Thursday, September 24, 2015

Traffic Infractions Do not Bar Subsequent Prosecutions

Traffic Infractions Do not Bar Subsequent Prosecutions
State v. Kalua (ICA September 2, 2015)
Background. Manaiakalani Kalua received two citations: one for excessive speeding in violation of HRS § 291C-105(a)(1) and one for regular-kine speeding in violation of HRS § 291C-102(a)(1). Excessive speeding means the vehicle is going either 80 mph or more or the vehicle is in excess of 30 mph of the speed limit.

The two charges are based on two separate incidents. In the notice of traffic infraction, Officer T. Koyanagi measured Kalua’s speed by radar and stated that he was going 71 mph in a 55-mph zone and that Officer Koyanagi tried to stop him as the speed limit dropped to 40 mph. In that zone, Officer Koyanagi cited Kalua for going 73 mph, which formed the basis for the excessive speeding.

For the regular-kine speeding, Kalua had to answer the citation within 21 calendar days or the court would enter a default judgment. He paid the speeding ticket and the default judgment. Regular speeding is not a crime, but a traffic infraction. Excessive speeding, which is a criminal offense, required an appearance in court and the citation included a summons to the District Court.

Kalua did not answer the regular-kine speeding and a default judgment was entered. He also did not appear at court and a bench warrant was issued. Subsequently, Kalua appeared in the District Court after the warrant had been served. Kalua then filed a motion to dismiss the excessive speeding charge on the grounds that he had already paid the traffic infraction and could not be subsequently prosecuted for the same or similar conduct. The district court granted the motion. The State appealed.

Penal Code Prohibits Repetitive Prosecutions . . . The “defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.” HRS § 701-109(2). The statute is “designed to prevent the State from harassing a defendant with successive prosecutions where the State is dissatisfied with the punishment previously ordered or where the State has failed to convict the defendant.” State v. Servantes, 35, 38, 804 P.2d 1347, 1348 (1991).

. . . but the Traffic Code Exception. On the other hand, there’s an exception to this statute in the Traffic Code. De-criminalized traffic infractions are outside the Hawaii Penal Code and traffic infractions are adjudicated pursuant to HRS Chapter 291D. “In no event shall section 701-109 preclude prosecution for a related criminal offense where a traffic infraction committed in the same course of conduct has been adjudicated pursuant to this chapter.” HRS § 291D-3(d). According to the ICA, this statute is intended to ensure that the “procedures established for the expeditious and streamlined adjudication of non-criminal traffic infractions will no jeopardize or adversely affect the State’s ability to pursue prosecutions of crimes related to the non-criminal traffic infractions.”

The ICA held that the plain language of HRS § 291D-3(d) allows the prosecution for the criminal offense of excessive speeding to proceed even though Kalua paid his traffic ticket arising out of the same episode.

Harmonizing Fitzwater. In doing so, the ICA also rejected the District Court’s conclusion that State v. Fitzwater, 122 Hawaii 354, 227 P.3d 520 (2010), changed the way it should interpret HRS § 291D-3(d). Regular-kine speeding is considered a lesser-included “offense” to excessive speeding. State v. Fitzwater, 122 Hawaii at 357, 227 P.3d at 523. The ICA simply held that it didn’t matter if regular-kine speeding was included with excessive speeding. It does not bar the prosecution from bringing the excessive speeding charge.

Double Jeopardy isn’t at Issue Either. The ICA also examined wither the excessive-speeding prosecution violated the Double Jeopardy clauses. U.S. Const. Am. V and Haw. Const. Art. I, Sec. 10 (no person “shall . . . be subject for the same offense to be twice put in jeopardy”). Double Jeopardy protects defendants from “(1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” State v. Higa, 79 Hawaii 1, 5, 897 P.2d 928, 932 (1995). Relying on almost exclusively federal precedent, the ICA stated that it was “well-settled that the double jeopardy protections against successive prosecutions and multiple punishments only prohibit successive criminal prosecutions and multiple criminal punishments for the same offense. Helvering v. Mitchell, 303 U.S. 391, 399 (1938); Hudson v. United States, 522 U.S. 93, 99 (1997); Purcell v. United States, 594 A.2d 527, 529 (D. C. Ct. App. 1991).

When a Civil Penalty Becomes a Criminal Punishment . . . Based on that, the ICA held that if the regular-kine speeding infraction was civil in nature and not a criminal offense, then the Double Jeopardy clauses would not apply. To determine whether a statute and its punishment are civil or criminal requires an analysis. Even when the statute is not labelled as a criminal punishment and even when there is no jail involved, the court must still determine if “the statutory scheme was so punitive either in purpose or effect as to negate [the Legislature’s] intention” to keep it a non-criminal infraction. Tause v. State Dept. of Labor and Indus. Rel., 113 Hawaii 1, 31, 147 P.3d 785, 815 (2006).

The determination is based on seven factors: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has been historically regarded as a punishment (as opposed to a civil infraction); (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned Id. at 32, 147 P.3d at 816.

According to the ICA the “sanctions” for regular speeding are not so punitive that it would transform the civil remedy intended by the Legislature into a criminal punishment. Speeding sanctions are primarily monetary. HRS §§ 291D-3 and 9, HRS § 291C-102 and 161. And so because they are not criminal penalties, Double Jeopardy is not at issue and is not affected by the subsequent prosecution. The dismissal order was vacated and the case remanded back to the District Court.


The Fitzwater Problem in Kalua’s Case. The ICA remanded the case back to the District Court. An interesting problem could play out. If regular speeding is a lesser-included offense, and if Kalua had already paid his ticket for the regular speeding, what would happen if the prosecution failed to prove the excessive speeding, but could prove the regular speeding? What happened to the Double Jeopardy analysis then? Would it merge with an already-paid traffic offense? Wouldn’t the District Court have to dismiss the excessive speeding charge all over again and not impose a new fine? Wouldn’t we back at the same place? Perhaps all will be revealed after remand.

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