Bill Text: HI HB129 | 2010 | Regular Session | Introduced
Bill Title: Negligent Homicide; Criminal Procedure; License Revocation
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2009-05-11 - Carried over to 2010 Regular Session. [HB129 Detail]
Download: Hawaii-2010-HB129-Introduced.html
Report Title:
Negligent Homicide; Criminal Procedure; License Revocation
Description:
Disallows the use of DAG and DANC pleas in cases regarding negligent homicide in the third degree. Requires mandatory minimum sentence. Requires license revocation for a minimum of 5 years and a maximum of 10 years if driver is found to have committed 5 or more traffic infractions within the preceding 5-year period.
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
129 |
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TWENTY-FIFTH LEGISLATURE, 2009 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO TRAFFIC SAFETY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
PART I
SECTION 1. The legislature finds that pedestrian deaths caused by negligent drivers are a longstanding problem on Hawaii's roadways. Of particular concern are cases involving negligent homicide in the third degree, where a person operating a vehicle causes the death of another person through simple negligence.
The legislature finds that from 2003 to 2006, sixteen defendants pleaded guilty or no contest to negligent homicide in the third degree. Fourteen of those defendants, or eighty-seven and one-half per cent, received no jail time as part of their sentence. Of these fourteen defendants, all but three were granted deferred acceptance of guilty pleas or deferred acceptance of nolo contendere pleas. When a deferred acceptance plea is granted, the negligent homicide charge is dismissed and the defendant is discharged if the defendant is able to comply with the terms of the court for a period not to exceed a year. In such situations, the defendant is not considered to have been convicted. A defendant who has been discharged can apply to have the negligent homicide charge expunged from the defendant's record.
The purpose of this Act is to protect the public by disallowing the use of deferred acceptance of guilty pleas and deferred acceptance of nolo contendere pleas in cases involving negligent homicide in the third degree, imposing a mandatory minimum sentence of imprisonment of days, and ensuring that persons who accumulate five or more moving violations within a five-year period will have their licenses revoked for a minimum of five years and a maximum of ten years.
SECTION 2. Section 853-4, Hawaii Revised Statutes, is amended to read as follows:
"§853-4 Chapter not applicable; when. This chapter shall not apply when:
(1) The offense charged involves the [intentional,
knowing, reckless, or negligent] killing of another person;
(2) The offense charged is:
(A) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or
(B) A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person;
(3) The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person;
(4) The offense charged is a class A felony;
(5) The offense charged is nonprobationable;
(6) The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct that if perpetrated in this State would be punishable as a felony;
(7) The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct that if perpetrated in this State would constitute a felony;
(8) The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction;
(9) A firearm was used in the commission of the offense charged;
(10) The defendant is charged with the distribution of a dangerous, harmful, or detrimental drug to a minor;
(11) The defendant has been charged with a felony offense and has been previously granted deferred acceptance of guilty plea status for a prior offense, regardless of whether the period of deferral has already expired;
(12) The defendant has been charged with a misdemeanor offense and has been previously granted deferred acceptance of guilty plea status for a prior felony, misdemeanor, or petty misdemeanor for which the period of deferral has not yet expired;
(13) The offense charged is:
(A) Escape in the first degree;
(B) Escape in the second degree;
(C) Promoting prison contraband in the first degree;
(D) Promoting prison contraband in the second degree;
(E) Bail jumping in the first degree;
(F) Bail jumping in the second degree;
(G) Bribery;
(H) Bribery of a witness;
(I) Intimidating a witness;
(J) Bribery of or by a juror;
(K) Intimidating a juror;
(L) Jury tampering;
(M) Promoting prostitution in the first degree;
(N) Promoting prostitution in the second degree;
(O) Promoting prostitution in the third degree;
(P) Abuse of family or household members;
(Q) Sexual assault in the second degree;
(R) Sexual assault in the third degree;
(S) A violation of an order issued pursuant to chapter 586;
(T) Promoting child abuse in the second degree;
(U) Promoting child abuse in the third degree;
(V) Electronic enticement of a child in the first degree;
(W) Electronic enticement of a child in the second degree; or
(X) An offense under part IV, chapter 291E;
(14) The defendant has been charged with:
(A) Knowingly or intentionally falsifying any report required under chapter 11, subpart B of part XII, with the intent to circumvent the law or deceive the campaign spending commission; or
(B) Violating section 11-201 or 11-202; or
(15) The defendant holds a commercial driver's license and has been charged with violating a traffic control law, other than a parking law, in connection with the operation of any type of motor vehicle.
The court may adopt by rule other criteria in this area."
SECTION 3. Section 707-704, Hawaii Revised Statutes, is amended to read as follows:
"§707-704 Negligent homicide in the third degree. (1) A person is guilty of the offense of negligent homicide in the third degree if that person causes the death of another person by the operation of a vehicle in a manner which is simple negligence.
(2) "Simple negligence" as used in this section:
(a) A person acts with simple negligence with respect to the person's conduct when the person should be aware of a risk that the person engages in that conduct.
