Statutory Exceptions are Defenses, not Elements but Tachibana Error Warrants new trial
State v. Castillon (ICA May 31, 2017)
OVERRULED IN PART. READ IT HERE.
OVERRULED IN PART. READ IT HERE.
Background. Michelle Helen Castillon was charged with driving without a license in violation of HRS § 286-102. At trial, the prosecution proved that Castillon did not have a valid Hawaii driver’s license on the day she was seen driving a car on a public road. There was no evidence that Castillon had been issued a valid driver’s license from Canada or Mexico. The district court convicted her and she appealed.
DWOL and its Exceptions. “No person . . . shall operate any category of motor vehicles . . . without first being appropriately examined and duly licensed as a qualified driver of that category of motor vehicles.” HRS § 286-102(a). There are exceptions for any person possessing a license “that is equivalent to a driver’s license issued in this State but was issued to the person in another state of the United States, the Commonwealth of Puerto Rico, United States Virgin Islands, American Samoa, Guam, a province of the Dominion of Canada, or the Commonwealth of the Northern Marianas” or “a valid commercial motor vehicle driver’s license issued” by any state in the United States, province of Canada, or Mexico. HRS § 286-105(3) and (4).
An Element or a Defense? The ICA rejected Castillon’s argument that these exceptions were essential elements to the offense that had to be proven at trial. Generally, when 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 main case.” State v. Nobriga, 10 Haw. App. 353, 357-358, 873 P.2d 110, 112-113 (1994). But when the exception lies “peculiarly within the knowledge of the defendant, or the evidence concerning them is within the defendant’s private control,” or “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.” Id. The HSC applied this framework in State v. Lee, 90 Hawaii 130, 976 P.2d 444 (1999).
Here, the ICA held that the Canadian or Mexican driver’s license exception is not an element and is a defense to be established first by the defendant. The ICA reasoned that the exceptions come in an entirely separate statute and part of the traffic code. It also reasoned that “given the large number of statutory exceptions, and the relatively small number of drivers who would appear to qualify for the exceptions when compared to those who need a valid Hawaii driver’s license to drive, it would be absurd to require the prosecution to disprove all the possible exceptions in every case” of DWOL. The ICA also reasoned that this kind of knowledge—having a license from another country or from another state—is certainly within the knowledge of the defendant. Having established it was a defense and not an element, the ICA examined the record and noted that Castillon did not meet her burden of production in presenting any prima facie case that she would have a license from Canada or Mexico. Thus the burden of proof never shifted over to the prosecution to disprove the exception and “negative” the defense.
The Constitutional Problem with her Waiver of her Right to Testify. Castillon’s case, however, had a constitutional issue. After the State rested its case at trial, the trial court addressed Ms. Castillon and informed her about her right to testify. The colloquy was interrupted by defense counsel who informed the court that she did not want to testify. The district court said, “okay” and ended the inquiry.