Hawaii
CHAPTER 291E
USE OF INTOXICANTS WHILE OPERATING A VEHICLE
Part I. General Provisions
Section
291E-1 Definitions
291E-2 Medical services
291E-3 Evidence of intoxication
291E-4 Convictions and acts prior to January 1, 2002
Part II. Testing and Implied Consent
291E-11 Implied consent of operator of vehicle to submit to
testing to determine alcohol concentration and drug
content
291E-12 Persons qualified to take blood specimen
291E-13 Additional tests
291E-14 Consent of person incapable of refusal not withdrawn
291E-15 Refusal to submit to breath, blood, or urine test;
subject to administrative revocation proceedings
291E-16 Proof of refusal; admissibility
291E-17 Other evidence not excluded
291E-18 Test results to be collected
291E-19 Authorization to establish intoxicant control roadblock
programs
291E-20 Minimum standards for roadblock procedures
291E-21 Applicable scope of part; mandatory testing in the
event of a collision resulting in injury or death
291E-22 Presence of drugs or metabolic products; admissibility
Part III. Administrative Revocation Process
291E-31 Notice of administrative revocation; effect
291E-32 Criminal prosecution
291E-33 Probable cause determination; issuance of notice of
administrative revocation; procedures
291E-34 Notice of administrative revocation; contents
291E-35 Immediate restoration of license and motor vehicle
registration
291E-36 Documents required to be submitted for administrative
review; sworn statements
291E-37 Administrative review; procedures; decision
291E-38 Administrative hearing; procedure; decision
291E-39 Fees and costs
291E-40 Judicial review; procedure
291E-41 Effective date and period of administrative revocation;
criteria
291E-42 Notice to other states
291E-43 Administrative procedure act
291E-44 Conditional license permits
291E-45 Eligibility for relicensing and reregistration
of motor vehicle
291E-46 Computation of time
291E-47 Failure to surrender number plates
291E-48 Special motor vehicle registration
291E-49 Transferring title to, or ownership interest in,
vehicle prohibited; exceptions
291E-50 Notice to the department of land and natural resources
of suspensions and revocations of operating privileges
Part IV. Prohibited Conduct
291E-61 Operating a vehicle under the influence of an
intoxicant
291E-61.5 Habitually operating a vehicle under the influence of
an intoxicant
291E-62 Operating a vehicle after license and privilege have
been suspended or revoked for operating a vehicle under
the influence of an intoxicant; penalties
291E-63 Records of suspensions and revocations of operating
privileges to be maintained
291E-64 Operating a vehicle after consuming a measurable amount
of alcohol; persons under the age of twenty-one
291E-65 Refusal to submit to testing for measurable amount of
alcohol; district court hearing; sanctions; appeals;
admissibility
[§291E-2] Medical services. The several county and state government physicians shall, or any other qualified person may, make whatever tests and analyses as may be requested of them by any law enforcement officer in connection with the determination of whether a person is or was under the influence of an intoxicant or has consumed a measurable amount of alcohol for any purpose under this chapter. [L 2000, c 189, pt of §23]
§291E-3 Evidence of intoxication. (a) In any criminal prosecution for a violation of section 291E-61 or 291E-61.5 or in any proceeding under part III:
(1) .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of the person's blood;
(2) .08 or more grams of alcohol per two hundred ten liters of the person's breath; or
(3) The presence of one or more drugs in an amount sufficient to impair the person's ability to operate a vehicle in a careful and prudent manner,
within three hours after the time of the alleged violation as shown by chemical analysis or other approved analytical techniques of the person's blood, breath, or urine shall be competent evidence that the person was under the influence of an intoxicant at the time of the alleged violation.
(b) In any criminal prosecution for a violation of section 291E-61 or 291E-61.5, the amount of alcohol found in the defendant's blood or breath within three hours after the time of the alleged violation as shown by chemical analysis or other approved analytical techniques of the defendant's blood or breath shall be competent evidence concerning whether the defendant was under the influence of an intoxicant at the time of the alleged violation and shall give rise to the following presumptions:
(1) If there were .05 or less grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or .05 or less grams of alcohol per two hundred ten liters of defendant's breath, it shall be presumed that the defendant was not under the influence of alcohol at the time of the alleged violation; and
(2) If there were in excess of .05 grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or .05 grams of alcohol per two hundred ten liters of defendant's breath, but less than .08 grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or .08 grams of alcohol per two hundred ten liters of defendant's breath,
that fact may be considered with other competent evidence in determining whether the defendant was under the influence of alcohol at the time of the alleged violation, but shall not of itself give rise to any presumption.
(c) Nothing in this section shall be construed as limiting the introduction, in any criminal proceeding for a violation under section 291E-61 or 291E-61.5 or in any proceeding under part III, of relevant evidence of a person's alcohol concentration or drug content obtained more than three hours after an alleged violation; provided that the evidence is offered in compliance with the Hawaii rules of evidence. [L 2000, c 189, pt of §23; am L 2004, c 90, §3]
Case Notes
Where a plain reading of this section indicates that the phrase "any proceeding under part III" refers to administrative license revocations, trial court erred in upholding hearing officer's ruling that subsection (c) applies only to criminal prosecutions and has no application to administrative driver's license revocation office cases. 109 H. 220, 124 P.3d 965.
Decisions under prior law (§291-5).
Section allowed prosecution to introduce as evidence the intoxilyzer test result to prosecute a defendant for §291‑4(a)(1) violation when charge of §291-4(a)(2) violation has been dismissed. 77 H. 94, 881 P.2d 1240.
Where conviction is based solely on a chemical test, the results of the test when taken together with its tolerance for error must equal or exceed the statutory level. 1 H. App. 44, 613 P.2d 916.
Intoxilyzer test result inadmissible where officer administering test had
less than required training and had not been issued appropriate permit.
5 H. App. 575, 704 P.2d 927.
Extrapolation of blood alcohol test result back to time of driving not required. 7 H. App. 532, 782 P.2d 891.
§291E-4 Convictions and acts prior to January 1, 2002. (a) Any:
(1) Conviction for an offense under section 200-81, 291-4, 291-4.4, or 291-7 as those sections were in effect on December 31, 2001;
(2) Conviction 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
(3) Adjudication of a minor for a law violation that, if committed by an adult, would constitute a violation of section 200-81, 291-4, 291-4.4,
291-4.5, or 291-7 as those sections were in effect on December 31, 2001;
shall be counted as a prior offense for purposes of section 291E-41,
291E-61, or 291E-61.5.
(b) Any conviction of an offense under section 291-4, 291-4.4, 291-4.5, or 291-7 as those sections were in effect on December 31, 2001, shall be counted for purposes of imposing sentence for a violation under section 291E-62. [L 2000, c 189, pt of §23; am L 2003, c 71, §2; am L 2004, c 90, §4]
PART II. TESTING AND IMPLIED CONSENT
Law Journals and Reviews
Expert and Opinion Testimony of Law Enforcement Officers Regarding Identification of Drug Impaired Drivers. 23 UH L. Rev. 151.
§291E-11 Implied consent of operator of vehicle to submit to testing to determine alcohol concentration and drug content. (a) Any person who operates a vehicle upon a public way, street, road, or highway or on or in the waters of the State shall be deemed to have given consent, subject to this part, to a test or tests approved by the director of health of the person's breath, blood, or urine for the purpose of determining alcohol concentration or drug content of the person's breath, blood, or urine, as applicable.
(b) The test or tests shall be administered at the request of a law enforcement officer having probable cause to believe the person operating
a vehicle upon a public way, street, road, or highway or on or in the waters of the State is under the influence of an intoxicant or is under the age of twenty-one and has consumed a measurable amount of alcohol, only after:
(1) A lawful arrest; and
(2) The person has been informed by a law enforcement officer that
the person may refuse to submit to testing under this chapter.
(c) If there is probable cause to believe that a person is in violation
of section 291E-64, as a result of being under the age of twenty-one and having consumed a measurable amount of alcohol, or section 291E-61 or 291E-61.5, as a result of having consumed alcohol, then the person shall elect to take a breath or blood test, or both, for the purpose of determining the alcohol concentration.
(d) If there is probable cause to believe that a person is in violation of section 291E-61 or 291E-61.5, as a result of having consumed any drug,
then the person shall elect to take a blood or urine test, or both, for the purpose of determining the drug content. Drug content shall be measured
by the presence of any drug or its metabolic products, or both.
(e) A person who chooses to submit to a breath test under subsection
(c) also may be requested to submit to a blood or urine test, if the law enforcement officer has probable cause to believe that the person was operating a vehicle while under the influence of any drug under section
291E-61 or 291E-61.5 and the officer has probable cause to believe that a blood or urine test will reveal evidence of the person being under the influence of any drug. The law enforcement officer shall state in the
officer's report the facts upon which that belief is based. The person shall elect to take a blood or urine test, or both, for the purpose of determining
the person's drug content. Results of a blood or urine test conducted to determine drug content also shall be admissible for the purpose of determining the person's alcohol concentration. Submission to testing for drugs under subsection (d) or this subsection shall not be a substitute for alcohol tests requested under subsection (c).