(b) A person acts with simple negligence with respect to attendant circumstances when the person should be aware of a risk that those circumstances exist.
(c) A person acts with simple negligence with respect to a result of the person's conduct when the person should be aware of a risk that the person's conduct will cause that result.
(d) A risk is within the meaning of this subsection if the person's failure to perceive it, considering the nature and purpose of the person's conduct and the circumstances known to the person, involves a deviation from the standard of care that a law-abiding person would observe in the same situation.
(3) Negligent homicide in the third degree is a misdemeanor. A person convicted of this offense shall be sentenced to a definite term of imprisonment, pursuant to section 706-663, of not less than days without possibility of probation or suspension of sentence."
PART II
SECTION 4. Section 286-124, Hawaii Revised Statutes, is amended to read as follows:
"§286-124 Mandatory revocation of license by a court. (a) Any court of competent jurisdiction shall forthwith revoke the license of any driver upon a conviction of the driver of manslaughter resulting from the operation of a motor vehicle.
(b) Any court of competent jurisdiction shall forthwith revoke, for a minimum of five years and a maximum of ten years, the license of any driver if the court finds that the driver has committed five or more traffic infractions involving violations of statutes, ordinances, or rules relating to traffic movement and control, each arising out of separate incidents occurring within the preceding five-year period. For the purposes of this subsection, multiple traffic infractions arising from the same course of conduct shall be considered a single traffic infraction."
SECTION 5. Section 291D-5, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:
"(d) The notice of traffic infraction shall include the following:
(1) A statement of the specific traffic infraction for which the notice was issued;
(2) Except in the case of parking-related traffic infractions, a brief statement of the facts;
(3) A statement of the total amount to be paid for each traffic infraction, which amount shall include any fee, surcharge, or cost required by statute, ordinance, or rule, and any monetary assessment, established for the particular traffic infraction pursuant to section 291D-9, to be paid by the driver or registered owner of the vehicle, which shall be uniform throughout the State;
(4) A statement of the options provided in section 291D-6(b) for answering the notice and the procedures necessary to exercise the options;
(5) A statement that the person to whom the notice is issued must answer, choosing one of the options specified in section 291D-6(b), within twenty-one days of issuance of the notice;
(6) A statement that, if the person:
(A) Admits a traffic infraction;
(B) Admits the traffic infraction but seeks to explain mitigating circumstances; or
(C) Fails to answer a notice of traffic infraction;
when the traffic infraction involves a violation of statutes, ordinances, or rules relating to traffic movement and control and the person has committed four or more traffic infractions involving violations of statutes, ordinances, or rules relating to traffic movement and control, each arising out of separate incidents occurring within the preceding five-year period, the person's driver's license shall be revoked for a minimum of five years and a maximum of ten years;
[(6)] (7) A statement that failure to
answer the notice of traffic infraction within twenty-one days of issuance
shall result in the entry of judgment by default for the State and may result
in the assessment of a late penalty, and, that if the person to whom the notice
was issued fails to pay the total amount specified in the default judgment
within an additional thirty days or to otherwise take action to set aside the
default, notice shall be sent to the director of finance of the appropriate
county:
(A) That the person to whom the notice of infraction not involving parking was issued shall not be permitted to renew or obtain a driver's license; or
(B) Where the notice was issued to a motor vehicle, that the registered owner shall not be permitted to register, renew the registration of, or transfer title to the motor vehicle until the traffic infraction is finally disposed of pursuant to this chapter, except as provided in section 291D-10(b);
[(7)] (8) A statement that, at a hearing
requested to contest the notice of traffic infraction conducted pursuant to
section 291D-8, no officer shall be present unless the driver timely requests
the court to have the officer present, and that the standard of proof to be
applied by the court is whether a preponderance of the evidence proves that the
specified traffic infraction was committed;
[(8)] (9) A statement that, at a hearing
requested for the purpose of explaining mitigating circumstances surrounding
the commission of the infraction or in consideration of a written request for
mitigation, the person shall be considered to have committed the traffic
infraction[;] and that there shall be no appeal from the court's
decision;
[(9)] (10) A space in which the
signature of the person to whom the notice was issued may be affixed; and
[(10)] (11) The date, time, and place at
which the person to whom the notice was issued must appear in court, if the
person is required by the notice to appear in person at the hearing."
SECTION 6. Section 291D-7, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) When an admitting answer is received, the court shall enter judgment in favor of the State in the total amount specified in the notice of traffic infraction. If the total amount is not submitted with the answer, the court may take action as provided in section 291D-10. If the court finds that the driver has committed five or more traffic infractions involving violations of statutes, ordinances, or rules relating to traffic movement and control, each arising out of separate incidents occurring within the preceding five-year period, the court shall revoke the person's driver's license for a minimum of five years and a maximum of ten years. The court shall mail a notice of entry of judgment to the address provided by the person when the notice of traffic infraction was issued, notify the person of the revocation and its length, and notify the person that the driver's license must be surrendered as required by section 286-122(a)."
