FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CR. NO.
Richard K. Minatoya, Deputy Prosecuting Attorney, for
Dunbar Jr Defendant-Appellee ., pro se.
NAKAMURA, CHIEF JUDGE, LEONARD and GINOZA, JJ.
John P. Dunbar, Jr. (Dunbar) was charged in this case with
Failure to Provide Specimen For Forensic Identification, in
violation of Hawaii Revised Statutes (HRS) § 844D-31(a)
(2014) and § 844D-111(a) (2014). Plaintiff-Appellant State
of Hawai'i (State) asserts that Dunbar, having been
convicted of a felony offense in 2005, and after having
received written notice in 2014 from the collecting agency of
his obligation to provide a buccal swab sample,
failed in 2014 to provide a buccal swab for the collection of
his deoxyribonucleic acid (DNA), as required under HRS
Circuit Court of the Second Circuit (circuit
court) dismissed the charge against Dunbar in
this case by way of its Findings of Fact, Conclusions of Law,
and Order Granting Defendant's Motion to Dismiss (Order
Granting Motion to Dismiss), filed on February 3, 2015. The
circuit court ruled that Dunbar had "successfully
completed probation and once [Dunbar's] probationary
period terminated, [Dunbar] was no longer subject to
collection [of his DNA] under HRS Section 844D-35." The
circuit court further ruled that, given the provisions within
HRS Chapter 844D that describe categories of persons from
whom DNA samples could be collected, the Legislature intended
to limit collection to the categories of persons described.
appeal, the State challenges the circuit court's
dismissal of the charge and its ruling that the State could
no longer obtain Dunbar's buccal swab sample in 2014,
after he had been discharged from probation for his felony
conviction. HRS Chapter 844D became effective on July 1,
2005, and the parties do not dispute that relevant provisions
within Chapter 844D Part III are retroactive. Thus, Dunbar
does not contest that he was subject to collection of his DNA
samples while he was on probation for his 2005
felony conviction, even though his conviction was entered on
June 29, 2005, prior to the effective date of HRS Chapter
844D. However, the parties dispute whether the State could
still collect Dunbar's DNA buccal swab samples in 2014,
after he had been discharged from probation for his
2005 felony offense.
the circumstances of this case and the relevant provisions in
HRS Chapter 844D Part III, we hold that Dunbar was no longer
required to provide a buccal swab sample after he had been
discharged from probation for his felony offense. We
therefore affirm the circuit court's dismissal of the
charge against Dunbar in this case based on the reasons set
29, 2005, in a previous case before the circuit court,
State v. Dunbar, Criminal No. 04-1-0450(1), a
Judgment was entered convicting Dunbar of Attempted Escape in
the Second Degree, in violation of HRS § 710-1021
(2014), a class C felony.Dunbar was sentenced to probation for
a term of five (5) years.
days later, on July 1, 2005, HRS Chapter 844D became
effective. Within HRS Chapter 844D Part III ("Offenders
Subject to Collection of Specimens or Samples, or Print
Impressions"),  HRS § 844D-31(a) provides that:
Any person, except for any juvenile, who is
convicted of, or pleads guilty or no contest to,
any felony offense, even if the plea is deferred, or
is found not guilty by reason of insanity of any felony
offense, shall provide buccal swab samples and print
impressions of each hand, and, if required by the collecting
agency's rules or internal regulations, blood specimens,
required for law enforcement identification analysis.
added.) Further, HRS § 844D-41 (2014) provides for the
retroactive application of specified provisions within Part
III and identifies the provisions under which collection
shall occur, stating in relevant part:
Sections 844D-31, 844D-33, and 844D-34 to
844D-37 shall have retroactive application.
Collection shall occur pursuant to sections 844D-34 to
844D-38 regardless of when the crime charged or
committed became a qualifying offense pursuant to this
chapter, and regardless of when the person was convicted of
the qualifying offense described in section 844D-31(a) . . .
added.) In turn, HRS § 844D-35 (2014) addresses the
collection of, inter alia, buccal swab samples where
"[t]he person is on probation or parole[.]" As
discussed infra, the interpretation of HRS §
844D-35 is at the core of this case.
March 18, 2008, approximately two years and nine months after
Dunbar's felony judgment of conviction was entered on
June 29, 2005, in Criminal No. 04-1-0450(1), the circuit
court in that case granted Dunbar's motion for early
termination of probation. It is undisputed that Dunbar was
then formally discharged from his probationary sentence by
way of an order entered on April 11, 2008.
