State v. NesmithState v. Nesmith
- Reporters:
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- Before:
- Recktenwald
Lead Opinion
In these cases consolidated for disposition, we (1) hold that pursuant to State v. Wheeler, 121 Hawai‘i 383, 219 P.3d 1170 (2009), a charge of operating a vehicle under the influence of an intoxicant (“OVUII”) under Hawai‘i Revised Statutes (“HRS”) § 291E-61(a)(l)(2007)1 must allege the requisite mens rea 2 in order to fully define the offense in unmistakable terms readily comprehensible to persons of common understanding; (2) on the other hand, reaffirm that an OVUII charge under
I. Background
Kevin K. Nesmith (“Nesmith”) and Chris F. Yamamoto (“Yamamoto”) were each charged by Complaint with OVUII, in violation of
On or about the 7th day of January, 2010, in the City and County of Honolulu, State of Hawaii, KEVIN K. NESMITH did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway while under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty; and/or did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway with .08 or more grams of alcohol per two hundred ten liters of breath, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant, in violation of Section 291E-61(a)(l) and/or (a)(3) of the Hawaii Revised Statutes. KEVIN K. NESMITH is subject to sentencing as a first offender in accordance withSection 291E-61(b)(l) of the Hawaii Revised Statutes.
Yamamoto’s charge read:
On or about the 28th day of October, 2009, in the City and County of Honolulu, State of Hawaii, CHRIS F. YAMAMOTO did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway while under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty; and/or did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway with .08 or more grams of alcohol per two hundred ten liters of breath, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant, in violation ofSection 291E-61(a)(l) and/or (a)(3) of the Hawaii Revised Statutes. CHRIS F. YAMAMOTO is subject to sentencing as a first offender in accordance withSection 291E-61(b)(l) of the Hawaii Revised Statutes, and/or CHRIS F. YAMAMOTO is subject to sentencing in accordance withSection 291E-61(b)(2) of the Hawaii Revised Statutes, where CHRIS F. YAMA-MOTO committed the instant offense as a highly intoxicated driver, as a first offense. ‘Highly intoxicated driver’ means a person whose measurable amount of alcohol is 0.15 or more grams of alcohol per one hundred milliliters or cubic centimeters of the person’s blood, or 0.15 or more grams of alcohol per two hundred ten liters of the person’s breath.
In each case, defense counsel moved to dismiss the Complaint based on the argument that the State failed to allege an essential fact, namely the “mens rea” requirements of
Before the ICA, Nesmith and Yamamoto each challenged (1) the trial court’s denial of their motions to dismiss and (2) their convictions, on the basis that the Complaints were legally deficient for having failed to allege mens rea. The ICA affirmed the judgments of the trial court in a published opinion in the Nesmith case and a summary disposition order in the Yamamoto case, holding that mens rea need not be alleged in a Complaint charging
First, in both Nesmith and Yamamoto, the ICA held that mens rea is not an element of the offense of OVUII under
On certiorari, both applications contain the following first five questions presented:
1. Was the OVUII charge herein legally suffieient[?]
2. Did the OVUII charge herein “fully define” the offense in “unmistakable terms readily comprehensible to persons of common understanding[?]” See State v. Wheeler[,] 121 Hawai‘i 383, 219 P.3d 1170 (2009)[.]
3. What are the “essential facts” that must be included in an OVUII charge?
4. What mens rea, if any, is the State required to prove in an OVUII case?
5. What mens rea, if any, is the State required to plead in an OVUII complaint?
Each’s sixth question presented can be summarized as follows: Did the ICA gravely err in concluding (1) that OVUII based on blood alcohol content and charged under
Although we agree that
II. Discussion
A criminal charge serves multiple purposes. To initiate the criminal process, a charge must sufficiently state an offense to establish the court’s jurisdiction over a case. State v. Cummings, 101 Hawai‘i 139, 142, 63 P.3d 1109, 1112 (2003). The sufficiency of a charge also implicates an accused’s rights under the Hawaii Constitution, article I, sections 5, 10 and 14. First, under article I, section 5, “No person shall be deprived of life, liberty or property without due process of law[.]” Second, under article I, section 14, an accused is entitled to adequate notice of the charges against him or her: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the aeeusation[.]” Third, under article I, section 10, an indictment must be sufficiently specific to protect a person from being charged twice for the same offense: “[N]or shall any person be subject for the same offense to be twice put in jeopardy[.]”
As to the content and form of the charge, the State is required to charge OVUII offenses in writing. See Hawaii Rules of Penal Procedure (“HRPP”) Rule 7(a)(2009). “The charge shall be a plain, concise and definite statement of the essential facts constituting the offense charged.” HRPP Rule 7(d)(2009). “[A] charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process.”
In general, “[w]here the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient.”
Wheeler, 121 Hawai‘i at 393, 219 P.3d at 1180 (citations omitted).
In some cases, however, a charge tracking the language of the statute defining the offense nevertheless violates an accused’s due process rights.
This is so because although “some statutes in our criminal laws so clearly and specifically define[] the offense that nothing more is required in [a charge] than the adoption of language of the statute, other statutes fail to sufficiently describe the crime and [a charge] couched merely in the language of such a statute would violate due process.”
