State v. Figel

KLEIN, Justice. Edwin Figel was convicted of 1) Driving After License Suspended or Revoked for Driving Under the Influence of Intoxicating Liquor in violation of Hawaii Revised Statutes (HRS) § 291-4.5 (Supp.1992), and 2) Duty Upon Striking Unattended Vehicle or Other Property in violation of HRS § 291C-15 (1985).1 On appeal, Figel contends that [48] the district court erred in denying his motion for judgment of acquittal (MJOA) because the prosecution failed to prove that he operated a motor vehicle upon the highways of the state. We agree. I. BACKGROUND During a bench trial before the district court, the following testimony and evidence was adduced. On September 27, 1993, Wayne Torikawa saw Figel hit another car while driving his white van in the parking lot of the Oasis nightclub.2 After Torikawa informed Figel that he had hit the car, Figel told Torikawa, in a “threatening” manner, not to say anything. At the time, Figel’s driver’s license was suspended for driving under the influence of intoxicating liquor (DUI). After Figel moved to another area of the parking lot, Torikawa went into the nightclub and told a bartender what he had seen. Honolulu Police Department (HPD) Officer Shayne Sesoko arrived on the scene some time later, but could not locate Figel. After Officer Sesoko relayed a suspect description and car license number to HPD dispatch, Officer Lester Hite went to Figel’s house. Figel acknowledged that he owned the van, but stated that he “doesn’t drive” and did not know who had been driving the van at the time of the accident. Figel told Officer Hite that he had the keys to the van, but would not tell him who had given him the keys. After the prosecution presented the foregoing evidence and rested its case, Figel moved for judgment of acquittal arguing that the prosecution failed to prove that the Oasis parking lot was an area encompassed by the definition of “highways” under HRS chapter 291 (Supp.1992).3 The district court denied Figel’s motion, indicating that the “ways” through the Oasis parking lot are “ways or lanes” within the meaning of HRS § 291-1, see supra note 3, and, further, that the legislature created this provision to allow for convictions under HRS § 291-4.5(a). See supra note 1. II. DISCUSSION Figel claims that there is nothing to indicate that the legislature intended that the term “way” in HRS § 291-1 apply to a private parking lot for the purposes of HRS § 291-4.5(a). We agree. The legislative history of HRS § 291-1 clearly indicates that the statute was designed to increase the number of locations where open containers of alcohol would be prohibited under HRS § 291-3.3 (Supp. 1992).4 See Sen.Stand.Comm.Rep. No. 62949 86, in 1986 Senate Journal, at 1065-66 (“The purpose of this bill is to increase the number of locations where open containers of alcohol in motor vehicles would be prohibited ... including] scenic lookouts, trails, alleys, bridges, bikeways, and areas of a highway not in the flow of traffic.”) (emphasis added); Hse.Stand.Comm.Rep. No. 286-86, in 1986 House Journal, at 1120 (“The purpose of this bill is to extend the definition of ‘public street, road, or highway’ as used in section 291-3.3, HRS.”) (emphasis added). HRS § 291—4.5, on the other hand, applies on the “highways of this State”; this statute does not utilize the phrase “public street, road, or highway.” At best, it is unclear whether the term “highways” in HRS § 291-4.5 incorporates the amended definition of “public street, road, or highway” as set forth in HRS § 291-1. The legislature could have easily used the complete phrase when it enacted HRS § 291-4.5 in 1985 and, thereby, subjected that provision to the broad definition adopted the following year in HRS § 291-1. However, it did not do so. Even if the definition of “public street, road, or highway” in HRS § 291-1 applies to HRS § 291—4.5, it is clear that the legislature did not intend to criminalize driving with a license suspended for DUI on private property open for use by the public. The definition of “public street, road, or highway” refers to HRS §§ 264-1 and 291C-1.5 There is no evidence in the record to establish that the Oasis nightclub parking lot is a “highway,” rather than a “private road,” because the prosecution did not show that this area is “publicly maintained.” Significantly, the legislature excluded “private road or driveway” from the definition provided in HRS § 291-1. If, as the district court painstakingly concluded, the legislature had intended to prohibit a person from operating a vehicle anywhere, even on private property, with a license suspended for DUI, the statute could have simply stated that “it is unlawful to operate a vehicle while license suspended for DUI.” See, e.g., HRS § 286-122(c) (1985) (“Any resident or nonresident whose driver’s license or privilege to operate a motor vehicle in this State has been suspended or revoked as provided in this chapter shall not operate [50] a motor vehicle in the State ... until a new license is obtained when and as permitted under this chapter.”)