State v. Rivero-Garcia

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
03-JUN-2026
07:55 AM
Dkt. 86 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---oOo---

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
NATANHAEL RIVERO-GARCIA, Defendant-Appellant

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
KONA DIVISION
(CASE NO. 3DTA-24-00206)

June 3, 2026

NAKASONE, CHIEF JUDGE, HIRAOKA AND WADSWORTH, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

Natanhael Rivero-Garcia pleaded no contest to operating

a vehicle under the influence of an intoxicant (OVUII). The

District Court of the Third Circuit, North and South Kona

Division, accepted his plea. He was sentenced to complete

substance abuse assessment and treatment at his own expense, and

the required $250 drug demand reduction assessment was taken

under advisement for one year subject to completion of substance
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

abuse assessment and treatment.1 A compliance hearing was set.

Rivero-Garcia moved to strike the compliance hearing. The

district court denied the motion.2

Rivero-Garcia appeals from the Findings of Fact,

Conclusions of Law, and Order Denying Defendant's Motion to

Strike Proof of Compliance Hearings. We reverse the Order. We

hold that the district court exceeded its authority under Hawaii

Revised Statutes (HRS) § 291E-61 when it required Rivero-Garcia

to appear for compliance review hearings.

I. BACKGROUND

Rivero-Garcia was charged with OVUII as a highly

intoxicated driver, in violation of HRS § 291E-61(a)(1), (a)(3),

and (b)(4) (2020 & Supp. 2023). Under a plea agreement, he

pleaded no contest to the lesser charge of OVUII as a first

offense without the highly intoxicated driver enhancement. The

district court accepted his plea and entered a Judgment and

Notice of Entry of Judgment on May 2, 2024.

Rivero-Garcia was sentenced to complete substance abuse

assessment and treatment, and to pay a $250 drug demand reduction

fee. The Judgment stated the fee was "taken under advisement for

1 year and subject to be waived on successful completion of

required substance abuse assessments and treatments." (Emphasis

added.) Rivero-Garcia was ordered to appear on July 5, 2024, for

a compliance review.

1
The Honorable Kimberly B.M. Tsuchiya presided.
2
The Honorable Ann S. Datta presided.

2
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Before the compliance hearing, the Division of Driver

Education (DDE) reported that Rivero-Garcia hadn't complied with

the substance abuse assessment and treatment requirement. The

compliance hearing was continued to August 1, 2024.

Before the continued compliance hearing, DDE reported

that Rivero-Garcia still hadn't complied with the substance abuse

assessment and treatment requirement. The compliance hearing was

continued again to September 5, 2024.

Rivero-Garcia moved to strike the compliance hearing.

The motion was heard on September 5, 2024. The district court

denied the motion and continued the compliance hearing to

November 7, 2024. The Order was entered on September 5, 2024.

Rivero-Garcia filed a notice of appeal from the Order on

October 3, 2024, creating this appeal.

Meanwhile, on September 12, 2024, DDE reported that

Rivero-Garcia had completed substance abuse assessment and no

treatment was recommended. The Amended Judgment and Notice of

Entry of Amended Judgment as to Drug Demand Reduction Fee was

entered on November 7, 2024. It stated: "Defendant is in full

compliance with their sentence. Court waives the drug demand

reduction fee and takes no further action."

II. DISCUSSION

A. Jurisdiction.

Before reaching the merits of Rivero-Garcia's appeal,

we must ensure we have jurisdiction and dismiss an appeal on our

own if we conclude we lack jurisdiction. Ditto v. McCurdy, 103

Hawai#i 153, 157, 80 P.3d 974, 978 (2003).

3
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

HRS § 641-12(a) (2016) provides:

Appeals upon the record shall be allowed from all final
decisions and final judgments of district courts in all
criminal matters. Such appeals may be made to the
intermediate appellate court, subject to chapter 602,
whenever the party appealing shall file notice of the
party's appeal within thirty days, or such other time as may
be provided by the rules of the court.

Hawai#i Rules of Penal Procedure (HRPP) Rule 32(c)(2)

applies to district court judgments of conviction. Under HRPP

Rule 32(c)(2), "a document is not a judgment of conviction unless

it includes the adjudication and the sentence." State v.