State v. Israel, 78 Hawai‘i 66, 73, 890 P.2d 303, 310 (1995)(quoting Territory v. Yoshimura, 35 Haw. 324, 328 (1940)).
Nesmith and Yamamoto allege that their OVUII charges were deficient for failing to allege mens rea. We agree as to the
A. An “intentional, knowing, or reckless” mens rea must be included in a Complaint alleging violation of
Operating a vehicle under the influence of an intoxicant, (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!.]
In order to convict a person of any criminal offense, the burden is on the prosecution to prove the following, beyond a reasonable doubt:
Proof beyond a reasonable doubt. (1) Except as otherwise provided in section 701-115, no person may be convicted of an offense unless the following are proved beyond a reasonable doubt:
(a) Each element of the offense;
(b) The state of mind required to establish each element of the offense;
(c) Facts establishing jurisdiction;
(d) Facts establishing venue; and
(e) Facts establishing that the offense was committed within the time period specified in section 701-108.
(2) In the absence of the proof required by subsection (1), the innocence of the defendant is presumed.
There is no state of mind specified within
Nesmith and Yamamoto’s overarching argument is that if mens rea need be proven beyond a reasonable doubt to convict a person of an
In Wheeler, a defendant was charged with OVUII in violation of
At that time, as it does now, in order to commit the offense of OVUII under
This court held, “Although the oral charge here tracked the language of
Similarly, in this case, at oral argument, the State argued that any person on the street would know a charge of “operating a vehicle under the influence of an intoxicant” to mean drunk driving. However, that common understanding is not reflected in the statutory framework creating the offense of OVUII under
We are cognizant that our case law, statutes, and court rules have complicated the issue of just what must be included in a charge. On one hand, the State argues that the charge need only contain the “essential elements” of an offense, and the “elements of an offense” are defined under
Complicating the issue further is our case precedent holding that the omission of mens rea in a charge rendered the charge deficient. We note that even after the adoption of the Hawai‘i Penal Code and
Given our statutory framework, it seems clear that mens rea is not an “element of an offense” under
State v. Elliott provides one illustration of how omission of facts in a charge can render a charge deficient. 77 Hawai‘i 309, 884 P.2d 372 (1994). In that case, this court examined the following charge alleging resisting arrest:
On or about the 28th day of June, 1991 in Kona, County and State of [Hawaii], Marian Lois Elliot attempted to prevent a Peace Officer acting under color of his official authority from effecting an arrest by using or threatening to use physical force against the peace officer or another thereby committing the offense of resisting arrest in violation of Section 710-1026(l)(a) [Hawaii] Revised Statutes as amended.
77 Hawai‘i at 310, 884 P.2d at 373 (emphasis omitted). The charge stemmed from an incident in which Elliot allegedly attempted to bite one police officer and successfully bit another. See id. At the time of the offense, the resisting arrest statute read:
Resisting arrest. (1) A person commits the offense of resisting arrest if he intentionally prevents a peace officer acting under color of his official authority from effecting an arrest by: (a) Using orthreatening to use physical force against the peace officer or another[.]”
77 Hawai‘i at 310 n. 2, 884 P.2d at 373 n. 2 (emphasis omitted).
In Elliott, the petitioner challenged the sufficiency of this oral charge for the first time on appeal, so this court liberally reviewed the oral charge in favor of its validity pursuant to State v. Motta, 66 Haw. 89, 657 P.2d 1019 (1983). 77 Hawai‘i at 311, 884 P.2d at 374. Even under a liberal review, we held that the charge could not be reasonably construed to state the offense of resisting arrest. 77 Hawai‘i at 313, 884 P.2d at 376. First, the oral charge was deficient because it was unclear which “peace officer” it referenced. 77 Hawai‘i at 312, 884 P.2d at 375. Second, the charge was also unclear as to whether the phrase “using or threatening to use physical force” related to the petitioner’s alleged act of trying to bite one officer or her alleged act of successfully biting the other officer. Id. Third, this court held, “the requisite state of mind was omitted from the charge and we perceive no way in which we could reasonably construe it to charge resisting arrest or any included offense.” 77 Hawai‘i at 313, 884 P.2d at 376.
Like Elliott, in this case, the “intentional, knowing, or reckless” state of mind requirements, though not an “element of an offense” under
Lastly, we take note of two other errors in the ICA’s
1. The General Intent Holding
The Yamamoto panel held, “[I]n a charge of OVUII under
The distinction between “general intent” and “specific intent” crimes, however, no longer applies. This court noted in 2000 that, upon the adoption of the Hawai‘i Penal Code in 1973, the only relevant states of mind are intentional, knowing, reckless, and negligent states of mind.
[Arguments concerning specific and general intent are no longer relevant. Hawai‘i has adopted the [Model Penal Code’s] state of mind requirements, which have abandoned the common law concepts of “specific intent” and “general intent,” in favor of four defined culpable states of mind.... In that regard, this court, in applying the [Hawai‘i Penal Code], has indicated that a state of mind with which the defendant acts applies to all elements of the offense, unless otherwise specified in the statute defining the offense.
