Petitioner/Defendant-Appellant David H. Bayly seeks review of the October 11, 2007 judgment of the Intermediate Court of Appeals (ICA), which affirmed the district court of the second circuit’s March 31, 2006 final judgment adjudging Bayly guilty of inattention to driving in violation of Hawaii Revised Statutes (HRS) § 291-12 (Supp.2006). 1 We accepted Bayly’s application for a writ of certiorari and oral argument was held on April 17, 2008.
Bayly asserts that the ICA gravely erred in affirming his conviction because there was insufficient evidence to prove that he operated a vehicle without due care or in a manner as to cause a collision with, or injury or damage to, as the case may be, any person, vehicle or other property.
Based on the following, we reverse the ICA’s judgment.
I. BACKGROUND
On December 6, 2005, Bayly was charged by complaint with Operating a Vehicle Under the Influence of an Intoxicant (OUI) in violation of HRS § 291E-61, 2 and inattention to driving, in violation of HRS § 291-12. 3 A bench trial was held on March 31, 2006.
A. Relevant Evidence Adduced at Trial
The following facts are drawn from the testimony of Officer Mark Hada and defendant Bayly at trial.
On October 1, 2005, at around 12:10 a.m., the Maui Police Department dispatch sent Wailuku patrol units to the parking lot of 1325 Lower Main Street, on the island of Maui. Officer Hada, who was assigned to the traffic department at that time, heard the dispatch and arrived at the scene at approximately 12:30 a.m. Officer Hada was told by other officers at the scene that the driver was suspected of being intoxicated.
Officer Hada described the parking lot at 1325 Lower Main Street as a flat, paved concrete parking lot. The parking lot was an elevated structure, raised about seven to eight feet above Lower Main Street, which is north of the lot, and separated by a concrete wall. Between the edge of the parking lot and the concrete wall is a grassy dirt area approximately two feet wide. The parking lot is raised about one foot to one foot and a half above the grassy dirt area. The parking spaces are angled so that vehicles on the side where Bayly’s truck was parked face northwest. Officer Hada observed that the lighting in the area was “very adequate,” and that weather conditions were clear.
According to Officer Hada, the truck was stuck in this position, and “there was not enough torque in the vehicle to actually reverse it out without having to call for a tow.”
After approaching Bayly, Officer Hada observed that Bayly was disheveled, had a circular and side-to-side sway, had a strong-odor of liquor, and had red, watery eyes, and slurred and mumbling speech. Hada also testified that Bayly was “very arrogant, very cocky, very uncooperative” in his interactions with the officer. Hada performed the horizontal and vertical gaze nystagmus field sobriety tests on Bayly, and based on Iris observations arrested Bayly for OUI. 4 Bayly was given a blood test at 2:15 a.rn., and the parties stipulated that the test showed Bayly to have 0.068 grams of alcohol per 100 milliliters of blood. 5
At trial, Officer Hada was shown a video of the parking lot at Lower Main Street. Upon viewing the video, Hada recalled that there was a yellow “bunrpster [sic]” in the parking-stalls where Bayly’s truck had been parked, and that the driver’s side tire of Bayly’s vehicle was off the ledge. When asked whether the “other side was still on” the parking lot, Hada testified that he thought it was “partially off’ and “believ[ed] it was hanging on the edge.”
Bayly, testifying on his own behalf, stated that it was the front passenger side of his truck that went off the edge of the parking lot, while the left tire or driver’s side was touching the bumper. 6 According to Bayly, he slowly entered the parking lot stall to ensure that his truck would touch the yellow bumper with the driver’s side tire so that he would know when to stop. Bayly explained his car going off the edge as follows:
Unfortunately that bumper isn’t even attached to the concrete and it was put in a position to where my right side went off the embankment at the same time that I was technically trying to be, you know, touch that bumper with my tire.
Bayly added that he thought his car going off the edge “ha[d] to do with a bad parking stall,” not “anything to do with impairment or judgment.” With respect to the bumper, Bayly also stated that they are “completely loose,” and that “there’s holes in them where they’re supposed to be mounted in the parking lot so that they’re stationary, but they’re not. They’re loose.”
