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Loevsky v. Carter5/4/1989
e of intoxicating liquor if:
(1) The person operates or assumes actual physical control of the operation of any vehicle while under the influence of intoxicating liquor[.]
Instruction 15, in contrast, reads (emphasis added):
The statute of the State of Hawaii provides that: No person shall operate or assume physical control of the operation of a motor vehicle while under the influence of intoxicating liquor.
While instruction 15 mandates that "No person shall[,]" HRS § 291-4(a)(1) is prefaced as follows: "A person commits the offense of driving under the influence of intoxicating liquor if . . . ." Therefore, HRS § 291-4(a)(1) merely codifies one of the methods available in establishing whether a driver was "under the influence of intoxicating liquor[.]" See also HRS § 291-5 (1985) (evidence of intoxication). And while this jurisdiction follows the rule that the violation of a statute may constitute evidence of negligence, see, e.g., Ono v. Applegate , 62 Haw. 131, 612 P.2d 533 (1980); Michel v. Valdastri, Ltd. , 59 Haw. 53, 575 P.2d 1299
(1978), and the jury was properly instructed to this effect, we find that instruction 15's mandatory language gives an inconsistent and misleading impression that the violation of HRS § 291-4(a)(1) constitutes negligence per se .
Furthermore, we are troubled by the use of a DUI penal standard in the context of this civil personal injury action. See HRE Rules 402 and 403.
It is error to instruct the jury on a state of facts not supported or warranted by the evidence adduced at trial. Gelber v. Sheraton-Hawaii Corp. , 49 Haw. 327, 417 P.2d 638 (1966); Tanuvasa v. City & County , 2 Haw. App. 102, 626 P.2d 1175 (1981).
Here, no competent evidence was adduced at trial to establish that Laurie was operating the motorcycle while under the influence of intoxicating liquor in violation of HRS § 291-4(a)(1). Accordingly, no statutory violation resulted.
Based on the foregoing reasoning, we hold that the circuit court erred in giving instruction 15.
III.
Conclusion
The Second Amended Judgment is vacated and the case is remanded for a new trial.
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