Kalama, 94 Hawai‘i at 65, 8 P.3d at 1229 (citations omitted). See also State v. Pesentheiner, 95 Hawai‘i 290, 300, n. 10, 22 P.3d 86, 96, n. 10 (App.2001) (“By clearly articulating the mens rea elements utilized by the penal code,
The Nesmith majority, unlike the Yamamoto panel, did not explicitly use the term “general intent” when it held that an intentional, knowing, or reckless state of mind can be inferred from the conduct alleged in an
Kane and McDowell are eases in which our appellate courts have specifically held that intent can be inferred from the allegations in the charge for general intent crimes. Kane held, “With a general intent crime, the statement of the act itself implies the requisite intent.” 3 Haw.App. at 457-58, 652 P.2d at 647 (citing Tacuban). McDowell held that possession of a sawed-off rifle is a general intent crime; further, under
We note, however, that Torres and Tacuban are not explicitly general intent cases. Torres held, without addressing whether incest was a general intent crime, “Incest as charged here is an offense where intent can be inferred because ‘sexual intercourse’ under the circumstances alleged could only be a willful act.” 66 Haw. at 289, 660 P.2d at 527. Similarly, Tacuban held, without any discussion on general intent, “An essential ingredient of an offense [in this ease, gambling] may be alleged inferentially as well as directly and when so alleged is suffieient[.]” 40 Haw. at 212 (citation omitted).
In light of the clear abrogation of the general/specific intent distinction in Kalama, it was erroneous for the Yamamoto panel to hold that
2. The Extension of
In further support of its holding that intent can be inferred from the allegations in an
An extension of circuit court criminal procedure to the district courts is a result contrary to the intent of the legislative body that drafted the statute. Legislative history behind
Chapter 711, “criminal procedure; circuit courts”, contains several provisions tying the application thereof to courts of record. Upon the taking effect of Act 188, Laws 1970, district courts will be courts of recordas provided in section 604-17. Section 31B presents a proposed new section 711-2 providing that the mere use of the term courts of record does not itself make a provision contained in chapter 711 applicable to district courts. The title has been amended to include chapter 711.
H. Stand. Comm. Rep. No. 333, in 1971 House Journal, at 845. Consequently, the Nesmith majority erred in extending
B. An
As a preliminary matter, we note that the mens rea requirements found in the Hawai‘i Penal Code are not automatically applicable to offenses defined by statutes outside the penal code, like
Petitioners’ argument that mens rea must be alleged in a complaint charging OVUII under
The “per se” addition to Hawaii’s drunk driving laws was prompted after Congress enacted the Alcohol Traffic Safety-National Driver Register Act (the “Act”), which amended
In 1983, the Hawai‘i State Legislature signaled its clear intent to qualify for these federal funds in amending chapter 291. See S. Conf. Com. Rep. No. 999, in 1983 Senate Journal, at 1478 (“[The Joint Senate Committees on Transportation and the Judiciary] are aware that certain federal funds are available to the State, provided that the State’s drunk driving laws conform to federal standards. Your Committees find that this measure would enhance qualification for such federal funds.”); see also H. Stand. Com. Rep. 591, in 1983 House Journal, at 1105 (“Furthermore, your Committee has received testimony from the Department of Transportation that the state must comply with certain federal requirements to qualify for federal grants. These requirements and funding were enacted by Congress in an effort to provide an incentive for states to reduce alcohol[-]related traffic accidents.”). The
Subsequent case law supports this interpretation. See Wetzel, 7 Haw.App. 532, 782 P.2d 891; Mezurashi, 77 Hawai’i 94, 881 P.2d 1240; Christie, 7 Haw.App. 368, 764 P.2d 1245. Significantly, in reaffirming that driving under the influence of alcohol, as measured by blood alcohol content, was a per se offense, this court discussed the legislative history of Act 117 as follows:
In 1983, the Legislature proposed to “establish more effective sanctions for driving under the influence of intoxicating liquor.” Sen. Conf. Comm. Rep. No. 999, in 1983 Senate Journal, at 1477. Specifically, the Legislature intended that a defendant in any criminal prosecution for the offense of driving under the influence of intoxicating liquor, “shall be deemed under the influence of intoxicating liquor if he has ten-hundredths per cent or more by weight of alcohol in his blood.” Hse. Stand. Comm. Rep. No. 591, in 1983 House Journal, at 1105. Consequently, a vehicle operator whose blood alcohol level exceeds 0.10 per cent is in violation of the DUI statute. We have long held that DUI is a per se offense underHRS § 291-4(a)(2) . State v. Mezurashi, 77 Hawai’i 94, 96, 881 P.2d 1240, 1242 (1994); State v. Christie, 7 Haw.App. 368, 370, 764 P.2d 1245, 1246, aff‘d, 70 Haw. 158, 766 P.2d 1198 (1988), reconsideration denied, 70 Haw. 661, 796 P.2d 1004, cert. denied, 490 U.S. 1067 [109 S.Ct. 2068, 104 L.Ed.2d 633] (1989).
Caleb, 79 Hawai’i at 339, 902 P.2d at 974 (emphasis added).
In the context of jury instructions, the ICA once again reaffirmed that the legislative history indicated that driving under the influence based on blood alcohol content was a per se offense, with reference to the absolute liability framework set forth in
Defendant contends that regarding the elements of theHRS § 291-4(a)(2) offense, the trial court incorrectly refused to instruct the jury that a “finding of a mens rea as to the element of operating a vehicle [was required].” We disagree.