On cross-examination, Bayly testified that he had been to the parking lot once before in the daytime, but that he was not aware of the “parking situation” on the side of the lot in which his car was parked on the night of the incident. Bayly admitted that he had consumed two beers that night.
Before ruling, the district court summarized the factual findings relevant to the inattention to driving charge based on the testimony and video evidence. With respect to the location of the vehicle, the court reiterated that Officer Hada testified that the front
B. Procedural History
After a bench trial, the district court acquitted Bayly of the OUI charge, but found him guilty of inattention to driving. The court explained the basis for Bayly’s conviction as follows:
Count two deals with the inattention to driving and, again, the date and the defendant driving is not in contest.... The Court needs to determine here ivhether or not Mr. Bayly did operate a vehicle without due care or in a manner as to cause a collision with injury or damage to a person, vehicle, or other property.
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So this particular case, as far as the inattention to driving, the Court does find that Mr. Bayly ivas operating his vehicle without due care. I looked at the definitions of intentionally, knowingly and recklessly which would apply in this particular area and the Court finds either by the defendant’s intentional actions, by his knowing actions or by his reckless actions, that he definitely was acting without due care in this particular manner.
I do understand that driving is a multitask kind of activity whereby you need your hands to drive, your feet to operate the gas pedal, your eyes to watch the road, and your brain to compute all of this.
Obviously the application of force on a gas pedal combined with slowed reaction time due to the drinking, that Mr. Bayly at the very least admitted to two beers, not being able to stop in time, and ending up in this grassy area. The Court does find definitely that he did operate his vehicle without due care.
So the Court does find the defendant guilty of count tivo and finds the defendant—the officer, Dr. Wong’s testimony to be very credible in this particular area, and I’ll find the defendant guilty of count two.
Bayly appealed, contending, as he does in his application, that there was insufficient evidence to support his conviction.
The ICA affirmed the judgment of the district court, entering its judgment on October 11, 2007. In its SDO, the ICA stated that “HRS § 291-12 specifies that the elements of inattention to driving are that a person: (1) operated a vehicle, (2) without due care or in a manner as to cause, (3) a collision with, or injury or damage to, as the case may be, any person, vehicle, or other property.” ICA’s SDO at 2. After reviewing-each element, the court found that sufficient evidence existed for each. The first element, operation of a vehicle, was admitted. Id. The ICA found that there was sufficient evidence for the second element, operation without due care, based on the following:
Officer Hada testified that the area was adequately lit. Further, while the parties disagreed as to which tire went over the edge of the parking surface, the parties agree that one wheel did in fact go over the edge. Bayly’s truck ended up hanging off the edge of the parldng lot, immobilized to the point where a tow truck was required to extricate it. Based on the evidence, the district court could have inferred that Bayly was not operating his vehicle with due care. Bayly admitted consuming two beers prior to parldng the vehicle. Officer Hada testified that Bayly displayed signs of intoxication and was arrogant and cocky. Dr. Wong testified that Bayly’s likely level of impairment at the time of the incident was a blood alcohol content in excess of .08 grams. Evidence of impairment is “germane to a charge of inattention to driving.” State v. Mitchell,94 Hawai'i 388 , 401,15 P.3d 314 , 327 (App. 2000).
While Bayly is correct in his assertion that the mere occurrence of an accident is insufficient to sustain a conviction for Inattention to Driving, here we have the evidence of an accident, evidence of Bayly’s intoxication, and the testimonies of Bayly, the arresting officer, and the intoxication expert. Viewed in the light most favorable to the State, this is enough to sustain the conviction. Mitchell, 94 Hawai'i at 401-02 ,15 P.3d at 327-28 . “We need not determine that the evidence shows negligence as a matter of law but merely that the evidence shows a possibility that negligence could be found as a matter of fact.” Id. at 402,15 P.3d at 328 (quoting State v. Tamanaha,46 Haw. 245 , 258,377 P.2d 688 , 696 (1962)).
