Petition for Writ of Certiorari — Nakata v. Hawaii

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FILED

\} 94 905 NOV 1 61994

EEE OF IHE CLERK

No.

In the

Supreme Court of the United States

October Term, 1994

GLENN NAKATA, ALVIN K. L. LAU, and

JON DAVID WHITTINGTON,

Petitioners,

vs.

STATE OF HAWAII JAMES H. DANNENBERG,

in his capacity as Judge of the District Court

of the First Circuit, State of Hawaii, and all

other District Court Judges of the State of Hawaii,

Respondents.

Petition For A Writ of Certiorari

To The Supreme Court of the State of Hawaii

PETITION FOR A WRIT OF CERTIORARI

ARTHUR E. ROSS

(Counsel of Record)

PAUL J. CUNNEY

(Of Counsel)

Paul Cunney & Associates

1121 Nuuanu Avenue #203

Honolulu, HI 96817

Telephone: (808) 523-0077

Counsel for Petitioners

QUESTIONS PRESENTED FOR REVIEW

1. Whether due process and fairness permit the

retrospective application of statutory amendments, eliminating

the right to a jury trial by recharacterizing the criminal offense

as petty to cases pending prior to May 21, 1993.

2. Whether the prospective application of a yet

unenacted statute by the Court terminating Petitioner

Whittington’s right to a jury trial in a criminal matter and the

Hawaii Supreme Court’s failure to decide this properly-raised

issue violates Petitioner Whittington’s right to Due Process

under the Fourteenth Amendment to the United States

Constitution.

‘i

LIST OF PARTIES AFFECTED

In addition to the parties listed in the caption, a number

of other parties are affected by this decision. There are

currently a number of similar cases which had been stayed in

the State of Hawaii District Court awaiting jury trial, which

were affected by the decision of the Hawaii Supreme Court in

this matter.

There may be additional cases before the Hawaii

Supreme Court or before the State of Hawaii District Court

that are affected by this case, but the identities of the

appellants or parties in those cases are not known to

Petitioners. The identities of the parties in any such cases are

within the purview of Respondents, or their successors, who

would be the appellee in each of those cases.

itl

TABLE OF CONTENTS

Page

ee iii

TABLE OF AUTHORITIES ..............-..-665. v

LIST OF APPENDICES FOR

PETITION FOR WRIT OF CERTIORARI .......-. viii

ED og... ceveagiewuedd....-.... 1

RIE fii 3i ei S asi alse... 2

CONSTITUTIONAL PROVISIONS INVOLVED ...... 2

STATUTES INVOLVED ......5.....-....-0005- 3

STATEMENT OF THE CASES .............--+-- 7

AS TO PETITIONER WHITTINGTON ...........-- 11

CONSOLIDATION OF PETITIONERS’ CASES BY THE

HAWAII SUPREME COURT ...........----55: 13

DECISION OF THE HAWAII SUPREME COURT .... 13

A. The Firs: Reserved Question............-.-. 13

B. The Seyond Reserved Question ............. 15

REASONS FOR GRANTING THE WRIT ........--. 17

I‘ Due Process And Fundamental Fairness Are

Violated By The Retroactive Application Of Act

128, Session Laws of Hawaii, Regular Session of

1993, Which Extinguished The Petitioners’ Right

To A Jury Trial After Petitioners Had Waited In

Reliance In Excess Of Three Years To Avail

Themselves Of A Jury Trial. .........-.-- 17

A. The Recharacterization of HRS § 291-4 As

A Petty Offense And the Retrospective

Elimination Of Jury Trials By Act 128,

Session Laws of Hawaii, Regular Session

of 1993, Is An Illegal And Unfair Response

To The Tremendous DUI Jury Trial

Backlog Caused By The Hawaii Judiciary’s

B. The Due Process Guarantees of the

Fourteenth Amendment Embrace the

Criteria For Ex Post Facto Violations And

Apply To The Denial Of Petitioners’

Demand For Jury Trials............. 27

II. The Denial Of Petitioner Whittington’s Right

To A Jury Trial By Judge Dannenberg Was

Based Upon A Law Which Was Not Yet In

Existence At The Time The Court Invoked It

And Constitutes A Violation Of Petitioners’

Right To Due Process As Guaranteed By The

Fourteenth Amendment To The United States

ee ee ee ee eee 30

Ce 6 bik 5 Hse Sie awn in an BES ce eo 33

TABLE OF AUTHORITIES

Page(s)

CASES

Baldwin v. New_York,

399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed 2d 437 (1970) . 18, 27

Blanton v. City of North Las Vegas,

MUG: GE BO EG oR RS 14, 19

Callan v. Wilson,

127 U.S. 540, 8 S.Ct. 1801, 32 L.Ed. 223 (1888) .... 19

Cheff v. Schnackenberg,

384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966) .. 19

District of Columbia v. Co}

282 U.S. 63, 51 S.Ct. 52, 75 L.Ed 177 (1930) ....... 19

Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444,

20 L.Ed.2d 491, reh’g denied, 392 U.S. 497,

88 S.Ct. 2270, 20 L.Ed. 2d 1412 (1968) ......... 17, 18

S waii v. O’

68 Haw. 38, 704 P.2d 883 (1986) ..........--- 8, 20

State v. Ikezaw

75 Haw. 210, 857 P.2d 593 (1993) ........------ 28

United States v. Nachtigal,

__ US.__, 113 S.Ct. 1073 (1993) .......------- 14

TABLE OF AUTHORITIES - Contd.

CONSTITUTIONAL PROVISIONS

United States Constitution, Article I, § 9,Cl3 ........ 2

United States Constitution, Sixth Amendment .... 2, 17, 30

United States Constitution, Fourteenth Amendmen8, 17, 29, 33

Hawaii State Constitution, Article III, Section 16 .... 12, 30

Hawaii State Constitution, Article XVI .............. 6

STATUTES

Be UBL TEE 0006 kee ha ena edaeein’ « « dn 2

Hawaii Revised Statutes § 1-3 .................... 15

Hawaii Revised Statutes § 287-20 ................. 10

Hawaii Revised Statutes § 287-22 ................. 10

Hawaii Revised Statutes § 291-4 ...... 4, 14-16, 21, 22, 26

Hawaii Revised Statutes § 602-5(2) ................ 11

Hawaii Revised Statutes § 603-21.9 ................. a

RULES

Hawaii Rules of Appellate Procedure, Rule 15 .... 9, 11, 13

Hawaii Rules of Appellate Procedure, Rule 21(a) ...... 13

LEGISLATIVE AUTHORITIES

Act 128, Session Laws of Hawaii,

17th Leg., Reg. Sess. (1993) . . 3, 14-17, 21, 28, 30, 32, 33

H.B. 747, Session Laws of Hawaii,

17th Leg., Reg. Sess. (1993) ..............0000- 13

vii

TABLE OF AUTHORITIES - Contd.

Page(s)

S.B. 811, Session Laws of Hawaii,

17th Leg., Reg. Sess. (1993) ..------ssrerrrrcee 25

QTHER AUTHORITIES

Mass Production Justice and the Constitutional Ideal,

The Mitchie Co. (1970) ....----eeeeerrrrrrt? 24

Sutherland on Statutory Construction,

§ 41.03 (Sth ed., 1993) ...----- ee reer errrett 27

Sutherland on Statutory Construction,

"Criteria of Decision" § 41.05 (Sth ed., 1993) ....--- 26

Vili

LIST OF APPENDICES FOR

PETITION FOR WRIT OF CERTIORARI

Opinion of Hawaii Supreme Court filed August 2, 1994

Hawaii Supreme Court Order Denying Motion for

Reconsideration and Orders of Amendment, both filed

August 18, 1994

Hawaii Supreme Court Order [Consolidating Cases] filed

October 12, 1993

Hawaii First Circuit Order Reserving Questions of Law

Pursuant to Rule 15 of the Hawaii Rules of Appellate

Procedure & Findings of Fact filed July 30, 1993

Hawaii Supreme Court Order Accepting Questions filed

August 18, 1993

[Defendants’ Nakata & Lau] Motion for Reconsideration

filed on August 12, 1994 in the Hawaii Supreme Court

Hawaii District Court Transcript of May 4, 1993 Hearing

Opening Brief [of Defendants’ Nakata & Lau] dated

September 16, 1993

Reply Brief [of Defendants’ Nakata & Lau] filed

October 6, 1993

No.

In the

Supreme Court of the United States

October Term, 1994

GLENN NAKATA, ALVIN K. L. LAU, and

JON DAVID WHITTINGTON,

Petitioners,

vs.

STATE OF HAWAII, JAMES H. DANNENBERG,

in his capacity as Judge of the District Court

of the First Circuit, State of Hawaii, and all

other District Court Judges of the State of Hawaii,

Respondents.

Petition For A Writ of Certiorari

To The Supreme Court of the State of Hawaii

OPINION BELOW

The consolidated opinion of the Supreme Court of the State of

Hawaii is attached to this Petition as Appendix A, and is reported

in 76 Haw. 360 and 878 P.2d 699.

JURISDICTION

The judgment of the Supreme Court of the State of Hawaii

was entered on August 18, 1994. (Appendix A.) The jurisdiction

of this court is invoked under 28 U.S.C. 1257 (a).

CONSTITUTIONAL PROVISIONS INVOLVED

Article I, § 9, Cl. 3 of the United States Constitution

provides that "No Bill of Attainder or ex post facto Law shall be

passed."

The Sixth Amendment to the United States Constitution

provides in pertinent part that:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed . . .

cPLA AA atl I ON BE AEN bane Liv ti

The Fourteenth Amendment to the United States

Constitution provides in pertinent part:

Section 1. . . . No State shall make or enforce any

law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; . . .

STATUTES INVOLVED

Act 128, Session Laws of Hawaii, 17th Leg., Reg. Sess.

A Bill for An Act Relating to Driving Under the Influence of

Intoxicating Liquor, enacted on May 21, 1993, provides in

pertinent part:

SECTION 1. It is the intent of the legislature that

individuals charged with the offense of driving under the

influence of intoxicating liquor as a first time offender

shall not be entitled to a jury trial... .

It is the intent of the legislature that the

reduced penalties provided for in the Act apply to all

pending first offense cases. The legislature further

intends that by making the reduced penalties provided

for in this Act retroactive to pending cases, it be

made clear that such first offenders are not entitled to

a jury trial, as the offense is a “petty offense” in the

constitutional sense.

SECTION 2. (See, below, Hawaii Revised

Statutes, Section 291-4, as amended. ]}

SECTION 5. This act shall take effect upon its

approval; provided that section 2 shall be retroactive for

all pending first-offense cases for driving under the

influence of intoxicating liquor.

Hawaii Revised Statutes, Section 1-3, provides in pertinent

§ 1-3 Laws not retrospective. No law has

any retrospective operation unless otherwise

expressed or obviously intended.

Hawaii Revised Statutes, Section 291-4, as amended,

provides in pertinent part:

§ 291-4 Driving under the influence of

intoxicating liquor.

(b) A person committing the offense of driving

under the influence of intoxicating liquor

shall be sentenced as follows without

possibility of probation or suspension of

sentence:

(1) For a first offense, or any offense

not preceded within a five-year

period by a conviction under this

et ne

section, by:

(A)

(B)

A fourteen-hour minimum

alcohol abuse rehabilitation

program including education

and counseling, other

comparable program deemed

appropriate by the court; and

Ninety-day prompt suspension

of license with absolute

prohibition from operating a

motor vehicle during

suspension of license, or the

court may impose, in lieu of

ninety-day prompt suspension

of license, a minimum thirty-

day prompt suspension of

license with an absolute

prohibition from operating a

motor vehicle and, for the

remainder of the ninety-day

period, a restriction on the

license that allows the person

to drive for limited work-

related purposes and to

participate in alcoholism —

treatment programs(, and which

may require installation of an

ignition interlock system as

defined in section 286-251);

and

(i) | Seventy-two hours of community

service work;

(ii) Not less than forty-eight hours

and not more than [thirty] five

days of imprisonment, or

(iii) A fine of not less than $150 but

not more than $1,000.

