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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              15-JAN-2019
                                                              08:15 AM



            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellant,

                                    vs.

                    MANAIAKALANI N.K. KALUA,
                 Petitioner/Defendant-Appellee.
________________________________________________________________

                             SCWC-XX-XXXXXXX

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-XX-XXXXXXX; 3DTC-11-040282)

                            JANUARY 15, 2019

  BY McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
            DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

                 OPINION OF THE COURT BY WILSON, J.

           Petitioner/Defendant-Appellee Manaiakalani N.K. Kalua

(Kalua) was concurrently cited for speeding and excessive

speeding offenses while driving through two separate speed

zones.   This case addresses the issue whether the Intermediate

Court of Appeals (ICA) erred in holding that the entry of
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judgment on Kalua’s noncriminal speeding infraction failed to

bar the Respondent/Plaintiff-Appellant State of Hawaiʻi (State)

from prosecuting him for the crime of excessive speeding.                Kalua

contends that his prosecution for excessive speeding is barred

by Hawaiʻi Revised Statutes (HRS) §§ 701-109(1)1 and (2)2 (2007)

and by the double jeopardy clauses of the United States and

Hawaiʻi Constitutions.3      We hold that double jeopardy is



     1
           HRS § 701-109(1) provides:

           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;
           (b)    One offense consists only of a conspiracy or
                  solicitation to commit the other;
           (c)    Inconsistent findings of fact are required to
                  establish the commission of the offenses;
           (d)    The offenses differ only in that one is defined to
                  prohibit a designated kind of conduct generally and
                  the other to prohibit a specific instance of such
                  conduct; or
           (e)    The offense is defined as a continuing course of
                  conduct and the defendant’s course of conduct was
                  uninterrupted, unless the law provides that specific
                  periods of conduct constitute separate offenses.
     2
           HRS   § 701-109(2) provides in relevant part:

           [A] defendant shall not be subject to separate trials for
           multiple offenses based on the same conduct or arising from
           the same episode, if such offenses are known to the
           appropriate prosecuting officer at the time of the
           commencement of the first trial and are within the
           jurisdiction of a single court.
     3
            The fifth amendment to the U.S. Constitution guarantees that
“[n]o person shall . . . be subject for the same offence to be twice put in
jeopardy of life or limb[.]” U.S. Const. amend. V. Likewise, the Hawaiʻi

                                                             (. . . continued)

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inapplicable to the civil offense of speeding under its current

statutory framework.      We also hold Kalua is subject to

prosecution for both excessive speeding and speeding; however,

if on remand the District Court of the Third Circuit (district

court) finds at trial that the excessive speeding charge arises

from the same conduct as the speeding infraction, the “lesser

included offense” provision of HRS § 701-109(1)(a) will preclude

his conviction for excessive speeding.         We thus affirm the ICA’s

judgment vacating the district court’s dismissal of the

excessive speeding offense, but for the reasons stated herein,

and the case is remanded to the district court for further

proceedings.

                              I.    Background

      A.    Stipulated Facts

            On September 14, 2011, Kalua was cited for speeding,

in violation of HRS § 291C-102,4 and for excessive speeding, in

violation of HRS § 291C-105.5       On November 28, 2011, Kalua paid


(continued . . .)

Constitution provides that “[n]o person shall . . . be subject for the same
offense to be twice put in jeopardy[.]” Haw. Const. art. 1, § 10.
      4
            HRS § 291C-102 (2007) provides in relevant part that “[a] person
violates this section if the person drives . . . [a] motor vehicle at a speed
greater than the maximum speed limit other than provided in section 291C-
105.” HRS § 291C-102(a)(1).
      5
            HRS § 291C-105 (2007) provides in relevant part, as it did at the
time of the offense, that “[n]o person shall drive a motor vehicle at a speed

                                                             (. . . continued)

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the $137 fine for the speeding infraction after a default

judgment was entered against him in the district court.             On

January 5, 2012, in the district court, Kalua pled not guilty to

the charge of excessive speeding.         Kalua subsequently filed a

motion to dismiss the excessive speeding charge pursuant to HRS

§ 701-109(2).

