Haw. Rev. Stat. § 291E-61
(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:
(b) [Repeal and reenactment on June 30, 2028. L 2023, c 148, §8(2).] 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 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):
(2) For an offense that occurs within ten years of a prior conviction for an offense under this section:
(6) A person sentenced pursuant to paragraph (1)(B) may file a motion for early termination of the applicable revocation period if the person:
(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:
(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 (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 purposes of this subsection, "violation" means:
(c) Except as provided in sections 286-118.5 and 291E-61.6, the court shall not issue an ignition interlock permit to:
(e) A request made pursuant to subsection (d) shall be accompanied by:
(f) A permit issued pursuant to subsection (d) shall include restrictions allowing the defendant to drive:
(g) Notwithstanding any other law to the contrary, any:
(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.
(i) Upon proof that the defendant has:
(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.
[L 2000, c 189, pt of §23; am L 2001, c 157, §25; am L 2002, c 160, §11; am L 2003, c 71, §3; am L 2004, c 90, §12; am L 2005, c 33, §1 and c 194, §1; am L 2006, c 201, §7; am L 2007, c 198, §4; am L 2008, c 171, §§8, 16, 20 and c 231, §17; am L 2009, c 11, §17 and c 45, §§1, 2 as superseded by c 88, §§6, 13, 17(2); am L 2010, c 166, §19; am L 2012, c 327, §21; am L 2014, c 72, §7; am L 2018, c 74, §2; am L 2019, c 111, §11 and c 169, §1; am L 2021, c 196, §§4, 11 and c 216, §5; am L 2022, c 94, §1; am L 2023, c 148, §4]
The L 2021, c 216 amendment is exempt from the repeal and reenactment condition of L 2021, c 196, §11. L 2021, c 216, §10; L 2022, c 94, §4; L 2023, c 148, §9.
The L 2022, c 94 amendment is exempt from the repeal and reenactment condition of L 2021, c 196, §11. L 2022, c 94, §7; L 2023, c 148, §10.
As to the description of the offense, this section, which relates to operating a vehicle under the influence of an intoxicant, substantially reenacted §291-4.4, which pertained to the offense of habitually driving under the influence of intoxicating liquor or drugs. 106 H. 480, 107 P.3d 409 (2005).
Where indictment charged defendant under §291-4.4, the statute that was in effect at the time of defendant's arrest, there was no ex post facto problem. 106 H. 480, 107 P.3d 409 (2005).
Because a prior conviction, as described in subsection (b)(2) (2003), is an elemental attendant circumstance, intrinsic to the offense of operating a vehicle under the influence of an intoxicant, it was necessary that defendant's prior conviction be alleged in the charging instrument and proven at trial as preconditions to defendant's present conviction of operating a vehicle under the influence of an intoxicant for the second time within five years, in violation of subsections (a) and (b)(2) (2003). 114 H. 227, 160 P.3d 703 (2007).
Considerations of due process continue to require that the aggravating factors set forth in subsection (b) - all of which remain "attendant circumstances that are intrinsic to and 'enmeshed' in the hierarchy of offenses that this section as a whole describes" - be alleged in the charging instrument and proven beyond a reasonable doubt at trial. 114 H. 227, 160 P.3d 703 (2007).
The 2003 amendment to this section transformed subsection (b)(1) to (3) into status offenses. 114 H. 227, 160 P.3d 703 (2007).
Where complaint charging defendant with a violation of this section was silent with respect to the attendant circumstance of any prior conviction, complaint was insufficient as a matter of law in charging a violation of subsections (a) and (b)(2) (2003). 114 H. 227, 160 P.3d 703 (2007).