Kilborn, 109 Hawai#i 435, 441, 127 P.3d 95, 101 (App. 2005). In

Kilborn we held:

Judgments of conviction entered in the district courts
may not be appealed unless they are final. Judgments of
conviction are not final unless they include the final
adjudication and the final sentence. In the instant case,
the sentence imposed was not the final sentence because the
district court expressly left open the possibility that its
sentence of Kilborn might include an order requiring Kilborn
to pay restitution. The court did not finally decide
whether it would order Kilborn to pay restitution and, if
so, in what amount. Consequently, the December 5, 2003
Judgment is not final and, because it is not final, it is
not appealable.

Id. at 442, 127 P.3d at 102 (emphasis added).

Here, the May 2, 2024 Judgment was not a final judgment

because it did not finally decide whether the HRS § 706-650 drug

demand reduction fee would be imposed or waived; that sentencing

component was specifically "taken under advisement[.]" It

"expressly left open the possibility that" the fee might be

waived. See Kilborn, 109 Hawai#i at 442, 127 P.3d at 102. The

September 5, 2024 Order, which denied Rivero-Garcia's motion to

strike the compliance hearing, was thus interlocutory when

Rivero-Garcia's notice of appeal was filed. The final sentence

4
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

was imposed in the November 7, 2024 Amended Judgment.

Rivero-Garcia did not appeal from the Amended Judgment.

But, under the unique circumstances of this case, we

conclude we have jurisdiction under the collateral order

exception. "[U]nder the collateral order exception, an

interlocutory order is appealable if it: (1) fully disposes of

the question at issue; (2) resolves an issue completely

collateral to the merits of the case; and (3) involves important

rights which would be irreparably lost if review had to await a

final judgment." State v. Baranco, 77 Hawai#i 351, 353–54, 884

P.2d 729, 731–32 (1994).

Rivero-Garcia's motion to strike the compliance hearing

did not challenge his conviction, the sentence imposed, or the

sentence taken under advisement. It challenged only the

procedure requiring that he appear for compliance hearings, which

he argued was akin to probation, prohibited by HRS § 291E-61(b)

("A person committing the offense of [OVUII] shall be sentenced

without possibility of probation or suspension of sentence.").

The Order fully disposed of the question whether the

district court was authorized to order compliance review hearings

under HRS § 291E-61(b). That issue was completely collateral to

the merits of Rivero-Garcia's conviction and sentence. And

Rivero-Garcia's ability to challenge the Order could be lost if

he was required to wait for entry of an amended judgment; an

appeal could be moot once a sentence finalizing the drug demand

reduction fee was entered.3

3
The State does not argue, and we express no opinion, whether this
appeal is moot, or if an exception to the mootness doctrine would apply. See
Hamilton ex rel. Lethem v. Lethem, 119 Hawai #i 1, 5-8, 193 P.3d 839, 843-46
(2008).

5
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

B. The district court exceeded its authority
under HRS § 291E-61(h) by requiring
Rivero-Garcia to appear for compliance review
hearings.

Rivero-Garcia contends that the district court had no

authority to require his appearance at compliance review hearings

because review hearings are akin to probation, and the statute

under which he was convicted does not allow a sentence of

probation.

The district court concluded it "has statutory

authority to enforce the Judgment entered in this case. HRS

section 604-7(a); [State v. ]Fay, [154 Hawai#i 305, 550 P.3d 1163

(2024)]." We review conclusions of law de novo. Cowan v.

Exclusive Resorts PBL1, LLC, 156 Hawai#i 268, 272, 574 P.3d 288,

292 (2025).

HRS § 607-7 (2016) provides:

(a) The district courts may:

. . . .
(4) Enforce judgments; and punish contempts
according to law[.]

State v. Fay concerned enforcement of a free standing

order of restitution. Fay pleaded no contest to OVUII and agreed

to pay restitution to the owner of the car she had driven into a

tree. The trial court ordered Fay to pay $50 per month, entered

a freestanding order of restitution, and ordered Fay to return to

court in six months for a compliance hearing. The court rejected

Fay's objection to the compliance hearing. Fay appealed.