(f) The use of a preliminary alcohol screening device by a law enforcement officer shall not replace a breath, blood, or urine test required under this section. The analysis from the use of a preliminary alcohol screening device shall only be used in determining probable cause for the arrest.
(g) Any person tested pursuant to this section who is convicted or has the person's license or privilege suspended or revoked pursuant to this chapter may be ordered to reimburse the county for the cost of any blood or urine tests, or both, conducted pursuant to this section. If reimbursement is so ordered, the court or the director, as applicable, shall order the person to make restitution in a lump sum, or in a series of prorated installments, to
the police department or other agencyincurring the expense of the blood or urine test, or both. [L 2000, c 189,
pt of §23; am L 2001, c 157, §11; am L 2002, c 113, §1; am L 2004, c 90, §5; am L 2006, c 64, §1]
Case Notes
Decisions under prior law (§286-151).
Section 286-163 operates as an exception to this section, which generally requires the police lawfully to arrest the driver prior to administering a
blood test. 98 H. 221, 47 P.3d 336.
[§291E-12] Persons qualified to take blood specimen. No person, other than a physician, registered nurse, phlebotomist deemed qualified by the director of a clinical laboratory that is licensed by the State, or person licensed in a clinical laboratory occupation under section 321-13, may withdraw blood for the purpose of determining the alcohol concentration or drug content therein. This limitation shall not apply to the taking of a breath or urine specimen. [L 2000, c 189, pt of §23]
[§291E-13] Additional tests. The person tested may choose any physician, registered nurse, or person licensed in a clinical laboratory occupation under section 321-13 to withdraw blood and also may choose
any qualified person to administer a test or tests in addition to any administered at the direction of a law enforcement officer. The result of
the test or tests may be used as provided in section 291E-3. The failure or inability to obtain an additional test by a person shall not preclude the admission of the test or tests administered at the direction of a law enforcement officer. Upon the request of the person who is tested, full information concerning the test or tests administered shall be made
available to that person. [L 2000, c 189, pt of §23]
[§291E-14] Consent of person incapable of refusal not withdrawn. The consent of a person deemed to have given the person's consent pursuant to section 291E-11 shall not be withdrawn by reason of the
person's being dead, unconscious, or in any other condition that renders the person incapable of consenting to examination, and the test may be given. In such event, a test of the person's blood or urine shall be administered.
[L 2000, c 189, pt of §23]
§291E-15 Refusal to submit to breath, blood, or urine test; subject to administrative revocation proceedings. If a person under arrest refuses to submit to a breath, blood, or urine test, none shall be given, except as provided in section 291E-21. Upon the law enforcement officer's determination that the person under arrest has refused to submit to a
breath, blood, or urine test, if applicable, then a law enforcement officer shall:
(1) Inform the person under arrest of the sanctions under section
291E-41 or 291E-65; and
(2) Ask the person if the person still refuses to submit to a breath,
blood, or urine test, thereby subjecting the person to the procedures and sanctions under part III or section 291E-65, as applicable;
provided that if the law enforcement officer fails to comply with paragraphs (1) and (2), the person shall not be subject to the refusal sanctions under part III or section 291E-65. [L 2000, c 189, pt of §23; am L 2006, c 64, §2]
[§291E-16] Proof of refusal; admissibility. If a legally arrested
person refuses to submit to a test of the person's breath, blood, or urine, evidence of refusal shall be admissible only in a proceeding under
part III or section 291E-65 and shall not be admissible in any other action
or proceeding, whether civil or criminal. [L 2000, c 189, pt of §23]
[§291E-17] Other evidence not excluded. This part shall not limit
the introduction of any other competent evidence bearing on the question
of whether the person was under the influence of an intoxicant or was operating a vehicle while under the age of twenty-one and after
consuming a measurable amount of alcohol. [L 2000, c 189, pt of §23]
[§291E-18] Test results to be collected. The results of any test for intoxicants made upon any person, including any person who has been
fatally injured in a traffic collision or the operator of a vehicle involved in a collision that resulted in another person's death, shall be sent to the state director of transportation, who shall compile the data without revealing the identity of any individual tested. This data shall be available only to the
state and county highway safety councils and to other agencies the director of transportation deems necessary and advisable. [L 2000, c 189, pt of §23]
[§291E-19] Authorization to establish intoxicant control roadblock programs. The police departments of the respective counties may
establish and implement intoxicant control roadblock programs in
accordance with the minimum standards and guidelines provided in section 291E-20. The chief of police in any county establishing an intoxicant control roadblock program pursuant to this section shall specify the procedures to
be followed in carrying out the program in rules adopted under chapter 91; provided that the procedures shall be in conformity with and not more intrusive than the standards and guidelines described in section 291E-20.
In the case of internal police standards that do not fall within the definition
of "rule" under section 91-1(4), failure to comply scrupulously with such internal police procedures shall not invalidate a roadblock that otherwise meets the minimum statutory criteria provided in section 291E-20.
[L 2000, c 189, pt of §23]
[§291E-20] Minimum standards for roadblock procedures. (a) Every intoxicant control roadblock program shall:
(1) Require that all vehicles approaching roadblocks be stopped or
that certain vehicles be stopped by selecting vehicles in a specified
numerical sequence or pattern;
(2) Require that roadblocks be located at fixed locations for a maximum three-hour period;
(3) Provide for the following minimum safety precautions at every roadblock:
(A) Proper illumination;
(B) Off-road or otherwise safe and secure holding areas for vehicles involved in any roadblock stop;
(C) Uniformed law enforcement officers carrying proper identification;
(D) Adequate advance warning of the fact and purpose of the roadblocks, either by sign posts, flares, or other alternative methods;
(E) Termination of roadblocks at the discretion of the law enforcement officer in charge where traffic congestion would otherwise result; and
(4) Provide for a sufficient quantity and visibility of uniformed officers and official vehicles to ensure speedy compliance with the purpose of the roadblocks and to move traffic with a minimum of inconvenience.
(b) Nothing in this section shall prohibit the establishment of procedures to make roadblock programs less intrusive than required by the minimum standards provided in this section. [L 2000, c 189, pt of §23]
§291E-21 Applicable scope of part; mandatory testing in the event of a collision resulting in 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) 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).
(c) In the event of a collision resulting in injury or death and if a law enforcement officer has probable cause to believe that a 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. If the person involved in the collision is not injured or refuses to be treated for any injury, the law enforcement officer may offer the person 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.
(e) Any person complying with this section shall be exempt from
liability pursuant to section 663-1.9 as a result of compliance.
(f) 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. [L 2000, c 189, pt
of §23; am L 2001, c 157, §12; am L 2003, c 72, §1; am L 2004, c 90, §6]
Case Notes
Decisions under prior law (§286-163).
A mandatory blood test, pursuant to this section, absent an arrest,
violates neither the Fourth Amendment nor article I, §7 of the Hawaii constitution,
so long as the police have probable cause to believe that the driver has committed one of the enumerated offenses and that the driver's blood contains evidence of intoxication or drug influence, exigent circumstances excuse a warrant, and the test is performed in a reasonable manner. 98 H. 221, 47 P.3d 336.
Section, by its plain language, authorizes the police to obtain a breath, blood, or urine 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 himself or herself, so long as the police have probable cause to believe that the driver is driving under the influence of alcohol or drugs;
also, section applies to drivers injured or killed in a single-vehicle collision
in which no other person is injured. 98 H. 221, 47 P.3d 336.
This section operates as an exception to §286-151, which generally
requires the police lawfully to arrest the driver prior to administering a
blood test. 98 H. 221, 47 P.3d 336.
[§291E-22] Presence of drugs or metabolic products; admissibility. Any results reflecting the presence of drugs or metabolic products
obtained from a blood or urine specimen obtained under this part shall not
be admissible in any proceeding brought under chapter 329 or 712.
[L 2000, c 189, pt of §23]
PART III. ADMINISTRATIVE REVOCATION PROCESS
Case Notes
Due process rights not violated by administrative driver's license revocation hearing procedure where defendant was afforded a hearing where witnesses were called and defendant was represented by counsel, and hearing office advised counsel of the procedure that
hearing officer was going to follow. 108 H. 31, 116 P.3d 673.
Decisions under prior law (Chap. 286, Pt. XIV).
Administrative revocation of driver's license law is constitutional because arrestee's due process rights are fully protected; administrative revocation program was applied in constitutional manner to each appellant.
75 H. 1, 856 P.2d 1207.
Administrative revocation program did not violate article V, §6 of Hawaii constitution; placement of program within judiciary did not violate separation of powers doctrine. 76 H. 380, 878 P.2d 719.
Where information conveyed to defendant regarding defendant's rights under this chapter was inaccurate and misleading, defendant was precluded from knowingly and intelligently consenting to the blood alcohol test in violation of this chapter; trial court thus properly suppressed blood test results in defendant's criminal DUI prosecution. 92 H. 45, 987 P.2d 268.
