Although I believe in strengthening our criminal laws in the interests of justice, a “zero tolerance” drunken driving law for all Hawaii drivers is not the best solution for prevention, deterrence or securing a criminal conviction.

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At its core, a zero tolerance law allows for the arrests of individuals who operate a vehicle with “a measurable amount of alcohol,” instead of the current minimum, which is .08 blood alcohol content.

Lt. Gov. Josh Green is supporting a stricter limit. In a recent interview, he said, “I believe that we’re going to first go to a .05 blood alcohol and then go to a position where society awakens … the legislative process will play out.”

I caution government leaders who propel a policy without fully understanding its application from theory to execution. Hawaii already has a zero tolerance law in place for drunken drivers who are under the age of 21, which is codified in Hawaii Revised Statutes 291E-64.

If the elements of this law are broken down, the prosecution must prove beyond a reasonable doubt that the individual 1) is under the age of 21, 2) had been operating a vehicle, 3) upon a public way, street, road, or highway or on or in the waters of the state, and 4) with a measurable amount of alcohol.

What constitutes “a measurable amount of alcohol”?

HRS 291-4.3(a) defines this term as “a test result equal to or greater than .02 but less than .08 grams of alcohol per one hundred milliliters or cubic centimeters of blood or equal to or greater than .02 but less than .08 grams of alcohol per two hundred ten liters of breath.”

What if the individual refuses chemical testing and therefore no test result(s) exist (notwithstanding HRS 291E-21)?

Hawaii already has a zero tolerance law in place for drunken drivers who are under the age of 21. Why amend the law?

Fotalia

This scenario triggers HRS 291E-65, which directs the officer to submit an affidavit to the court regarding the refusal, to hold a hearing within 20 days and, if the judge finds that the affidavit is true, then the individual receives a license suspension.

Two main assumptions exist for a law of this nature to foster effectiveness: 1) an individual will submit to testing and hence, test result(s) will be acquired, and 2) test result(s) will be admissible at trial.

However, individuals can refuse testing and the admissibility of test results is susceptible to challenges. Specific to the breath test, after informed consent forms are read to the arrestee at the station, this chemical test is offered via the Intoxilyzer device. The defense commonly challenges the admissibility of this chemical test in court.

For a portion of time, chemical test results were almost always suppressed by Hawaii courts (essentially, judges would grant defense counsels’ motions to suppress). Without an exception to the warrant requirement, the obtainment of test results is vulnerable to challenges due to controversial informed consent forms and procedures.

Chemical Tests

The crux of the issue is that consent has to be voluntary, or otherwise it is considered a warrantless search. With changes to forms/procedures, Hawaii courts have become more liberal recently in allowing chemical test results into evidence.

Under the Hawaii adult drunken driving law (21 and over), proving the driver was impaired under HRS 291E-61(a)(1) is the default method when a person refuses to submit to testing or the court suppresses test result(s).

No test result is necessary at that point to prove the case, just facts showcasing impaired driving and officers’ standardized field sobriety test observations (if the defendant submitted to the test).

Refusing to submit to chemical tests means less evidence exists to get a criminal conviction. However, an individual faces a longer license revocation period with the Administrative Driver’s License Revocation Office (if the decision is ultimately upheld). From a defense perspective, this becomes a chess game of maneuvering within the system to beat a criminal conviction and ADLRO revocation.

In order to seek real reform, we need to stop placing so much emphasis on imposing stricter laws and strive to understand the larger context.

Don’t let family members or friends get behind the wheel drunk this holiday season.

One overall remedy is for the Department of the Prosecuting Attorney to create an Operating a Vehicle Under the Influence of an Intoxicant (which includes alcohol and drugs) trials unit. Currently, a typical OVUII case is handled in the traffic/misdemeanor division, known for its heavy volume.

Handling these cases requires precision, skill and specialized training because of its technical and scientific aspects. A trials unit would afford a select group of deputy prosecutors an opportunity to focus on refining trial strategies in this area of criminal law while perhaps simultaneously providing community outreach to promote prevention. We would need to evaluate other factors that hinder prosecution as well, such as court congestion and the unavailability of key witnesses.

What can we do so individuals never operate a vehicle drunk in the first place? We have to focus on prevention because not even a license revocation helps to keep drunk drivers off the road after a conviction (we have HRS 291E-62 for that scenario).

Let’s start with what we can control: don’t let family members or friends get behind the wheel drunk this holiday season. It takes a village.

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