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State v. Young3/30/2005
ked or in violation of the restrictions placed on the person's license. The period of suspension or revocation shall commence upon the release of the person from the period of imprisonment imposed pursuant to this section.
HRS § 291-4.5(a) (Supp. 2000) (emphases added). This statute was repealed on January 1, 2002. See 2000 Haw. Sess. L. Act 189, § 33 at 432. HRS § 291E-62, entitled "Operating a vehicle after license and privilege have been suspended or revoked for operating a vehicle under the influence of an intoxicant; penalties[,]" (emphases added) took effect on that same date. See 2000 Haw. Sess. L. Act 189, §§ 23, 41 at 427, 433. That statute provided,
o person whose license and privilege to operate a vehicle have been revoked, suspended, or otherwise restricted pursuant to part III or section 291E-61, or to part VII or part XIV of chapter 286 or section 200-81, 291-4, 291-4.4, or 291-7 as those provisions were in effect on December 31, 2001, shall operate or assume actual physical control of any vehicle:
(1) In violation of any restrictions placed on the person's license; or
(2) While the person's license or privilege to operate a vehicle remains suspended or revoked.
HRS § 291E-62(a) (Supp. 2002) (emphases added).
The repealed HRS § 291-4.5(a) prohibited "operat a vehicle upon the highways of this State" while having a license "revoked, suspended, or otherwise restricted pursuant to chapter 286 or section 291-4 or 291-7." HRS § 291E-62(a) differs from § 291-4.5(a) in at least three fundamental respects. First, it expands the class of persons that fall within the ambit of proscription to include those who had their licenses suspended or revoked under statutes not originally enumerated in HRS § 291-4.5, such as HRS §§ 291E-61, 200-81, and 291-4.4. Second, it broadens the scope of the offense by encompassing the acts of "operat orassum actual physical control of any vehicle," as opposed to "operat a motor vehicle." (Emphasis added.) It is evident that the latter act, stated in the alternative by the legislature, would not necessarily encompass "operation" in the ordinary sense. Finally, it also expands the scope of the offense beyond that of the repealed statute by encompassing situations where the defendant "operate or assume actual physical control of any vehicle," presumably at any location, and not just "upon the highways."
Thus, HRS § 291E-62(a) does more than merely "secure clarification, a new arrangement of clauses, delete superseded provisions[.]" In re Dapper, 454 P.2d at 908. It makes substantive changes to the definition of the offense of driving while having a license suspended or revoked for DUI. Applying the In re Dapper standard, these two statutes are not "virtually identical," and, hence, HRS § 291-4.5(a) was not "substantially reenacted" by HRS § 291E-62(a). Id. at 910.
VI.
Defendant also maintains that the sentencing provisions of HRS § 291-4.5(b) and HRS § 291E-62(b) differ inasmuch as, under the new statute, "revocation is mandatory[.]" In this regard, the repealed statute, HRS § 291-4.5(b) stated,
(b) Any person convicted of violating this section shall be sentenced as follows:
(1) For a first offense, or any offense not preceded within a five-year period by a conviction under this section:
(A) A term of imprisonment at least three consecutive days but not more than thirty days;
(B) A fine not less than $250 but not more than $1,000; and
(C) License suspension or revocation for an additional year;
(2) For an offense which occurs within five years of a prior conviction u
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