Sometimes “Reasonable Removal” means no Removal at all.

State v. Bowman (HSC May 9, 2016)

Background. One afternoon, Officer Romeo Fuiava was driving along the Hawaii Belt Road near Paauilo on the Big Island in the Hilo-bound direction. He saw a green flatbed truck driving in the opposite lane with containers filled with lettuce or cabbage. About half a mile down the road he saw cabbage or lettuce leaves on the highway and on the side of the road. There were no other vehicles with cabbage or lettuce. Officer Fuiava turned around, caught up with the truck and pulled him over. The driver was Max Bowman. Officer Fuiava cited Bowman with HRS § 291C-131, spilling a load on highways.

Bowman went to trial in the district court. At trial, the prosecution called Officer Fuiava, who testified about his observations. Bowman, appearing pro se, testified to the court that he was a farmer carrying agricultural products from the field during harvesting. He admitted that at some point, the cabbage spilled onto the highway. “It was trimmings. I actually drove past that section of the road later in the day, did not see any of it. I can only imagine the wind blew it off the road to decompose in a matter of days on the side, or it had been run over sufficiently and evaporated on the road.” He argued that it was unreasonable for him to go back and get the leaves off the road. “I feel risk of life and limb, running onto the road, grabbing three or four leaves of cabbage as opposed to letting it decompose naturally does not sound reasonable to me.”

The district court ruled for the prosecution. In convicting Bowman, the court noted that had he gone back and picked up the leaves, he would have been acquitted. The district court fined Bowman $250 and a $7 court fee. Bowman appealed to the ICA. The ICA affirmed. He petitioned to the HSC.

The Curious Offense of Spilling a Load onto the Highway. In our traffic code, it is a violation to spill loads on highways:

(a) No vehicle shall be moved on any highway, unless the vehicle is so constructed, covered, or loaded as to prevent any of its load other than clear waters or feathers from live birds from dropping, sifting, leaking, blowing, spilling, or otherwise escaping therefrom, except that sand may be dropped for the purposes of securing traction, or water or other substance may be sprinkled on a highway in cleaning or maintaining the highway.

. . . .

(c) Vehicles carrying agricultural produce from fields during harvesting shall be exempt from the requirements of this section, but the owner of the vehicle must provide a reasonable removal of all such produce spilled or dropped on the highway.

HRS § 291C-131.

The offense is stated in (a), but there is a defense in paragraph (c). According to the HSC, this defense is comprised of four parts: (1) vehicle carrying agricultural products, (2) from fields, (3) during harvesting, and (4) the owner of the vehicle must provide for the reasonable removal of all such produce spilled or dropped on the highway. This is a non-affirmative defense.

The Burden of Production Requires Some Proof of Each and Every Part of the Defense. The HSC rejected Bowman’s argument that he needed to present some of the four parts. The burden of production is the minimum the defendant must show before the burden shifts to the prosecution to disprove the non-affirmative defense. The defendant need only produce some evidence of the defense, “no matter how weak or inconclusive” to meet the burden. State v. Stocker, 90 Hawaii 85, 976 P.2d 329 (1999). However, the HSC held that even though the quantity of evidence is low, the defendant still has to show each and every part of the defense before the burden shifts to the prosecution.

Determining a “Reasonable Removal.” Fortunately for Bowman, that wasn’t the end of the inquiry. The HSC examined the parts of the defense. The difficulty is whether he engaged in the “reasonable removal” of the produce without going back and picking up the cabbage.

In interpreting the HRS § 291C-131(c), the HSC examined its legislative history. The removal of produce must be reasonable. The HSC agreed with Bowman that going back onto the highway and risk “life and limb” for a few cabbage leaves is unreasonable. The purpose of the statute was to penalize those trucks that spilled loads onto highways making the highway unsafe for others. Subsection (c) was designed to help the sugar industry. S. Stand. Comm. Rep. No. 308, in 1977 Sen. Journal, at 986-987. Cane haulers often spilled cane stalks onto the road, but so long as the sugar company provided some reasonable removal of these stalks, they would be exempt from liability under the statute.

In this case, Bowman’s cabbage are nothing like cane stalks. “And while it would be reasonable to remove sugar cane stalks from a highway in order to prevent an accident or vehicle damage, it might not be reasonable to remove cabbage trimmings, especially if the attempted removal is on a busy highway and is itself risky for both the person attempting the removal and the motorists driving on the highway.” The HSC held that “reasonable removal” means removal of spilled produce is only necessary when it is reasonable do to so. Based on that interpretation, the HSC held that Bowman met his burden of production.

The Prosecution didn’t Meet its Burden of Proof. Having held that Bowman met his burden of production, the prosecution was then required to disprove beyond a reasonable doubt that the defense was not met. It failed. The HSC, therefore, reversed the judgment and held that Bowman was entitled to a refund of the fine and fees.

Editor’s Note. In the interest of full disclosure, I was the attorney for Mr. Bowman in his application for writ of certiorari to the HSC.