Article XVI of the Hawaii State Constitution provides in

pertinent part:

APPROVAL OR VETO

Section 16. Every bill which shall have passed the

legislature shall be certified by the presiding officers and

clerks of both houses and shall thereupon be presented to

the govemor. If the governor approves it, the governor

shall sign it and it shall become law. . . .

RECONSIDERATION AFTER ADJOURNMENT

The governor shall have forty-five days, after the

adjournment of the legislature sine die, to consider

ee See ee ee

bills presented to the governor less than ten days

before such adjournment, or presented after

adjournment, and any such bill shall become law on

the forty-fifth day unless the governor by

proclamation shall have given ten days’ notice to the

legislature that the governor plans to retum such bill

with the governor’s objections on that day... .

STATEMENT OF THE CASES

Petitioners GLENN NAKATA and ALVIN K. L.LAU

were arrested and charged on June 10, 1990 and July 30, 1990,

respectively, with the offense of Driving Under the Influence of

Intoxicating Liquor, in violation of Section 291-4 of the Hawaii

Revised Statutes (hereinafter "HRS"). Both Appellants were

released from custody after posting bail in the amount of

$150.00. Upon arraignment in the District Court in August of

1990, each of the Petitioners requested to be tried by jury and

both cases were transferred to Circuit Court. Finding of Facts

(Appendix D) were made by the Circuit Court of the First

Circuit, State of Hawaii on June 30, 1993 regarding facts and

procedure relating to Petitioners’ cases and are hereinafter

as "F.F.". This was the first such offense for either petitioner. (F.

F. Nos. 1, 2, Appendix D)

Due to the allocation of only one trial court per week for

DUI trials in Honolulu and the resulting congestion of the court

system (F.F.No.16, Appendix D), Petitioners’ cases were still

pending on May 21, 1993. It was at this time that new

legislation clarifying and reducing the sentencing provisions for

first- and second-time DUI defendants was signed into law by

Governor John Waihe‘e. Act 128 (H.B. 747), supra, reduced the

penalty for a first-time DUI defendant from thirty days to five

days and declared that first- time DUI defendants were no longer

entitled to jury trials. (F.F. No. 6, Appendix D) The Petitioners

relied upon the holding of State of Hawaii v. O’Brien, 68 Haw.

38, 704 P.2d 883 (1986) in demanding their right to a jury trial

at arraignment.’

: The Hawai'i Supreme Court in State v. O’Brien, 68 Haw. 38,

704 P.2d 383 (1986) in assessing the DUI statutory scheme in Hawai*i and

noting that the threat of the loss of the drivers license for a period of ume

-ndicated that the community did not view a DUI as a petty offense, found

DUI to be a serious offense despite the fact that the statutory penalty did

not exceed six months.

On June 25, 1993, the prosecution filed motions in the

Circuit Court of the First Circuit, State of Hawaii, requesting that

the three pending DUI cases’ to the District Court without jury

trial. A hearing on this matter was conducted in the Circuit

Court on July 29, 1993, resulting in part in the issuance of

Findings of Fact referred to above. The Honorable Dexter D.

Del Rosario, Judge of the First Circuit Court, found that the

motions presented constitutional issues of a far-reaching and

important nature and pursuant to HRS § 603-21.9 and Rule 15 of

the Hawaii Rules of Appellate Procedure (hereinafter to referred

to as "HRAP") ordered that the two questions be reserved for

consideration by the Hawaii appellate courts. (Appendix D.)

The Circuit Court took judicial notice of the fact that there

had been jury trials in the Circuit Court subsequent to May 21,

1993 for Appellants who were arrested and charged for offenses

occurring both subsequent and prior to Petitioners arrest.

(F.F.Nos 7, 11, Appendix D.) The trial court also found the

2 ‘The third case involved defendant Eddie Daoang, who was

represented by the Hawai‘i public defender.

following collateral consequences for a person convicted of DUI.

An individual convicted of DUI must comply with the financial

responsibility requirement under HRS § 287-20. (F.F.Nos. 9, 10,

Appendix D.) This requirement may be met in one of the four

following ways: (1) Proof of insurance via Form SR-22; (2)

Posting a bond in accordance with the Act; (3) depositing money

or securities in the amount of $25,000.00; or (4) submitting a

self-insurance certificate pursuant to HRS § 287-22. (F.F. No.

18b, Appendix D.) A convicted DUI defendant is mandated to

comply with these requirements for a period of three years and

non-compliance will result in the individuals being suspended for

three years or until compliance. (F.F. Nos. 18b, 18f, Appendix

D.) Sixty-five per cent of the convicted DUI defendants elect to

comply with these requirements through the SR-22 form.

(F.F.No. 18c, Appendix D.) The insurance rate of an individual

without any prior convictions or violations on their driving record

will increase by a factor of seven or eight times the existing

insurance rate upon that individuals conviction for DUI. (F.F. No.

19a, 19b, 19c, Appendix D.) The average insurance rate charged

i el i -

for a Toyota Camry for a person with a clean driving record is

approximately $1,086.00 per year in Hawaii. The same coverage

for convicted DUI defendant in Hawaii would increase to

$7,913.00 per year. (F.F.No. 19, Appendix D.)

The Supreme Court of the State of Hawaii, upon consideration

of the Order Reserving Questions of Law Pursuant to HRAP

Rule 15 and without answering the questions, ordered the

Petitioners, as “Appellants,” to file an opening brief no later than

September 7, 1993 and the Respondent, as "Appellee" to answer

within 20 days. The Hawaii Supreme Court has jurisdiction to

entertain an Order Reserving Questions of Law, pursuant to Rule

15, HRAP and HRS § 602-5(2) [1985 and 1990 (Supp.)).

AS TO PETITIONER WHITTINGTON

Petitioner Whittington appeared, through his counsel, before

the Honorable James H. Dannenberg, Judge of the District Court

of the First Circuit, State of Hawaii on May 4, 1993 for a trial

setting hearing. Petitioner Whittington was charged with driving

under the influence of intoxicating liquor (hereinafter "DUI").

The court was informed that Petitioner Whittington had no prior

DUI convictions and was therefor a first-time offender and that

Petitioner Whittington, by and through his counsel of record

demanded a jury trial. Judge Dannenberg denied Petitioner

Whittington a jury trial, based upon Judge Dannenberg’s

expectation that the Governor of Hawaii would sign H.B.747 into

law sometime in the near future and thereby extinguish Petitioner

Whittington’s right as a first time DUI defendant to a trial by

jury. This was done over the objection of Petitioner

Whittington’s attomey of record. (Transcript of Proceedings in

the District Court for the First Circuit, May 4, 1993, attached

hereto as Appendix G.) Article III, Section 16 of the Hawaii

State Constitution requires that for a bill to become law, it must

be signed by the Governor unless forty-five (45) days have

elapsed after the adjournment of the legislative session. Neither

of these facts were operative at the time that Judge Dannenberg

denied Petitioner Whittington’s timely request for a jury trial.

Petitioner Whittington filed a Petition for a Writ of Mandamus

and/or Prohibition in the Hawaii Supreme Court pursuant to Rule

21(a) of HRAP on June 29,1993.

CONSOLIDATION OF PETITIONERS’ CASES BY THE

HAWAII SUPREME COURT

The Hawaii Supreme Court, in an order dated October 12,

1993, consolidated State v. Nakata, et al., No. 17317, and

Whittington v. Dannenberg, No. 17228, for the reason that the

cases raised the same issues for consideration. (Appendix C.)

DECISION OF THE HAWAII SUPREME COURT

The Hawaii Supreme Court held that Petitioners no longer

had a right to a jury trial as a result of the enactment of H.B.747.

The Court applied both Federal and a State constitutional

standards in their analysis of the two questions reserved pursuant

to Rule 15, HRAP. (Appendix A.)

A. The First Reserved Question.

Whether the amendments to the sentencing provisions

of HRS § 291-4 provided in Act 128, Session Laws of

Hawaii, Regular Session of 1993, effective May 21,

1993, Eliminate the right to jury trial for defendants

charged with a first offense under HRS § 291-4.

The Hawai Supreme Court, applying Federal Constitutional

standards, found that a first-time DUI offense, under HRS § 291-

4, as amended by Act 128, supra, fell well below the six month

threshold enunciated in Blanton v. City of North Las Vegas, 489

U.S. 538 (1989) and is therefore presumptively "petty". The

Hawaii Supreme Court continued to find that the possible mix of

penalties for a first time DUI offender did not overcome the

presumptively “petty” threshold requirement stated in United

States v. Nachtigal, __ U.S.__, 113 S.Ct. 1073, 1073 (1993).

The Hawaii Supreme Court also found that under a state

constitutional analysis a first time DUI offense, as reconfigured

by the Hawaii legislature in Act 128, supra, is a “petty” offense

for which a defendant is not entitled to a Jury trial. (Appendix A,

at 20-38.)

B. The Second Reserved i

If the amendments to the sentencing provisions of

HRS § 291-4 provided in Act 128, Session Laws of

Hawaii, Regular Session of 1993, effective May 21,

1993, do eliminate the right to jury trial, whether the

deprivation of such a right may be applied

retrospectively to alleged offenses occurring prior to the

enactment of the Act.

The Hawaii Supreme Court, in its Federal Analysis of the

second reserved question noted that Section 5 of Act 128, supra,

stated that it takes effect upon, “provided that [the reduced

penalties} shall be retroactive for all pending first-offense cases

for [DUI]". Act 128, 1993 Haw. Sess. Laws at 181. HRS § 291-

4, as amended by Act 128, supra, was found to comply with

HRS § 1-3 and therefore to apply retroactively to the pending

cases. (Appendix A, at 53-55.) Furthermore the statute as

amended, was found not to violate the ex post facto clause or the

due process clause of the United States Constitution. The Hawaii

Court found no Federal ex post facto violation because Act 128,

supra: 1) reduced the penalty for a first time DUI conviction; 2)

affects only the procedural determination of whether a first time

DUI defendant will be tried by a judge or jury; 3) does not divest

or compromise the right of a first time DUI defendant to a fair

and impartial trial in any way; and 4) does not result in any

substantial prejudice to petitioners from the retrospective

application of a non-jury trial to their cases. (Appendix A, 55-

70.) The Hawaii Supreme Court further stated that the

petitioners failed to show how they would be substantially

prejudiced by the retroactive application of Act 128, supra, since

they would receive an impartial trial (albeit a non-jury trial) and

would face lesser penalties under the amended version of HRS §

291-4. (Appendix A, 68-71.)

Your Petitioners now seek a Writ of Certiorari.

REASONS FOR GRANTING THE WRIT

I. DUE PROCESS AND FUNDAMENTAL FAIRNESS ARE

VIOLATED BY THE RETROACTIVE APPLICATION OF

3 ACT 128, SESSION LAWS OF HAWAII, REGULAR

q SESSION OF 1993, WHICH EXTINGUISHED THE

| PETITIONERS’ RIGHT TO A JURY TRIAL AFTER

PETITIONERS HAD WAITED IN RELIANCE IN

EXCESS OF THREE YEARS TO AVAIL THEMSELVES

OF A JURY TRIAL.

The right to a jury trial in a criminal case is guaranteed by

the Sixth Amendment to the Constitution of the United States of

America and that guarantee is extended to the States by the

Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 88

S.Ct. 1444, 20 L.Ed.2d 491, reh’g denied, 392 U.S. 497, 88 S.Ct

2270, 20 L.Ed. 2d 1412 (1968). The United States Supreme

Court, as per Justice White, stated:

The guarantees of jury trial in the Federal and

State Constitutions reflect a profound judgment about

the way in which law should be enforced and justice

administered. A right to jury trial is granted to

criminal defendants in order to prevent oppression by

the Government. Those who wrote our constitutions

knew from history and experience that it was

necessary to protect against unfounded criminal

charges brought to eliminate enemies and against

judges too strong to create an independent judiciary

but insisted upon further protection against arbitrary

action. Providing an accused with the right to be

tried by a jury of his peers gave him an inestimable

safeguard against the corrupt or overzealous

prosecutor and against the compliant, biased ,or

eccentric judge. If the Defendant preferred the

common-sense judgement of a jury to the more

tutored but perhaps less sympathetic reaction of the

single judge, he was to have it. Beyond this, the jury

trial provisions in the Federal and State Constitution

reflect a fundamental decision about the exercise of

official power -- a reluctance to entrust plenary

powers over the life and liberty of the citizen to one

judge or to a group of judges. Duncan, supra, 391

U.S. at 155-6, 88 S.Ct. at 1451.

