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Showing posts from June, 2008

DWOL Five-Year Plan Begins at the Offense

State v. Vierra (ICA June 25, 2008)

Background. Vierra was cited for driving without a license four times between June 26, 2002 and December 8, 2004. When she was cited, Vierra also had five prior convictions for driving without a license: one in 2001, three in 2000, and one in 1998. The trial for the four citations was held in 2005. The driving-without-a-license statute has enhanced sentencing for people who have prior DWOL convictions within a five year period. Vierra argued that the five-year clock begins at the time of conviction, not the offense, and only one of the prior convictions counts. The State argued that the five-year clock begins at the time the offense was committed, and thus Vierra was subject to the enhanced sentence. The district court agreed with the State and Vierra was sentenced under the enhanced penalty.

Five Years from when? A person cannot drive a vehicle without first obtaining a license. HRS § 286-102(a). Driving without a license is generally a pet…

Unpublished Dispositions Citable as Persuasive Authority After July 1st

Editor’s Note. Legislation and rule changes are almost never reported at Hawaii Legal News. However, the recent amendment to Hawaii Rules of Appellate Procedure (HRAP) Rule 35 affects the way we conduct legal research. Hawaii Legal News believes it is newsworthy. Hawaii Legal News will not, however, regularly report unpublished dispositions.

HRAP Rule 35 and a new body of law. HRAP Rule 35 was amended. There are still three classes of appellate dispositions: the summary disposition order, the memorandum opinion, and the published opinion. HRAP Rule 35(a). A memorandum opinion carries no precedent like a published opinion, and a disposition order may only be published when the appellate court designates it for publication. HRAP Rule 35(b). Only a published opinion has precedential effect and “makes law.” Memorandum opinions and summary disposition orders filed before July 1, 2008 cannot be cited as the law in any other action or proceeding unless (i) it establishes the law of…

HSC sees just one Episode

State v. Akau (HSC May 30, 2008)

Background. Akau sold crystal meth to undercover police officers on three separate occasions in the vicinity of Keeaumoku Street and Kaheka Street. The drug buys gave the police probable cause to apply for and receive a search warrant of Akau's person and residence. They executed the warrant and found more drugs. The State charged Akau with promotion of a dangerous drug in the 2d degree (HRS § 712-1243) and unlawful use of drug paraphernalia (HRS § 329-43.5) based on the drugs found from the search warrant. Akau pleaded no contest and was sentenced as a first-time offender.

Ten months later Akau was indicted on three counts of promoting a dangerous drug in the 2d degree based on the three drug buys. After the circuit court denied Akau's motion to dismiss the charges based on compulsory joinder and merger, he was sentenced to 10 years imprisonment. This was his second offense so he received a mandatory minimum of six months. HRS § 712-1242(3). The…

Driving Inattentively--the Right way.

State v. Bayly (HSC May 29, 2008)

Background. When the police came to a parking lot in Wailuku, they found Bayly standing beside his poorly-parked truck. The parking lot is raised about a six inches above the ground. The front driver's side of the truck was hanging off the parking lot and onto the grass. One wheel was hanging over the edge of the parking lot. The officer noticed no damage to Bayly's car. The police did notice, however, that Bayly was not sober. He had 0.068 grams BAC. Bayly later admitted to drinking two beers. The State charged him with operating under the influence and inattention to driving. At trial, Bayly explained that he was unsure of his parking space so he slowly touched the yellow parking "bumper," but it was loose and gave way. The district court acquitted Bayly of operating under the influence, but found him guilty of inattention to driving. The ICA affirmed.

The Problem with Inattentive Driving. A person is guilty of inattention to driving…