***NOT FOR PUBLICATION***
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
STATE OF HAWAI`I, Plaintiff-Appellant
JAMES PAUL ILALIO, also known as Lopaki Sakalia
and Vitti Ilalio, Defendant-Appellee
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NO. 02-1-2609)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, and Duffy, JJ.;
and Acoba, J., Dissenting, With Whom Nakayama, J., Joins)
By its June 10, 2003 notice, Plaintiff-Appellee State of Hawai`i (the prosecution) appeals from the May 29, 2003 order of
the circuit court of the first circuit (the court) (1)
dismissing the December 3, 2002 indictment charging Defendant-Appellee
James Paul Ilalio, also known as Lopaki Sakalia and Vitti Ilalaio
(Defendant) with Count I, habitually driving under the
influence of intoxicating liquor or drugs, Hawai`i Revised Statutes
(HRS §§ 291-4.4(a)(2) (Supp. 2000) and/or 291-4.4(a)(2)
(Supp 2000) and Count II, driving after license suspended or revoked
for driving under the influence of
intoxicating liquor, HRS § 291-4.5 (1993 & Supp. 2000). On
appeal the prosecution argues, inter alia
that, as to HRS §§
291-4.4(a)(1) and -4.4(a)(2) and HRS§ 291-4.5, "the trial
court abused its discretion when it dismissed the indictment as the
[prosecution] properly charged
Defendant under the statutes that were in effect at the time Defendant
committed the offenses in question." State v.
--- Hawai`i ---, ---, 107 P.3d 409, 411 (2005), held that HRS §
291-4.4 (Supp. 1999) was substantially re-enacted in HRS
§ 291E-61 (Supp. 2001) and is dispositive of Count I. (2) State v. Young,
No. 25610, slip op. at 3-4 (Mar.
30, 2005), held that HRS § 291-4.5 (1993 & Supp. 2000)
was substantially re-enacted in HRS § 291E-62 (Supp. 2004) and
is dispositive of Count II.
In accordance with Hawai`i Rules of Appellate Procedure Rule 35, and after carefully reviewing the record and the briefs
submitted by the parties, and duly considering and analyzing the law relevant to the arguments and issues raised by the
IT IS HEREBY ORDERED that the court's order filed on May 29, 2003, from which the appeal is taken, is vacated with
respect to Count I and vacated with respect to Count II, and the case remanded to the court in accordance with this order.
DATED: Honolulu, Hawai`i, April 4, 2005.
On the briefs:
Mark Yuen, Deputy ProsecutingJames S. Tabe, Deputy Public
Attorney, City & County of
Honolulu, for plaintiff-
Defender, for defendant-appellee.
1. The Honorable Sandra A. Simms presided.
Defendant's arguments that (1) "prosecution is
barred by the general rule prohibiting post-repeal prosecutions," (2)
"prosecution is barred by the plain meaning of Act 189's repeal of HRS
§§ 291-4.4 and 291-4.5," and (3) "prosecution is
barred because HRS § 291E-61 is not [a] 'substantial re-enactment'
of HRS § 291-4.4 and HRS § 291E-62 is not a
'substantial re-enactment' of HRS § 291-4.5" are disposed of and
subsumed in the analyses set forth in the majority and
dissenting opinions in Domingues and Young. Defendant argues further that "[u]nder the 'rule of lenity,' an ambiguity, if
any, attendant to the Legislature's repeal of HRS §§ 291-4.4 and 291-4.5 should be resolved in [Defendant's] favor."
However, no ambiguity is discerned in the repeal of HRS §§ 291-4.4 and 291-4.5.