The supreme court noted that a trial court can order

restitution as a condition of probation, or in a freestanding

6
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

order. Fay, 154 Hawai#i at 307, 550 P.3d at 1165. HRS

§ 291E-61(b) does not allow a sentence of probation for OVUII. A

freestanding order was entered. If a person subject to a

freestanding order of restitution defaults, the creditor can

pursue a civil enforcement action. Fay, 154 Hawai#i at 307, 550

P.3d at 1165 (citing HRS § 706-644(5)). Or the trial court could

order the person arrested and imprisoned. Id. (citing HRS § 706-

644(1)).

Under those circumstances, the supreme court held:

Unless the person defaults, the law doesn't permit the
district court to do anything. The criminal case is over.

. . . .

HRS § 706-644(1) only allows restitution compliance
hearings upon a default, then a motion, then a hearing.
Setting a compliance hearing at the outset precociously
upends the statutory process. Since the district court
scheduled a court appearance for Fay when it sentenced her,
it erred.

. . . .
For sure, a court may enforce its judgments.
Otherwise, a judgment has little real value. HRS § 604-7
provides a district court's general power: "[t]he district
courts may: . . . (4) Enforce judgments; and punish
contempts according to law."
Specific statutes, though, control over general ones.
HRS § 706-644 is a specific statute relating to
"consequences of nonpayment" for a court-ordered "fee, fine
or restitution." HRS § 706-644's treatment of restitution
orders is more specific than HRS § 604-7's general power.
So HRS § 706-644 and the restitution-related laws triumph to
the extent that those laws conflict with HRS § 604-7. HRS
§ 604-7 does not empower courts to hold restitution
compliance hearings outside HRS § 706-644's parameters.

Id. at 307-08, 550 P.3d at 1165-66 (emphasis added) (citation

omitted).

Here, HRS §§ 291E-61(h) and 706-650 are the specific

statutes that apply. HRS § 291E-61 (Supp. 2023) provides:

(b) A person committing the offense of operating a
vehicle under the influence of an intoxicant shall be

7
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

sentenced without possibility of probation or suspension of
sentence as follows . . . [.]
. . . .

(h) Whenever a court sentences a person pursuant to
subsection (b), it also shall require that the offender be
referred to the driver's education program for an
assessment, by a certified substance abuse counselor deemed
appropriate by the court, of the offender's substance abuse
or dependence and the need for appropriate treatment. The
counselor shall submit a report with recommendations to the
court. The court shall require the offender to obtain
appropriate treatment if the counselor's assessment
establishes the offender's substance abuse or dependence.
All costs for assessment and treatment shall be borne by the
offender.

(Emphasis added.)

HRS § 706-650 (Supp. 2023) provides:

Drug demand reduction assessments; special fund .
(1) In addition to any disposition authorized by chapter 706
or 853, any person who is:
. . . .

(d) Convicted under section . . . 291E-61[;]
. . . .

shall be ordered to pay a monetary assessment under
subsection (2), except as provided under subsection (5).

(2) Monetary assessments for individuals subject to
subsection (1) shall not exceed the following:

. . . .

(e) $250 when the person has been found guilty of an
offense under section . . . 291E-61[.]

. . . .
(5) If the court determines that the person has the
ability to pay the monetary assessment . . . the court may
order the person to undergo a substance abuse treatment
program at the person's expense. If the person undergoes a
substance abuse treatment program at the person's expense,
the court may waive or reduce the amount of the monetary
assessment.

(Bold italics added.)

The district court referred Rivero-Garcia to DDE "for

an assessment, by a certified substance abuse counselor deemed

appropriate by the court, of [his] substance abuse or dependence

and the need for appropriate treatment." DDE had to submit the

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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

counselor's report and recommendations to the district court.

Id. If the counselor reported substance abuse or dependence and

recommended treatment, the district court "shall require the

offender to obtain appropriate treatment" at the offender's

expense. Id.

Rivero-Garcia does not argue he wasn't able to pay the

$250 drug demand reduction assessment. The district court was

thus authorized to impose the assessment. HRS § 706-650(5)

allows the court to "waive or reduce the amount of the monetary

assessment" if the defendant "undergoes a substance abuse

treatment program at the person's expense[.]" But the district

court can't know whether treatment will be recommended until

after DDE submits the substance abuse counselor's report required

under HRS § 291E-61(h).

