Friday, June 27, 2008

DWOL Five-Year Plan Begins at the Offense

State v. Vierra (ICA June 25, 2008)

Background. Vierra was cited for driving without a license four times between June 26, 2002 and December 8, 2004. When she was cited, Vierra also had five prior convictions for driving without a license: one in 2001, three in 2000, and one in 1998. The trial for the four citations was held in 2005. The driving-without-a-license statute has enhanced sentencing for people who have prior DWOL convictions within a five year period. Vierra argued that the five-year clock begins at the time of conviction, not the offense, and only one of the prior convictions counts. The State argued that the five-year clock begins at the time the offense was committed, and thus Vierra was subject to the enhanced sentence. The district court agreed with the State and Vierra was sentenced under the enhanced penalty.

Five Years from when? A person cannot drive a vehicle without first obtaining a license. HRS § 286-102(a). Driving without a license is generally a petty misdemeanor (30 days jail, $1,000 fine, or both). HRS § 286-136(a). However, "[a]ny person who is convicted of violating [the DWOL statute] . . . shall be subject to [a misdemeanor] if the person has two or more prior convictions for the same offense in the preceding five[-]year period." HRS § 286-136(b). The ICA rejected Vierra's claim that the penalty statute sets the five-year clock at the time of conviction. The ICA explained that the words "[a]ny person who is convicted" is merely an introductory clause. According to the ICA, HRS § 286-136(b) fails to plainly indicate when the five-year period is to begin, and, therefore, it is ambiguous.

Not all Legislative History is Equal. Because it is ambiguous, the ICA delved into the legislative history surrounding HRS § 286-136(b). See Barnett v. State, 91 Hawai'i 20, 31, 979 P.2d 1046, 1057 (1999). The ICA found that most of the reports from the legislature suggested that the five-year clock begins at the time of the offense rather than conviction. The ICA also found no merit in language from a Conference Committee Report that referred to "third convictions" rather than offenses. The ICA acknowledged that conference committee reports usually provide a better indication of the legislature's intent than a committee report of the House or Senate, but not in this case. The ICA explained that the conference committee report here provided a general summary of the amendments, while the House Judiciary Committee Report was more specific to the issue at hand and, thus, "trumps the summary description of the statute contained in the Conference Committee Report."

A Hierarchy of Legislative History? While courts examine the legislative history of a law when the language of the law is ambiguous, finding support in the legislative history (or anything at all) can be difficult. Has the ICA fashioned a general rule that conference committee reports tend to be better indicators of the legislature's intent than reports from the House or Senate? Perhaps it has. After all, the legislature's intent is the primary goal in interpreting statutes and when the legislature reports as a whole, one can assume that that voice is closer to the intent of the whole. But the ICA did not apply this general guideline here. Instead, it explained that because the more specific House sub-committee report was on point, it was better evidence of the entire legislature's intent. In other words, not all legislative history is equal. Some reports are better indicators than others.

The Sensible Thing to do. The ICA also noted that "a rational, sensible and practical interpretation [of a statute] is preferred to one which is unreasonable or impracticable." State v. Lobendahn, 71 Haw. 111, 112, 784 P.2d 872, 873 (1989). This principle of statutory interpretation is similar to the one that rejects constructions leading to absurd results. Keliipuleole v. Wilson, 85 Hawai'i 217, 222, 941 P.2d 300, 305 (1997). The ICA held that setting the five-year period at the time the offense was committed over the time of conviction leads to more rational and sensible results. According to the ICA, if the five-year clock began at the time of conviction, there would be an incentive to delay sentencing proceedings with the chance of limiting the maximum penalty to a petty misdemeanor.

What if it's not Ambiguous? It is unclear whether the court can apply the reasonable-sensible-reading principle to an unambiguous statute. Courts have been reluctant to discern legislative intent when the statute is unambiguous. However, when the statute would lead to an absurd result, courts are more likely to depart from the plain language. Does this mean that all statutes--even those plain as day--are subject to a reasonable, sensible, and practical reading? It would seem so. Absurd results are never accepted, even when the language is plain. The same could be said for unreasonable or impracticable interpretations.

Consistent with Other Statutes. Finally, the ICA examined other statutes with repeat-offender enhancements. See HRS § 1-16 ("What is clear in one statute may be called upon in aid to explain what is doubtful in another."). Enhanced sentencing for offenses in the traffic code are set at the time of the offense, not conviction. HRS §§ 291-4, 291E-61(b)(3) and (4), and 291E-61.5. The ICA also pointed out that mandatory minimum terms under the Hawai'i Penal Code calculate the time period for counting prior convictions based on the time of the offense. HRS § 706-606.5(2). These statutes, according to the ICA, are analogous to HRS § 286-136(b).

Judge Foley's Dissent. Judge Foley dissented on the grounds that HRS § 286-136(b) simply and plainly provides enhanced sentencing for convictions within a five-year period, not offenses. When the terms of a statute are plain, unambiguous, and explicit, courts are "not at liberty look beyond that language for a different meaning." State v. Mueller, 102 Hawai'i 391, 395, 76 P.3d 943, 947 (2003). Judge Foley also pointed out that even if the legislative history was scrutinized, the conference committee report refers to an enhanced penalty for "a third conviction within a five[-]year period." The distinction among committee reports explained by the ICA majority was not addressed.

Monday, June 9, 2008

Unpublished Dispositions Citable as Persuasive Authority After July 1st

Editor’s Note. Legislation and rule changes are almost never reported at Hawaii Legal News. However, the recent amendment to Hawaii Rules of Appellate Procedure (HRAP) Rule 35 affects the way we conduct legal research. Hawaii Legal News believes it is newsworthy. Hawaii Legal News will not, however, regularly report unpublished dispositions.

HRAP Rule 35 and a new body of law. HRAP Rule 35 was amended. There are still three classes of appellate dispositions: the summary disposition order, the memorandum opinion, and the published opinion. HRAP Rule 35(a). A memorandum opinion carries no precedent like a published opinion, and a disposition order may only be published when the appellate court designates it for publication. HRAP Rule 35(b). Only a published opinion has precedential effect and “makes law.” Memorandum opinions and summary disposition orders filed before July 1, 2008 cannot be cited as the law in any other action or proceeding unless (i) it establishes the law of the pending case; (ii) has res judicata or collateral estoppels effect; or (iii) in a criminal action or proceeding involves the same respondent. HRAP Rule 35(c)(1). After July 1, however, “[a]ny disposition filed in this jurisdiction . . . may be cited in any proceeding.” HRAP Rule 35(c)(2). Memorandum opinions and summary disposition orders are still not precedent and no one has a duty to cite them. Id. The only difference is that a party may cite them as persuasive authority so long as the disposition is “appended to the brief or memorandum[.]” Id.

Just Appellate Courts? The language of HRAP Rule 35 does not confine this new body of persuasive authority to just the appellate courts. It appears that the rule extends to all proceedings. If there is a summary disposition that’s on point and filed after July 1, 2008, then perhaps it can be attached to a memorandum in support of a motion in any court. Then again, the word “proceeding” may be misleading. HRAP Rule 1 clearly states that “[t]hese rules govern all proceedings in Hawai‘i appellate courts[.]” Arguably, the new body of law is limited only to appellate courts. Does this mean that the rules themselves have no application outside of appellate proceedings? Is this sensible for the new HRAP Rule 35? Does this mean that a litigant who has found an unpublished gem has to wait for his or her case to go on appeal? This rule is too new to reveal an answer.

Justice Nakayama’s Dissent. Justice Nakayama disagreed with the amended rule. She believed that the new rule will only be an “undue burden and expense placed on those attorneys who actually practice appellate law[] by compelling them to spend additional hours in researching unpublished dispositions.” Justice Nakayama’s concern for appellate lawyers suggests that the new rule may be limited to courts of appeal. Justice Nakayama also was concerned that litigants with less resources will suffer because they will not have access to these unpublished dispositions.

Justice Acoba’s Dissent. Justice Acoba dissented from the amended rule for a completely different reason. He believed that all dispositions filed before and after July 1, 2008 should be cited. According to Justice Acoba, a starting point is arbitrary and inconsistent with the spirit of the new rule. Justice Acoba also addressed some of Justice Nakayama’s concerns. He noted that Hawaii’s appellate dispositions are available online.

Wednesday, June 4, 2008

HSC sees just one Episode

State v. Akau (HSC May 30, 2008)

Background. Akau sold crystal meth to undercover police officers on three separate occasions in the vicinity of Keeaumoku Street and Kaheka Street. The drug buys gave the police probable cause to apply for and receive a search warrant of Akau's person and residence. They executed the warrant and found more drugs. The State charged Akau with promotion of a dangerous drug in the 2d degree (HRS § 712-1243) and unlawful use of drug paraphernalia (HRS § 329-43.5) based on the drugs found from the search warrant. Akau pleaded no contest and was sentenced as a first-time offender.

Ten months later Akau was indicted on three counts of promoting a dangerous drug in the 2d degree based on the three drug buys. After the circuit court denied Akau's motion to dismiss the charges based on compulsory joinder and merger, he was sentenced to 10 years imprisonment. This was his second offense so he received a mandatory minimum of six months. HRS § 712-1242(3). The ICA affirmed the denial of the motion.

New Episode or a re-run? Prosecutions that "should have been tried on the first prosecution under [HRS §] 701-109" cannot be brought. HRS § 701-111(1)(b). A "defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode if the offenses are known to the appropriate prosecuting officer[.]" HRS § 701-109(2). Akau argued that the prosecution for the three drug buys arose from the "same episode." According to the HSC, the test for determining whether the crimes arose from the "same episode" depends on "whether the alleged conduct was so closely related in time, place, and circumstances that a complete account of one charge cannot be related without referring to details of the other charges." State v. Carroll, 63 Haw. 345, 351, 627 P.2d 776, 780 (1981). In other words, the inquiry depends on a close relation in time, place, and circumstance. Underlying these statutes is a policy of fairness to the defendant and society's interest in efficient law enforcement.

Measuring Time and Place Without Drawing Lines. The HSC first held that the time was closely related. The lapse of several days between the crimes is not fatal in determining the same episode. State v. Servantes, 72 Haw. 35, 37, 804 P.2d 1347, 1348 (1991). But how many days can pass? The HSC did not draw a definitive line. Instead, it held that even if the clock began with the first drug buy thus separating the offenses by forty-nine days, the time is still "not so disparate as to render" them separate episodes. As for the second factor--place--the HSC also declined to draw definitive lines. It was concerned, however, about defining "place" too broadly. If the "place" were something as broad as, say, the entire City and County of Honolulu, the application and administration of HRS §701-109(2) might become "unduly hamper[ed.]" State v. Keliiheleua, 105 Hawai'i 174, 181, 95 P.3d 605, 612 (2004). Then again, the drug buys happened within three blocks of the execution of the search warrant, which is close enough in geographic proximity for the HSC. So the dividing line is still unclear. It remains something between the entire county and three blocks. This lack of clarity is always good for making arguments that would cut either way.

And Figuring out Circumstances. As for circumstances factor, the HSC held that the circumstances between the two offense are closely related under the Carroll test when the facts and circumstances of the first discovered offense provide sufficient probable cause to suspect that the defendant had committed or would commit the second offense. In this case, the drug buys provided sufficient probable cause to suspect that Akau committed or would commit other drug offenses. The search warrant was based upon the drug buys and the search warrant led police to the drugs for the first offense. These circumstances were closely related, and, according to the HSC, the two prosecutions should have been joined and merged.

Justice Acoba's Concurrence. Justice Acoba concurred because he believed that probable cause is not essential in finding the circumstances between the first and subsequent crimes closely related. According to Justice Acoba, the probable cause is not required by HRS § 701-109(2). Justice Acoba also pointed out that the Carroll test was imported from State v. Boyd, 533 P.2d 795 (Ore. 1975), where that court did not examine or find probable cause in applying that test. Oregon, according to Justice Acoba, still does not call for probable cause leading to the second offense. Justice Acoba believed it would have been impossible to try the offenses resulting from the search warrant without reference to the drug buys. This was enough of close relationship for Justice Acoba to agree with the majority that the offenses merged under HRS §701-109(2) and, therefore, should have been joined into a single prosecution. HRS § 701-111.

Justice Nakayama's Dissent. Justice Nakayama dissented because she believed that the two crimes did not arise from the same episode under the Carroll test. First, she did not agree with the HSC's "time" analysis. See Keliiheleua, 105 Hawai'i at 181, 95 P.3d at 612 (time factor not satisfied even when both offenses occurred on the same day). Justice Nakayama also sees a distinction between multiple prosecutions sharing common characteristics and multiple prosecutions that are "so interrelated that proof of a single prosecution would constitute a substantial portion of the proof of other prosecutions." When the latter happens the crimes share a "substantial factor nexus" and are of the same criminal episode. It is this nexus that determines whether the time, place, and circumstances are close enough to be considered the same episode. Justice Nakayama believed that the time, place, and circumstances of the two prosecutions did not share a substantial factor nexus and, therefore, there was no error.

Twin Policies at Work: Fairness to the Defendant and Efficient law Enforcement. The HSC addressed some of Justice Nakayama's contentions and noted that the twin policies of fairness to the defendant and efficient law enforcement are preserved with its holding. The defendant should not have to face the expense and uncertainty of two separate prosecutions that are essentially the same episode. It also noted that because the prosecutor knew about the drug buys, Akau was being harassed by the second prosecution. As for the interests of efficient law enforcement, the HSC rejected the State's contention that the one of the officers who participated in the drug buys did not "surface" when Akau was first charged because that officer still hadn't "surfaced" when the second prosecution came to the fore. Perhaps the subsequent prosecution is more than just harassment. Had it not been for the subsequent prosecution, Akau would not have been subjected to the mandatory minimum.

Sunday, June 1, 2008

Driving Inattentively--the Right way.

