A legislative committee is scheduled to vote Thursday on a measure that would vastly expand the substances for which people could be convicted under Hawaii’s intoxicated driving laws.

Under Senate Bill 641, those substances could include any plant, medication, poison or compound that could fall under a whole host of depressants, stimulants, hallucinogens, anesthetics, narcotics and inhalants.

In fact, the bill would expand the definition of “drug” for purposes of DUI enforcement to include anything that “can impair the ability of a person to operate a vehicle safely.”

The bill would allow prosecutors to pursue charges against suspected impaired drivers by expanding the substances that could potentially lead to DUI charges beyond the ones currently listed in schedules 1-4 of the state’s Uniform Controlled Substances Act. Existing law only allows prosecution for alcohol and illegal narcotics like marijuana, meth and opium.

Sen. Karl Rhoads, who authored the bill, said he wanted to get out in front of new drug trends. The Legislature can only make changes to the Controlled Substances Act once a year when lawmakers are in session.

“We can’t keep up with all the types of substances that can make you impaired while you’re driving,” Rhoads said.

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The bill has already passed the Senate with no opposition. The House Judiciary Committee, chaired by Rep. Chris Lee, was expected to vote on the measure Wednesday but deferred the vote until Thursday. Lee said legislators were still considering possible changes in the bill.

Lee said he wants to make sure that people who aren’t actually intoxicated won’t be prosecuted.

He also said that before changing the law permanently, he’d like to test it with a trial that measures how effective toxicology reports are at determining impairment.

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Rhoads said he hopes the measure will act as a deterrent to any would-be drugged drivers.

Prosecutors would still need to prove beyond a reasonable doubt that someone was impaired by the drugs that were in their system.

“You’d probably have to be pretty toasted on something before you get convicted under a catch-all because it’s going to be hard to prove,” Rhoads said.

“Synthetic drugs can be manufactured very rapidly and can avoid law enforcement when they are created by changing the chemical composition of an existing drug; in this manner, synthetic drugs like ‘spice’ and ‘bath salts’ evade the scheduling process,” the bill states. “In order to quickly adapt and prosecute offenders using new emerging drugs, law enforcement should not be forced to rely solely on the controlled substance schedules for certain offenses.”

Contact Key Lawmakers House Judiciary Committee Chair Chris Lee

replee@Capitol.hawaii.gov

808-586-9450

The broader definition of “drug” poses a problem, said State Public Defender Jack Tonaki, because right now people know what substances they could be arrested for. Under this measure, they may not know.

“The public doesn’t have notice as to what kind of substances are banned or not banned,” Tonaki said.

The bill is supported by the state Department of Transportation, the Honolulu Police Department and the prosecuting attorneys of Kauai and Honolulu.

“The bottom line is that impaired drivers are a menace to the safety of all roadway users, regardless if the particular impairing chemical in their blood is on a specific list or not,” Benjamin Moszkowicz, HPD’s acting major in the traffic division, said in written testimony.

Tonaki is concerned that there would not be specified legal limits for any potential drugs that could fall under the new definition.

“Seems to me if you can’t determine what a person is violating the law for, you shouldn’t be able to arrest someone and take them to jail,” Tonaki said.

Tonaki also noted the state already has laws to prosecute reckless drivers.

The Drug Policy Forum of Hawaii, which opposes the bill, also had concerns that its language is too broad.

Carl Bergquist, the forum’s executive director, said the bill should have included a mechanism for the state to collect data on what types of drugs police make DUI arrests for.

State law currently allows the Department of Public Safety to make temporary additions to the list of scheduled drugs.