OPINION OF THE COURT BY POLLACK, J.

Steven T. Barta, Honolulu, for petitioner.

David Blancett-Maddock, for respondent.

McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

OPINION OF THE COURT BY POLLACK, J.The right to have all elements of a charged criminal offense proven beyond a reasonable doubt is one of the fundamental principles of our justice system. In State v. Murray, we held that a trial court must engage a defendant in an on-the-record colloquy to ensure that the defendant is intelligently, knowingly, and voluntarily relinquishing this fundamental right before the court may accept the defendant's admission of an element of a crime. 116 Hawai'i 3, 12, 169 P.3d 955, 964 (2007). We now reiterate our holding in Murray and decline to establish an exception to the colloquy requirement when a stipulation is based on trial strategy or time constraints.

I. BACKGROUND

In April 2011, Rachel Viamoana Ui and Jacob Wong, Ui's co-worker, were involved in a traffic collision in Kona on the island of Hawai'i. The two were traveling in Wong's vehicle, which "rolled" after it collided with a concrete construction barrier on Kamakaeha Avenue, eventually coming to a stop on its roof. When an ambulance arrived, the responding emergency medical technician found Ui unconscious a few feet from the driver-side door of the vehicle. Ui was transported to Kona Hospital, where an emergency room physician informed the responding police officer that he smelled alcohol on her person. Acting pursuant to Hawaii Revised Statutes (HRS) § 291E-21 (Supp. 2006), the officer requested that the hospital obtain a blood sample from Ui in order to determine her blood alcohol content (BAC). Ronald Luga, a medical technician employed by the hospital, proceeded to draw two vials of blood from Ui while she remained unconscious.

A. District Court Proceedings

The State of Hawai'i filed a complaint in the District Court of the Third Circuit (district court) charging Ui with operating a vehicle under the influence of an intoxicant (OVUII) in violation of HRS § 291E-61(a) (Supp. 2011) and driving without a license in violation of HRS § 286-102(b) (2007). Ui pleaded not guilty to both charges.

During the bench trial, the parties offered conflicting testimony as to whether Ui was driving at the time of the accident. Ui and Wong both acknowledged that they drank heavily on the night in question and testified that Wong had driven the two to a local store prior to the collision. Wong claimed that Ui insisted upon driving his truck when they left the store and was in control of the vehicle when it collided with the concrete barrier. In contrast, Ui asserted that she had "passed out" in Wong's passenger seat while still at the store and was sleeping when the collision occurred.

The State called Luga to testify regarding the blood draw he performed on Ui. Before Luga's testimony could begin, Ui's defense counsel interrupted:

I was speaking with Ms. Ui, and we may be willing to stipulate to certain things to save time with these witnesses.

Ms. Ui's asking me, was asking me if these witnesses are necessary, and I explained to her not if we're willing to stipulate to certain things. And I know that we're trying to get a lot done today. So if I could just briefly speak with her, and maybe the prosecution, about what we'd be willing to stipulate to, to save ... the need of these witnesses.

[Tr 4/13/12, 43:67] The court granted a recess to allow defense counsel to confer with Ui and the prosecuting attorney.

Following the recess, defense counsel orally stipulated to the following: (1) Ui's blood was drawn within three hours of the report of the accident; (2) Ui's blood was drawn in accordance with the Hawaii Administrative Rules; and (3) the blood samples were properly secured and transported to the laboratory. Additionally, defense counsel stipulated that Ui's blood test results showed a BAC of 0.156 grams of alcohol per one hundred milliliters or cubic centimeters of blood. Defense counsel indicated that he had "reviewed those stipulations" with Ui and "we're not challenging any of those facts."

The district court did not engage Ui in a colloquy regarding the stipulation to the blood test results, and a written copy of the stipulation was not provided to the court. Neither the court nor counsel acknowledged that the stipulated facts constituted proof of one of the two elements of a HRS § 291E-61(a)(4) offense. See Hawai'i Standard Jury Instructions Criminal 16.05 (2004) (providing that the two elements of a violation are 1) operating a vehicle and 2) having 0.8 or more grams of alcohol per 100 milliliters or cubic centimeters of blood).

At the conclusion of evidence, the district court found Ui guilty of OVUII and of driving without a license. The court sentenced Ui to pay a $1,000 fine and other monetary fees, attend a fourteen-hour driver's education course, and obtain a substance abuse assessment.

B. Proceedings Before the Intermediate Court of Appeals

Approximately twenty-eight months later, Ui, represented by new counsel, filed a notice of appeal to the Intermediate Court of Appeals (ICA). Ui argued that the State had failed to allege in its initial complaint that she had acted with the state of mind required to commit both offenses. With regard to the OVUII conviction, Ui argued it should be vacated because the language of the district court's ruling left it unclear whether the conviction was premised on HRS § 291E-61(a)(1) —which includes a state of mind requirement not alleged in the complaint—or HRS § 291E-61(a)(4) —which does not.

In a Summary Disposition Order (SDO), the ICA vacated Ui's conviction for driving without a license in violation of HRS § 286-102. The ICA reasoned that, because HRS § 286-102 does not in itself specify a requisite state of mind with respect to the conduct it prohibits, HRS § 702-204 (2014) requires that a defendant must have undertaken each element of the offense intentionally, knowingly, or recklessly in order to be convicted. The ICA held that, because the State had not alleged a mens rea in its complaint, dismissal of the driving without a license charge without prejudice was warranted under this court's decision in State v. Apollonio, 130 Hawai'i 353, 359, 311 P.3d 676, 682 (2013).

