HABITUALLY OPERATING A VEHICLE UNDER THE INFLUENCE

HABITUALLY OPERATING A VEHICLE UNDER THE INFLUENCE OF AN INTOXICANT – DRUGS: H.R.S. § 291E-61.5(a)(1) and (2)(B) [In Count (count number) of the Indictment/Complaint, the] [The] Defendant, (defendant’s name), is charged with the offense of Habitually Operating a Vehicle under the Influence of an Intoxicant. A person commits the offense of Habitually Operating a Vehicle under the Influence of an Intoxicant if the person is a habitual operator of a vehicle while under the influence of an intoxicant and the person operates or assumes actual physical control of a vehicle while under the influence of any drug that impairs the person’s ability to operate the vehicle in a careful and prudent manner. There are four material elements of the offense of Habitually Operating a Vehicle under the Influence of an Intoxicant, each of which the prosecution must prove beyond a reasonable doubt. These four elements are: 1. That, on or about (date) in the [City and] County of (name of county), the Defendant was a habitual operator of a vehicle while under the influence of an intoxicant; and 2. That Defendant, at that time, operated or assumed actual physical control of a vehicle; and 3. That Defendant, at that time, was under the influence of any drug that impaired Defendant’s ability to operate a vehicle in a careful and prudent manner; and 4. That Defendant acted intentionally, knowingly, or recklessly as to each of the foregoing elements. “Habitual operator of a vehicle while under the influence of an intoxicant” means a person who has been convicted three or more times within ten years of the instant offense, for offenses of operating a vehicle under the influence of an intoxicant. “Convicted three or more times for offenses of operating a vehicle under the influence” means that, at the time of the behavior for which the person is charged with Habitually Operating a Vehicle under the Influence of an Intoxicant, the person had three or more times within ten years of the instant offense: (1) A judgment on a verdict or a finding of guilty, or a plea of guilty or nolo contendere, for a violation of [Habitually Operating a Vehicle under the Influence of an Intoxicant] [Driving under the Influence of Intoxicating Liquor] [Habitually Driving under the Influence of Intoxicating Liquor or Drugs] [Driving Under the Influence of Drugs]; (2) A judgment on a verdict or a finding of guilty, or a plea of guilty or nolo contendere, for an offense that is comparable to [Habitually Operating a Vehicle under the Influence of an Intoxicant] [Driving under the Influence of Intoxicating Liquor] [Habitually Driving under the Influence of Intoxicating Liquor or Drugs] [Driving Under the Influence of Drugs] [Operating a Vehicle Under the Influence of an Intoxicant] [Negligent Homicide in the First Degree]; or (3) An adjudication of a minor for a law or probation violation that, if committed by an adult, would constitute a violation of [Habitually Operating a Vehicle under the Influence of an Intoxicant] [Driving under the Influence of Intoxicating Liquor] [Habitually Driving under the Influence of Intoxicating Liquor or Drugs] [Driving Under the Influence of Drugs] [Operating a Vehicle under the Influence of an Intoxicant] [Negligent Homicide in the First Degree]; that, at the time of the instant offense, had not been expunged by pardon, reversed, or set aside. All convictions that have been expunged by pardon, reversed, or set aside prior to the instant offense shall not be deemed prior convictions for the purposes of proving the person’s status as a habitual operator of a vehicle while under the influence of an intoxicant. Notes H.R.S. §§ 291E-61.5(a)(1) and (2)(B). For definition of state of mind, see instructions: For the basis of the applicable state of mind, see HRS § 702-204, State v. Vliet, 95 Hawai'i 94, 100-01, 19 P.3d 42, 48- 49 (2001) (the state of mind required under HRS § 291-4.4 (repealed)(Habitually driving under the influence of intoxicating liquor or drugs), absent one specified in the statute itself and applying HRS § 702-204, is intentional, knowing, or reckless). For definitions of terms defined by H.R.S. Chapter 291E, see instructions: