Respondent/Defendant-Appellant Carson Lalepa Wheeler was convicted of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawai'i Revised Statutes (HRS) § 291E-61(a)(l) and (b)(l)(2007).
1
Prior to the start of trial,
Wheeler appealed his conviction to the Intermediate Court of Appeals (ICA). The ICA concluded in its March 6, 2009 Summary Disposition Order (SDO) that the district court erred in denying the motion to dismiss, because the charge failed to allege that Wheeler operated a vehicle upon a public way, street, road, or highway at the time of the offense.
State v. Wheeler,
No. 29149,
The State of Hawaii (State) petitioned this court for a writ of certiorari to review the ICA’s judgment. In its application, the State contends that the oral charge was sufficient because it alleged that Wheeler had “oper-at[ed]” the vehicle, and “operate” is defined in HRS § 291E-1 (2007) as operating a vehicle on a public way, street, road, or highway. The State also argues that there is an inconsistency between the ICA’s SDO and this court’s decisions in
State v. Ruggiero,
For the reasons set forth below, we conclude that the operation of the vehicle on a public way, street, road, or highway is an essential element of the offense of OVUII, and that the oral charge did not adequately allege that element of the offense. Moreover, this outcome does not conflict with this court’s decisions in Ruggiero and Kekuewa. Accordingly, we affirm the ICA’s judgment.
I. Background
A. Oral Charge/Motion to Dismiss
On March 18, 2008, the deputy prosecuting attorney (“prosecution” or “State”) orally charged 3 Wheeler with OVUII, in violation of HRS § 291E-61(a)(l), as follows:
[Wheeler], on or about May 31st, 2007, in the City and County of Honolulu, State of Hawaii, you did operate or assume actual physical control of a motor vehicle whileunder the influence of alcohol in amounts sufficient to impair your normal mental faculties and your ability to care for yourself and guard against casualty, and thereby committing the offense of Operating a Vehicle Under the Influence of Intoxicants in violation of 291E-61(a)(l) of the Hawaii Revised Statutes.
This being your first offense without any prior convictions for either 291E-61 and/or 291E ... in the last five years....
When the prosecution asked Wheeler whether he understood the charge, Wheeler’s counsel indicated that he and Wheeler did not understand the charge because “[t]he prosecution may be using certain terms of art, legally defined terms of art, that we don’t understand” and asked to have the charge stated using “common vernacular” so that they could understand “each material element of the offense[.]” In response, the prosecution argued that the “State has just enunciated each and every element of the charge.” Thereafter, Wheeler moved “to dismiss on the grounds [that the charge] fails to state [an] offense.” The district court denied the motion, and asked Wheeler if he wished to have the State “paraphrase for explanatory purposesf.]”
Wheeler’s counsel indicated that he was not asking for the prosecution to paraphrase the charge, and reiterated that he was asking that the charge be stated using “common vernacular” because Wheeler would not be aware of the “statutory definition of certain terms of art that the prosecution may or may not have been using in reading the charge.”
In response, the court stated as follows:
I don’t know what you’re talking about ... when you say common language. I’m at a complete loss as to what you’re referring to. Gan you be more specific?
Wheeler’s counsel declined on the grounds that he “d[idn’t] wanna give the prosecution any[]more hints than [he’d] already given them” because “[his] job isn’t to come in here and teach ‘em how to charge a case.” The court then stated as follows:
No, but, you know, I think they’ve done the legal requisite by tracking the statute. The statute sets forth the legal parameters and all elements and the prosecutor has done that.
The court then asked Wheeler if he understood the charge, and Wheeler replied “no,” because “everyone is talking,” so the court had the prosecution restate the charge slowly. When the State asked Wheeler if he understood the charge, Wheeler’s counsel instructed him to “[s]ay no.” The court asked if the prosecution spoke “too fast” to which Wheeler’s counsel responded
I’ll speak on [Wheeler’s] behalf. It’s our belief the prosecution is attempting to use a term of art, or they may or may not be, and we can’t tell ‘em, we don’t wanna speculate a particular term of art which is specifically statutorily defined in Chapter 291, and that they may be attempting to substitute the use of such a term where actually specifying in common language that someone like [Wheeler] can understand. So, bottom line is just put ditto marks under all of our prior objections. We move to dismiss the charge at this point, fails to state an offense.
