Background
Natanhael Rivero-Garcia pleaded no contest to operating a vehicle under the influence of an intoxicant (OVUII) in the District Court of the Third Circuit, Kona Division, under a plea agreement reducing the charge from OVUII as a highly intoxicated driver to a first-offense OVUII. He was sentenced to complete substance abuse assessment and treatment at his own expense. The court took the mandatory $250 drug demand reduction assessment under advisement for one year, subject to waiver upon successful completion of assessment and treatment. Rivero-Garcia was ordered to appear for a compliance review hearing.
When the Division of Driver Education (DDE) reported non-compliance at two successive hearings, the compliance hearing was continued. Rivero-Garcia moved to strike the compliance hearing, arguing that requiring court appearances was akin to probation—prohibited by HRS § 291E-61(b), which mandates that OVUII sentences be imposed “without possibility of probation or suspension of sentence.” The district court denied the motion. Rivero-Garcia appealed from the interlocutory order.
While the appeal was pending, DDE reported that Rivero-Garcia had completed his assessment and no treatment was recommended. The court then waived the drug demand reduction fee and took no further action.
The Court’s Holding
In a published opinion by Judge Hiraoka, the ICA first addressed jurisdiction. The court found the original May 2024 judgment was not final under State v. Kilborn, 109 Hawai’i 435 (App. 2005), because the drug demand reduction fee was taken under advisement rather than finally imposed. However, the court exercised jurisdiction under the collateral order exception, finding that: (1) the order fully disposed of the compliance-hearing question; (2) that question was collateral to the merits of the conviction; and (3) the right to challenge the compliance hearing would be irreparably lost if review had to await final judgment.
On the merits, the court reversed, extending the Hawai’i Supreme Court’s holding in State v. Fay, 154 Hawai’i 305 (2024). In Fay, the supreme court held that district courts could not schedule restitution compliance hearings at the outset of an OVUII sentence because doing so “precociously upends the statutory process”—specific statutes like HRS § 706-644 control over the general enforcement power of HRS § 604-7. Here, the ICA applied the same reasoning to substance abuse compliance hearings, holding that nothing in HRS § 291E-61(h) or HRS § 706-650 authorizes the district court to set compliance review hearings or to impose an arbitrary one-year deadline on completing assessment and treatment. The court noted that such hearings are functionally akin to probation conditions, which are expressly prohibited under HRS § 291E-61(b).
The court suggested that as an alternative, the district court could have simply sentenced the defendant to complete assessment and treatment and to pay the drug demand reduction fee, with reimbursement available under HRS § 706-650(5) once compliance was reported by DDE—eliminating the need for any compliance hearing.
Key Takeaways
- District courts lack authority to schedule compliance review hearings in OVUII cases for substance abuse assessment, extending Fay‘s holding from restitution compliance hearings to the broader OVUII sentencing context.
- Taking the drug demand reduction fee “under advisement” with an arbitrary deadline not contemplated by HRS §§ 291E-61 or 706-650 imposes an undue burden on defendants and exceeds statutory authority.
- The collateral order doctrine provides appellate jurisdiction to challenge compliance-hearing orders even before entry of a final amended judgment.
- Proper OVUII sentencing should impose the fee outright, with statutory reimbursement mechanisms available upon proof of compliance—no post-judgment hearings required.
Why It Matters
This published opinion significantly constrains district court sentencing practices in OVUII cases across Hawai’i. Many district courts routinely schedule compliance hearings to monitor substance abuse assessment completion, and Rivero-Garcia holds this widespread practice exceeds statutory authority. For defense practitioners, the opinion provides grounds to challenge any compliance-hearing requirement imposed at OVUII sentencing. For prosecutors and courts, the decision requires restructuring OVUII sentences to avoid post-judgment compliance monitoring that functionally resembles probation. The case also establishes that the collateral order exception applies to challenges to compliance-hearing orders, giving defendants an immediate appellate remedy without waiting for final sentencing.