Haw. Pattern Jury Instr. (Criminal) 16.10

OF AN INTOXICANT – .08 Breath Alcohol:

H.R.S. § 291E-61.5(a)(1) and (2)(C)

[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 two

hundred ten (210) liters of breath.

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 two hundred ten (210) liters of breath.

“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.