Showing posts from 2019

Setting the Record Straight on DWOL Defenses

State v. Castillon (HSC May 16, 2019) Background. Michelle Castillon was cited and charged for driving without a license. HRS § 286-102. At trial, the prosecution called the citing officer who testified that he stopped Castillon because her vehicle had expired safety and registration tags. The officer asked Castillon if she had a driver’s license. She could not. The officer testified at trial that he called into dispatch to see if she had a license. Dispatch reported back that her license had been revoked. The prosecution also called a County official who testified that her database did not include licenses in Canada. There was no testimony about Mexico.
Castillon presented no evidence that she possessed a valid license issued from Canada or Mexico. She argued that the prosecution had the burden of proving that not only did she lack a license in Hawaii, but she did not have a license in Canada or Mexico. The district court (Hon. Judge Margaret Masunaga) rejected this argument and convic…

That Awkward, Statutorily-Imposed Conversation with the Police

State v. Hosaka (ICA May 17, 2019) Background. Troy Hosaka was arrested under suspicion for operating a vehicle under the influence of an intoxicant. He was taken to the police station, where the arresting officer handed him a form. The form had three relevant paragraphs. First, it read that anyone driving a vehicle on a public road is deemed to have given consent to a chemical test to determine that person’s blood-alcohol content. Second, it stated that Hosaka was not entitled to an attorney. Finally, it stated this:
You may refuse to submit to a breath or blood test, or both for the purpose of determining alcohol concentration and/or blood or urine test, or both for the purpose of determining drug content. If you do refuse, then none shall be given, except as provided in section 291E-21. However, if you refuse to submit to a breath, blood, or urine test, you may be subject to up to the sanctions of 291E-65 if you are under 21 years of age at the time of the offense. In addition, you m…

HSC puts Warrant Checks in Check

State v. Iona (HSC May 22, 2019) Background. Kekoa Iona and two others were riding bicycles when a police officer stopped them on Keeaumoku Street in Honolulu. All three bikes did not have any tax decals, which is required by state and local law. HRS §§ 249-14, 249-15 and Revised Ordinances of Honolulu § 15-18.1. The officer inquired where they got the bikes. Iona said he owned it, but later said he borrowed it from a man named “Nalu” at the park. The officer took more information like their names and then commenced a warrant check on them. This took about three to four minutes. More officers arrived. Then a few more. The initial officer waited until he had all of the information—including the warrant check—before issuing a citation for lack of tax decals.
Another officer called dispatch to run Iona’s serial number on the bike to see if it was registered to him or stolen. Dispatch confirmed the bike was not registered to Iona or “Nalu,” but a Waianae resident instead. It was not reporte…

Laches Can't Stop a Rule 40 Petition

Akau v. State (HSC March 5, 2019) Background. Timmy Hyun Kyu Akau was convicted for driving while under the influence of an intoxicant in 1987. Twenty five years later, in 2013, he petitioned the district court pursuant to HRPP Rule 40 to set aside the conviction. The district court held an evidentiary hearing to determine the merits of the petition.
At the end of the hearing, the district court issued its findings of fact, conclusions of law, and order denying the petition. The district court found that Akau was arrested and charged with DUI on July 26, 1987. Two days later he appeared in the district court, Ewa Division, and pleaded not guilty. He was referred to the Office of the Public Defender and trial was set on December 23, 1987. On the day of trial he appeared without counsel and asked for a continuance so he could get an attorney. The continuance as denied. He was found guilty and convicted. He was sentenced to pay a fine, take a class, and his license was suspended for 90 day…

The Flip Side of the Tachibana Coin

State v. Torres (HSC April 10, 2019) Background. Rinaldo Torres was indicted with robbery in the first degree and terroristic threatening in the first degree. Five days before trial, Torres submitted a form titled “Waiver of Indictment/Trial by Jury.” The form was signed by Torres and indicated a desire to waive his right to a jury trial and consent to a trial by the court without a jury. Prior to trial, the circuit court announced that Torres indicated that he wished to waive his right to a jury trial.
The circuit court questioned Torres in open court about this waiver. The judge asked if Torres signed the waiver form. Torres said he did. He asked if he went over the form with his lawyer. Yes, said Torres. He also asked if he understood the form. “I believe I did. Yeah.” The judge questioned Torres if he understood his right to a jury trial, the right to select a jury, the right to a unanimous verdict, and the right to question potential jurors. Torres said he understood. He also asked…

Gotti, Manson, and what not to do when Prosecuting

State v. Pasene (HSC April 22, 2019) Background. During the early morning hours of March 28, 2009, Iosefa Pasene, Cedro Muna, and Antonius Paul Toloai were released from custody. Pasene and Muna were dressed alike and had similar physical characteristics. At around 4:00 a.m., Joseph Peneuete and several others gathered outside of the Pauahi Recreational Center in Chinatown. A blue Buick sedan drove up to the group and stopped in front of them. Two men with guns moved to Peneuete and shot him several times. He died. Two hours later a blue Buick sedan was reported on fire just outside of Wahiawa. Pasene was indicted for murder in the 2d degree and carrying or using a firearm in the commission of a separate felony. He went to trial twice, but they resulted in hung juries and mistrials.
The prosecution’s theory was that Pasene was the killer and not Muna because Muna was in a taxi cab heading to the Plaza Hotel at the time of the shooting. Detectives also ruled out Muna after watching some …

48 + 0 = 48

State v. Otani (ICA February 28, 2019) Background. Suzanne Satomi Chin-Yin Otani was convicted of one count of operating a vehicle while under the influence of an intoxicant; better known as DUI. At her sentencing, Otani argued that she serve no jail despite the fact that at the time of the offense a minor was a passenger in the vehicle. This fact, countered the prosecution, triggered a mandatory 48 hours jail pursuant to the DUI statute. The district court agreed with the prosecution and imposed 48 hours jail. Otani appealed.
The OUI Statute’s Enhancements.The OUI statute contains an enhancement at sentencing:
In addition to a sentence imposed under paragraphs (1) through (3), any person eighteen years of age or older who is convicted under this section and who operated a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of forty-eight hour…