- HRS § 291-4.5 would then clearly conform to statutes with universally restrictive language such as HRS § 286-102 (Supp.1992)6 and HRS § 291-4 (Supp.1992).7 Although it appears anomalous to criminalize the operation of a vehicle without a license, or while DUI, without regard to the term “highway”—see State v. Watson, 71 Haw. 258, 787 P.2d 691 (1990) (holding that nothing in HRS § 291-4(a)(l) requires that the proscribed operation of a vehicle while under the influence of intoxicating liquor be performed on a public highway)—while prohibiting driving with a license suspended for DUI only when it occurs on a “highway,” we are nevertheless constrained to give effect to the limiting term “highway” as set forth in HRS § 291-4.5, which is a penal statute. State v. Gaylord, 78 Hawai'i 127, 138, 890 P.2d 1167,1178 (1995) (“penal statutes are to be strictly construed”). We can find no relevant legislative history that demonstrates a contrary intent. Id. at 139, 890 P.2d at 1179. Accordingly, we hold that there is insufficient evidence in the record to establish that Figel operated a vehicle on a highway of this state; therefore, the district court should have granted Figel’s MJOA regarding the charge of driving after license suspended or revoked for DUI under HRS § 291~4.5(a). If the legislature had intended that a person who operates a motor vehicle anywhere with a license suspended for DUI should be subject to the criminal penalties of HRS § 291-4.5, then the statute should have eliminated the limiting term “highway” from its proscription. Because the legislature included this term, we can only conclude that the operation of a vehicle other than on a “highway” by a person whose license has been suspended for DUI is not illegal under the statute.8 III. CONCLUSION For the foregoing reasons we reverse Fi-gel’s conviction of violating HRS § 291-Í.5, affirm his conviction of violating HRS § 291C-15, and remand for further proceedings consistent with this opinion. Footnotes [1] HRS § 291—4.5(a) provides in pertinent part: No person whose driver’s license has been revoked, suspended, or otherwise restricted pursuant to part XIV of chapter 286 or section 291-4 shall operate a motor vehicle either upon the highways of this State while the person's license remains suspended or revoked or [48] in violation of the restrictions placed on the person’s license. (Emphasis added.) Figel does not challenge his conviction of HRS § 291C-15 on appeal. [2] Although the prosecutor’s answering brief suggests that "Torikawa saw [Figel] drive into the parking lot in a white van” (emphasis added), the transcript merely reveals that Torikawa saw "him in a white van that kind of tried to park next to me.” No one testified that Figel operated his vehicle outside the Oasis parking lot. In any event, the prosecution’s argument at trial focused on Figel's act of driving within the Oasis parking lot. [3] HRS § 291-1 (Supp.1992) provides: "Public street, road, or highway” includes the entire width, including beam and shoulder, of every road, alley, street, way, lane, trail, highway, bikeway, bridge, when any part thereof is open for use by the public, including any bicycle lane, bicycle path, bikeway, controlled access highway, laned roadway, roadway, or street, as defined in section 291C-1, and any public highway, as defined in section 264-1. (Emphasis added.) This definition was added in 1986. See 1986 Haw.Sess.L. Act 171, § 2 at 306-07. Figel also contended that the prosecution had failed to establish that he was the same person in the certified court abstract whose driver’s license was suspended for driving under the influence of intoxicating liquor. Although Figel implicitly waived this issue on appeal, we nevertheless hold that there is sufficient evidence in the record to support the conclusion that it was Figel whose driver’s license was suspended for DUI. [4] HRS § 291-3.3 provides in pertinent part: Storage of opened container containing intoxicating liquor or consumption at scenic lookout, (a) No