77 Hawai'i 476, State v. Gray
| Decision Date | 19 January 1995 |
| Docket Number | No. 16838,16838 |
| Citation | 888 P.2d 376 |
| Parties | 77 Hawai'i 476 STATE of Hawai'i, Plaintiff-Appellee, v. Michael A. GRAY, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. State v. Palpallatoc, 71 Haw. 178, 787 P.2d 214 (1990), held that in order to satisfy the good faith defense, the borrower of a vehicle must at least inquire whether or not the vehicle is insured. Act 167, 1990 Haw.Sess.Laws 328, which became effective on June 19, 1990, invalidated the precedent of State v. Palpallatoc. State v. Bolosan, ---Hawai'i ----, --- P.2d ---- (App., No. 15993, May 16, 1994), cert. granted, 76 Hawai'i 453, 879 P.2d 558 (1994), held that Act 167 did not retroactively invalidate the precedent of State v. Palpallatoc.
2. Act 167 amended Hawai'i Revised Statutes (HRS) § 431:10C-117 by authorizing the sentencing court the discretion to convert fines to community service. This amendment has retroactive application. HRS § 431:10C-117(a)(2) (Supp.1992) mandates a $1,000 fine for the first offense of Operating a Vehicle Without No-Fault Insurance, HRS § 431:10C-104 (Supp.1992), and it does so "[n]otwithstanding any provision of the Hawai'i Penal Code[.]" Thus, the mandate to impose a $1,000 fine supersedes the parts of HRS § 706-641 that allow the courts the discretion to decide whether to sentence a defendant to pay a fine and to decide the amount of the fine. However, the mandate to impose a $1,000 fine does not Amie L. Thompson, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellant.
supersede the other parts of HRS §§ 706-641 and -642 such as the parts that allow the courts the discretion to decide the time to pay and the method of payment.
Randal Q. Cockett, Deputy Prosecuting Atty., City and County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.
Before BURNS, C.J., and WATANABE and ACOBA, JJ.
Defendant Michael A. Gray (Gray) appeals the district court's January 20, 1993 judgment finding him guilty of Operating a Vehicle Without No-Fault Insurance, Hawai'i Revised Statutes (HRS) § 431:10C-104 (1987 Special Pamphlet), suspending his license for three months, and ordering him to pay a $1,000 fine.
Gray contends that the district court (1) erroneously rejected his good faith and reasonable belief defenses when it imposed the burden of proof on Gray and decided that Gray had not satisfied his burden of proof; (2) erroneously found sufficient evidence that Gray acted with a reckless state of mind; and (3) erroneously ordered Gray to pay a $1,000 fine instead of imposing community service or before it determined that he was able to pay the fine. We vacate the order requiring Gray to pay a $1,000 fine. In all other respects, we affirm.
At the January 20, 1993 district court trial, the parties stipulated that (1) Gray had borrowed a vehicle from a friend; (2) Gray observed his friend driving the vehicle on previous occasions and assumed that it was insured; (3) thereafter, on September 29, 1989, Gray was driving his friend's vehicle in the area of Ala Wai Boulevard and Launiu Street when a Honolulu police officer stopped him after observing the vehicle make an unsafe lane change; and (4) Gray did not show proof of no-fault insurance coverage and was cited for, inter alia, Operating a Vehicle Without No-Fault Insurance, HRS § 431:10C-104.
Gray asserted the good faith and reasonable belief defenses stated in HRS § 431:10C-117 (Supp.1992). The district court found him guilty, suspended his driver's license for a period of three months, and ordered him to pay a fine of $1,000. Defense counsel immediately requested community service in lieu of the fine. The court responded:
The district court erroneously categorized the good faith defense as an affirmative defense rather than as a defense. This error was inconsequential, however, because the evidence on the record does not mandate consideration of the good faith defense.
HRS § 701-115(2) (1985) states that "[n]o defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented." Gray contends the district court erred in deciding that he did not present evidence of the facts necessary to support his good faith and reasonable belief defenses. On this issue, we affirm the district court.
The statute in effect when Gray's citation was issued on September 29, 1989 stated in relevant part as follows:
§ 431:10C-117 Penalties.
* * * * * *
(a)(2) Notwithstanding any provision of the Hawai'i Penal Code, each violation shall be deemed a separate offense and shall be subject to a fine of not less than $100 nor more than $5,000 which shall not be suspended; provided that if the person is convicted of not having had a no-fault policy in effect at the time the citation was issued, the fine shall be $1,000 for the first offense and a minimum of $3,000 for each subsequent offense.