            At the April 19, 2012 hearing6 on the motion to dismiss

the excessive speeding charge, the parties agreed to stipulate

to the following relevant facts:          (1) the citing police officer,

Thomas Koyanagi, used radar to measure Kalua’s speed at a

“steady speed of 73 miles per hour while entering a 45 miles per

hour zone”; (2) Officer Koyanagi observed Kalua pass two 40

miles per hour signs; and (3) Officer Koyanagi subsequently

stopped Kalua and cited him for driving 71 miles per hour in a

55 miles per hour zone in violation of HRS § 291C-102(a)(1)7 and

for driving 73 miles per hour in a 40 miles per hour zone in



(continued . . .)

exceeding . . . [t]he applicable state or county speed limit by thirty miles
per hour or more.” HRS § 291C-105(a)(1). The statute further provides, as
it did at the time of the offense, “[a]ny person who violates [HRS § 291C-
105] shall be guilty of a petty misdemeanor[.]” HRS § 291C-105(c).
      6
            The Honorable Melvin Fujino presided.
      7
            The district court’s finding of fact No. 3 incorrectly states
that Kalua was cited for traveling 73 miles per hour in a 55 miles per hour
zone. DC Dkt. 9/26/12 “Amended Order Granting Deffendant’s [sic] Motion to
Dismiss Excessive Speeding Charge Under HRS § 701-109(2)” at 2.




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violation of HRS § 291C-105(a)(1).        Additionally, the parties

agreed that “at no time was there a break in the occurrence from

the time that . . . Officer Koyanagi saw [Kalua] to the time

[Kalua] stopped and was cited.       And he was issued both tickets

upon that stop.”

            The district court granted Kalua’s motion to dismiss

the excessive speeding charge.       The court determined that the

speeding infraction was a lesser included offense of excessive

speeding.    Because Kalua had paid the fine for the speeding

infraction, the court reasoned that prosecuting him for the

excessive speeding charge would violate HRS § 701-109(1)(a),

which prohibits the State from convicting a defendant “of more

than one offense” if one offense “is included in the other.”

The court thus found that HRS § 701-109(1)(a) barred the State

from prosecuting Kalua on the excessive speeding charge.             The

court further found that the double jeopardy clause barred the

State from prosecuting Kalua on the excessive speeding charge.

            The district court’s order granting Kalua’s motion to

dismiss the excessive speeding charge was filed on May 21, 2012,

and later amended on September 26, 2012.         In the amended order,

the district court cited HRS § 701-109(2) in concluding that the

State was barred from prosecuting Kalua on the excessive

speeding charge.    The district court explained that Kalua’s



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conduct consisted of “the operation of his vehicle at a speed in

excess of the applicable speed limit,” and concluded that his

conduct “constituted a single episode.”         The court therefore

concluded that prosecution of the excessive speeding offense was

barred because HRS § 701-109(2) bars separate trials for

offenses based on the same conduct or arising from the same

episode.

     B.    ICA Proceedings

           In its opinion, the ICA vacated the district court’s

order granting Kalua’s motion to dismiss and remanded the case

for proceedings consistent with its opinion.          State v. Kalua,

136 Hawaiʻi 181, 189, 358 P.3d 750, 758 (App. 2015).           The ICA

held that the prior adjudication of Kalua’s speeding infraction

fails to bar the State from subsequently prosecuting Kalua for

the crime of excessive speeding.         Id. at 184-86, 358 P.3d at

753-55.    In the ICA’s view, HRS § 291D-3(d) (2007) “eliminates

any bar to criminal prosecution that could otherwise arise from

the separate adjudication of non-criminal traffic

infractions[,]” and “permit[s] prosecution of a criminal offense

where the adjudicated traffic infraction is a lesser included

traffic infraction of the charged crime.”          Id. at 186, 358 P.3d

at 755.    The ICA also concluded that double jeopardy did not bar

subsequent prosecution for excessive speeding because double



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jeopardy only prohibits successive criminal prosecutions, and

therefore did not apply to the prior civil adjudication for the

speeding infraction.      Id. at 187-89, 358 P.3d at 756-58.

                        II.   Standards of Review

     A.     Constitutional Law

            “This court reviews questions of constitutional law de

novo under the right/wrong standard and thus exercises its own

independent judgment based on the facts of the case.”             State v.

Curtis, 139 Hawaiʻi 486, 492, 394 P.3d 716, 722 (2017) (internal

quotation marks and citation omitted).

     B.     Statutory Interpretation

            Statutory interpretation is “a question of law

reviewable de novo.”      State v. Levi, 102 Hawaiʻi 282, 285, 75

P.3d 1173, 1176 (2003) (internal quotation marks and citations

omitted).    Statutory construction is guided by established

rules:

            First, the fundamental starting point for statutory
            interpretation is the language of the statute itself.
            Second, where the statutory language is plain and
            unambiguous, our sole duty is to give effect to its plain
            and obvious meaning. Third, implicit in the task of
            statutory construction is our foremost obligation 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. Fourth, when
            there is doubt, doubleness of meaning, or indistinctiveness
            or uncertainty of an expression used in a statute, an
            ambiguity exists.

State v. Bayly, 118 Hawaiʻi 1, 6, 185 P.3d 186, 191 (2008)

(citation omitted).