The court responded that it was unable to discern the nature of the objection and indicated that “without any further specification, I will take the position that [Wheeler] does understand what he’s being charged with and enter a plea of not guilty and ... go forward with trial.” Wheeler’s counsel’s “final hint” to the prosecution and the court was that his objection related to a “verb,” but the court said it was still unable to discern the nature of the objection, and proceeded with a non-jury trial.
B. Trial/Sentencing
Honolulu Police Department (HPD) Officer Jeremy Franks testified that on May 31, 2007 he was conducting speed enforcement monitoring on Moanalua Freeway. He observed a white van approaching him driving faster than the other traffic in the area. Franks aimed his “LTI 2020 Laser”
4
at the
Officer Franks informed Wheeler, the driver, that he had been speeding and asked for Wheeler’s license, registration, and insurance. According to Officer Franks, Wheeler at first “kine'a ignored [him],” but eventually provided the requested items. Officer Franks testified that during that time he observed that Wheeler “had slurred speech, [a] strong odor of alcohol coming from his breath as he spoke to [him], [and] red and glassy eyes.” Officer Franks requested that Wheeler participate in a field sobriety test, and Wheeler agreed.
Wheeler staggered a little bit as he exited the vehicle. Officer Franks then explained the instructions of the field sobriety test. Before administering the test, Officer Franks asked Wheeler a list of medical questions which included whether Wheeler was taking any medication, was under the care of a doctor, and if he was a diabetic or an epileptic. Although Wheeler indicated that he was a diabetic, Officer Franks testified that Wheeler did not show any signs that would indicate that Wheeler was going to faint or go into a coma during his contact with him.
Officer Franks then provided instructions and a demonstration of the “walk and turn” test before administering it. The results indicated that Wheeler was impaired because “he was unable to follow instructions and unable to perform the field sobriety test as instructed.” Officer Franks then administered the “one-leg stand test.” Officer Franks testified that Wheeler “did not perform the [one-leg stand] test as instructed” and “did not follow instructions.”
Officer Franks concluded that Wheeler was impaired and placed him under arrest. Officer Franks testified that he smelled a “strong odor of alcoholic-type beverage” “[f]rom [his] first contact” with Wheeler to “after placing [him] under arrest.” Another officer took Wheeler to the Pearl City Police Station.
HPD Officer Boyce Sugai testified that he observed Wheeler at the Pearl City Police Station with “red, watery eyes” and a “very strong odor of alcohol on his breath.” Officer Sugai read Wheeler a one-page implied consent form (HPD-396K). 5 The form offered Wheeler the opportunity to take a breath test or blood test, or refuse to take either test. Wheeler initialed indicating that he refused to take either test. Officer Sugai then read Wheeler an additional four-page implied consent form (HPD-396B1-B4). Wheeler initially agreed to take both a breath and blood test, but later changed his mind and refused to take either.
At the conclusion of the State’s ease-in-chief, Wheeler’s counsel moved for judgment of acquittal and asked the court to dismiss the case “based on the fact that the case as charged fails to state an offense.” In support of his motion, Wheeler’s counsel argued that the “oral charge must be worded in a manner such that the nature and cause of the accusation could be understood by a person of common understanding.” Wheeler’s counsel argued that the charge was defective because the State failed to allege that the offense had taken place on a “public road, street or highway.” Wheeler’s counsel explained that the word “operate” in the common vernacular means “to operate whether you’re doing it on private property or public property,” but that under HRS chapter 291E the term has a special statutory definition
The district court denied the motion, ruling that the charge was sufficient because it contained a “recitation of the statutory language!.]” Wheeler’s counsel rested without presenting any evidence.