The right to a jury trial under the Federal Constitution only

extends to offenses of a serious nature and individuals charged

with a petty offense may not be entitled to a jury trial. Baldwin

v. New York , 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed 2d 437

(1970); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16

L.Ed.2d 629 (1966); District of Columbia v. Colts, 282 U.S. 63,

51 S.Ct. 52, 75 L.Ed 177 (1930); Callan v. Wilson, 127 U.S.

540, 8 S.Ct. 1801, 32 L.Ed. 223 (1888).

The courts primarily look to the length of the sentence to

determine whether or not the offense is to be deemed "serious".

If the sentence exceeds six months then the offense is deemed to

be "serious" and the right to a jury trial under the Federal

Constitution attaches to the offense. Where the sentence does not

exceed six months the offense may be considered petty and a

jury trial may not be required. Blanton v. North Las Vegas,

supra 489 U.S. at 543-544. However, the Court in Blanton v.

North Las Vegas, supra 489 U.S. at 542 stated that "[I)n using

the word ’penalty,’ we do not refer solely to the maximum prison

term authorized for a particular offense." A Legislature’s view of

the seriousness of an offense also is reflected in the other

penalties that it attaches to the offense. The Blanton Court

continued "{w]e thus examine ‘whether the length of the

authorized term or the seriousness of other punishment is enough

in itself to require a jury trials’." [Emphasis in original].

Petitioners Nakata and Lau demanded jury trials in a timely

fashion at their respective arraignments pursuant to their then

vested right under the Hawaii Supreme Courts ruling in State v.

O’Brien, 68 Haw. 38, 704 P.2d 883 (1985). (F.F. No. 2,

Appendix D.) Petitioners (excepting Petitioner Whittington) then

waited approximately three years for their jury trial as a result of

the Hawaii judiciary’s creation of a DUI trial backlog. During

this jury trial backlog, other first-time DUI defendants who had

been arrested and arraigned after Petitioners Nakata and Lau were

afforded jury trials for no other known reasons than an arbitrary

and capricious court calendar. (F.F. No. 16, Appendix D.)

A. The Recharacterization of HRS § 291-4 As A Petty

Offense And the Retrospective Elimination Of Jury

Trials By Act 128, Session Laws of Hawaii, Regular

Session of 1993, Is An Illegal And Unfair Response

To The Tremendous DUI Jury Trial Backlog Caused

By The Hawaii Judiciary’s Mismanagement.

The stipulated testimony of Gwen Ha, a representative of

the Criminal Assignments Division of the Circuit Court indicates

that only one Circuit courtroom is primarily used for hearing

DUI trials and that as of July 30, 1993, 3,375 DUI were pending

trial. It was not stated what percentage of these were first-time

DUI offenses. (F.F. No. 16, Appendix D.) The stipulated

testimony of Steven Alm, Misdemeanor Prosecution Director at

Paragraph 17 of the Findings of Fact-Reserved Questions of Law

indicates that the State very rarely plea bargains any DUI offense

to a lesser charge due to the enhanced sentencing scheme

provided in HRS § 291-4 for repeat offenders. (F.F. No. 17,

Appendix D.)

While an administrative judicial crisis may exist with

respect to DUI jury trials, a substantial portion of blame for this

crisis lays with a court system that is only willing to allocate

primarily one courtroom for DUI jury trials. The court system

with its meager allocation of one courtroom created the DUI jury

trial crisis. The State is equally culpable for its unwillingness to

reduce any DUI charge to a lesser offense for fear of losing the

hook on the enhanced sentencing scheme under HRS § 291-4 for

repeat DUI offenders. The State simply refused to screen its DUI

Cases.

The influx of substantial numbers of criminal cases is not a

problem or issue which has only recently arisen.

Our metropolitan criminal courts are too crowded.

There are too many cases, too few judges, and

7 ES eee Coe ee ae ee ee

inadequate physical resources to cope with the

thousands of cases which annually come before them.

The constant trend toward urbanization and the steady

increases in the rate of urban crime have not been

accompanied by increases in judicial manpower or

improvements in judicial machinery adequate to deal

with the problem. Frequently, procedures which have

their origins in the counties of rural America -- or,

indeed, the shires and hamlets of ancient Britain -- are

still utilized in urban courts which handle more cases

in a day than came before many of their predecessors

in a year. Procedures designed for felony cases have

uncritically been accepted as the norm for the judicial

determination of misdemeanors and petty offenses. In

theory the system still contemplates the adversary trial

as the basic device for the disposition of charges,

despite the reality that many or most of the cases will

be determined by out-of-court plea bargaining in a

process which frequently seeks judicial intervention

only for the purpose of placing an imprimatur upon a

compromise.

...The increase in the numbers of cases alone might

have placed more pressure on our system than could

be tolerated without increases in manpower and

facilities and changes in procedures. But the problem

has other dimensions, also.

The criminal courts must now deal with defendants

who have constitutional and statutory rights which, if

asserted and respected, may pose meaningful bars to

summary disposition. Mapp, Miranda, and Wade and

their progeny provide procedural rights which require

regular adjudications of a type rarely involved in

prosecutions even a decade ago. Gideon v.

Wainwright and the movement toward bail reform

make the right to a jury trial a practical possibility

rather than an illusion, and provided both a viable

technique and an incentive to delay by a defendant.

..1 do not suggest that these developments are

unfortunate. On the contrary, the so-called revolution

in criminal procedure has been, in my opinion, one of

the great accomplishments of America during the last

decade.

We have eradicated much of the "invidious

discrimination" between rich and poor in the criminal

process. We have implemented rights which were

illusory in the past. A national concept of criminal

due process has developed from the decisions which

have afforded most of the basic protections of the Bill

of Rights to defendant tried in state courts. These are

profound and desirable changes. My point is only the

obvious one-that the evolution of the criminal process

toward a real adversary system in which meaningful

rights can be asserted by defendants has placed

substantial additional burdens upon our criminal

courts. [Foomotes omitted]

The quotations above are from an article by A. Kenneth

Pye, Dean of Law, Duke University, which appeared in Mass

Production Justice and the Constitutional Ideal, The Mitchie Co.

he ‘

(1970) almost twenty-five years ago. The administrative burden

of an urban court system twenty-five years ago was as intense

then as is the administrative burden confronting the Honolulu

court system today.

In 1993, S.B. 811, 17th Leg., Reg. Sess. provided both the

legislature and the court system an opportunity to at least

partially alieviate the DUI backlog problem. S.B. 811, supra,

would have created an incentive for deferred acceptance of guilty

(hereinafter, "DAG") pleas for first-time offenders by removing

the SR-22 Proof of Financial Responsibility requirement.

However, S.B. 811, supra, died in committee.

Counsel] would admit that some fault lies with the first-time

offenders since they have refused to gently accept summary

adjudication of their charges by a judge and have insisted upon a

jury trial. But the primary reason for this judicial administrative

crisis involving DUI trials are the above-described policies of the

court system and the State.

The precedent set by the Hawai‘i Supreme Court in

permitting the court system and the State to solve a crisis of their

own creation by semantically terminating a constitutional right is

a dangerous one. Will the State Legislature, in three years,

revise HRS § 291-4, et seq., to deprive second-time DUI

defendants of the right to trial because another backlog DUI

crisis exists as a result of the use of only one courtroom for DUI

trials and the refusal of the State to reduce DUI charges to lesser

offenses?

It is fundamentally unfair after forcing Petitioners to wait

over three years, to then divest them of the fundamental right to

a jury trial. It is axiomatic that such a fundamentally unfair

divestiture of the right to a jury trial, applied retrospectively, goes

to the heart of due process. It has been observed that "[ojne of

the fundamental considerations of faimmess recognized in every

legal system is that settled expectations honestly arrived at with

respect substantial interests ought not be defeated." Sutherland

on Statutory Construction, "Criteria of Decision" § 41.05 at 370

(Sth ed., 1993).

Again, while the vital importance of the right to a jury trial

can not be exaggerated, the effect, after forcing the petitioners to

wait over three years, of retrospectively depriving them of its

benefit is particularly onerous. Justice White, in Baldwin v. New

York, supra, 399 U.S. at 72, 26 L. Ed.2d at 442 stated:

. the primary purpose of the jury is to prevent

the possibility of oppression by the Government, the

jury interposes between the accused and his accuser

% the judgement of laymen who are less tutored perhaps

than a judge or panel of judges, but who at the same

time are less likely to function or appear as but

another arm of the Government that has proceeded

against him.

It is the position of Petitioners that the retroactive

application of Act 128, supra, and the attendant deprivation of

the right to trial by jury is inherently prejudicial and unfair, so as

to constitute a violation of Due Process under the United States

Constitution.

B. The Due Process Guarantees of the Fourteenth

Amendment Embrace the Criteria For Ex Post Facto

Violations And Apply To The Denial Of Petitioners’

Sutherland on Statutory Construction, § 41.03, p. 345 stated

with respect to Retroactive legislation that:

Notwithstanding the aforementioned explicit constitutional

limitations on enactment of retroactive legislation, the

constitutional ground most often used in attacking them is

that they violate due process guarantees in the Fifth and

Fourteenth Amendments. The kinship has been recognized

even though the ex post facto provision is held to refer only

to criminal statutes. The result is that protection from

improper retroactivity has been included within the due

process clause.

The Hawaii Supreme Court Opinion in this matter

concluded that the retroactive application of Act 128, supra,

satisfied any requirement of fundamental faimess as enunciated in

State v. Ikezawa, 75 Haw. 210, 857 P.2d 593 (1993). The

Opinion of the Hawaii Supreme Court (Appendix A, at 59-60.)

found that the retroactive application of Act 128, supra, was not |

“outcome-determinative" and therefore the Petitioners had not |

shown that they would be substantially prejudiced by it s

retroactive application.

The Petitioners are part of a group of first-time DUI

defendants in Hawaii, who have waited in most cases for over

three years to have jury trials. It seems patently absurd that a

misdemeanor court system would afford only one courtroom for

this particular misdemeanor charge, and thereby intentionally

create a case backlog of thousands of DUI jury trials. In a sense,

the Petitioners, during their three-year wait for a jury trial, had

impliedly waived their right to a speedy trial based upon their

timely demand for and expectation of a jury trial. The passage

of such a long period of time and the subsequent unexpected

extinguishment of the right to a jury trial constitutes prejudice at

a level that violates the due process requirement of the

Fourteenth Amendment to the United States Constitution.

The linchpin in the Hawaii Supreme Court’s finding of no

prejudice arising from the unexpected extinguishment of

Petitioner’ right to a jury trial is the Court’s premise that a judge

-tried case always affords the same amount and degree of fairness

as a jury trial. It follows, given the Hawaii Supreme Court’s

above stated premise, that if prejudice were required to be shown

when a non-jury trial was conducted without a proper waiver by

the defendant in a constitutionally serious criminal matter, there

could never be a reversal of a conviction for violation of this

fundamental right. The right to a jury trial in a criminal case, as

guaranteed by the Sixth Amendment to the United States

Constitution, would thereby be rendered meaningless.

Il. THE DENIAL OF PETITIONER WHITTINGTON’S

RIGHT TO A JURY TRIAL BY JUDGE

DANNENBERG WAS BASED UPON A LAW

WHICH WAS NOT YET IN EXISTENCE AT THE

TIME THE COURT INVOKED IT AND

CONSTITUTES A VIOLATION OF PETITIONERS’

RIGHT TO DUE PROCESS AS GUARANTEED BY

THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION.

The Hawaii State Constitution, Article III, Section 16

requires that for a bill to become law, it must be signed by the

Govemor. On May 4, 1993, the Honorable James Dannenberg

refused to grant Petitioner Whittington’s demand for a jury trial

based primarily upon the Judge’s belief that Act 128, supra,

would soon become law and thereby eliminate Petitioner

Whittington’s right to a jury trial as a first-time DUI offender.

