State v. Helgenberger

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-AUG-2025
08:01 AM
Dkt. 63 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellee,
v.
DEKLA HELGENBERGER, Defendant-Appellant.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX(2))

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, McCullen and Guidry, JJ.)

Defendant-Appellant Dekla Helgenberger appeals from

the Circuit Court of the Second Circuit's February 22, 2023

order denying her motion to dismiss. 1 On appeal, Helgenberger

challenges Hawai‘i Revised Statutes (HRS) § 291E-61.5 (2007 &

Supp. 2019), habitually operating a vehicle under the influence

1 The Honorable Peter T. Cahill presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

of an intoxicant (HOVUII), as unconstitutional on its face and

as applied. 2 We affirm.

Plaintiff-Appellee State of Hawai‘i charged

Helgenberger with, inter alia, HOVUII for driving under the

influence on September 19, 2019, while having been convicted of

two prior offenses of operating a vehicle under the influence of

an intoxicant (OVUII) within ten years. One of the two prior

convictions occurred in 2016.

Helgenberger moved to dismiss the HOVUII charge,

arguing that the HOVUII offense was unconstitutional on its face

because it violated double jeopardy. Helgenberger also argued

the HOVUII offense was unconstitutional as applied, because it

violated due process as the July 29, 2016 conviction no longer

existed.

The circuit court denied the motion, concluding that

HOVUII was "not unconstitutional on its face and as applied in

violation of the double jeopardy and due process clauses

. . . ." Helgenberger filed this interlocutory appeal.

2 Helgenberger also contends the HOVUII offense is cruel and unusual
punishment, violates the equal protection clause, fails to identify a mens
rea, fails to provide a meaningful opportunity to challenge the prior
convictions, and prevents her from presenting a complete defense.
Helgenberger fails to cite where in the record these contentions were raised
to the circuit court. Hawai‘i Rules of Appellate Procedure Rule 28(b)(4)
(requiring citation to where in the record the alleged error was brought to
the trial court's attention and providing that points not in compliance will
be disregarded). Nor did Helgenberger's motion to dismiss raise these
contentions. See State v. Hoglund, 71 Haw. 147, 150, 785 P.2d 1311, 1313
(1990) (applying waiver on appeal for failure to raise issue before trial
court). We consider these contentions waived.

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Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below and affirm.

(1) Helgenberger first contends the HOVUII offense is

unconstitutional on its face as it "violates due process because

the third protection of double jeopardy has been violated."

Helgenberger argues the HOVUII offense prosecutes and punishes

"a third-time OVUII offender with the very same two, predicate

OVUII convictions."

"[W]here it is alleged that the legislature has acted

unconstitutionally, this court has consistently held that every

enactment of the legislature is presumptively constitutional,

and a party challenging the statute has the burden of showing

unconstitutionality beyond a reasonable doubt. The infraction

should be plain, clear, manifest, and unmistakable." State v.

Alangcas, 134 Hawai‘i 515, 524, 345 P.3d 181, 190 (2015)

(citation omitted).

The double jeopardy clause of the Hawai‘i Constitution

provides no person shall "be subject for the same offense to be

twice put in jeopardy[.]" Haw. Const. art. I, § 10. Similarly,

the United States Constitution provides that no person shall "be

subject for the same offence to be twice put in jeopardy of life

or limb[.]" U.S. Const. amend. V. Double jeopardy "protects

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against a second prosecution for the same offense after

acquittal" or conviction, and "it protects against multiple

punishments for the same offense." State v. Lessary, 75 Haw.

446, 454, 856 P.2d 150, 154 (1994) (citation and internal

quotation marks omitted).

Turning to HOVUII, "[a] person commits the offense of

[HOVUII] if . . . (1) [t]he person is a habitual operator of a

vehicle while under the influence of an intoxicant; and

(2) [t]he person operates or assumes actual physical control of

a vehicle" while under the influence of alcohol or drugs.

HRS § 291E-61.5(a)(1)-(2) (2007) (formatting altered) (emphasis

added).

