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State v. Carmichael8/29/2002
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Finally, if the test were to be applied to refer to the amount appropriate for a particular defendant's use, it would require testimony involving the defendant's past drug use or habits. For example, in the instant case, the defense's expert witness stated, "depending upon how much a person has used it, it will take more to get the same effect." Introduction of such evidence, however, would bring the court close to if not within the constitutionally prohibited area regarding defendant's status as an addict. See Robinson v. California, 370 U.S. 660 (1962).
IV.
The Viernes court misconstrued HRS § 712-1243, ignoring the legislature's clear purpose in drafting it. It rejects all of the relevant reasoning in Vance, and offers a substitute rationale that appears inconsistent with legislative goals and with basic statutory interpretation. It also unambiguously overrules the main holding in Vance, though it gingerly avoids stating that it is overruling the case itself. Finally, it latches on to the dicta in Vance, heedless of the rule that where the legislature has spoken clearly and unambiguously, the court may not elect to re-write the statute. Because I am of the notion that error once committed should not be perpetuated, I respectfully dissent.
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