In Hawaii, like in every other state, some people drive under the influence of alcohol or drugs, endangering others. The state's drunk driving laws are called "operating a vehicle under the influence of an intoxicant," making for the somewhat awkward abbreviation OVUII.
But Hawaii's OVUII laws bear a striking resemblance to the DUI (driving under the influence) and DWI (driving while intoxicated) laws in other states. Anyone operating a vehicle in Hawaii, resident or tourist, needs to get a clear overview of the state's laws regarding driving under the influence and the penalties for violating them.
Hawaii's OVUII Laws
Hawaii's law that makes it illegal to operate a motor vehicle under the influence of alcohol and drugs is found at Hawaii Revised Statutes Section 291E-61. The law, entitled Operating a Vehicle Under the Influence of an Intoxicant, is officially referenced as the OVUII law, but many people call the violations DUIs. That's because so many states title their drunk driving laws "driving under the influence" or some variation of that.
Hawaii's law makes it a crime to drive or to be in physical control of a vehicle while under the influence of drugs and/or alcohol. The law includes a variety of ways a person can commit an OVUII:
- By driving with a blood alcohol concentration (BAC) over the legal limit of 0.08 percent for regular drivers and 0.04 percent for commercial drivers.
- By driving while the ability to operate a vehicle in a careful and prudent manner is impaired by drugs or other intoxicants.
- By driving after consuming alcohol to the point where their mental faculties are diminished to some material degree.
"Per Se" OVUII
Hawaii is not alone in prohibiting individuals from driving with a BAC of 0.08 percent or less. This resulted from a federal push for states to adopt a uniform BAC legal limit after chemical testing became readily available. Now all states make it illegal to drive with a BAC that exceeds those legal limits. Most states, including Hawaii, set a lower BAC limit at 0.04 percent for commercial drivers, since they may drive heavy vehicles or transport materials that may be hazardous to the public, and so driving impaired creates an even greater risk of danger than for regular drivers.
The offense based on blood alcohol level is termed a per se violation, or per se OVUII. Per se in this context means "in and of itself." It is an applicable term, since evidence that the driver's BAC levels exceeded the legal limit is proof, in and of itself, that they violated the statute. A district attorney prosecuting the charge is not required to show any other evidence of impairment.
Hawaii Impairment OVUIIs
Hawaii's other two grounds for an OVUII both require proof that the person was under the influence, which means proof that their ability to drive was impaired. One requires evidence that the person's mental faculties or ability to drive prudently were impaired by alcohol; the other requires a similar showing based on use of drugs or other intoxicants.
The prosecutor's job in bringing this type of charge is more difficult than charging a driver with a per se OVUII. They must provide evidence sufficient to establish beyond a reasonable doubt that the person used alcohol or drugs and that, as a result, their faculties were substantially impaired. This requires significantly more work than proving a per se charge because the evidence usually includes testimony of police officers and other witnesses.
Implied Consent and Test Refusal
A driver's blood alcohol concentration level can be determined with the familiar breathalyzer test or with a blood or urine test. Given how much easier it is for a prosecutor to get an OVUII conviction for a per se violation, it may occur to a driver who has been imbibing to refuse to take a chemical test. That is why Hawaii, like most states, has enacted an implied consent law.
This type of law provides that in exchange for the privilege of driving on roads and freeways in the state, a driver is deemed to consent to taking a chemical test when they are stopped by the police for drunk driving. That is why it is termed implied consent – the driver doesn't have to actually or actively agree in order for the consent to be effective. The refusal to take a chemical test under these circumstances is an offense in and of itself.
Administrative Penalties for OVUII
Individuals who are stopped for drunk driving in Hawaii face two types of penalties, administrative sanctions and criminal penalties. The first punishment a drunk driver will experience after an OVUII traffic stop comes from the Hawaii's Department of Transportation (DOT). It involves loss of license under the Administrative License Revocation procedures.
That is, anyone who is asked by an arresting officer to take a chemical test under the implied consent law and refuses to do so faces administrative sanctions. Likewise, anyone taking the test and failing it – that is, testing over the legal BAC limit – is also subject to DOT sanctions.