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     C.    Conclusions of Law

           “A trial court’s conclusions of law are reviewed de

novo under the right/wrong standard.”         State v. Adler, 108

Hawaiʻi 169, 174, 118 P.3d 652, 657 (2005) (citation omitted).

                             III. Discussion

           Kalua raises a single issue:        does the prior

adjudication of his civil traffic offense of speeding bar the

State from subsequently prosecuting Kalua for the criminal

traffic offense of excessive speeding?         See HRS § 291C-102

(penalizing speeding); HRS § 291C-105 (penalizing excessive

speeding).

           Kalua contends the prior adjudication under HRS §

291C-102 prevents subsequent prosecution for excessive speeding

under HRS § 291C-105, and advances three arguments in support of

his contention.    First, he argues that the State cannot

prosecute him on the excessive speeding charge because HRS §

701-109(1)(a) bars convicting a defendant of multiple offenses

where one offense is included in the other.          Having been

convicted of the lesser offense of speeding, he argues, he

cannot later be prosecuted for the greater offense of excessive

speeding as well, given that both were committed in the same

course of conduct.     Second, Kalua argues that HRS § 701-109(2)

imposes a compulsory joinder requirement barring successive



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trials for multiple offenses arising from the same conduct.              In

other words, he argues the State was required to prosecute both

offenses together.     Under this analysis, Kalua contends that

because the speeding charge had already been adjudicated, the

State was barred under HRS § 701-109(2) from prosecuting him in

a later trial on the excessive speeding charge.           Third, Kalua

argues that the double jeopardy doctrine bars the State from

prosecuting him for both speeding and excessive speeding.

           The State contends that it may prosecute Kalua for

excessive speeding even though the speeding infraction he

committed during the same course of conduct has been

adjudicated.    According to the State, HRS § 291D-3(d) expressly

prevents HRS § 701-109 from barring subsequent prosecution of a

criminal traffic offense, such as excessive speeding, when a

prior civil traffic offense committed during the same course of

conduct has already been adjudicated.         Second, as to the

compulsory joinder requirement of HRS § 701-109(2), the State

argues that the statute applies only if both offenses are known

to the prosecuting officer at the time the first trial begins,

and that was not the case here.        Finally, the State stresses,

double jeopardy applies only to successive criminal trials, not

to a civil adjudication followed by a criminal trial.




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           We begin by examining the double jeopardy doctrine and

conclude it is not applicable.       We then consider the State’s

arguments that HRS § 291D-3(d) precludes traffic offenses from

the prohibitions contained in HRS § 701-109 regarding separate

prosecutions and multiple convictions.         We hold that HRS § 291D-

3(d) precludes the compulsory joinder requirement contained in

HRS § 701-109(2) in the context of traffic infractions.

Accordingly, Kalua can be prosecuted separately for speeding and

excessive speeding.     However, we also conclude that HRS § 291D-

3(d) does not preclude applicability of HRS § 701-109 regarding

lesser included offenses.8      Thus, Kalua cannot be convicted of

speeding and excessive speeding if both offenses involve the

same conduct pursuant to HRS § 701-109(1), as speeding is a

lesser included offense of excessive speeding pursuant to HRS §§

701-109(1)(a) and 701-109(4).

     A.   The Double Jeopardy Clause Does Not Bar Kalua’s
Prosecution for Excessive Speeding

           “Double jeopardy protects individuals against:            (1) a

second prosecution for the same offense after acquittal; (2) a

second prosecution for the same offense after conviction; and

(3) multiple punishments for the same offense.”           State v. Higa,

79 Hawaiʻi 1, 5, 897 P.2d 928, 932 (1995).         Kalua argues that the

     8
           HRS §§ 701-109(1)(a) and 701-109(4).




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double jeopardy clauses of the U.S. and Hawaiʻi Constitutions bar

the State from prosecuting the excessive speeding charge.             The

ICA rejected Kalua’s argument by concluding that because the

double jeopardy clause only bars successive criminal

prosecutions and multiple criminal punishments, the prior

adjudication of Kalua’s noncriminal speeding infraction did not

act as a bar to the State’s subsequent prosecution for excessive

speeding.    Kalua, 136 Hawaiʻi at 186–89, 358 P.3d at 755–58.             We

agree.

             In Tauese v. State, Dep’t of Labor & Indus. Relations,

113 Hawaiʻi 1, 31, 147 P.3d 785, 815 (2006), we adopted “a two-

part inquiry for determining whether a statutorily defined

penalty is civil or criminal:”       (1) whether the legislature

intended the penalty to be civil or criminal and, if so,             (2)

“whether the statutory scheme was so punitive either in purpose

or effect as to negate that intention.”         (Citation omitted).

