KAILUA-KONA — A bureaucratic barrier, a lack of adequate state statutes and the sluggish pace at which county Departments of Motor Vehicles process road tests have created a glitch in the driver’s relicensing process that’s incentivizing thousands of Hawaii residents to break the law every year.

There are several reasons a person may need a road test to obtain or re-obtain a valid driver’s license — a kid turns 16, a transplant lets his or her license from another state lapse before applying for a new one in Hawaii, and a few other unique situations.

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Most reasons people need to reapply for licenses, however, are criminal in nature.

Major Robert Wagner, Hawaii Police Department spokesperson, said people can lose their licenses for the following reasons: DUI by way of alcohol or drugs, driving with a license that’s already suspended or revoked, reckless driving or inattention to driving.

The irony of the legal system offenders subsequently navigate is that it allows them mechanisms to operate a vehicle while their licenses are under revocation without breaking the law. Yet, once they’ve paid their debts to society and their revocations are lifted, bureaucratic barriers to license recertification put up additional roadblocks that often threaten their livelihoods. People spend months unable to drive legally after their punishments have lapsed, despite having adhered to all requirements levied by the justice system.

That’s because there exists no legal mechanism to bridge the gap between the end of the mandatory revocation period for the aforementioned driving offenses and the availability of DMV-offered road tests, which typically aren’t available for months.

The discrepancy gets at the heart of crime and punishment — commit a crime, serve the punishment. But in these cases, people are allowed to drive legally while they’re being punished for their crimes, as long as they’re willing and able to pay with both time and money for the privilege.

Once their punishments end, though, they’re not allowed to drive legally by any state or county permit/license until they pass a road test. Thus, after they’ve paid all their penalties, their untraversable quagmire begins.

Detailing the process

On the Big Island and Oahu, prospective drivers applying or reapplying for licenses typically wait between two to four months to take road tests because of DMV backlogs. Once road tests finally are granted, people are often forced to find transportation to a station several minutes or even hours away, as the DMV in their district is still booked out.

A written permit test, along with providing proof of insurance and other requirements, is part of the first step to getting one’s license back. Upon passing a written test, people are granted a permit and allowed to drive legally if they are accompanied in the vehicle by a person 21 years or older who holds a valid license. That might work for some people for a week or two, but is difficult as a longer-term option for many who hold jobs and have independent responsibilities.

For Hawaii Islanders who passed their written permit tests on June 20, road test appointments weren’t available at the Kona or the Ka‘u DMVs until mid-September.

Stations in Waimea and Hilo were a little better, offering the first available road tests in mid-August. The Pahoa DMV didn’t answer any of several phone calls placed by West Hawaii Today to inquire as to the wait time at that station.

Naomi O’Dell, administrator of the Hawaii County Vehicle Registration and Licensing Division, said part of the problem is staffing numbers, specifically for road test examiners. She said in June she was short two examiners in Hilo and one in Kona.

“We have some examiners that are out on leave,” said O’Dell. “I can’t go further into that. They’re just off on leave.”

Things aren’t much better on Oahu. A DMV representative at the Kapalama office said if someone passed the written permit test on Thursday, Sept. 13, he or she wouldn’t be scheduled for a road test until Nov. 16.

That would leave an offender who’s fulfilled all of his or her obligations without legal driving privileges for two full months after the penalty was paid in full.

None of the other four offices on Oahu could schedule a road test before December. The longest wait time at any of the stations would put someone behind the wheel for a test in early 2019 — nearly a four-month wait.

Attempt to fill the gap

The Hawaii Administrative Driver’s License Revocation Office, which handles license revocation and recertification out of its Oahu headquarters, issues permits that allow people to drive legally without a license so they can maintain their livelihoods.

Jan Kagehiro, director of the Communications and Community Relations Office for the Hawaii State Judiciary, said that includes an Ignition Interlock Device permit. The permit comes with the installation of a breathalyzer machine inside the vehicle that monitors the blood-alcohol content of the driver before allowing the car to start.

It also requires random tests throughout any trip, sometimes several depending on the length of the drive, and employs the use of a camera to ensure that the person driving is the person blowing into the machine. The other is an employee driver’s permit, which allows a person to drive an employer-owned vehicle exclusively for work purposes with a sworn statement from the employer.

The ADLRO, however, does not offer a permit of any type to bridge the gap between when the DUI revocation period ends and when a road test is administered. Neither do county DMVs, beyond the permit that requires a licensed person at least 21 years of age accompany the driver anywhere he or she goes.

More than that, the ADLRO is prohibited by law from extending IIPs or EDPs beyond the end of revocation, Kagehiro explained.

The state displayed it recognizes the predicament in which the system traps people, at least to a degree. This acknowledgment is evident in a change to the Hawaii Revised Statutes effective Jan. 1, 2016.

The amendment allows the ADLRO to offer those with revoked licenses the ability to start the recertification process with the DMV one month before the revocation period ends. Before 2016, the one-month buffer didn’t exist. Such changes to HRS can only be made by acts of the state Legislature.

But the extra month is not enough to eliminate the problem. O’Dell has been with the VRL division inside the Hawaii County DMV for decades. She said in all that time, she doesn’t believe the department has ever turned around a road test inside of a month.

