of an ignition interlock device on all vehicles operated by the person;

(iv) A term of imprisonment of not less than thirty days;

(v) A fine of not less than $2,000 and not more than $5,000, to be deposited into the drug and alcohol toxicology testing laboratory special fund;

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

(vii) A surcharge of up to $50, if the court so orders, to be deposited into the trauma system special fund;

(6) A person sentenced pursuant to paragraph (1)(B) may file a motion for early termination of the applicable revocation period if the person:

(A) Was not sentenced to any additional mandatory revocation period pursuant to paragraph (3) or (4);

(B) Actually installed and maintained an ignition interlock device on all vehicles operated by the person for a continuous period of six months, after which the person maintained the ignition interlock device on all vehicles operated by the person for a continuous period of three months without violation;

(C) Includes with the person's motion for early termination a certified court abstract establishing that the person was not sentenced to any additional mandatory revocation period pursuant to paragraph (3) or (4);

(D) Includes with the person's motion for early termination a certified statement from the director of transportation establishing that:

(i) The person installed and maintained an ignition interlock device on all vehicles operated by the person for a continuous period of six months; and

(ii) After the six-month period, the person maintained the ignition interlock device on all vehicles operated by the person for a continuous period of three months without violation; and

(E) Has complied with all other sentencing requirements.

Nothing in this paragraph shall require a court to grant early termination of the revocation period if the court finds that continued use of the ignition interlock device will further the person's rehabilitation or compliance with this section;

(7) 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 prohibited from driving during the period of applicable revocation provided in paragraphs (1) [to] through (5); provided that the person shall be sentenced to the maximum license revocation period, 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; and

(8) For the purposes of this subsection, "violation" means:

(A) Providing a sample of .04 or more grams of alcohol per two hundred ten liters of breath when starting the vehicle, unless a subsequent test performed within ten minutes registers a breath alcohol concentration lower than .02 and the digital image confirmed the same person provided both samples;

(B) Providing a sample of .04 or more grams of alcohol per two hundred ten liters of breath on a rolling retest, unless a subsequent test performed within ten minutes registers a breath alcohol concentration lower than .02 and the digital image confirms the same person provided both samples;

(D) Violating section 291E-66; or

(E) Failing to provide a clear photo of the person when the person blows into the ignition interlock device."

SECTION 3. Section 853-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) This chapter shall not apply when:

(1) The offense charged involves the intentional, knowing, reckless, or negligent killing of another person;

(2) The offense charged is:

(A) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or

(B) A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person;

provided that the prohibition in this paragraph shall not apply to offenses described in section 709‑906(18);

(3) The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person;

(4) The offense charged is a class A felony;

(5) The offense charged is nonprobationable;

(6) The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct that if perpetrated in this State would be punishable as a felony;

(7) The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct that if perpetrated in this State would constitute a felony;

(8) The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction;

(9) A firearm was used in the commission of the offense charged;

(10) The defendant is charged with the distribution of a dangerous, harmful, or detrimental drug to a minor;

(11) The defendant has been charged with a felony offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior offense, regardless of whether the period of deferral has already expired;

(12) The defendant has been charged with a misdemeanor offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior felony, misdemeanor, or petty misdemeanor for which the period of deferral has not yet expired;

(13) The offense charged is:

(A) Escape in the first degree;

(B) Escape in the second degree;

(D) Promoting prison contraband in the second degree;

(E) Bail jumping in the first degree;

(F) Bail jumping in the second degree;

(G) Bribery;

(H) Bribery of or by a witness;

(I) Intimidating a witness;

(J) Bribery of or by a juror;

(K) Intimidating a juror;

(L) Jury tampering;

(M) Promoting prostitution;

(N) Abuse of family or household member except as provided in paragraph (2) and section 709-906(18);

(O) Sexual assault in the second degree;

(P) Sexual assault in the third degree;

(Q) A violation of an order issued pursuant to chapter 586;

(R) Promoting child abuse in the second degree;

(S) Promoting child abuse in the third degree;

(T) Electronic enticement of a child in the first degree;

(U) Electronic enticement of a child in the second degree;

(V) Commercial sexual exploitation pursuant to section 712-1200.5;

(W) Street prostitution and commercial sexual exploitation under section 712-1207(1)(b) or (2)(b);

(X) Commercial sexual exploitation near schools or public parks under section 712-1209;

(Y) Commercial sexual exploitation of a minor under section 712-1209.1;

(Z) Habitual commercial sexual exploitation under section 712-1209.5;

(AA) Violation of privacy in the first degree under section 711-1110.9;

(BB) Violation of privacy in the second degree under section 711-1111(1)(d), (e), (f), (g), or (h);

(CC) Habitually operating a vehicle under the influence of an intoxicant under section 291E‑61.5(a);

(DD) Promoting gambling in the first degree; [or]

(EE) Promoting gambling in the second degree; or

(FF) Operating a vehicle under the influence of an intoxicant under section 291E-61;

(14) The defendant has been charged with:

(A) Knowingly or intentionally falsifying any report required under part XIII of chapter 11, with the intent to circumvent the law or deceive the campaign spending commission; or

(B) Violating section 11-352 or 11-353; or

(15) The defendant holds a commercial driver's license and has been charged with violating a traffic control law, other than a parking law, in connection with the operation of any type of motor vehicle."

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

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval; provided that the amendments made to section 291E-61, Hawaii Revised Statutes, by section 2 of this Act shall not be repealed when that section is reenacted on June 30, 2028, pursuant to Act 196, Session Laws of Hawaii 2021, as amended by Act 148, Session Laws of Hawaii 2023; provided further that the amendments made to section 853-4(a)(13), Hawaii Revised Statutes shall not be repealed when that section is reenacted on June 30, 2026, pursuant to Act 19, Session Laws of Hawaii 2020.

THE SENATE	S.B. NO.	2392
THIRTY-THIRD LEGISLATURE, 2026		S.D. 1
STATE OF HAWAII