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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-JUN-2020
07:49 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
JOHANNA DURAN DECKER, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(CASE NO. 3DTA-19-00803)
SUMMARY DISPOSITION ORDER
(By: Chan, Presiding Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Johanna Duran Decker (Decker),
self-represented, appeals from the Judgment and Notice of Entry
of Judgment, filed on July 25, 2019, in the District Court of the
Third Circuit (District Court).1
Decker was convicted of Driving Without a License, in
violation of Hawaii Revised Statutes (HRS) § 286-102(b)(3) (Supp.
2019),2 and No No-Fault Insurance, in violation of HRS
1
The Honorable Robert J. Crudele presided.
2
HRS § 286-102 states, in relevant part:
§286-102 Licensing.
. . . .
(b) A person operating the following category or
combination of categories of motor vehicles shall be examined
as provided in section 286-108 and duly licensed by the
examiner of drivers:
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§ 431:10C-104(a) (2019).3
On appeal, Decker contends that the District Court
erred in convicting her because: (1) "sitting behind the steering
wheel in the front left seat of Defendant's private automobile
did not automatically prove she was engaged in the commercial act
of 'driving' as defined by [HRS §] 286-2"; (2) "Plaintiff
Medeiros testified in court that there were no advertisements on
Defendant's automobile soliciting the use of automobile nor any
evidence Defendant was engaged in transporting people or products
as a driver"; (3) "Alicia Omelau, custodian of records at the
Department of Motor Vehicles[,] testified that she did not know
of any application/contract between Defendant and the DMV for a
Hawaii State driver's license nor had a Hawaii State driver's
license ever been issued"; (4) "[t]heir testimonies proved
Defendant had not applied for the licensed occupation of any kind
of driver (bus driver, uber driver, taxi driver, commercial
driver, etc.), was not engaged in driving, and had not injured
anyone nor damaged property that would be probable cause of a
clearly and articulable crime for Plaintiff Medeiros to detain,
identify, arrest and put to trial the Defendant"; (5) there was
no probable cause to arrest her; (6) the District Court "had no
jurisdiction over the Defendant living in the Hawaiian Kingdom
and traveling upon lands of the Hawaiian Kingdom"; (7) there can
be no penalty upon someone exercising the right to travel; (8)
. . .
(3) Passenger cars of any gross vehicle weight rating,
buses designed to transport fifteen or fewer
occupants, trucks and vans having a gross vehicle
weight rating of eighteen thousand pounds or less,
and autocycles as described in paragraph (2) of
the definition of "motorcycle" in section 286-2[.]
3
HRS § 431:10C-104 states, in relevant part:
§431:10C-104 Conditions of operation and registration
of motor vehicles. (a) Except as provided in section
431:10C-105, no person shall operate or use a motor vehicle
upon any public street, road, or highway of this State at any
time unless such motor vehicle is insured at all times under a
motor vehicle insurance policy.
2
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the judgment against her restricts her right to apply for the
privilege of driving in the future; and (9) "one who is traveling
upon their own highways can not [sic] be forced to contract and
insure their own private automobile for any possible future
accidents."
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Decker's points of error as follows:
Points of Error 2, 3, and 4.4 Decker challenges
witness testimony in Points of Error 2, 3, and 4. However, there
is no transcript of the cited witness testimony in the record on
appeal. It is the appellant's burden to demonstrate error in the
record. State v. Hoang, 93 Hawai#i 333, 336, 3 P.3d 499, 502
(2000). Decker's failure to include the transcript in the record
on appeal effectively precludes this court from determining
points of error 2, 3, and 4. See id. "Because we cannot verify
the alleged error from the record in this case, and we will not
presume error based upon a silent record, the presumption that
the trial court acted without error must prevail." Id.
Point of error 1. Contrary to Decker's claim, she was
not convicted of Driving Without a License for merely sitting
behind the steering wheel of her vehicle.
Under HRS § 286-2 (2007), "'Driver' means every person
who drives, operates, or is in actual physical control of a motor
vehicle in any place open to the general public for purposes of
vehicular traffic or who is exercising control over or steering a
vehicle being towed or pushed by a motor vehicle," and "'Drive'
means to drive, operate, or be in physical control of a motor
vehicle in any place open to the general public for purposes of
vehicular traffic."
4
Points of error 2, 3, and 4 are discussed out of chronological
order here in order to logically address Decker's claims.
