219 P.3d 1170 (Hawai'i 2009), 29149, State v. Wheeler

Docket Nº:29149
Citation:219 P.3d 1170, 121 Hawai'i 383
Opinion Judge:RECKTENWALD, J.
Party Name:STATE OF Hawai'i, Petitioner/Plaintiff-Appellee, v. CARSON LALEPA WHEELER, Respondent/Defendant-Appellant
Attorney:Donn Fudo, Deputy Prosecuting Attorney, for petitioner/plaintiff-appellee. Timothy I. Mac Master, for respondent/defendant-appellant Carson Lalepa Wheeler.
Case Date:November 17, 2009
Court:Supreme Court of Hawai'i

Page 1170

219 P.3d 1170 (Hawai'i 2009)

STATE of Hawai‘i, Petitioner/Plaintiff-Appellee,


Carson Lalepa WHEELER, Respondent/Defendant-Appellant.

No. 29149.

Supreme Court of Hawai‘i.

November 17, 2009

Donn Fudo, Deputy Prosecuting Attorney, for petitioner/plaintiff-appellee.

Timothy I. Mac Master, for respondent/defendant-appellant Carson Lalepa Wheeler.




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)(1) and (b)(1)(2007). 1 Prior to the start of trial, Wheeler moved to have the District Court of the First Circuit (district court) 2 dismiss the oral charge, on the grounds that it did not allege all of the material elements of the offense. The district court denied that motion.

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, 2009 WL 568319, at *1 (Haw.App. March 6, 2009). The ICA accordingly vacated and remanded to the district court with instructions to dismiss without prejudice. Id.

The State of Hawai'i (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 " operat[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, 114 Hawai'i 227, 160 P.3d 703 (2007) and State v. Kekuewa, 114 Hawai'i 411, 163 P.3d 1148 (2007).

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)(1), 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 while under 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)(1) 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 purposes[.]"

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. Can 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 license plate of the vehicle, and the screen displayed a result of seventy-one miles per hour. Officer Franks testified that the speed limit on Moanalua Freeway is fifty miles per hour. Officer Franks got on his motorcycle and followed the van onto the H-1 Freeway and activated his lights. The vehicle came to a stop by the Aiea Heights overpass.

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 case-in-chief, Wheeler's counsel moved for judgment of acquittal and asked the court to...

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