The district court found Wheeler guilty as charged, stating that:
!0]n May 31, 2007, in the evening hours, in violation of HRS Section 291E-61(a)(l), such that you did operate your vehicle while under the influence of alcohol in an amount that was sufficient to impair your normal faculties or ability to care for yourself and guard against casualty. Therefore, I find that you are guilty as charged.
The court imposed a sentence of a minimum of fourteen hours of alcohol abuse rehabilitation, a $250 fine, a $25 neurotrauma assessment, a $107 driver education assessment, a $30 criminal injuries compensation fund assessment, substance abuse assessment and any treatment deemed necessary thereby. 6 The court suspended execution of the sentence for thirty days pending the submission of a notice of appeal. The court filed a Notice of Entry of Judgment and/or Order and Plea/Judgment on April 1, 2008. Wheeler timely filed a Notice of Appeal on April 28, 2008.
C. ICA Appeal
In his September 5, 2009 Opening Brief, Wheeler argued that the district court erred when it (1) denied his motion to dismiss because the oral charge failed to allege an “essential fact”—that Wheeler operated a vehicle on a public road, street or highway; (2) denied his motion for judgment of acquittal, pursuant to HRPP Rule 29; and (3) convicted him of OVUII because the State failed to allege a material element of the offense thereby making the charge fatally defective. The crux of Wheeler’s argument was that the oral charge was deficient because “the location of the driving at issue was an essential fact that the State was required to both plead and prove to obtain a conviction.” Accordingly, Wheeler requested that the ICA “reverse and vacate” the district court’s judgment of conviction and sentence.
The State argued that the charge was sufficient because it had stated the material elements of OVUII by “traek[ing] the statutory language of HRS § 291E-61(a)(l)” and “including] details identifying the venue, jurisdiction, and date on which [Wheeler] allegedly committed the [OVUII] offense!.]”
The State further argued in its answering brief that the term
“[ojpemte
was not merely a generic or descriptive word, but a statutorily defined legal term of art specifying the
conduct
element of HRS § 291E-61(a)(l).” The State concluded that “the inclusion of ‘operate’ without the component parts of the statutory definition in the oral charge did not render the charge legally insufficient for failure to state an element.” Moreover, the State contended that in
State v.
Ruggiero,
Finally, the State argued that “[t]he evidence in the record ... reveals [Wheeler] had other information, which may be considered, that supports the conclusion [Wheeler] understood the location of the offense was [on] ‘public’ property.” The State pointed out that Wheeler had already had his license revoked by the ADLRO. Since that process requires proof that Wheeler “operated [a] vehicle while under the influence of an intoxi-cante,]” “it is hardly believable the defense would know [Wheeler’s] license had been revoked by ‘ADLRO,’ but not know the factual basis upon which the decision was made.”
In its March 6, 2009 SDO, the ICA held in relevant part as follows:
The oral charge in this ease was insufficient. The charge failed to include a plain, concise and definite statement of each ofthe essential facts constituting the offense of OVUII because it failed to allege that Wheeler operated a vehicle on a public road, street or highway, an attendant circumstance of the offense. See HRPP Rules 5(b) and 7(a); HRS § 702-205; State v. Jendrusch, 58 Haw. 279 ,567 P.2d 1242 (1977) (oral charge must sufficiently allege all of the essential elements of the offense charged; defective charge constitutes denial of due process). The District Court erred by denying Wheeler’s motions. Inasmuch as the charge was defective, the District Court was without jurisdiction in this matter. See State v. Sprattling,99 Hawai'i 312 , 327,55 P.3d 276 , 291 (2002).
Therefore, the District Court’s April 1, 2008 Judgment is vacated and the matter remanded to the District Court with instructions to dismiss without prejudice.
State v. Wheeler,
No. 29149,
The ICA entered its judgment on April 15, 2009, vacating the district court’s April 1, 2008 judgment and remanding the matter to the district court with instructions to dismiss without prejudice. The State timely filed its Application on July 13, 2009. Wheeler filed a response on July 24,2009. 7
II. Standards of Review
A. Certiorari
The acceptance or rejection of an application for a writ of certiorari is discretionary. HRS § 602-59(a) (Supp.2008). In deciding whether to accept an application, this court reviews the decisions of the ICA for (1) grave errors of law or of fact or (2) obvious inconsistencies in the decision of the ICA with that of the supreme court, federal decisions, or its own decisions and whether the magnitude of such errors or inconsistencies dictate the need for further appeal. HRS § 602-59(b).