Article VI, §1 and article V, §6 of the Hawaii constitution, neither separately nor together prohibit the establishment of the administrative driver's license revocation office in the judiciary. 91 H. 212 (App.), 982 P.2d 346.
§291E-31 Notice of administrative revocation; effect. As used in this part, the notice of administrative revocation:
(1) Establishes that the respondent's license and privilege to operate a vehicle in the State or on or in the waters of the State shall be terminated:
(A) Thirty days after the date the notice of administrative revocation
is issued in the case of an alcohol related offense;
(B) Forty-four days after the date the notice of administrative revocation is issued in the case of a drug related offense; or
(C) Such later date as is established by the director under section 291E-38, if the director administratively revokes the respondent's license and privilege;
(2) [Paragraph effective until June 30, 2007. For paragraph effective
July 1, 2007, see below.] Establishes that the registration of any motor vehicle registered to a respondent who is a
repeat intoxicated driver shall be terminated thirty days after the date of an arrest pursuant to section 291E‑33(c);
(2) [Paragraph effective July 1, 2007. For paragraph effective until June 30, 2007, see above.] Establishes that the registration of any motor vehicle registered to a respondent who is a repeat intoxicated driver or a highly intoxicated driver shall be terminated thirty days after the date of an arrest pursuant to section 291E‑33(c);
(3) Establishes the date on which administrative revocation proceedings against the respondent were initiated; and
(4) Serves as a temporary permit, if applicable, to operate a vehicle as provided in section 291E‑33. [L 2000, c 189, pt of §23; am L 2001, c 157, §13; am L 2006, c 201, §2]
Case Notes
The administrative director of the courts (director) may not, in an administrative hearing filed pursuant to §291E-38, consider an offense occurring after the notice of administrative revocation has been issued
under this section, as a basis for increasing an administrative revocation period already determined on administrative review by the director under §§291E-37 and 291E-41. 108 H. 350, 120 P.3d 249.
§291E-32 Criminal prosecution. (a) Criminal prosecution under
section 291E-61 or 291E-61.5 may be commenced concurrently with administrative revocation proceedings under this part; provided that documentary and testimonial evidence provided by the respondent during
the administrative proceeding shall not be admissible against the
respondent in any proceeding under section 291E-61 or 291E-61.5 arising
out of the same occurrence.
(b) When a person's license and privilege to operate a vehicle is revoked under this part and the person also is convicted of an offense under section 291E-61 or 291E-61.5 arising out of the same occurrence, the total period
of revocation imposed in the two proceedings shall not exceed the longer period of revocation imposed in either proceeding. If the person is
convicted under section 291E-61 or 291E-61.5 prior to completion of administrative proceedings, the person shall surrender the temporary
permit issued under this part at the time of entry of a plea of guilty or no contest, entry of a verdict of guilty,
or of sentencing, whichever occurs
first. [L 2000, c 189, pt of §23; am L 2004, c 90, §7]
Case Notes
Decisions under prior law (§286-253).
Prosecutor not prohibited from obtaining the administrative hearing decision. 76 H. 354, 878 P.2d 169.
§291E-33 Probable cause determination; issuance of notice of administrative revocation; procedures. (a) Whenever a person is arrested for a violation of section 291E-61 or 291E-61.5 on a determination by the arresting law enforcement officer that:
(1) There was reasonable suspicion to stop the vehicle or the vehicle
was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20; and
(2) There was probable cause to believe that the person was operating the vehicle while under the influence of an intoxicant;
the law enforcement officer immediately shall take possession of any license held by the person and request the person to take a test for alcohol concentration, in the case
of an alcohol related offense, or a test for drug content in the blood or urine, in the case of a drug related offense. The law enforcement officer shall inform the person that, in the case of an alcohol related offense, the person shall elect to take a breath test, a blood test, or both, pursuant to section 291E‑11, but that the person may refuse to submit to testing under this chapter. In the case of a drug related offense, the person shall elect to take a blood test, a urine test, or both, pursuant to section 291E-11, after being informed that the person may refuse to submit to testing under this chapter. When applicable under section 291E-15, the law enforcement officer also shall:
(1) Inform the person of the sanctions under section 291E‑41, including the sanction for refusing to take a breath, blood, or urine test, if applicable; and
(2) Ask the person if the person still refuses to submit to a breath,
blood, or urine test, upon the law enforcement officer's determination that, after the person has been informed by a law enforcement officer that the person may refuse to submit to testing, the person under arrest has
refused to submit to a breath, blood, or urine test.
Thereafter, the law enforcement officer shall complete and issue to the person a notice of administrative revocation and shall indicate thereon whether the notice shall serve as a temporary permit. The notice shall
serve as a temporary permit, unless, at the time of arrest: the person was unlicensed; the person's license or privilege to operate a vehicle was revoked or suspended; or the person had no license in the person's possession.
(b) Whenever a law enforcement officer determines that, as the result
of a blood or urine test performed pursuant to section 291E-21, there is probable cause to believe that a person being treated in a hospital or
medical facility has violated section 291E-61 or 291E-61.5, the law enforcement officer immediately shall take possession of any license held
by the person and shall complete and issue to the person a notice of administrative revocation and indicate thereon whether the notice shall
serve as a temporary permit. The notice shall serve as a temporary permit unless, at the time the notice was issued: the person was unlicensed; the person's license or privilege to operate a vehicle was revoked or suspended; or the person had no license in the person's possession.
(c) [Subsection effective until June 30, 2007. For subsection effective July 1, 2007, see below.] Whenever a respondent under this section is a repeat intoxicated driver, the arresting law enforcement officer shall take possession of the motor vehicle registration and, if the motor vehicle being driven by the respondent is registered to the respondent, remove the number plates and issue a temporary motor vehicle registration and temporary number plates for the motor vehicle. No temporary motor vehicle registration or temporary number plates shall be issued if the respondent's registration has expired or been revoked. The applicable police department, upon determining that the respondent is a repeat intoxicated driver, shall notify the appropriate county director of finance to enter a stopper on the motor vehicle registration files to prevent the respondent from conducting any motor vehicle transactions, except as permitted under this part.
(c) [Subsection effective July 1, 2007. For subsection effective until June 30, 2007, see above.] Whenever a respondent under this section is a repeat intoxicated driver or highly intoxicated driver, the arresting law enforcement officer shall take possession of the motor vehicle registration and, if the motor vehicle being driven by the respondent is registered to the respondent, remove the number plates and issue a temporary motor vehicle registration and temporary number plates for the motor vehicle. No temporary motor vehicle registration or temporary number plates shall be issued if the respondent's registration has expired or been revoked. The applicable police department, upon determining that the respondent is a repeat intoxicated driver or highly intoxicated driver, shall notify the appropriate county director of finance to enter a stopper on the motor vehicle registration files to prevent the respondent from conducting any motor vehicle transactions, except as permitted under this part. [L 2000, c 189, pt of §23; am L 2001, c 157, §14; am L 2002, c 113, §2; am L 2004, c 90, §8; am L 2006, c 64, §3 and c 201, §3]
Case Notes
Where hearing officer refused to admit intoxilyzer results, this was an adequate safeguard in the situation where the police failed to adequately notify the defendant of the implied consent law. 108 H. 31, 116 P.3d 673.
Decisions under prior law (§286-255).
Where information conveyed to defendant regarding defendant's rights under this chapter was inaccurate and misleading, defendant was precluded from knowingly and intelligently consenting to the blood alcohol test in violation of this chapter; trial court thus properly suppressed blood test results in defendant's criminal DUI prosecution. 92 H. 45, 987 P.2d 268.
Section requires an arresting officer to indicate on the notice of administrative license revocation that the notice shall serve as a temporary driver's permit, unless the arrestee falls within any of the disqualifying categories listed in this section; arresting officer's error in failing to mark notice did not warrant reversal of license revocation in light of policy objectives of this part and credit by director for days of driving privileges lost to reduce period of license suspension was appropriate remedy for officer's error. 91 H. 125 (App.), 980 P.2d 999.
Where arrestee's reliance on misinformation and/or insufficient information from the arresting officer is conclusively presumed and that arrestee thus did not knowingly and intelligently consent to the breath test, evidence of the breath test results should have been suppressed. 95 H. 86 (App.), 18 P.3d 948.
When police informed defendant of the consequences of refusing to take any tests "if your driving record shows two prior alcohol enforcement contacts during the seven years preceding the date of arrest" and "if your driving record shows three or more prior alcohol enforcement contacts during the ten years preceding the date of arrest", it was also required to inform defendant of the §286-251 definition of "alcohol enforcement contact". 98 H. 53 (App.), 41 P.3d 715.
§291E-34 Notice of administrative revocation; contents. (a) The notice of administrative revocation shall provide, at a minimum and in clear language, the following general information relating to administrative revocation:
(1) The statutory authority for administrative revocation;
(2) An explanation of the distinction between administrative revocation and a suspension or revocation imposed under section 291E-61 or 291E-61.5; and
(3) That criminal charges filed pursuant to section 291E-61 or 291E-61.5 may be prosecuted concurrently with the administrative action.
