State v. Shimabukuro

Dissenting Opinion by

NAKAYAMA, J.,

with whom RAMIL, J., Joins.

In this case, Shimabukuro’s fourth offense, I dissent from Justice Acoba’s opinion to emphasize the fact that HRS § 291-4.4 is not a recidivist statute, inasmuch as it is a separate offense. As a separate offense, HRS § 291-4.4 requires that two elements be proven to convict a person of habitual DUI: (1) the person must have at least three prior convictions for DUI within a ten-year period; and (2) the person must operate or assume physical control of a vehicle while (a) under the influence of intoxicating liquor in an amount…