Bill Text: HI HB1866 | 2022 | Regular Session | Amended

Hawaii House Bill 1866 (Prior Session Legislation)

Bill Title: Relating To Intoxication.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Engrossed - Dead) 2022-03-11 - Referred to JDC. [HB1866 Detail]

Download: Hawaii-2022-HB1866-Amended.html

HOUSE OF REPRESENTATIVES	H.B. NO.	1866
THIRTY-FIRST LEGISLATURE, 2022		H.D. 1
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO INTOXICATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that on April 24, 2016, a vehicular collision in the State resulted in death. A driver in the collision, who was allegedly intoxicated at the time, was convicted on two counts, the latter of which was negligent homicide in the first degree, under section 707-702.5, Hawaii Revised Statutes, and the defendant filed an appeal. In that case, State v. Armitage, 150 Hawaii 154 (Ct. App. 2021), the intermediate court of appeals vacated the defendant's conviction and remanded the case to the circuit court for a new trial. The defendant argued that the circuit court should have suppressed the result of the defendant's blood alcohol concentration test because it was the result of a warrantless blood draw, in violation of the defendant's constitutional rights. The appeals court determined that because the prosecution failed to adequately develop the record to demonstrate that police officers were justified to act without a warrant, the circuit court clearly erred in ruling that exigent circumstances existed to justify the warrantless draw of the defendant's blood.

The legislature further finds that as of April 24, 2016, the date of the collision in the Armitage case, both statutory and common law allowed law enforcement officers investigating similar vehicular collisions to obtain evidence of a person's blood alcohol content without a warrant if there was probable cause that the person operated a vehicle under the influence of an intoxicant, and there was an exigent circumstance that justified a warrantless blood draw. In 2002, in the case of State v. Entrekin, 98 Hawaii 221 (2002), a driver argued that obtaining a sample of blood without a warrant violated the plaintiff's right to be free from unreasonable searches and seizures. The supreme court of Hawaii noted that the State's implied consent law (currently codified in part II of chapter 291E, Hawaii Revised Statutes), by its plain language, authorized the police to obtain a blood sample from the driver of any vehicle involved in an accident resulting in an injury to or the death of any person, including the driver, so long as the police have probable cause to believe that the driver was driving under the influence of alcohol or drugs. The court recognized that there are exceptions to the warrant requirement in cases where the societal costs of obtaining a warrant, including the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate. The court noted that the "exigent circumstance" exception is present when the demands of the occasion reasonably call for an immediate police response, and includes situations presenting an immediate threatened removal or destruction of evidence. The legislature notes that because alcohol metabolizes within a person's body over time, evidence of a person's intoxication may be destroyed during the time it takes a police officer to obtain a warrant.

The legislature also notes that until 2013, the Entrekin decision was consistent with the manner in which implied consent laws were enforced throughout the United States. In the case of Missouri v. McNeely, 569 U.S. 141 (2013), the United States Supreme Court determined that exigent circumstances must be determined through a case-by-case assessment, and found that when officers in drunk-driving investigations can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search,

the Fourth Amendment mandates that they do so. Three years later, in the case of Birchfield v. North Dakota, 579 U.S. 438 (2016), the United States Supreme Court held that the Fourth Amendment of the United States Constitution permits warrantless breath tests incident to arrests for drunk driving, but not warrantless blood tests. The court noted that breath tests do not require piercing of the skin, and entail a minimum of inconvenience. The court also noted that blood tests, in contrast, require piercing of the skin, extract a part of the subject's body, and are significantly more intrusive than blowing into a tube for a breath test. The court further noted that a blood test also gives law enforcement a sample that can be preserved and from which it is possible to extract information beyond a simple blood alcohol content reading.

On December 5, 2016, a date that occurred after the collision in the Armitage case, the intermediate court of appeals issued a decision in the case of State v. Niceloti-Velazquez, 139 Hawaii 203 (Ct. App. 2016). The defendant had been convicted for operating a vehicle under the influence of an intoxicant. The blood test establishing the intoxication was administered without consent and without a warrant. The appeals court found that the record did not support a finding that police officers could not have reasonably obtained a search warrant before drawing the defendant's blood sample. The appeals court cited the McNeely case, and vacated the defendant's conviction. Similarly, in the case State v. Hewitt, 149 Hawaii 71 (Ct. App. 2021), the intermediate court of appeals vacated another defendant's conviction for operating a vehicle under the influence of an intoxicant, as the court determined that the State failed to adequately develop a record to demonstrate the existence of exigent circumstances that would justify requesting a warrantless blood draw.

The legislature finds that in light of these developments in the common law, state law should be amended to reflect the requirements mandated by the courts. The legislature further believes that section 39-20-01.1, North Dakota Century Code, may serve as a model for legislation in this State.

The legislature anticipates, however, that because the intermediate court of appeals in the Armitage case applied new case law to a motor vehicle collision that occurred on April 24, 2016, and thus before December 6, 2016, the date of the Niceloti-Velazquez decision, it is possible that other convictions based on the results of a warrantless blood draw taken after vehicular collisions could be reversed. The legislature wishes to avoid such an outcome, to the extent permissible under constitutional law.

Accordingly, the purpose of this Act is to:

(1) Amend the procedures under which a blood, urine, or breath test is administered in the event of certain vehicular collisions; and

(2) Prohibit state courts from vacating any conviction for a crime that was committed before December 5, 2016, if the only basis for doing so would be a warrantless blood test for an intoxicant, unless otherwise required by constitutional law.