(b) The notice, when completed by the law enforcement officer and issued to the respondent, shall contain at a minimum the following information relating to the incident that gives rise to the issuance of the notice of administrative revocation:
(1) Information identifying the respondent;
(2) The specific violation for which the respondent was arrested;
(3) The date issued and the date the administrative revocation is scheduled to go into effect;
(4) The expiration date of the temporary permit, and the temporary motor vehicle registration and temporary number plates if applicable; and
(5) That the issuance of the notice of administrative revocation will be administratively reviewed.
(c) The notice shall provide, at a minimum, the following information relating to the administrative review:
(1) That the review is automatic;
(2) That the respondent, within three days of the issuance of the notice of administrative revocation in the case of an alcohol related offense and within seventeen days of the issuance of the notice of administrative revocation in the case of a drug related offense, may submit written information demonstrating why the respondent's license and privilege to operate a vehicle, and motor vehicle registration if applicable, should not be administratively revoked;
(3) The address or location where the respondent may submit the information;
(4) That the respondent is not entitled to be present or represented at the administrative review; and
(5) That the administrative review decision shall be mailed to the respondent:
(A) No later than eight days after the date of the issuance of the notice of administrative revocation in the case of an alcohol related offense; and
(B) No later than twenty-two days after the date of the issuance of the notice of administrative revocation in the case of a drug related offense.
(d) The notice shall state that, if the respondent's license and privilege
to operate a vehicle, and motor vehicle registration if applicable, are not administratively revoked after the review, the respondent's license, and if applicable, motor vehicle registration and any number plates taken into custody, shall be returned, unless a subsequent alcohol or drug enforcement contact has occurred, along with a certified statement that the administrative revocation proceedings have been terminated.
(e) The notice shall state that, if the respondent's license and privilege
to operate a vehicle, and motor vehicle registration if applicable, are administratively revoked after the review, a decision shall be mailed to the respondent, or to the parent or guardian of the respondent if the respondent is under the age of eighteen, that shall contain, at a minimum, the following information:
(1) The reasons why the respondent's license and privilege to operate a vehicle, and motor vehicle registration if applicable, were administratively revoked;
(2) That the respondent may request the director, within six days of the date the decision is mailed, to schedule an administrative hearing to review the administrative revocation;
(3) That, if the respondent's request for an administrative hearing is received by the director within six days of the date the decision was mailed, the hearing shall be scheduled to commence:
(A) No later than twenty-five days after the date of the issuance of the notice of administrative revocation in the case of an alcohol related offense; and
(B) No later than thirty-nine days after the date of the issuance of the notice of administrative revocation in the case of a drug related offense;
(4) The procedure to request an administrative hearing;
(5) That failure to request an administrative hearing within the time provided shall cause the administrative revocation to take effect for the period and under the conditions established by the director in the decision;
(6) That the respondent may regain the right to a hearing by requesting the director, within sixty days after the issuance of the notice of administrative revocation, to schedule a hearing;
(7) That the director shall schedule the hearing to commence no later than thirty days after a request under paragraph (6) is received, but that, except as provided in section 291E‑38(k), the temporary permit, and temporary motor vehicle registration and temporary number plates if applicable, shall not be extended if the respondent fails to request an administrative hearing within the initial six-day period provided for that purpose;
(8) That failure to attend the hearing shall cause the administrative revocation to take effect for the period and under the conditions indicated;
(9) The duration of the administrative revocation and other conditions that may be imposed, including: referral to the driver's education program for an assessment of the respondent's substance abuse or dependence and the need for treatment; and
(10) That, pursuant to section 291E-48, the director may grant a special motor vehicle registration to a qualified household member or to a co-owner of any motor vehicle owned by the respondent, upon a determination that
the person is completely dependent on the motor vehicle for the necessities of life; provided that the special motor vehicle registration shall not be valid for use by the respondent.
(f) The notice shall provide, at a minimum, the following information relating to administrative hearings:
(1) That the respondent shall have six days from the date the administrative review decision was mailed to request that an administrative hearing be scheduled;
(2) That a request for an administrative hearing and payment of a $30 fee, unless waived pursuant to section 291E‑39, shall entitle the respondent to review and copy, prior to the hearing, all documents that were considered at the administrative review, including the arrest report and the sworn statements;
(3) That the respondent may be represented by an attorney, submit evidence, give testimony, and present and cross-examine witnesses;
(4) That, in cases where the respondent is under the age of eighteen,
a parent or guardian must be present; and
(5) That a written decision shall be mailed no later than five days after completion of the hearing.
(g) The notice shall state that, if the administrative revocation is reversed after the hearing, the respondent's license, and if applicable, motor vehicle registration and any number plates taken into custody, shall be returned, along with a certified statement that the administrative revocation proceedings have been terminated.
(h) The notice shall state that, if the administrative revocation is sustained at the hearing, a written decision shall be mailed to the respondent, or to the parent or guardian of the respondent if the respondent is under the age of eighteen, that shall contain, at a minimum, the following information:
(1) The effective date of the administrative revocation;
(2) The duration of the administrative revocation;
(3) If applicable, the date by which any outstanding motor vehicle number plates issued to the respondent must be surrendered to the director;
(4) If applicable, that failure to surrender any motor vehicle number plates as required is a misdemeanor;
(5) Other conditions that may be imposed by law; and
(6) The right to obtain judicial review.
(i) The notice shall state that failure of the respondent, or of the parent or guardian of the respondent if the respondent is under the age of eighteen, to attend a scheduled hearing shall cause the administrative revocation to take effect as provided in the administrative review decision.
[L 2000, c 189, pt of §23; am L 2001, c 157, §15; am L 2004, c 90, §9; am L 2006, c 64, §4]
Case Notes
As Honolulu police department form 396B explains the essential difference between the civil nature of the revocation proceeding and the penal characteristics of the criminal proceeding, the various consequences that flow from each, and the interrelationship between the two with respect to driving privileges, the form satisfies the directive of subsection (a)(2) that "general information" about the "distinction" between the two be explained.
108 H. 78, 117 P.3d 109.
Honolulu police department form 396B need not notify drivers that the police must establish reasonable suspicion to stop and probable cause to believe a driver is under the influence of an intoxicant in an administrative license revocation hearing, in the absence of a statutory directive to that effect. 108 H. 78, 117 P.3d 109.
Decisions under prior law (§286-254).
Because notice of administrative revocation contained an improper and erroneous statement of a defendant's rights, it was void and must be modified to comply with requirements of §286-253. 76 H. 354, 878
P.2d 169.
§291E-35 Immediate restoration of license and motor vehicle registration. (a) In cases involving an alcohol related offense, if a test conducted in accordance with part II and section 321‑161 and the rules adopted thereunder shows that a respondent had an alcohol concentration less than .08, the director or the arresting law enforcement agency immediately shall return the respondent's license, and if applicable, motor vehicle registration and any number plates taken into custody, along with a certified statement that administrative revocation proceedings have been terminated with prejudice.
(b) In cases involving a drug related offense, if a test conducted in accordance with part II and section 321‑161 and the rules adopted thereunder fails to show the presence, in the respondent's blood or urine,
of any drug that is capable of impairing the respondent's ability to operate a vehicle in a careful and prudent manner, the director or the arresting law enforcement agency immediately shall return the respondent's license, and
if applicable, motor vehicle registration and any number plates taken into custody, along with a certified statement that administrative revocation proceedings have been terminated with prejudice. [L 2000, c 189, pt of §23; am L 2001, c 157, §16]
§291E-36 Documents required to be submitted for administrative review; sworn statements. (a) Whenever a respondent has been arrested for a violation of section 291E-61 or 291E-61.5 and submits to a test that establishes: the respondent's alcohol concentration was .08 or more; the presence, in the respondent's blood or urine, of any drug that is capable of impairing the respondent's ability to operate a vehicle in a careful and prudent manner; or whenever a respondent has been involved in a collision resulting in injury or death and a blood or urine test performed pursuant to section 291E-21 establishes that the respondent's alcohol concentration was .08 or more or establishes the presence in the respondent's blood or urine of any drug that is capable of impairing the respondent's ability to operate a vehicle in a careful and prudent manner, the following shall be forwarded immediately to the director:
(1) A copy of the arrest report or the report of the law enforcement officer who issued the notice of administrative revocation to the person involved in a collision resulting in injury or death and the sworn statement
of the arresting law enforcement officer or the officer who issued the notice of administrative revocation, stating facts that establish that:
(A) There was reasonable suspicion to stop the vehicle, the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20, or the respondent was
tested pursuant to section 291E-21;
(B) There was probable cause to believe that the respondent had
been operating the vehicle while under the influence of an intoxicant; and
(C) The respondent agreed to be tested or the person was tested pursuant to section 291E-21;
(2) In a case involving an alcohol related offense, the sworn statement
of the person responsible for maintenance of the testing equipment, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:
(A) The equipment used to conduct the test was approved for use as an alcohol testing device in this State;
(B) The person had been trained and at the time the test was conducted was certified and capable of maintaining the testing equipment; and
(C) The testing equipment used had been properly maintained and was in good working condition when the test was conducted;
(3) In a case involving an alcohol related offense, the sworn statement
of the person who conducted the test, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:
(A) The person was trained and at the time the test was conducted was certified and capable of operating the testing equipment;
(B) The person followed the procedures established for conducting
the test;
(C) The equipment used to conduct the test functioned in accordance with operating procedures and indicated that the respondent's alcohol concentration was at, or above, the prohibited level; and
(D) The person whose breath or blood was tested is the respondent;
(4) In a case involving a drug related offense, the sworn statement of the person responsible for maintenance of the testing equipment, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:
(A) The equipment used to conduct the test was approved for use in drug testing;
(B) The person conducting the test had been trained and, at the time of the test, was certified and capable of maintaining the testing equipment; and
(C) The testing equipment used had been properly maintained and was in good working condition when the test was conducted;
(5) In a case involving a drug related offense, the sworn statement of the person who conducted the test, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:
(A) At the time the test was conducted, the person was trained and capable of operating the testing equipment;
(B) The person followed the procedures established for conducting the test;
(C) The equipment used to conduct the test functioned in accordance with operating procedures and indicated the presence of one or more drugs or their metabolites in the respondent's blood or urine; and
(D) The person whose blood or urine was tested is the respondent;
(6) A copy of the notice of administrative revocation issued by the law enforcement officer to the respondent;
(7) Any license, and motor vehicle registration and number plates, if applicable, taken into possession by the law enforcement officer; and
(8) A listing of any prior alcohol or drug enforcement contacts involving the respondent.