Although prosecution's oral charge failed to adequately set forth the essential elements of the offense described by subsections (a) and (b)(2) (2004), absent the phrase "for your second offense", the prosecution's oral charge set forth the essential elements of the included offense described by subsections (a) and (b)(1) (2004); thus, as record contained sufficient evidence that defendant committed the offense of operating a vehicle under the influence of an intoxicant under subsections (a) and (b)(1) (2004), case remanded for entry of judgment and resentencing under subsections (a) and (b)(1) (2004). 114 H. 411, 163 P.3d 1148 (2007).
Where prosecution failed to present sufficient foundational evidence for either the REA blood alcohol chemical testing procedure or the Abbott AxSYM testing instrument used to perform defendant's blood alcohol test, prosecution failed to prove beyond a reasonable doubt as required under this section that defendant was operating a vehicle with .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood; appeals court thus erred in affirming district court's admission into evidence of defendant's test results without a proper foundation. 121 H. 274, 218 P.3d 762 (2009).
Although the oral charge tracked the language of this section, where the charge failed to allege that defendant was driving defendant's vehicle upon a public way, street, road, or highway at the time of the offense, the charge was deficient, as the term "operate" as defined in §291E-1 did not comport with its commonly understood definition, required the conduct to take place "upon a public way, street, road, or highway", and was neither "unmistakable" nor "readily comprehensible to persons of common understanding". 121 H. 383, 219 P.3d 1170 (2009).
Section 291E-1 establishes an attendant circumstance of the offense of operating a vehicle under the influence of an intoxicant (OVUII), i.e., that the defendant's conduct occur "upon a public way, street, road, or highway"; the definition of "operate" in §291E-1 refers generally to the conduct of "operating" a vehicle under the influence as described in the title of this section, whether the conduct consists of driving the vehicle or otherwise assuming actual physical control of it; thus, the operation of a vehicle on a public way, street, road, or highway is an attendant circumstance of the offense of OVUII and therefore an element of the offense. 121 H. 383, 219 P.3d 1170 (2009).
An appellate court's remand for entry of judgment of conviction and resentencing for a lesser-included offense must be based on a jurisdictionally valid lesser-included charge; where defendant's charge under §291E-61.5 did not adequately allege the lesser-included offense of operating a vehicle under the influence of an intoxicant as a first offender under this section because the charge failed to allege an essential element, specifically, the attendant circumstance that defendant operated a vehicle on a public road, way, street, or highway, the appellate court did not err in vacating and remanding circuit court case. 126 H. 475, 273 P.3d 1161 (2012).
A charge of operating a vehicle under the influence of an intoxicant (OVUII) under subsection (a)(1) must allege the requisite mens rea in order to fully define the offense in unmistakable terms readily comprehensible to persons of common understanding, whereas an OVUII charge under subsection (a)(3) is an absolute liability offense for which mens rea need not be alleged or proven. 127 H. 48, 276 P.3d 617 (2012).
As the distinction between general and specific intent has been abandoned, appellate court erred in relying on general intent cases to hold that mens rea may be inferred from the allegations in an operating a vehicle under the influence of an intoxicant charge under subsection (a)(1). 127 H. 48, 276 P.3d 617 (2012).
A prior judgment of acquittal on a subsection (a)(3) method of proof in an operating a vehicle under the influence of an intoxicant trial is "in form only", but it serves as a factual finding that the State has not met its burden of proving breath alcohol content. As such, the collateral estoppel principle embodied in the double jeopardy clause of article I, §10 of the Hawaii constitution and article V of the U.S. Constitution prohibits the State from re-litigating breath alcohol content, whether in a re-prosecution of defendant on the subsection (a)(3) method of proof, or as part of the State's evidence in a subsequent trial on the subsection (a)(1) method of proof. 129 H. 146, 296 P.3d 359 (2013).
Where it was undisputed that the complaint against defendant failed to allege a mens rea and, therefore, was insufficient to charge a violation of subsection (a)(1), on remand, the charge under subsection (a)(1) should be dismissed without prejudice. 131 H. 1, 313 P.3d 690 (2013).