State v. Bayly (HSC May 29, 2008)

Background. When the police came to a parking lot in Wailuku, they found Bayly standing beside his poorly-parked truck. The parking lot is raised about a six inches above the ground. The front driver's side of the truck was hanging off the parking lot and onto the grass. One wheel was hanging over the edge of the parking lot. The officer noticed no damage to Bayly's car. The police did notice, however, that Bayly was not sober. He had 0.068 grams BAC. Bayly later admitted to drinking two beers. The State charged him with operating under the influence and inattention to driving. At trial, Bayly explained that he was unsure of his parking space so he slowly touched the yellow parking "bumper," but it was loose and gave way. The district court acquitted Bayly of operating under the influence, but found him guilty of inattention to driving. The ICA affirmed.

The Problem with Inattentive Driving. A person is guilty of inattention to driving when that person "operates any vehicle without due care or in a manner as to cause a collision with, or injury or damage to, . . . any person, vehicle or other property[.]" HRS § 291-12. The HSC pointed out that the statute can be read in two ways. Under one reading, a person commits the crime when he or she drives a car either without due care or in a way that results in a collision with or injury/damage to a person/thing. Thus, a person can be guilty if he or she drives a car without due care. This is how the ICA read the statute in State v. Momoki, 98 Hawai'i 188, 198, 46 P.3d 1, 8 (App. 2002). The HSC, however, held that this interpretation is absurd because any "slip[] in attention or other instances of 'inattentiveness' while driving, such as momentarily taking one's eyes off the read, even when no harm results," would be criminal conduct. Furthermore, to be liable for merely driving without due care may be unconstitutionally vague. Finally, Hawai'i cases suggest that a collision or damage is required for liability.

The Unitary Approach. The HSC held that inattention to driving arises when the person (1) operates a vehicle without due care or in a manner; (2) as to cause a collision with or injury to person or property; and (3) the person did so knowingly, intelligently, or recklessly. This reading, according to the HSC, avoids the constitutional problems and absurdities. It also overrules Momoki. The HSC went on to explain that why the third element calls for general intent. The statute does not call for "negligence" but a lack of due care. This is not the same under the Hawai'i Penal Code. Criminal negligence requires something more than a mere lack of due care--even though lack of due care is often the standard for civil negligence. HRS § 702-206(4). This interpretation, therefore, also overrules the part in State v. Reyes, 77 Haw. 533, 53-35, 560 P.2d 114, 115-16 (1977), where the HSC equated "lack of due care" with negligence. In other words, this means that a person can only be liable when he or she drives without due care thereby causing a collision or injury/damage or in a way to cause a collision or injury/damage.

Finding a Collision. The HSC held that both the district court and the ICA erred in concluding that there was sufficient evidence of a collision. Although the bottom of Bayly's truck made contact with the parking lot surface, it was too incidental to arise to a "collision." The word "collision" is not defined in HRS chapter 291 and thus the HSC looked to extrinsic aids and other cases to find the colloquial rather than technical meaning of the word. See HRS § 1-14. The HSC adopted the definition from a territorial case: a collision arises when a vehicle comes "in contact with some other vehicle or perpendicular object obstructing the course of its progress." Alexander v. Home Ins. Co., 27 Haw. 326, 328-29 (Terr. 1923). The HSC found no collision under this colloquial understanding. The bottom of Bayly's truck may have hit the parking lot surface, but that was not a perpendicular object obstructing its path. Thus, the HSC reversed the judgment.

Just how Unitary is it? So what exactly is a collision in the colloquial sense? The slightest tapping of any object standing in the way of a car's path, like a traffic cone, certainly is "contact with some other . . . perpendicular object obstructing the course" of the driver's progress. Does this mean that if a driver recklessly or even intentionally knocks down a traffic cone, he or she is guilty of inattentive driving? After all, the HSC explained that the disjunctive "or" in between the words "without due care or in a manner" must be read as a conjunctive "and" in order to harmonize the phrase as a whole. In re City and County of Honolulu Corp. Counsel, 54 Haw. 356, 374, 507 P.2d 169, 178 (1973). The HSC did not, however, see this need when it came to the "or" residing between "collision with" and "injury or damage to." Furthermore, the HSC pointed out that the bottom of Bayly's truck was not damaged thereby suggesting that the only way for him to be guilty would be with a finding of a collision.

It seems there still are two ways to be guilty of inattentive driving--either cause a collision, no matter how slight, or injury/damage a person/property. The HSC rejected the Momoki reading of the statute partly because it invited absurd results--such as the slightest inattentions without respect to any harm done. If intentionally hitting a cone is just as harmless as not looking at the road for a second, then isn't that just as absurd? This is puzzling.

Justice Nakayama's Concurrence. Justice Nakayama concurred in the result only.