The decision's importance to the defense bar can be grasped if one imagines all the charges of OVUII currently before trial courts that omitted the newly essential language. But that's a boring point best left for stodgy, boring, self-important blogs like Hawaii Appellate Law Blog. The fun part of Wheeler was the defense attorney's dancing around his oral motion to dismiss on grounds that the charge failed to state on offense, without tipping off the prosecutor as to how to amend the charge.
Defense counsel said a couple of times that the defendant didn't understand the charges and asked that the prosecutor state them in "common vernacular" and avoid using "legally defined terms of art." The prosecutor said, essentially, 'What the hell?' and the court said, literally, "I don't know what you're talking about," and, "Can you be more specific?" Whereupon defense counsel said, "I don't wanna give the prosecution any more hints than I've already given them" because "my job isn't to come in here and teach 'em how to charge a case."
I love that.
Wheeler's counsel's "final hint" to the prosecution and the court was that his objection related to a "verb," but that the court said it was still unable to discern the nature of the objection, and proceeded with a non-jury trial.
5 comments:
I'm having a hard time following.
It means that it can't be a DUI unless the vehicle is moving (being "operated")?
Sorry for the confusion. It can't be OVUII unless the vehicle is being operated "on a public way, street, road, or highway."
If the prosecution fails to include the "public street" element in the charge, then the charge fails to state an offense.
The OVUII statute just says a person violates the statute if the person operates a vehicle while under the influence. It says nothing about 'on a public street.' Elsewhere in the code however, "operate" is defined as driving on a public street.
The prosecution argued that, because under the law 'operate' means on a public street, the public street element of the crime is contained in the charge that the defendant "operated" a vehicle.
The defense counsel and, ultimately the ICA and the Supreme Court, disagreed, saying that "operate" in that sense is a legal term of art that no non-attorney would ever understand or assume to necessarily mean "on a public street."
Therefore, to properly charge OVUII, the prosecutor cannot rely on merely listing the elements of the offense as found in the statute, but must also charge that the operating took place on a public street.
I made a couple of changes to the post that I hope make it more clear.
Cool! So I can drive drunk in my own yard all I want!!! Woo Hoo!!!
how about a drunk demolition derby course on private property. Drunks could drive around and crash into each other. Keep em off the public street.
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