HRS § 702-204 (1985) provides that when a statute is silent as to the state of mind required to establish an element of an offense, the element is established by proving that “a person acts intentionally, knowingly, or recklessly.” However,HRS § 702-212(2) (1985) states that the state of mind requirements do not apply to:
A crime defined by statute other than [the Hawai’i Penal] Code, insofar as a legislative purpose to impose absolute liability for such offense or with respect to any element thereof plainly appears.
By enactingHRS § 291-4(a)(2) , “the legislature permitted proof of DUI by merely showing that a defendant drove a vehicle with a BAC of 0.10 percent or more.” State v. Wetzel, 7 Haw.App. [532, 539], 782 P.2d 891, 895 (1989) (footnote omitted). Thus, the legislative purpose ofHRS § 291-4(a)(2) was “to impose absolute liability for such offense or with respect to any element thereof,” as provided inHRS § 702-212(2) . Accordingly, we stated in State v. Christie, 7 Haw.App. [368, 370], 764 P.2d 1245, 1246, aff‘d, 70 Haw. 158, 766 P.2d 1198 (1988), cert. denied, [490 U.S. 1067], 109 S.Ct. 2068, 104 L.Ed.2d 633 (1989), that DUI has been “a per se offense” underHRS § 291-4(a)(2) since 1983.
The trial court did not err in refusing to instruct the jury that a finding of mens rea was required underHRS § 291-4(a)(2) .
Young, 8 Haw.App. at 153-54, 795 P.2d at 290-91.
There are no substantial differences between
Sec. 11721. Driving under the influence of intoxicating liquor. Whoever operates or assumes actual physical control of the operation of any vehicle while under the influence of intoxicating liquor shall be punished by a fine not exceeding one thousand dollars or by imprisonment for not more than one year, or both.
Sec. 11722. Evidence of intoxication. In any criminal prosecution for a violation of section 11721, the amount of alcohol in the defendant’s blood within three hours after the time of the alleged violation as shown by chemical analysis of the defendant’s blood, urine, breath or other bodily substance shall be competent evidence that the defendant was under the influence of intoxicating liquor at the time of the alleged violation and shall give rise [to the presumption of intoxication at the time of the alleged violation if the defendant’s blood alcohol content was 0.15 per cent or more, by weight of alcohol]
Laws of the Territory of Hawaii Passed by the Twenty-Fifth Legislature, Regular Session 1949, Act 283, § 1 at 602.
As explained supra, in 1983, Hawaii’s DUI law was amended to state:
A person commits the offense of driving under the influence of intoxicating liquor if: ... (2) The person operates or assumes actual physical control of the operation of any vehicle with 0.10 per cent or more, by weight of alcohol in the person’s blood.
1983 Haw. Sess. Laws Act 117, § 1 at 208. Immediately before
§ 291-4 Driving under the influence of intoxicating liquor, (a) A person commits the offense of driving under the influence of intoxicating liquor if:
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(2) The person operates or assumes actual physical control of the operation of any vehicle with .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood or .08 or more grams of alcohol per two hundred ten liters of breath.
Except for the consolidation of language concerning driving under the influence of drugs, the current
§ 291E-61 Operating a vehicle under the influence of an intoxicant, (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:
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(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.
As such, the line of cases holding
III. Conclusion
We hold that the ICA correctly concluded that
Consequently, we affirm the ICA’s judgments, which affirmed the district court’s judgments of conviction and sentence under
Notes
.
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 ... [w]hile 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!)]
. “Mens rea” is defined as follows: “As an element of criminal responsibility: a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and wilfulness.” Black‘s Law Dictionary 985 (6th ed. 1990).
.
.
The indictment need not allege that the offense was committed or the act done “feloniously”, “unlawfully”, “wilfully”, “knowingly”, “maliciously”, “with force and arms”, or otherwise except where such characterization is used in the statutory definition of the offense. Where the characterization is so used the indictment may employ the words of the statute or other words substantially of the same import. In alleging the transaction the indictment may use the nounal, adjectival, verbal, or adverbial form of the statutory name of the offense.
. Conviction for the single offense of OVUII under
. See n.4, supra.
. There is no similar legislative purpose to impose absolute liability for an
. We take a moment to respond to some of assertions raised in the Concurrence/Dissent. First, the Concurrence/Dissent states, ”
Therefore, within the immediate context of the Penal Code, criminal liability must be based on culpability. However, it is recognized that the scope of the Penal Code is finite. In other codes or Titles penal statutes exist which pri-ma facie impose absolute criminal liability. Subsection (2) allows for the imposition of such criminal liability in the case of crimes defined by statutes other than the Penal Code— when andonly when—“a legislative purpose to impose absolute liability for such offense or with respect to any element thereof plainly appears.”
Commentary to
Second, the Concurrence/Dissent posits that, in light of the existence of the defense of pathological intoxication found in
Concurrence Opinion
Concurring and Dissenting Opinion by
ACOBA, J.I concur in the majority’s holding that a culpable state of mind must be alleged in a charge of Operating a Vehicle Under the Influence of an Intoxicant (OVUII) under Hawai‘i Revised Statutes (HRS)
Contrary to the majority’s position, our decisions require that with respect to an
I.
