“Alcohol” is not an Element to DUI

By Benjamin Lowenthal -
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.

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