Nothing in HRS § 291E-61(h) requires that the counselor

submit a report, or that the defendant complete substance abuse

assessment and any recommended treatment, within a particular

time. Nothing in HRS § 706-650(5) requires a defendant to

complete substance abuse assessment and any recommended treatment

within a particular time to be eligible for a waiver or reduction

of the drug demand reduction assessment. Imposing sentence but

taking the drug demand reduction assessment "under advisement for

1 year and subject to be waived on successful completion of

required substance abuse assessments and [(any recommended)]

treatments" puts an arbitrary deadline on a defendant's

completion of the substance abuse assessment, and any applicable

treatment, not contemplated by HRS §§ 291E-61 or 706-650. It

places an undue burden on a defendant who, although able to pay

9
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the $250 fee, isn't able to immediately pay for a substance abuse

assessment and any recommended treatment.

And HRS § 291E-61(h) does not authorize the district

court to set compliance review hearings, which are akin to terms

and conditions of probation. Doing so "upends" the statutory

process. Fay, 154 Hawai#i at 308, 550 P.3d at 1166.

After accepting Rivero-Garcia's no contest plea, the

district court could, as one possible alternative, have sentenced

him to complete a substance abuse assessment and any recommended

treatment, and to pay the statutory drug demand reduction

assessment, to be reimbursed under HRS § 706-650(5)4 if and when

DDE reported that no substance abuse treatment was recommended or

that Rivero-Garcia had paid for and completed recommended

treatment. That would have been a final sentence, with no post-

judgment compliance hearing required.

III. CONCLUSION

The September 5, 2024 Findings of Fact, Conclusions of

Law, and Order Denying Defendant's Motion to Strike Proof of

Compliance Hearings is reversed.

On the briefs:
/s/ Karen T. Nakasone
Jon Ikenaga, Chief Judge
Benjamin E. Lowenthal,
Sara K. Haley, /s/ Keith K. Hiraoka
Office of the Public Defender, Associate Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Kelden B.A. Waltjen, Associate Judge
Prosecuting Attorney,
Charles E. Murray III,
Deputy Prosecuting Attorney,
for Plaintiff-Appellee.

4
Reimbursement could be paid from the drug demand reduction
assessments special fund established under HRS § 706-650(3).

10

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
03-JUN-2026
07:55 AM
Dkt. 86 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---oOo---

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
NATANHAEL RIVERO-GARCIA, Defendant-Appellant

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
KONA DIVISION
(CASE NO. 3DTA-24-00206)

June 3, 2026

NAKASONE, CHIEF JUDGE, HIRAOKA AND WADSWORTH, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

Natanhael Rivero-Garcia pleaded no contest to operating

a vehicle under the influence of an intoxicant (OVUII). The

District Court of the Third Circuit, North and South Kona

Division, accepted his plea. He was sentenced to complete

substance abuse assessment and treatment at his own expense, and

the required $250 drug demand reduction assessment was taken

under advisement for one year subject to completion of substance
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

abuse assessment and treatment.1 A compliance hearing was set.

Rivero-Garcia moved to strike the compliance hearing. The

district court denied the motion.2

Rivero-Garcia appeals from the Findings of Fact,

Conclusions of Law, and Order Denying Defendant's Motion to

Strike Proof of Compliance Hearings. We reverse the Order. We

hold that the district court exceeded its authority under Hawaii

Revised Statutes (HRS) § 291E-61 when it required Rivero-Garcia

to appear for compliance review hearings.

I. BACKGROUND

Rivero-Garcia was charged with OVUII as a highly

intoxicated driver, in violation of HRS § 291E-61(a)(1), (a)(3),

and (b)(4) (2020 & Supp. 2023). Under a plea agreement, he

pleaded no contest to the lesser charge of OVUII as a first

offense without the highly intoxicated driver enhancement. The

district court accepted his plea and entered a Judgment and

Notice of Entry of Judgment on May 2, 2024.

Rivero-Garcia was sentenced to complete substance abuse
assessment and treatment, and to pay a $250 drug demand reduction

fee. The Judgment stated the fee was "taken under advisement for

1 year and subject to be waived on successful completion of

required substance abuse assessments and treatments." (Emphasis

added.) Rivero-Garcia was ordered to appear on July 5, 2024, for

a compliance review.