2. By amending subsection (c) to read:
"(c) When an answer admitting commission of the traffic infraction but seeking to explain mitigating circumstances is received, the court shall proceed as follows:
(1) In the case of a traffic infraction where the person requests a hearing at which the person will appear in person to explain mitigating circumstances, the court shall notify the person in writing of the date, time, and place of hearing to explain mitigating circumstances. The notice of hearing shall be mailed to the address stated in the answer, or if none is given, to the address stated on the notice of traffic infraction. The notification also shall advise the person that, if the person fails to appear at the hearing, the court shall enter judgment by default in favor of the State, as of the date of the scheduled hearing, that the total amount stated in the default judgment must be paid within thirty days of entry of default judgment, and, if it is not paid, that the court shall take action as provided in section 291D-10; and
(2) If a written explanation is included with an answer admitting commission of the infraction, the court shall enter judgment for the State and, after reviewing the explanation, determine the total amount of the monetary assessments, fees, surcharges, or costs to be assessed, if any. The court shall then notify the person of the total amount to be paid for the infraction, if any. If the court finds that the driver has committed five or more traffic infractions involving violations of statutes, ordinances, or rules relating to traffic movement and control arising out of separate incidents occurring within the preceding five-year period, the court shall revoke the person's driver's license for a minimum of five years and a maximum of ten years, as required by section 286-124(b), notify the person of the revocation and its length, and notify the person that the driver's license must be surrendered as required by section 286-122(a). There shall be no appeal from the judgment. If the court assesses an amount for monetary assessments, fees, surcharges, or costs, the court shall also notify the person that the total amount shall be paid within thirty days of entry of judgment. The notice of entry of judgment also shall inform the person that if the total amount is not paid within thirty days, the court shall take action as provided in section 291D-10."
3. By amending subsection (e) to read:
"(e) Whenever judgment by default in favor of the State is entered, the court shall mail a notice of entry of default judgment to the address provided by the person when the notice of traffic infraction was issued or, in the case of parking infractions, to the address stated in the answer, if any, or the address at which the vehicle is registered. If the court has revoked the person's driver's license as required by section 286-124(b), the notice of entry of default judgment shall notify the person of the revocation and its length and that the driver's license must be surrendered as required by section 286‑122(a). The notice of entry of default judgment shall advise the person that the total amount specified in the default judgment shall be paid within thirty days of entry of default judgment and shall explain the procedure for setting aside a default judgment. The notice of entry of default judgment shall also inform the person that if the total amount is not paid within thirty days, the court shall take action as provided in section 291D-10. Judgment by default for the State entered pursuant to this chapter may be set aside pending final disposition of the traffic infraction upon written application of the person and posting of an appearance bond equal to the amount of the total amount specified in the default judgment and any other assessment imposed pursuant to section 291D-9. The application shall show good cause or excusable neglect for the person's failure to take action necessary to prevent entry of judgment by default. Upon receipt of the application and required appearance bond, the court shall take action to remove the restriction placed on the person's driver's license or the motor vehicle's registration and title imposed pursuant to section 291D-10. Thereafter, the court shall determine whether good cause or excusable neglect exists for the person's failure to take action necessary to prevent entry of judgment by default. If so, the application to set aside default judgment shall be granted, the default judgment shall be set aside, and the notice of traffic infraction shall be disposed of pursuant to this chapter. If not, the application to set aside default judgment shall be denied, the appearance bond shall be forfeited and applied to satisfy amounts due under the default judgment, and the notice of traffic infraction shall be finally disposed. In either case, the court shall determine the existence of good cause or excusable neglect and notify the person of its decision on the application in writing."
SECTION 7. Section 291D-12, Hawaii Revised Statutes, is amended to read as follows:
"§291D-12 Powers of the district court judge sitting in the traffic division. A district court judge sitting in the traffic division and hearing cases pursuant to this chapter shall have all the powers of a district court judge under chapter 604, including the following powers:
(1) To conduct traffic infraction hearings and to impose monetary assessments;
(2) To permit deferral of monetary assessment or impose community service in lieu thereof;
(3) To dismiss a notice of traffic infraction, with or without prejudice, or to set aside a judgment for the State;
(4) To order temporary driver's license suspension, driver's license revocation, or driver's license reinstatement;
(5) To order the director of finance not to issue or renew the driver's license, or to register, renew the registration of, or issue title to a motor vehicle, of any person who has not paid a monetary assessment, has not performed community service in lieu thereof, or has not otherwise satisfied a judgment for the State entered pursuant to this chapter;
(6) To approve the issuance or renewal of a driver's license or instruction permit pursuant to section 286‑109(c);
(7) To issue penal summonses and bench warrants and initiate contempt of court proceedings in proceedings conducted pursuant to section 291D-13;
(8) To issue penal summonses and bench warrants and initiate failure to appear proceedings in proceedings conducted pursuant to section 291D-5(d)(10); and
(9) To exercise other powers the court finds necessary and appropriate to carry out the purposes of this chapter."
PART III
SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.
SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 10. This Act shall take effect on January 1, 2010.
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INTRODUCED BY: |
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