The ICA also determined that Ui's OVUII conviction was based on violations of both HRS § 291E-61(a)(1) (impairment of ability to care for oneself) and HRS § 291E-61(a)(4) (BAC over .08). Because HRS § 291E-61(a)(4) is a strict liability method of proof that does not require the State to allege a mens rea under our precedents, see State v. Nesmith, 127 Hawai'i 48, 58-61, 276 P.3d 617, 627-30 (2012), the ICA affirmed Ui's OVUII conviction under HRS § 291E-61(a)(4).

Following issuance of the SDO, Ui filed a motion for reconsideration. Ui argued that this court's then-recent decision in State v. Won, 137 Hawai'i 330, 372 P.3d 1065 (2015), in which we held that the State may not use the threat of criminal sanctions to coerce a driver into consenting to a breath or blood test, rendered her blood test results inadmissible. The ICA should therefore vacate her HRS § 291E-61(a)(4) conviction, Ui contended, and remand the case to permit her to move to suppress the blood test results. The ICA denied the motion, determining that Ui had waived the issue of admissibility by failing to move for suppression of the test results prior to trial.

II. STANDARDS OF REVIEW

Both the reasonableness of a search and the validity of a defendant's waiver of his or her constitutional rights are questions of constitutional law. See State v. Quiday, 141 Hawai'i 116, 121, 405 P.3d 552, 557 (2017) ; State v. Friedman, 93 Hawai'i 63, 67, 996 P.2d 268, 272 (2000). "We answer questions of constitutional law by exercising our own independent constitutional judgment based on the facts of the case. Thus, we review questions of constitutional law under the right/wrong standard." Friedman, 93 Hawai'i at 67, 996 P.2d at 272 (quoting State v. Hanapi, 89 Hawai'i 177, 182, 970 P.2d 485, 490 (1998) ).

III. DISCUSSION

In her application for a writ of certiorari, Ui contends that the ICA erred in failing to apply State v. Won, 137 Hawai'i 330, 372 P.3d 1065 (2015), to vacate her HRS § 291E-61(a)(4) conviction. The State responds that the ICA correctly held that Ui is not similarly situated to the defendant in Won.

Additionally, this court directed the parties to submit supplemental briefing on the following questions: (1) whether the district court erred by failing to engage Ui in a colloquy regarding the blood test stipulation as required by State v. Murray, 116 Hawai'i 3, 12, 169 P.3d 955, 964 (2007), and (2) whether, if the district court erred by not engaging Ui in a colloquy, this court should recognize plain error and vacate Ui's conviction.

A. State v. Won Is Inapplicable To Ui's Blood Draw.

In Won, we held that law enforcement's use of an "implied consent form" that threatened criminal penalties for refusing a BAC test was inherently coercive and rendered a driver's ensuing consent invalid under article I, section 7 of the Hawai'i Constitution. 137 Hawai'i at 347-48, 372 P.3d at 1082-83. When Ui's blood was drawn at Kona Community Hospital after the accident, no request was made that she consent to testing, nor was an implied consent form advising of possible criminal penalties involved. Because Ui's blood draw was not predicated on her consent, Won does not provide authority to challenge Ui's HRS § 291E-61(a)(4) conviction on this basis. See id. at 344 n.26, 372 P.3d at 1079 n.26 (citing State v. Entrekin, 98 Hawai'i 221, 232, 47 P.3d 336, 347 (2002) ) (setting forth constitutional requirements for a nonconsensual, warrantless blood extraction pursuant to HRS § 291E-21 ).

B. State v. Murray Required An On-the-Record Colloquy.

1. A Colloquy is Required Prior to Any Stipulation to an Element of an Offense

It is well settled in Hawai'i law that a defendant relinquishes fundamental rights only when a waiver is undertaken intelligently, knowingly, and voluntarily. Murray, 116 Hawai'i at 10-11, 169 P.3d at 962-63 (citing State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993) ; Tachibana v. State, 79 Hawai'i 226, 235, 900 P.2d 1293, 1302 (1995) ). Reviewing courts will not presume a defendant's acquiescence in the loss of fundamental rights on the basis of a silent record. Wong v. Among, 52 Haw. 420, 424, 477 P.2d 630, 633-34 (1970). Rather, an affirmative, on-the-record waiver must come directly from the defendant, and counsel may not waive fundamental rights on a client's behalf. Murray, 116 Hawai'i at 10, 169 P.3d at 962.

To ensure these requirements are met, it is necessary for a trial court to engage a defendant in an on-the-record colloquy before accepting a waiver of any of the rights we have held to be fundamental, including the right to counsel, Carvalhov. Olim, 55 Haw. 336, 342-43, 519 P.2d 892, 897 (1974), the right to trial by jury, Ibuos, 75 Haw. at 121, 857 P.2d at 578, and the right of a defendant to testify on his or her own behalf, Tachibana, 79 Hawai'i at 236, 900 P.2d at 1303.

In Murray, this court considered whether the on-the-record colloquy requirement should be applied to a defendant's stipulation to an element of an offense. 116 Hawai'i at 9, 169 P.3d at 961. Murray was charged with abuse of family or household members under HRS § 709-906 (Supp. 2006) with a statutory felony enhancement based on two previous convictions for the same offense within a specified period. Id. at 5-6, 169 P.3d at 957-58. Prior to trial, Murray's counsel stipulated that Murray had been convicted under the statute twice within the required time frame, thus satisfying an element of the offense. Id. at 5, 169 P.3d at 957. The trial court did not address Murray in a colloquy regarding the constitutional rights he was waiving by stipulating to his prior convictions. Id.

