§708-836  Unauthorized control of propelled
vehicle.  (1)  A person commits the offense of unauthorized control of a
propelled vehicle if the person intentionally or knowingly exerts unauthorized
control over another's propelled vehicle by operating the vehicle without the
owner's consent or by changing the identity of the vehicle without the owner's
consent.



(2)  "Propelled vehicle" means an
automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle.



(3)  It is an affirmative defense to a
prosecution under this section that the defendant:



(a) Received authorization to use the vehicle from an
agent of the owner where the agent had actual or apparent authority to
authorize such use; or



(b) Is a lien holder or legal owner of the propelled
vehicle, or an authorized agent of the lien holder or legal owner, engaged in
the lawful repossession of the propelled vehicle.



(4)  For the purposes of this section,
"owner" means the registered owner of the propelled vehicle or the
unrecorded owner of the vehicle pending transfer of ownership; provided that if
there is no registered owner of the propelled vehicle or unrecorded owner of
the vehicle pending transfer of ownership, "owner" means the legal
owner.



(5)  Unauthorized control of a propelled vehicle
is a class C felony. [L 1972, c 9, pt of §1; am L 1974, c 38, §1; gen ch 1993;
am L 1996, c 195, §2; am L 1999, c 11, §1; am L 2001, c 87, §2]



 



COMMENTARY ON §708-836



 



  [Section 708-836 was amended by Act 38, Session Laws 1974. 
See Supplemental Commentary on §708-836.  The Commentary below was based on the
original version in the Proposed Draft.]



This section is
intended to deal with the special case of "joy riding," where the
vehicle is returned in undamaged condition, and the temporary borrowing is just
for the pleasure (or convenience) of operating the vehicle.  The offense is a
relatively mild one, and, as it is generally committed by youngsters, the
penalty is set at the misdemeanor level.  Note that the unauthorized control
over the vehicle must be operation of the vehicle:  the use of the vehicle as a
shelter, for example, ought not to come within the prohibition of this
section.[1]  The prevalence of "joy riding" predominantly relates to
motor-propelled vehicles, and the Code limits this special offense of
misappropriation to such property.  The misdemeanor sanction is felt too severe
to apply to other forms of unauthorized use of personal property unless other
aggravating attendant circumstances are present.



The
affirmative defense allowed under subsection (3) is felt necessary to
"exempt from criminal liability a good deal of informal borrowing of
automobiles by members of the same household or friends of the owner."[2]



Previously
Hawaii had no statute dealing specifically with the problem of unauthorized use
of a propelled vehicle.  Instead, such cases were prosecuted as the offense of
"malicious conversion"[3] which covered any unauthorized moving,
taking, carrying away, or converting, no matter how temporary.  The offense was
punishable by a possible fine of $1000 or term of imprisonment of five years or
both.  The distinction provided by this Part, and the reduction proposed in
this section, represent needed changes in Hawaii law.



 



SUPPLEMENTAL COMMENTARY ON §708-836



 



  Act 38, Session Laws 1974, amended this section to refer to
the unauthorized "control", rather than unauthorized
"operation" of a propelled vehicle.  The penalty for the offense was
raised from a misdemeanor to a class C felony, and the offense was broadened to
include the situation where a change in the identity of the vehicle is made
without the owner's consent.



  Act 195, Session Laws 1996, amended this section by amending
the definition of "owner", for purposes of this section, and by
amending the affirmative defense, to provide an affirmative defense to a person
who had authorization to use the vehicle from an agent of the owner and to a
lien holder or legal owner of the propelled vehicle, or authorized agent,
engaged in lawful repossession of the propelled vehicle.  The legislature found
that the current affirmative defense, together with the current definition of
"owner" (in §708-800) as a person having possession of the vehicle
even when the possession is unlawful, provided an unintended loophole for defendants,
who could avoid conviction by alleging that a "friend" loaned the
vehicle to the defendants.  Senate Standing Committee Report No. 1659,
Conference Committee Report No. 61.