February of 2014, almost six years after Dunbar had been
discharged from probation in Criminal No. 04-1-0450(1), the
State, through the Department of the Attorney General,
initiated contact with Dunbar to obtain his buccal swab
sample. Due to Dunbar's failure to provide the requested
sample, the State filed its initial Complaint in this case on
August 22, 2014, in the District Court of the Second Circuit.
Dunbar requested a jury trial and thus the State filed a
Complaint in circuit court on September 26, 2014. The State
filed an Amended Complaint on November 12, 2014, to make a
technical amendment. The Amended Complaint asserts, in
relevant part, that "on or about the period of February
15, 2014, through and including March 21, 2014, " Dunbar
"having been convicted of any felony offense"
intentionally or knowingly failed to provide, inter
alia, buccal swab samples "after receiving written
notice by the collecting agency[.]"
November 17, 2014, Dunbar filed a Motion to Dismiss claiming
the State had not requested his DNA sample while he was on
probation and that he was no longer required to provide a DNA
sample because he had completed his probation. On February 3,
2015, the circuit court filed the Order Granting Motion to
February 4, 2015, the State timely filed its Notice of
Standards of Review
review in this case is de novo, based on
interpreting provisions in HRS Chapter 844D Part III.
The interpretation of a statute is a question of law that we
review de novo. Similarly, a trial court's
conclusions of law are reviewable de novo under the
right/wrong standard. Under the de novo standard,
this court must examine the facts and answer the pertinent
question of law without being required to give any weight or
deference to the trial court's answer to the question.
State v. Kelekolio, 94 Hawai'i 354, 356, 14 P.3d
364, 366 (App. 2000) (citations omitted).
State contends that the circuit court erred when it entered
Conclusions of Law (COLs) 9, 10, 11, 13, and 14, upon which
it based its ruling that Dunbar was not required to provide a
buccal swab sample under the circumstances of this case.
circuit court's COLs 9-14 state:
9. Pursuant to HRS Sections 844D-35 and 844D-41, Defendant
was no longer subject to collection under HRS Section
10. Defendant successfully completed probation and once
Defendant's probationary period terminated, Defendant was
no longer subject to collection under HRS Section 844D-35.
11. The creation and description of the various categories of
persons from whom DNA samples [sic] in HRS Sections 844D-34
to 844D-37 suggests the Hawai'i State Legislature
intended to limit collection to the categories of persons
described. If such limits were not intended, there would have
been no reason for the Hawai'i State Legislature to have
created and described the various categories.
12. As evidenced in drafts of the bill that was to become HRS
Chapter 844D, the Hawai'i State Legislature contemplated
a category of collection from persons such as the Defendant,
i.e., convicted felons who were no longer incarcerated, and
who were no longer on probation, parole or other
13. Omission of such a category from the enacted HRS Chapter
844D suggests that the Hawai'i State Legislature did not
intend to collect DNA samples from convicted felons who were
no longer incarcerated, and who were no longer on probation,
parole or other release.
14. Therefore, since Defendant was no longer on probation,
not incarcerated, not on parole, not on other release, not a
parole violator, and had not been returned to custody, the
law does not provide for the collection of Defendant's
precise issue before this court is whether Dunbar, who had
been subject to collection of his DNA sample as a felony
offender under the retroactive provisions in HRS Chapter 844D
Part III, was still required to provide a DNA sample when the
State did not seek to obtain a sample until after his
probation for the felony offense had been discharged by the
court. In resolving this issue, we must interpret
and apply provisions within HRS Chapter 844D Part III.
the fundamental starting point for statutory
interpretation is the language of the statute itself. Second,
where the statutory language is plain and unambiguous, our
sole duty is to give effect to its plain and obvious meaning.
Third, implicit in the task of statutory construction is our
foremost obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute itself.
Fourth, when there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression used in a
statute, an ambiguity exists. And fifth, in construing an
ambiguous statute, the meaning of the ambiguous words may be
sought by examining the context, with which the ambiguous
words, phrases, and sentences may be compared, in order to
ascertain their true meaning. Moreover, the courts may resort
to extrinsic aids in determining the legislative intent. One
avenue is the use of legislative history as an interpretive
Kelekolio, 94 Hawai'i at 356-57, 14 P.3d at
366-67 (citation omitted, block format altered). Furthermore,
It is fundamental in statutory construction that each part or
section of a statute should be construed in connection with
every other part or section so as to produce a harmonious
whole. In re Castro, 44 Haw. 455, 458, 355 P.2d 46,
48 (1960). Statutes should be interpreted according to the
intent and meaning, and not always according to the letter,
and every part thereof must be viewed in connection with the