ICA’s SDO at 2-3. With respect to the third element, the ICA held that “the State adduced sufficient evidence of a collision between the bottom of Bayly’s truck and the concrete parldng lot surface to sustain Bayly’s conviction,” ICA’s SDO at 3, citing this court’s decision in
State v. Williams
for the proposition that “the vehicle must nevertheless ‘collide’ with another object.” 114 Ha-wai'i 406, 410,
Bayly filed an application for writ of certio-rari on January 9, 2008. No response was filed and oral argument was held on April 17, 2008.
II. STANDARDS OF REVIEW
A. Sufficiency of the Evidence/Judgment of Acquittal
[EJvidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.
State v. Richie,
The standard to be applied by the trial court in ruling upon a motion for a judgment of acquittal is whether, upon the evidence viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. An appellate court employs the same standard of review.
State v. Keawe,
B. Statutory Interpretation
Statutory interpretation is “a question of law renewable
de novo.” State v. Levi,
First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinetiveness or uncertainty of an expression used in a statute, an ambiguity exists.
Peterson v. Hawaii Elec. Light Co., Inc.,
III. DISCUSSION
A. The Elements of Inattention to DHving
HRS § 291-12, “Inattention to Driving,” provides as follows:
Whoever operates any vehicle without due care or in a manner as to cause a collision with, or injury or damage to, as the ease may be, any person, vehicle or other property shall be fined not more than $500 or imprisoned not more than thirty days, or both.
The ICA interpreted the offense to be composed of three parts: (1) operation of a vehicle, (2) without due care or in a manner as to cause, (3) a collision with, or injury or damage to, as the case may be, any person, vehicle or other property.
As presented at oral argument, the statute is susceptible to another interpretation, in which the disjunctive “or” provides for two alternative means of proving the offense (the “alternative means” theory). 7 The ambiguity in the statutory text thus concerns whether the “without due care” requirement is tied to the “collision”/“injury”/“damage” requirement (the “physical harm” element) or stands alone as a sufficient basis for charging the crime.
We are convinced, based on our reading of the statute in the context of the Hawai'i Penal Code, canons of statutory interpretation, and prior precedent, that the ICA’s interpretation in the current ease is a better construction of the statute. 8
1. Problems With the “Alternative Means” Theory
a. “without due care”: absurd results and unconstihitional vagueness
The “alternative means” theory creates problems of interpretation with regard to the first means by which the offense of inattention to driving could be committed-namely, to operate a vehicle “without due care.” It is a basic rule of statutory interpretation that “[p]rovisions of a penal statute will be accorded a limited and reasonable interpretation ... in order to preserve its overall purpose and to avoid absurd results.”
State v. Bates,
The “alternative means” theory also raises potential constitutional concerns. “[W]here possible, we will read a penal statute in such a manner as to preserve its constitutionality. To accord a constitutional interpretation of a provision of broad or apparent unrestricted scope, courts will strive to focus the scope of the provision to a
[d]ue process of law requires that a penal statute state with reasonable clarity the act it proscribes and provide fixed standards for adjudicating guilt, or the statute is void for vagueness. Statutes must give the person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited so that he or she may choose between lawful and unlawful conduct.
Id. Vagueness is measured by the following standard:
[A] criminal statute is void for vagueness unless it: 1) gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he or she may act accordingly, and 2) provides explicit standards for those who apply the statute, in order to avoid arbitrary and discriminatory enforcement and the delegation of basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.
Id. Because it fails to specify an explicit standard, the mere command that one not drive “without due care”—regardless of any physical harm caused by such driving—raises potential problems of arbitrary and discriminatory enforcement. The potential of the “alternative means” theory to violate important penal and constitutional principles suggests that a more sensible interpretation would be preferred.
b. Hawai‘% caselaw has not generally supported the “alternative means" theory.