The following exchange between Judge Dannenberg and the

attomey for Petitioner Whittington, at the trial-setting hearing on

May 4, 1993 illustrates the court’s intent to presumptively

extinguish Petitioner Whittington’s right to jury trial.

THE COURT: Okay. I take it this is a first

offense, is that correct?

MR. ROSS: Yes, Your Honor.

THE COURT: Okay. Well, I -- as you heard me

say---

MR. ROSS: However, we requested this before

the govemor signed any bill into an act. This is just

proposed legislation. It’s not fact yet. He could veto it.

THE COURT: He could. So we'll -- and if he

does, then---

MR. ROSS: Well, you’ve got a court above you

that’s going to remand everything anyway, so--- .

THE COURT: Actually it isn’t, from what I

hear, so -- the cases are going to stay in limbo for a

while.

Where is Mr. Whittington, do you know?

MR. ROSS: Well, generally speaking, when I

make a jury demand, I don’t tell people to come.

THE COURT: Right. I understand.

MR. ROSS: Now whether I get in trouble for it,

that’s a new matter. I mean -- I haven't up to now.

THE COURT: No, you haven't had notice, so

I’m not going to hold you responsible for it. Let me ask

this. Is that State ready?

MR. BAAKE: Yes, it is, Your Honor. |

THE COURT: All right. What I’m going to do |

is this. I’m going to note the State’s ready. I'll |

continue this. I’m going to, at this point, deny the

request for jury trial. I’m going to set it for trial.

If something happens that indicates that the new

legislation isn’t going into effect, you can always get the

jury at that point. But, I don’t see any harm or foul at

this point, since you're not going to get a trial date until

ee eS ee

1997 anyways, if you go to Circuit Court.

(Appendix G.) Act 128, supra, was finally signed into law by

the Governor of Hawaii on May 21, 1993.

The situation in Petitioner Whittington’s case illustrates the

absurd lengths to which the Hawaii judiciary would go,

particularly the District Court, to avoid affording a first-time DUI

defendant a jury trial. This invocation of a non-existent law

would be almost humorous, if it did not involve such a

Kafkaesque approach to criminal trial procedure and result in the

loss to Petitioner Whittington of his fundamental right to a jury

trial. Act 128, supra, contains no provision known to Petitioners

which permits the retroactive application of it prior to its

enactment. There is no State of Hawaii statute known to

Petitioners which permit the retroactive application of a non-

existent law to Petitioner Whittington’s situation. There is no

Hawaii case law known to Petitioners which would as well

permit the preemptive application of a non-existent statute.

Finally, the Hawaii Supreme Court did not address this issue in

its opinion (Appendix A), even though it was properly preserved,

presented and briefed to the Hawaii Supreme Court. The Hawaii

Supreme Court did not find any other state or federal grounds

which would obviate deciding Petitioner Whittington’s particular

and peculiar situation.

It is Petitioner Whittington’s position that the use of a

nonexistent law to deprive him of his right to a jury trial is a

violation of Due Process as guaranteed by the Fourteenth

Amendment to the United States Constitution. It may aiso be

seen as a troubling sign of an inability and unwillingness to

manage in a fair and creative manner the growing criminal

caseload of this decade.

CONCLUSION

The extinguishment of the fundamental right to a jury tal

in a criminal matter and under the facts of this petition is a

violation of due process as guaranteed by the Fourteenth

Amendment to the United States Constitution. Petitioners |

NAKATA and LAU properly demanded a jury trial over three

years ago in a misdemeanor DUI case. Petitioners had no reason

to expect that the right to a jury trial, then guaranteed and vested 7

by the Hawaii Supreme Court’s decision in State v. O’Brien,

supra, would be retroactively extinguished by the Hawai‘i State

legislature.

But for the expectation of a vested right to jury trial on the

charge of being first-time DUI offenders, Petitioners would

Se ee ee oe eee

certainly never have waited twisting and spinning in judicial

limbo for over three years to conclude the disposition of these

misdemeanor matters. It is patently unfair and a violation of due

process to purposely permit the DUI jury trial caseload to back

up into the thousands and then solve this judicially-created

problem by extinguishing the right to a jury trial. This is true,

particularly in the present situation, where the Petitioners

impliedly waived their right to a speedy trial based upon their

demand for and reasonable expectation of receiving a jury trial.

The most chilling example of the Hawai‘i Supreme Court’s

cynical approach to remedying the caseload crisis is the

Kafkaesque solution it employed in Petitioner Whittington’s case.

First, the trial court denied Petitioner Whittington’s demand for a

jury trial based upon a then-non-existent statute. Then, the

Hawai‘i Supreme Court refused to decide the matter without

providing any alternative and adequate grounds for denying

Petitioner Whittington’s appeal. To permit these gross violations

of due process, is to encourage further and future such violations

all in the name of judicial management and administration. It

really will become a case of “the tail wagging the dog."

Accordingly, for the foregoing reasons, this Petition for Writ of

Certiorari should be granted.

Dated: Honolulu, Hawaii, November 9, 1994.

Respectfully submitted:

y ARTHUR E. ROSS

(Counsel of Record)

PAUL J. CUNNEY

(Of Counsel)

Paul Cunney & Associates

1121 Nuuanu Avenue #203

Honolulu, HI 96817

Telephone: (808) 523-0077

Counsel for Petitioners

Appendix "A"

IN THE SUPREME COURT

OF THE STATE OF HAWAI ‘I

---000---

[Filed Aug. 2, 1994]

STATE OF HAWAI‘I, Plaintiff-Appellee,

v. GLENN NAKATA, Defendant-Appellant

(CR. NO. 90-1679)

STATE OF HAWAI‘I, Plaintiff-Appellee,

v. ALVIN K. L. LAU, Defendant-Appellant

(CR. NO. 90-1657)

STATE OF HAWAI‘I, Plaintiff-Appellee,

v. EDDIE DAOANG, Defendant-Appellant

(CR. NO. 90-1838)

NO. 17317

and

JON DAVID WHITTINGTON, Petitioner,

v. JAMES H. DANNENBERG, in his capacity as

Judge of the District Court of the First

Circuit, State of Hawai‘i, and all other

District Court Judges of the State of

Hawai‘i, STATE OF HAWAI‘I, the real party in

interest, Respondents

NO. 17228

PETITION FOR WRIT OF MANDAMUS

AND/OR PROHIBITION

(CASE NOS. OF 5/4/93)

AUGUST 18, 1994

MOON, C.J., KLEIN, LEVINSON,

NAKAYAMA, AND RAMIL, JJ.

OPINION OF THE COURT BY MOON, C.J.

In 1990, defendants-appellants Glenn

Nakata, Alvin Lay, and Eddie Daoang

(collectively, the defendants) each requested

a jury trial in their individual case on the

charge of first-offense driving under the

influence of intoxicating liquor (DUI), in

violation of Hawai‘i Revised Statutes (HRS) §

291-4 (1985). Subsequently, the Hawai‘i State

Legislature enacted Act 128, 1993 Haw. Sess.

Laws 179 (Act 128), which amended the DUI

statute by lowering the penalties for a first

offense, with the intent of eliminating the

right to a jury trial for a first-offense DUI

charge. Act 128 also provided for retroactive

application too all pending first-offense DUI

cases.

After the effective date of Act 128,

plaintiff-appellee State of Hawai‘i (the

prosecution) moved to remand each of the

defendants’ cases to the district court for

bench trials. The First Circuit Court

consolidated the three cases, issued findings

of fact, and reserved the following two

questions of law, pursuant to Hawai‘i Rules of

Appellate Procedure (HRAP) Rule 15’ and

HRS § 602-5(2) (Supp. 1992),’

1. Whether the amendments to the

sentencing provisions of HRS [$]

291-4 provided Act 128, Session Laws

of Hawaii, Regular Session of 1993,

effective May 21, 1993, eliminate []

the right to jury trial for

defendants charged with a first

offense under HRS § 291-4.

If the amendments to the sentencing

provisions of HRS [S$] 291-4 provided

in Act 128, Session Laws of Hawaii,

1 HRAP 15 provides in part:

Rule 15. Reserved Questicns. (a) From What

Court. A circuit court, district court... .

and any other court empowered by statute, may

reserve for the consideration of the Hawaii

appellate courts a question of law arising in

any proceedings before it. Questions may be

reserved on motion of any party or on the

court’s own motion.

2 HRS § 602-5(2) provides:

§ 602-5 Jurisdiction and powers. The supreme

court shall have jurisdiction and powers as

follows:

(2) To answer, in its discretion, any

quesiton of law reserved by a circuit court,

the land court, or the tax appeai court, or any

questions or proposition of law certified to it

by a federal district or appellate court if the

supreme court shall so provide by rule fs)

-Regular Session of 1993, effective May

21, 1993, do eliminate the right to

jury trial, whether the deprivation of

such a right may be applied

retrospectively to alleged offenses

occurring prior to the enactment of

the Act.

We, in turn, consolidated No. 17371 with

No. 17228, a petition for writ of prohibition

and/or mandamus (petition for writ), filed by

Jon David Whittington.* Whittington seeks an

order (1) barring the district court from

hearing his case at a bench trial and (2)

committing the case to circuit court for a jury

trial.

, Hereafter, we shall refer to the defendants and

petitioner Whittington collectively as

"appellants." Likewise, we attribute individual

arguments to all appellants. We note that the

Office of the Prosecuting Attorney of the City and

County of Honolulu represented plaintiff-appellee

State of Hawai‘i in No. 17371 and filed an

answering brief. The Attorney General of Hawai'i,

representing the respondents in No. 17228, filed

an answer to the writ as well as an amicus brief

in No. 17317. In this opinion, we consolidate the

prosecutor’s and attorney general’s arguments and

collectively refer to plaintiff-appellee and

respondents as "the prosecution.”

We answer both reserved questions in the

affirmative and, accordingly, deny

Whittington’s petition for writ.

I. BACKGROUND

Defendants Daoang, Lau, and Nakata, were

arrested for DUI on May 25, 1990, June 10,

1990, and July 30, 1990, respectively, each

being charged pursuant to HRS § 291-4 with a

first-offense DUI violation. Relying on State

v. O’Brien, 68 Haw. 38, 704 P.2d 883 (1985),

they each requested jury trials, and

accordingly, the cases were transferred to the

First Circuit Court. While their jury trials

were pending, the prosecution, on June 25,

1993, filed motions for remand to the district

court. As previously noted, the trial court

issued findings of fact and reserved the two

aforementioned questions.

Whittington was arrested for first-offense

DUI sometime before May 4, 1993.‘ On May 4,

1993, he demanded a jury trial; however, the

district court denied his demand and set the

case for a bench trial. Whittington

subsequently filed his petition for writ, which

we consolidated with No. 17317 because our

disposition of the reserved questions would

also dictate the disposition of Whittington’s

petition.

The defendants are not alone in awaiting

jury trials. The trial court found that as of

July 30, 1993, 3,375 jury trial-DUI cases were

pending in the First Circuit Court, although

not all involved first-time offenders. The

Court also found that one First Circuit

courtroom is primarily responsible for hearing

DUI jury trials and that the prosecution rarely

plea-bargains DUI offenses to lesser charges

due to the enhanced sentencing scheme provided

in HRS § 291-4 for repeat offenders. In

4 The record does not reflect Whittington’s arrest

date.

passing Act 128, a legislative committee stated

that

there is currently a backlog of

approximately 3,000 DUI cases. . %

[A] high percentage of these DUI cases

involved first time offenders. .. .

This bill will alleviate the current

backlog that is overwhelming the

judicial system, and will allow for

timely adjudication of repeat

offenders who pose the greatest risk

to the community and public safety.

Sen. Stand. Comm. Rep. No. 1107, in 1993 Senate

Journal, at 1177. The House Judiciary

Committee determined that

it would take 5 to 6 Circuit Courts

handling nothing but DUI jury trials

to clear the backlog and keep up with

new cases. .. . At the same time, the

District Court in the First Circuit is

capable of disposing of non-jury DUI

cases at the rate of 4 to 16 per day,

per courtroom, for[, among other]

reason(s], that there are many changes

of plea when it is apparent that trial

is ready to begin[.]