On review, this court held that the right to have all elements proven beyond a reasonable doubt is a fundamental right guaranteed under the Fifth and Fourteenth Amendments to the United States Constitution; article I, section 5 of the Hawai'i Constitution; and HRS § 701-114 (1993). Id. at 10-12, 169 P.3d at 962-64. We determined that "a colloquy between the trial court and defendant is the best way to ensure that a defendant's constitutional right ... is protected" because it guarantees that a defendant understands the nature of the fundamental rights being relinquished, the full consequences of such a waiver, and the defendant's unrestricted personal discretion as to whether to undertake the waiver. Id. at 12, 169 P.3d at 964.

Thus, we determined that a colloquy is the most reliable procedure to ensure the defendant's waiver is knowing, intelligent, and voluntary. Id. We reasoned in Murray that "the colloquy approach also best promotes judicial efficiency by establishing on the record that the defendant has voluntarily waived an element of the offense," thus minimizing post-trial challenges. Id. We therefore held that the trial court must conduct a colloquy when a defendant wishes to waive the right to have all elements of an offense proven beyond a reasonable doubt, which occurs when a defendant stipulates to one or more elements. Id.

The requirement that all elements of an offense be proven beyond a reasonable doubt arises out of the presumption of innocence, one of the fundamental principles that establish the foundation of our justice system. Coffin v. U.S., 156 U.S. 432, 452-61, 15 S.Ct. 394, 39 L.Ed. 481 (1895) ; see also State v. Basham, 132 Hawai'i 97, 116, 319 P.3d 1105, 1124 (2014). No defendant in this State may be found guilty until the prosecution overcomes the defendant's presumption of innocence as to each element of the charged offense. State v. Lima, 64 Haw. 470, 474, 643 P.2d 536, 539 (1982) ; HRS § 701-114.

The waiver of the constitutional right to have each element of an offense proven beyond a reasonable doubt is not an insignificant or routine procedural matter. By its very nature, the right encompasses a number of other constitutional rights, including the right to confront and cross-examine witnesses as to the stipulated element and the right to adduce contrary evidence regarding the stipulated element. 83 C.J.S. Stipulations § 5 (2017) ("A stipulation bars a party who enters into it from adducing evidence to dispute the stipulated facts or the circumstances surrounding them."). The stipulation also acts as a waiver of any potential defenses to the element, both at trial and on appeal. Id. § 78 ("A stipulation as to facts also functions as a waiver of legal defenses to the establishment of the particular element to which the parties have stipulated, and therefore is not reviewable on appeal."). In the absence of a colloquy, there is little by which a court can gauge whether a defendant understands that stipulating to facts comprising an element of an offense amounts to such a sweeping concession.

In short, the right to have all elements of an offense proven beyond a reasonable doubt is of fundamental importance. We accordingly reaffirm that an on-the-record colloquy is required to protect against the wrongful denial of this right.

2. Trial Strategy is not an Exception to the Mandatory Colloquy Required by State v. Murray

The State argues that there were tactical advantages to the stipulation and consequently a Murray colloquy was not required to be conducted by the trial court. Our precedents place certain tactical decisions within the discretion of defense counsel after consultation with a defendant to the extent feasible and appropriate. See State v. Richie, 88 Hawai'i 19, 39, 960 P.2d 1227, 1247 (1998) (citing American Bar Association, Standards for Criminal Justice—Prosecution Function and Defense Function, Standard 4–5.2 (3d ed. 1993) ). Our decision in Murray, however, makes clear that the final decision to stipulate to evidence proving an element of an offense resides solely with the defendant. 116 Hawai'i at 12, 169 P.3d at 964. Indeed, the Murray court held that the ICA had gravely erred by concluding the stipulation was "a tactical decision permissibly made by counsel for the defendant." Id. at 7, 13, 169 P.3d at 959, 965. In reviewing applicable precedent, we noted expressly that "a defendant's constitutional rights may not be waived by counsel ... as a tactical matter." Id. at 11, 169 P.3d at 963 (citing Tachibana v. State, 79 Hawai'i 226, 229, 232, 900 P.2d 1293, 1296, 1299 (1995) ).

Creating a trial strategy exception to the requirement that a court engage a defendant in a colloquy prior to accepting a stipulation to an element of an offense would be a sharp deviation from the procedure for waiving other fundamental rights. An attorney may not, for example, waive a defendant's right to a jury trial when the attorney considers a bench trial strategically advantageous. State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993) ; see also State v. Young, 73 Haw. 217, 221, 830 P.2d 512, 515 (1992) (overruling State v. Olivera, 53 Haw. 551, 497 P.2d 1360 (1972), which held that counsel may waive a jury trial on a client's behalf). Nor may defense counsel waive a defendant's right to testify as a matter of trial strategy. Tachibana, 79 Hawai'i at 232, 900 P.2d at 1299 (holding that defense counsel may not waive a defendant's right to testify in his or her own behalf for tactical reasons).