Past decisions also provide implicit disapproval of the “alternative means” theory in the context of inattention to driving. In
State v. Mitchell,
the ICA upheld a conviction for inattention to driving when the defendant’s vehicle “plowed into the rear” of a car in front of it, which sustained “rear-end damage.”
Mitchell contends, and we agree, that mere occurrence of an accident without more, is insufficient to sustain a conviction for inattention to driving. Admittedly, the record does not suffer from a plethora of evidence as to the physical circumstances of the accident. However, as detailed above, there is more in this record than the mere occurrence of an accident.
Id.
(citation omitted). By rejecting the possibility that a mere accident could lead to liability, the ICA also rejected, impliedly and
sub silentio,
the non-culpable alternative of the “alternative means” theory of the statute.
9
But see Momoki,
Moreover, in all prior published decisions concerning HRS § 291-12, the physical harm element has been present, usually in the form of a collision.
See State v. Reyes,
2. A Unitary Approach to HRS § 291-12
A better starting point is to analyze the elements of the inattention to driving offense according to the framework of the Hawai'i Penal Code. See HRS § 702-205 (“Elements of an offense,” include “conduct,” “attendant circumstances,” and “results of conduct”). 10 HRS §§ 701-114(1) and 701-114(2) (1993) require proof beyond a reasonable doubt of “[e]ach element of the offense,” as well as “[t]he state of mind required to establish each element of the offense.” See also HRS § 702-204 (“[A] person is not guilty of an-offense unless the person acted intentionally, knowingly, recklessly, or negligently, as the law specifies, with respect to each element of the offense.” (Emphasis added.)).
The inattention to driving statute, HRS § 291-12, is comprised, inter alia, of a conduct element and a result of conduct element. First, the statute includes a conduct element. The conduct element, itself composed of several parts, includes operation of a vehicle, 11 and the phrase “without due care or in a manner.” The statute concludes with a result element, “as to cause a collision with, or injury or damage to, as the case may be, any person, vehicle or other property....” HRS § 291-12.
Two aspects of the phrase “without due care or in a manner,” which modifies the type of driving punishable by the statute, should be noted. First, the phrase refers to the manner in which a vehicle is operated, or the nature of that operation. It thus describes conduct. In
State v. Reyes,
this court, apparently relying only on the “without due care” verbiage of the statute, read the phrase to suggest a state of mind requirement, and concluded that inattention to driving “requires only a showing of negligence in the operation of [the] vehicle....”
The second important aspect of the phrase “without due care or in a manner” follows naturally from the above analysis, namely, that the phrase should be understood as a unitary expression of the type of driving punishable by the statute, rather than a construction establishing alternative means to prove the offense. Under this reading, the phrase “in a manner as to cause” is best understood as an extension of the “without due care” language, linking the conduct and result elements. In other words, both phrases describe the manner of operation of the vehicle—which we have interpreted as requiring a mental state of at least recklessness—and link that manner to the result element of causing a collision, injury, or property damage. In this ease, the term “or” is best read conjunctively.
See
HRS § 1-18 (1993);
In re City & County of Honolulu Corp. Counsel,
This interpretation avoids the problems outlined above—potential absurdity and unconstitutional vagueness—while fulfilling the dictate that “[provisions of a penal statute will be accorded a limited and reasonable interpretation ... in order to preserve its overall purpose,”
Bates,
Based on the foregoing, we hereby reject the “alternative means” theory of HRS § 291-12 expressed by the ICA in Momoki and require that the conduct and result elements all be proven, along with the requisite state of mind, to convict under the statute.
3. Applying This Construction of HRS § 291-12 to the Instant Case
Therefore, in order to convict under HRS § 291-12, the prosecution had the burden of proving beyond a reasonable doubt that Bayly (1) operated a vehicle “without due care or in a manner,” (conduct) (2) “as to cause a collision with, or injury or damage to, as the case may be, any person, vehicle or other property” (result of conduct), HRS § 291-12, and that he did so (3) intentionally, knowingly, or recklessly, HRS § 702-204. 13
Bayly asserts that the ICA gravely erred in affirming his conviction of inattention to driving, because there was insufficient evidence to prove that Bayly operated a vehicle without due care or in a manner as to cause a
B. The ICA Gravely Erred, When it Con-chided that there Was Sufficient Evidence to Establish a “Collision With ... Other Property.”