B. Sufficiency of the Charge
“Whether [a charge] sets forth all the essential elements of [a charged] offense ... is a question of law[,]” which we review under the de novo, or “righVwrong,” standard.
State v. Wells,
C.Statutory Construction
Statutory interpretation is “a question of law reviewable de novo.” This court’s construction of statutes is guided by established rules:
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 indis-tinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.
When there is ambiguity in a statute, “the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” Moreover, the courts may resort to extrinsic aids in determining legislative intent, such as legislative history, or the reason and spirit of the law.
Citizens Against Reckless Dev. v. Zoning Bd. of Appeals of the City & County of Honolulu,
III. Discussion
A. The State was required to allege that Wheeler operated a vehicle upon a public way, street, road or highway
The State contends that this court has “departed from strict technical rules construing the validity of an oral charge” when
1. Location is an element of the charge of GVUII
This court has stated that
It is well settled that an “accusation must sufficiently allege all of the essential elements of the offense charged,” a requirement that “obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]” State v. Jendrusch,58 Haw. 279 , 281,567 P.2d 1242 , 1244 (1977). Put differently, the sufficiency of the charging instrument is measured, inter alia, by “whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he [or she] must be prepared to meet[.]” State v. Wells,78 Hawai'i 373 , 379-80,894 P.2d 70 , 76-77 (1995) (citations and internal quotation marks omitted) (brackets in original). “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.” Jendrusch,58 Haw. at 281 ,567 P.2d at 1244 (citations omitted). 8
State v. Merino,
Wheeler was charged under HRS § 291E-61(a)(1), which provides in relevant part:
§ 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:
(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!.]
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The term “operate” is defined in the “[definitions” section of chapter 291E as “to drive or assume actual physical control of a vehicle upon a public way, street, road, or highway or to navigate or otherwise use or assume physical control of a vessel underway on or in the waters of the State.” HRS § 291E-1 (2007) (emphasis added). There is no definition provided for “assumefs] actual physical control.” 9
Thus, in order to commit the offense of OVUII, a person must either drive or assume actual physical control of a vehicle. HRS § 291E-61(a)(l). Under the analytical framework established by the Model Penal Code, this is the conduct element of the offense. HRS § 702-205 (1993) (the material elements of an offense are “conduct,” “attendant circumstances,” and “results of conduct”);
10
HRS § 701-118(4) (1993) (defining
Although the Model Penal Code does not define “attendant circumstance,” we have recognized that “an attendant circumstance is essentially a circumstance that ‘exist[s] independently of the [actor’s conduct].’ ”
State v. Aiwohi,
Applying these principles here, we conclude that HRS § 291E-1 establishes an attendant circumstance of the offense of OVUII, i.e., that the defendant’s conduct occur “upon a public way, street, road, or highway.” This is clearly the ease for a defendant who drives a vehicle while intoxicated, since HRS § 291E-1 expressly defines “operate” as encompassing the driving of a vehicle “upon a public way, street, road, or highway.”
While there is a potential ambiguity in the statute with regard to defendants who engage in the conduct of “assuming] actual physical control” of a vehicle, we conclude that the attendant circumstance established in HRS § 291E-1 applies to those defendants as well. Because “assumes actual physical control” is not defined in HRS § 291E-1, it could be argued that a defendant who engages in that specific conduct violates HRS § 291E-61 whether or not the conduct occurs on a public roadway. However, interpreting the statute in that manner would render the reference to “assumes actual physical control” in HRS § 291E-l’s definition of “operate” a nullity, which is an outcome that we must strive to avoid.
