Stipulation to an Element still Requires Colloquy

State v. Ui (HSC May 16, 2018)
Background. Rachel Viamoana Ui and Jacob Wong were in a traffic accident in Kona on the Big Island. They were in Wong’s vehicle when it collided into a concrete barrier on Kamakaeha Avenue. The vehicle rolled and came to a stop on its roof. The ambulance arrived and transported Ui to the hospital. The ER doctor told a responding police officer that he smelled alcohol on Ui’s person. The officer requested that the hospital obtain a blood sample from Ui to determine her blood-alcohol content. The medical technician drew two vials of her blood while she remained unconscious.

Ui was charged with operating a vehicle while under the influence of an intoxicant and driving without a license. At trial, there was conflicting evidence as to whether Ui was driving at the time of the wreck. Both Ui and Wong admitted to drinking heavily. Wong testified that Ui was driving. Ui, however, testified that she passed out in the passenger seat and was asleep at the time of the collision.

Before the medical technician was about to testify, the parties took a recess. When they returned, Ui’s lawyer asserted that the parties stipulated to the following facts: (1) Ui’s blood was drawn within three hours of the reported accident; (2) her blood was drawn in compliance with the relevant administrative rules; and (3) the blood samples were properly secured and transported to the laboratory. Defense counsel also stipulated that Ui’s blood test results showed a BAC of 0.156 grams of alcohol per 100 milliliters or cubic centimeters of blood. Counsel maintained that he reviewed these facts with Ui and they were not challenging any of those facts. There was no colloquy as to the stipulation of the blood test results and no written copy of the stipulation was provided to the court. The district court found Ui guilty as charged. Ui appealed. The ICA affirmed.

Waiving an Essential Element of the Offense Requires an on-the-Record Colloquy. A defendant relinquishes his or her fundamental rights only when a waiver is intelligently, knowingly, and voluntarily done. State v. Murray, 116 Hawaii 3, 10-11, 169 P.3d 955, 962-63 (2007). A waiver cannot be presumed from a silent record. Wong v. Among, 52 Haw. 420, 424, 477 P.2d 630, 633-634 (1970). Fundamental rights can only be waived when the trial court engages in an on-the-record colloquy. Carvalho v. Olim, 55 Haw. 336, 342-343, 519 P.2d 892, 897 (1974) (right to counsel); State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993) (right to jury trial); Tachibana v. State, 79 Haw. 226, 236, 900 P.2d 1293, 1303 (1995) (right to testify at trial).

The right to have each and every element proven beyond a reasonable doubt by the prosecution is a fundamental right guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 5 of the Hawaii Constitution. Murray, 116 Hawaii at 10-12, 169 P.3d at 962-64. Thus, when a defendant stipulates to one or more of the elements in the offense, the trial court must engage in an on-the-record colloquy with the defendant. Id. at 12, 169 P.3d at 964.

And it’s not up to Counsel. The HSC rejected the prosecution’s argument that the decision to stipulate is a tactical one at the discretion of counsel. After all, “a defendant’s constitutional rights may not be waived by counsel . . . as a tactical matter.” Id. at 11, 169 P.3d at 963.

The HSC reaffirmed its holding in Murray and held here that because there was no on-the-record colloquy with Ui about her right to have each and every element proven beyond a reasonable doubt and her personal decision to waive that part of that right and stipulate to an element in the offense. Given the complete lack of a colloquy, the HSC found plain error on appeal.

Justice Nakayama’s Dissent. Justice Nakayama dissented on the HSC’s decision to sua sponte review the Murray issue. She wrote separately because she “continue[s] to believe that this court should exercise sua sponte plain error review sparingly and only in exceptional circumstances.” Chief Justice Recktenwald joined.

Dodging the Fourth Amendment. Ui’s argument on appeal addressed her right to be free from unreasonable searches, seizures, and invasions of privacy. Haw. Const. Art. I, Sec. 7 and U. S. Const. Am. IV. The HSC quickly addressed Ui’s argument and held that State v. Won, 137 Hawaii 330, 372 P.3d 1065 (2015), which stands for the rule that the implied consent form that threatens criminal penalties for refusing to submit to a blood test is inherently coercive and invalid under the constitution, is inapplicable here. This case involved a forcible blood draw. However, because it was being remanded back for a new trial it left open the question of whether the blood draw was performed pursuant to exigent circumstances or was solely an incident to her arrest.


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