§286-243  Implied consent requirements forcommercial motor vehicle drivers.  (a)  A person who drives a commercialmotor vehicle within this State is deemed to have given consent to submit to atest or tests, approved by the director of health, of that person's blood orbreath for the purpose of determining that person's alcohol concentration orthe presence of controlled substances, or both.

(b)  A test or tests may be administered at thedirection of a law enforcement officer who, after lawfully stopping ordetaining the commercial motor vehicle driver, has probable cause to believethat the driver was driving a commercial motor vehicle while having in theperson's body alcohol, a controlled substance, or any drug which impairsdriving.

(c)  A person requested to submit to a test asprovided in subsection (a) shall be warned by the law enforcement officerrequesting the test that a refusal to submit to the test will result in:

(1)  The officer immediately issuing a twenty-fourhour out-of-service order under section 286-242; and

(2)  The person being disqualified from operating acommercial motor vehicle for at least a one-year period under section 286-240.

(d)  If the driver refuses testing, or submitsto a test which discloses in the driver's body an alcohol concentration of 0.04per cent or more by weight, the law enforcement officer shall submit anaffidavit to a district judge of the circuit in which the driver was stopped ordetained stating that the test was authorized pursuant to subsection (a) andthat the driver refused to submit to testing, or submitted to a test whichdisclosed in the driver's body an alcohol concentration of 0.04 per cent ormore by weight.

(e)  A hearing to determine the truth andcorrectness of an affidavit of a law enforcement officer submitted undersubsection (d) shall be scheduled to commence before a district judge withintwenty days after the affidavit is filed or as soon thereafter as ispracticable.

The State shall be represented at the hearingby the prosecuting attorney of the county in which the alleged violationoccurred.  The district judge shall hear and determine:

(1)  Whether the law enforcement officer who stoppedor detained the driver had probable cause to believe that the driver had beeneither driving or in actual physical control of a commercial motor vehiclewhile having any alcohol in the driver's body;

(2)  Whether the driver was lawfully stopped ordetained;

(3)  Whether the law enforcement officer informed thedriver of the sanctions of section 286-240;

(4)  Whether the driver submitted to a test or testsof the driver's breath or blood or refused to be tested; and

(5)  If the driver submitted to a test or tests,whether the driver's alcohol concentration was 0.04 per cent or more by weight.

The amount of alcohol found in the driver's bloodwithin three hours after the time of the alleged violation as shown by chemicalanalysis or other analytical techniques of the defendant's blood or breathshall be competent evidence that the defendant was under the influence ofintoxicating liquor at the time of the alleged violation.  Nothing in thissection shall be construed as limiting the introduction of relevant evidence ofa person's blood alcohol content obtained more than three hours after analleged violation, provided that the evidence is offered in compliance with theHawaii rules of evidence.  If the judge finds the statements contained in theaffidavit are true, the judge shall disqualify the driver from driving acommercial motor vehicle as provided by section 286-240. [L 1989, c 320, pt of§2; am L 1990, c 342, §12; am L 1993, c 268, §7]