"Habitual operator of a vehicle while under the

influence of an intoxicant" means, in part, that a person "[w]as

convicted two or more times for offenses of operating a vehicle

under the influence[.]" HRS § 291E-61.5(b)(3) (Supp. 2019)

(formatting altered) (emphasis added).

"'Convicted two or more times for offenses of

operating a vehicle under the influence' means that, at the time

of the behavior for which the person is charged under" HOVUII,

"the person had two or more times within ten years of the

instant offense . . . [a] judgment on a verdict or a finding of

guilty . . . for a violation of . . . section 291E-61 . . . ."

HRS § 291E-61.5(b)(1)(A) (Supp. 2019).

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Under the HOVUII offense, the prior convictions

establish the status of the defendant at the time the charged

offense was committed. These prior convictions are elements of

HOVUII that must be pled and proven. State v. Ruggiero, 114

Hawai‘i 227, 237-38, 160 P.3d 703, 713-14 (2007).

But the conduct underlying the prior convictions is

not being relitigated. In other words, a person charged with

HOVUII is not being prosecuted or punished again for the conduct

on which those prior convictions were based. As such, there is

no double jeopardy violation.

Thus, the circuit court did not abuse its discretion

in denying the motion to dismiss. See State v. Borge, 152

Hawai‘i 458, 464, 526 P.3d 435, 441 (2023) ("A motion to dismiss

an indictment is . . . reviewed for an abuse of discretion."

(citation and internal quotation marks omitted)).

(2) Helgenberger next argues HOVUII is

unconstitutional as applied to her as she "presently lacks the

requisite number of predicate OVUII convictions within the last

10 years because her 2016 OVUII conviction in Case ID. 2DTA-16-

00684 was vacated and set aside on March 17, 2021 . . . ."

The legislature made clear that there must be a

judgment of guilty at the time of the alleged HOVUII offense.

Again, "'[c]onvicted two or more times for offenses of operating

a vehicle under the influence' means that, at the time of the

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behavior for which the person is charged under" HOVUII, "the

person had two or more times within ten years of the instant

offense . . . [a] judgment on a verdict or a finding of guilty

. . . for a violation of . . . section 291E-61" that, "at the

time of the instant offense, had not been expunged by pardon,

reversed, or set aside." HRS § 291E-61.5(b)(1) (Supp. 2019)

(emphases added).

The legislature also made clear that any conviction

set aside prior to committing the charged offense cannot be

deemed a prior conviction for HOVUII. HRS § 291E-61.5(b)(1)

(Supp. 2019) provides that "[a]ll convictions that have been

expunged by pardon, reversed, or set aside before the instant

offense shall not be deemed prior convictions for the purposes

of proving that the person is a habitual operator of a vehicle

while under the influence of an intoxicant." (Emphasis added.)

Here, the conduct underlying Helgenberger's HOVUII

charge in this case occurred "on or about the 19th day of

September, 2019[.]" According to Helgenberger's motion to

dismiss, her 2016 OVUII conviction was set aside on March 17,

2021, roughly eighteen months after the conduct underlying the

HOVUII charge occurred.

As such, Helgenberger's 2016 conviction existed at the

time the alleged HOVUII offense was committed. See Ruggiero,

114 Hawai‘i at 233-34, 160 P.3d at 709-10 ("Conviction of or

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imposition of sentence for a 'status' offense, in which one

element of the offense is the status of the defendant at the

time of the alleged violation, does not require that the

conviction continue to be valid at the time of sentencing.");

State v. Winham, 144 Hawai‘i 154, 438 P.3d 286, No. CAAP-17-

0000351, 2019 WL 1487084, at *5 (App. May 7, 2019) (SDO) ("The

legislature was concerned that drivers could defeat a charge of

habitually driving under the influence, or reduce any enhanced

sentencing, by having a previous conviction reversed on a later

appeal.").

Thus, the circuit court did not abuse its discretion

in denying the motion to dismiss.

Based on the foregoing, we affirm the circuit court's

February 22, 2023 order denying Helgenberger's motion to

dismiss.

DATED: Honolulu, Hawaiʻi, August 18, 2025.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Hayden Aluli,
for Defendant-Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Gerald K. Enriques,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
County of Maui, Associate Judge
for Plaintiff-Appellee.

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