Taken together, these factors clearly support the conclusion

that the sanctions imposed for speeding are a civil remedy

rather than a criminal punishment.        See id. at 31-32, 147 P.3d

at 815-16.

             With respect to (1), whether the legislature intended

the penalty to be civil or criminal, here, the punishment for

speeding is purely monetary:       maximum fines of up to $200 for a


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first violation, $300 for a second violation within one year,

and $500 for a third violation within one year, or community

service in lieu of a monetary assessment at the court’s

discretion based on inability to pay.         See HRS §§ 291D-9 (2007),

291D-10 (2007), and 291C-161 (2007 & Supp. 2008).9            Thus, the

sanctions imposed for Kalua’s speeding violation did not

constitute a criminal punishment.         Accordingly, criminal

prosecution for Kalua’s excessive speeding charge is not barred

under the double jeopardy clause by the default judgment entered

on his noncriminal speeding offense.

     B.   HRS § 291D-3(d) Precludes Applicability of the
Compulsory Joinder Provision of HRS § 701–109(2) in the Context
of Traffic Offenses, but Does Not Provide an Exception to the
Provision in HRS § 701–109(1)

            Because we have concluded that Kalua’s potential

prosecution for excessive speeding is not barred by the double

jeopardy clauses of the U.S. or Hawaiʻi Constitutions, we turn to

the statutory provisions relevant to whether he can be

prosecuted and convicted for excessive speeding as well as

speeding.    Kalua argues that the State cannot prosecute him on

the excessive speeding charge because HRS § 701-109(1)(a) bars

convicting a defendant of multiple offenses where one offense is

     9
            Our discussion in Section III.B below regarding the
decriminalization of traffic infractions through Chapter 291D further makes
clear that the legislature intended that the penalties for ordinary speeding
under HRS § 291C-102 be civil in nature.




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included in the other.      Having been convicted of the lesser

offense of speeding, he argues, he cannot later be prosecuted

for the greater offense of excessive speeding as well, given

that both were committed in the same course of conduct.             Second,

he argues that HRS § 701-109(2) imposes a compulsory joinder

requirement barring successive trials for multiple offenses

arising from a continuing course of conduct.

           The State contends that it may prosecute Kalua for

excessive speeding even if the speeding infraction he committed

is a lesser included offense committed during the same course of

conduct.   According to the State, HRS § 291D-3(d) expressly

prevents HRS § 701-109 from barring subsequent prosecution of a

criminal traffic offense, such as excessive speeding, when a

prior civil traffic offense committed during the same course of

conduct has already been adjudicated.         Thus, while HRS § 701-

109(1)(a) forbids convicting a defendant of both a lesser

included offense and the greater offense, the State argues HRS §

291D-3(d) creates an exception to that rule.          Second, the State

rejects Kalua’s argument that prosecuting him for excessive

speeding would violate the compulsory joinder requirement of HRS

§ 701-109(2); the State contends that HRS § 291D-3(d) precludes

the operation of all provisions in HRS § 701-109 in the traffic

offense context, including the compulsory joinder requirement.



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           Plainly, the arguments advanced by both the State and

Kalua turn on the meanings of HRS §§ 701-109 and 291D-3(d) and

how they interrelate.      We turn to the State’s argument that HRS

§ 291D-3(d)10—precluding the compulsory joinder provision of HRS

§ 701-109(2)—also precludes application of HRS § 701-10911



     10
            HRS § 291D-3(d) states that “[i]n no event shall section 701-109
preclude prosecution for a related criminal offense where a traffic
infraction committed in the same course of conduct has been adjudicated
pursuant to this chapter.” (Emphasis added).
     11
           HRS § 701-109 provides:

                 (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;
           (b)   One offense consists only of a conspiracy or
                 solicitation to commit the other;
           (c)   Inconsistent findings of fact are required to
                 establish the commission of the offenses;
           (d)   The offenses differ only in that one is defined to
                 prohibit a designated kind of conduct generally and
                 the other to prohibit a specific instance of such
                 conduct; or
           (e)   The offense is defined as a continuing course of
                 conduct and the defendant’s course of conduct was
                 uninterrupted, unless the law provides that specific
                 periods of conduct constitute separate offenses.

                 (2) Except as provided in subsection (3) of this
           section, a defendant shall not be subject to separate
           trials for multiple offenses based on the same conduct or
           arising from the same episode, if such offenses are known
           to the appropriate prosecuting officer at the time of the
           commencement of the first trial and are within the
           jurisdiction of a single court.

                 (3) When a defendant is charged with two or more
           offenses based on the same conduct or arising from the same
           episode, the court, on application of the prosecuting
           attorney or of the defendant, may order any such charge to

                                                             (. . . continued)

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barring multiple convictions “[w]hen the same conduct of a

defendant may establish an element of more than one offense[.]”