A trial strategy exception would also ultimately swallow the colloquy rule. Stipulations by definition are voluntary agreements between opposing parties. Stipulation, Black's Law Dictionary (10th ed. 2014). As a voluntary agreement, there is little incentive for counsel to enter into a stipulation unless it is viewed as beneficial in some fashion. This is to say that every decision to stipulate to evidence in a case may be considered within the bounds of the trial strategy exception argued by the State. See Gonzalez v. United States, 553 U.S. 242, 256, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008) (Scalia, J., concurring in the judgment) ("Depending on the circumstances, waiving any right can be a tactical decision.").

Even assuming that stipulations that involve trial strategy can be distinguished from those that do not, it is unclear what this distinction is and how a court would make the determination. The evaluation would invariably need to be made by the trial court because whether a particular stipulation is strategic is a fact-laden determination. In assessing whether a colloquy is required, a trial court would need to inquire of counsel whether the stipulation was based on strategy or some other consideration. The response by defense counsel to this question in itself poses a risk of invading the attorney-client privilege and may also be potentially damaging to the defense. The follow-up questions necessary to determine the accuracy of a counsel's assessment would compound and heighten these concerns.

The present case amply demonstrates that reviewing courts are not well positioned to ascertain the reasons underlying a stipulation when such a judicial inquiry does not take place at the trial level. Ui's counsel stated the stipulation was intended simply to "save time" because they were "trying to get a lot done today." Despite this indication that the stipulation was driven by administrative time constraints, the State argues that Ui "had clear strategic and tactical reasons for stipulating to the blood alcohol results." As would likely be true in any appellate case in which judicial inquiry was not done at the trial level, an accurate evaluation of the issue would require remand for a hearing at which counsel and the defendant would have to testify or respond to inquiries regarding potentially privileged communications. And, as the State appears to concede [SB at 9], remand for an evidentiary hearing may be required even when its proposed trial strategy exception to the colloquy requirement would apply because the strategic advantages of a stipulation are only one aspect to be considered in evaluating whether a defendant's waiver was knowing, intelligent, and voluntary under the totality of the circumstances. Thus, the cost to judicial resources of determining whether a colloquy was excused under a trial strategy exception would negate the efficiency benefits the colloquy requirement affords. See Murray, 116 Hawai'i at 12, 169 P.3d at 964.

Further, the stipulation in Murray itself was clearly a strategic decision that would fall squarely within the State's argued exception. By relinquishing the right to have his prior convictions proven beyond a reasonable doubt, Murray avoided "the prejudice that would result from relating the details of the previous incidents to the jury." 116 Hawai'i at 20, 169 P.3d at 972. Murray's decision represented a determination that it was advantageous for him to concede one element of the charged offense and focus his trial efforts on disproving those elements that remained. Despite the clear strategic analysis inherent in his decision, we held that the "stipulation [could] be accepted only after engaging [Murray] in an on-the-record colloquy regarding [his] constitutional rights, and ensuring that [Murray made] a knowing and voluntary waiver of his right to have the prior convictions proven beyond a reasonable doubt and decided by a jury." Id. at 21, 169 P.3d at 973. The State's argued trial strategy exception would thus constitute a sub silentio reversal of our holding in Murray.

In sum, establishing a trial strategy exception to the Murray colloquy requirement would fatally undermine the procedural safeguards we have created for defendants' fundamental rights. It would also introduce administrative difficulties that would undercut the benefits to judicial economy granted by the colloquy requirement. See Murray, 116 Hawai'i at 12, 169 P.3d at 964. And it would represent an effective overruling of Murray and other cases in which we have held that a knowing, intelligent, and voluntary waiver cannot be assumed from counsel's words and actions, regardless of strategic reasons for counsel's statement of waiver. E.g., Tachibana, 79 Hawai'i at 232, 900 P.2d at 1299 ; Young, 73 Haw. at 221, 830 P.2d at 515. We therefore decline to adopt such an exception.

3. The Trial Court Failed to Engage Ui in an On-the-Record Colloquy

During the State's case-in-chief, the district court recessed to allow the parties to discuss a possible stipulation. Following the recess, counsel proceeded to orally stipulate to the evidentiary foundation and results of Ui's blood test. The court did not address Ui before the stipulation was read to, and accepted by, the district court. The district court did not attempt to determine whether Ui understood the nature of the rights she was waiving and the consequences of that waiver, nor did it ascertain whether the waiver was the product of Ui's unrestrained choice.

As stated, Murray requires a trial court to conduct an on-the-record colloquy with the defendant before accepting a waiver of the fundamental right to have all elements of a charge proven beyond a reasonable doubt. 116 Hawai'i at 12, 169 P.3d at 964. Only when the court has ensured that the right has been knowingly, intelligently, and voluntarily waived may it accept a stipulation to an element of an offense. Id. No such colloquy occurred here. Indeed, the present case underscores the vital role played by the colloquy. There is no indication in the record that Ui understood that the stipulated facts her counsel agreed to had the effect of conclusively establishing one of the two elements of an offense with which she was charged. The district court therefore erred in accepting Ui's stipulation. C. The District Court's Plain Error Warrants Reversal.

