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State v. O''Brien4/16/1985
[5 HawApp Page 492] Defendant Daniel R. O'Brien (Defendant) seeks to overturn his district court conviction of driving under the influence of intoxicating liquor (DUI) on constitutional grounds. He asserts that Hawaii Revised Statutes (HRS) § 291-4 is constitutionally infirm for
vagueness and that he was deprived of his fundamental right to a trial by jury. We hold that Defendant was entitled to a jury trial and reverse.
On May 26, 1983, Defendant was issued a DUI citation. He refused to submit to a breath or blood test to determine the alcoholic content of his blood. Prior to the commencement of trial on October 7, 1983, the district court denied Defendant's demand for a jury trial.
Upon conviction of the DUI offense, Defendant was sentenced under HRS § 291-4(b)(2) because of a prior DUI conviction in 1980. He was fined $500 and his driver's license was suspended for a period of one year.
I. VAGUENESS
A. HRS § 291-4(a)(2)
Defendant contends that HRS § 291-4(a)(2) which provides that a DUI offense is committed if a "person operates . . . any vehicle with 0.10 per cent or more, by weight of alcohol in the person's blood," together with HRS § 291-5(a) which makes such weight of alcohol in the person's blood within three hours of the alleged violation competent evidence in a criminal prosecution to prove the offense, is constitutionally defective for vagueness. We perceive his argument to be that HRS § 291-4(a)(2) fails to notify a potential violator of the condition it proscribes because such person cannot determine by his senses whether his blood-alcohol level is 0.09 per cent and legal or 0.10 per cent and illegal. We need not analyze and discuss this contention.
Since Defendant refused to submit to a breath and blood test and, consequently, was charged and convicted under HRS § 291-4(a)(1) for operating a vehicle "while under the influence of intoxicating liquor," he has no standing to constitutionally challenge HRS § 291-4(a)(2). The general rule is that "a party does not have standing to challenge an ordinance or statute on the ground that it may be applied unconstitutionally to others not before the court." State v. Bloss, 64 Haw. 148, 151, n.6, 637 P.2d 1117, 1121, n.6 (1981). Defendant does not fall within the limited exceptions to this rule "where important First Amendment rights are being asserted or where individuals not parties to a suit stand to lose by its outcome and yet have no effective avenue of preserving their rights themselves." State v. Kaneakua, 61 Haw. 136, 142-43, 597 P.2d 590, 594 (1979). See also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed.2d 362 (1982).
Moreover, as indicated by well-reasoned decisions in other jurisdictions, Defendant's assertion of constitutional vagueness regarding HRS § 291-4(a)(2) would not prevail on the merits. See Burg v. Municipal Court for Santa Clara Judicial District, 35 Cal. 3d 257, 673 P.2d 732, 198 Cal. Rptr. 145 (1983), cert. denied, U.S. , 104 S. Ct. 2337, 80 L. Ed.2d 812 (1984); Roberts v. State, 329 So.2d 296 (Fla. 1976); Greaves v. State, 528 P.2d 805 (Utah 1974); State v. Franco, 96 Wash.2d 816, 639 P.2d 1320 (1982).
B. HRS §§ 2
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