The Hidden Element in OUI

State v. Wheeler (HSC November 17, 2009)

Background. Wheeler was charged with operating a vehicle under the influence of an intoxicant (HRS § 291E-61(a)(1)). The State's charges went like this:

"on or about May 31st, 2001, in the City and County of Honolulu, State of Hawaii, [Wheeler] did operate or assume actual physical control of a motor vehicle while under the influence of alcohol in amounts sufficient to impair [his] normal mental faculties and [his] ability to care for [him]self and guard against casualty[.]"

Wheeler indicated that he did not understand the charge because the term "operate" was a term of art. The State refused to clarify the charge. Wheeler moved to dismiss on the grounds that the charge failed to state an offense. The motion was denied. Wheeler lost at trial. The ICA vacated and remanded. The State appealed.

The Elements of the DUI Statute Include Where the Conduct took Place. The elements of an offense include conduct, attendant circumstances, and the results of that conduct. HRS § 701-205. "Conduct" means "an act or omission[.]" HRS § 701-118(4). An "act" is "bodily movement whether voluntary or involuntary." HRS § 701-118(2). "Attendant circumstances" are circumstances "that exist independently of the [actor's conduct]." State v. Aiwohi, 109 Hawai'i 115, 127, 123 P.3d 1210, 1222 (2005).

The DUI statute requires a person to "operate[]" or "assume[] actual physical control of a vehicle." HRS §291E-61(a). To "operate" means "to drive or assume actual physical control of a vehicle upon a public way, street, road, or highway." HRS § 291E-1. According to the HSC, the act driving or assuming actual physical control of a vehicle is the conduct element of the DUI statute. The HSC then held that this conduct element comes with the attendant circumstance that the conduct occur "upon a public way, street, road, or highway." Thus, the location of the conduct--upon a public way, street, road, or highway--is an essential element of the DUI statute.

A "Potential Ambiguity" Rejected. The HSC acknowledged that the words "assumes physical control of a vehicle" appeared both in the definition of "operate" and in HRS § 291E-61(a) itself. It recognized that the statute could be interpreted so that a person commits the offense if he or she either "operates" a vehicle (thereby driving or assuming physical control of a vehicle on a public way, etc.) or "assumes physical control of a vehicle" no matter where you are. The HSC, nonetheless, rejected this interpretation because such an interpretation would render the words "assumes actual physical control" within the definition of "operate" a nullity, "which is an outcome we must avoid." See Potter v. Hawai'i Newspaper Agency, 89 Hawai'i 411, 422, 974 P.2d 51, 62-63 (1999). Moreover, the requirement that the attendant circumstance of the conduct--be it driving or assuming physical control--be in public is consistent with the legislative history and the rule of lenity. State v. Shimabukuro, 100 Hawai'i 324, 327, 60 P.3d 274, 277 (2002).

Another "Potential Ambiguity"? The rejection of the "potential ambiguity" in the DUI statute is not unlike the prohibitions-involving-minors offense. "No minor shall consume or purchase liquor and no minor shall consume or have liquor in the minor's possession or custody in any public place" etc. HRS § 281-101.5(b). The conduct element appears to be consuming or purchasing of liquor as well as the consuming or possessing of liquor. It also appears to have the attendant circumstance element of the act occurring "in any public place" for at least the consumption and possession of liquor. Applying this case to this statute, it would seem that there is another "potential ambiguity" between the two words "consume." It would imply that consumption has to take place in public in order to prevent one of the "consumes" from becoming a nullity. The rule of lenity would certainly think so.

Tracking the Statutory Language is not Enough. "It is well settled that an accusation must sufficiently allege all of the essential elements of the offense charged." State v. Merino, 81 Hawai'i 198, 212, 915 P.2d 672, 686 (1996). Generally when "the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient." State v. Jendrusch, 58 Haw. 279, 282, 567 P.2d 1242, 1245 (1977). But "where the definition of an offense . . . includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species . . . [and] descend into particulars." State v. Israel, 78 Hawai'i 66, 73, 890 P.2d 303, 310 (1995).

The HSC made it clear that the charge must allege the elements of the offense, not necessarily the language of the statute. Here, the State failed to allege that Wheeler operated or assumed physical control of a vehicle on a public way, street, road, or highway. The HSC explained that it was not enough to simply state that Wheeler "operated" because the statutory term "operate" contains a very specific location and is a term of art. This, according to the HSC, went beyond the common understanding of the word "operate."

No Notice of the Element Either. The HSC rejected the State's argument that Wheeler had sufficient notice of the attendant circumstance element. According to the HSC, the charge did not indicate where the alleged conduct took place other than within the City and County of Honolulu. The HSC also rejected the State's claim that Wheeler had notice because his license had been revoked by the Administrative Driver's License Revocation Office (ADLRO), a process which requires proof of operating a vehicle while under the influence.

Appellate Courts can look at all Information Available up until time of the Objection. Generally, in determining whether a defendant has been adequately informed of the charges, the appellate court may consider other information in addition to the charge that may have been provided to the defendant up until the time defendant objected to the sufficiency of the charges. See State v. Sprattling, 99 Hawai'i 312, 318-19, 55 P.3d 276, 282-83 (2002); State v. Treat, 67 Haw. 119, 680 P.2d 150 (1984). In this case, the HSC held that Wheeler immediately objected to the sufficiency of the State's charge and that meant that it could "only consider information supplied to Wheeler priuor to his timely, pre-trial objection[.]" Under that analysis, the record does not establish that Wheeler was fully informed of the nature and cause of the accusation against him--regardless of the ADLRO proceedings.

Don't get too Excited. The HSC affirmed the ICA's conclusion that this particular element needed to be pleaded in the complaint. The remedy provided by the ICA was vacating the judgment of conviction and remanding with instructions to dismiss without prejudice. So in the end it means that the State can always fix its pleadings and start the whole thing all over again.