HABITUALLY OPERATING A VEHICLE UNDER THE INFLUENCE

HABITUALLY OPERATING A VEHICLE UNDER THE INFLUENCE OF AN INTOXICANT – .08 Blood Alcohol: H.R.S. § 291E-61.5(a)(1) and (2)(D) [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 with .08 or more grams of alcohol per one hundred (100) milliliters or cubic centimeters of blood. There are three 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 three elements are: 1. That, on or about (date) in the [City and] County of (name of county), the Defendant intentionally, knowingly, or recklessly 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, had .08 or more grams of alcohol per one hundred (100) milliliters or cubic centimeters of blood. “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)(D). 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) (a case where the Intoxilyzer reading was under .08, and the .08 for the time of the offense was extrapolated, 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); however, also see State v. Young, 8 Haw. App. 145, 795 P.2d 285 (1990) (DUI of .08 or more is an absolute liability offense). The Committee applied absolute liability to the elements of the underlying OUI offense, and an intentional, knowing, or reckless state of mind to the remaining element. Effective June 29, 1995, the statutory threshold for commission of the offense of Driving under the Influence of Intoxicating Liquor was reduced from .10 BAC level to .08 BAC level. For definitions of terms defined by H.R.S. Chapter 291E, see instructions: For “margin of error,” see Instruction 16.06 For “inference from .08 level,” see Instruction 16.07