(b) Whenever a respondent has been arrested for a violation of section 291E-61 or 291E-61.5 and refuses to submit to a test to determine alcohol concentration or drug content in the blood or urine, the following shall be forwarded immediately to the director:
(1) A copy of the arrest report and the sworn statement of the arresting law enforcement officer, stating facts that establish that:
(A) There was reasonable suspicion to stop the vehicle or the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20;
(B) There was probable cause to believe that the respondent had been operating the vehicle while under the influence of an intoxicant;
(C) The respondent was informed of:
(i) The sanctions of section 291E-41;
(ii) The possibility that criminal charges may be filed; and
(iii) The probable consequences of refusing to be tested for alcohol concentration or drug content in the blood or urine; and
(D) The respondent refused to be tested;
(2) A copy of the notice of administrative revocation issued to the respondent;
(3) Any driver's license, and motor vehicle registration and number plates if applicable, taken into possession; and
(4) A listing of all alcohol and drug enforcement contacts involving the respondent. [L 2000, c 189, pt of §23; am L 2001, c 157, §17; am L 2002, c 113, §3; am L 2004, c 90, §10; am L 2006, c 64, §5]
Case Notes
Decisions under prior law (§286-257).
Statute requires sworn statements, not statements given under oath or even notarized statements. Offender-Based Transaction Statistics/Computerized Criminal History Arrest Report, along with arresting officer's statement, fulfilled requirements of statute; statute does not require the complete police report. 75 H. 1, 856 P.2d 1207.
Standard form submitted by intoxilyzer supervisor states sufficient facts to comply with requirements of subsection (a)(2) and the instrument is presumed to be properly functioning for thirty days after its successful testing for accuracy; hearing officer and district court were correct in concluding that reasonable suspicion existed for police officer to stop appellant. 75 H. 271, 859 P.2d 917.
Based on §§286-258, 286-259, and this section, upon petitioner's objection, the hearing officer must exclude from the record only (a) all unsworn statements (except the arrest report) of law enforcement officials who do
not appear to testify, and (b) all other evidence that is both irrelevant and prejudicial. 91 H. 212 (App.), 982 P.2d 346.
Subsection (b)(1)(C) does not require that all possible and incidental
effects of a refusal to consent to a chemical test be explained to an
arrestee. 91 H. 212 (App.), 982 P.2d 346.
Where intoxilyzer operator's statements that breath test was administered in compliance with operator's training and the procedures established for conducting the test under subsection (a)(2)(B) and that intoxilyzer indicated no errors or malfunctions during the test, statement verified that equipment functioned in accordance with operating procedures mandated by subsection (a)(3)(C) and set forth sufficient facts to establish that the requirements of subsection (a)(3)(B) and (C) had been satisfied. 93 H. 133 (App.), 997 P.2d 59.
§291E-37 Administrative review; procedures; decision. (a) The director automatically shall review the issuance of a notice of administrative revocation and shall issue a written decision administratively revoking the license and privilege to operate a vehicle, and motor vehicle registration if applicable, or rescinding the notice of administrative revocation. The written review decision shall be mailed to the respondent, or to the parent or guardian of the respondent if the respondent is under the age of eighteen, no later than:
(1) Eight days after the date the notice was issued in a case involving an alcohol related offense; or
(2) Twenty-two days after the date the notice was issued in a case involving a drug related offense.
(b) The respondent shall have the opportunity to demonstrate in writing why the respondent's license and privilege to operate a vehicle, and motor vehicle registration if applicable, should not be administratively revoked and, within three days of receiving the notice of administrative revocation, as provided in section 291E-33, shall submit any written information, either by mail or in person, to the director's office or to any office or address designated by the director for that purpose.
(c) In conducting the administrative review, the director shall consider:
(1) Any sworn or unsworn written statement or other written evidence provided by the respondent;
(2) The breath, blood, or urine test results, if any; and
(3) The sworn statement of any law enforcement officer or other person or other evidence or information required by section 291E‑36.
(d) The director shall administratively revoke the respondent's license and privilege to operate a vehicle if the director determines that:
(1) There existed reasonable suspicion to stop the vehicle, the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E‑19 and 291E‑20, or the person was tested pursuant to section 291E‑21;
(2) There existed probable cause to believe that the respondent operated the vehicle while under the influence of an intoxicant; and
(3) The evidence proves by a preponderance that:
(A) The respondent operated the vehicle while under the influence of an intoxicant; or
(B) The respondent operated the vehicle and refused to submit to a breath, blood, or urine test after being informed:
(i) That the person may refuse to submit to testing in compliance with section 291E-11; and
(ii) Of the sanctions of this part and then asked if the person still refuses to submit to a breath, blood, or urine test, in compliance with the requirements of section 291E-15.
(e) The director shall administratively revoke the registration of any vehicle owned or registered to the respondent and take custody of any number plates issued to the respondent if the director determines that the respondent is a repeat intoxicated driver and that:
(1) There existed reasonable suspicion to stop the vehicle, the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E‑19 and 291E‑20, or the person was tested pursuant to section 291E‑21;
(2) There existed probable cause to believe that the respondent operated the vehicle while under the influence of an intoxicant; and
(3) The evidence proves by a preponderance that:
(A) The respondent operated the vehicle while under the influence of an intoxicant; or
(B) The respondent operated the vehicle and refused to submit to a breath, blood, or urine test after being informed:
(i) That the person may refuse to submit to testing in compliance with section 291E-11; and
(ii) Of the sanctions of this part and then asked if the person still refuses to submit to a breath, blood, or urine test, in compliance with the requirements of section 291E-15.
(f) If the evidence does not support administrative revocation, the director shall rescind the notice of administrative revocation and return the respondent's license, and if applicable, motor vehicle registration and any number plates taken into custody, along with a certified statement that administrative revocation proceedings have been terminated.
(g) If the director administratively revokes the respondent's license and privilege to operate a vehicle, and motor vehicle registration if applicable,
the director shall mail a written review decision to the respondent, or to the parent or guardian of the respondent if the respondent is under the age of eighteen. The written review decision shall:
(1) State the reasons for the administrative revocation;
(2) Indicate that the respondent has six days from the date the decision is mailed to request an administrative hearing to review the director's decision;
(3) Explain the procedure by which to request an administrative hearing;
(4) Be accompanied by a form, postage prepaid, that the respondent may fill out and mail in order to request an administrative hearing;
(5) Inform the respondent of the right to review and copy all documents considered at the review, including the arrest report and the sworn statements of law enforcement officers or other persons, prior to the hearing; and
(6) State that the respondent may be represented by counsel at the hearing, submit evidence, give testimony, and present and cross-examine witnesses, including the arresting law enforcement officer.
(h) Failure of the respondent to request a hearing within the time provided in section 291E‑38(a) shall cause the administrative revocation to take effect for the period and under the conditions provided in the administrative review decision issued by the director under this section.
The respondent may regain the right to an administrative hearing by requesting the director, within sixty days of the issuance of the notice of administrative revocation as provided in section 291E‑33, to schedule an administrative hearing. The administrative hearing shall be scheduled to commence no later than thirty days after the request is received by the director. The administrative review decision issued by the director under
this section shall explain clearly the consequences of failure to request an administrative hearing and the procedure by which the respondent may regain the right to a hearing. [L 2000, c 189, pt of §23; am L 2001, c 157, §18; am L 2006, c 64, §6]
Case Notes
The administrative director of the courts (director) may not, in an administrative hearing filed pursuant to §291E-38, consider an offense occurring after the §291E-31 notice of administrative revocation has been issued, as a basis for increasing an administrative revocation period already determined on administrative review by the director under §291E-41 and this section. 108 H. 350, 120 P.3d 249.