When necessary to serve the ends of justice, this court will consider issues that have not been preserved below or raised on appeal. See State v. Kahalewai, 56 Haw. 481, 491, 541 P.2d 1020, 1027 (1975) ; Hawai'i Rules of Penal Procedure (HRPP) Rule 52(b) (2016) (allowing plain error to be noticed although not brought to attention of trial court); Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b)(4) (2010) (permitting point of error not presented on appeal to be noticed as plain error); HRAP Rule 40.1(d)(1) (2015) (allowing question not raised to be noticed as plain error). It is "firmly established" that the relevant inquiry when evaluating whether a trial court's plain error may be noticed is whether the error affected substantial rights. State v. Miller, 122 Hawai'i 92, 100, 223 P.3d 157, 165 (2010) ; see also HRPP Rule 52(b) ("Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."). Thus, a reviewing court has discretion to correct plain error when the error is "not harmless beyond a reasonable doubt." State v. Nichols, 111 Hawai'i 327, 335, 141 P.3d 974, 982 (2006) ; see also Miller, 122 Hawai'i at 130, 223 P.3d at 195 ; HRPP Rule 52(a) (2016) ("Harmless error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.").

The right to have all elements of a charged offense proven beyond a reasonable doubt is rooted not only in statutory and constitutional law, but also in the presumption of innocence that is the very foundation of our criminal justice system. We held in Murray that the right was of such fundamental importance that an on-the-record colloquy is required to protect against its wrongful deprivation. 116 Hawai'i at 10, 12, 169 P.3d at 962, 964 (citing U.S. Const. amend. XIV ; Haw. Const. art. I, § 5 ). By not engaging Ui in this colloquy, the district court may have deprived Ui of the fundamental right that the colloquy was designed to protect. The error thus potentially affected rights that were not only substantial, but also fundamental.

In assessing whether an error is harmless beyond a reasonable doubt, we must determine whether there is a reasonable possibility that the error contributed to the conviction. State v. Nofoa, 135 Hawai'i 220, 229, 349 P.3d 327, 336 (2015). If there is a reasonable possibility that the error contributed to the conviction, "the error is not harmless beyond a reasonable doubt, and the conviction must be set aside." Id. (citing State v. Gano, 92 Hawai'i 161, 176, 988 P.2d 1153, 1168 (1999) ).

The State contends that the stipulation did not affect the outcome of the trial since both Wong and Ui testified as to Ui's level of intoxication. Although Ui and Wong's testimony did reflect the number and type of alcoholic beverages that Ui consumed, there is nothing in the record indicating Ui's height or weight or the anticipated rate of alcohol dissipation for a person with Ui's physical attributes. In the absence of such information, there is nothing from which a reasonis not able trier of fact could infer Ui's numerical blood alcohol concentration at the time of the accident other than the stipulation. See State v. Nakamitsu, No. CAAP-14-0001151, 2016 WL 381475, at *13 (Haw. App. Jan. 29, 2016), aff'd, 140 Hawai'i 157, 398 P.3d 746 (2017) (holding that, without test results, insufficient evidence existed to support defendant's conviction for driving with breath alcohol content over the legal limit despite ample evidence of defendant's impairment, including testimony that defendant crashed into light pole, had red eyes and smelled of alcohol, failed field sobriety tests, and stumbled and acted erratically by crying and using profanity).

Because the erroneously admitted stipulation formed the only basis from which a trier of fact could infer Ui's numerical BAC, we cannot conclude that the district court's error in accepting the stipulation did not contribute to Ui's OVUII conviction. Accordingly, we hold that the district court's error was not harmless beyond a reasonable doubt.

In choosing to invoke our discretionary review of plain errors, we consider whether the record evinces "errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings." Miller, 122 Hawai'i at 100, 223 P.3d at 165 (emphasis omitted) (quoting State v. Sawyer, 88 Hawai'i 325, 330, 966 P.2d 637, 642 (1998) ). We will correct such errors "to prevent the denial of fundamental rights"—regardless of whether the error was brought to the attention of the trial judge or raised on appeal. Id. (quoting Sawyer, 88 Hawai'i at 330, 966 P.2d at 642 ).

As stated, the right to have all elements of an offense proven beyond a reasonable doubt is rooted in structural principles underlying criminal justice. The potential wrongful denial of the presumption of innocence casts doubt upon the integrity of the system as a whole. In light of this foundational importance, invoking plain error review is appropriate under these circumstances. See State v. Staley, 91 Hawai'i 275, 286-87, 982 P.2d 904, 915-16 (1999) (holding it was plain error for trial court to fail to engage defendant in a colloquy prior to accepting defendant's waiver of fundamental right to testify); State v. Davia, 87 Hawai'i 249, 255, 953 P.2d 1347, 1353 (1998) (holding it was plain error for trial court to fail to engage defendant in a colloquy prior to accepting defendant's no contest plea); Miller, 122 Hawai'i at 116, 223 P.3d at 181 (holding plain error review is appropriate when errors affect the fairness, integrity, or public perception of judicial proceedings (citing State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 676 (1988) ) ).

The State and the dissent contend that State v. Pratt, 127 Hawai'i 206, 277 P.3d 300 (2012), forecloses plain error review under the circumstances of this case. Dissent at 142 Hawai'i at 302-03, 418 P.3d at 643–44. However, we held in Pratt that it was not plain error for a court to fail to engage a defendant in a Murray colloquy when the trial had occurred before this court had decided Murray and established the colloquy requirement. 127 Hawai'i at 212, 277 P.3d at 306. In contrast, the present case centers on a trial court's failure to implement clearly established law.