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In its Findings of Fact,5 the District Court found
that: Officer Medeiros observed a Toyota pickup truck traveling
on Highway 130 in the County of Hawai#i; Highway 130 is a highway
within the meaning of HRS §§ 431:10C-104 and 286-102; Officer
Medeiros, using a radar gun, determined that the pickup truck was
traveling in excess of the applicable speed limit; Officer
Medeiros conducted a traffic stop of the vehicle and made contact
with the driver, which was Decker; Decker failed to produce any
driver's license or permit indicating that she was authorized to
operate any type of motor vehicle; Decker was the operator of the
Toyota pickup truck at the time of the traffic stop; and the
Custodian of Records of the Driver's License and Registration
Department of the County of Hawaii's search of its database
failed to disclose that Decker had been issued any driver's
license or permit by the State of Hawai#i. Therefore, Decker's
conviction for Driving Without a License was based upon Decker
being the driver or operator of her vehicle, without being
appropriately examined and duly licensed, and was not for merely
sitting behind the steering wheel of the vehicle.
Points of error 4 and 5. For the first time on appeal,
Decker asserts a lack of probable cause for her arrest.
"[A]bsent unusual circumstances, any defects in a pretrial
determination of probable cause are rendered moot, or are without
any effective remedy, which is much the same thing, by a
subsequent conviction[.]" In re Doe, 102 Hawai#i 75, 78, 73 P.3d
29, 32 (2003) (footnote and citation omitted).
Point of error 6. Decker's claim that the District
Court lacked jurisdiction over her because she was living and
5
As stated above, Decker failed to include the transcript in the
record on appeal. Insofar as the District Court relied upon witness testimony
in forming the Findings of Fact recited infra, the failure to include the
transcript also precludes this court from determining any asserted error in
these Findings of Fact and we are thus bound by them. See Hoang, 93 Hawai #i
at 336, 3 P.3d at 502; see also Bremer v. Weeks, 104 Hawai #i 43, 63, 85 P.3d
150, 170 (2004) ("findings of fact that are not challenged on appeal are
binding on the appellate court" (brackets, ellipses, and citations omitted)).
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traveling in the Kingdom of Hawai#i is without merit. State v.
Kaulia, 128 Hawai#i 479, 487, 291 P.3d 377, 385 (2013) ("[W]e
reaffirm that '[w]hatever may be said regarding the lawfulness'
of its origins, 'the State of Hawai#i is now[] a lawful
government.' Individuals claiming to be citizens of the Kingdom
and not of the State are not exempt from application of the
State's laws." (citations and ellipsis omitted)).
Points of error 7 and 9. Decker claims that her
convictions impose a penalty for and infringe upon her
constitutional right to travel, and that she cannot be forced to
obtain no-fault insurance as a condition of driving a vehicle.
Driving is a privilege that only ripens into a constitutionally
protected property interest once it is conferred. State v.
Toyomura, 80 Hawai#i 8, 21, 904 P.2d 893, 906 (1995). Because
Decker did not have a driver's license, she had no
constitutionally protected property interest. Further, the right
to travel under the United States Constitution is not implicated
unless interstate travel is involved. State v. French, 77
Hawai#i 222, 231, 883 P.2d 644, 653 (App. 1994). In this case,
Decker's travel was limited to Highway 130 on Hawai#i island and
thus did not constitute interstate travel. As to intrastate
travel, the supreme court has recognized a right to freedom of
movement under article I, section 2 of the Hawai#i Constitution,
but has also recognized that it is subject to the State's police
power to regulate an individual's conduct for the protection of
society. Id. Thus HRS §§ 286-102 and 431:10C-104(b) are
constitutional because the requirements on the operation of motor
vehicles are rationally related to the purpose of the statutes
and do not violate the right to freedom of movement. Id. at
229-32, 883 P.2d at 651-54.
Point of error 8. Decker states: "The Judgment against
her, restricts in advance, Defendant's right to apply for the
privilege of driving in the future if chosen to." As part of her
sentence for No No-Fault Insurance, the District Court imposed a
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90-day driver's license suspension. "The examiner of drivers
shall not issue any license to any person: (1) Whose license has
been suspended by a court of competent jurisdiction during the
suspension period[.]" HRS § 286-104 (Supp. 2019). Thus,
Decker's conviction for No No-Fault Insurance precludes her from
obtaining a driver's license during the suspension period.
However, Decker provides no argument as to why imposition of the
suspension period is impermissible with respect to the privilege
of driving. Therefore, the point of error is deemed waived.
Hawai#i Rules of Appellate Procedure Rule 28(b)(7).
Therefore, IT IS HEREBY ORDERED that the Judgment and
Notice of Entry of Judgment, filed on July 25, 2019, in the
District Court of the Third Circuit, is affirmed.
DATED: Honolulu, Hawai#i, June 24, 2020.
On the briefs:
/s/ Derrick H. M. Chan
Leneigha S. Downs, Presiding Judge
Deputy Prosecuting Attorney,
County of Hawai#i,
for Plaintiff-Appellee. /s/ Keith K. Hiraoka
Associate Judge
Johanna Duran Decker,
Self-Represented, Defendant-
Appellant. /s/ Clyde J. Wadsworth
Associate Judge
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