Decisions under prior law (§286-258).
Margin of error in intoxilyzer test result is a relevant factor to be weighed
in considering evidence for driver license revocation. 83 H. 24, 924 P.2d 192.
The basis for driver's license revocation may be established in any one of three ways specified in subsection (d)(3) and §286-259(e)(3) and any one
of the three bases for revocation is a sufficient and independent ground
upon which to sustain revocation. 97 H. 463, 40 P.3d 865.
Based on §§286-257, 286-259, and this section, upon petitioner's objection, the hearing officer must exclude from the record only (a) all unsworn statements (except the arrest report) of law enforcement officials who do
not appear to testify, and (b) all other evidence that is both irrelevant and prejudicial. 91 H. 212 (App.), 982 P.2d 346.
§291E-38 Administrative hearing; procedure; decision. (a) If the director administratively revokes the respondent's license and privilege to operate a vehicle, and motor vehicle registration if applicable, after the administrative review, the respondent may request an administrative
hearing to review the decision within six days of the date the administrative review decision is mailed. If the request for hearing is received by the director within six days of the date the decision is mailed, the hearing shall be scheduled to commence no later than:
(1) Twenty-five days from the date the notice of administrative revocation was issued in a case involving an alcohol related offense; or
(2) Thirty-nine days from the date the notice of administrative
revocation was issued in a case involving a drug related offense.
The director may continue the hearing only as provided in subsection (k).
(b) The hearing shall be held at a place designated by the director,
as close to the location where the notice of administrative revocation was issued as practical.
(c) The respondent may be represented by counsel and, if the respondent is under the age of eighteen, must be accompanied by a parent or guardian.
(d) [Subsection effective until June 30, 2007. For subsection effective July 1, 2007, see below.] The director shall conduct the hearing and have authority to:
(1) Administer oaths and affirmations;
(2) Examine witnesses and take testimony;
(3) Receive and determine the relevance of evidence;
(4) Issue subpoenas;
(5) Regulate the course and conduct of the hearing; and
(6) Make a final ruling.
(d) [Subsection effective July 1, 2007.
For subsection effective until June 30, 2007, see above.]
The director shall conduct the hearing and have authority to:
(1) Administer oaths and affirmations;
(2) Examine witnesses and take testimony;
(3) Receive and determine the relevance of evidence;
(4) Issue subpoenas;
(5) Regulate the course and conduct of the hearing;
(6) Impose up to the maximum license revocation period as specified under section 291E‑41(b); and
(7) Make a final ruling.
(e) The director shall affirm the administrative revocation only if the director determines that:
(1) There existed reasonable suspicion to stop the vehicle, the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E‑19 and 291E‑20, or the person was tested pursuant to section 291E‑21;
(2) There existed probable cause to believe that the respondent
operated the vehicle while under the influence of an intoxicant; and
(3) The evidence proves by a preponderance that:
(A) The respondent operated the vehicle while under the influence
of an intoxicant; or
(B) The respondent operated the vehicle and refused to submit to a breath, blood, or urine test after being informed:
(i) That the person may refuse to submit to testing in compliance with section 291E-11; and
(ii) Of the sanctions of this part and then asked if the person still refuses to submit to a breath, blood, or urine test in compliance with the requirements of section 291E-15.
(f) In addition to subsection (e), the director shall affirm the
administrative revocation of the registration of any motor vehicle owned
by or registered to the respondent only if the director determines that the respondent is a repeat intoxicated driver. If the director affirms the administrative revocation pursuant to this subsection, the director shall
order the respondent to surrender the number plates and motor vehicle registration of any motor vehicle owned by or registered to the respondent. The director may destroy any number plates taken into custody.
(g) The respondent's prior alcohol and drug enforcement contacts shall be entered into evidence.
(h) The sworn statements provided in section 291E-36 shall be admitted into evidence. The director shall consider the sworn statements in the absence of the law enforcement officer or other person. Upon written notice to the director, no later than five days prior to the hearing, that the respondent wishes to examine a law enforcement officer or other person
who made a sworn statement, the director shall issue a subpoena for the officer or other person to appear at the hearing. Personal service upon the law enforcement officer or other person who made a sworn statement shall be made no later than forty-eight hours prior to the hearing time. If the officer or other person cannot appear, the officer or other person at the discretion
of the director, may testify by telephone.
(i) The hearing shall be recorded in a manner to be determined by
the director.
(j) The director's decision shall be rendered in writing and mailed to
the respondent, or to the parent or guardian of the respondent if the respondent is under the age of eighteen, no later than five days after the hearing is concluded. If the decision is to reverse the administrative revocation, the director shall return the respondent's license, and if applicable, motor vehicle registration and any number plates taken into custody, along with a certified statement that administrative revocation proceedings have been terminated. If the decision sustains the administrative revocation, the director shall mail to the respondent a written decision indicating the duration of the administrative revocation and any other conditions or restrictions as may be imposed pursuant to section 291E‑41.
(k) For good cause shown, the director may grant a continuance either
of the commencement of the hearing or of a hearing that has already commenced. If a continuance is granted at the request of the director, the director shall extend the validity of the temporary permit, and temporary motor vehicle registration and temporary number plates if applicable, unless otherwise prohibited, for a period not to exceed the period of the continuance. If a continuance is granted at the request of the respondent, the director shall not extend the validity of the temporary permit, or temporary motor vehicle registration and temporary number plates, if applicable. For purposes of this section, a continuance means a delay in
the commencement of the hearing or an interruption of a hearing that has commenced, other than for recesses during the day or at the end of the
day or week. The absence from the hearing of a law enforcement officer
or other person, upon whom personal service of a subpoena has been made as set forth in subsection (h), constitutes good cause for a continuance.
(l) The director may grant a special motor vehicle registration, pursuant to section 291E‑48, to a qualified household member or a co-owner of any motor vehicle upon determination that the person is completely dependent
on the motor vehicle for the necessities of life. The special motor vehicle registration shall not be valid for use by the respondent.
(m) If the respondent fails to appear at the hearing, or if a respondent under the age of eighteen fails to appear with a parent or guardian, administrative revocation shall take effect for the period and under the conditions established by the director in the administrative review decision issued by the director under section 291E‑37. [L 2000, c 189, pt of §23;
am L 2001, c 157, §19; am L 2002, c 113, §§4 to 6; am L 2006, c 64, §7
and c 201, §4]
Case Notes
Inasmuch as the administrative driver's license revocation office hearings are quasi-judicial in nature, due process requires that the hearings be
public. 104 H. 483, 92 P.3d 993.
Due process rights not violated by administrative driver's license
revocation hearing procedure where defendant was afforded a hearing
where witnesses were called and defendant was represented by counsel,
and hearing office advised counsel of the procedure that hearing officer
was going to follow. 108 H. 31, 116 P.3d 673.
The administrative director of the courts (director) may not, in an administrative hearing filed pursuant to this section, consider an offense occurring after the §291E-31 notice of administrative revocation has been issued, as a basis for increasing an administrative revocation period already determined on administrative review by the director under §§291E-37 and 291E-41. 108 H. 350, 120 P.3d 249.
Decisions under prior law (§286-259).
Whether appellant was ordered out or voluntarily exited appellant's vehicle, the officer's ensuing observations of appellant's physical condition were properly utilized by hearing officer to satisfy requirement of subsection
(e)(2) that probable cause existed to believe that appellant drove while
under the influence. 75 H. 1, 856 P.2d 1207.
When both subsections (d) and (g) are read together, it is clear that in addition to officers who are required to be subpoenaed, director may issue subpoenas to other officers or individuals; appellant's contention that subsection (g) limited director's subpoena power to those officials who submitted sworn statements was without merit. 75 H. 271, 859 P.2d 917.
Director's refusal to issue subpoena for the custodian of records of
hospital was not an abuse of discretion; ADLRO's method of preparing hearing transcripts comported with subsection (h), and district court
properly considered the transcripts. 76 H. 380, 878 P.2d 719.
Arrestee may be represented by counsel if arrestee chooses; however,
no right to counsel as in the context of a criminal proceeding. 80 H. 197,
908 P.2d 545.
Section does not mandate continuance of hearing where retained counsel
is unavailable; hearing officer has discretionary authority to grant or deny continuance for good cause; counsel's involvement in another trial is not
per se good cause. 80 H. 197, 908 P.2d 545.
Hearing officer could conclude by preponderance of evidence, including margin of error for intoxilyzer test result, that it was more probable than
not that respondent had blood alcohol content above legal limit.
83 H. 24, 924 P.2d 192.
Margin of error in intoxilyzer test result is a relevant factor to be weighed in considering evidence for driver license revocation. 83 H. 24, 924 P.2d 192.