In this case, Respondent/Plaintiff-Appellee State of Hawaii (Respondent) charged Petitioners/Defendants-Appellants Kevin K. Nesmith (Nesmith) and Chris P. Yamamoto (Yamamoto) (collectively, “Petitioners”) with OVUII under
On or about the 7th day of January, 2010, in the City and County of Honolulu, State of Hawaii, [Nesmith] did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway while under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty; and/or did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway/3] with .08 or more grams of alcohol per two hundred ten liters of breath, thereby committing the offense of [OVUII], in violation ofSection 291E-61(a)(l) and/or 291E-61(a)(3) ... of the [HRS].
(Emphases added.) The charge against Yamamoto was similar, and also failed to allege any state of mind.4 Petitioners present the same questions in their applications for writ of certiorari.5
II.
In this jurisdiction, a charge serves two primary, yet distinct, functions. First, because
The inquiry as to whether an offense has been sufficiently charged in this regard is confined to the charge itself since the foregoing inquiry is not a question of whether the defendant had adequate notice of the charges against him or her. Cummings, 101 Hawai‘i at 143, 63 P.3d at 1113 (stating that “a defect in a complaint is not one of mere form, which is waivable, nor simply one of notice, which may be deemed harmless if a defendant was actually aware of the nature of the accusation against him or her,” but the defect “is one of substantive subject matter jurisdiction, “which may not be waived or dispensed with’ ” (quoting Jendrusch, 58 Haw. at 281, 567 P.2d at 1244)); see also id. (stating that “just as the prosecution must prove beyond a reasonable doubt all of the essential elements of the offense charged, the prosecution is also required to sufficiently allege them and” such “requirement is not satisfied by the fact that the accused actually knew them and was not misled by the failure to sufficiently allege all of them”) (quoting State v. Israel, 78 Hawai‘i 66, 73, 890 P.2d 303, 310 (1995) (brackets omitted) (emphasis added)).
The second and equally important function of a charge is to provide a defendant with sufficient information to “inform [the defendant] of the nature and cause of the accusation” against him or her,
It is apparent from the foregoing that a charge must state an offense for purposes of jurisdiction and of adequately informing the defendant of the nature and cause of the accusation against him or her. See Jendrusch, 58 Haw. at 281, 567 P.2d at 1244 (“Not only does [the charge] fail to state an offense, but it also fails to meet the requirement that an accused must be informed of the nature and cause of the accusation against him.”) (Internal quotation marks and citation omitted.) (Emphasis added.)
A.
The sufficiency of a charge for jurisdictional purposes is measured, inter alia, by “‘whether it contains the elements of the offense intended to be charged!.]’ ” Cummings, 101 Hawai‘i at 142, 63 P.3d at 1112 (quoting State v. Wells, 78 Hawai‘i 373, 379-80, 894 P.2d 70, 76-77 (1995) (brackets omitted)). “‘A charge defective in this regard amounts to a failure to state an offense,’” which renders any subsequent trial, judgment of conviction, or sentence a nullity.” Id. (quoting Jendrusch, 58 Haw. at 281, 567 P.2d at 1244) (emphases added).
The charges against Petitioners fail to state an offense because the complaints lack any reference to the requisite states of mind. In Jendrusch, 58 Haw. at 280, 567 P.2d at 1243, the defendant alleged that his disorderly conduct charge failed to charge an offense. This court explained in Jendrusch, that “[a]n essential element of an offense [of disorderly conduct] is an intent or a reckless disregard on the part of the defendant that his conduct will have a specific result.” Id. at 281, 567 P.2d at 1244 (emphases added). According to Jendrusch, the “consequence which the statute seeks to prevent is actual or threatened physical inconvenience to, or alarm by, a member or members of the public” and “[t]he intent to produce this particular effect, or recklessly creating a risk thereof, is an essential ingredient of the conduct proscribed by the statute.” Id. at 281-82, 567 P.2d at 1244 (emphases added). This court held that “[t]he failure of the complaint to set forth this essential element [i.e., the requisite state of mind,] as defined by the statute or to describe it with sufficient specificity so as to establish penal liability rendered it fatally defective.” Id. at 282, 567 P.2d at 1245; see also Yonaha, 68 Haw. at 587, 723 P.2d at 186 (holding that because the charge omitted the element of intent, “the charge was fatally defective for failure to allege a necessary element”); Faulkner, 61 Haw. at 178, 599 P.2d at 286 (stating that “[i]ntent is an essential element of the crime of criminal intent” and “[n]o allegation of intent was made”).
State v. Elliott would also appear to suggest that the requisite state of mind for an offense is an “essential element” that must be alleged in a charge. In Elliott, 77 Hawai‘i 309, 310, 884 P.2d 372, 373 (1994), the defendant was charged, inter alia, with resisting arrest in violation of
On or about the 28th day of June, 1991 in Kona, County and State of Hawai‘i, [the defendant] attempted to prevent a Peace Officer acting under color of his official authority from effecting an arrest by using or threatening to use physical force against the peace officer or another thereby committing the offense of resisting arrest in violation ofSection 710-1026(l)(a) [HRS] as amended.
Id. at 310, 884 P.2d at 373 (emphasis in original) (brackets omitted). Elliot held that the charge was defective because “the requisite state of mind was omitted from the charge [.] ” Id. at 313, 884 P.2d at 376 (emphasis added).
