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Frequently Asked Questions about DUI (OVII) in Hawaii

When can you be arrested for DUI in Hawaii?

A person can be arrested for OVII if the arresting officer had reasonable suspicion to stop the vehicle. The officer must have probable cause to believe that the person was operating the vehicle while under the influence of an intoxicant. A vehicle may also be stopped at a roadblock check and there was probable cause to believe the driving was under the influence of an intoxicant. If the charge is an alcohol related offense, the person shall elect to take a breath test, a blood test or both. A person who is operating a vehicle on a public road is considered to give consent to such a blood alcohol test. The test shall be administered if the officer has probable cause to believe the person was under an intoxicant. After the person is arrested, the officer must immediately take possession of any licenses by the person and request they take a test to determine the alcohol concentration (BAC). If the charge is driving under the influence of drugs, the arresting officer will request you submit to a blood or urine test to determine what is in your system.  In order to be charged with an OVII with drugs in your system, the officer and prosecutor must successfully prove that the drug impaired your ability to drive.

If the officer has probable cause to believe that the person driving was under the age of 21, there is a different standard. If the driver is under the age of 21 and the officer has probable cause to believe that the driver consumed a measurable amount of alcohol, the driver will take either a blood or breath tests or both to determine the alcohol concentration. The officer will also write in their police report and any subsequent affidavits the facts that their belief was based.

Can you get a DUI (OVII) if you were not actually driving the vehicle?

The Hawaii statute for an OVII is defined as “operating a vehicle or assuming physical control of the vehicle” on a public way, street, road, highway or in the waters of the State. You can be stopped and arrested for a DWI even if a vehicle was not moving if the vehicle was on one of the above-mentioned roads and waters.  If you are on a private driveway or land, you may not be able to be arrested for an OVII since it is not a public road, way, highway or open waters. The term “operate” is defined to drive or assume actual physical control of a vehicle. Assuming physical control could be defined as sitting in the driver’s seat with the key in the ignition. Driving has two components: the operation of a vehicle and the controlling of a vehicle.

Operating a vehicle is what is normally known as driving or having the car actually moving. However, moving is not the only element in driving. Controlling is the other factor in driving and it has to do with the keys. Having the keys in your possession is said to be controlling the vehicle. This definition means that you may be charged with an OVII even if the car isn’t actually moving as long as you have the keys in your control in a vehicle while intoxicated above the legal limit.

Some courts look at a couple of different factors to establish if a defendant was “driving” or “assumed physical control of a vehicle”. Courts may look if the engine was running, the position the defendant was found in the car, whether the defendant was asleep or awake, location of the ignition key, whether the headlights are one, and whether the car was in a roadway or legally parked. Every situation is a case-by-case basis and will be determined on the circumstances.

Can I talk to a lawyer before agreeing to take a chemical or field sobriety test?

Once a driver is pulled over because the officer has reasonable suspicion they were operating a vehicle while under the influence of an intoxicant, the next step is for the officer to request a breath, blood or urine test.  A driver does not have a right to counsel before implied consent proceedings. If a person is operating a vehicle on a public road, way, street, highway or waters of the State, the operator of the vehicle is considered to have give consent to test or tests approved by the director of health of the driver’s breath, blood or urine to determine the alcohol concentration or drug concentration in their breath, blood or urine. The tests will be given at the request of the officer as long as the officer has probable cause to believe the person was under the influence of an intoxicant.

Since the driver is operating a vehicle on a public way and therefore has given implied consent to a breath, blood or urine test, the driver does not have right to counsel before the test is given. However, the arresting officer has to inform the driver that they can refuse to take the test. If the driver refuses, there will be sanctions. Refusing a breath, blood or urine test is a petty misdemeanor and punishable up to 30 days in prison and up to a $1000 fine.

Once the officer officially places the accused under arrest for an OVII, the officer should read off the accused Constitutional Rights, which include a right to an attorney and the right to remain silent. Only after being formally arrested are you entitled to have an attorney.  Anything you are asked to do before being formally arrested, give a sample for a breath or blood test, is not submit to have an attorney called.

Can I refuse a chemical/blood test in Hawaii?

When a person is arrested for an OVII in Hawaii, they will be asked to either submit to a chemical blood, breath or urine test to determine their BAC. The type of tests depends on the circumstances of the case. Blood and urine testing must be done if there is probable cause that the driver was under the influence of drugs. Any person who operates a vehicle on a public way, street, road or highway is considered to give consent to tests to determine their drug concentration in their blood. A blood or urine test is not mandatory if the driver is only consumed alcohol. If the arresting officer believes the driver was under the influence of any drugs as well as alcohol, the driver will also be requested to submit to a blood or urine test. A blood test is also mandatory and can’t be refused if there was a vehicle accident or death involved in the OVII arrest. Refusal to submit to a blood or urine test for suspicion of drugs is a petty misdemeanor. A person’s consent will not be considered withdrawn if the person is dead, unconscious or any other condition that renders the person incapable of consenting to examination and the blood or urine test shall be administered.

The Department of Health establishes and administers chemical testing for alcohol concentrations or drug content.  The Department of Health also consults with the state director of transportation to come up with the program relating to chemical testing. The Department of Health determines who is qualified to administer the chemical tests, the procedures for specimen selection, collection, analysis and handling and the manner of reporting the results. Blood tests are the most accurate as long as they are performed correctly. Blood tests are also admissible in court and can be hard to fight against.  Urine tests are also a good test to determine the presence of drugs in a person’s system.

Can I refuse to take the standard field sobriety test?

After an officer pulls a driver over because the officer has probable cause that the driver was operating a vehicle under the influence of an intoxicant, the officer will most likely ask the driver to perform field sobriety tests. Field sobriety tests or other preliminary alcohol screening devices by a law enforcement officer will not replace a breath, blood or urine test. Preliminary alcohol screening devices are only used to determine probable cause for the arrest and further testing to be done to determine BAC. Although a preliminary screening test might not be mandatory, a refusal to take one will most likely result in probable cause of the arrest. Field sobriety tests may not be used in court to show definitive proof that the driver was operating a vehicle under the influence of alcohol or drugs. If the officer does conduct a field sobriety test and determines there is probable cause that the driver is under the influence of alcohol or drugs, the officer will then ask the driver to submit to a breath, blood or urine test. Chemical analysis or other approved analytical techniques of the driver’s blood or breath is competent evidence.

Field sobriety tests can be administered in mainly three ways. An officer can conduct a HGN test that measures the degree of impairment by the jerking or bouncing of the eyeball. The officer can also issue the “stand on one leg” test. This will measure the driver’s balance. Usually the officer will ask the driver to raise one foot six inches off the ground while keeping their arms at the side. Once in that position, the driver must then count out loud to 30 before putting their foot back down. The officer is looking for any clues that the driver is intoxicated. If the officer witnesses any excessive swaying, using arms for balance, hopping to maintain balance or putting their foot down, it could be a sign that the driver is under an intoxicant.


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