Not Every Violation Belongs on a Traffic Abstract

State v. Cooley (ICA June 30, 2010)

Background. The State charged Cooley with possession of an alcoholic beverage at Waialae Beach Park, a public area. Revised Ordinances of Honolulu § 40-1.2. The offense is a petty misdemeanor. ROH § 40-1.3. At his arraignment, the State moved to amend the charge to the consumption of an intoxicating liquor at a scenic look out, which is a violation. HRS § 291-3.3. The district court granted the motion and ordered Cooley to pay $27.00 in fees and fines. The violation appeared on Cooley's traffic record. Cooley filed a motion to correct the abstract of traffic record on the grounds that HRS § 291-3.3 was not a "moving violation." The district court denied the motion and concluded that Cooley "waived any defense that the consumption of the intoxicating liquor at the scenic lookout had to have arisen from the operation of a motor vehicle." Cooley filed a motion for reconsideration and requested a hearing. That too was denied. Cooley appealed.

Reviewing Traffic Abstracts part of the District Court's Inherent Authority. The ICA first concluded that the district court had jurisdiction to review Cooley's motion to correct the traffic record. According to the ICA, the district court's jurisdiction stemmed from HRS § 604-7(e), which gives the district court the power to not only issue judgments but to "do such other acts and take such other steps as may be necessary to carry into full effect the powers which are or shall be given them . . . for the promotion of justice in matters pending before them." Jurisdiction also came from the district court's inherent authority. See TSA Int'l Ltd. v. Shimizu Corp., 92 Hawai'i 243, 265, 990 P.2d 713, 735 (1999) ("the trial court retains jurisdiction to determine matters collateral or incidental to the judgment."). The exercise of inherent powers are reviewed for an abuse of discretion. State v. Moriwake, 65 Haw. 47, 55-57, 647 P.2d 705, 711-713 (1982).

Consuming Liquor at a Scenic Outlook is not a "Moving Violation." Traffic abstracts record "moving violations and any convictions resulting therefrom, arising from the operation of a motor vehicle and any administrative license revocation[.]" HRS § 287-3(a). The term "moving violation" is not defined by the statute. "[O]rdinary meanings are attached to terms not given a statutory definition" allowing the court to consult with "legal or other well[-]accepted dictionaries . . . to determine the ordinary meanings of certain terms." State v. Chen, 77 Hawai'i 329, 337, 884 P.2d 392, 400 (App. 1994). The ICA turned to Black's Law Dictionary, which defined a moving violation as an "infraction of a traffic law while the vehicle is in motion." Black's Law Dictionary 1111 (9th ed. 2009).

Cooley admitted to violating HRS § 291-3.3(b), which stated that "[n]o persona shall consume any intoxicating liquor at any scenic lookout." This, according to the ICA, is "plain and unambiguous on its face: it prohibits the consumption of liquor at a 'scenic lookout.'" A "scenic lookout" includes "any area within or adjoining a public street, road, or highway which is intended for use by motorists as a stopping or parking area attendant to the enjoyment of the surrounding scenery or a view." HRS § 291-1. The ICA agreed with Cooley that the use of a motor vehicle is completely irrelevant to this kind of violation and is not a "moving violation" or any conviction arising from the "operation of a motor vehicle." The district court, according to the ICA, abused its discretion in denying Cooley's motion.

Cooley Didn't Waive his Right--Expressly or Impliedly--to Correct the Motion . . . The ICA also rejected the district court's conclusion that Cooley waived his argument by admitting to the offense. Waiver is the "intentional relinquishment of a known right, a voluntary relinquishment of rights, and the relinquishment or refusal to use a right." Coon v. City and County of Honolulu, 98 Hawai'i 233, 261, 47 P.3d 348, 376 (2002). Of course, before a valid waiver takes places, "there must have existed a right claimed to have been waived and the waiving party must have had knowledge, actual or constructive, of the existence of such a right at the time of the purported waiver." Id. Waiver can be express by a statement or agreement or reasonably inferred or implied from acts and conduct. Id.; Wilart Assocs. v. Kapiolani Plaza, Ltd., 7 Haw. App. 354, 359-360, 766 P.2d 1207, 1210-11 (1988).

The ICA held that Cooley did not waive his right to correct his traffic abstract. Nothing during the change of plea and sentencing suggested that Cooley intentionally relinquished that right or "that he had actual or constructive knowledge that his admission could lead to the violation appearing on his abstract."

. . . Admitting to the Violation Didn't Waive this Appeal Either. The ICA rejected the State's reliance on State v. Morin, 71 Haw. 159, 164, 785 P.2d 1316, 1319 (1990), which precludes defendants from contesting "any nonjurisdictional issues" once they entered a "no contest plea in exchange for the reduction and dismissal of charges against them[.]" According to the ICA, Morin is inapposite. Cooley admitted to a violation; the appeal was from the order denying his motion to correct the traffic abstract. He was not challenging the admission of the non-criminal violation with a motion to withdraw his admission.

A Direct Consequence Analysis Ahead? The district court did not discuss with Cooley that the violation might appear on his traffic record. That was one of the reasons why the ICA held that Cooley did not waive his right to challenge the traffic abstract after changing his plea. The ICA reasoned that Cooley had no knowledge that this offense would show up on his traffic abstract. The analogous situation is the placement of the Hawai'i Sex Offender Registry. If that was not discussed during the change of plea colloquy, then--like the placement of the violation on the traffic violation--the defendant has no "actual or constructive knowledge that his admission could lead to" appearing on the sex offender registry. It seems like we have a direct consequence of pleading no contest and being sentenced allowing the defendant to withdraw his or her no contest plea. See Foo v. State, 106 Hawai'i 102, 102 P.3d 346 (2004), State v. Nguyen, 81 Hawai'i 279, 916 P.2d 689 (1996), Kentucky v. Padilla, 559 U.S. ___, 130 S.Ct. 1473 (2010).

Editor's Note. This is Judge Ginoza's first published opinion.