Hse. Stand. Comm. Rep. No. 600, in 1993 House

Journal, at 1212.

At the time of the defendants’ arrests, the

penalty provisions of HRS § 291-4, as amended

in 1989, provided for “[nJot less than forty-

eigth hours of imprisonment," with no stated

maximum jail term for a first offense.’

Additionally, a first-time DUI offender could

be sentenced to (a) a fourteen hour minimum

alcohol abuse rehabilitation program, (b) a

maximum ninety-day suspension of license, (c)

seventy-two hours of community service, and (d)

a fine of not less than $150 but not more than

$1,000. See Act 128, 1989 Haw. Sess. Laws 248.

For a second offense, committed within five

years of a prior conviction, a defendant could

be sentenced to "[nJot less then forty-eight

consecutive hours of imprisonment" again, with

not stated maximum jail term.® In addition, a

second-time offender could receive (a) prompt

suspension of license for one year, (b) eighty

hours of community service, and (c) a fine of

not less than $500 but no more than $1,000.

. As we noted in O’Brien, “logic dictates that

the maximum terms of imprisonment for first and

second offenses cannot exceed that mandated for a

third offense. Therefore, the maximum

imprisonment [for a first- and second-offense)

must also be 180 days." O’Brien, 68 Haw. at 44

n.5, 704 P.2d at 887 n. 5.

See, supra note ae

Id. at 249.

For a third offense, the stated minimum

jail time was ten days, with a maximum of “one

hundred eighty days of imprisonment." Id. The

fine provision for a third-time offender

remained the same as for a_ second-time

offender; however, the statute provided for

"(rjJevocation of license for a period of not

less than one year but not more than five

years([.)]" Id. Subsection (c) also provided

that a second- and third-time offender “shall

be referred to a substance abuse

counselor. . . for an assessment of the

offender’s alcohol abuse or dependence and the

need for appropriate treatment." Id.

In 1990, the legislature enacted the

following amendments to HRS § 291-4: (1)

established a maximum thirty- and sixty-day

term of imprisonment for a first- and second-

offense DUI, respectively; (2) required that

"at least forty-eight hours [of imprisonment

for a second- and third-offense DUI} shall be

served consecutively;" and (3) added the

provision that the court may order the

installation of an ignition interlock system’

in the case of first-time offenders. See Act

188, 1990 Haw. Sess. Laws 410-11. The 1990

amendments became effective on August 1, 1991.

Act 128, which became effective on May 21,

1993, (1) reduced the maximum jail sentence for

a first-offense DUI charge under HRS § 291-4

from thirty days to five days, (2) repealed the

ignition interlock provision for first-time

offenders, and (3) provided for retroactive-

offense DUI cases.°

We examined the 1990 amendments in State v.

Jordan, 72 Haw. 597, 825 P.2d 1065 (1992), and

. An “ignition interlock system" is a mechanical

device affixed to the ignition system of a motor

vehicle which prevents a vehicle from being

started without first testing a sample of the

driver’s breath for a blood alcohol concentration.

HRS § 286-51 (Supp. 1992).

Section 5 of aCt 128 provides that it takes

effect upon approval “providing that [the reduced

penalties] shall be retroactive for all pending

first-offense cases for [DUI]." 1993 Haw. Sess.

Laws at 181.

held that, despite the reduced maximum prison

sentence for first- and second-offense DUI from

180 days to thirty and sixty days,

respectively, DUI remained a serious crime to

which the right to a jury trial attached. Id.

at 601, 825 P.2d at 1068. The 1993 legislature

promulgated Act 128 partially in response to

Jordan. In passing Act 128 and providing for

its retroactive application, the legislature

stated:

It is the intent of the legislature

that individuals charged with the

offense of [DUI] as a first time

offender shall not be entitled to a

jury trial. ;

It is the intent of the legislature

that the reduced penalties provided

for in the Act apply to all pending

first offense cases. The legislature

further intends that by making the

reduced penalties provided for in this

Act retroactive to pending cases, it

be made clear that such first

offenders are not entitled to a jury

trial, as the offense is a “petty

offense" in the constitutional sense.

Act 128, 1993 Haw. Sess. Laws at 179-80.

II. STANDARDS OF REVIEW

The issues presented by the questions

reserved pursuant to HRAP 18 ove questions of

law. We review questions of law under the

right/wrong standard. In re Holt, 75 Haw. 224,

232, 857 P.2d 1355, 1359, reconsideration

denied, _—- Haw. _—,-~863 P. 2d 989 (1993).

A writ of mandamus is "an extraordinary

remedy that is usually not issued unled the

petitioner demonstrates: (1) a clear and

indisputable right to relief; and (2) a lack of

other means to adequately redress the alleged

wrong or obtain the requested action." Tanaka

v. Nagata, Haw. ‘ , 868 P.2d 450, 453

(1994) (citation omitted) .’

Legislative enactments are ordinarily

presumed constitutional. Pary v. Judicial

Selection Comm’n, 75 Haw. 333, 340, 861 P.2d

723, $$.727 (1993). In the face of the

presumption, a party challenging a statute has

In light of our affirmative answers to the

reserved questions, we need not reach the question

of whether a writ of mandamus is the appropriate

means of relief in Whittington’s situation.

the burden of proving unconstitutionality

beyond a reasonable doubt; that is, the

constitutional defect must be clear, manifest,

and unmistakable. Id.

III. DISCUSSION

We begin by analyzing the first reserved

question under the jury trial provisions of

both the United States and Hawai *i

Constitutions. We then analyze the question of

applying Act 128 retroactively. Finally, we

address appellants’ equal protection and

separation of powers arguments.

A. The First Reserved Question

Whether the amendments to the

sentencing provisions of HRS [§] 291-4

provided in Act 128, Session Laws of

Hawaii, Regular Session of 1993,

effective May 21, 1993, eliminate[]

the right to a jury trial for

defendants charged with a first

offense under HRS § 291-4.

1. Federal Constitutional Analysis

The United States Supreme Court has

interpreted the United States Constitution’s

sixth amendment right to a jury trial more

narrowly than this court has interpreted the

Hawai‘i Constitution’s counterpart, article I,

§ 14. Compare Blanton v. City of North Las

Vegas, 489 U.S. 538 (1989) (no right to a jury

trial for a DUI charge with a maximum possible

prison sentence of six month) with State v.

O’Brien, 68 Haw. 38, 704 P.2d 883 (1985) (right

to a jury trial for DUI offense with maximum of

180 days for first and repear offenders) and

State v. Jordan, 72 Haw. 597, 825 P.2d 1065

(1992) (right to jury trial for a first- and

second-offense DUI having a maximum sentence of

thirty and sixty days, respectively).

The sixth amendment provides in part: "In

all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial,

by an impartial jury [.]" This fundamental

right applies to the states through the

fourteenth amendment. Duncan v. Louisiana, 391

U.S. 145, 149-50, reh’q denied, 392 U.S. 947

(1968). However, the right is not absolute;

"petty offenses" are not subject to the sixth

amendment guaranty of a jury trial. Id, at

159. Thus, based on the reserved questions,

the inquiry narrows to whether first-offense

DUI under HRS § 291-4, as amended by Act 128,

is a constitutionally petty offense for

purposes of the sixth amendment.

In Blanton, the Supreme Court stated the

test as follows:

In determining whether a particular

offense should be categorized as

"petty," our early decisions focused

on the nature of the offense and on

whether it was triable by jury at

common law. In recent years, however,

we have sought more "objective

indication ¢. +> eriousn with

which h -

"(Wle have found the most relevant

such criteria in the severity of the

maximum authorized penalty.”

489 U.S. at 541 (citations omitted) (emphasis

added). The Court explained that:

In using the word "penalty," we do not

refer solely to the maximum prison

term authorized for a particular

offense. A legislature’s view of the

seriousness of an offense also is

reflected in the other penalties that

it attaches to the offense.

Primary emphasis, however, must be

placed on the maximum authorized

period of incarceration.

Id. at 542 (citations omitted) (emphasis

added).

The Court in Blanton held that a charge

under Nevada’s DUI statute, which had a maximum

authorized prison term of six months as well as

other possible penalties (including wearing a

distinctive clothing identifying the offender

as a convicted drunk driver), was not

"constitutionally serious." Thus, the sixth

amendment granted no right to a jury trial for

a charge under the Nevada DUI statute.

Blanton, 489 U.S. at 545.

In United States v. Nachtigal, - #

__, 113 S. Ct. 1072, 1073 (1993), the Court

reiterated that “offenses for which the maximum

period of incarceration is six months or less

are presumptively ‘petty.’" Id. (citing

Blanton, 489 U.S. at 543). “A defendant can

overcome this presumption, and become entitled

to a jury trial, only by showing that the

additional mix of penalties, viewed together

with the maximum prison term, are so severe

that the legislature clearly determined that

the offense is a ‘serious’ one." Id. In

Nachtigal, the defendant was charged under a

federal DUI regulation with operating a motor

vehicle in Yosemite National Park while under

the influence of alcohol. The Court held that

the charge, with a maximum penalty of sixth

months imprisonment, a maximum $5,000 fine, a

maximum five year term of probation, and a host

of additional penalties’® was not

1° The Court in Nachtigal noted:

There are 21 discretionary conditions which

the sentencing. court may impose upon a

defendant. Under 18 U.S.C. $ 3563(b), a

court may require, among other things, that

the defendant (1) pay restitution; (2) take

part in a drug and alcohol dependency program

offered by an institution, and if necessary,

reside at the institution; (3) remain in the

custody of the Bureau of Prisons during the

nights and weekends for a period not

exceeding the term of imprisonment; (4)

reside at or participate in a program of

community correctional facility for all or

part of the probationary term; (5) remain at

his place of residence during nonworking

hours, and, if necessary, this condition may

be monitored by telephonic or electronic

devices. $§§ 3563(b) (3), (b) (10), (b) (11),

(b) (12), (b) (20).

Nachtigal, U.S. at me 1133 S. - at 1074 n. *.

consitutionally serious.

Here, the maximum authorized term of

imprisonment for a first-offense DUI under HRS

§ 291-4, as amended, is five days -- well below

the six-month threshold enunciated in Blanton.

A first-offense DUI is, therefore,

presumptively "petty" for purposes of federal

constitutional analysis.

The additional possible mix of penalities

for a first-offense DUI conviction under

Hawai‘i law includes: (1) minimum fourteen-

hour attendance at alcohol rehabilitation _

classes; (2) a ninety-day driver’s license

suspension; (3) community service; (4) a fine

between $150 and $1,000; (5) compliance with

HRS § 287-20 (Supp. 1992) (requiring proof of

financial responsibility before reapplying for

driver’s license) ; and (6) collateral

consequences such as payment of costs for most

of the penalties. Nachtigal clearly suggests

that Hawai‘i’s authorized maximum penalties and

the list of additional mix for a first-offense

DUI do not overcome the federal presumption

that such offense is petty. See Nachtigal, ___

U.S. at _, 113 S. Ct. at 1074 ("it is a rare

case where ‘a legislature packs an offense it

deems "serious" with onerous penalties that

nonetheless do not puncture the 6-month

incarceration line’" (citing Blanton, 489 U.S.

at 543)).

However, appellants argue that an increased

insurance rate based on a DUI conviction is a

severe penalty, which adds to the "mix" and

results in the offense being constitutionally

serious. Indeed, the trial court in this case

found that automobile insurance rates increase

dramatically for a person convicted of DUI.**

Despite such determination, we do not consider

increased rates for private insurance companies

to be a statutory "penalty" for violating HRS

= For example, the trial court noted that

according to a 1990 study, the average rate for a

Toyota rises from $1,086 a year, for a driver with

a clear abstract, to $7,913 a year, with a DUI

conviction; for a BMW, the rate rises from $1,798

to $14,413 per year.