See Potter v. Hawai'i Newspaper Agency,
Other jurisdictions that have statutes penalizing driving a motor vehicle while intoxicated on a public street or highway consider the location of the proscribed conduct to be an element of the offense.
See e.g., Fowler v. State,
Accordingly, the operation of a vehicle on a public way, street, road, or highway is an attendant circumstance of the offense of OVUII, and is therefore an element of the offense. See HRS § 702-205.
2. The State’s failure to allege that Wheeler operated or assumed actual physical control of his vehicle “upon a public way, street, road, or highway” rendered the oral charge insufficient
Although the oral charge here tracked the language of HRS § 291E-61, the failure of the charge to allege that Wheeler was driving his vehicle upon a public way, street, road, or highway at the time of the offense rendered the charge deficient.
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.”
State v. Jendrusch,
However, “where the definition of an offense ... includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species .... [and] descend to particulars.”
State v. Israel,
The State argues that it did not need to allege the component parts of the statutory definition of “operate.” In support of that argument, the State cites to
Hamling v.
The definition of obscenity, however, is not a question of fact, but one of law; the word ‘obscene,’ as used in 18 U.S.C. § 1461, is not merely a generic or descriptive term, but a legal term of art. The legal definition of obscenity does not change with each indictment; it is a term sufficiently definite in legal meaning to give a defendant notice of the charge against him. Since the various component parts of the constitutional definition of obscenity need not be alleged in the indictment in order to establish its sufficiency, the indictment in this case was sufficient to adequately inform petitioners of the charges against them.
Id.
at 118-19,
While the Supreme Court in
Hamling
did not require that the component elements of the “constitutional definition” of obscenity be pleaded in an indictment,
13
it is significant that the term “obscenity” itself provided a person of common understanding with some notice of the nature of the prohibited conduct. In contrast, “operate” has been statutorily defined in HRS § 291E-1 in a manner that does not comport with its commonly understood definition. The word “operate” has been defined as “to perform a function, or operation, or produce an effect,”
Black’s Law Dictionary
1091 (6th ed.1990), or “to perform a funetion[,] exert power or influence [or] to produce an appropriate effect[,]”
Merriam-Webster’s Collegiate Dictionary
814 (10th ed.1993), and does not geographically limit where the conduct must take place. The statutory definition of “operate,” however, requires that the conduct take place “upon a public way, street, road, or highway.” HRS § 291E-1. Therefore, the term “operate” as used within HRS § 291E-61 is neither “unmistakable” nor “readily comprehensible to persons of common understanding.”
Merino, 81
Hawai'i at 214,
This court’s analysis of charges under the Hawaii constitution has focused on whether the language actually used in the charge provides fair notice to the defendant.
See, e.g., Israel,
In some cases, such as
Cummings,
there may be a fine line between what is fairly implied in the language of the charge and what is not. However, the instant charge is well beyond that line. The use of the phrase “operate” did not provide adequate notice to Wheeler that the State was required to prove that his operation of the vehicle occurred on a public way, street, road, or highway.
See, e.g., Israel,
Moreover, none of the other information in the charge provided Wheeler with fair notice of that element. The charge here did not contain any specification of where the alleged offense occurred, other than that it took place in the City and County of Honolulu.
See State v. Baker,
In its brief to the ICA, the State argued that this court looks to all of the information provided to a defendant in determining whether his right to be informed has been violated. According to the State, the record establishes that Wheeler had already had his license revoked by the ADLRO in a process
In both
Sprattling
and
Treat,
this court recognized the general principle that in determining whether a defendant has been adequately informed of the charges against him, the appellate court can consider other information in addition to the charge that may have been provided to the defendant during the course of the case up until the time defendant objected to the sufficiency of the charges against him. In
Sprattling,
this court affirmed Sprattling’s conviction for third-degree assault even though the word “bodily” had been omitted
from
the oral charge. Sprattling did not challenge the sufficiency of the oral charge at trial, but instead raised the issue for the first time on appeal.
Id.
at 315-16,
Unlike Sprattling, the defendant in
Treat
objected at the trial level to the sufficiency of the indictment charging him with theft in the first degree.
