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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-MAR-2022
07:58 AM
Dkt. 47 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
KEITH M. MATSUI, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Keith M. Matsui (Matsui) appeals
from the Findings of Fact, Conclusions of Law, and Order Denying
Defendant's Motion to Dismiss Counts 1, 3, and 4 (Order), entered
on November 22, 2019, in the Circuit Court of the Second Circuit
(Circuit Court).1/
On November 25, 2018, Matsui was issued two traffic
citations, which were subsequently filed in the District Court of
the Second Circuit, Wailuku Division (District Court): one for
traffic crimes, Case No. 2DTC-18-005218 (Traffic Crime Case), and
one for traffic infractions, Case No. 2DTI-18-019086 (Traffic
Infraction Case).
On December 24, 2018, in the Traffic Crime Case, Matsui
was charged by Amended Complaint with: (1) Driving While License
Suspended or Revoked, in violation of Hawaii Revised Statutes
(HRS) § 286-132 (Count 1); (2) No Motor Vehicle Insurance, in
1/
The Honorable Richard T. Bissen, Jr. presided. On December 3,
2019, the Circuit Court entered the Order Granting Motion for Leave to File
Interlocutory Appeal, allowing Matsui to appeal from the Order, pursuant to
HRS § 641-17 (2016).
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violation of HRS § 431:10C-104(a); (3) Driving Without a License,
in violation of HRS § 286-102 (Count 3); and (4) Operating a
Vehicle After License and Privilege Have Been Suspended or
Revoked for Operating a Vehicle Under the Influence of an
Intoxicant, in violation of HRS § 291E-62(a)2/ (HRS § 291E-62(a)
Offense or Count 4). The Traffic Crime Case was later committed
to the Circuit Court and became Case No. 2CPC-XX-XXXXXXX.
Meanwhile, on December 26, 2018, in the Traffic
Infraction Case, the District Court entered a default judgment
against Matsui for several traffic infractions, including failing
to have a valid driver's license in his immediate possession, in
violation of HRS § 286-116(a)3/ (Driver's License Infraction).
On October 31, 2019, in the Traffic Crime Case,
Matsui filed a Motion to Dismiss Counts 1, 3, and 4 (Motion),
arguing that the Driver's License Infraction was a lesser-
included offense of those counts, such that the judgment against
2/
HRS § 291E-62(a) (Supp. 2017) provides:
(a) No person whose license and privilege to operate a
vehicle have been revoked, suspended, or otherwise
restricted pursuant to this section or to part III or
section 291E-61 or 291E-61.5, or to part VII or part XIV of
chapter 286 or section 200-81, 291-4, 291-4.4, 291-4.5, or
291-7 as those provisions were in effect on December 31,
2001, shall operate or assume actual physical control of any
vehicle:
(1) In violation of any restrictions placed on the
person's license;
(2) While the person's license or privilege to
operate a vehicle remains suspended or revoked;
(3) Without installing an ignition interlock device
required by this chapter; or
(4) With an ignition interlock permit unless the
person has the ignition interlock permit and a
valid State of Hawaii identification card in the
person's immediate possession.
3/
HRS § 286-116(a) (Supp. 2017) provides, in relevant part:
(a) Every licensee shall have a valid driver's license
in the licensee's immediate possession at all times . . .
when operating a motor vehicle, and shall display the same
upon demand of a police officer. Every police officer or
law enforcement officer when stopping a vehicle or
inspecting a vehicle for any reason shall demand that the
driver or owner display the driver's or owner's driver's
license and insurance identification card.
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Matsui for the Driver's License Infraction barred any conviction
on those counts. The State opposed the Motion as to Count 4 and
indicated that "it intend[ed] to dismiss Counts One and Three
prior to trial, for other reasons." Following a hearing on
November 12, 2019, the Circuit Court: (1) concluded that the
Motion was moot as to Counts 1 and 3 based on the State's
representation; and (2) denied the Motion. As relevant here, the
court ruled that the Driver's License Infraction was not a
lesser-included offense of the HRS § 291E-62(a) Offense.
On appeal, Matsui raises a single point of error,
contending that the Circuit Court erred in concluding that the
Driver's License Infraction was not a lesser-included offense of
the HRS § 291E-62(a) Offense.
