Wednesday, February 25, 2015

“Alcohol” is not an Element to DUI

State v. Turping (ICA February 25, 2015)
Background. Lori Turping was arrested for operating a motor vehicle while under the influence of an intoxicant. HRS § 291E-61. Specifically she was charged with operating a vehicle while “under the influence of alcohol.” The complaint did not include the statutory definition of the term “alcohol,” which is defined in HRS § 291E-1. Turping moved to dismiss the complaint on the grounds that the complaint failed to include the statutory definition of the term. The motion was denied, the district court found her guilty, and she appealed.

Defining “Alcohol”: an Element or a Defense? The term “alcohol” means “the product of distillation of any fermented liquid, regardless of whether rectified, whatever may be the origin thereof, and includes ethyl alcohol, lower aliphatic alcohol, and phenol as well as synthetic ethyl alcohol, but not denatured or other alcohol that is considered not potable under the customs laws of the United States.” HRS § 291E-1.

“It has long been held that indictments need not anticipate and negate possible defenses; rather, it is left to the defendant to show his defenses at trial.” State v. Adams, 64 Haw. 568, 569, 645 P.2d 308, 309 (1982). And so an indictment need not include defenses in order to be sufficient. Id. at 568-70, 645 P.2d at 309-10.

The ICA set up a framework for determining whether a statutory exception is a defense or an essential element:

[W]here an exception is embodied in the language of the enacting clause of a criminal statute, and therefore appears to be an integral part of the verbal description of the offense, the burden is on the prosecution to negative that exception, prima facie, as part of its case.

This general rule does not apply, however, when the facts hypothesized in the exceptive provision are peculiarly within the knowledge of the defendant, or the evidence concerning them is within the defendant’s private control. Furthermore, when the exception appears somewhere other than in the enacting clause, and is thus a distinct substantive exception or proviso, the burden is on the defendant to bring forward evidence of exceptive facts that constitute a defense. The prosecutor is not required in such instance to negative, by proof in advance, exceptions not found in the enacting clause.

State v. Nobriga, 10 Haw. App. 353, 357-58, 873 P.2d 110, 112-13 (1994).

The ICA applied this framework to Turping’s case and held that “alcohol” is not an essential element to the offense. According to the ICA, alcohol is denatured by adding substances that render it unfit for drinking. 27 C.F.R. §§ 21.11, 21.21, 21.31. Non-potable alcohol is alcohol not fit for drinking. Thus, denatured or non-potable alcohol is excepted from the statutory definition and exempts those who are intoxicated by alcohol that is unfit for drinking. Moreover, the term “alcohol” is not in the same place as the enacting statute. Accordingly, this is a defense that need not be pleaded in the complaint.

And You can Forget About Wheeler While You’re at It. The ICA rejected Turping’s argument that this complaint was just as defective as the complaint in State v. Wheeler, 121 Hawaii 383, 219 P.3d 1170 (2009). Unlike the term “operate,” which was held to be an essential element that needs to be pleaded in the complaint, id. at 393-96, 219 P.3d at 1180-83, the term “alcohol” is not a hidden element. It creates no additional element that must be proven by the prosecution.

Monday, February 9, 2015

ICA Won’t Extend Hussein to the HPA

Nichols v. State (ICA December 24, 2014)
Background. Nicholas Nichols was charged with various felonies in two separate cases. One case involved a home invasion and a shooting. The other case arose out of an assault in Kalakaua District Park. Nichols entered a plea agreement. He pleaded guilty to two felony counts in the assault and fifteen felonies in the home-invasion case. The parties agreed that for each count, he would be sentenced to prison and that he would serve some offenses concurrently. The parties, however, were free to argue that some should run consecutively. The prosecution also agreed not to seek extended terms of imprisonment. In the assault case, the circuit court sentenced Nichols to ten years concurrently in the assault case. In the home-invasion case, Nichols was sentenced to prison on those with a five-year mandatory minimum on seven of the counts. All would run concurrently to each other and total twenty years. In the end, though, the circuit court imposed that the assault case run consecutively to the home-invasion case making a total of thirty years with a mandatory minimum of five years.

Nichols was given counsel for the minimum-term hearing before the Hawaii Paroling Authority. The HPA held the hearing and issued its order. It found that Nichols was a Level III offender and set its minimum term at 30 years—in other words, it maxed him out. The HPA stated that the “significant factors identified in determining the level of punishment” included (1) the nature of the offense and (2) degree of injury to person. There was no other explanation.

Nichols petitioned the circuit court pursuant to HRPP Rule 40, but it was dismissed without a hearing. Nichols appealed.

Reviewing the Minimum Term Determination. A Rule 40 petition is the appropriate way to challenge a minimum term of imprisonment set by the HPA. Coulter v. State, 116 Hawaii 181, 184, 172 P.3d 493, 496 (2007). “[J]udicial intervention is appropriate where the HPA has failed to exercise any discretion at all, acted arbitrarily and capriciously so as to give rise to a due process violation, or otherwise violated the prisoner’s constitutional rights.” Williamson v. Hawaii Paroling Auth., 97 Hawaii 183, 195, 35 P.3d 210, 222 (2001). Judicial review is limited to situations in which “the decision of a state administrative agency is an arbitrary one . . . made without fair, solid, and substantial cause or reason; but it is not necessarily so because mistakenly or even wrong[.]” Id. Review is limited to whether “the parole board has followed the appropriate criteria, rational and consistent with the applicable statutes and that its decision is not arbitrarily and capricious nor based on impermissible considerations.” Id.

Stating the Reasons for the Heavy Minimum. The ICA looked at the HPA’s powers and roles. First, the HPA has the power to equate the minimum with the maximum sentence. Williamson, 97 Hawaii at 195, 35 P.3d at 222. The ICA noted that such action was “extraordinary” and would normally require a more detailed explanation by the HPA before taking that action. “Where the absence of a more detailed explanation would prevent our meaningful review of, or leave us in doubt, whether the HPA acted arbitrarily or capriciously in applying its Guidelines, we may require a more detailed explanation.”

But not here. The ICA actually held that in this case there was enough in the record for it to see how the HPA reached its decision. Nichols’ conduct was violent in both cases. People were shot, paralyzed, and seriously injured. That was satisfactory for the ICA to affirm the dismissal of his Rule 40 petition.

The HPA is not a Sentencing Court. In reaching this holding, the ICA noted that unlike the circuit court, which must state its reasons for consecutive terms of imprisonment, State v. Hussein, 122 Hawaii 495, 509-10, 229 P.3d 313, 327-28 (2010), the HPA is held to different standards, but it was unclear which standards the ICA meant. A sentencing court has the power to impose consecutive terms. It’s just that when it does exercise that power it has to state on the record why consecutive terms are necessary. Similarly, the HPA has the power to max out inmates. But here the ICA did not extend the disclosure requirement from Hussein to the HPA. Could this be an open invite for the HSC to do just that? We’ll see.