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State v. Tiedemann4/27/1990
slature created a statutory inference. In other words, from the proved underlying fact that the defendant's blood alcohol level was 0.10 percent or more within three hours after the defendant's alleged DUI offense, there is an inference that the defendant was under the influence of intoxicating liquor (or his blood alcohol level was 0.10 percent or more) at the time of the alleged offense (while operating a vehicle). However, we held that "HRS § 291-5(a) provides for a permissible inference." Id. at , 782 P.2d at 896 (emphasis added).
Hawaii Rules of Evidence (HRE) Rule 306(a)(3) provides that " henever a presumption against the accused is submitted to the jury, the court shall instruct the jury that, if it finds the facts beyond a reasonable doubt, it may infer the presumed fact but is not required to do so." (Emphasis added.) We have used the terms "permissible presumption" and "inference" interchangeably. State v. Arakaki, 7 Haw. App. 48, 51-52 n.5, 744 P.2d 783, 785 n.5 (1987). State v. Pimental, 61 Haw. 308, 311, 603 P.2d 141, 143 (1979), places the onus on the trial court to clearly instruct the jury "that any inference which could have been drawn by it was merely permissive."
Here, the trial court only read to the jury, almost verbatim, the provisions of HRS § 291-5(a). It failed to instruct the jurors that if they found from the evidence that Defendant's blood alcohol level was 0.10 percent or more within three hours from the time she drove the van, they could, but were not required to, infer therefrom that she was under the influence of intoxicating liquor when she was operating the van. Without such instruction, the jurors could have thought that, because the proved underlying fact was "competent evidence," they were required to infer therefrom that Defendant was under the influence of intoxicating liquor while driving.
The State of Hawaii counters that Defendant consented to the giving of the instruction in question and did not request further clarifying instructions. Therefore, the State asserts that Hawaii
Rules of Penal Procedure (HRPP) Rule 30(e) precludes Defendant from raising this issue. However, plain errors affecting substantial rights "may be noticed although they were not brought to the attention of the [trial] court." HRPP Rule 52(b). See State v. Grindles, 70 Haw. 528, 530, 777 P.2d 1187, 1189 (1989); State v. Fox, 70 Haw. 46, 55-56, 760 P.2d 670, 675-76 (1988).
Here, the lack of clarifying instructions relating to the statutory inference under HRS § 291-5(a) constituted plain error affecting the substantial rights of Defendant. Therefore, the DUI conviction under HRS § 291-4(a)(2) must be vacated.
III.
Defendant argues that "it is impossible to determine to what extent the jury relied upon the statutory inference regarding evidence of intoxication to determine guilt under HRS § 291-4(a)(1)[.]" Therefore, she contends that her conviction pursuant to HRS § 291-4(a)(1) is tainted and also must fall. We agree.
IV.
Accordingly, we vacate the judgment of conviction and remand the case for a new trial.
Disposition
Judgment vacated and case remanded.
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