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 Matsui's point of error as follows and affirm:
HRS § 701-109(1)(a) (2014) states:
(1) When the same conduct of a defendant may establish
an element of more than one offense, the defendant may be
prosecuted for each offense of which such conduct is an
element. The defendant may not, however, be convicted of
more than one offense if:
(a) one offense is included in the other, as defined
in subsection (4) of this section[.]
In turn, HRS § 701-109(4) (Supp. 2018) states:
(4) A defendant may be convicted of an offense
included in an offense charged in the felony complaint,
indictment, or information. An offense is so included when:
(a) It is established by proof of the same or less
than all the facts required to establish the
commission of the offense charged;
(b) It consists of an attempt to commit the offense
charged or to commit an offense otherwise
included therein; or
(c) It differs from the offense charged only in the
respect that a less serious injury or risk of
injury to the same person, property, or public
interest or a different state of mind indicating
lesser degree of culpability suffices to
establish its commission.
See State v. Alston, 75 Haw. 517, 532–33, 865 P.2d 157, 166
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(1994) ("[A]n offense is a lesser included offense of another if
it 'satisfies the requirements set forth in HRS § 701-109(4)
which codifies the common law doctrine of lesser included
offenses.'" (original brackets omitted) (quoting State v.
Burdett, 70 Haw. 85, 87, 762 P.2d 164, 165 (1988))).
Whether an offense is a lesser-included offense under
HRS § 701–109(4) is a question of law reviewed de novo under the
right/wrong standard. See State v. Rumbawa, 94 Hawai#i 513, 516,
17 P.3d 862, 865 (App. 2001) (citing State v. Friedman, 93
Hawai#i 63, 68, 996 P.2d 268, 273 (2000)).
In State v. Kalua, 144 Hawai#i 7, 434 P.3d 1202 (2019),
the Hawai#i Supreme Court ruled that judgment on a civil speeding
infraction constituted a "conviction" for purposes of HRS
§ 701-109(1)(a) and (4). Id. at 16, 434 P.3d at 1211 (citing HRS
§ 701-107(5)). As a result, the statutory protections of HRS
§ 701-109(1)(a) and (4) apply where a defendant faces conviction
of both a civil traffic infraction and a criminal offense, if the
civil infraction (1) pertains to the same conduct as the criminal
offense, and (2) is a lesser-included offense of the criminal
offense. See id. at 16-17, 434 P.3d at 1211-12.
Here, there has been no trial to determine whether the
Driver's License Infraction and the HRS § 291E-62(a) Offense
pertain to the same conduct. See id. at 17, 434 P.3d at 1212
(remanding for trial to determine whether the speeding and
excessive speeding offenses involved the same conduct rather than
separate criminal acts). However, the State stipulated below,
for purposes of the Motion, "that one aspect of [Matsui's]
conduct in this case - specifically, operation of a vehicle on
November 25, 2018 - would establish a single element of the [HRS
§ 291E-62(a) O]ffense in Count Four, as well as [the Driver's
License Infraction]." In addition, Matsui relied solely on
subsection (4)(a) of HRS § 701-109 as his basis for dismissal of
Count 4. Thus, the only issue we consider in this interlocutory
appeal is whether, under HRS § 701-109(4)(a), the Driver's
License Infraction is a lesser-included offense of the HRS
§ 291E-62(a) Offense.
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"The general rule is that 'an offense is included if it
is impossible to commit the greater without also committing the
lesser.'" State v. Manuel, 148 Hawai#i 434, 440, 477 P.3d 874,
880 (2020) (brackets omitted) (quoting Friedman, 93 Hawai#i at
72, 996 P.2d at 277). "Additionally, in applying HRS
§ 701-109(4)(a), . . . 'several factors may be considered in
determining whether an offense is a lesser included offense of
another: (1) the degree of culpability; (2) the legislative
statutory scheme; and (3) the end result.'" Id. (quoting
Friedman, 93 Hawai#i at 72, 996 P.2d at 277 (citing Alston, 75
Haw. at 533, 865 P.2d at 166)); see id. at 441, 477 P.3d at 881
(referring to these three factors as the "Alston factors").