SECTION 2. Section 291E-21, Hawaii Revised Statutes, is amended to read as follows:

"§291E-21 [~~Applicable scope of part; mandatory~~] Duties of health care providers; chemical testing for intoxicants in the event of a collision resulting in serious bodily injury or death. [(a) Nothing in this part shall be construed to prevent a law enforcement officer from obtaining a sample of breath, blood, or urine, from the operator of any vehicle involved in a collision resulting in injury to or the death of any person, as evidence that the operator was under the influence of an intoxicant.

~~(b)~~] (a) If a health care provider who is providing medical care, in a health care facility, to any person involved in a vehicle collision:

(1) Becomes aware, as a result of any blood or urine test performed in the course of medical treatment, that:

(A) The alcohol concentration in the person's blood meets or exceeds the amount specified in section 291E-61(a)(4) or 291E-61.5(a)(2)(D); or

(B) The person's blood or urine contains one or more drugs that are capable of impairing a person's ability to operate a vehicle in a careful and prudent manner; and

(2) Has a reasonable belief that the person was the operator of a vehicle involved in the collision,

the health care provider shall notify, as soon as reasonably possible, any law enforcement officer present at the health care facility to investigate the collision. If no law enforcement officer is present, the health care provider shall notify the county police department in the county where the collision occurred. If the health care provider is aware of any blood or urine test result, as provided in paragraph (1), but lacks information to form a reasonable belief as to the identity of the operator involved in a vehicle collision, as provided in paragraph (2), then the health care provider shall give notice to a law enforcement officer present or to the county police department, as applicable, for each person involved in a vehicle collision whose alcohol concentration in the person's blood meets or exceeds the amount specified in section 291E-61(a)(4) or 291E-61.5(a)(2)(D) or whose blood or urine contains one or more drugs. The notice by the health care provider shall consist of the name of the person being treated, the blood alcohol concentration or drug content disclosed by the test, and the date and time of the administration of the test. This notice shall be deemed to satisfy the intoxication element necessary to establish the probable cause requirement set forth in subsection [~~(c).~~] (b).

[~~(c)~~] (b) In the event of a collision resulting in serious bodily injury as defined in section 291C-1 or death [~~and~~], if a law enforcement officer has probable cause to believe that [a] any operator of any vehicle or any other person involved in the collision has committed a violation of section [~~707-702.5, 707-703, 707-704, 707-705, 707-706,~~] 291E-61, 291E-61.5, or 291E-64, the law enforcement officer shall request [that a sample of blood or urine be recovered from the vehicle operator or any other person suspected of committing a violation of section 707-702.5, 707-703, 707-704, 707-705, 707-706, 291E-61, 291E-61.5, or 291E-64.] the person to submit to a chemical test or tests of the person's blood or urine to determine the alcohol concentration or the presence of other drugs or substances, or both. If the person [~~involved in the collision is not injured or~~] refuses [~~to be treated for any injury,~~] to submit to a chemical test or tests of the person's blood or urine and exigent circumstances are not present, the law enforcement officer shall request a search warrant to compel the person to submit to a chemical test or tests of the driver's blood or urine to determine the alcohol concentration or the presence of other drugs or substances, or both. The law enforcement officer may [~~offer~~] also compel the person to submit to a breath test [in lieu of a blood or urine test. If the person declines to perform a breath test, the law enforcement officer shall request a blood or urine sample pursuant to subsection (d). The act of declining to perform a breath test under this section shall not be treated as a refusal under chapter 291E and shall not relieve the declining person from the requirement of providing a blood or urine sample under this section.

(d) The law enforcement officer shall make the request under subsection (c) to the hospital or medical facility treating the person from whom the blood or urine is to be recovered. If the person is not injured or refuses to be treated for any injury, the law enforcement officer shall make the request of a blood or urine sample under subsection (c) to a person authorized under section 291E-12; provided that a law enforcement officer may transport that person to another police facility or a hospital or medical facility that is capable of conducting a breath, blood, or urine test. Upon the request of the law enforcement officer that blood or urine be recovered pursuant to this section, and except where the person to perform the withdrawal of a blood sample or to obtain a urine sample or the responsible attending personnel at the hospital or medical facility determines in good faith that recovering or attempting to recover blood or urine from the person presents an imminent threat to the health of the medical personnel or others, the person authorized under section 291E-12 shall:

~~(1)~~ ~~Recover the sample in compliance with section 321-161; and~~

~~(2)~~ ~~Provide the law enforcement officer with the blood or urine sample requested.~~]

to determine the person's blood alcohol content.

[~~(e)~~] (c) Any person complying with this section shall be exempt from liability pursuant to section 663-1.9 as a result of compliance.

[~~(f)~~] (d) As used in this section, unless the context otherwise requires:

"Health care facility" includes any program, institution, place, building, or agency, or portion thereof, private or public, whether organized for profit or not, that is used, operated, or designed to provide medical diagnosis, treatment, or rehabilitative or preventive care to any person. The term includes health care facilities that are commonly referred to as hospitals, outpatient clinics, organized ambulatory health care facilities, emergency care facilities and centers, health maintenance organizations, and others providing similarly organized services regardless of nomenclature.

"Health care provider" means a person who is licensed, certified, or otherwise authorized or permitted by law to administer health care in the ordinary course of business or practice of a profession."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before December 5, 2016. Any conviction for a crime that was committed before December 5, 2016, shall not be vacated by any state court solely on the basis that the evidence of a person's blood alcohol content was obtained without a warrant, unless otherwise required by constitutional law.

SECTION 4. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on January 1, 2222.

Report Title:

Intoxication; Vehicular Collisions; Implied Consent; Tests

Description:

Amends the procedures under which a blood, urine, or breath test is administered in the event of certain vehicular collisions. Prohibits state courts from vacating any conviction for a crime that was committed before 12/5/2016, if the only basis for doing so would be a warrantless blood test for an intoxicant, unless otherwise required by constitutional law. Effective 1/1/2222. (HD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.