HRS § 701-109(1).       As we explain more fully below, HRS § 291D-

3(d) preempts only HRS § 701-109(2) relating to compulsory

joinder, not, inter alia, HRS § 701-109(1)(a) barring conviction

for a greater offense as well as its lesser offense.

            HRS § 701-109(2), the “compulsory joinder” provision,

generally prevents the State from exposing a defendant to

separate trials for separate offenses when the multiple charges

arise from the same conduct or episode.            It is the only

provision of HRS § 701-109 that prevents multiple prosecutions

“[w]hen the same conduct of a defendant may establish an element

of more than one offense[.]”         HRS § 701-109(1).      Under HRS §



(continued . . .)

            be tried separately, if it is satisfied that justice so
            requires.

                  (4) A defendant may be convicted of an offense
            included in an offense charged in the indictment or the
            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.




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701-109(2), the separate offenses must generally be joined or

consolidated in a single trial.

                  (2) Except as provided in subsection (3) of this
            section, a defendant shall not be subject to separate
            trials for multiple offenses based on the same conduct or
            arising from the same episode, if such offenses are known
            to the appropriate prosecuting officer at the time of the
            commencement of the first trial and are within the
            jurisdiction of a single court.[12]

See State v. Akau, 118 Hawaiʻi 44, 46, 185 P.3d 229, 231 (2008)

(referring to HRS § 701–109(2) as a “compulsory joinder” statute

and stating that it requires joinder of all criminal offenses

“based on the same conduct or arising from the same episode”);

State v. Keliiheleua, 105 Hawaiʻi 174, 181, 95 P.3d 605, 612

(2004) (noting that HRS § 701–109(2) reflects “a policy that all

charges that arise under one episode be consolidated in one

trial so that a defendant need not face the expense and

uncertainties of multiple trials based on essentially the same

episode” (citation omitted)); Model Penal Code and Commentaries

§ 1.07 cmt. at 116 (Am. Law Inst. 1962) (“Subsection (2) is

designed to prevent the state from subjecting a defendant to

separate trials based on essentially the same conduct.             It

requires the prosecution to join in one trial all offenses based

     12
            As its opening clause indicates, the compulsory joinder provision
of HRS § 701-109(2) will not apply if a court finds that justice requires
separate trials. “When a defendant is charged with two or more offenses
based on the same conduct or arising from the same episode, the court, on
application of the prosecuting attorney or of the defendant, may order any
such charge to be tried separately, if it is satisfied that justice so
requires.” HRS § 701-109(3).



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on the same conduct or arising from the same criminal episode.

The penalty for failure to do so is a bar to further prosecution

. . . .”).

           In 1993, the legislature made an exception to the

compulsory joinder provision of HRS § 701-109(2) to provide for

a bifurcated (or two-track) system featuring separate procedural

tracks for processing civil and criminal traffic offenses.

           In response to a request by the legislature, the judiciary
           prepared a report in 1987 that recommended, among other
           things, further decriminalization of traffic offenses,
           elimination of most traffic arraignments, disposition of
           uncontested violations by mail, and informal hearings where
           the violation or the proposed penalty is questioned. The
           legislature finds that further decriminalization of certain
           traffic offenses and streamlining of the handling of those
           traffic cases will achieve a more expeditious system for
           the judicial processing of traffic infractions.

HRS § 291D-1 (2007).     See also 1993 Haw. Sess. Laws Act 214, § 1

at 365 (“The purpose of this Act is to improve the system by

which traffic offenses presently are being processed in order to

dispose expeditiously of these cases and thereby achieve

efficient and effective use of limited judicial and law

enforcement resources.”).      Under the then-new system, civil

traffic offenses could be processed on one track, while the

generally more complex criminal traffic offenses could be

processed on a different track, thereby creating a

“streamlin[ed]” and “more expeditious system for the judicial

processing of traffic infractions.”        HRS § 291D-1.




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           HRS § 291D-3(d)13 was therefore a necessary piece of

the two-track structure.       HRS § 291D-3(d) negates the Penal

Code’s general compulsory joinder provision (HRS § 701-109(2))

in the specific context of civil and criminal traffic offenses

committed in the same course of conduct.          That, in turn, allows

the successive prosecutions envisioned by the two-track system

for processing a civil traffic offense and a criminal traffic

offense arising out of the same course of conduct.14

           Thus, the ICA correctly concluded that HRS § 291D-3(d)

“eliminates any bar to criminal prosecution that could otherwise

arise from the application of HRS § 701–109(2),” that is, from

the application of HRS § 701–109’s compulsory joinder provision.

