Motorist beats speeding charge without alleging mens rea

By Emmanuel Samonte Tipon

Did you know that you must have mens rea in order to be convicted of speeding?  What in the dickens is “mens rea”? you might ask. Don’t be naughty now.

In criminal law, a crime has both a physical and mental element. Actus reus or the act itself is the physical element. Mens rea or the person’s criminal intent, is the mental element. The Free Dictionary by Farlex.

A motorist in the island of Maui, one of the Hawaiian Islands, was apprehended for alleged speeding. Instead of meekly pleading guilty to the charge as most motorists might do, the motorist decided to challenge the complaint all the way to the Hawaii Supreme Court, claiming that the charges against her should be dismissed because the complaint was defective since it did not allege her state of mind at the time she allegedly committed the offense.

The Amended Complaint against the motorist read: That on or about the 20th day of October, 2012, in the Division of Wailuku, County of Maui, State of Hawaii, [motorist] did drive a motor vehicle at a speed exceeding the applicable state or county speed limit by thirty miles per hour or more, to wit, did drive a motor vehicle at 77 miles per hour in a 45 miles per hour zone, thereby committing the offense of Excessive Speeding, in violation of Section 291C-105(a)(1) and/or 291C-105(a)(2) and 291C-105(c)(1) of the Hawaii Revised Statutes.

Hawaii Revised Statutes § 291C-105(a) provides that “no person shall drive a motor vehicle at a speed exceeding” either (1) “[t]he applicable state or county speed limit by thirty miles per hour or more,” or (2) “[e]ighty miles per hour or more irrespective of the applicable state or county speed limit.”

Individuals found to have violated HRS § 291C-105(a) are guilty of a petty misdemeanor and subject to a fine between $500 and $1,000, a thirty-day suspension of license, a surcharge of up to $125, an assessment for driver education, and either thirty-six hours of community service work or between forty-eight hours and five days of imprisonment. HRS § 291C-105(c). Individuals found guilty are also required to attend a course of instruction in driver retraining.

The Hawaii Supreme Court found that Amended Complaint did not allege the state of mind that the State was required to prove for the charge of excessive speeding against the motorist. Since HRS §§ 291C-105(a)(1), 291C-105(a)(2), and 291C-105(c)(1) do not specify the requisite state of mind, HRS § 702-204 applies, which provides: “When the state of mind required to establish an element of an offense is not specified by the law, that element is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly.”

In the earlier case of State v. Apollonio, 130 Hawaii 353, 311 P.3d 676 (2013), the Hawaii Supreme Court held that “‘[a] charge that fails to charge a requisite state of mind cannot be construed reasonabl[y] to state an offense and thus the charge is dismissed without prejudice because it violates due process.’” Id. (quoting Apollonio, 130 Hawaii at 359, 311 P.3d at 682). The Supreme Court also held in Apollonio that “as a fact that must be alleged in a charge, a requisite state of mind is clearly an essential fact that must be alleged under [Hawaii Rules of Penal Procedure] Rule 7(d).”

Therefore, the Hawaii Supreme Court held, inasmuch as the Amended Complaint against the motorist failed to allege the requisite state of mind that also was an essential fact of the offense of excessive speeding, the Amended Complaint must be dismissed without prejudice.

State of Hawaii v. Price, SCWC-11-0000427, 01/15/14, Hawaii Supreme Court.

Recommendation: Hire an excellent lawyer who knows the law before pleading guilty to a charge of speeding. Speeders should not belittle the consequences of a conviction for excessive speeding. It is a criminal offense—a “petty misdemeanor”. An offender could be penalized with up to five days of imprisonment, monetary penalties, suspension of license, costs, assessment for driver education, and community service. Second and subsequent offenses subject the offender to more serious penalties. Automobile insurance premiums will increase. Speeding convictions are also taken as adverse factors when an immigrant is facing removal proceedings. Other state laws are probably similar to Hawaii laws.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1^st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)