In the present case, Wheeler’s counsel immediately objected to the sufficiency of the State’s oral charge.
14
Accordingly, this court may only consider information supplied to Wheeler prior to his timely, pre-trial objection in determining whether his right to be informed of the nature and cause of the accusation against him has been violated.
See Sprattling,
For the foregoing reasons, we conclude that the oral charge was insufficient.
B. This court’s holdings in State v. Rug-giero and State v. Kekuewa do not require a contrary result
The State contends that
Ruggiero
and
Ke-kuewa
“established precedent” which supports the State’s argument that the oral charge was sufficient. Specifically, the State notes that the charging language used in both of those cases was very similar to that
However, this court’s holdings in
Ruggiero
and
Kekuewa
do not require a result different from that reached by the ICA. In
Rug-giero,
the defendant was convicted of OVUII, HRS § 291E-61(a)(l),
15
on January 29, 2003.
On April 19, 2004, the prosecution charged Ruggiero by complaint with, inter alia, OVUII in violation of HRS § 291E-61 (Supp. 2003) as follows:
That on or about the 10th day of March, 2004, in the Division of Wailuku, County of Maui, State of Hawai[‘]i, ADAM M. RUG-GIERO did operate or assume actual physical control of a vehicle while under the influence of an intoxicant meaning that he was 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, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant in violation of Section 291E-61 of the Ha-wai[‘]i Revised Statutes.
Id.
at 230 n. 3,
Ruggiero did not contest the sufficiency of the complaint at trial, and was tried and convicted of the charge.
Id.
at 229-30,
On appeal, Ruggiero argued that the district court erred in basing his sentence on the commission of a second offense ■within a five-year period because HRS § 291E-61 is a purely recidivist statute which required that
This court then considered whether Rug-giero could be sentenced as a first-time offender, an outcome which, according to the plurality, Ruggiero had “conced[ed]” was appropriate.
Id.
at 240,
the complaint can reasonably be construed to charge the crime of DUI as a first offense, in violation of HRS § 291E-61(a) and (b)(1). It plainly states the elements set forth in HRS § 291E-61(a) (“operates or assumes actual physical control of a vehicle”) and -61(a)(1) (“[wjhile 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”).
Id.
at 240,
Accordingly, this court remanded the matter to the district court for entry of a judgment of conviction for operating a vehicle under the influence of an intoxicant with no prior offenses in violation of HRS § 291E-61(a) and (b)(1), and for resentencing in accordance therewith.
Id.
at 241,
In Kekuewa, the defendant was charged with, inter alia, OVUII in violation of HRS § 291E-61, as follows:
[Ojn or about the 15th day of April 2004, in the City and County of Honolulu, State of Hawaii, island of Oahu, you did operate or assume actual physical control of a vehicle while under the influence of alcohol in an amount sufficient to impair your normal mental faculties or the ability to care for yourself and guard against casualty thereby violating Section 291E-61 of the Hawaii Revised Statutes for your second offense.
At trial, Kekuewa did not contest the sufficiency of the charge. Id. The district court found Kekuewa guilty of OVUII and Kekue-wa appealed. Id.
On appeal, Kekuewa argued, inter alia, that he did not have adequate notice of the offense of OVUII because the prosecution failed to properly allege the attendant circumstances of Kekuewa’s prior conviction.
Id.
at 416,
This court accepted the State’s application for writ of certiorari,
id.,
and held, consistent with its ruling in
State v. Domingues,
Thus, Ruggiero and Kekuewa focused on whether a charge that failed to adequately allege that the defendant had a prior OVUII conviction within the past five years was nevertheless sufficient to charge a first-offense OVUII. Neither defendant raised the issue of whether the proscribed conduct must take place “upon a public way, street, road, or highway” and, if so, whether it had been adequately alleged in the charge. As a result, this court did not address that issue in Ruggiero or Kekuewa.
Contrary to the argument of the State, for purposes of
stare decisis,
the holdings of those cases are limited to the issues that were actually decided by the court, and are not dispositive of the distinct issue presented here.
