State v. Shimabukuro12/24/2002
ACOBA, J.; WITH LEVINSON, J., CONCURRING SEPARATELY, WITH WHOM MOON, C.J., JOINS; AND NAKAYAMA, J., DISSENTING, WITH WHOM RAMIL, J., JOINS
In a conviction for habitually driving under the influence of intoxicating liquor or drugs (Habitual DUI), Hawaii Revised Statutes (HRS) § 291-4.4 (Supp. 1998), the requisite prior driving under the influence (DUI) convictions must be valid. That was not the case with respect to the April 11, 2000 judgment of conviction and sentence entered by the circuit court of the first circuit (the court) adjudging Defendant-Appellant Shane Shigeo Shimabukuro (Defendant) guilty of Habitual DUI. Accordingly, the aforementioned judgment must be vacated and the case remanded.
I.
On June 6, 1999, Defendant was charged in Count I of an indictment for Habitual DUI, in Count II for driving while his license was suspended, revoked, or restricted, and in Count III for disregarding roadways laned for traffic. Since Defendant appeals only his conviction on Count I, we affirm the convictions on Count II and Count III.
On January 3, 2000, one of Defendant's three prior DUI convictions was vacated because it was "unconstitutionally obtained." Subsequently, on January 18, 2000, Defendant, who at that point had only two prior DUI convictions, filed a motion to dismiss his Habitual DUI charge, on the ground that he had less than the number of convictions necessary for charging that offense. The court, relying on State v. Lobendahn, 71 Haw. 111, 784 P.2d 872 (1989), denied Defendant's motion. Shortly thereafter, Defendant entered into a conditional plea of guilty allowing him to challenge the court's denial of his motion to dismiss. On April 11, 2000, the court sentenced Defendant to a five-year term of probation with a term of imprisonment of thirty-four (34) days, revocation of his driver's license for the duration of the probation period, and a fine of $250.00. On April 16, 2000, Defendant filed his notice of appeal.
II.
On appeal, Defendant essentially makes three contentions with respect to his motion to dismiss. First, he argues that, as of January 3, 2000, he lacked the required three prior DUI convictions necessary to charge him with Habitual DUI. Hence, according to Defendant, the court erred in denying the motion to dismiss. Second, Defendant maintains that Lobendahn is distinguishable because HRS § 134-7 (1985), the statute in that case, converts a lawful act (possessing a firearm and ammunition) into an unlawful act solely by reason of a person's status, whereas, "by contrast, HRS § 291-4.4 applies to the offense of driving while intoxicated, which is per se a criminal act." Third, construing HRS § 291-4.4 as a recidivist statute, Defendant contends that "the term 'conviction' as used in HRS §291-4.4 must be contemplated to mean a 'constitutionally valid conviction.'"
The prosecution counters that culpability under HRS § 291-4.4 is measured by the DUI convictions Defendant had at the time of his arrest, not at the time of trial. It relies on Lobendahn, maintaining that in the instant case, " s in Lobendahn, the Legislature would not want to encourage a person formerly convicted of [three] or more DUI offenses to gamble by driving DUI in the hope that he or she could defend against the felony offense by having the prior DUI convictions set aside." The prosecution does not address Defendant's second argument. As to Defendant's third contention, the prosecution argues, relying on the legislative history of HRS § 291-4.4, that that statute involves a status offense and is not a recidivist statute.
III.
In relevant part, HRS § 291-4.4 states that the offense is committed if duri
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