Kalua, 136 Hawaiʻi at 186, 358 P.3d at 755 (emphasis added); see

also HRS § 701–109(2) (requiring that defendants “not be subject

to separate trials for multiple offenses based on the same

conduct or arising from the same episode if such offenses are
     13
            HRS § 291D-3(d) provides that “[i]n no event shall section 701-
109 preclude prosecution for a related criminal offense where a traffic
infraction committed in the same course of conduct has been adjudicated
pursuant to this chapter.”
     14
            The two-track system allows separate processing of a civil
traffic offense and a criminal traffic offense arising out of the same course
of conduct. But consistent with its underlying purposes of streamlining and
efficiency, the two-track system also allows a single trial of both types of
offenses where they arise out of the same course of conduct. HRS § 291D-2
(2007) (authorizing a “[c]oncurrent trial . . . in which the defendant is
tried simultaneously in a civil case for any charged traffic infraction and
in a criminal case for any related criminal offense, with trials to be held
in one court on the same date and at the same time”). See also HRS § 291D-
13(d) (2007).




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known to the appropriate prosecuting officer at the time of the

commencement of the first trial[,]” except under certain

circumstances).

           While we agree that HRS § 291D-3(d) specifically

precludes application of the compulsory joinder provisions of

HRS § 701–109(2), HRS § 291D-3(d) does not have a generally

preclusive effect on every provision of HRS § 701–109.

Specifically, HRS § 291D-3(d) does not have a preclusive effect

on the provisions of HRS § 701–109(1), including those governing

lesser included offenses.

           HRS § 291D-3(d), by its terms, applies only to HRS §

701–109(2).    “In no event shall section 701-109 preclude

prosecution for a related criminal offense where a traffic

infraction committed in the same course of conduct has been

adjudicated pursuant to this chapter.”         HRS § 291D-3(d)

(emphases added).     The other provisions of HRS § 701–109, in

contrast, apply by their terms not to prosecutions but to

convictions:    “The defendant may not . . . be convicted of more

than one offense if:     (a) [o]ne offense is included in the other

. . . .”   HRS § 701–109(1)(a) (emphasis added).          As we stated in

State v. Yokota, 143 Hawaiʻi 200, 207, 426 P.3d 424, 431 (2018),

“the Legislature explicitly provided that a defendant may be

charged with multiple offenses arising from the same conduct


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even when he or she cannot be convicted of more than one

offense.”    (Emphases in original) (citing HRS § 701-109(1)).

            Stated differently, HRS § 291D-3(d) authorizes civil

traffic offenses15 to be adjudicated prior to criminal traffic


     15
            The dissent contends that because the 1993 amendment to the
Traffic Code described speeding as a non-criminal “infraction,” speeding is
no longer an “offense”: “One key element of that effort [the 1993
legislation establishing the two-track system] was to establish a new
category of liability called traffic ‘infractions’ and to explicitly provide
that ‘no traffic infraction shall be classified as a criminal offense.’”
Dissent at 4. Under this analysis, speeding infractions cannot be subject to
HRS § 701-109 because § 701-109 only pertains to “offenses.” With respect,
this contention is mistaken. Though speeding is an “infraction,” it remains
a “decriminalized traffic offense.”

            In referring to non-criminal traffic offenses as “infractions,”
the legislature in 1993 only created a category within the already existing
class of “violations,” which themselves are a class of “offenses,” namely,
non-criminal offenses. HRS § 291D-2 (“‘Traffic infraction’ means all
violations of statutes, ordinances, or rules relating to traffic movement and
control . . . for which the prescribed penalties do not include imprisonment
and that are not otherwise specifically excluded from coverage of this
chapter.”).

            An “infraction” not only “means all violations of statutes,
ordinances, or rules relating to traffic movement and control[.]” Id. Under
HRS § 701-107—titled “Grades and classes of offenses”—speeding is included
within a class of non-criminal “offenses,” termed “a violation.” A
“violation” is defined by the Code in two ways. A violation is either any
offense specifically designated as a violation by the Penal Code (or any
other Hawaiʻi statute, such as the Traffic Code) or any offense punishable
only by “a fine, or fine and forfeiture or other civil penalty[.]” HRS §
701-107(5) (emphasis added) (“A violation does not constitute a crime[.]”);
see also HRS § 701-107 cmt. (“Subsection (5) creates a class of non-criminal
offenses, called violations.” (emphasis added)).

