State v. Domingues
| Decision Date | 22 February 2005 |
| Docket Number | No. 25208.,25208. |
| Citation | 106 Haw. 480,107 P.3d 409 |
| Parties | STATE of Hawai'i, Plaintiff-Appellant v. Kyle Evan DOMINGUES, Defendant-Appellee. |
| Court | Hawaii Supreme Court |
Mark Yuen, deputy prosecuting attorney, on the briefs, for the plaintiff-appellant, State of Hawai'i.
James S. Gifford, deputy public defender, on the briefs, for the defendant-appellee, Kyle Evan Domingues.
The plaintiff-appellant State of Hawai'i [hereinafter, "the prosecution"] appeals from the order of the circuit court of the first circuit, the Honorable Sandra A. Simms presiding, entered on June 21, 2002, dismissing without prejudice the indictment against the defendant-appellee Kyle Evan Domingues.
On appeal, the prosecution contends: (1) that the circuit court erred in dismissing the indictment against Domingues, inasmuch as the prosecution properly charged Domingues under the statute that was in effect on the date Domingues allegedly committed the offense, (2) that Hawai'i Revised Statutes (HRS) §§ 291E-61(a) and 291E-61(b)(4) (Supp.2001)1 "substantially reenacted" HRS §§ 291-4.4(a)(1) and 291-4.4(a)(2) (Supp.2000),2 (3) that citation to the repealed statute was consistent with the ex post facto rule, and (4) that assuming arguendo HRS § 291-4.4 was incorrectly cited in the indictment, such a mistake was a "formal defect that did not prejudice or mislead [Domingues] to his prejudice."
We hold that, as to the description of the offense, HRS § 291E-61, which relates to operating a vehicle under the influence of an intoxicant, substantially reenacted HRS § 291-4.4, which pertained to the offense of habitually driving under the influence of intoxicating liquor or drugs. Accordingly, we vacate the circuit court's June 21, 2002 order dismissing without prejudice the indictment against Domingues and remand the present matter to the circuit court for further proceedings.
On March 21, 2002, an O'ahu grand jury returned an indictment against Domingues charging him with the following offenses: (1) habitually driving under the influence of intoxicating liquor (Count I), in violation of HRS § 291-4.4, see supra note 2; (2) driving without lights (Count II), in violation of HRS § 291-25(a) (1993); and (3) driving while license suspended or revoked (Count III), in violation of HRS § 286-132 (Supp.2001).3 Specifically, Count I alleged that:
On or about the 9th day of August 2001, in the City and County of Honolulu, State of Hawai'i, KYLE EVAN DOMINGUES did operate or assume actual physical control of the operation of any vehicle while under the influence of intoxicating liquor, meaning that he was under the influence of intoxicating liquor in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty, and had been convicted three or more times for driving under the influence offenses during a ten-year period, and/or did operate or assume actual physical control of the operation of any vehicle while 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, and had been convicted three or more times for driving under the influence offenses during a ten year period, thereby committing the offense of Habitually Driving Under the Influence of Intoxicating Liquor or Drugs, in violation of Sections 291-4.4(a)(1) and/or 291-4.4(a)(2) of the Hawai'i Revised Statues.
(Emphases added).
On June 4, 2002, Domingues filed a motion to dismiss the indictment in open court. In relevant part, the motion maintained that, because HRS §§ 291-4.4(a)(1) and (a)(2) had been repealed prior to the indictment date, Domingues should not be charged thereunder. On June 4, 2002, the circuit court granted the motion and on June 21, 2002, entered an order dismissing the indictment without prejudice. On June 26, 2002, the prosecution filed a motion for reconsideration and the circuit court denied the motion that same day. On July 12, 2002, the prosecution filed a timely notice of appeal.
"`Whether an indictment [or complaint] sets forth all the essential elements of [a charged] offense ... is a question of law,' which we review under the de novo, or `right/wrong,' standard." State v. Cordeiro, 99 Hawai'i 390, 403, 56 P.3d 692, 705 (2002) (quoting State v. Merino, 81 Hawai'i 198, 212, 915 P.2d 672, 686 (1996) (quoting State v. Wells, 78 Hawai'i 373, 379, 894 P.2d 70, 76 (1995) (citations omitted))).