Administrative driver's license revocation office's practice of denying all prehearing subpoena requests for witnesses other than law enforcement officials submitting sworn statements does not violate an arrestee's right to due process. 88 H. 55, 961 P.2d 620.
Where hearing officer needed "more time" to make relevancy determination as to arrestee's requested witnesses, the continuance should have been designated a "director's continuance" pursuant to subsection (j). 88 H. 55, 961 P.2d 620.
Administrative driver's license revocation office did not abuse discretion by denying motorist's motion for continuance of the office's hearing pending district court's ruling on motorist's motion to set aside motorist's prior conviction where denying continuances based on speculation was consistent with the legislative intent behind the driver's license revocation statute and allowing continuances where the chances of overturning the prior conviction is speculative would encourage arrestees to exploit new dilatory tactics. 94 H. 232, 11 P.3d 457.
Due process right not violated by district court affirming administrative driver's license revocation office's denial of motorist's request for continuance of driver's license revocation hearing where administrative driver's license revocation office properly considered the evidence before
it at the time of the administrative hearing and imposed the statutorily mandated revocation period. 94 H. 232, 11 P.3d 457.
The basis for driver's license revocation may be established in any one of three ways specified in subsection (e)(3) and §286-258(d)(3) and any one of the three bases for revocation is a sufficient and independent ground upon which to sustain revocation. 97 H. 463, 40 P.3d 865.
Director's violation of mandatory time requirements of section voided the administrative revocation of driver's license proceeding against petitioner.
9 H. App. 396, 843 P.2d 145.
Where there was no "hearing" within purview of subsection (h), there was no obligation to record proceedings. 10 H. App. 322, 871 P.2d 796.
At hearing held under this section, arrestee entitled to examine person offering reason for continuance on issue of whether there was good cause
to continue administrative hearing pursuant to subsection (j). 80 H. 358
(App.), 910 P.2d 129.
Director's refusal to issue subpoenas to incident witnesses pursuant to this section abuse of discretion as witnesses possessed evidence relevant to question of arrestee's intoxication. 80 H. 358 (App.), 910 P.2d 129.
Arrestee did not have any constitutional right to call witnesses in order that arrestee wanted; subsection (d)(5) states that it is the hearing officer's prerogative to regulate the course and conduct of a hearing. 91 H. 212 (App.), 982 P.2d 346.
Based on §§286-257, 286-258, and this section, upon petitioner's objection, the hearing officer must exclude from the record only (a) all unsworn statements (except the arrest report) of law enforcement officials who
do not appear to testify, and (b) all other evidence that is both irrelevant
and prejudicial. 91 H. 212 (App.), 982 P.2d 346.
Where an arrestee's timely request for the issuance of a subpoena compelling the attendance of a witness at the first hearing states one or
more facts showing that the witness is a relevant witness, the subpoena
shall be issued prior to the first hearing. 91 H. 212 (App.), 982 P.2d 346.
Director, acting through an administrative driver's license revocation office hearing officer, abused director's discretion by continuing administrative hearing three separate times based solely on telephone messages that arresting police officer was "ill" and thus could not attend hearing.
93 H. 337 (App.), 3 P.3d 503.
Motorist denied due process and statutory rights to examine "a law enforcement official who made a sworn statement" where hearing officer received into evidence numerous documents, including arrest report of officer, but motorist was unable to question officer about officer's report and underlying arrest when hearing officer proceeded with hearing although officer was not present to testify. 93 H. 337 (App.), 3 P.3d 503.
Subsection (e) not applicable where officer never stopped motorist's vehicle; officer approached and talked to motorist only after motorist had first parked and exited motorist's vehicle, gone into a service station store
to conduct some business, and thereafter exited the store.
93 H. 337 (App.), 3 P.3d 503.
§291E-39 Fees and costs. The director may assess and collect a $30
fee from the respondent to cover the costs of processing the respondent's request for an administrative hearing. These costs include but shall not be limited to: the cost of photocopying documents; conditional license permits, temporary permits, temporary motor vehicle registrations, temporary number plates, and relicensing forms; interpreter services; and other similar costs; provided that the costs of issuing subpoenas for witnesses, including mileage fees, shall be borne by the party requesting the subpoena. The director may waive the fee in the case of an indigent respondent, upon an appropriate inquiry into the financial circumstances of the respondent
seeking the waiver and an affidavit or a certificate signed by the respondent demonstrating the respondent's financial inability to pay the fee.
[L 2000, c 189, pt of §23; am L 2001, c 157, §20; am L 2003, c 31, §1]
Case Notes
Decisions under prior law (§286-260).
The director is not required by this section or DCRCP rule 72 to respond to a petition for judicial review of the director's hearing decision revoking a person's driver's license for driving under the influence of intoxicating liquor, or to appear at the judicial hearing therefor; however if the director chooses not to respond, neither the foregoing section nor rule allows the director to file a motion for reconsideration of a district court decision reversing the director's revocation decision. 96 H. 114, 26 P.3d 1214.
[§291E-40] Judicial review; procedure. (a) If the director sustains the administrative revocation after an administrative hearing, the respondent, or parent or guardian of a respondent under the age of eighteen, may file a petition for judicial review within thirty days after the administrative hearing decision is mailed. The petition shall be filed with the clerk of the district court in the district in which the incident occurred and shall be accompanied by the required filing fee for civil actions. The filing of the petition shall not operate as a stay of the administrative revocation, nor shall the court stay the administrative revocation pending the outcome of the judicial review. The petition shall be appropriately captioned. The petition shall state with specificity the grounds upon which the petitioner seeks reversal of the administrative revocation.
(b) The court shall schedule the judicial review as quickly as practicable, and the review shall be on the record of the administrative hearing without taking of additional testimony or evidence. If the petitioner fails to appear without just cause or, in the case of a petitioner under the age of eighteen, the petitioner fails to appear with a parent or guardian, the court shall affirm the administrative revocation.
(c) The sole issues before the court shall be whether the director:
(1) Exceeded constitutional or statutory authority;
(2) Erroneously interpreted the law;
(3) Acted in an arbitrary or capricious manner;
(4) Committed an abuse of discretion; or
(5) Made a determination that was unsupported by the evidence in the record.
(d) The court shall not remand the matter back to the director for further proceedings consistent with its order. [L 2000, c 189, pt of §23]
Case Notes
Decisions under prior law (§286-260).
Section enabled plaintiff to raise constitutional claims during state court review of administrative proceedings; thus, under Younger abstention doctrine, proper for federal court to abstain from hearing claims. 17 F.3d 1244.
Petition for judicial review, filed on the thirty-first day after mailing of hearing decision, was untimely. 9 H. App. 484, 848 P.2d 383.
District court properly refused to consider petitioner's question on the merits of the case raised for the first time on appeal; petitioner failed to appear at scheduled administrative hearing and was defaulted; as a result, petitioner failed to raise any issue on the merits regarding administrative revocation of petitioner's driver's license in the administrative proceeding. 10 H. App. 322, 871 P.2d 796.
Discussed: 75 H. 1, 856 P.2d 1207.
§291E-41 Effective date and period of administrative revocation; criteria. (a) Unless an administrative revocation is reversed or the temporary permit, and temporary motor vehicle registration and temporary number plates if applicable, are extended by the director, administrative revocation shall become effective on the day specified in the notice of administrative revocation. Except as provided in section 291E-44, no license and privilege to operate a vehicle, nor motor vehicle registration and number plates if applicable, shall be restored under any circumstances, and no conditional license permit shall be issued during the administrative revocation period. Upon completion of the administrative revocation period, the respondent may reapply and be reissued a license pursuant to section
291E-45.
(b) [Subsection effective until June 30, 2007. For subsection effective July 1, 2007, see below.] The periods of administrative revocation with respect to a license and privilege to operate a vehicle, and motor vehicle registration if applicable, that shall be imposed under this part are as follows:
(1) A minimum of three months up to a maximum of one year revocation of license and privilege to operate a vehicle, if the respondent's record shows no prior alcohol enforcement contact or drug enforcement contact during the five years preceding the date the notice of administrative revocation was issued;
(2) A minimum of one year up to a maximum of two years revocation of license and privilege to operate a vehicle and of the registration of any motor vehicle registered to the respondent, if the respondent's record shows one prior alcohol enforcement contact or drug enforcement contact during the five years preceding the date the notice of administrative revocation was issued;
(3) A minimum of two years up to a maximum of four years revocation of license and privilege to operate a vehicle and of the registration of any motor vehicle registered to the respondent, if the respondent's record shows two prior alcohol enforcement contacts or drug enforcement contacts during the seven years preceding the date the notice of administrative revocation was issued;
(4) Lifetime revocation of license and privilege to operate a vehicle and of the registration of any motor vehicle registered to the respondent and a lifetime prohibition on any subsequent registration of motor vehicles by the respondent, if the respondent's record shows three or more prior alcohol enforcement contacts or drug enforcement contacts during the ten years preceding the date the notice of administrative revocation was issued; or
(5) For respondents under the age of eighteen years who were arrested for a violation of section 291E-61 or 291E-61.5, revocation of license and privilege to operate a vehicle either for the period remaining until the respondent's eighteenth birthday or, if applicable, for the appropriate revocation period provided in paragraphs (1) to (4) or in subsection (d), whichever is longer and such respondents shall not qualify for a conditional permit;
provided that when more than one administrative revocation, suspension, or conviction arises out of the same arrest, it shall be counted as only one prior alcohol enforcement contact or drug enforcement contact, whichever revocation, suspension, or conviction occurs later.
