In The
Cite as State of Yap v. Guilinug, Yap St.(1994)

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Criminal Case No. 1993-086

     The charges by the Government in this criminal case against the defendant, John Gilinug, are Counts One and Two: Illegal possession and consumption of alcoholic beverages, violations of 11 YSC 808(b); Count Three: Consumption in and on public areas in violation of 11 YSC 809(a); and Count Four: Driving while under,the influence of intoxicating liquor in violation of 25 YSC 704. In response to the Information filed by the Government, the defendant filed a Motion to Dismiss arguing that the "alcoholic beverages" and "intoxicating liquor" referred to in the Government charges are specifically tuba (a.k.a. achif), a traditional beverage which the Legislature intended to exempt from the coverage of 11 YSC 808(b). The Government responded to defendant's motion that the issue of its charges is not the type of substance or beverage that the defendant was intoxicated on, such is irrelevant; rather, the issue is that the defendant was in fact intoxicated when the police officers topped him. A hearing was held on defendant. s motion.

     In this court's short history, and given the statute's recent enactment, we have not had the opportunity to decide on the issue of whether tuba is an alcoholic beverage under the drinking permit provision of 11 YSC 808.

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     In the absence of clear legislative intent, this court has determined that the question of whether tuba is an alcoholic beverage under 11 YSC 808 is one of public policy and that common knowledge of intoxication from tuba consumption requires that tuba be regulated under the above Code section.

     The defendant argued that since 11 YSC 808 (b) is vague as to the specific types of alcoholic beverages requiring a drihking permit, 30 YSC 103(a) furnishes guide. The court does not agree. Title 30 of the Yap State Code clearly was created to regulate the sale of alcoholic beverages. Therefore, the fact that the definition of "alcoholic beverages" in section 103 (a) fails to list tuba is not surprising because tuba was normally not a sale merchandise at commercial establishments. That tuba recently can be seen at business outlets is a new business practice which 30 YSC 103(a) did not anticipate.

     The defendant also argued that the Legislature did not express tuba under any of the relevant provisions because it clearly intended to exempt tuba under the protections of "customs and traditions." Again, the court does not find this argument persuasive. The two quotes from the legislative record offered by the defendant to support this view are misplaced. The court believes that the Legislature in stating in the first quote that "the courts shall take into accounts the requirements and dictates of the customs and traditions of the people of Yap" does not indicate, as suggested by the defendant, legislative intent to encourage general consumption of and intoxication from tuba, rather, the more likely interpretation is that the legislature recognizes that tuba presentations and consumption may be involved in some of the traditional functions and practices conducted by municipalities, villages and families.

     In the second quote, the Legislature in further stating that young people "should cut tuba for presentation to uncles and fathers so  they can learn more about the customs and traditions..." does not appear, as implied by the defendant, to indicate legislative promotion of possession and consumption of tuba, rather, the Legislature was more likely recognizing that, culturally, elders do instruct their youngs on how to cut tuba.

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However, at this point the court is confronted with the issue of whether the possession and consumption of tuba by someone in a manner within the customs and traditions exemption provides the person immunity from prosecution of offenses related to the intoxication resulting from the protected consumption. It is the opinion of this court that, specific to the process or consequence of consumption, a person has a duty during any traditional function or cultural practice to consume reasonably or in a manner that the resulting intoxication does not cause or result in violations of state laws. It will not be a defense that a state law violation was caused by a possession and consumption protected under the customs and traditions clause. Furthermore, customs and traditions will not be a defense for those on court-ordered probations who have violated their conditions not to possess and consume alcoholic beverages. It is certainly in the interest of the general public that offenders of the law may not, at the expense of public safety and welfare, use the shield of customs and traditions to endanger their lives, and be further permitted by this court. In this manner, the public policy outlined above will require this court to allow criminal proceedings against violators of state laws who committed an offense during intoxication caused by the possession and consumption of tuba, even when at its initiation may have been protected by customs and traditions. Based on the foregoing discussion, this court is hereby denying the defendant's motion to dismiss.
July 28, 1994                                 /s/                              
                                      Associate Justice C. Yinug

File July 29, 1994

Clerk of Court