Hawaii is among the majority of states that has implemented these administrative procedures. The result is that the license of the driver is confiscated immediately after they refuse to take, or they take and fail, the chemical test and is either suspended or revoked for one year. This happens automatically, before the driver is tried in a criminal court. The administrative penalties are separate from criminal penalties, so the driver can be subject to an administrative license suspension even if they are never charged with a criminal OVUII.
Conditional Licenses and IIDs
The driver is issued a temporary driving permit good for two weeks. In that time, they can submit information to the DOT and/or request a DOT hearing to challenge the matter in front of an administrative law judge. Unless the driver wins this appeal, they lose their license for a year. However, some may qualify for a conditional license after a 30-day revocation period.
If they do get a conditional license allowing them to drive to work, school or substance abuse classes, they are required to drive with an ignition interlock device (IID) installed in their car and every vehicle they own. This is a type of breathalyzer that prevents the car from starting unless the driver, by blowing into it, shows that they do not have alcohol in their system.
OVUII Look-back Period
Hawaii bases its criminal penalties for this offense, in part, on the driver's past history of drunk or drugged driving convictions. That is, a first offense conviction is subject to the least severe criminal penalties, while potential fines, driver's license revocation period and jail time goes up with each subsequent offense.
Note that Hawaii has a five-year look-back period. That means that a court looks back to the five years just before the current arrest to determine prior offenses. If a driver has no offenses in the past five years, they are treated as a first offender.
OVUII Criminal Penalties
Hawaii's laws give judges some discretion in determining appropriate criminal penalties for OVUII offenders. The court can sentence a first-time offender to a range of jail time, from a minimum of 48 hours to a maximum of five days, but can assign community service time – up to 72 hours – instead. Criminal sanctions can also include a fine ranging from $150 to $1,000.
In addition, all first-time OVUII offenders must undertake at least 14 hours of substance abuse rehabilitation program and pay a surcharge of $25 that goes toward the state's neurotrauma special fund. The individual's driver’s license is suspended for 90 days.
Penalties for Second OVUII Offenses
If the person picked up for an OVUII has one conviction in the past five years, they are sentenced as a second offender. The potential sanctions for a second offense are greater than for a first offense, but less than for a third. The driver can be sentenced to between five and 14 days in prison or community service time of at least 42 hours.
Fines range from between $500 and $1,500, and the driver will also have to pay a $25 surcharge to be deposited in the neurotrauma special fund. The driver’s license suspension period is one year.
Penalties for Third and Fourth OVUII Offenses
A third offender gets more jail time and a larger fine. A person who commits a third offense can get between 10 to 30 days in prison and will be fined between $500 and $2,500, plus the surcharge. They will have their license revoked for a period of one to five years and may forfeit ownership of their vehicle.
Anyone who commits a fourth offense within 10 years is considered a “habitual operator of a vehicle while under the influence of alcohol.” These drivers face felony charges and can be sentenced to up to five years in prison or a five-year term of probation. If the court orders probation, the individual’s license will be revoked for one to five years, and their vehicle is subject to forfeiture. The offender will also be referred to a certified substance abuse counselor.
OVUII with a Passenger Under 15
Any adult convicted of drunk driving while carrying a passenger under 15 is subject to additional penalties. The driver must be sentenced to at least an additional 48 hours of imprisonment and an additional fine of $500.
Special Rules for Young Drivers in Hawaii
Nobody under the age of 21 years is permitted to buy or consume alcohol in the state of Hawaii. Because of that, special rules apply to drunk driving for persons under 21 years old. It is a violation of the OVUII statute for these young drivers if they are found to have any measurable amount of alcohol in their system.
For a first violation, the young driver is ordered to attend an alcohol abuse education and counseling program of at least 10 hours. For those young drivers under 18, their parents are also ordered to attend the substance abuse program. The person's license to drive is suspended for six months. Offenders under the age of 18 cannot drive at all during this period, while older drivers can apply after 30 days for a license restriction that allows them to drive for limited work-related purposes. Young drivers of any age are also subject to up to 36 hours of mandated community service work or a fine of up to $500.
An under-21 driver who violates the law for a second time in five years will lose their license for a year. The court can also order up to 50 hours of community service work or a fine up to $1,000. For a third violation, the person's license is suspended for two years, community service work imposition is 100 hours and the fine is up to $1,000.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.