person shall keep in a motor vehicle, or on a moped when such vehicle or moped is upon any public street, road, or highway or at any scenic lookout, any bottle, can, or other receptacle containing any intoxicating liquor which has been opened, or a seal broken, or the contents .of which have been partially removed or fully removed, unless such container is kept in the trunk of the vehicle, or kept in some other area of the vehicle not normally occupied by the driver or passengers, [49] if the vehicle is not equipped with a trunk. A utility or glove compartment shall be deemed to be within the area occupied by the driver and passengers. (Emphasis added.) This provision was enacted in 1981 along with other provisions concerning the consumption or possession of intoxicating liquor by an operator or passenger in a motor vehicle. See 1981 Haw.Sess.L. Act 152, at 314-15. [5] HRS § 264-1 (1985) provides in pertinent part: Public highways, defined, etc. All roads, alleys, streets, ways, lanes, trails, bikeways, and bridges in the State, opened, laid out, or built by the State or any political subdivision thereof, are declared to be public highways. Public highways are of two types: (1) State or federal-aid highways, which are those under the jurisdiction of the department of transportation; and (2) County highways, which are all other public highways. All roads, alleys, streets, ways, lanes, trails, bikeways, and bridges in the State, opened, laid out, or built by private parties and dedicated or surrendered to the public use, are declared to be public highways. Dedication of public highways shall be by deed of conveyance.... Surrender of public highways shall be deemed to have taken place if no act of ownership by the owner of the road, alley, street, bikeway, way, lane, trail, or bridge has been exercised for five years and when, in the case of a county highway, in addition thereto, the legislative body of the county has, thereafter, by a resolution, adopted the same as a county highway. (Emphases added.) HRS § 291C-1 (1985) provides in pertinent part: "Alley” means a street or highway intended to provide access to the rear or side of lots or buildings and not intended for the purpose of through vehicular traffic. [[Image here]] "Highway” means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for the purposes of vehicular travel. [[Image here]] "Private road or driveway” means every way or place in private ownership and used by the owner and those having express or implied permission from the owner, but not by other persons. [[Image here]] “Street” means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for the purposes of vehicular travel. (Emphases added.) [6] HRS § 286-102 provides in pertinent part: Licensing, (a) No person, except one exempted under section 286-105, one who holds an instruction permit under section 286-110, one who holds a commercial driver's license issued under section 286-239, or a commercial driver’s license instruction permit under section 286-236, shall operate any category of motor vehicles listed in this section without first being appropriately examined and duly licensed as a qualified driver of that category of motor vehicles. [7] At the time of Figel's conviction, HRS § 291-4 provided in pertinent part: (a) A person commits the offense of driving under the influence of intoxicating liquor if: (1) The person operates or assumes actual physical control of the operation of any vehicle while under the influence of intoxicating liquor, meaning that the person concerned is under the influence of intoxicating liquor in an amount sufficient to impair the person’s normal mental faculties or ability to care for oneself and guard against casualty; or (2) The person operates or assumes actual physical control of the operation of any vehicle with .10 per cent or more, by weight of alcohol in the person's blood. See Act 226, § 9 (July 29, 1995) (amending HRS § 291-4(a)(2) in a manner not relevant to the instant appeal). [8] Under the peculiar facts of this case, the district court did not base its decision on Figel’s possible operation of his vehicle other than in the Oasis parking lot. See supra note 2. Because of the court’s reliance on Figel's driving in one of the "lanes” or "ways” between vehicles parked in the lot, we limit our consideration of the inteipretation of HRS § 291-4.5(a) to the facts relied upon by the district court as'the basis for its legal conclusion that Figel violated the statute by operating his vehicle only in the Oasis nightclub parking lot.