§ 291-4. See Blanton, 489 U.S. at 543 n.8 ("In

performing this analysis, only penalties

resulting from state action, e.g., those

mandated by statute or regulation, should be

considered.") Although appellants cite to HRS

chapter 287’s provisions requiring proof of

financial responsibility, insurance companies

would likely raise insurance rates regardless

of whether a driver convicted of DUI is

required to comply with chapter 287 because of

the actuarially increased risk that such a

driver poses.”’

Accordingly, we hold that there is not

right to a jury trial under the United States

Constitution for a first-offense DUI under HRS

§ 291-4, as amended by Act 128.

2. State Constitutional Analysis

The Constitution of the State of Hawai‘i

provides, in pertinent part, that "[iJn all

" This likelihood is bolstered by the trial

court’s finding that "insurance companies could

lower rates for those convicted and absorb the

cost(,]" regardless of compliance with HRS chapter

287.

criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial by an

impartial jury of the district wherein the

crime shall have been committed[.]" Haw.

Const. art I, § 14. “Although the right to a

jury trial is of great importance, we have also

recognized that it is not an absolute right.

Specifically, we have held that a defendant

charged with a petty crime does not have a

constitutional right to a jury trial." State

v. Wilson, 75 Haw. 68, 73, 856 P.2d 1240, 1243

(citations omitted), reconsideration denied,

__ Haw. __,, 861 P.2d 735 (1993). Thus, the

issue is whether a first-offense DUI, as

reconfigured by Act 128, is a petty or serious

crime under the Hawai‘i Constitution.

We analyze three factors to determine

whether an offense is constitutionally petty or

serious: "(1) treatment of the offense at

common law; (2) the gravity of the offense; and

(3) the authorized penalty." Wilson, 75 Haw.

at 74, 856 P.2d at 1244 (citing O’Brien, 68

Haw. at 41-43, 704 P.2d at 885-87).

Under the first factor, we consider the

"traditional treatment" of the offense and

“whether [the] offense was indictable at common

law, triable at common law by jury, or tried

summarily without a jury." Id.

Under the second factor, we consider

whether an offense “affects the public at

large, reflects moral delinquency, or carries

a sufficient disgrace to require labelling the

offense as constitutionally serious." Id. In

applying the second factor, the legislature’s

perception of an offense, as reflected by its

statements in legislative history, often

provides a strong indication of society’s view

of the gravity of an offense. Id. at 75, 856

P.2d at 1245.

Finally, the third factor "focuses on the

authorized penalty for the offense." Id. at

76, 856 P.2d at 1245. We consider not only the

maximum possible prison term, but also the

possible additional statutory "mix of

eee =

penalties" that may attach to the offense. Id.

In Wilson, we held that a charge under HRS

§ 291-4.5 (1985) (driving after license

suspended for DUI) is constitutionally petty

and, therefore, a defendant so charged is not

entitled to a jury trial. Id. at 78, 856 P.2d

at 1246. Significantly, in Wilson, we reviewed

our past application of the three-part test in

O’Brien and Jordan to the underlying DUI

statute, HRS § 291-4.

The test we applied in Wilson arose out of

O’ Brien. In O’Brien, we analyzed the 1983

version of HRS § 291-4 and interpreted the

offense of DUI to be constitutionally serious,

granting a right to a jury trial. In applying

the three-part test in O’Brien, this court

analogized DUI to common law reckless driving

(an indictable offense requiring the right to

a jury trial), interpreted legislative

pronouncements in assessing the gravity of the

offense,'* and considered the identical

maximum prison term of 180 days authorized in

1985 for first and repeat DUI offenders as well

as the potential mix of penalties.’ Q’Brien,

68 Haw. at 42-43, 704 P.2d at 886.

Significantly, the defendant in O’Brien was not

12 In O’Brien, we stated:

Turning to an assessment of the gravity of

DUI, we note first the legislative

pronouncements of the statutes governing such

charges. The legislature’s commentary

reflects its unequivocal acknowledgement that

drunk driving presents a social problem of

vast and potentially devastating proportions.

(T]he legislature noted:

It is frightening to realize that

one of every two Americans will be

involved in an alcohol-related auto

crash in his or her lifetime. In our

Own state the dimensions of the

drunk-driving problem can be

highlighted by recent statistics. IN

1981, almost two-thirds of Hawai'i’s

traffic deaths were alcohol-related;

drinking drivers involved in ail

accident here number 2,465 in 1980.

The problem is already of major

proportions, yet it is growing, and

will continue to increase unless and

until this Legislature provides

meaningful sanctions that will deter

drunken driving.

O’Brien, 68 Haw. at 42-43, 704 P.2d at 886 (citation

omitted).

™ As previously noted, the mix of penalties under

the 1983 version of HRS § 291-4 was identical to

the mix under the 1989 amendments, except that the

- community service for a second offense was changed

from “not less than ten days" to “eighty hours."

a first-time DUI offender. Id. at 40, 704 P.

2d at 885. The holding in O’Brien applied to

DUI as a whole and did not distinguish between

first and repeat offenders. In concluding that

the offense of DUI was serious, we commented:

Were we faced with a situation where a

first DUI offense was punishable, for

example, by imprisonment for no more

than five days, a second conviction by

imprisonment for no more than ten days

and a third, by imprisonment for no

longer than one month, we would

perhaps be persuaded by State’s

position that DUI is not a serious

offense in the constitutional sense.

Id. at 44, 704 P.2d at 887 (emphasis added).

By suggesting the maximum prison terms for

first and repeat DUI offenses that would

perhaps persuade the court that DUI is not

constitutionally serious, it is apparent that

this court placed primary emphasis on the

imprisonment aspect of the three-part test, as

did the United States Supreme Court in Blanton,

wherein the Court stated:

Primary emphasis, however, must be

placed on the maximum = authorized

period of incarceration. Penalties

such as probation or a fine may

engender "a significant infringement

of personal freedom," but they cannot

approximate in severity the loss of

liberty that a prison term entails.

Indeed, because incarceration is an

"intrinsically different" form _of

punishment, it is the most powerful

indication of whether an offense is

"serious."

Blanton, 489 U.S. 542 (citations omitted)

(emphasis added).

The Legislature appears to have

specifically considered the comment from

O’Brien regarding a maximum imprisonment term

of five days for a first-offense DUI when it

promulgated Act 128, declaring a first offense

to be petty. We note that because Act 128

authorizes a maximum prison term of sixty to

180 days for a second- and third-offense DUI,

respectively, the legislature arguably rejected

this court’s suggestion of prison terms that

would have included such repeat offenses in the

petty category.

In Jordan, we applied the three-part

O’Brien test to the 1990 amended version of HRS

§ 291-4 (the version immediately prior to Act

128). In assessing the gravity of both a

first- and second-offense DUI, we interpreted

the legislative history of the 1990 amendment,

which “indicate([d] [that] the legislature

continue[d] to regard DUI as a very serious

crime and social problem" despite reductions in

the maximum prison sentence to thirty days for

a first offense and to sixty days for a second

offense. Jordan, 72 Haw. at 601, 825 P.2d at

1068. We also noted that the legislature had

added the ignition interlock penalty provision

for a first-time offense. Id. at 599, 825 P.2d

at 1067. Therefore, in Jordan, we continued to

interpret all levels of offenses under HRS §

291-4 as constitutionally serious. Jordan

effectively turned, in part, on our

interpretation of the legislature’s perception

of a first-time DUI offense.

Following Act 128’s enactment in 1993, we

decided Wilson. As noted previously, in

Wilson, we reviewed a charge related to DUI,

that is, driving after license suspended for

DUI under HRS § 291-4.5. We based our analysis

of the section 291-4.5 charge, in part, on Act

128. We reasoned as follows:

After reviewing our opinion in

Jordan, the legislature, in 1993,

decisively spoke and deemed our view

of its perception of the seriousness

of first time DUI offenses to be in

@rror .

Irrefutably, the legislature regards

first time DUI offenses as

constitutionally "petty" offenses,

thereby characterizing the potential

mix of penalties faced by a first time

DUI offender constitutionally “petty”

as well. Moreover, it is now clear

that the legislature has always viewed

first time DUI offenses as petty.

Wilson, 75 Haw. at 77-78, 856 P.2d at 1245

(emphasis added). We relied on the

legislature’s specific and unambiguous

declaration that:

[t]he purpose of [Act 128] is to

reduce the penalties for first time

offenders so that there can be no

question that, as to first time

offenders, the offense is a “petty

offense" in the constitutional sense,

to which no right to jury trial

attaches. The legislature finds that

those offenders who are convicted

repeatedly of driving under the

influence of intoxicating liquor

represent a serious social problem.

-First time offenders, however,

represent less of a threat to society,

as most will respond to corrective

action.

Act 128, 1993 Haw. Sess. Laws at 179 (emphasis

added) .*° This unequivocal legislative

statement provides a strong indication of

society’s view of the gravity of first offense

DUI.

Consequently, we held in Wilson that a

” The House Committee on Judiciary, reporting on

House Bill No. 747, House Draft 1, which was

eventually enacted as Act 128, stated:

Your Committee notes that in its amended

form, this bill specifically sets forth

the Legislature’s view that it regards the

repeat offenders as the serious social

problem, for it is the repeat offenders

who have demonstrated an unwillingness to

modify their behavior. The amended bill

sets forth the Legislative finding that

the first-time offender is of lesser

concern because most first-time offenders

will respond to treatment, will modify

their behavior, and will cease to be a

hazard to the general public. Repeat

offenders, on the other hand, require

firmer action and represent a _ serious

social problem[,] for by their actions|[,]

they demonstrate that they are less likely

to reform their behavior and _ hence

represent a continuing danger to other

motorists, passengers, pedestrians[,] and

the public in general.

Hse. Stand. Comm. Rep. No. 600, in 1993 House Journal, at

1213; see also Sen. Conf. Comm. Rep. No. 105, in 1993

Senate Journal, at 785-86 (containing language identical

to House Judiciary Committee’s Report No. 600; Sen.

Stand. Comm. Rep. No. 1227, in 1993 Senate Journal, at

1213 ("repeat offenders . . . pose the greatest risk to

the community and public safety”).

charge under HRS § 291-4.5 is not

constitutionally serious and did not entail the

right to a jury trial because “if the

legislature had always intended the potential

mix of penalties faced by a first time DUI

offender to be constitutionally ‘petty,’ then

by promulgating similar penalties for a

violation of HRS § 291-4.5, it also intended

HRS § 291-4.5 to be constitutionally ‘’petty.’"

Id. at 78, 856 P.2d at 1246.

In Wilson, we relied on the legislature’s

perception of the gravity of the offense as

well as the potential mix of penalties and

indicated in dictum that a first-offense DUI

charge under HRS § 291-4, as amended by Act

128, is constitutionally petty. By noting that

"it is now clear that the legislature has

always viewed first time DUI offenses as

petty," id. at 78, 856 P.2d 1245, we called

into question Jordan and O’Brien. Although, we

implied in Wilson that Jordan and O’Brien were

no longer good law in regard to their

Bi i laa Ss

Rpg a

application to first-time DUI offenses, we did

not explicitly limit or overrule, in whole or

in part, the holdings of either case. Before

doing so today, however, we deem it necessary

to clarify the dictum in Wilson, beginning with

the fundamental tenet -- Above all is the

constitution.

"American legislatures must adhere to the

provisions of a written constitution.

Our ultimate authority is the Constotition; and

the courts, not the legislature, are the

ultimate interpreters of the Constitution."

State v. Shak, 51 Haw. 612, 617, 466 P.2d 422,

425, cert. denied, 400 U.S. 930 (1970); see

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180

(1803) (laws regunant to the Constitution are

void). “se [the] concept of the

Constitution as law, and the judiciary as the

institution with responsibility to interpret

the law, which remains the cornerstone of

judicial review today." -R. Rotunda & J. Nowak,

Treatise on Constitutional Law § 1.3., at 42

(2d ed. 1992). These same principles of

judicial review apply when determining whether

an offense is constitutionally petty or

serious. When addressing the constitutionality

of a statute, we have cautioned that

“whether the legislation under review

is wise or unwise is a matter with

which we have nothing to do. Whether

it . . . work[s] well or work[s] ill

presents a question entirely

irrelevant to the issue. The only

legitimate inquiry we can make is

whether it is constitutional. If it

is not, its virtues, if it have anym

cannot save it; if it is, its faults

cannot be invoked to accomplish its

destruction. If the provisions of the

Constitution be not upheld when they

pinch as well as when they comfort,

they may as well be abandoned."

