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State v. Shimabukuro12/24/2002
to similarly situated defendants or a situation where the plain language of the statute provides a definition of the term "conviction." Nor are we dealing with a situation where there is clear legislative intent that: (1) the term "conviction" be defined as a prior valid DUI conviction; or (2) a departure from the more commonly used definition of "conviction" was intended. We are dealing with a situation where (1) the more commonly used definition of "conviction," as this court has employed in the past, is a guilty verdict or judgment entered upon a guilty verdict, (2) the legislature enacted HRS § 291-4.4 for the purpose of " eter people from continuing to drive under the influence of alcohol" and " educ the risk of traffic fatalities that are alcohol related by removing extremely dangerous drivers from the road," Hse. Stand. Comm. Rep. No. 49, in 1995 House Journal, at 1046, and (3) employing the commonly used definition of "conviction" achieves the legislature's purpose in enacting HRS § 291.4.4.
Justice Acoba does not state how he is using the definition "prior valid DUI conviction," how the use of that definition effects the legislature's intent, or why a departure from the more commonly used definition of "conviction" is consistent with the legislative purpose behind HRS § 291.4.4. Justice Acoba's definition permits a repeat DUI offender to collaterally attack all prior DUI convictions in the face of an indictment under HRS § 291-4.4, or, as in this case, to withdraw a plea of no contest two years after pleading, for the purpose of escaping the scope of HRS § 291-4.4. This makes a mockery out of the separate habitual DUI offense that the legislature created and is something surely the legislature did not intend. As such, for purposes of HRS § 291-4.4, I would hold that the term "conviction" be defined in its more common or technical sense, as a guilty verdict or judgment entered upon a guilty verdict.
Utilizing this definition of "conviction," Shimabukuro had three prior DUI convictions at the time of the HRS § 291-4.4 offense. It is important to note that it was not until two years later, after being indicted with habitual DUI, that Shimabukuro filed a motion to withdraw his earlier plea of no contest to the April 4, 1997 DUI conviction and that the court granted his motion and set aside the sentence. This type of collateral attack on convictions renders HRS § 291-4.4 meaningless, inasmuch as a defendant could collaterally attack a conviction at any time after an indictment under HRS § 291-4.4 for the purpose of escaping the scope of the statute. I am confident that the legislature did not intend to allow a drunk driver to escape penalties for repeated offenses in this manner.
As HRS § 291-4.4 is not a recidivist statute and Shimabukuro had three prior DUI convictions when he, for the fourth time, operated or assumed actual physical control of the operation of a vehicle while under the influence of intoxicating liquor, his conviction should stand. Shimabukuro's multiple convictions for DUI indicate that he is the type of repeat offender that the legislature intended to include within the scope of HRS § 291-4.4. For the foregoing reasons, I dissent.
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