1. The Collision Requirement and Bayly’s Argument
Under the result element of HRS § 291-12, the prosecution must prove that there was a collision, that a person was injured, or that property was damaged. As no evidence of property damage or personal injury was presented at trial, this case hinges on the evidence of a “collision.”
In his application, Bayly argues that the prosecution failed to adduce evidence that Bayly collided with any person, vehicle, or other property. Bayly does not deny that his truck “came into contact with the concrete parking lot surface.” Rather, Bayly argues that “this incidental contact [did not] constitute ] a ‘collision.’ ”
Notably, the district court made no findings with respect to this element of the inattention to driving charge. 14 The ICÁ, in its SDO, treated the issue as follows:
As to the third element, the State adduced sufficient evidence of a collision between the bottom of Bayly’s truck and the concrete parking lot surface to sustain Bayly’s conviction. State v. Williams,114 Hawai'i 406 , 410,163 P.3d 1143 , 1147 (2007) (“the vehicle must nevertheless ‘collide’ with another object”).
ICA’s SDO at 3.
In its brief to the ICA, the prosecution argued that Bayly’s “operation of his truck resulted in a collision between his vehicle and the surface of the parking lot,” based on Officer Hada’s testimony that the bottom frame of Bayly’s truck was touching the concrete parldng lot surface. According to the prosecution, it could reasonably be inferred “that the bottom frame of [Bayly’s] truck collided with the parking lot surface when it went over the edge of the parking lot.” The prosecution also noted that “the bottom frame of a truck is not a portion of the vehicle that normally comes into contact with the ground, as the track’s tires usually keep the body above ground level.”
2. The Meaning of “Collision”
Because the evidence adduced regarding the alleged “collision” is not in dispute, the question whether a “collision” occurred is a pure question of law. Specifically, at issue in this case is whether contact between the bottom of a truck and the surface on which the vehicle sits—be it a road or a parking lot—constitutes a “collision.” More broadly, the basic issue is whether a “collision” occurs when some part of a vehicle contacts only the road itself.
In order to answer this question, this court must heed the “plain and obvious meaning” of the statute in order to give effect to the intention of the legislature.
See Peterson,
We focus on the critical phrase: “collision with ... any person, vehicle or other property.” HRS § 291-12. The term “collision” is not defined in HRS chapter 291. As a general matter, “[t]he words of a law are generally to be understood in their most known and usual signification, without attending so
a. easelaw definitions of “collision"
This court recently examined, although in a different context, a similar “collision” requirement in HRS § 291E-21 (Supp.2004), which mandates that police officers take a blood sample to determine intoxication in the event of a “collision” where the officer has probable cause to believe a person involved committed an enumerated traffic offense.
State v. Williams,
The defendant in
Williams
had asserted that the police officer was not authorized to order a blood draw under HRS § 291E-21, because evidence of a “collision” was lacking.
Id.
at 410,
“Collision” is defined as “the action or an instance of colliding, violent encounter, or forceful striking together typically by accident and so as to harm or impede.” Webster’s Third New Int’l Dictionary 446 (1993).
Williams,
Noting the absence of any evidence of damage to the motorcycle or of the motorcycle’s position with respect to the road, the lack of physical evidence indicating a collision, and the officer’s testimony concluding that the defendant “fell off the bike,” this court concluded that the evidence was insufficient to establish a collision. Id.
Williams did not directly address the question whether the motorcycle’s position at the side of the road indicated that it “collided” with the road when the defendant apparently fell off the bike. However, by finding the evidence of collision insufficient, we implicitly rejected the notion that a vehicle striking the roadside qualifies as a “collision.”