The dissent interprets Pratt to suggest that plain error review of a trial court's failure to conduct a Murray colloquy is inappropriate when counsel's statements suggest the defendant initiated or participated in the decision to stipulate to an element of the offense. Dissent at 142 Hawai'i at 302-03, 418 P.3d at 643–44. This approach is misframed as a plain error standard, and it amounts to inferring the voluntariness and knowingness of a defendant's waiver of fundamental rights from the statements of defense counsel. Respectfully, such a rule is plainly inconsistent with our precedents.

This court has often stated expressly that the "[w]aiver of a defendant's fundamental rights ... must come directly from the defendant." Murray, 116 Hawai'i at 10, 169 P.3d at 962 (emphasis added); accord State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993). A waiver by defense counsel on the defendant's behalf is insufficient. State v. Young, 73 Haw. 217, 221, 830 P.2d 512, 514 (1992) ("[I]t is the defendant who must make the waiver, upon being well informed of his right to trial by jury." (emphasis added) ); accord Ibuos, 75 Haw. at 120 n.1, 857 P.2d at 577 n.1 ; State v. Gomez-Lobato, 130 Hawai'i 465, 481, 312 P.3d 897, 913 (2013) (Acoba, J., concurring). Indeed, we have expressly refused to speculate regarding the substance of privileged communications surrounding a waiver, as the dissent would have us do here, stating that "a court may not rely upon an off-the-record discussion between counsel and a defendant to establish a valid waiver of a constitutional right." State v. Eduwensuyi, 141 Hawai'i 328, 336, 409 P.3d 732, 740 (2018).

We have even declined to find a knowing, intelligent, and voluntary waiver of fundamental rights when the defendant personally signs a written form or the court engages the defendant in an incomplete or deficient colloquy—neither of which occurred in this case. See, e.g., id.; State v. Baker, 132 Hawai'i 1, 7, 319 P.3d 1009, 1015 (2014) ; Gomez-Lobato, 130 Hawai'i at 472-73, 312 P.3d at 904-05. And we have often invoked plain error review in doing so. See, e.g., State v. Ichimura, SCWC-13-0000396, 2017 WL 2590858, at *7 (Haw. June 15, 2017) ; Gomez-Lobato, 130 Hawai'i at 469 n.4, 312 P.3d at 901 n.4.; see also State v. Vaitogi, 59 Haw. 592, 593 n.4, 594, 585 P.2d 1259, 1260 n.4, 1261 (1978) (holding it was plain error for the trial court to fail to engage the defendant in an on-the-record colloquy prior to accepting a guilty plea).

Our precedents do not permit a reviewing court to infer that a fundamental right was knowingly, voluntarily, and intelligently relinquished by a defendant simply because defense counsel suggested that the right was so waived. Given the complete lack of an on-the-record colloquy and personal waiver in this case, we conclude that the trial court plainly erred.

IV. CONCLUSION

We hold that the district court plainly erred in failing to conduct an on-the-record colloquy as required by our decision in Murray. Thus, the court also erred in accepting the stipulation as evidence proving that Ui's BAC was .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood. The district court's error was not harmless, and the stipulation regarding Ui's blood test must be set aside. Accordingly, the ICA's June 30, 2016 Judgment on Appeal is affirmed in part and vacated in part. We affirm the ICA's Judgment on Appeal to the extent that it vacated Ui's conviction under HRS § 286-102(b) and remanded to the district court with instructions to dismiss the HRS § 286-102(b) charge without prejudice. We vacate the ICA's Judgment on Appeal to the extent that it affirmed Ui's conviction under HRS § 291E-61(a)(4) and also vacate Ui's district court conviction for this offense, and the case is remanded to the district court for further proceedings.

DISSENTING OPINION BY NAKAYAMA, J., IN WHICH RECKTENWALD, C.J., JOINS

I agree with the Majority's conclusion that State v. Won, 137 Hawai'i 330, 372 P.3d 1065 (2015), provides no basis on which to vacate Ui's conviction. However, I write separately because I cannot join the Majority's decision to sua sponte review this case for plain error based on the district court's failure to engage Ui in a Murray colloquy. I continue to believe that this court should exercise sua sponte plain error review sparingly and only in exceptional circumstances. State v. Miller, 122 Hawai'i 92, 146, 223 P.3d 157, 211 (2010) (Nakayama, J., dissenting). I further believe that the facts of this case do not rise to that level.

For this reason, I respectfully dissent.

I. BACKGROUND

On October 11, 2011, the State filed a complaint against Ui, alleging that on April 13, 2011, Ui: 1) operated a vehicle on a public highway while under the influence of an intoxicant (OVUII) in violation of Hawai'i Revised Statutes (HRS) § 291E-61(a) ; and 2) operated a vehicle without a license in violation of HRS § 286-102(b).

At the bench trial in the district court, several witnesses for the State testified to the events that occurred on April 13, 2011. The State first called Jacob Wong (Wong) to testify that he picked Ui up in his truck on the night of the accident and that they spent the next few hours drinking at a bar and then at a harbor. Wong testified that he then drove Ui to Safeway, and that when they were ready to leave, Ui "insisted that she would drive" and that Wong should let her have the keys to his truck. Wong further testified that Ui was driving his truck and that he was a passenger when it hit concrete barriers and flipped over.

Next, the State called a first responder to testify that when he arrived at the accident scene he found Ui "laying on her back next to the driver's side door, unresponsive." Then, the State called a police officer to testify that Ui was transported to Kona Hospital and that the emergency room physician "contacted [him] and stated that he smelled alcohol on the female party." Based on this information, the officer testified that he then initiated the procedure for a mandatory blood draw.