(b) [Subsection effective July 1, 2007. For subsection effective until June 30, 2007, see above.] The periods of administrative revocation with respect to a license and privilege to operate a vehicle, and motor vehicle registration if applicable, that shall be imposed under this part are as follows:
(1) A minimum of three months up to a maximum of one year revocation of license and privilege to operate a vehicle, if the respondent's record shows no prior alcohol enforcement contact or drug enforcement contact during the five years preceding the date the notice of administrative revocation was issued;
(2) For a respondent who is a highly intoxicated driver, a mandatory six-month revocation of license and privilege to operate a vehicle and of the registration of any motor vehicle registered to the highly intoxicated driver; provided that the highly intoxicated driver shall not qualify for a conditional license permit under section 291E‑44;
(3) A minimum of one year up to a maximum of two years revocation of license and privilege to operate a vehicle and of the registration of any motor vehicle registered to the respondent, if the respondent's record shows one prior alcohol enforcement contact or drug enforcement contact during the five years preceding the date the notice of administrative revocation was issued;
(4) A minimum of two years up to a maximum of four years revocation of license and privilege to operate a vehicle and of the registration of any motor vehicle registered to the respondent, if the respondent's record shows two prior alcohol enforcement contacts or drug enforcement contacts during the seven years preceding the date the notice of administrative revocation was issued;
(5) Lifetime revocation of license and privilege to operate a vehicle and of the registration of any motor vehicle registered to the respondent and a lifetime prohibition on any subsequent registration of motor vehicles by the respondent, if the respondent's record shows three or more prior alcohol enforcement contacts or drug enforcement contacts during the ten years preceding the date the notice of administrative revocation was issued; or
(6) For respondents under the age of eighteen years who were arrested for a violation of section 291E‑61 or 291E‑61.5, revocation of license and privilege to operate a vehicle either for the period remaining until the respondent's eighteenth birthday or, if applicable, for the appropriate revocation period provided in paragraphs (1) to (5) or in subsection (d), whichever is longer and such respondents shall not qualify for a conditional permit; provided that when more than one administrative revocation, suspension, or conviction arises out of the same arrest, it shall be counted as only one prior alcohol enforcement contact or drug enforcement contact, whichever revocation, suspension, or conviction occurs later.
(c) Whenever a motor vehicle registration is revoked under this part, the director shall cause the revocation to be entered electronically into the motor vehicle registration file of the respondent.
(d) [Subsection effective until June 30, 2007. For subsection effective July 1, 2007, see below.] If a respondent has refused to be tested after being informed:
(1) That the person may refuse to submit to testing in compliance with section 291E-11; and
(2) Of the sanctions of this part and then asked if the person still refuses to submit to a breath, blood, or urine test, in compliance with the requirements of section 291E-15,
the revocation imposed under subsection (b)(1), (2), (3), and (4) shall be for a period of one year, two years, four years, and a lifetime, respectively.
(d) [Subsection effective July 1, 2007. For subsection effective until June 30, 2007, see above.] If a respondent has refused to be tested after being informed:
(1) That the person may refuse to submit to testing in compliance with section 291E-11; and
(2) Of the sanctions of this part and then asked if the person still refuses to submit to a breath, blood, or urine test, in compliance with the requirements of section 291E-15,
the revocation imposed under subsection (b)(1), (3), (4), and (5) shall be for a period of one year, two years, four years, and a lifetime, respectively.
(e) In addition to subsection (d), any motor vehicle registration of a respondent who is a repeat intoxicated driver and who refused to be tested after being informed:
(1) That the person may refuse to submit to testing in compliance with section 291E-11; and
(2) Of the sanctions of this part and then asked if the person still refuses to submit to a breath, blood, or urine test, in compliance with the requirements of section 291E-15,
shall be revoked for the periods specified in subsection (d), and the respondent shall be prohibited from subsequently registering any motor vehicle for the applicable revocation period.
(f) Whenever a license and privilege to operate a vehicle is administratively revoked under this part, the respondent shall be referred to the driver's education program for an assessment, by a certified substance abuse counselor, of the respondent's substance abuse or dependence and the need for treatment. The counselor shall submit a report with recommendations to the director. If the counselor's assessment establishes that the extent of the respondent's substance abuse or dependence warrants treatment, the director shall so order. All costs for assessment and treatment shall be paid by the respondent.
(g) Alcohol and drug enforcement contacts that occurred prior to January 1, 2002, shall be counted in determining the administrative revocation period.
(h) The requirement to provide proof of financial responsibility pursuant to section 287-20 shall not be based upon a revocation under subsection (b)(1). [L 2000, c 189, pt of §23; am L 2001, c 157, §21; am L 2002, c 113, §7; am L 2004, c 90, §11; am L 2006, c 64, §8 and c 201, §5]
Case Notes
The administrative director of the courts (director) may not, in an administrative hearing filed pursuant to §291E-38, consider an offense occurring after the §291E-31 notice of administrative revocation has been issued, as a basis for increasing an administrative revocation period already determined on administrative review by the director under §291E-37 and this section. 108 H. 350, 120 P.3d 249.
Decisions under prior law (§286-261).
As section does not require defendant to submit to needs assessment nor undergo any treatment for alcohol dependence, application of section with DUI conviction under §291-4 not double jeopardy violation. 80 H. 8, 904 P.2d 893.
Section mandates that whenever license is administratively revoked under revocation program, offender shall be referred to certified substance abuse counselor for assessment. 80 H. 8, 904 P.2d 893.
Defendant not subjected to multiple punishments as a result of administrative driver's license revocation under this section and DUI conviction under §291-4 as administrative revocation non-punitive and purely remedial in nature. 81 H. 226, 915 P.2d 700.
Because counseling and assessment, as consequence of license revocation under subsection (d), not punitive but purely remedial, subsequent DUI conviction did not expose defendant to multiple "punishments"; defendant's motion to dismiss on double jeopardy grounds thus properly denied. 82 H. 446, 923 P.2d 388.
Director lacked discretion to impose any period of administrative revocation upon defendant other than "for life" where defendant was member of class of persons under subsection (b)(4) and written administrative record was not deficient in any respect. 84 H. 138, 931 P.2d 580.
The inherent power of the supreme court to make orders "for the promotion of justice" under §602-5(7) required that motorist be given an opportunity to challenge the lifetime revocation of motorist's license where one of the three predicate convictions on which revocation had been based had been set aside; motorist was thus entitled to have district court amend motorist's revocation period pursuant to this section upon the presentation of proof that motorist's driving record no longer supported the revocation period imposed. 94 H. 232, 11 P.3d 457.
The exclusionary rule in driving under the influence of intoxicating liquor cases where defendant was misinformed of the consequences of failing to take a chemical test applied retroactively. 96 H. 200, 29 P.3d 919.
The meaning of "prior alcohol enforcement contact" must be explained when advising a person arrested for driving under the influence of intoxicating liquor, of the potential length of license revocation for refusal to take a blood alcohol concentration test or for failing such a test, as set forth in this section, in order to ensure that the refusal of, or consent to, such a test is knowingly and intelligently made. 97 H. 463, 40 P.3d 865.
Arrestees who refuse to take a test for alcohol concentration are not subject to the administrative revocation period provided under subsection (b)(1) and, therefore, are not eligible for conditional driver's permits. 99 H. 70, 53 P.3d 209.
As administrative driver's license revocation office has no discretion regarding the revocation period for someone who refuses to take a breath or blood test, motorist was correctly informed of the consequences of refusal to take a breath or blood test. 94 H. 348 (App.), 14 P.3d 358.
§291E-42 Notice to other states. When a nonresident's driving and boating privileges, and motor vehicle registration if applicable, are administratively revoked under this part, the director shall:
(1) Notify, in writing, the officials in charge of traffic control, boating control, or public safety in the nonresident's home state, and in any other state in which the nonresident has driving and boating privileges, licenses, or any motor vehicles registered if applicable, of the action taken in this State; and
(2) Return to the appropriate issuing authority in the other states any license, and any motor vehicle registration and number plates if applicable, seized under section 291E‑33. [L 2000, c 189, pt of §23; am L 2001, c 157, §22]
[§291E-43] Administrative procedure act. Neither the administrative review nor the administrative hearing provided under this part shall be subject to the contested case requirements of chapter 91. The availability of administrative review of an order of administrative revocation shall have no effect upon the availability of judicial review under this part. [L 2000, c 189, pt of §23]
Case Notes