Webster v. Fall,
Moreover,
Ruggiero
and
Kekuewa
are factually distinguishable from the circumstances of this case. Unlike Wheeler, neither of those defendants made a timely objection to the sufficiency of the OVUII charge in the trial court. Ruggiero never challenged the sufficiency of the complaint, including on appeal, and, according to the plurality, even conceded that he was subject to sentencing as a first-time offender.
Ruggiero,
The distinction is significant since this court has applied different principles depending on whether or not an objection was timely raised in the trial court. Under the
“MottafWells
post-conviction liberal construction rule,” we liberally construe charges challenged for the first time on appeal.
See Merino,
Thus, because Wheeler timely objected to the oral charge in the district court, the Motta/Wells analysis is not applicable here. 19 This additional distinction between the circumstance of this ease and Ruggiero and Kekuewa further rebuts the State’s suggestion that these eases are controlling here.
IV. CONCLUSION
We affirm the ICA’s April 15, 2009 judgment.
Notes
. HRS § 291E-61 (2007) provides, in pertinent part, as follows:
§ 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:
(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.
(b) A person committing the offense of operating a vehicle under the influence of an intoxicant shall be sentenced as follows without possibility of probation or suspension of sentence:
(1) Except as provided in [paragraph] (2), for the first offense, or any offense not preceded within a five-year period by a conviction for an offense under this section or section 291E-4(a):
(A)A fourteen-hour minimum substance abuse rehabilitation program, including education and counseling, or other comparable program deemed appropriate by the court;
(B) Ninety-day prompt suspension of license and privilege to operate a vehicle during the suspension period, or the court may impose, in lieu of the ninety-day prompt suspension of license, a minimum thirty-day prompt suspension of license with absolute prohibition from operating a vehicle and, for the remainder of the ninety-day period, a restriction on the license that allows the person to drive for limited work-related purposes and to participate in substance abuse treatment programs;
(C) Any one or more of the following:
(i) Seventy-two hours of community service work;
(ii) Not less than forty-eight hours and not more than five days of imprisonment; or
(iii) A fine of not less than $150 but not more than $1,000; and
(D) A surcharge of $25 to be deposited into the neurotrauma special fund[J
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. The Honorable Gerald H. Kibe presided.
. Prior to July 1, 2008, an oral charge was sufficient and the State was under no obligation to set forth the charge in a written complaint. See Hawaii Rules of Penal Procedure (HRPP) Rules 5(b)(1) and 7(d) (2008) (noting that a written complaint in OVUII cases would be required).
. Officer Franks testified that the LTI 2020 is used to measure speed, that he received four hours of training in the use of the device, and that prior to his shift on May 31, 2007, he con ducted four tests on the laser to ensure that it was working properly.
. The HPD-396K form read in part:
Pursuant to chapter 29IE, Hawaii Revised Statutes (HRS), Use of Intoxicants While Operating a Vehicle, you are being informed of the following:
1. _ Any person who operates a vehicle upon a public way, street, road, or highway or on or in the waters of the State shall be deemed to have given consent to a test or tests for the purpose of determining alcohol concentration or drug content of the per-sonas breath, blood, or urine as applicable.
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Wheeler initialed in the blank space provided.
. Wheeler’s counsel informed the court that Wheeler had already had his license revoked by the administrative driver's license revocation office (ADLRO) so there was no need to impose a license suspension.
. Wheeler’s response raises essentially the same arguments that he asserted on appeal to the ICA. His response did not challenge the specific relief ordered by the ICA, i.e., vacating and remanding to the district court with instructions to dismiss without prejudice.
. We have also noted that an insufficient oral charge implicates the requirement that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation!)]”
Sprattling,
. Cases from other jurisdictions have interpreted similar language as not requiring any movement of the vehicle and encompassing situations such as when an intoxicated defendant is found in a parked vehicle with the keys in the ignition.
