The Breath, Blood or Urine Test
HRS 291E-11 — asked for only after a lawful arrest, and after being told the test may be refused
Anyone who operates a vehicle on a public way, street, road or highway, or on or in the waters of the State, is deemed to have consented to a test of breath, blood or urine approved by the director of health, to find alcohol concentration or drug content.
Who handles this in Hawaii: Hawaii State Bar Association, Lawyer Referral and Information Service; and legal aid programs and the state offices, listed in the Hawaii directory.
- The test is given at the request of an officer with probable cause, and only after a lawful arrest and after the person has been told they may refuse to submit to testing.
- Where the suspicion is alcohol, the person elects a breath test, a blood test, or both. Where it is a drug, a blood test, a urine test, or both.
- A person who took a breath test may also be asked for blood or urine where the officer has probable cause to believe a drug is involved, and the officer states the facts behind that belief in the report.
- A preliminary alcohol screening device does not replace the test. Its reading is used only in deciding probable cause for the arrest.
If the person refuses, none is given, except after a collision resulting in injury or death, under a search warrant, or on another basis the Constitution of the State of Hawaii and its laws allow. The officer then tells the person the sanctions for refusing and asks whether the person still refuses.
Told the sanctions, then asked again. Where the officer does not do both, inform the person of the sanctions and then ask whether the person still refuses, the person is not subject to the refusal sanctions.
After the arrest, the officer takes any license the person holds and issues a notice of administrative revocation. It serves as a temporary permit unless the person was unlicensed, already suspended or revoked, or had no license in their possession.
Testing is also limited by the Fourth Amendment. The Supreme Court of the United States has held that a breath test may be taken without a warrant as part of a lawful arrest for drunk driving and a blood test may not; that a driver may not be criminally punished for refusing a blood test where no warrant was obtained; and that the natural fall of alcohol in the blood does not by itself create an emergency excusing a warrant in every case, which is decided case by case on all the circumstances. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.
Sources for this section (5)
- HRS 291E-11 — Implied consent of operator of vehicle to submit to testing to determine alcohol concentration and drug content
- HRS 291E-15 — Refusal to submit to breath, blood, or urine test; subject to administrative revocation proceedings
- HRS 291E-33 — Probable cause determination; issuance of notice of administrative revocation; procedures
- Birchfield v. North Dakota, 579 U.S. 438 (2016) — A breath test may be taken incident to arrest, a blood draw needs a warrant
- Missouri v. McNeely, 569 U.S. 141 (2013) — The natural fall of blood alcohol is not by itself an emergency justifying a warrantless draw
Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed Hawaii attorney.