  Act 11, Session Laws 1999, amended this section by amending
the state of mind required for the offense of unauthorized control of propelled
vehicle to include a knowing state of mind.  The legislature found that in the
prosecution of a charge of unauthorized control of propelled vehicle the State
must prove that the defendant intentionally exerted unauthorized control over
the vehicle.  Consequently, the State may be unable to prove guilt beyond a
reasonable doubt when the defendant claims that the defendant thought the
defendant had permission from another person whom the defendant believed to be
the owner or the agent of the automobile owner.  The inclusion of the
"knowing" state of mind to the offense would address this problem. 
House Standing Committee Report No. 1459.



  Act 87, Session Laws 2001, established the legal owner as the
owner of a vehicle that has no registered owner under this section.  The
legislature found that there was a gap in the definition of "owner"
in the offense of unauthorized control of propelled vehicle.  Current law
limited "owner" to the registered owner or unrecorded owner pending
transfer.  The amendments to the definition of "owner" were necessary
to cover propelled vehicles that are not required to be registered, such as
golf carts or construction equipment. Senate Standing Committee Report No.
714, House Standing Committee Report No. 1519.



 



Case Notes



 



  Section covers defendant's unauthorized use of truck for
defendant's convenience; evidence sufficient to sustain conviction.  789 F.2d
1364.



  Officer had probable cause to believe defendant was an accomplice
where:  (1) car's license plate and "punched" ignition were located
in such places that would suggest defendant knew vehicle was stolen; and (2)
defendant and car driver were parked at a house whose owner knew defendant but
not the driver, suggesting that defendant assisted in the decision to park at
the house, thereby aiding or attempting to aid driver's commission of an
unauthorized control of a propelled vehicle (UCPV) violation; thus evidence was
sufficient to provide more than a mere suspicion that defendant committed the
offense of UCPV either as a principal or accomplice.  109 H. 84, 123 P.3d 679.



  Because this section does not "plainly appear" to
render its specified state of mind inapplicable to the authorization element,
the intentional or knowing states of mind apply to the authorization element;
thus, a defendant prosecuted under this section may assert the mistake-of-fact
defense under §702-218 with respect to the authorization element, where
defendant claims that defendant mistakenly believed that the person who
authorized defendant's operation of the vehicle was the vehicle's registered
owner, because such a belief would potentially negative the state of mind
required to establish the authorization element of the offense.  117 H. 235, 178
P.3d 1.



  Section 708-834(1)(b)'s defense was not applicable to
offense.  10 H. App. 200, 862 P.2d 1073.



  Section only requires proof that the defendant's intentional
conduct was to accomplish at least one of two objectives, that is, to operate
the vehicle or to change the identity of the vehicle without having obtained
the owner's consent in either event.  93 H. 344 (App.), 3 P.3d 510.



  Under this section, proving that a person operated another's
propelled vehicle without the owner's consent also necessarily establishes that
the person "exerted unauthorized control" over the vehicle.  110 H.
386 (App.), 133 P.3d 815.



  There was substantial evidence to convict defendant under
this section where truck owner testified that owner called police to report truck
missing and that owner had not given anyone permission to drive it, did not
know, nor give permission to defendant to drive it, arresting officer testified
that after officer stopped truck, check on patrol car's computer indicated that
truck was stolen, and witness testified that witness saw defendant drive truck
earlier that day.  112 H. 192 (App.), 145 P.3d 735.



  Cited:  State v. Ferreira, 56 H. 107, 530 P.2d 5 (1974).



  Discussed:  86 H. 207, 948 P.2d 1048.



 



__________



§708-836 Commentary:



 



1.  M.P.C., Tentative Draft No. 2, comments at 89 (1954). 
However, §§708-803 and 804 cover the situation.



 



2.  M.P.C., Proposed Official Draft, notes at 174 (1962).



 



3.  H.R.S. §752-1.