            Here, ordinary speeding satisfies both prongs of the Penal Code’s
definition of a “violation,” and a “non-criminal offense[].” See HRS § 701-
107(5). First, the ordinary speeding statute provides for no other sentence
than a fine. HRS § 291C-102(a)(1); HRS § 291D-9(a)-(b). Second, speeding is
expressly defined as a violation by “another statute of this State,” namely,
the Traffic Code. See HRS §§ 291C-102, 291C-161(a) (“It is a violation for
any person to violate any of the provisions of this chapter, except as
otherwise specified in subsections (c) and (d) and unless the violation is by
other law of this State declared to be a felony, misdemeanor, or petty
misdemeanor.” (emphasis added)). Thus speeding is an infraction that
constitutes both a violation and a non-criminal offense. As a noncriminal

                                                             (. . . continued)

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offenses arising from the same course of conduct without thereby

automatically precluding a later trial for the criminal offense

occurring in the same course of conduct.          But HRS § 291D-3(d)

does not preclude the operation of HRS § 701-109(1)’s provision

prohibiting convicting a defendant of more than one offense,

such as when one offense is the lesser included offense of a

greater offense.     See HRS §§ 701-109(1)(a), 701-109(4).

     C.      Speeding Is a Lesser Included Offense of Excessive
Speeding

             We have previously ruled that speeding is a lesser

included offense of excessive speeding in State v. Fitzwater,

122 Hawaiʻi 354, 357, 378, 227 P.3d 520, 523, 544 (2010).

             In Fitzwater, the defendant was charged with driving

70 miles per hour in a 35 miles per hour zone, “which was 5

miles per hour greater than the threshold established by HRS §

291C–105.”     Id. at 377, 227 P.3d at 543.       Because excessive

speeding is a criminal offense, the State was required to prove

the defendant’s speed beyond a reasonable doubt.            We concluded

that the State failed to meet that burden.          Id. at 378, 227 P.3d

at 544.    The defendant’s speed had been determined by the

officer pacing the defendant with his vehicle, and the defendant

(continued . . .)

“offense,” it is subject to the provisions of HRS § 701-109 other than HRS §
701-109(2).




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challenged the accuracy of the officer’s speedometer.            The trial

court had admitted the “speed check” card for the vehicle

ostensibly showing the accuracy of the speedometer.            We held

that the State had failed to establish sufficient foundation to

admit the speed check card as a business record.           Id. at 374-77,

227 P.3d at 540-43.     Because the speed check card lacked

adequate indicia of reliability regarding calibration testing,

the card had not been properly authenticated as a business

record under Hawaiʻi Rules of Evidence Rule 803(b)(6).              Id. at

369-70, 375, 227 P.3d at 535-36, 541.

           Without the speed check card, there was insufficient

evidence to prove beyond a reasonable doubt that the defendant’s

speed exceeded the threshold of 30 miles per hour over the

posted speed limit required by HRS § 291C-105(a)(1), the

excessive speeding statute.       Id. at 377-78, 227 P.3d at 543-44.

While the officer testified that the defendant had been driving

70 miles per hour in a 35 miles per hour zone, as measured by

the officer’s speedometer, we concluded that the officer’s

testimony alone was not sufficient, “given the relatively small

margin of error of 5 miles per hour.”         Id. at 378, 227 P.3d at

544.   However, the defendant himself had admitted in his

testimony to exceeding the posted speed limit.           Id.   We




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therefore remanded for entry of a judgment that the defendant

had violated HRS § 291C-102(a)(1).        Id.

           We explained that where an appellate court determines

evidence is insufficient “to support a conviction of a greater

offense but sufficient to support a conviction of a lesser

included offense, the court may remand for entry of judgment of

conviction on the lesser included offense[.]”           Id. (internal

quotation marks omitted) (quoting State v. Line, 121 Hawaiʻi 74,

90, 214 P.3d 613, 629 (2009) (citation omitted)).           The point of

our remand was to enter judgment on speeding as a lesser

included offense of excessive speeding pursuant to HRS § 701-

109(4)(a).   Our remand was consistent with HRS § 701-109(4)(a),

which states, among other grounds, that one offense is the

lesser included of another when the first offense “is

established by proof of the same or less than all the facts

required to establish the commission of the” other offense.             If

Kalua engaged in the same conduct for both speeding and

excessive speeding, he cannot be convicted of excessive speeding

because, pursuant to HRS § 701-109(4)(a), he has been convicted

of the lesser included offense of speeding.

           The dissent disagrees that Fitzwater held speeding to

be an included offense of excessive speeding, contending instead

that Fitzwater merely quoted a sentence from Line for the


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relevant general rule, and introduced that quotation with a

“cf.” signal, which the dissent regards as incapable of

supporting a holding.      Dissent at 5-6 (quoting Fitzwater, 121

Hawaiʻi at 90, 214 P.3d at 629 for the proposition quoted in

Line, 121 Hawaiʻi at 90, 214 P.3d at 629 that “[i]t is

established that if an appellate court determines that the

evidence presented at trial was insufficient to support a

conviction of a greater offense but sufficient to support a

conviction of a lesser included offense, the court may remand

for entry of judgment of conviction on the lesser included

offense” (internal quotation marks omitted)).           However, contrary

to the dissent’s suggestion, that sentence was not a mere aside.

