1. (1) A person commits the offense of negligent homicide in the first degree if that person causes the death of:
2. (a) Another person by the operation of a vehicle in a negligent manner while under the influence of drugs or alcohol; or
3. (b) A vulnerable user by the operation of a vehicle in a negligent manner.
4. (2) A person who violates subsection (1)(a) shall be guilty of a class B felony; provided that the person shall be guilty of a class A felony when the person:
5. (a) Has been convicted one or more times for the offense of operating a vehicle under the influence within fifteen years of the instant offense;
6. (b) Is, at the time of the instant offense, engaging in conduct that would constitute a violation of section 291E-62; or
7. (c) Is a highly intoxicated driver as defined by section 291E-1.
8. (3) A person who violates subsection (1)(b) shall be guilty of a class B felony.
9. (4) Notwithstanding sections 706-620(2), 706-640, 706-641, 706-659, and any other law to the contrary, the sentencing court may impose a lesser sentence for a person convicted of a class A felony under this section if the court finds that strong mitigating circumstances warrant the action. Strong mitigating circumstances shall include but not be limited to the provisions of section 706-621. The court shall provide a written opinion stating its reasons for imposing the lesser sentence.
10. (5) For the purposes of this section, a person "has been convicted one or more times for the offense of operating a vehicle under the influence" if the person has one or more:
11. (a) Convictions under section 291E-4(a), 291E-61, 291E-61.5, or 291E-64;
12. (b) Convictions in any other state or federal jurisdiction for an offense that is comparable to operating or being in physical control of a vehicle while having either an unlawful alcohol concentration or an unlawful drug content in the blood or urine or while under the influence of an intoxicant or habitually operating a vehicle under the influence of an intoxicant; or

13. (c) Adjudications of a minor for a law violation that, if committed by an adult, would constitute a violation of section 291E-4(a), 291E-61, or 291E-61.5,

    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 this section.

[L 1988, c 292, pt of §1; am L 2012, c 316, §2; am L 2022, c 48, §2]

COMMENTARY ON §707-702.5

Act 292, Session Laws 1988, added this section to redefine negligent homicide in the first degree. The legislature felt that stronger measures were needed to protect the public and to deter those who negligently operate a motor vehicle while under the influence of alcohol or drugs, which results in bodily injury or death to others. Senate Conference Committee Report No. 278, House Conference Committee Report No. 105-88.

Act 316, Session Laws 2012, amended this section to include a provision for incidents involving a vulnerable highway user. Hawaii's roadways have often been called dangerous for pedestrians, cyclists, and others who legally use the public right of way without being in a motor vehicle. Unfortunately, when collisions occur between motor vehicles and these individuals, the outcome is often catastrophic. Amending the offense of negligent homicide in the first degree to include a provision for incidents in which vulnerable highway users are involved may, at the very least, increase driver awareness of these individuals. Conference Committee Report No. 33-12.

Act 48, Session Laws 2022, amended this section to elevate the penalty of negligent homicide in the first degree from a class B felony to a class A felony when certain conditions are met. The legislature found that heightened penalties were necessary to deter persons from repeatedly driving while under the influence of an intoxicant or driving at increased blood or breath alcohol levels. The legislature further found that any driver who operates a vehicle as a highly intoxicated driver poses a serious danger to anyone on or near a roadway. Most fatal crashes in the State involve drivers impaired by intoxicating substances. Act 48 was intended to prevent traffic fatalities and hold offenders accountable for their negligent actions. Conference Committee Report No. 2-22, House Standing Committee Report No. 1834-22, Senate Standing Committee Report No. 2720.