A more direct consideration of the meaning of “collision” can be found in an older Hawai'i case,
Alexander v. Home Insurance Co.,
One describing the accident in the instant ease would not refer to it as a “collision.” The term “capsize” or “tip-over” as employed in the submission would be more reasonably descriptive of the accident. Were one to refer to an automobile as being “in collision” without giving further details, the mind of the auditor would naturally visualize an automobile coming in contact with some other vehicle or some perpendicidar object obstructing the course of its 'progress. This thought is best illustrated, perhaps by the not uncommon accident to a pedestrian slipping and falling to the pavement. One would not say that he collided with the pavement. A fall is not spoken of as a collision.
Id. at 328-29 (emphasis added). The court also quoted the Wisconsin Supreme Court’s similar rejection of a hypertechnical meaning of “collision”:
“Upon its face this appears to be good logic, but the conclusion is neither convincing nor satisfying. One instinctively withholds assent to the result. The reason is that it makes a novel and unusual use and application of the word ‘collision’. We do not speak of falling bodies as colliding with the earth. In common parlance the apple falls to the ground; it does not collide with the earth. So with all falling bodies. We speak of the descent as a fall, not a collision. In popular understanding a collision does not result, we think, from the force of gravity alone. Such an application of the term lacks the support of “widespread and frequent usage’.”
Id.
at 331 (quoting
Bell v. American Ins. Co.,
Courts in other jurisdictions have also examined whether similar accidents were “collisions” in the context of insurance coverage.
16
A notable case representing a view opposite to that of
Alexander
is
Payne v. Western Casualty & Surety Co.,
With regard to “collision,” the court set out the following reasoning:
Generally speaking, the determination of whether there has been a ‘collision’ within the intent and meaning of the policy involves (1) whether there was an object which was struck, and (2) the manner of the striking. As noted by the authorities, there is an irreconcilable conflict in the efforts of the various courts in construing the meaning and application of the word ‘collision’ as it appears in insurance policy clauses of the type before us. Some courts construe the word narrowly by limiting its meaning to a so-called ‘popular conception’, i.e. the striking unth force some foreign or perpendicular object, and thereby exclude contact with the ground of the highway or shoulder. The majority of the courts, often noting there is no proof that the word ‘collision’ has some commonly known and generally recognized restrictive meaning in insurance contracts take the viewpoint that the word ‘collision’ ... should be defined broadly and in its dictionary ‘striking against’, thus including every contact with any part of the highway.
Id. at 211.
Adopting a broad definition of “collision,” the Missouri appellate court next addressed
Courts which have ascribed to a dictionary or broad definition of the word ‘collision’ have held that an impact between a motor vehicle and obstacles on the road such as rocks, barricades, holes, excavations, and washouts are collisions with another object within the policy provisions. On the other hand it has been held that contact of an automobile with the road itself as where the road surface is irregular or has rough spots, does not constitute a collision with an object within the meaning of the policy, and this sometimes because of a general feeling that the policy as ‘popularly understood’ was not intended to furnish coverage for that type of accident and sometimes because it was felt that since the automobile wheels were already in constant contact with the highway surface and in a sense striking it as the wheels turned around the collision clause was intended to refer to some other object than the road upon which the automobile is being driven.
However, it is obvious from a study of the decisions that where the impact or striking occurs other than on the road proper, i.e. not on that part constructed, intended and used for travel thereon, the tendency is more liberal toward finding-coverage upon impact between the vehicle and another object, including those formed by the terrain.
Id. at 212 (emphasis added). In applying these principles to the stipulated incident, the Missouri appellate court ultimately concluded that a “collision” within the meaning of the insurance contract had taken place. In reaching this result, the court did not conclude that a mere striking of the road was sufficient; rather, it described the incident as the “sudden contact of a moving body, the vehicle, with an obstruction in its line of motion,” which it characterized as a “solid bank of earth ... not part of the regular roadway intended and used for travel,” as well as “the somewhat perpendicular dirt.” Id. at 212-13.
b. the meaning of “collision” in HRS § 291-12
Based on
Williams
and
Alexander,
as well as the mandate of HRS § 1-14 that “[t]he words of a law ... be understood in their most known and usual signification,” we believe that the term “collision” in HRS § 291-12 should be understood in a colloquial, rather than a technical sense. Under such a construction, “collision” generally refers to “an automobile coming in contact with some other vehicle or some perpendicular object obstructing the course of its progress.”