See e.g., State v. Kelton,
.HRS § 702-205. Elements of an Offense. The elements of an offense are such (1) conduct, (2) attendant circumstances, and (3) results of conduct, as:
(a) Are specified by the definition of the offense, and
(b) Negative a defense (other than a defense based on the statute of limitations, lack of venue, or lack of jurisdiction).
. In 2000, the legislature enacted what was subsequently codified as chapter 29IE, which became effective January 1, 2002. See 2000 Haw. Sess. Laws Act 189, §§ 23 and 41, at 407-430, 433. The purpose for adding the new chapter was to "consolidate, for purposes of uniformity and consistency, where appropriate, the provisions relating to operating a vehicle while using an intoxicant.” See 2000 Haw. Sess. Laws Act 189, § 22, at 406-07. In doing so, the legislature repealed an earlier DUI law, HRS § 291-4 (Supp.2000), and enacted HRS § 291E-61. See 2000 Haw. Sess. Laws Act 189, §§ 30 and 41, at 432, 433.
Prior to the adoption of HRS chapter 29IE, HRS § 291-4 defined the offense of Driving Under the Influence of Intoxicating Liquor as follows:
(a) A person commits the offense of driving under the 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, meaning that the person concerned is under the influence of intoxicating liquor in an amount sufficient to impair the person’s normal mental faculties or ability to care for oneself and guard against casualty; or
(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.
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The former HRS chapter 291 contained no definition for the term "operate,”
see
HRS § 291-1 (1993), and HRS § 291-4 on its face made no distinction between whether the offense occurred on a public road or on private land. Accordingly, under HRS § 291-4, an individual could be found guilty of driving under the influence anywhere in the State of Hawai'i.
See State v. Watson,
. Title 18 U.S.C. § 1461 provided in pertinent part, "Every obscene, lewd, lascivious, indecent, filthy, or vile article, matter, thing, device, or substance ... [i]s declared to be nonmailable matterf.]”
See Hamling, 418 U.S.
at 99 n. 8,
. As articulated by the court in
Miller v. California,
The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest ...; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
See Hamling,
. Although timely made, it could be argued that Wheeler’s motion to dismiss was insufficient because it did not adequately state “the grounds upon which it [was] made.”
See
HRPP Rule 47(a);
see also United States v. Crowley,
. At the time, HRS § 291E-61 (Supp.2002) provided in relevant part that:
(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;
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(b) A person committing the offense of operating a vehicle under the influence of an intoxicant shall be sentenced as follows without possibility of probation or suspension of sentence:
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(2) For an offense that occurs within five years of a prior conviction for an offense under this section ... by:
(A) Prompt suspension of license ... for a period of one year ...;
(B) Either one of the following:
(i) Not less than two hundred forty hours of community service work; or
(ii) Not less than five days but not more than fourteen days of imprisonment ... ’
(C)A fine of not less than $500 but not more than $1,500[.]
. In 2003, HRS § 291E-61(c) was amended to add the underscored language:
Notwithstanding any other law to the contrary, any:
(1) Conviction under this section ...:
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shall be considered a prior conviction for the purposes of imposing sentence under this section. Any judgment on a verdict or a finding of guilty, a plea of guilty or nolo contendere, or an adjudication in the case of a minor, that at the time of the offense has not been expunged by pardon, reversed, or set aside shall be deemed a prior conviction under this section.
Ruggiero,
. In a concurring and dissenting opinion, Justice Nakayama and Chief Justice Moon agreed with the plurality that "HRS §§ 291E-61(a) and (b)(2)-(3) (Supp.2004) must be construed as delineating separate status offenses,” but dissented with the majority’s conclusion that “HRS § 29IE—61 (b)(1) also describes attendant circumstances (i.e., essential elements).”
Ruggiero,
. Justice Acoba dissented, noting that "the offense listed in 29IE-61(b)(1) cannot be ‘included’ in the purportedly greater offense in 291E-61(a)
because subsection (a) itself merely describes OVUII conduct and does not set forth
any
offense at all.”
Id.
at 436,
. Accordingly, we do not address whether the application of that analysis would require a different result in the circumstances of this case, if the objection was not timely made.