FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
IN THE INTERMEDlATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
---oOo---
STATE oF HAWAI‘I, Plaintiff-Appellee v.
SCOTT M. COOLEY, Defendant-Appellant
NO. 2873l
APPEAL FROM THE DISTRlCT COURT OF THE FlRST ClRCUIT
HONOLULU DlVISION
(HPD TraffiC NO. 6098035MO)
JUNE 30, 20lO
FUJISE, PRESIDING JUDGE, LEONARD AND GlNOZA, JJ.
OPINlON OF THE COURT BY GINOZA, J.
Defendant-Appellant Scott M. Cooley (Cooley) appeals
from the Order Summarily Denying Motion to Correct Abstract of
Traffic Record filed on August 6, 2007 in the District Court of
the First Circuit (district court).1
I. Background
On February 25, 2007, Plaintiff-Appellee State of
HaWaiU.(State) cited Defendant Cooley for being in possession of
an alcoholic beverage while at Waialae Beach Park, 4925 Kahala
Avenue, in violation of ReVised Ordinances of Honolulu (ROH)
§ 40-l.2.2
1 The Honorable Russel S. Nagata presided.
2 ROH § 40-l.2(a) (Supp. 1987) proVides:
Sec. 40-1.2 Prohibition in public areas--Exceptions.
(a) No person shall possess, other than in a container in the
manufacturer's sealed condition, intoxicating liquor on any street
or sidewalk, or in any public park, public playground, public
school ground, public off-street parking area or any building
located thereon.
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FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
On May 16, 2007, Cooley appeared in court for
arraignment and plea on the charge of violating ROH § 40-l.2, a
petty misdemeanor.3 The State moved to amend the charge to a
violation of Hawaii Revised Statutes (HRS) § 291-3.3(b),‘which
the district court granted. Cooley admitted to the amended
charge, a mitigation hearing was held, and judgment was entered
that same day, May l6, 2007, for violation of HRS § 291-3.3(b).
Cooley was ordered to pay fines and fees totaling twenty-seven
dollars.
Subsequently, the violation of HRS § 291-3.3(b)
appeared on Cooley's Abstract of Traffic Record. Cooley filed an
"Motion to Correct Abstract of Traffic Record" (Motion to Correct
Abstract), requesting that the district court remove the HRS §
291-3.3(b) violation from his traffic abstract on grounds that it
was not a "moving violation" under HRS § 287-3, the statute
addressing the contents of a traffic abstract. On August 6,
3 ROH § 40-1.3 (1983) provides, in pertinent part:
Sec. 40-l.3 Criminal Penalties - Enforcement.
(a) The penalties provided in this article are criminal
penalties
(c) Penalty. Any person convicted of a violation of any provision
of this article shall be punished by a fine of not more than
$1,000.00 or by imprisonment for not more than 30 days, or
both .
A non-penal code crime is a petty misdemeanor if it provides for a
maximum term of imprisonment that is less than thirty days, HRS § 701-lO7(4)
(Supp. 2009).
4 HRS § 291-3.3 (2007) provides, in pertinent part:
§291-3.3 Storage of opened container containing
intoxicating liquor or consumption at scenic lookout.
(b) No person shall consume any intoxicating liquor at any
scenic lookout.
(d) Any person violating this section shall be guilty of a
violation.
FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
2007, the district court issued an Order Summarily Denying Motion
To Correct Abstract Of Traffic Record (Order Denying Motion).
Cooley filed a motion for reconsideration of the Order Denying
Motion, and also requested a hearing. On August 20, 2007, the
district court denied the motion for reconsideration without a
hearing. Cooley filed his Notice of Appeal on September 4, 2007.
On appeal, Cooley contends the district court
reversibly erred by concluding: (l) that a violation of HRS
§ 291-3.3(b) should be included in Cooley's traffic abstract;
(2) that Cooley waived any defense that the consumption of
intoxicating liquor at the scenic lookout had to have arisen from
the operation of a motor vehicle; and (3) that the traffic
violations bureau properly included the violation in Cooley's'
traffic abstract.