Hence, under our case law, for purposes of establishing jurisdiction, the “essential elements” of the offense, Jendrusch, 58 Haw. at 281, 567 P.2d at 1244, are not defined solely by what is designated as “elements” by the Hawai‘i Penal Code (HPC), see
B.
HRPP Rule 7(d) confirms that the sufficiency of a charge is not measured solely by whether it contains the elements as defined by
C.
Moreover, because
IV.
As discussed supra, a charge not only serves the function of establishing the jurisdiction of the court, but also “inform[s the defendant] of the nature and cause of the accusation” against him or her,
A
Based on the charges herein, a person of common understanding would not know that he or she was being accused of committing the OVUII offense, whether under
B.
Along these lines, this court has further declared that “[t]he onus is on the prosecution to inform the accused fully of the accusations presented against him or her[.]” Sprattling, 99 Hawai‘i at 318, 55 P.3d at 282 (emphasis added). It is plain that informing the accused “fully” of the nature and cause of the accusation against him or her, and sufficiently apprising the defendant of what he or she must be prepared to meet to defend against the charges, requires notifying the defendant of all essential elements of the offense, as defined in
Furthermore, although a culpable state of mind is not referred to as an “element” in
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The majority concludes, that a state of mind is a “fact[ ]” that must be included in an
Plainly, a state of mind is not an element as defined by
B.
Respectfully, contrary to the majority’s assertion, statutes, rules, and case law governing
Our case law could not be clearer that the essential elements of an offense include the requisite state of mind, Jendrusch, 58 Haw. at 282, 567 P.2d at 1245; Yonaha, 68 Haw. at 587, 723 P.2d at 186; Faulkner, 61 Haw. at 178, 599 P.2d at 286, as well as “conduct,” “attendant circumstances,” and “results of conduct,” as defined in
Nor does our ease law create “tension” with respect to the elements that must be included in a charge to confer jurisdiction on the court. The aforementioned cases plainly set forth the requisite state of mind as an essential element in addition to those elements set forth in
C.
Respectfully, the majority’s position that the
VI.
Although the majority agrees that a state of mind must be included in an
The reason for this is plain. The central premise of the HPC is that conviction and punishment should be based on moral culpability. See commentary to
A.
In support of its assertion that it is “well established that the legislature plainly intended to make [
In Christie, 7 Haw.App. at 370, 764 P.2d at 1246, the ICA stated that “[s]ince 1983, DUI12 has been a per se offense under [HRS]
Wetzel relied on Christie when noting in a footnote, that the ICA had previously stated that DUI,
Young, 8 Haw.App. at 153, 795 P.2d at 291, an ICA ease relied upon heavily by the majority, only quoted
Mezurashi, the only supreme court ease relied upon by the majority did not involve whether the BAC section of
It is apparent that the classification of the BAC section of the DUI statute, the predecessor of the BAC section of the OVUII statute, as a per se offenses originated in Christie, without any
B.
In contrast to the foregoing cases, in Eastman, 81 Hawai‘i at 140, 913 P.2d at 66, this court held that although the abuse of a family or household member statute did not refer to a requisite state of mind, the offense is not an absolute liability offense.15 Eastman noted that
In Rushing, 62 Haw. at 105, 612 P.2d at 106, this court rejected the defendant’s argument that
There is no express language imposing strict liability in
C.
1.
Next, in the absence of any express language in
In 1995, the legislature amended
The term “deem” is ordinarily defined as “[t]o treat (something) as if (1) it were really something else, or (2) it had qualities that it does not have[.]” Black’s Law Dictionary 446 (8th ed. 2004). The definition notes that the term “deem” “has been traditionally considered to be a useful word when it is necessary to establish a legal fiction either positively by deeming something to be what it is not or negatively by deeming something not be what it is.” Id. (internal quotation marks and citation omitted). Thus, in amending the DUI statute to include the BAC provision, the legislature established two alternative methods of proving the element of “influence of intoxicating liquor.” The prosecution could seek to submit evidence tending to establish that the defendant was “under the influence of intoxicating liquor[,]” which might include evidence that the defendant had blood-shot eyes or the odor of an alcoholic beverage on his or her breath, or to submit evidence that there was “.10 per cent or more, by weight of alcohol in the [defendant‘s blood[,]” at the time the defendant was in control of a vehicle, thus equating being under the influence with a .10 BAC.
The prescribed BAC level thus sets forth the “threshold,” H. Conf. Comm. Rep. No. 716, in 1995 House Journal, at 1346, or “limit” for intoxication, H. Conf. Comm. Rep. No. 716, in 1995 House Journal, at 1346. But the fact that one is “deemed” intoxicated at a certain BAC percentage merely equated that level with being under the influence. That amendment did not indicate that a culpable state of mind did not attach to intoxication. Nothing in the legislative history suggests that the federal government or the legislature intended to dispense with any culpable state of mind for the offense. Given its ordinary meaning, the words “shall be deemed ... intoxicated” did not eliminate a culpable state of mind with respect to the BAC element, or as to any of the other elements of the DUI offense, such as exercising control of a vehicle.