1
The Honorable Kimberly B.M. Tsuchiya presided.
2
The Honorable Ann S. Datta presided.

2
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Before the compliance hearing, the Division of Driver

Education (DDE) reported that Rivero-Garcia hadn't complied with

the substance abuse assessment and treatment requirement. The

compliance hearing was continued to August 1, 2024.

Before the continued compliance hearing, DDE reported

that Rivero-Garcia still hadn't complied with the substance abuse

assessment and treatment requirement. The compliance hearing was

continued again to September 5, 2024.

Rivero-Garcia moved to strike the compliance hearing.

The motion was heard on September 5, 2024. The district court

denied the motion and continued the compliance hearing to

November 7, 2024. The Order was entered on September 5, 2024.

Rivero-Garcia filed a notice of appeal from the Order on

October 3, 2024, creating this appeal.

Meanwhile, on September 12, 2024, DDE reported that

Rivero-Garcia had completed substance abuse assessment and no
treatment was recommended. The Amended Judgment and Notice of

Entry of Amended Judgment as to Drug Demand Reduction Fee was

entered on November 7, 2024. It stated: "Defendant is in full

compliance with their sentence. Court waives the drug demand

reduction fee and takes no further action."

II. DISCUSSION

A. Jurisdiction.

Before reaching the merits of Rivero-Garcia's appeal,

we must ensure we have jurisdiction and dismiss an appeal on our

own if we conclude we lack jurisdiction. Ditto v. McCurdy, 103

Hawai#i 153, 157, 80 P.3d 974, 978 (2003).

3
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

HRS § 641-12(a) (2016) provides:

Appeals upon the record shall be allowed from all final
decisions and final judgments of district courts in all
criminal matters. Such appeals may be made to the
intermediate appellate court, subject to chapter 602,
whenever the party appealing shall file notice of the
party's appeal within thirty days, or such other time as may
be provided by the rules of the court.

Hawai#i Rules of Penal Procedure (HRPP) Rule 32(c)(2)

applies to district court judgments of conviction. Under HRPP

Rule 32(c)(2), "a document is not a judgment of conviction unless

it includes the adjudication and the sentence." State v.

Kilborn, 109 Hawai#i 435, 441, 127 P.3d 95, 101 (App. 2005). In

Kilborn we held:

Judgments of conviction entered in the district courts
may not be appealed unless they are final. Judgments of
conviction are not final unless they include the final
adjudication and the final sentence. In the instant case,
the sentence imposed was not the final sentence because the
district court expressly left open the possibility that its
sentence of Kilborn might include an order requiring Kilborn
to pay restitution. The court did not finally decide
whether it would order Kilborn to pay restitution and, if
so, in what amount. Consequently, the December 5, 2003
Judgment is not final and, because it is not final, it is
not appealable.

Id. at 442, 127 P.3d at 102 (emphasis added).

Here, the May 2, 2024 Judgment was not a final judgment

because it did not finally decide whether the HRS § 706-650 drug

demand reduction fee would be imposed or waived; that sentencing

component was specifically "taken under advisement[.]" It

"expressly left open the possibility that" the fee might be

waived. See Kilborn, 109 Hawai#i at 442, 127 P.3d at 102. The

September 5, 2024 Order, which denied Rivero-Garcia's motion to

strike the compliance hearing, was thus interlocutory when

Rivero-Garcia's notice of appeal was filed. The final sentence

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was imposed in the November 7, 2024 Amended Judgment.

Rivero-Garcia did not appeal from the Amended Judgment.

But, under the unique circumstances of this case, we

conclude we have jurisdiction under the collateral order

exception. "[U]nder the collateral order exception, an

interlocutory order is appealable if it: (1) fully disposes of

the question at issue; (2) resolves an issue completely

collateral to the merits of the case; and (3) involves important

rights which would be irreparably lost if review had to await a

final judgment." State v. Baranco, 77 Hawai#i 351, 353–54, 884

P.2d 729, 731–32 (1994).

Rivero-Garcia's motion to strike the compliance hearing

did not challenge his conviction, the sentence imposed, or the

sentence taken under advisement. It challenged only the

procedure requiring that he appear for compliance hearings, which

he argued was akin to probation, prohibited by HRS § 291E-61(b)

("A person committing the offense of [OVUII] shall be sentenced

without possibility of probation or suspension of sentence.").

