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

   1. (1) The person is a habitual operator of a vehicle while under the influence of an intoxicant; and

   2. (2) The person operates or assumes actual physical control of a vehicle:

      1. (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;
      2. (B) While under the influence of any drug that impairs the person's ability to operate the vehicle in a careful and prudent manner;
      3. (C) With .08 or more grams of alcohol per two hundred ten liters of breath; or
      4. (D) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.
2. (b) Habitually operating a vehicle while under the influence of an intoxicant is a class C felony.

3. (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. (1) An indeterminate term of imprisonment of five years; or

   2. (2) A term of probation of five years, with conditions to include:

      1. (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;
      2. (B) No less than ten days imprisonment, of which at least forty-eight hours shall be served consecutively;
      3. (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;
      4. (D) Referral to a certified substance abuse counselor as provided in subsection (e);
      5. (E) A surcharge of $25 to be deposited into the neurotrauma special fund; and

      6. (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.

4. (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. (1) An indeterminate term of imprisonment of ten years; or

   2. (2) A term of probation of five years, with conditions to include the following:

      1. (A) Permanent revocation of license to operate a vehicle;
      2. (B) No less than eighteen months imprisonment;
      3. (C) A fine of no less than $5,000 but no more than $25,000; and

      4. (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.

5. (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.
6. (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.
7. (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.

8. (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. (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. (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. (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:

   4. (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;
   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

   6. (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:

   7. (1) Two or more times for offenses of operating a vehicle under the influence; or
   8. (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]

Note

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.

Case Notes

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 this section did not adequately allege the lesser-included offense of operating a vehicle under the influence of an intoxicant as a first offender under §291E-61 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).

Where, under §701-114(1)(a), proof of each element of an offense is required for a conviction, and the term "habitual" or "habitual operator" in the indictment did not convey the narrow definition that the person charged with habitually operating a vehicle under the influence of an intoxicant had to have three or more convictions within the previous ten years, the phrase "habitual operator" did not provide adequate notice to defendant what the State was required to prove as an element of the offense; thus, defendant's conviction vacated. 128 H. 132 (App.), 284 P.3d 905 (2012).

Discussed: 133 H. 102, 324 P.3d 912 (2014).