“No, I don’t think (so),” she said. “I can’t remember, but I don’t think so.”

So how then do people live in a place like West Hawaii, where public transportation is significantly limited, if they can’t get around? If they can’t drive, how can they survive? There’s only one answer. They break the law and drive anyway.

“I just did it,” said a 32-year-old Kailua-Kona man who asked to remain anonymous. “I mean, what am I going to do? I had to go to work, I had to go to the store. At that time, there was a baby (on the way).”

Legal ramifications

Wagner said HPD officers hear so many excuses when they pull people over for driving without a license that such rhetoric is eventually reduced to white noise falling on deaf ears.

“When a policeman stops somebody and the person doesn’t have a driver’s license, that person more than likely is going to get a citation,” Wagner said. “What we do is issue a citation and they can go and complain to a judge who will decide legitimacy.”

Defense attorneys say the problem is more administrative, however, and the court may not feel it has the authority to override penalties based on state law.

Drivers won’t find leniency from the other side of the bench, either.

Mitch Roth, Hawaii County prosecuting attorney, said he was unaware of the DUI system glitch until asked about it by a reporter. He added he sympathized with people in that situation, but the law is the law — until it isn’t.

“I think it definitely needs to be addressed because we don’t want people driving illegally,” Roth said. “But I understand how (people) are being put into a catch-22 situation.”

Thus, the way the system is currently structured, if a person who is only driving absent a license out of basic necessity because a road test appointment is unavailable for months — and police stop that person — the end result is a ticket. That ticket is unlikely to be voided by a judge and the charge is unlikely to be dropped by a prosecutor.

Moreover, the punishment for driving with a suspended or revoked license due to a DUI is actually more severe than being cited for a DUI itself. The former comes with mandatory jail time, while that’s not necessarily the case with a basic DUI.

And if found guilty of operating a vehicle without a license that was revoked because of a DUI, that person will lose his or her license again and likely won’t be eligible for an IIP or EPD — effectively removing that person from behind the wheel for another extended period of time.

“It’s super disruptive not to be able to drive, and it’s terrible to create an incentive for people to break the law,” said Rep. Nicole Lowen of Kona’s 6th District, who also was unaware of the issue until asked about it by a reporter. “We want to help people get out of the criminal justice system, not create a situation where they’re forced back into it.”

Possible solutions

The question of how to address the conundrum facing drivers coming off DUIs has several possible answers.

One of the first and most obvious solutions is to hire more DMV staff. However, with an all-time-high county budget already stretched to its limits, adding several permanent positions to a bureaucratic agency in perpetuity might prove a hard sell.

As of press time Friday, multiple Hawaii County Council members had not returned request for comment on the viability of adding DMV employees at stations across Hawaii Island.

Chris Eggert, a defense attorney who practices in Hawaii and Oregon, said he believes the fix is legislative. He explained that Oregon suspends the licenses of DUI offenders rather than revoking them, which expedites the process.

After the revocation period ends, the driver fills out a form, provides proof of insurance and proof he or she used an IIP, then the license is reactivated.

“I would think that might reduce workload requirements on the DMV enough that maybe they could process licenses faster,” Eggert said.

Such a change would require an act of the state Legislature, much the same as the HRS changes that created the one-month buffer for the ADLRO to help expedite the recertification process.

Another possible solution is to extend that buffer to three months, allowing those who plan well the chance to schedule a road test by the time their revocation is lifted. Lowen said she would be open to that discussion but isn’t sure how effective it would be.

If a one-month grace period means a three-month backlog, a three-month grace period may just result in a six-month backlog.

Still, Lowen agreed with Roth that the issue needs to be addressed either by the state, the county, or both.

“We don’t have public transportation in West Hawaii, so if you need to go to work or take kids somewhere or run any kind of errand, you pretty much need to be able to drive,” she said.

Another possibility would be to create an entirely new permit that the DMV could distribute after a written test is passed. Such a permit could allow for driving to specified, necessary locations until a road test is passed. As all permits and licenses are accompanied by a monetary charge, this solution could potentially raise funds for the county, as well.

It is unclear whether the counties, which run their respective DMVs, or the state would have the authority to create such a permit.

Feeling stuck

Aysha O’Brien works at Westside Audio in Kailua-Kona, which installs IIPs then downloads and transmits the monitoring information stored on the devices monthly.

She guessed that eight out of 10 customers come in with questions about how to navigate the predicament they’re about to walk into once the device is removed. How can they drive legally?

O’Brien never has a good answer.

“Everyone is very frustrated and irritated about it because you’ve gone this whole year legal,” she said. “But now, all of the sudden, (you’re told) don’t drive after you’ve been driving for a year? They’re trying to do everything legal. Then at the end, they’re getting slapped with a way to get arrested again.”

She said at any given time between 220-260 people are driving around Hawaii Island with IIP permits. Wagner added that HPD issued 1,110 DUIs in 2016 and 1,178 in 2017.

Through June 30 of this year, police had made 596 DUI arrests.

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“How I feel is, I did get a DUI, so it’s kind of on me,” said the anonymous Kailua-Kona man quoted earlier in the story.

“But there should be a way for me to drive as soon as I’m legit. I’m doing everything I’m supposed to do.”