Alexander,
Basie canons of statutory construction provide additional support for the adoption of this narrower interpretation of “collision.” In the
Payne
case, although the Missouri appellate court adopted a broader interpretation of “collision,” which covered the vehicle’s running off of the road onto soft soil, the court made clear that its interpretation was limited to the context of insurance contracts. Indeed, the court explicitly invoked “the fundamental principle of construction of insurance contracts that where reasonable to do so such contracts are to be construed in favor of the insured so as to provide coverage and against the insurers who drafted the instrument.”
Therefore, for the reasons stated above, the term “collision” in HRS § 291-12 should carry its common meaning, and not the more expansive technical definitions used in some contexts.
3. Applying this Interpretation of “Collision” to the Evidence in this Case
The prosecution asserts that there was a collision in this case based on the contact of the bottom of Bayly’s truck— which normally does not touch the road surface—with the surface of the parldng lot when one side of the truck went over the parking lot edge. The prosecution has neither adduced evidence nor proffered any theory about the severity of impact the truck bottom had with the road surface. No evidence of damage to the truck bottom appears in the record.
Under these circumstances, we cannot say that Bayly “operate[d] any vehicle ... in a manner as to cause a collision with ... other property.” HRS § 291-12. The prosecution’s interpretation strains credulity in the face of the commonly-understood concept of “collision.” As the court recognized in the similar circumstances of the
Alexander
case, “[o]ne instinctively withholds assent to the result.”
In short, Bayly’s vehicle was not involved in a collision as a matter of law. Without satisfying the result of conduct element, Bayly cannot be convicted of inattention to driving. As such, it is unnecessary to reach Bayly’s argument that the ICA erred in upholding the circuit court’s determination the he operated a vehicle without due care.
IV. CONCLUSION
Accordingly, we reverse the ICA’s judgment and the district court’s March 31, 2006 final judgment.
NAKAYAMA, J., concurring.
I concur in the result only.
Notes
. The Honorable Rhonda Loo presided.
. HRS § 291E-61, "Operating a vehicle under the influence of an intoxicant,” provides, in relevant part:
(a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty;
(2) While under the influence of any drug that impairs the person's ability to operate the vehicle in a careful and prudent manner;
(3) With .08 or more grams of alcohol per two hundred ten liters of breath; or
(4) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.
.HRS § 291-12 provides:
Inattention to driving. Whoever operates any vehicle without due care or in a manner as to cause a collision with, or injury or damage to, as the case may be, any person, vehicle or other property shall be fined not more than $500 or imprisoned not more than thirty days, or both.
. Officer Hada testified that Bayly exhibited "six clues” during the horizontal nystagmus test, and exhibited vertical gaze nystagmus as well.
. The prosecution also called Dr. Clifford Wong, an expert in toxicology, to testily regarding Bayly’s likely level of intoxication at the time of the incident. Wong performed a retrograde extrapolation and testified that Bayly's blood-alcohol level would have been "definitely greater” than 0.08 at around midnight. The district court, however, found that because of uncertainty about the amount of time elapsed between the incident and the blood test, the testimony was insufficient to establish the earlier level.
Because the prosecution failed to meet its burden of proving the OUI charge, and has not brought an appeal on the district court's ruling, evidence material only to the OUI charge is not at issue in this case. Although the fact that Bayly was under the influence of alcohol is "germane” to his inattention to driving charge, see infra, the specific and uncertain evidence regarding the precise blood-alcohol level is not important in this case.
