State v. Cummings

¶1Dissenting Opinion by

¶2in which NAKAYAMA, J., joins.

¶3I respectfully disagree with the majority’s holding that the DUI charge in this case was fatally defective because it “failed to allege a *146critical facet of a material element of DUI, pursuant to HRS § 291-4(a)(l), which the prosecution was required to prove beyond a reasonable doubt[.]” Majority Opinion (Maj. op.) at 144, 63 P.3d at 1114 (emphasis added). In my view, the omission of the phrase “in an amount sufficient to impair the person’s normal mental faculties or ability to care for oneself and guard against casualty” did not render the charge deficient. I, therefore, respectfully dissent.

¶4This court recently reiterated that we “will interpret a charge as a whole, employing practical considerations and common sense.” State v. Sprattling, 99 Hawai'i 312, 319, 55 P.3d 276, 283 (2002) (emphasis added) (citations omitted). In the present case, Cummings was charged with, inter alia, “op-erat[ing] or assuming] actual physical control of the operation of a vehicle while under the influence of intoxicating liquor,” in violation of HRS § 291-4(a)(l). Unlike the majority, I believe the charge was sufficient to give Cummings notice of all the essential elements that the prosecution was required to prove beyond a reasonable doubt. Moreover, the charge, in my view, set forth “with reasonable clarity all essential elements of the crime intended to be punished[ ] and fully define[d] the offense in unmistakable terms readily comprehensible to persons of common understanding[.]” See Maj. op. at 143, 63 P.3d at 1113 (citing State v. Merino, 81 Hawai'i 198, 214, 915 P.2d 672, 688 (1996)).

¶5As the United States District Court of Appeals for the Thud Circuit has noted, Government of Virgin Islands v. Steven, 134 F.3d 526, 528 (3rd Cir.1998) (parallel citations omitted). As far back as 1929—only a couple of decades after the introduction of the Ford Model T,—the Minnesota Supreme Court recognized that “the expression ‘under the influence of intoxicating liquor’ is in common, eveiyday use by the people” and “[w]hen used in reference to the driver of a vehicle on public highways, it appears to have a well-understood meaning.” State v. Graham, 176 Minn. 164, 222 N.W. 909, 911 (1929). Given the common understanding of the term today, I fail to see how omission of the “magical” phrase “in an amount sufficient to impair the person’s normal mental faculties or ability to care for oneself and guard against casualty” could be viewed as omitting a “critical component” or a “critical facet,” see Maj. op. at 144, 63 P.3d at 1114, much less an essential element of the offense charged.

courts have recognized for over half a century that driving “under the influence” is commonly understood to mean driving in a state of intoxication that lessens a person’s normal ability for clarity and control. See, e.g, Weston v. State, [49 Ariz. 183,] 65 P.2d 652, 654 (1937); State v. Graham, [176 Minn. 164,] 222 N.W. 909, 911 (1929). This common understanding is consistent with the obvious purpose of drank driving statutes; i.e., to prevent people from driving unsafely due to an alcohol-induced diminished capacity. Because driving “under the influence” is commonly understood, it therefore puts citizens on fair notice of proscribed conduct.

¶6Prior to 1991, HRS § 291-4(a)(l) did not include the language that the majority now considers essential to state the offense of drunk driving as defined by the statute. See 1990 Haw. Sess. Laws 188. Clearly, however, under the statute as it existed prior to its amendment, the conduct charged constituted a valid criminal offense. The question, then, is whether the inclusion, of the additional language operated to alter the offense as it existed prior to the amendment. The majority obviously believes so. I do not.

¶7As amended, and in its entirety, HRS § 291-4(a)(l) provided as follows:

§ 291-4 Driving under the influence of intoxicating liquor, (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 iiifluenee 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[.]

¶8Id. (emphasis added). The legislative history fails to explain why the law was amended to include a statutory definition of the term *147“under the influence of intoxicating liquor,” and there is nothing to indicate that the legislature intended, by virtue of the amendment, to add essential elements or “critical components” that had, theretofore, been missing. Rather, the legislature, in my view, merely intended to codify the term “under the influence” as it was commonly understood, which is supported by the plain language of the statute itself. By employing the phrase “meaning that” as a predicate to the statutory definition, it is clear that the amendment adds nothing to what previously existed, except it clarifies that the added language is synonymous with the term that immediately precedes it. In other words, the amendment merely reiterates the common understanding of what it means to be “under the influence.”

¶9The legislature’s clarification was perhaps a response to this court’s decision in State v. Mata, 71 Haw. 319, 789 P.2d 1122 (1990), issued shortly before the adoption of the statutory amendment. In Mata, the defendant was convicted of violating HRS § 291-4(a)(1) and, on appeal, claimed that the instructions given to the jury were erroneous.1Id. at 331, 789 P.2d at 1128. We agreed, noting that the trial judge “equated the statutory term ‘under the influence of intoxicating liquor’ with the ‘slightest perceptible, appreciable or noticeable degree’ of impairment and instructed that impairment included ‘any interference with’ or ‘lessening of ‘alertness’, ‘any weakening or slowing up of the action of the motor nerves’, or ‘any interference with the coordination of the sensory or motor nerves’ which may cause sluggishness.” Id.

¶10In Mata, we declined to read into HRS § 291-4(a)(l) the existing statutory definition of “under the influence of intoxicating liquor” as it was codified in Chapter 2812 because that chapter dealt with the sale of liquor and liquor establishments, as opposed to traffic violations, and therefore was not in pari materia. Id. at 330, 789 P.2d at 1128. Our unwillingness to adopt the magical phrase from an unrelated statutory framework, however, did not hinder us from recognizing, even in the absence of the statutory definition at issue, that the pre-1991 version of HRS § 291—4(a)(1) required the prosecution to prove more than the “slightest perceptible, appreciable or noticeable degree” of “diminution of the function of the motor nerves” in order to secure a conviction. Id. at 331, 789 P.2d at 1129.

¶11Accordingly, based on the foregoing, I would conclude that the charge, as given, set forth with reasonable' clarity all of the essential elements necessary to state an offense *148under HRS § 291-4(a)(l) in a way that was readily comprehensible to a person of common understanding. Moreover, it was sufficient to provide Cummings with notice of all the essential elements that the prosecution was required to prove beyond a reasonable doubt. I would, therefore, hold that the trial court had subject matter jurisdiction and would affirm Cummings’s conviction of and sentence for DUI.