The Order fully disposed of the question whether the

district court was authorized to order compliance review hearings

under HRS § 291E-61(b). That issue was completely collateral to

the merits of Rivero-Garcia's conviction and sentence. And

Rivero-Garcia's ability to challenge the Order could be lost if

he was required to wait for entry of an amended judgment; an

appeal could be moot once a sentence finalizing the drug demand

reduction fee was entered.3

3
The State does not argue, and we express no opinion, whether this
appeal is moot, or if an exception to the mootness doctrine would apply. See
Hamilton ex rel. Lethem v. Lethem, 119 Hawai #i 1, 5-8, 193 P.3d 839, 843-46
(2008).

5
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B. The district court exceeded its authority
under HRS § 291E-61(h) by requiring
Rivero-Garcia to appear for compliance review
hearings.

Rivero-Garcia contends that the district court had no

authority to require his appearance at compliance review hearings

because review hearings are akin to probation, and the statute

under which he was convicted does not allow a sentence of

probation.

The district court concluded it "has statutory

authority to enforce the Judgment entered in this case. HRS

section 604-7(a); [State v. ]Fay, [154 Hawai#i 305, 550 P.3d 1163

(2024)]." We review conclusions of law de novo. Cowan v.

Exclusive Resorts PBL1, LLC, 156 Hawai#i 268, 272, 574 P.3d 288,

292 (2025).

HRS § 607-7 (2016) provides:

(a) The district courts may:

. . . .
(4) Enforce judgments; and punish contempts
according to law[.]

State v. Fay concerned enforcement of a free standing

order of restitution. Fay pleaded no contest to OVUII and agreed

to pay restitution to the owner of the car she had driven into a

tree. The trial court ordered Fay to pay $50 per month, entered

a freestanding order of restitution, and ordered Fay to return to

court in six months for a compliance hearing. The court rejected

Fay's objection to the compliance hearing. Fay appealed.

The supreme court noted that a trial court can order

restitution as a condition of probation, or in a freestanding

6
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order. Fay, 154 Hawai#i at 307, 550 P.3d at 1165. HRS

§ 291E-61(b) does not allow a sentence of probation for OVUII. A

freestanding order was entered. If a person subject to a

freestanding order of restitution defaults, the creditor can

pursue a civil enforcement action. Fay, 154 Hawai#i at 307, 550

P.3d at 1165 (citing HRS § 706-644(5)). Or the trial court could

order the person arrested and imprisoned. Id. (citing HRS § 706-

644(1)).

Under those circumstances, the supreme court held:

Unless the person defaults, the law doesn't permit the
district court to do anything. The criminal case is over.

. . . .

HRS § 706-644(1) only allows restitution compliance
hearings upon a default, then a motion, then a hearing.
Setting a compliance hearing at the outset precociously
upends the statutory process. Since the district court
scheduled a court appearance for Fay when it sentenced her,
it erred.
. . . .

For sure, a court may enforce its judgments.
Otherwise, a judgment has little real value. HRS § 604-7
provides a district court's general power: "[t]he district
courts may: . . . (4) Enforce judgments; and punish
contempts according to law."

Specific statutes, though, control over general ones.
HRS § 706-644 is a specific statute relating to
"consequences of nonpayment" for a court-ordered "fee, fine
or restitution." HRS § 706-644's treatment of restitution
orders is more specific than HRS § 604-7's general power.
So HRS § 706-644 and the restitution-related laws triumph to
the extent that those laws conflict with HRS § 604-7. HRS
§ 604-7 does not empower courts to hold restitution
compliance hearings outside HRS § 706-644's parameters.

Id. at 307-08, 550 P.3d at 1165-66 (emphasis added) (citation

omitted).

Here, HRS §§ 291E-61(h) and 706-650 are the specific

statutes that apply. HRS § 291E-61 (Supp. 2023) provides:

(b) A person committing the offense of operating a
vehicle under the influence of an intoxicant shall be

7
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sentenced without possibility of probation or suspension of
sentence as follows . . . [.]
. . . .
(h) Whenever a court sentences a person pursuant to
subsection (b), it also shall require that the offender be
referred to the driver's education program for an
assessment, by a certified substance abuse counselor deemed
appropriate by the court, of the offender's substance abuse
or dependence and the need for appropriate treatment. The
counselor shall submit a report with recommendations to the
court. The court shall require the offender to obtain
appropriate treatment if the counselor's assessment
establishes the offender's substance abuse or dependence.
All costs for assessment and treatment shall be borne by the
offender.

