CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000402; CASE NO. 3DTA-11-02996)
T. Barta for petitioner.
Blancett-Maddock for respondent.
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS.
right to have all elements of a charged criminal offense
proven beyond a reasonable doubt is one of the fundamental
principles of our justice system. In State v.
Murray, we held that a trial court must engage a
defendant in an on-the-record colloquy to ensure that the
defendant is intelligently, knowingly, and voluntarily
relinquishing this fundamental right before the court may
accept the defendant's admission of an element of a
crime. 116 Hawai'i 3, 12, 169 P.3d 955, 964 (2007). We
now reiterate our holding in Murray and decline to
establish an exception to the colloquy requirement when a
stipulation is based on trial strategy or time constraints.
April 2011, Rachel Viamoana Ui and Jacob Wong, Ui's
co-worker, were involved in a traffic collision in Kona on
the island of Hawai'i. The two were traveling in
Wong's vehicle, which "rolled" after it
collided with a concrete construction barrier on Kamakaeha
Avenue, eventually coming to a stop on its roof. When an
ambulance arrived, the responding emergency medical
technician found Ui unconscious a few feet from the
driver-side door of the vehicle. Ui was transported to Kona
Hospital, where an emergency room physician informed the
responding police officer that he smelled alcohol on her
person. Acting pursuant to Hawaii Revised Statutes (HRS)
§ 291E-21 (Supp. 2006), the officer requested that the
hospital obtain a blood sample from Ui in order to determine
her blood alcohol content (BAC). Ronald Luga, a medical
technician employed by the hospital, proceeded to draw two
vials of blood from Ui while she remained unconscious.
District Court Proceedings
State of Hawai'i filed a complaint in the District Court
of the Third Circuit (district court) charging Ui with
operating a vehicle under the influence of an intoxicant
(OVUII) in violation of HRS § 291E-61(a) (Supp.
2011) and driving without a license in violation
of HRS § 286-102(b) (2007). Ui pleaded not guilty to both
the bench trial,  the parties offered conflicting testimony
as to whether Ui was driving at the time of the accident. Ui
and Wong both acknowledged that they drank heavily on the
night in question and testified that Wong had driven the two
to a local store prior to the collision. Wong claimed that Ui
insisted upon driving his truck when they left the store and
was in control of the vehicle when it collided with the
concrete barrier. In contrast, Ui asserted that she had
"passed out" in Wong's passenger seat while
still at the store and was sleeping when the collision
State called Luga to testify regarding the blood draw he
performed on Ui. Before Luga's testimony could begin,
Ui's defense counsel interrupted:
I was speaking with Ms. Ui, and we may be willing to
stipulate to certain things to save time with these witnesses
Ms. Ui's asking me, was asking me if these witnesses are
necessary, and I explained to her not if we're willing to
stipulate to certain things. And I know that we're trying
to get a lot done today. So if I could just briefly speak
with her, and maybe the prosecution, about what we'd be
willing to stipulate to, to save . . . the need of these
[Tr 4/13/12, 43:67] The court granted a recess to allow
defense counsel to confer with Ui and the prosecuting
the recess, defense counsel orally stipulated to the
following: (1) Ui's blood was drawn within three hours of
the report of the accident; (2) Ui's blood was drawn in
accordance with the Hawaii Administrative Rules; and (3) the
blood samples were properly secured and transported to the
laboratory. Additionally, defense counsel stipulated that
Ui's blood test results showed a BAC of 0.156 grams of
alcohol per one hundred milliliters or cubic centimeters of
blood. Defense counsel indicated that he had "reviewed
those stipulations" with Ui and "we're not
challenging any of those facts."
district court did not engage Ui in a colloquy regarding the
stipulation to the blood test results, and a written copy of
the stipulation was not provided to the court. Neither the
court nor counsel acknowledged that the stipulated facts
constituted proof of one of the two elements of a HRS §
291E-61(a)(4) offense. See Hawai'i Standard Jury
Instructions Criminal 16.05 (2004) (providing that the two
elements of a violation are 1) operating a vehicle and 2)
having 0.8 or more grams of alcohol per 100 milliliters or
cubic centimeters of blood).
conclusion of evidence, the district court found Ui guilty of
OVUII and of driving without a license. The court sentenced
Ui to pay a $1, 000 fine and other monetary fees, attend a
fourteen-hour driver's education course, and obtain a
substance abuse assessment.