.In its summary disposition order (SDO), the ICA noted disagreement on this point, stating that "while the parties disagreed as to which tire went over the edge of the parking surface, the parties agree that one wheel did in fact go over the edge.” ICA’s SDO at 2.
. This view was set forth by the ICA in an earlier published opinion that examined the inattention to driving statute to determine whether it punished the “same conduct” as a former statute for the offense of "Driving under the influence of drugs,” HRS i 291-7(a) (1993) (repealed 2000).
State v. Momoki,
Under the "alternative means" theory, the prosecution is required to prove two things: (1) operation by defendant of a vehicle, and (2a) "without due care” or (2b) "in a manner as to cause, a collision with, or injury or damage to, as the case may be, any person, vehicle or other property.”
. We differ slightly, however, in how we would parse the three parts of the statute. See infra Section III.A.3.
. In fact, as discussed
infra,
it would violate the Hawai'i Penal Code to allow conviction for inattention to driving based on non-culpable conduct, because every element of a penal offense must carry a state of mind of at least "recklessness” unless a legislative purpose to impose absolute liability is strikingly clear.
See State v. Rushing,
. Although HRS § 291-12 was first enacted in 1971, 1971 Haw. Sess. L. Act 150, § 2, at 347, prior to the adoption of the Hawai'i Penal Code, 1972 Haw. Sess. L. Act 9, § 1, at 32-142, the Code nevertheless applies to it. HRS § 701-102(3) (1993), entitled, “All offenses defined by statute; applicability to offenses committed after the effective date,” states, “The provisions of chapters 701 through 706 of the Code are applicable to offenses defined by other statutes, unless the Code otherwise provides.”
. That one is operating a vehicle, rather than something else that can be "operated” (e.g. a bicycle), could also be analyzed as an attendant circumstance element of the crime. However, because there is no dispute that Bayly operated a vehicle, it is unnecessary to engage in this analysis.
. HRS § 702-206(4), defining "Negligently,” provides in full:
(a) A person acts negligently with respect to his conduct when he should be aware of a substantial and unjustifiable risk taken that the person’s conduct is of the specified nature.
(b) A person acts negligently with respect to attendant circumstances when he should be aware of a substantial and unjustifiable risk that such circumstances exist.
(c) A person acts negligently with respect to a result of his conduct when he should be aware of a substantial and unjustifiable risk that his conduct will cause such a result.
(d) A risk is substantial and unjustifiable within the meaning of this subsection if the person’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a law-abiding person would observe in the same situation.
. We acknowledge that "reckless driving” is also punishable by another statute. See HRS § 291-2 (2007) ("Whoever operates any vehicle or rides any animal recklessly in disregard of the safety of persons or property is guilty of reckless driving of vehicle or reckless riding of an animal, as appropriate, and shall be fined not more than $1,000 or imprisoned not more than thirty days, or both."). Indeed, this fact supports the idea that the legislature originally intended the “physical harm” component in the inattention to driving statute to be a mandatory part of the offense, so as to distinguish driving "without due care” from its close relative, “recklessly in disregard of the safety of persons or property.” Compare HRS § 291-12 with HRS § 291-2.
. In its oral ruling, the court focused only on the "due care" element of the statute, discussing the various pieces of evidence in favor of that finding. The absence of any consideration of the "collision'7“injury’7"damage” element is clear from the manner in which the court concluded its discussion:
Obviously the application of force on a gas pedal combined with slowed reaction time due
to the drinking, that Mr. Bayly at the very least admitted to two beers, not being able to stop in time, and ending up in this grassy area. The Court does find definitely that he did operate his vehicle without due care.
So the Court does find the defendant guilty of count two ....
. "Collide” is defined as "to become impelled into violent contact"; “to strike or dash together in collision typically by accident with a degree of force and shock and with solid rather than glancing or sideswiping impact." Webster’s Third, supra at 445 (emphasis added).
. Bayly cites a Louisiana case,
Brown v. Union Indemnity Co.,
. This principle has been recognized in Hawaii,
see Dairy Road Partners v. Island Ins. Co.,