(Emphasis added.)

HRS § 706-650 (Supp. 2023) provides:

Drug demand reduction assessments; special fund .
(1) In addition to any disposition authorized by chapter 706
or 853, any person who is:
. . . .

(d) Convicted under section . . . 291E-61[;]
. . . .

shall be ordered to pay a monetary assessment under
subsection (2), except as provided under subsection (5).

(2) Monetary assessments for individuals subject to
subsection (1) shall not exceed the following:

. . . .

(e) $250 when the person has been found guilty of an
offense under section . . . 291E-61[.]

. . . .
(5) If the court determines that the person has the
ability to pay the monetary assessment . . . the court may
order the person to undergo a substance abuse treatment
program at the person's expense. If the person undergoes a
substance abuse treatment program at the person's expense,
the court may waive or reduce the amount of the monetary
assessment.

(Bold italics added.)

The district court referred Rivero-Garcia to DDE "for

an assessment, by a certified substance abuse counselor deemed

appropriate by the court, of [his] substance abuse or dependence

and the need for appropriate treatment." DDE had to submit the

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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

counselor's report and recommendations to the district court.

Id. If the counselor reported substance abuse or dependence and

recommended treatment, the district court "shall require the

offender to obtain appropriate treatment" at the offender's

expense. Id.

Rivero-Garcia does not argue he wasn't able to pay the

$250 drug demand reduction assessment. The district court was

thus authorized to impose the assessment. HRS § 706-650(5)

allows the court to "waive or reduce the amount of the monetary

assessment" if the defendant "undergoes a substance abuse

treatment program at the person's expense[.]" But the district

court can't know whether treatment will be recommended until

after DDE submits the substance abuse counselor's report required

under HRS § 291E-61(h).

Nothing in HRS § 291E-61(h) requires that the counselor

submit a report, or that the defendant complete substance abuse

assessment and any recommended treatment, within a particular

time. Nothing in HRS § 706-650(5) requires a defendant to

complete substance abuse assessment and any recommended treatment

within a particular time to be eligible for a waiver or reduction

of the drug demand reduction assessment. Imposing sentence but

taking the drug demand reduction assessment "under advisement for

1 year and subject to be waived on successful completion of

required substance abuse assessments and [(any recommended)]

treatments" puts an arbitrary deadline on a defendant's

completion of the substance abuse assessment, and any applicable

treatment, not contemplated by HRS §§ 291E-61 or 706-650. It

places an undue burden on a defendant who, although able to pay

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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the $250 fee, isn't able to immediately pay for a substance abuse

assessment and any recommended treatment.

And HRS § 291E-61(h) does not authorize the district

court to set compliance review hearings, which are akin to terms

and conditions of probation. Doing so "upends" the statutory

process. Fay, 154 Hawai#i at 308, 550 P.3d at 1166.

After accepting Rivero-Garcia's no contest plea, the

district court could, as one possible alternative, have sentenced

him to complete a substance abuse assessment and any recommended

treatment, and to pay the statutory drug demand reduction

assessment, to be reimbursed under HRS § 706-650(5)4 if and when

DDE reported that no substance abuse treatment was recommended or

that Rivero-Garcia had paid for and completed recommended

treatment. That would have been a final sentence, with no post-

judgment compliance hearing required.

III. CONCLUSION

The September 5, 2024 Findings of Fact, Conclusions of

Law, and Order Denying Defendant's Motion to Strike Proof of

Compliance Hearings is reversed.

On the briefs:
/s/ Karen T. Nakasone
Jon Ikenaga, Chief Judge
Benjamin E. Lowenthal,
Sara K. Haley, /s/ Keith K. Hiraoka
Office of the Public Defender, Associate Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Kelden B.A. Waltjen, Associate Judge
Prosecuting Attorney,
Charles E. Murray III,
Deputy Prosecuting Attorney,
for Plaintiff-Appellee.

4
Reimbursement could be paid from the drug demand reduction
assessments special fund established under HRS § 706-650(3).

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