Calling Defendant "Habitual" OUI Offender won't cut it

AFFIRMED!

State v. Walker (ICA September 30, 2011)

Background. Samuel Walker was charged with habitually operating a vehicle while under the influence of an intoxicant. HRS § 291E-61.5. The charge simply alleged that Walker was "a habitual operator of a vehicle while under the influence of an intoxicant[.]" Walker objected to the sufficiency of the charge prior to verdict, but was found guilty of the offense. He appealed.

Liberal Construction does not apply. The ICA held that because Walker objected to the sufficiency of the charge prior to the verdict, the liberal construction did not apply. The "liberal construction standard is limited to construing indictments, when the issue is only raised after trial." State v. Motta, 66 Haw. 89, 94, 657 P.2d 1019, 1022 (1983).

Charging Instruments must Apprise Defendant of the Offense AND Establish Jurisdiction. The accused has the right "to be informed of the nature and cause of the accusation." Haw. Const. Art. I, Sec. 14. The charging instrument must also allege sufficient facts establishing jurisdiction. State v. Stan's Contracting , Inc., 111 Hawai'i 17, 32, 137 P.3d 331, 346 (2006); HRS § 806-34. See also State v. Kekuewa, 114 Hawai'i 411, 424, 163 P.3d 1148, 1161 (2007) ("an oral charge, complaint, or indictment that does not state an offense contains within it a substantial jurisdictional defect").

Statutory terms Departing from Commonly-Understood Meanings must be Alleged in the Charging Instrument. The ICA turned, inter alia, to State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009), in which the HSC held that the failure to include the statutory definition of the term "operate" in the charge of operating while under the influence of an intoxicant did not provide adequate notice of an essential element in the offense--that the State must prove that the defendant was driving on a public road or highway. Id. at 395, 219 P.3d at 1182. The HSC explained that the term "operate" is a term of art that departed from the commonly-understood meaning of the word. The ICA also noted that a charging instrument must "be understood by a person of common understanding." HRS § 806-31. Furthermore, alleging a statutory definition in the charging document is necessary "when it creates an additional element of the offense, and the term itself does not provide a person of common understanding with fair notice of that element." State v. Mita, 124 Hawai'i 385, 390, 245 P.3d 458, 463 (2010).

. . . "Habitual Operator" is one of Those Terms. According to the ICA, the issue here was the term "habitual operator of a vehicle while under the influence of an intoxicant" is also a term of art. A "habitual operator" is a person who has three previous convictions of OUI within ten years of the instant offense. HRS § 291E-61.5(b). The commonly-understood meaning of the word "habitual" or "habit" is much more expansive. Random House Webster's Unabridged Dictionary 856 (2d ed. 2001) ("an acquired behavior pattern regularly followed until it has become almost involuntary"); Black's Law Dictionary 779 (9th ed. 2009) ("Customary; usual"). According to the ICA, the failure to include this statutory definition rendered the charging document defective.

Proof of "Habitual Operation" is an Essential Element. The ICA noted that the term "habitual" or "habitual operator" alone "does not convey the specificity of the term[.]" Moreover, proof of three pervious prior OUI convictions within ten years of the recent operation under the influence is an essential element to the habitual OUI offense that must be proven at trial. See State v. Ruggiero, 114 Hawai'i 227, 239, 160 P.3d 703, 715 (2007); State v. Domingues, 106 Hawai'i 480, 107 P.3d 409 (2005); State v. Kekuewa, 114 Hawai'i 411, 163 P.3d 1148 (2007). Thus, it is an essential element that must be adequately alleged in the charging instrument.

Chief Judge Nakamura's Dissent. A charge is sufficient when "it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he or she must be prepared to meet." State v. Mita, 124 Hawai'i 385, 390, 245 P.3d 458, 463 (2010). Chief Judge Nakamura believed that the language of the charging instrument was sufficient. It alleged that Walker was a "habitual" OUI offender. For Chief Judge Nakamura, a "habitual" offender is a recidivist--a person with multiple convictions for the same offense. That alone should have given him fair notice of the additional element in the habitual OUI charge. Chief Judge Nakamura wrote that the statutory definition of the term "habitual operator" did not create an element of the offense and the word "habitual" did not depart from the commonly-understood meaning of the word.

Chief Judge Nakamura wrote that Walker's (and implicitly the majority's) reliance on Domingues, Kekuewa, and Ruggerio were unpersuasive. For him, those cases "support the unremarkable proposition that for a charge to be sufficient, the State is required to include in the charge those portions of the offense statute that identify the essential elements of the substantive offense." That line of cases, according to Chief Judge Nakamura, included prior convictions as an element to the offense because proof of the priors enhanced the penalty beyond 30 days jail. This triggers the right to a jury trial and raises grave due process concerns. Walker's offense, on the other hand, raises none of those concerns. Habitual OUI is a felony; thus, "there is no due process concern relating to the ascertainment of the entitlement to a jury trial that would necessitate construing the statutory definition of the habitual offender phrase as part of the substantive habitual" OUI offense.

What about Bryan? Neither the majority nor Chief Judge Nakamura mentioned State v. Bryan, 124 Hawai'i 404, 245 P.3d 477 (App. 2010). In that case, Bryan challenged the sufficiency of a charge alleging the offense of driving while license is suspended or revoked pursuant to an OUI conviction. HRS § 291E-62. It was Bryan's 2d driving-while-license-suspended-pursuant-to-an-OUI-conviction but that was not alleged in the charging instrument. Bryan argued that the prior convictions were essential elements that must be alleged in the complaint. In that case, the ICA agreed. Relying primarily on Domingues, Kekeuwa, and Ruggerio, the ICA held that "qualifying prior . . . convictions are attendant circumstances and an essential offense element that must be alleged in the charging instrument." Bryan, 124 Hawai'i at 414, 245 P.3d at 487. The ICA went even further and noted that in Ruggerio, the HSC maintained its position that prior convictions were elements to the offense even after the legislature kept the offense as petty misdemeanors. Bryan appears to bolster the majority's opinion and it seems like the dissent would have had to distinguish it to maintain its position. After all, how can prior convictions in Bryan be an essential element on one hand while the habitual operator's prior convictions are not? Chief Judge Nakamura simply wrote that it was the "habitual offender phrase, and not its statutory definition, that describes the essential element for the offense." Perhaps Bryan can be distinguished. But there was no need to. None of these issues were not discussed in either opinion.