As the State was calling its next witness, the medical technician who performed the blood draw, Ui's counsel interrupted:

[DEFENSE COUNSEL:] Your Honor, I'm sorry to interrupt. I was speaking with Ms. Ui, and we may be willing to stipulate to certain things to save time with these witnesses.

Ms. Ui's asking me, was asking me if these witnesses are necessary, and I explained to her not if we're willing to stipulate to certain things. And I know that we're trying to get a lot done today. So if I could just briefly speak with her, and maybe the prosecution, about what we'd be willing to stipulate to, to save—

THE COURT: All right.

The State noted that it would rather proceed with its witnesses and try to lay the appropriate foundation, but the court ordered a recess to try to "get such a stipulation in place."After the recess, Ui's counsel explained to the court that "we have reached an agreement, and I have gone over all the stipulations with Ms. Ui." Ui's counsel then proceeded to stipulate that Ui's blood test was properly drawn and that the results showed a blood alcohol content of 0.156. After stipulating to these facts, Ui's counsel noted: "And I have reviewed those stipulations as well as the exhibits with Ms. Ui, and she understands that they're going to be—that we're not challenging any of those facts."

At this point, Ui testified on her behalf. Ui testified that she does not drive and that she does not have a license. Ui testified that Wong was driving on the night of the accident, that she "passed out" in the passenger seat of his truck before the accident took place, and that the next thing she remembered was waking up in a hospital on O'ahu after the accident.

On cross-examination by the State, Ui testified that she had numerous alcoholic drinks on the night of the accident:

[THE STATE:] So how much had you had to drink with Jacob [Wong] on April 13?

[UI:] I had four bottles of Budweiser.

[THE STATE:] And that's all?

[UI:] No.

[THE STATE:] What else did you have?

[UI:] And then we had about four to five shots that was bought by him.

[THE STATE:] And this is at the bar?

[UI:] Yes.

....

[THE STATE:] Okay. So it was the four Buds and then the four or five shots?

[UI:] Mm-hmm.

....

[THE STATE:] So that was in a period of about an hour and a half. Okay. So then you went to the harbor?

[UI:] Yes.

[THE STATE:] Okay. How much did you drink at the harbor?

[UI:] I'm not sure, but we had a bottle about that big.

[THE STATE:] Of what?

[UI:] And there were four of us, so we were just —

[THE STATE:] What was the bottle of?

[UI:] Parrot Bay Rum.

[THE STATE:] Rum. Okay. How many shots did you drink of the—or how much did you drink from the Parrot Bay Rum bottle?

[UI:] I'm not sure. It went around about four times.

[THE STATE:] And did you take big drinks of those—

[UI:] No.

[THE STATE:]—big drink of that? Was it mouthful?

[UI:] Just take swigs.

[THE STATE:] Swigs. Okay. How long were you at the harbor for?

[UI:] About forty-five minutes.

....

[THE STATE: ] And the entire time there you were drinking?

[UI:] Mm-hmm.

[THE STATE:] And then you went to Safeway?

[UI:] Yes.

....

[THE STATE:] Okay. So do you think you were really drunk at Safeway?

....

[UI:] I'd say.

[THE STATE:] You were really drunk?

[UI:] Not really, really drunk, but like buzzing.

[THE STATE:] But you passed out?

[UI:] At Safeway.

[THE STATE:] You passed out in the car at Safeway?

[UI:] Yeah.

[THE STATE:] Okay. So you were really drunk?

[UI:] Yeah.

In his closing argument, Ui's counsel explained that "Ms. Ui is really not contesting that she was drinking. She's not contesting that she was involved in the accident. But she certainly is adamant about the fact that she wasn't driving."The district court found Ui guilty of both the OVUII and driving without a license offenses. Ui appealed to the ICA, which affirmed her OVUII conviction under HRS § 291E-61(a)(4). In her application for writ of certiorari challenging the ICA's decision to affirm her OVUII conviction, Ui did not raise any error with respect to the blood test stipulation. However, this court directed the parties to submit supplemental briefing on whether the district court erred in failing to engage Ui in a colloquy regarding the blood test stipulation pursuant to State v. Murray, 116 Hawai'i 3, 169 P.3d 955 (2007).

II. DISCUSSION

The Majority concludes that the district court plainly erred in allowing Ui to stipulate regarding the blood test without conducting a colloquy with Ui pursuant to Murray. Majority at 142 Hawai'i at 296-97, 418 P.3d at 637–38. I respectfully disagree.

I continue to believe that "[t]his court's power to deal with plain error is one to be exercised sparingly and with caution." Miller, 122 Hawai'i at 146, 223 P.3d at 211 (Nakayama, J., dissenting). This is so because "the plain error rule represents a departure from a presupposition of the adversary system—that a party must look to his or her counsel for protection and bear the cost of counsel's mistakes." State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993).

Accordingly, this court's power to exercise plain error sua sponte should be exercised even more sparingly and only in exceptional cases. See State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 675-76 (1988) ("In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken....") (formatting altered) (emphasis added); State v. Ruiz, 49 Haw. 504, 506, 421 P.2d 305, 308 (1966) ("The power to notice error on the court's own motion will be exercised only in an exceptional case.") (emphasis added). This heightened standard is appropriate because:

When an appellate court notices plain error sua sponte, it departs from the position usually presupposed by the adversary system that a party must look to his counsel to protect him and that he must bear the costs of the mistakes of his counsel twice: first, when the counsel failed to preserve the error at the lower court and, subsequently, when the counsel failed to argue the plain error on appeal.