Where the written submission of plea form in which defendant entered a plea of no contest solely to the subsection (a)(1) method of proof, was silent regarding subsection (a)(3), and the hearing transcript revealed some ambiguity as to the State's and district court's understandings of the plea, the court construed the State as having given up its ability to prosecute defendant under subsection (a)(3) in exchange for defendant's conditional plea under subsection (a)(1); in these circumstances, permitting the State to prosecute defendant under subsection (a)(3) would allow the State to avoid its end of the bargain, and would thereby violate defendant's due process rights. 131 H. 1, 313 P.3d 690 (2013).
The oral charge for operating a vehicle under the influence of an intoxicant was defective because it omitted the requisite state of mind of intentional, knowing, or reckless. 131 H. 215, 317 P.3d 659 (2013).
Failure of charging instrument to fully allege the elements of the crime of operating a vehicle under the influence of an intoxicant as set forth in §291E–61(a)(1) did not abrogate the trial court's subject matter jurisdiction established under chapter 604. 136 H. 258, 361 P.3d 1161 (2015).
Where defendant challenged conviction under subsection (a)(1) for the offense of operating a vehicle under the influence of an intoxicant (OVUII), the intermediate court of appeals (ICA) did not err in: (1) holding that the charge was not fatally defective for failing to include the statutory definition of the term "alcohol"; and (2) holding that there was substantial evidence to support defendant's conviction. However, because the district court's admonishment of defendant may have violated his constitutional rights to due process and against self-incrimination, the ICA did not err in vacating defendant's conviction. 140 H. 157, 398 P.3d 746 (2017).
Complaint was not insufficient for failing to allege a mens rea where complaint alleged all the essential elements of the charged operating a vehicle under the influence of an intoxicant offense and provided the defendant with fair notice of the offense charged; with respect to the violation of subsection (a)(3), the violation is an absolute liability offense that does not require proof of mens rea, and with respect to the violation of subsection (a)(1), mens rea is not an essential element of that violation and could be inferred from the allegations in the complaint. 125 H. 232 (App.), 257 P.3d 245 (2011).
Full retroactive application of the Wheeler rule, i.e., the holding that an operating a vehicle under the influence of an intoxicant (OVUII) charge is deficient if it charges in the language of subsection (a) without specifically alleging the public-road element, to cases on collateral review was not warranted; limited or pipeline retroactive effect was sufficient and appropriate. Moreover, appellant had not shown that the deficiency in the OVUII charge entitled appellant to relief on collateral review. 131 H. 153 (App.), 315 P.3d 779 (2013).
State presented sufficient evidence to show that defendant was a repeat offender under this section, where the State introduced: (1) a case detail report, certified by a district court clerk, that showed that the district court accepted the no contest plea of defendant to a previous charge under this section, that defendant was sentenced, and that a "judgment and notice" was filed; and (2) a traffic abstract for defendant, certified by a district court clerk, that also showed the same information reflected in the case detail report. 134 H. 280 (App.), 339 P.3d 1081 (2014).
Where State's evidence showed that a person with the same name, residence address, date of birth, and last four digits of the social security number as defendant, with a similar appearing signature as defendant, and whose prior traffic convictions were included in defendant's abstract, was previously convicted under this section, there was sufficient evidence to show that defendant was the person previously convicted. 134 H. 280 (App.), 339 P.3d 1081 (2014).
Where the State's amendment before trial of charges under this section and §291E-62 to allege the requisite mens rea did not affect defendant's ability to prepare a defense and did not prejudice defendant's substantial rights, the district court did not err in permitting the State to amend the charges. 134 H. 280 (App.), 339 P.3d 1081 (2014).
Statutory exception for denatured or other non-potable alcohol was a defense to the offense of operating a vehicle under the influence of an intoxicant and not an element of the offense that was required to be alleged in the charge against defendant. 136 H. 333 (App.), 361 P.3d 1236 (2015).