[77 Hawai'i 477] In addition to the fine in this paragraph, ..., either the driver's license of the driver and of the registered owner shall be suspended for six months or they shall be required to maintain proof of financial responsibility pursuant to section 287-21(2), (3), or (4) and keep a nonrefundable no-fault insurance policy in force for six months; ...; and provided further that any person cited under this section shall have an opportunity to present a good faith defense, including but not limited to lack of knowledge or proof of insurance
Act 348, § 1, 1989 Haw.Sess.Laws 1016.
On February 16, 1990, State v. Palpallatoc held that in order to satisfy the good faith defense, the borrower of a vehicle must at least inquire whether or not the vehicle is insured.
Act 167, 1990 Haw.Sess.Laws 328, which became effective on June 19, 1990, disapproved of Palpallatoc's interpretation of the good faith defense and added a reasonable belief defense to HRS § 431:10C-117(a)(2). As amended, HRS § 431:10C-117(a)(2) states in relevant part:
§ 431:10C-117 Penalties.
* * * * * *
(a)(2) Notwithstanding any provision of the Hawai'i Penal Code, each violation shall be deemed a separate offense and shall be subject to a fine of not less than $100 nor more than $5,000 which shall not be suspended; provided that if the person is convicted of not having had a no-fault policy in effect at the time the citation was issued, the fine shall be $1,000 for the first offense and a minimum of $3,000 for each subsequent offense; provided however, that upon request, the judge may grant community service in lieu of the fine, of not less than 75 hours and not more than 100 hours for the first offense, and not less than 200 hours nor more than 275 hours for the second offense; the judge may grant community service in lieu of the fine for subsequent offenses at the judge's discretion.... In addition to the fine in this paragraph, ..., either the driver's license of the driver and of the registered owner shall be suspended for three months or they shall be required to maintain proof of financial responsibility pursuant to section 287-21(2), (3), or (4) and keep a nonrefundable no-fault insurance policy in force for six months; ...; and provided further that any person cited under this section shall have an opportunity to present a good faith defense, including but not limited to lack of knowledge or proof of insurance. The general penalty provision of this section shall not apply to: ...
(C) Any operator of a borrowed motor vehicle if the operator holds a reasonable belief that the subject vehicle is insured.
Gray was tried on January 20, 1993. On May 16, 1994, State v. Bolosan, --- Hawai'i ----, --- P.2d ---- (App., No. 15993, May 16, 1994), cert. granted, 76 Hawai'i 453, 879 P.2d 558 (1994), expressed our inability "to discern, in either the language of Act 167 or its legislative history, any expressed or obvious intention by the legislature that the new standard established for a good faith defense be applied retroactively." Id. slip op. at 16, --- Hawai'i at ----, --- P.2d at ----. Because Act 167's 1990 amendments pertaining to the good faith defense and the reasonable belief defense did not apply on September 29, 1989, the reasonable belief defense was not available to Gray and the controlling law with respect to his good faith defense was State v. Palpallatoc, 71 Haw. 178, 787 P.2d 214 (1990). See Bolosan, slip op. at 14-17, --- Hawai'i at ----, --- P.2d at ----.
Palpallatoc held that "in order to satisfy the good faith defense of lack of knowledge, the borrower of a vehicle must at least inquire whether or not the vehicle is insured." Id. at 182, 787 P.2d at 216. Evidence that Gray borrowed the vehicle from a friend, that Gray had seen the friend drive the vehicle on previous occasions, and that Gray assumed that the vehicle was insured, was insufficient to prove the good faith defense. Thus, the district court did not erroneously impose a burden of proof on Gray and the
[77 Hawai'i 478] State was not required to negative Gray's alleged good faith.
Gray's claim that there was insufficient evidence that he acted with a reckless state of mind is without merit.
In State v. Lesher, 66 Haw. 534, 669 P.2d 146 (1983), the Hawai'i Supreme Court stated, "[b]y operating the vehicle in question without ascertaining that there was a valid, current no-fault card in the vehicle, appellant acted recklessly[.]" Lesher, 66 Haw. at 537, 669 P.2d at 148. Even if Gray, in his words, "assumed [in] good faith that the car was insured[,]" that fact does not qualify as "ascertaining" the existence of a valid, current no-fault card.
Finally, Gray challenges the district court's decision not to convert the $1,000 fine to community service and its imposition of a $1,000 fine without first determining Gray's ability to pay.
Gray contends...
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