II. Discussion
A. Standard of Review
The amended charge was a non-criminal violation of HRS
§ 291-3.3(b). §g§ HRS § 701-lO7(5).5 The district court had
jurisdiction to address Cooley's Motion To Correct Abstract under
5 HRS § 70l~107(5) (1993) provides, in relevant part:
§70l-107 Grades and classes of offenses.
(5) An offense defined by this Code or by any other statute
of this State constitutes a violation if it is so designated in
this Code or in the law defining the offense or if no other
sentence than a fine, or fine and forfeiture or other civil
penalty, is authorized upon conviction or if it is defined by a
statute other than this Code which provides that the offense shall
not constitute a crime. A violation does not constitute a crime,
and conviction of a violation shall not give rise to any civil
disability based on conviction of a criminal offense.
3
FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER
HRS § 604-7(e)‘and the district court's inherent authority over
the district court records. Cf., TSA Int'l Ltd. v. Shimizu
Corp., 92 HawaiU.243, 265, 990 P.2d 7l3, 735 (1999) (“the trial
court retains jurisdiction to determine matters collateral or
'incidental to the judgment.").
We review a trial court's exercise of its inherent
powers for abuse of discretion. State v. Lei, 95 Hawafi 278,
28l, 21 P.3d 880, 883 (200l); State V. MOriWake, 65 HaW. 47, 55-
57, 647 P.2d 705, 711-713 (l982); Lussier v. Mau-Van DeveloDMent,
InC., 4 HaW. App. 359, 392, 667 P.2d 804, 826 (l983). "A COurt
'abuses its discretion when it clearly exceeds the bounds of
reason or disregards rules or principles of law or practice to
the substantial detriment of a party litigant.'" Lgi, 95 HawaiU_
at 281, 21 P.3d at 883 (quoting State v. Klinge, 92 HawaiH.577,
534, 994 P.2d 509, 516 (2000)). `
B. The District Court Abused Its Discretion
In its Order Denying Motion, the district court made
the following legal conclusions:
HRS 291 relates to traffic violations. Subsection 3.3
covers the "storage of opened container containing
intoxicating liquor or consumption at a scenic lookout." In
admitting to a violation of HRS 291-3.3(b) defendant waived
any defense that the consumption of the intoxicating liquor
at the scenic lookout had to have arisen from the operation
of a motor vehicle.
HRS 287-3 requires the traffic violations bureau to
provide a certified abstract of a person’s convictions
arising from the operation of a motor vehicle. HRS
6 HRS § 604-7(e) (l993) provides:
§604-7 Powers; venue.
(e) The several district courts shall have power to make
and award judgments, decrees, orders, and mandates, issue such
executions and other processes, and do such other acts and take
such other steps as may be necessary to carry into full effect the
powers which_are or shall be given them by law or for the
promotion of justice in matters pending before them.
4
FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
291-3.3(b) is included in a chapter which involves the
operation of a motor vehicle.
HRS 291-3.3Kb) was properly included as part of the
certified abstract.
In addressing Cooley's Motion To Correct Abstract, the
district court was faced with a question of statutory
interpretation and a question of waiver. We believe the district
court disregarded rules or principles of law and therefore abused
its discretion.
l. A Violation of HRS § 291-3.3(b) Should Not Be
Included In A Traffic Abstract
On the question of statutory interpretation,
the fundamental starting point ... is the language of the
statute itself. . . . Moreover, where the language of the
statute is plain and unambiguous, [the court's] only duty is
to give effect to its plain and obvious meaning. When
construing a statute, [a court's] foremost obligation is 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. And [the court]
must read statutory language in the context of the entire
statute and construe it in a manner consistent with its
purpose.
State v. ToVomura, 80 Hawafi 8, 18-l9, 904 P.2d 893, 903-04
(1995) (citations, internal quotation marks, and brackets in
original omitted). The district court examined two statutes: HRS
§ 287-3(a), the statute which governs the information found in
traffic abstracts; and HRS § 291-3.3(b), the statute Cooley
` admitted violating.
` (a) Traffic Abstracts Under HRS § 287-3
HRS § 287-3(a), regarding traffic abstracts, provides
in pertinent part:
The traffic violations bureaus of the district courts, upon
request, shall furnish any person a certified abstract of
the bureaus' record, if any, of any person relating to all
alleged moving violations and any convictions resulting
therefrom, arising from the operation of a motor vehicle and
any administrative license revocation pursuant to chapter
FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
291E, part III and chapter 286, part XIV, as it was in
effect on or before December 31, 2001.
