§708-836.1  Unauthorized control of a propelled vehicle in the second degree.  (1)  A person commits the offense of unauthorized control of a propelled vehicle in the second degree if the person recklessly or negligently exerts unauthorized control over another's propelled vehicle by operating the propelled vehicle without the owner's consent or by changing the identity of the propelled vehicle without the owner's consent.

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

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

     (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; or

     (c)  Purchased the vehicle and reasonably believed oneself to be the actual owner of the vehicle.

     (3)  For the purposes of this section:

     "Owner" means the registered owner of the propelled vehicle or the unrecorded owner of the propelled vehicle pending transfer of ownership; provided that if there is no registered owner of the propelled vehicle or unrecorded owner of the propelled vehicle pending transfer of ownership, "owner" means the legal owner.

     "Propelled vehicle" shall have the same meaning as in section 708-836.

     (4)  Unauthorized control of a propelled vehicle in the second degree is a misdemeanor. [L 2021, c 6, §2; am L 2022, c 53, §3]

COMMENTARY ON §708-836.1

  Act 6, Session Laws 2021, added this section to establish the offense of unauthorized control of a propelled vehicle in the second degree.  The legislature found that there were a number of statutory provisions enacted to address the high number of vehicle thefts in the State, especially on the island of Oahu.  Frequently, a stolen vehicle is recovered during the commission of a crime or after it has been used to commit other crimes.  The legislature found that court rulings on prior law aimed at punishing or deterring the theft of propelled vehicles required the prosecution to prove that a defendant knew the propelled vehicle was stolen.  This could be difficult to prove and had hindered efforts to prosecute persons operating stolen vehicles.  The legislature further found that Act 6 would provide law enforcement with the flexibility to prosecute persons who recklessly or negligently exert unauthorized control of 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.  House Standing Committee Report No. 765, Senate Standing Committee Report No. 1206.

  Act 53, Session Laws 2022, amended this section to create an affirmative defense for anyone charged with unauthorized control of a propelled vehicle, where the defendant purchased the vehicle and reasonably believed themselves to be the actual owner of the vehicle.  The legislature found that in cases involving unauthorized control of a propelled vehicle, the prosecution is often blindsided at trial when a defendant makes an inference during questioning of a witness, or personally testifies, that the defendant purchased the vehicle.  When this occurs, the trial has already commenced and the prosecution is learning of this defense for the first time.  At that point, the prosecution and police are unable to investigate these claims mid-trial, jeopardy has already been attached, and jurors are potentially left to question whether the State has in fact proven the case beyond a reasonable doubt.  The legislature noted that if a defendant has in fact purchased the vehicle, that information should be relayed to the prosecution for proper investigation to ensure that the defendant is not wrongfully prosecuted and resources are not wasted.  Accordingly, Act 53 codified an affirmative defense for these types of cases to place the burden on the defendant to prove the particular defense by a preponderance of the evidence while still requiring the prosecution to prove their case beyond a reasonable doubt.  Senate Standing Committee Report No. 3408, House Standing Committee Report No. 780-22.