Baehr v. Lewin, 74 Haw. 530, 582-83, 852 P.2d

44, 68 (quoting Home Bldg. & Loan Ass’n v.

Blaisdell, 290 U.S. 398, 483 (1934)

(Sutherland, J., dissenting), reconsideration

and clarification granted in part, 74 Haw. 645,

852 P.2d 74 (1993).

In Duncan v. Louisiana, 391 U.S. 145, reh’g

denied, 392 U.S. 947 (1968), the United States

Supreme Court wrote:

‘Fs

the boundaries of the petty offense

category have always been ill-

defined, if not ambulatory. In the

absence of an explicit

constitutional provision, the

definitional task necessarily falls

on the courts, which must either

pass upon the validity of

legislative attempts to identify

those petty offenses which are

exempt from jury trial, or

themselves face the questions in the

first instance.

Id. at 160; see also Frank v. United States,

395 U.S. 147, 156 ("We cannot .. . place

unlimited reliance on legislative definitions

and ‘existing . . . pratices in the Nation’ and

thereby allow Congress and the States to

rewrite the [s]Jixth [a]mendment [to] the

Constitution by simply terming ‘petty’ any

offense regardless of the underlying sentence."

(Warren, C.J., dissenting)), reh’q denied, 396

U.S. 869 (1969). Our task in interpreting

whether legislative acts pass constitutional

muster is aided by legislative statements which

reflect existing public policies relied upon in

the enactment of laws.?® Ultimately, however,

our judgment must be independent.

With these principles in mind, we examine

and clarify Wilson and its interpretation of

O’Brien and Jordan. Initially, we note that

the legislative history did not specifically

distinguish between the "seriousness" of first

and repeat DUI offenses. On the contrary, the

legislative history prior to Act 128 implicitly

perceived first and repeat DUI offenses to be

substantially equal in seriousness.

As previously noted, in O’Brien, this court

relied heavily on the legislature’s perception

of the gavity of the general nature of DUI as

evidenced by its pronouncements culminating in

the conclusion that DUI “is one of the State’s

most serious and tragic problems." Q’Brien, 68

Haw. at 43, 704 P.2d at 886. Additionally, we

‘6 See «=6Blanton, 538 U.S. at 541-42 ("(the

legislature) is far better equipped to perform the

task [of assessing the public’s perception of

whether a crime is petty}, and is likewise more

responsive to changes in attitude and more

amenable to the recognition and correction of

their misperceptions in this respect" (citation

omitted) (internal brackets and quotation marks

omitted)).

believed that by providing a maximum

imprisonment term of 180 days for first and

repeat offenses, the legislature intended no

distinction between such offenses in terms of

their seriousness. Therefore, although in

Wilson we interpreted the history of Act 128 in

1993 as indicating that the legislature “always

viewed first time DUI offenses as petty," we

are not compelled to overrule O’Brien. Merely

because a legislature by hindsight indicates

that an offense should be viewed as petty does

not make it do. In short, we must apply all

three factors of the QO’Brien/Wilson test in

determining whether an offense is petty or

serious.

In Jordan, this court dealt with reserved

question presenting the issue of a jury trial

for both first- and second-time DUI offenders

and held that such offenderes have a right to

a jury trial. Upon applying the O’Brien test

in Jordan, we stated:

In light of O’ Brien, we are

unwilling to draw such a distinction

where the only downgrading of the

seriousness of the crime in the

statute is a "clarification"[*’] by

which the maximum jail sentences for

first and second offenders is 30 and

60 days, respectively, instead of

six months, but where an additional

penalty has been added, and where

the legislative history of Act 188

of the 1990 Session Laws, as well as

Act 1 of the 1991 Special Session,

all indicate the legislature

continues to regard [DUI] as a very

serious crime and social problem.

Jordan, 72, Haw. at 601, 825 P.2d at 1068.

The legisaltive history of Act 128

indicates that the legislature was specifcally

responding to Jordan’s interpretation of the

legislature’s view of the gravity of a first-

offense DUI and explained its perception that

"(flirst time offenders . .. represent less of

a threat to society, as most will respond to

As previously stated, we noted in 0’ n that

HRS § 291-4, as then worded, imposed a six-month

maximum penalty for a third offense and assumed

that it also imposed the same maximum for a first

and second DUI offense. See note 5. We

explained in Seated that, based on the legislative

history, the a tion of the maximum jail term for

a first- and second-offense DUI, which the

legislature referred to as a “clarification,” was

in response to this court’s interpretation that

the six month maximum penalty for a third offense

applied to all levels of DUI offenses. See

Jordan, 72 Haw. at 600, 825 P.2d at 1067.

corrective action." Act 128, 1993 Haw. Sess.

Laws at 179. Thus, we acknowledged in Wilson

this court’s erroneous interpretation, in

Jordan, of the legislative perception regarding

first time DUI offenders, thereby implicitly

overruling Jordan. To the extent that the

court in Jordan interpreted first-offense DUI

to be constitutionally serious, we explicitly

overrule it today.

Despite our reasoning in Wilson, appellants

argue that first-offense DUI remains

constitutionally serious. They contend that a

reduction from a thirty- to five-day maximum

jail sentence is insignificant, and that the

additional maximum "mix of penalties" has not

otherwise changed from that in Jordan and

O’ Brien (other than eliminating the

unimplemented ignition interlock provision).

Essentially, they argue that the reasoning in

Jordan and O’Brien compels the finding that DUI

per_se is serious. They assert that the

current mix of penalties indicates that the

people of Hawai‘i view DUI as a grave and

serious offense. However, as analyzed

previously in this opinion and in Wilson, the

legislature clearly perceives the nature of the

gravity and seriousness of first-offense DUI to

be petty and repeat offenses to be serious.

Furthermore, Act 128 supports the legislature’s

perception that first-offense DUI is petty by

(1) amending first-offense DUI so as to provide

a maximum prison term of only five days, (2)

eliminating the possible penalty of court-

ordered installation of an ignition interlock

device in a first-time DUI offender’s vehicle,

and (3) leaving untouched additional statutory

penalties that do not approach the seriousness

of imprisonment.

In support of their position that a first-

offense DUI is constitutionally serious,

appellants cite Dow v. Circuit Court, 995 F.2d

922 (9th Cir. 1993), cert. denied, U.S.

, 114 S. Ct. 1051 (1994), an opinion arising

out of Hawai‘i, which holds that a person

convicted of DUI and sentenced to mandatory

attendance at an alcohol rehabilitation program

was "in custody" for purposes of habeas corpus

review of the conviction under 28 U.S.C. §

2254 (a) (1966). Nevertheless, whether a

conviction is subject to review on habeas

corpus grounds is not a factor in determining

the constitutional seriousness of an offense.

Moreover, whether a person is "in custody” is

irrelevant to determining the right to a jury

trial. Indeed, "(tj)he kind of custody that

will suffice [for habeas corpus purposes) is

judged by a very liberal standard, and any

restraint on a petitioner’s liberty because of

[a] conviction that is over and above what the

state imposes on the public generally will

suffice." 17A C. Wright, A. Miller, & E.

Cooper, Federal Practice and Procedure, § 4262,

at 305 (1988) (citing Jones v. Cunningham, 371

U.S. 236 (1963) (a prisoner free on parole is

in custody and may seek habeas corpus relief) )

(emphasis added). Thus, appellants’ reliance

on Dow is misplaced.

Appellants also argue that the social

stigma attached to a DUI conviction and its

collateral consequences, such as dramatic

the legislature clearly perceives the nature of

the gravity and seriousness of first-offense

DUI to be petty and repeat offenses to be

serious. Furthermore, Act 128 supports the

legislature’s perception that first-offense DUI

is petty by (1) amending first-offense DUI so

as to provide a maximum prison term of only

five days, (2) eliminating the possible penalty

of court-ordered installation of an ignition

interlock device in a first-time DUI offender’s

vehicle, and (3) leaving untouched additional

statutory penalties that do not approach the

seriousness of imprisonment.

In support of their position that a

first-offense DUI is constitutionally serious,

appellants cite Dow v. Circuit Court, 995 F.2d

922 (9th Cir. 1993), cert. denied, U.S.

, 114 S. Ct. 1051 (1994), an opinion

arising out of Hawai‘i, which holds that a

person convicted of DUI and sentenced to

mandatory attendance at an alcohol

rehabilitation program was “in custody" for

purposes of habeas corpus review of the

conviction under 28 U.S.C. § 2254(a) (1966).

Nevertheless, whether a conviction is subject

to review on habeas corpus grounds is not a

factor in determining the constitutional

seriousness of an offense. Moreover, whether

a person is “in custody" is irrelevant to

determining the right to a jury trial. Indeed,

"(t]he kind of custody that will suffice [for

habeas corpus purposes] is judged by a very

liberal standard, and any restraint on a

petitioner’s liberty because of [a] conviction

that is over and above what the

state imposes on the public generally will

suffice." 17A C. Wright, A. Miller, & E.

Cooper, Federal Practice and Procedure, § 4262,

at 305 (1988) (citing Jones y- Cunningham, 371

U.S. 236 (1963) (a prisoner free on parole is

in custody and may seek habeas corpus relief) )

(emphasis added). Thus, appellants’ reliance

on Dow is misplaced.

Appellants also argue that the _ social

Stigma attached to a DUI conviction and its

collateral consequences, such as dramatic

increases in car insurance premiums 9 and

mandated compliance with HRS § 287-20 (proof of

financial responsibility) in order to drive,

make the offense constitutionally serious.

But, consistent with our earlier analysis of

the federal constitution, increased insurance

rates by private insurers are net aetelinee

penalties because neither chapter 287 nor any

other statutory scheme mandates that insurance

companies increase rates for drivers convicted

of DUI. See Blanton, 489 U. S. at 543 n. 8.

Appellants also cite federal and state

cases from other jurisdictions holding that

there is a right to a jury trial for DUI

charges. See, e.g., Qpinion of the Justices

DWI Ju Trials), 135 N.H. 538, 608 A.2d 202

(1992) (six-month prison term for gecond DUI

offense without right to jury trial violates

New Hampshire constitution); United States v.

Craner, 652 F.2d 23 (9th Cir. 1981) (DUI on

Yosemite National Park with maximum penalty of

six months imprisonment and $500 fine is a

serious offense providing a right to a jury

trial); United States v.

Woods, 450 F. Supp. 1335 (D. Md. 1978) (DUI

on a national park with maxImum six months

imprisonment and $500 fine is a serious

offense); Baker v. City of Fairbanks, 471

P.2d 386 (Alaska 1970) (analyzing a DUI

statute with a maximum penalty of $600 and

sixty days imprisonment and holding that a

jury trial is provided for any criminal

offense, regardless of potential prison

sentence, under the Alaska Constitution).

These cases review DUI statutes with

constitutional requirements, legislative

histories, and penalties different than

Hawai‘i‘'s. Furthermore, the cited federal

cases are pre-Blanton, and therefore, have

been implicitly overruled.

Appellants also claim that the

legislature’s stated intent in Act 128 is

"constitutionally suspect" because it

conflicts with the intent set forth in Act

RMS ST Sep PP SMe NC OT NE eH

188, 1990 Haw. Sess. Laws 399 *® The

preamble to Act 188 explained that “the

legislature finds that driving under the

influence of alcohol poses a very real and

serious danger to the safety and welfare of

the people of this State and requires

stronger measures to ensure that people who

drink do not drive and that those who do are

” Act 188 promulgated the Administrative

Driver’ s-License Revocation Law, HRS, chapter 286.

See generally Kernan v. Tanaka, 75 Haw. 1, 856

ee Be (1993) (describing program for

administrative procedures to revoke driver’s

license for DUI offenses and holding that the

program is constitutional), cert denied, _—*U'.S.

, 114 S. Ct. 1070 (1994). Act 188 also amended

ARS §§ 291-4, 291-4.5, and 321-161. Act 188, 1990

Haw. Sess. Laws at 399-413.