Further, although in amending
State v. Buch, 83 Hawai‘i 308, 926 P.2d 599 (1996), is instructive with respect to the kind of legislative history that might evince an intent to make an offense one of strict liability. In Buch, the defendant was convicted of sexual assault in the third degree,
At the close of the prosecution’s case, the defendant moved for a judgment of acquittal, asserting that the prosecution had not proven beyond a reasonable doubt that the defendant knew the complaining witness was less than fourteen years old. Id. at 311, 926 P.2d at 602. The trial court denied the defendant’s motion. Id. On appeal, the defendant
Buch noted that under 1970 proposed draft of the HPC, sexual assault offenses required knowledge of the attendant circumstance of the minor’s age. Id. at 314, 926 P.2d at 605. The legislative history pertinent to the sexual assault offense stated that various sections had been amended by the legislature ‘“to increase the age of consent from 12 to 14” and “ ‘to eliminate the requirement of actual knowledge [.] ” Id. at 315-16, 926 P.2d at 606-07 (quoting Conf. Comm. Rep. No. 1, in 1972 House Journal, at 1038) (emphasis added). According to Buch, “[t]he legislative history unequivocally indicates that, where the age of the victim is an element of a sexual offense, the specified state of mind is not intended to apply to that element.” Id. at 316, 926 P.2d at 607. This court thus held that “a defendant is strictly liable with respect to the attendant circumstance of the victim’s age in a sexual assault[.]” Id.
The majority does not point to any legislative history remotely similar to the legislative history in Buch. The legislative history does not state that it sought “‘to eliminate the [state of mind] requirement[.]’ ” Id. at 315-16, 926 P.2d at 606-07 (quoting Conf. Comm. Rep. No. 1, in 1972 House Journal, at 1038). Nor does the majority cite to any legislative history that “unequivocally indicates[,]” id. at 316, 926 P.2d at 607, that the legislature intended that no state of mind requirement apply to
2.
The majority attempts to draw a distinction between crimes that fall within the HPC and those that do not, suggesting that the imposition of strict liability as “indefensible” does not apply to those offenses not defined in the HPC. See majority opinion at 629 n. 8. Respectfully, the majority’s suggestion that the requirement of moral culpability is any less applicable because a penal offense is found outside the HPC is not supported by the HPC or its commentary.
Accordingly, the fact that
3.
The majority also asserts that “[t]he legislature is presumed to be aware of judicial constructions ... and it has had abundant opportunities to amend the statute if it intended for [the former DUI statute] and its successor
In United States v. Wells, 519 U.S. 482, 495-96, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997), for example, the Supreme Court suggested that congressional inaction or silence is not a realistic indicator of legislative intent:
[Respondents] contend that Congress has ratified holdings of some of the Courts of Appeals that materiality is an element of § 1014 by repeatedly amending the statute without rejecting those decisions. But the significance of subsequent congressional action or inaction necessarily varies with the circumstances, and finding any interpretive help in congressional behavior here is impossible. Since 1948, Congress has amended § 1014 to modify the list of covered institutions and to increase the maximum penalty, but without ever touching the original phraseology criminalizing “false statement[s]” made “for the purpose of influencing” the actions of the enumerated institutions. We thus have at most legislative silence on the crucial statutory language, and we have “frequently cautioned that ‘[i]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law [.]’ ”
(Emphases added.)17 Moreover, a court should view legislative inaction or silence as evidence of the legislature’s tacit approval only with extreme care, Agency of Northern Cook County v. United States Army Corps of Eng’rs, 531 U.S. 159, 169, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (stating that, “[although we have recognized congressional acquiescence to administrative interpretations of a statute in some situations, we have done so with extreme care”), and should be deemed evidence of such approval only where it is apparent the legislature was indeed aware of the particular statutory construction.18
There is nothing in the legislative history to indicate that the legislature was fully aware of this court’s construction of
D.
1.
The majority’s construction of
“Pathological intoxication” is defined as “intoxication grossly excessive in degree, given the amount of the intoxicant, to which the defendant does not know the defendant is susceptible and which results from a physical abnormality of the defendant.”
Nothing in
VII.
Conceivably, the majority’s holding creates two classes of OVUII offenders, although all would have essentially engaged in the same conduct. There may be instances where two individuals in virtually the same factual circumstances are equally intoxicated. However, one will be able to raise defenses and the other will be held strictly liable. For example, a defendant charged with OVUII under
On the other hand, under the majority’s holding, if an equally intoxicated defendant is charged under
In any event, the majority raises serious consequences for any driver charged under
VIII.
As observed, the legislative history does not indicate that because one is “deemed” intoxicated at a certain BAC level, he or she should not be charged with a culpable state of mind in becoming “intoxicated,” or a culpable state of mind with respect to the other elements of
As stated, I concur in the majority’s holding that a culpable state of mind must be alleged in an
.
(a) A person commits the offense of operating a vehicle trader 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!-]
.
(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:
(3) With .08 or more grams of alcohol per two hundred ten liters of breath[.]
(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:
(4) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.
Although
. In State v. Wheeler, 121 Hawai‘i 383, 386, 391, 219 P.3d 1170, 1173, 1178 (2009) this court held the definition of the term operate, i.e., “to drive or assume actual physical control of a vehicle a vehicle on a public way, street, road, or highway,” created an attendant circumstance element of OVUII.