Miller, 122 Hawai'i at 139, 223 P.3d at 204 (Nakayama, J., dissenting) (quotation marks omitted) (emphasis in original).

Here, the Majority argues that sua sponte plain error review is required in this case because failing to conduct a colloquy with Ui regarding her stipulation to the blood test results deprived her of her fundamental rights. Majority at 142 Hawai'i at 298-99, 418 P.3d at 639–40. In concluding so, the Majority states, "[o]ur precedents do not permit a reviewing court to infer that a fundamental right was knowingly, voluntarily, and intelligently relinquished by a defendant simply because defense counsel suggested that the right was so waived." Majority at 142 Hawai'i at 299, 418 P.3d at 640.

But in my view, exercising sua sponte plain error review requires a more careful analysis based on the record in each case. Cf. State v. Apollonio, 130 Hawai'i 353, 370, 311 P.3d 676, 693 (2013) (Recktenwald, C.J., concurring and dissenting). And on the facts of this particular case, the failure of the district court to engage Ui in a colloquy does not rise to the "exceptional circumstances" I would require in order to notice plain error sua sponte. This is especially true when our decision in State v. Pratt, 127 Hawai'i 206, 277 P.3d 300 (2012), not Murray, appears more applicable to this case.

In Pratt, this court considered whether Pratt had violated a state regulation prohibiting the unpermitted camping in a closed area of a state wilderness park. Id. at 208, 277 P.3d at 302. At a pretrial motion to dismiss hearing, Pratt testified that he lived in the park without a permit but that his actions were constitutionally protected as a native Hawaiian practice. Id. The trial court denied Pratt's motion to dismiss and, prior to trial, the parties stipulated to the essential facts to establish that Pratt had violated the regulation. Id. at 210, 277 P.3d at 304. At trial, Pratt focused his efforts on the affirmative defense that he had a constitutionally protected right as a native Hawaiian to conduct traditional native Hawaiian activities on the land. Id. The trial court convicted Pratt of violating the regulation. Id. at 211, 277 P.3d at 305.

On appeal before this court, the Dissent argued that this court should exercise sua sponte plain error review on the grounds that there was no on-the-record colloquy in which Pratt waived his right to have the prosecution prove each element of the offense, and that the stipulation did not satisfy this requirement under Murray. Id. at 221-22, 277 P.3d at 315-16 (Acoba, J., concurring and dissenting). However, the Majority declined to invoke sua sponte plain error to invalidate the parties' stipulation, explaining that this court's prior decision in Murray was inapposite because in Murray, the stipulation was made "solely by counsel," whereas in Pratt, Pratt himself was "on the record as personally admitting to the essential facts supporting conviction." Id. at 213, 277 P.3d at 307 (citing Murray, 116 Hawai'i at 5, 169 P.3d at 957 ).

The stipulation in the current case similarly reflects a decision by Ui herself to concede that she was intoxicated at the time of the accident. The record evinces that, contrary to the facts in Murray, this was not a unilateral decision made by Ui's counsel. On the contrary, Ui's counsel interrupted the State's calling of the medical technician to state, "Ms. Ui's asking me, was asking me if these witnesses are necessary, and I explained to her not if we're willing to stipulate to certain things." Ui's counsel then requested and was granted a recess to speak with Ui about the stipulation. Upon returning from the recess, Ui's counsel explained to the court that "we have reached an agreement, and I have gone over all the stipulations with Ms. Ui." After the stipulations were read, Ui's counsel noted again that he "reviewed those stipulations as well as the exhibits with Ms. Ui, and she understands that they're going to be—that we're not challenging any of those facts."

Although there is no written stipulation signed by Ui, as was the case in Pratt, the record reflects that Ui wanted to stipulate, initiated the stipulation, discussed the stipulation and its effects with her attorney, and ultimately agreed to it. Ui made this decision after hearing testimony from Wong, in which he recounted drinking with Ui on the night of the accident, and from the police officer, in which he testified that he ordered a mandatory blood draw of Ui after receiving a report from the ER physician that Ui smelled of alcohol. On the basis of these facts, I cannot see how the district court's "error in fact affected the defendant's substantial rights." Miller, 122 Hawai'i at 145, 223 P.3d at 210 (Nakayama, J., dissenting) (emphases in original).

Finally, I continue to maintain my concern that the Majority's reliance on Murray in this case further erodes the relationship between an attorney and her client, imposes unreasonable duties upon the court, and intrudes upon the adversarial nature of the trial process:

A court is not obligated to engage in a mandatory colloquy with every defendant to ensure that he, notwithstanding his counsel's silence or conduct, knowingly and intelligently waived each and every one of his constitutional rights. [ Tachibana v. State, 79 Hawai'i 226, 241, 900 P.2d 1293, 1308 (1995) ] (Nakayama, J., dissenting). It is instead primarily the obligation of counsel to advise a defendant on whether to waive his constitutional rights, and the tactical advantages and disadvantages of each choice. Id.

Murray, 116 Hawai'i at 22, 169 P.3d at 974 (Nakayama, J., dissenting). III. CONCLUSION

Because I believe that sua sponte plain error review is not warranted by the facts of this case, I would affirm the ICA's judgment to the extent that it affirmed Ui's OVUII conviction under HRS § 291E-61(a).