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State v. Engcabo12/18/1989
sentence of HRS § 291-7 superfluous and a nullity. However, reading the second
sentence to require the State to prove that the drug used by a defendant is a drug enumerated on the specified schedules is not absurd nor impracticable.
The trial court, in agreeing with the State's interpretation of HRS § 291-7, relied on legislative history which indicated that the legislature considered and rejected provisions for blood drug testing under the statute. Apparently, the trial court believed that without a blood drug test it would be impossible to prove what type of drug was involved.
Even though proof of a specific drug may be made more difficult and circumstantial, we do not agree that such proof is impossible. For example, in this case the State could have tested any residue in the syringe. Also, it could have engaged an expert to testify as to the behavioral effects of a specific drug. The absence of provisions for blood drug testing does not render the requirement imposed by the second sentence of HRS § 291-7 impossible to meet.
The word "drug" is a broad generic term which can include prescribed and over-the-counter drugs. Therefore, the State's position can lead to an absurd and unintended conviction under HRS § 291-7. It is obvious that the legislature did not intend to give "drug" a broad and uncertain meaning under HRS § 291-7.
Furthermore, we note that HRS Chapter 329 has a Schedule V, HRS § 329-22 (1985), list of drugs which the legislature chose not to include in HRS § 291-7. We find no indication that this exclusion was unintentional. When the legislature exercises caution and deliberation in enumerating what constitutes an offense, this court will not expand the reach of the statute. State v. Kanoa , 67 Haw. 476, 691 P.2d 1169 (1984).
We hold that the language of HRS § 291-7 clearly requires the State to prove beyond a reasonable doubt that the defendant was under the influence of a specific drug enumerated in schedules I through IV of HRS chapter 329 in order to obtain a conviction thereunder.
Engcabo's conviction is reversed.
Disposition
Engcabo's conviction is reversed.
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