. The charge against Yamamoto stated as follows:
On or about the 28th day of October, 2009, in the City and County of Honolulu, State of Hawaii, [Yamamoto] did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway while under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty; and/or did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway with .08 or more grams of alcohol per two hundred ten liters of breath, thereby committing the offense of [OVUII], in violation ofSection 29IE-61(a)(1) and/or 291E-61 (a)(3) of the [HRS].
. The questions presented in Petitioners’ Applications were as follows:
1. Was the OVUII charge herein legally sufficient[?]
2. Did the OVUII charge herein “fully define” the offense in “unmistakable terms readily comprehensible to persons of common understanding[?]
3. What are the “essential facts” that must be included in an OVUII charge?
4. What mens rea, if any, is [Respondent] required to prove in an OVUII case?
5. What mens rea, if any, is [Respondent] required to plead in an OVUII complaint?
. At the time,
Resisting arrest. (1) A person commits the offense of resisting arrest if he intentionally prevents a peace officer acting under color of his official authority from effecting an arrest by:
(a) Using or threatening to use physical force against the peace officer or another[.]
Elliott, 77 Hawai‘i at 310 n. 2, 884 P.2d at 373 n. 2 (emphasis and brackets in original).
. It would appear beyond purview that the requisite culpable state of mind is an essential element that must be proven beyond a reasonable doubt except in the rare case where the offense is a strict liability one.
. Although
. The oral argument in this case may be found at http://www.courts.state.hi.us/courts/oraL arguments/archive/oasc 10-0000072 .html at 15:10-16:29.
. It should be noted that the term “essential elements” is from our case law, e.g., Jendrusch, 58 Haw. at 281, 567 P.2d at 1244, and not used in
. A person committed of OVUII for the first time may receive “[n]ot less than forty-eight hours and not more than five days of imprisonment[.]
. The statute in effect at the time,
Driving under the influence of intoxicating liquor. (a) A person commits the offense of driving under influence of intoxicating liquor if: (1) The person operates or assumes actual physical control of the operation of any vehicle while under the influence of intoxicating liquor; or
(2) The person operates or assumes actual physical control of the operation of any vehicle with 0.10 per cent or more, by weight of alcohol in the person’s blood.
. As indicated the breath alcohol content (also, hereinafter, referred to as “BAC”) under
. The issue was “whether the Prosecution may rely on an intoxilyzer test result to prosecute a violation of [HRS]
. The statute at issue in Eastman,
Abuse of a family or household member, and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:
(a) For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and
(b) For a second offense and any other subsequent offense which occurs within one year of the previous offense the person shall be termed a “repeat offender” and serve a minimum jail sentence of thirty days.
. The majority contends that “from Territorial days to the present, [DUI/OVUII law] has not changed much” and thus, “the line of cases holding the [BAC section under the DUI statute] to an absolute offense continues to apply with the same force to the instant appeals.” Majority opinion at 629-30. However, because those cases failed to engage in any sort of analysis with respect to a legislative intent to impose strict liability under the BAC section of the DUI statute, as was done in Eastman and Rushing, those cases should not “continue[ ] to apply.”
. See also Bob Jones Univ. v. U.S., 461 U.S. 574, 600, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983) (“Non-action by Congress is not often a useful guide....”); United States v. Rutherford, 442 U.S. 544, 554 n. 10, 99 S.Ct. 2470, 61 L.Ed.2d 68 (1979) (“To be sure, it may not always be realistic to infer approval of a judicial or administrative interpretation from congressional silence alone.”) First Nat’l City Bank v. United States, 214 Ct.Cl. 585, 557 F.2d 1379, 1384 (1977) (acknowledging “that the doctrine of legislative acquiescence is at best only an auxiliary tool for use in interpreting ambiguous statutory provisions”).
. See also U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121, 137, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (Although we are chary of attributing significance to Congress’ failure to act, a refusal by Congress to overrule an agency’s construction of legislation is at least some evidence of the reasonableness of that construction, particularly where the administrative construction has been brought to Congress’ attention through legislation specifically designed to supplant it.”); See also Rutherford, 442 U.S. at 554, 99 S.Ct. 2470 (explaining that deference to an agency’s interpretation of a statute is particularly appropriate when “an agency’s statutory construction has been ’fully brought to the attention of the public and the Congress,’ and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned”); FDA v. Brown & Williamson, 529 U.S. 120, 155-56, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (“Indeed, this is not a case of simple inaction by Congress that purportedly represents its acquiescence in an agency’s position [;] rather “Congress has enacted several statutes addressing the particular subject of tobacco and health, creating a distinct regulatory scheme for cigarettes and smokeless tobacco” such that “it is clear that Congress’ tobacco-specific legislation has effectively ratified the FDA’s previous position that it lacks jurisdiction to regulate tobacco).
.
. I also concur in the majority’s conclusion that “[t]he distinction between ‘general intent’ and ‘specific intent’ crimes ... no longer applies.” Majority opinion at 625. This jurisdiction has abandoned distinctions between general and specific intent “in favor of four defined culpable states of mind[,]” State v. Kalama, 94 Hawai‘i 60, 65, 8 P.3d 1224, 1229 (2000), i.e., intentional, knowing, reckless and negligent. As discussed, because
I also agree that