"[T]he interpretation of a statute ... is a question of law reviewable de novo." State v. Arceo, 84 Hawai'i 1, 10, 928 P.2d 843, 852 (1996) (quoting State v. Camara, 81 Hawai'i 324, 329, 916 P.2d 1225, 1230 (1996)
(citations omitted)). See also State v. Toyomura, 80 Hawai'i 8, 18, 904 P.2d 893, 903 (1995); State v. Higa, 79 Hawai'i 1, 3, 897 P.2d 928, 930 (1995); State v. Nakata, 76 Hawai'i 360, 365, 878 P.2d 699, 704 (1994)....
Gray v. Administrative Director of the Court, 84 Hawai'i 138, 144, 931 P.2d 580, 586 (1997) (some brackets added and some in original). See also State v. Soto, 84 Hawai'i 229, 236, 933 P.2d 66, 73 (1997)
. Furthermore, our statutory construction is guided by established rules:
) (brackets and ellipsis points in original) (footnote omitted). This court may also consider "[t]he reason and spirit of the law, and the cause which induced the legislature to enact it ... to discover its true meaning." HRS § 1-15(2)(1993). HRS § 1-16 (1993).
State v. Kaua, 102 Hawai'i 1, 7-8, 72 P.3d 473, 479-480 (2003) (quoting State v. Rauch, 94 Hawai'i 315, 322-23, 13 P.3d 324, 331-32 (2000) (quoting State v. Kotis, 91 Hawai'i 319, 327, 984 P.2d 78, 86 (1999) (quoting State v. Dudoit, 90 Hawai'i 262, 266, 978 P.2d 700, 704 (1999) (quoting State v. Stocker, 90 Hawai'i 85, 90-91, 976 P.2d 399, 404-05 (1999) (quoting Ho v. Leftwich, 88 Hawai'i 251, 256-57, 965 P.2d 793, 798-99 (1998) (quoting Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Hawai'i 217, 229-30, 953 P.2d 1315, 1327-28 (1998))))))).
The prosecution argues that prosecuting Domingues "under the repealed statute was permissible[,] as the new statute no[t] only encompasses the same conduct as the repealed statute[,] but also imposes the same punishment upon conviction." We agree.
HRS §§ 291-4.4(a)(1) and (a)(2) were in effect on the date that Domingues allegedly committed the offense; however, those statutes were no longer in effect on the date of his indictment. Effective January 1, 2002, the legislature repealed HRS § 291-4.4 and enacted HRS §§ 291E-61(a) and (b)(4).4 See 2000 Haw. Sess. L. Act 189,5 §§ 21-22 at 404.
In Queen v. Ah Hum, 9 Haw. 97, 98 (1893), the Supreme Court of the Republic of Hawai'i stated that "the repeal of a penal statute operates as a remission of all penalties for violation of it committed before its repeal, and a release from prosecution therefor after said repeal unless there be either a clause in the repealing statute, or a provision of some other statute, expressly authorizing such prosecution." As such, "all prosecutions under the repealed [a]ct should thereafter" cease, unless the legislature has included a general savings clause or a statute provides otherwise. Id.
In the present matter, the prosecution concedes that Act 189 did not include a savings clause and that HRS § 1-11 (1993),6 "the general savings clause for criminal statutes[,] did not apply in this case[,] as the case was pending investigation, not prosecution[,] after the repeal of HRS § 291-4.4...."
Domingues, quoting the California Supreme Court in In re Dapper, 71 Cal.2d 184, 77 Cal.Rptr. 897, 454 P.2d 905, 907 (1969), argues that "[t]he law is well-established that the outright repeal of a criminal statute without a savings clause bars prosecution for violations of the statute committed before the repeal." (Internal quotation marks omitted). To explain the rationale of the foregoing rule, the California Supreme Court stated:
It is based on presumed legislative intent, it being presumed that the repeal was intended as an implied legislative pardon for past acts. This rule results, of course, in permitting a person who has admittedly committed a crime to go free, it being assumed that the Legislature, by repealing the law making the act a crime, did not desire anyone in the future whose conviction had not been reduced to final judgment to be punished under it. But this rule only applied in its full force where there is an outright repeal, and where there is no other new or old law under...
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