HRS § 287-3(a) (2007)(emphasis added).
Since Cooley's violation of HRS § 291-3.3(b) is clearly
not an administrative license revocation, it should be included
in his traffic abstract if it is: an alleged "moving violation"
or a conviction resulting from an alleged moving violation; and
it arose "from the operation of a motor vehicle".
The term "moving violation" is undefined in the Hawaii
Revised Statutes and there exists no case law shedding light on
its interpretation. A"[O]rdinary meanings are attached to terms
not given a statutory definition" and one may "[r]esort to legal
or other well accepted dictionaries [as] one way to determine the
ordinary meanings of certain terms." State v. Chen, 77 Hawafi
329, 337, 884 P.2d 392, 400 (App. l994) (CitatiOn omitted).
Black's Law Dictionary defines a moving violation as "[a]n
infraction of a traffic law while the vehicle is in motion."
Black's Law Dictionary 1111 (9th ed. 2009).
(b) HRS § 291-3.3(b) Is Not A Moving Violation
Arisinq From The Operation Of A Motor Vehicle
Although Chapter 291 is entitled "Traffic Violations",
the specific provisions of HRS § 291-3.3(b) do not involve a
moving violation and do not involve a motor vehicle at all. HRS
§ 291-3.3 provides, in its entirety:
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, if the vehicle is not equipped
with a trunk. A utility or glove compartment shall be
FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
deemed to be within the area occupied by the driver
and passengers.
(b) No person shall consume any intoxicating liquor at any
scenic lookout.
(c) Subsection (a) shall not apply to a recreational or
other vehicle not having a separate trunk compartment.
(d) Any person violating this section shall be guilty
of a violation.
HRS § 291-3.3 (2007) (emphasis added). The subsection Cooley
admitted to violating is plain and unambiguous on its face: it
prohibits the consumption of liquor at a "scenic lookout." A
"scenic lookout" is defined as "includ[ing] any area within or
adjoining a public street, road, or highway which is intended for
use by motorists as a stopping or parking area attendant to the
enjoyment of the surrounding scenery or a view." HRS § 291-1
(200”7). 8
Although one must be at a scenic lookout to violate HRS
§ 291-3.3(b), Cooley correctly asserts that, "[w]hether or not a
motor vehicle is involved is wholly irrelevant to a charge under
HRS § 291-3.3(b)." Furthermore, based on a plain reading of the
definition of "scenic lookout", one does not need to be in or
around a vehicle to be at a "scenic lookout."
Based on the clear language of both HRS § 287-3(a) and
HRS § 291-3.3(b), and because HRS § 291-3.3(b) does not describe
a "moving violation" which arises from the "operation of a motor
vehicle", the district court disregarded the statutory
requirements and abused its discretion in determining that a
violation of HRS § 291-3.3(b) was properly included as part of
Cooley's traffic abstract.’
7 The State makes the contention that HRS § 287-3 "does not purport to
limit contents of the abstract to only those [moving] violations" and that the
traffic bureaus in essence may choose to include non-moving violations. This
argument is unpersuasive. First, based on the legislative history of the
statute, it was adopted in 1949 as part of the legislature's effort "to aid in
(continued...)
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2. There Was No Waiver Bv Cooley Regardinq The
Traffic Abstract
In its Order Denying Motion, the district court
concluded that: "[i]n admitting to a violation of HRS 291-3.3(b)
defendant waived any defense that the consumption of the
intoxicating liquor at the scenic lookout had to have arisen from
the operation of a motor vehicle."
lt is undisputed that Cooley admitted to the amended
charge of violating HRS § 291-3.3(b). However, as discussed
above, this provision does not include any involvement of a motor
vehicle. Moreover, there are no facts in the record indicating
that the allegations against Cooley in any way involved a "moving
violation" or a motor vehicle at all.