It was essential to the disposition of the case.           See Black’s

Law Dictionary 106 (10th ed. 2014) (defining “holding” as “[a]

court’s determination of a matter of law pivotal to its

decision”).    This court specifically stated that, on remand,

judgment was to be entered against the defendant on the “non-

criminal traffic infraction” of speeding as an included offense

of excessive speeding.16      The dissent also rejects this court’s

treatment in Fitzwater of speeding as an included offense based

     16
            “Accordingly, we remand for entry of a judgment that [the
defendant] violated HRS 291C-102(a)(1), in accordance with the applicable
statutes governing non-criminal traffic infractions.” Fitzwater, 122 Hawaiʻi
at 378, 227 P.3d at 544.




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on the incorrect proposition that a civil infraction cannot

result in a conviction.      As noted, this assumption is directly

contrary to the language of Fitzwater remanding with

instructions that the defendant be found to have committed the

civil infraction of speeding as a lesser included offense of

excessive speeding.     The dissent’s position also directly

contradicts the penal code’s definition of an offense in HRS §

701-107(5) (1993) that provides for conviction of civil

offenses:     “[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.”            Thus,

the language of HRS § 291D-3(c)(1) establishing that a civil

judgment arises from the commission of speeding clearly does not

preclude its status as an included offense for purposes of HRS §

701-109(4).

            In order for the statutory protections against being

convicted of both a greater offense and its lesser included

offense to apply in a given case, the offenses must pertain to

the same conduct, not separate conduct.         Model Penal Code and

Commentaries § 1.07 cmt. at 102, 106 (Am. Law Inst. 1962)

(noting that the language of the Model Penal Code adopted

verbatim by HRS § 701-109(1) “specifies the situations in which

conviction for more than one offense based on the same conduct



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is precluded” (emphasis added)).          See also HRS § 701-118(4)

(1993) (expressly defining “conduct” to mean “an act or

omission, or, where relevant, a series of acts or a series of

omissions, or a series of acts and omissions”).           Conversely, if

the offenses pertain to separate conduct, both are eligible for

prosecution and conviction.       See State v. Apao, 95 Hawaiʻi 440,

446-47, 24 P.3d 32, 38-39 (2001) (contrasting “separate and

distinct culpable acts” with “an uninterrupted continuous course

of conduct”); State v. Lessary, 75 Haw. 446, 459-60, 865 P.2d

150, 156-57 (1994) (contrasting “the same conduct” test with

“individuals who perform separate acts that independently

constitute separate offenses”); State v. Mendonca, 68 Haw. 280,

284, 711 P.2d 731, 735 (1985) (“Where . . . two different

criminal acts are at issue, supported by different factual

evidence even though separated in time by only a few seconds,

one offense by definition cannot be ‘included’ in the other.”

(citation omitted)).

           As noted, we held in Fitzwater that speeding is a

lesser included offense of excessive speeding.17          There was no

dispute that the lesser included offense of speeding pertained



     17
             In Fitzwater, HRS § 701-109(1) did not apply because the
defendant was charged with only one offense: the offense of excessive
speeding.




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to the same conduct as the greater offense of excessive

speeding, because the defendant had been charged only with the

offense of excessive speeding.       Here, though, Kalua is charged

with two offenses:     speeding and excessive speeding.

            Accordingly, if the district court on remand finds at

trial both offenses to be grounded in the same conduct, then the

State is prohibited from convicting Kalua of excessive speeding.

If, however, the district court finds that the two offenses are

not grounded in the same conduct but rather in different

criminal acts, then the State may convict Kalua of both

offenses.

     D.     Considerations on Remand

            In sum, on remand the State is not barred from

prosecuting Kalua for excessive speeding.          At trial, the

district court must determine whether the two offenses involve

the same conduct rather than separate criminal acts.            HRS § 701-

109(1)(a)’s prohibition on convicting a defendant of more than

one offense when one of those offenses is a lesser included

offense will apply if the conduct is the same.           However, if, on

the other hand, it is found that speeding and excessive speeding

arose from separate criminal acts constituting separate conduct,

Kalua may be convicted of excessive speeding, in addition to the

speeding offense that was already adjudicated.



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                             IV.   Conclusion

           Based on the foregoing, we affirm the judgment of the

ICA, but for the reasons stated herein, and remand the case to

the district court for proceedings consistent with this opinion.

John M. Tonaki                     /s/ Sabrina S. McKenna
Jon N. Ikenaga
for Petitioner                     /s/ Richard W. Pollack

Mitchell D. Roth                   /s/ Michael D. Wilson
E. Britt Bailey
for Respondent




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