Here, it is possible for a person to commit the HRS
§ 291E-62(a) Offense without also committing the Driver's License
Infraction. For example, under HRS § 291E-61(b)(1) (Supp. 2018),
a person convicted of operating a vehicle under the influence of
an intoxicant (OVUII) could be sentenced for the first offense
to, among other things, a one-year revocation of the person's
license to operate a vehicle, and installation during the
revocation period of an ignition interlock device on all vehicles
operated by the person. However, under HRS § 291E-61(d), if
certain conditions are met, and subject to specified
restrictions, "the court may issue a separate permit authorizing
a defendant to operate a vehicle owned by the defendant's
employer during the period of revocation without installation of
an ignition interlock device . . . ." See also HRS § 291E-
44.5(c) (Supp. 2018) (authorizing the director4/ to issue the same
type of permit). Further, under HRS § 291E-61(i), if certain
conditions are met, "the court shall issue an ignition interlock
permit that will allow the defendant to drive a vehicle equipped
with an ignition interlock device during the revocation period."
See also HRS § 291E-44.5(a) (authorizing the director to issue an
ignition interlock permit). It appears that such permits are
4/
"'Director' means the administrative director of the courts or any
other person within the judiciary appointed by the director to conduct
administrative reviews or hearings or carry out other functions relating to
administrative revocation under part III." HRS § 291E-1 (2007).
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considered a type of "license" for purposes of HRS chapter 291E.
See HRS § 291E-1 (defining "License" to include "any driver's
license or any other license or permit to operate a motor vehicle
issued under, or granted by, the laws of this State . . . .");
see also HRS § 291E-41(a) ("Except as provided in section 291E-
44.5, no license and privilege to operate a vehicle shall be
restored under any circumstances during the administrative
revocation period." (emphasis added)). Accordingly, HRS § 291E-
62(a) allows a person convicted of OVUII whose driver's license
has been revoked and who has been issued a permit pursuant to HRS
§ 291E-61 to legally drive a vehicle, as long as the person
complies with certain conditions (e.g., installing an ignition
interlock device in their vehicle or driving their employer's
vehicle under specified restrictions). See also HRS § 286-132
(2007) ("Except as provided in section 291E-62, no resident or
nonresident whose driver's license, right, or privilege to
operate a motor vehicle in this State has been canceled,
suspended, or revoked may drive any motor vehicle upon the
highways of this State while the license, right, or privilege
remains canceled, suspended, or revoked." (emphasis added)). As
a result, a person having a valid permit in their immediate
possession pursuant to HRS § 291E-62(a), and is not in violation
of HRS § 286-116(a), could still commit an HRS § 291E-62(a)
Offense if, for example, the person operates a vehicle that does
not have a required ignition interlock device installed or
operates a vehicle in violation of specified restrictions.
Because it is possible for a person to commit the HRS
§ 291E-62(a) Offense without also committing the Driver's License
Infraction, under HRS § 701-109(4)(a), the Driver's License
Infraction is not a lesser included offense of the HRS § 291E-
62(a) Offense.5/ The Circuit Court did not err in so ruling.
Matsui also contends for the first time that: (1) the
Driver's License Infraction is a lesser included offense of the
HRS § 291E-62(a) Offense pursuant to HRS § 701-109(4)(c); and (2)
public policy considerations support dismissal of Count 4.
5/
In light of our conclusion, we need not address the three Alston
factors.
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Neither argument was raised below in connection with the Motion.
"Generally, the failure to properly raise an issue at the trial
level precludes a party from raising that issue on appeal."
State v. Hoglund, 71 Haw. 147, 150, 785 P.2d 1311, 1313 (1990)
(citing State v. Cummings, 49 Haw. 522, 526-27, 423 P.2d 438, 442
(1967)). This general rule appears to be particularly applicable
here, where we review an interlocutory order denying a motion to
dismiss, and not a final judgment. Accordingly, in this
interlocutory appeal, this court will not consider the new
arguments raised by Matsui as a basis for dismissal of Count 4.
For the reasons discussed above, the Findings of Fact,
Conclusions of Law, and Order Denying Defendant's Motion to
Dismiss Counts 1, 3, and 4, entered on November 22, 2019, in the
Circuit Court of the Second Circuit, is affirmed.
DATED: Honolulu, Hawai#i, March 24, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Bradley J. Sova, Chief Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Richard B. Rost, Associate Judge
Deputy Prosecuting Attorney,
County of Maui,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
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