Proceedings Before the Intermediate Court of Appeals
twenty-eight months later, Ui, represented by new counsel,
filed a notice of appeal to the Intermediate Court of Appeals
(ICA). Ui argued that the State had failed to
allege in its initial complaint that she had acted with the
state of mind required to commit both offenses. With regard
to the OVUII conviction, Ui argued it should be vacated
because the language of the district court's ruling left
it unclear whether the conviction was premised on HRS §
291E-61(a)(1)--which includes a state of mind requirement not
alleged in the complaint--or HRS § 291E-61(a)(4)--which
Summary Disposition Order (SDO), the ICA vacated Ui's
conviction for driving without a license in violation of HRS
§ 286-102. The ICA reasoned that, because HRS §
286-102 does not in itself specify a requisite state of mind
with respect to the conduct it prohibits, HRS § 702-204
(2014)requires that a defendant must have
undertaken each element of the offense intentionally,
knowingly, or recklessly in order to be convicted. The ICA
held that, because the State had not alleged a mens rea in
its complaint, dismissal of the driving without a license
charge without prejudice was warranted under this court's
decision in State v. Apollonio, 130 Hawai'i 353,
359, 311 P.3d 676, 682 (2013).
also determined that Ui's OVUII conviction was based on
violations of both HRS § 291E-61(a)(1) (impairment of
ability to care for oneself) and HRS § 291E-61(a)(4)
(BAC over .08). Because HRS § 291E-61(a)(4) is a strict
liability method of proof that does not require the State to
allege a mens rea under our precedents, see State v.
Nesmith, 127 Hawai'i 48, 58-61, 276 P.3d 617, 627-30
(2012), the ICA affirmed Ui's OVUII conviction under HRS
issuance of the SDO, Ui filed a motion for reconsideration.
Ui argued that this court's then-recent decision in
State v. Won, 137 Hawai'i 330, 372 P.3d 1065
(2015), in which we held that the State may not use the
threat of criminal sanctions to coerce a driver into
consenting to a breath or blood test, rendered her blood test
results inadmissible. The ICA should therefore vacate her HRS
§ 291E-61(a)(4) conviction, Ui contended, and remand the
case to permit her to move to suppress the blood test
results. The ICA denied the motion, determining that Ui had
waived the issue of admissibility by failing to move for
suppression of the test results prior to trial.
STANDARDS OF REVIEW
the reasonableness of a search and the validity of a
defendant's waiver of his or her constitutional rights
are questions of constitutional law. See State v.
Quiday, 141 Hawai'i 116, 121, 405 P.3d 552, 557
(2017); State v. Friedman, 93 Hawai'i 63, 67,
996 P.2d 268, 272 (2000). "We answer questions of
constitutional law by exercising our own independent
constitutional judgment based on the facts of the case. Thus,
we review questions of constitutional law under the
right/wrong standard." Friedman, 93 Hawai'i
at 67, 996 P.2d at 272 (quoting State v. Hanapi, 89
Hawai'i 177, 182, 970 P.2d 485, 490 (1998)).
application for a writ of certiorari, Ui contends that the
ICA erred in failing to apply State v. Won, 137
Hawai'i 330, 372 P.3d 1065 (2015), to vacate her HRS
§ 291E-61(a)(4) conviction. The State responds that the
ICA correctly held that Ui is not similarly situated to the
defendant in Won.
this court directed the parties to submit supplemental
briefing on the following questions: (1) whether the district
court erred by failing to engage Ui in a colloquy regarding
the blood test stipulation as required by State v.
Murray, 116 Hawai'i 3, 12, 169 P.3d 955, 964 (2007),
and (2) whether, if the district court erred by not engaging
Ui in a colloquy, this court should recognize plain error and
vacate Ui's conviction.
State v. Won Is Inapplicable To Ui's Blood
In Won, we held that law enforcement's use of an
"implied consent form" that threatened criminal
penalties for refusing a BAC test was inherently coercive and
rendered a driver's ensuing consent invalid under article
I, section 7 of the Hawai'i Constitution. 137 Hawai'i
at 347-48, 372 P.3d at 1082-83. When Ui's blood was drawn
at Kona Community Hospital after the accident, no request was
made that she consent to testing, nor was an implied consent
form advising of possible criminal penalties involved.
Because Ui's blood draw was not predicated on her
consent, Won does not provide authority to challenge
Ui's HRS § 291E-61(a)(4) conviction on this basis.
See id. at 344 n.26, 372 P.3d at 1079 n.26 (citing
State v. Entrekin, 98 Hawai'i 221, 232, 47 P.3d
336, 347 (2002)) (setting forth constitutional requirements
for a nonconsensual, warrantless blood extraction pursuant to
HRS § 291E-21) .
State v. Murray Required An ...