"Waiver" is generally defined as "an intentional
relinquishment of a known right, a voluntary relinquishment of
rights, and the relinquishment or refusal to use a right." QQQg
v. City and County of Honolulu, 98 HawaFi 233, 26l, 47 P.3d 348,
376 (2002) fquoting In re Estate of Searl, 72 Haw. 222, 226-27,
811 P.2d 828, 831 (1991)). To constitute a valid waiver, "there
must have existed a right claimed to have been waived and the
waiving party must have had knowledge, actual or constructive, of
the existence of such a right at the time of the purported
waiver." QQQg at 261, 47 P.3d at 376. A waiver can be express
or implied: it can either be established by an express statement
or agreement, or reasonably inferred from acts and conduct. Id.;
7(...continued)
the elimination of reckless and irresponsible drivers" by requiring that
drivers involved in certain types of incidents provide security or proof of
financial responsibility. §§§ S. Stand. Comm. Rep. No. 734 in 1949 Senate
Journal, at 877; H. Stand. Comm. Rep. No. 734 in 1949 House Journal, at 1876.
To include non-moving violations on traffic abstracts would be inconsistent
with that purpose. Second, the phrase "moving violations" first appeared in
the 1982 amendments to the statute. The legislative committee adding this
language stated: "Your Committee has amended this bill to limit the furnishing
of records to those involving 'moving violations'." H. Stand. Comm. Rep.
No. 427 in 1982 House Journal, at 1083. (emphasis added).
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FOR PUBLICATION IN WEST'S HAWAI°I REPORTS AND PACIFIC REPORTER
Wilart Assocs. v. Kapiolani Plaza, Ltd., 7 Haw. App. 354, 359-60,
766 P.2d l207, 1210-ll (l988).
Based on the record in this case, there is nothing on
which to base a conclusion that Cooley intentionally relinquished
any right to challenge an improper listing of a HRS § 291-3.3(b)
violation on his traffic abstract. There is nothing to suggest
the traffic abstract was in any way contemplated or should have
been contemplated before Cooley admitted to the violation, or
that he had actual or constructive knowledge that his admission
could lead to the violation appearing on his abstract. Rather,
the district court infers that, because Chapter 291 relates to
traffic violations and given the title of HRS § 291-3.3, Cooley
waived any defense that the violation he was admitting must have
arisen from the operation of a motor vehicle. The district
court's inference disregards that the particular violation under
HRS § 291-3.3(b) does not involve a moving violation or a motor
vehicle at all. The district court disregarded both the clear
language of HRS § 291-3.3(b) and the legal principles as to
waiver.
The State cites to State v. Morin, 71 Haw. 159, 785
P.2d 1316 (1990) in arguing that “by entering a plea of no
contest without reserving the right to appeal nonjurisdictional
issues, Defendant effectively waived his right to appeal the
consequences of the ruling, one of which circumstances involved
the inclusion of the offense in Defendant‘s traffic abstract."
In Morin, the Hawafi Supreme Court held:
[t]o allow the Defendants to plead no contest in exchange
for the reduction and dismissal of charges against them, and
1 then to permit them to attack the remaining convictions
achieved by those pleas . . . would jeopardize the integrity
of the plea bargaining process. Defendants' pleas,
therefore, preclude them from now contesting any
nonjurisdictional issues .
71 Haw. at 164, 785 P.2d at l319.
FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Mgrin is inapposite. Cooley did not enter a plea of no
contest to a criminal charge. Rather, Cooley admitted to a non-
criminal violation. Then, by his Motion To Correct Abstract,
Cooley did not seek to undermine in any way his admission to the
violation. Rather, he challenged the subsequent and improper
listing of the violation on his traffic abstract.
1 We therefore hold that the district court abused its
discretion in concluding that Cooley waived his defenses or
rights related to the traffic abstract.
III. Conc1usion
Based on the foregoing, we reverse the district court's
Order Summarily Denying Motion To Correct Abstract Of Traffic
Record issued on August 6, 2007 and remand for entry of an order
directing that the HRS § 291-3.3(b) violation be deleted from
Cooley's traffic abstract.
DATED= Honolulu, Hawai‘i, June 30, 2010.
On the briefs:
Carol A. Eblen
Regan M. Iwao
(Goodsill Anderson Quinn & Stifel)
for Defendant-Appellant
Peter B. Carlisle
Prosecuting Attorney
Anne K. Clarkin
Deputy Prosecuting Attorney
for Plaintiff-Appellee
10