45 j

~ taken off the road promptly." Act 188, 1990

Haw. Sess. Laws at 399. We are not persuaded

by appellants’ reference to Act 188 because

the intent set forth in Act 128, at issue

here, is clear. The 1993 Legislature

specifically passed Act 128 in response to

Jordan and the overwhelming backlog of cases

burdening the judiciary. Moreover, Act 188

has no bearing on the legislative mandate

expressed in Act 128, nor does it distinguish

the "real and serious dangers" posed by

repeat offenders as does Act 128.

In respcnse to appellants’ arguments, the

prosecution points out that HRS § 806-60

(1985) specifically defines “serious crime"

in a jury trial context to mean "any crime

for which the defendant may be imprisoned for

six months or more." HRS § 806-60. Given

the statutory definition, the prosecution

argues that there is no right to a jury trial

under HRS § 291-4 because the maximum term of

imprisonment is six months regardless of the

number of repeat offenses (and that therefore

Jordan and O’Brien were wrongly decided).

However, the definition does not apply in the

current context.

HRS § 806-60 provides:

Jury of twelve required. Any

defendant charged with a serious

crime shall have the right to trial

by a jury of twelve members. "Serious

crime" means any crime for which the

defendant may be imprisoned for six

months or more.

Section 806-60 was promulgated "to

conform the Hawaii Revised Statutes to the

Hawaii State Constitution as amended by the

constitutional convention of 1978." Act 89,

1979 Haw. Sess. Laws 173. Thus, section 806

codifies article I, § 14, of the Hawai‘i

Constitution. Article I, § 14 states in

pertinent part:

In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial by an

impartial jury .... Juries, where the

crim har i eri hal

consist of twelve persons.

(Emphasis added). The emphasized provision

was added during the 1978 Constitutional

Convention in response to Williams v.

Florida, 399 U.S. 78 (1970) (upholding a

Florida law providing for a six-person jury

in a non-capital criminal case).**® See

Committee of the Whole Debates, reprinted in

2 Proceedings of the COmst SeUyAenes

Convention of Hawai‘i of 1978 [hereinafter

Proceedings] at 679-84.

When adding the new provision, the

constitutional convention delegates were not

addressing the serious versus petty

distinction at issue in this case. They were

merely focusing on the number of members on a

jury; the right to a jury trial itself was

presumed to exist. For example, when

Delegate Penebacker introduced the relevant

motion, he stated:

The concept of the 12-person jury is

an integral part of our judicial

sc Williams overruled Thompson v. Utah, 170 U.S.

343° (1898), wherein the Supreme Court held that

the sixth amendment requires a jury of twelve

persons and is applicable te the states by the

fourteenth amendment.

Virani

cB a es oe

system.... Reducing the number of

2 jurors in serious criminal cases will

= | have an adverse effect on the purpose

. for which a jury is required by our

judicial system.... The fewer the

jurors, the more likely that these

cases will be tried on the streets

and the media. We must protect

against this. The 12-Person jury in

serious criminal cases would do much

to insure that minority opinions are

heard and that the detrimental

effects of community outrage are

tempered by calm deliberation.

2 Proceedings at 679-80 (emphasis added).

Delegate DiBianco echoed the rationale:

Some states have had occasion in

very recent years . . . to change

the number [of jurorsl. ...HI

don’t want to see us run the risk

of having that kind of thing

happen in Hawaii. .

Certainly, at least for serious

cases, we should ~o ~O with the

12-1Person] and we should have

the protection in the

Constitution. ... [W]hen you’re

concerned with a serious felony,

I think every defendant should

feel safe in the knowledge that

his Constitution mandates that he

will have a 12-[person] jury, and

neither our legislature, our

judges, nor anybody else can

tamper with it.

Id. at 682. There was no mention of the

serious/petty distinction that would

determine the right to a jury trial. On the

5 ERR 28 Cae re aa ipoat.*, io er ana WN eth he ate - <> *, , ee te >< se ns - “eee rae as Ee

- 4 af iE a a an aa : SEA OPE Se ay : aire iets ? rial ‘ p34 er eee eri an Aiea ates

e Si. 5 iN ater S. i ae a a ae al Ee lO Es Rte ei ial TREE OEE Pag te Ee Aa A St ata

? ; j . ‘ q pa r mas : fi v

contrary, jury trials for a class of

"non-serious" crimes were contemplated, but

only in the context of fewer members on the

jury. As Delegate Penebacker explained:

The absolute right to a 12-person jury

is unnecessary in some situations

because the potential penalty may [not]

be severe or create a great likelihood

that justice may be miscarried. It is

important to allow for economic and

efficiency considerations in these

situations since they might not affect

a fair or impartial trial. Thus, a

more just.

Id. at 680 (emphasis added) . In further

support of our conclusion that "serious," as

used in HRS § 806-60 and in article I, § 14,

does not refer to the serious/petty

distinction at issue in the instant case, we

note that the language of article I, § 14

essentially tracks the language of the sixth

amendment of the United States Constitution

but that article I, § 14 additionally

provides that "[j]uries, where the crime

charged is serious, shall consist of twelve

persons." (Emphasis added.) Despite the

absence of any reference to “serious" crimes

under the sixth amendment, the serious/petty

distinction, in the context of the right to

jury trial, exists because of the practice at

common law.

So-called petty offenses were tcied

without juries both in England and in

the Colonies and have always been

Vv h

vi ‘

There is no substantial evidence that

the Framers intended to depart from

this established common-law practice,

and the possible consequences to

defendants from convictions for petty

offenses have been thought

insufficient to outweigh the benefits

to efficient law enforcement and

simplified judicial administration

resulting fram the availability of

speedy and inexpensive nonjury

adjudications.

Duncan v. Lousiana, 391 U.S. at 160 (emphasis

added).

In sum, applying the three-part test from

Wilson, we now hold that a charge of

first-offense DUI under HRS § 291-4, as

amended by ACt 128, is constitutionally

petty. The distinction between first and

repeat offenders in Act 128’s legislative

history is critical, and the maximum mix of

statutory penalties does not compel a

different result.*° Being a

constitutionally petty offense, no right to a

jury trial attaches to first-offense DUI.

Therefore, we now specifically limit QO’ Brien

to its facts and Jordan to repeat DUI

offenses; to the extent the holding of Jordan

grants the right to a jury trial for

first-offense DUI, we specifically overrule

it. Given the current legislative view of the

seriousness of repeat offenses and the mix of

potential penalties, however, repeat offenses

remain constitutionally serious.

Accordingly, we answer the first reserved

question in the affirmative.

= We note that the first prong of the test --

treatment of the offense at common law -- is

inapplicable in analyzing first offense DUI. To

the extent oe relied on an analogy to common

law reckless riving, we no longer deem the

analogy to be controlling. Cf. United States v.

Woods, 450 F. Supp. at 1345 (*The ourt is unaware

whether [DUI] was indictable at comman law. . :

Nevertheless, the Court believes that this

inquiry, even if it could be pursued to an

accurate conclusion, is irrelevant to the instant

action [whether there is a right to a jury trial

for DUI)"™).

D. 2p Iv

If the amendments to the sentencing

provisions of HRS [§] 291-4 provided in

Act 128, Session Laws of Hawai‘i,

Regular Session of 1993, effective May

21, 1993, do eliminate the right to

jury trial, whether the deprivation of

such a right may be applied

retrospectively to alleged offenses

occurring prior to the enactment of the

Act.

HRS § 1-3 (1985) provides that "[nJo law

has any retrospective operation, unless

° rw vi i .™

(Emphasis added.) As noted previously,

section 5 of Act 128 provides that it takes

effect upon approval, “provided

that [the reduced penalties] shall be

retroactive for all pending first-offense

cases for [DUI]." 1993 Haw. Sess. Laws at

181. Therefore, for purposes of HRS § 1-3,

HRS § 291-4, as amended by Act 128, clearly

applies retroactively to pending cases.

Appellants, however, challenge the

constitutionality of the retroactive

application of ERS § 291-4, as amended.

Appellants argue that to retroactively apply

Act 128 would deprive them of a vested

fundamental right to a jury trial in

violation of the ex post facto clause of the

United States Constitution™ and violates

due process. The prosecution, on the other

hand, argues that because Act 128 transforms

a first- offense DUI under HRS § 291-4 into a

constitutionally petty offense, the

appellants’ argument against retroactive

application is frivolous. The prosecution

essentially argues that no right has been

taken away; rather, the crime is different

because the penalties under the amended §

291-4 are lesser, and therefore, the

corresponding right is different.

The burden is on the appellants to show

that Act 128 is a plain, clear, manifest, and

unmistakable violation of the ex post facto

clause of the United States Constitution and

as There is no ex Fost facto clause in the Hawai’i

Constitution and, thus, appellants’ arguments for

a broader reading on state law grounds are

misplaced.

due process. We therefore address each

alleged violation in turn to determine

whether appellants have met their burden.

1. The Ex Post Facto Clause

The ex post facto clause of the United

States Constitution provides that "[n]Jo state

shall .. . pass any .. . ex post facto

law." 0.8. Coast. ext. I, $ 10, el. .1. The

clause prohibits states from enacting

retrospective penal legislation.

In Collins v. Youngblood, 497 U.S.

37 (1990), the United States Supreme Court

was presented with the question “whether the

application of a Texas statute, which was

passed after respondent’s crime and which

allowed the reformation of an improper jury

vexdict in respondent’s case, violate[d] the

Ex Post Facto Clause of Art. I, § 10." *

= Respondent was convicted of aggravated sexual

abuse, sentenced to life imprisonment, and fined

$10,000. In his subsequent state petition for a

writ of habeas corpus, Respondent argued that the

Texas Code of Criminal Procedure did not authorize

both a fine and a term of imprisonment for his

offense, and thus, he was entitled to a new trial.

Before the writ was decided, a new Texas statute

was passed allowing an appellate court to reform

se Se

Id. at 39. In summarizing the meaning of the

ex post facto clause, the Court stated:

"It is settled, by decisions of

this Court so well known that

their citation may be dispensed

with, that any statute [(1)] which

punishes as a crime an act

previously committed, which was

innocent when done[, (2)] which

makes more burdensome the

punishment for a crime, after its

commission, or [(3)] which

deprives one charged with la]

crime of any defense available

according to law at the time when

the act was committed, is

probibited as ex post facto."

Id, at 42 (quoting Beazell_v. Ohio, 269 U.S.

an improper verdict assessing a punishment not

authorized by law. Relying on the new statute,

the Court of Criminal Appeals, which has the

exclusive power under Texas law to grant writs of

habeas corpus, reformed the verdict by ordering

deletion of the $10,000 fine and denied his

request for a new trial.

Arguing that retroactive application of the new

Texas statute violated the ex post facto clause of

the United States Constitution, Respondent filed a

federal writ of habeas corpus, which was denied by

the district court but entertained by the court of

appeals. The court of appeals, relying on Thompson

vi. Utah, 170 U.S. 343 (1898), reversed, holding that

retroactive procedural statutes violate the ex post

facto clause unless they “leave untouched all of the

substantial protections with which existing law

Surrounds the person accused of the crime." Id. at

352. The court held that Respondent’s right to a new

trial was such a “substantial protection." The

United States Supreme Court granted certiorari to

review the granting of the writ.

167, 169-70 (1925)). "The Beazell

formulation is faithful to our best knowledge

of the original understanding of the Ex Post

Facto Clause: Legislatures may not

retroactively alter the definition of crimes

or _ increase the punishment for criminal

acts." Id. (emphasis added); see also State

v. Von Geldern, 64 Haw. 210, 212, 638 P.2d

319, 321 (1981) ("no new punitive measure may

be applied to a crime already consummated.

Such legislation would be [an] ex post

facto law").

Act 128 passes this constitutional

test. The Act reduces, not increases,

possible punishment. It reduces the

maximum sentence from thirty to five days and

eliminates a provision for an ignition

interlock system. In Von Geldern, this court

held that an amendment to a sentencing

statute (HRS § 707-606.5), which allowed a

judge to consider mitigating circumstances

and possibly reduce a mandatory minimum

sentence, applied retrospectively because the

provisions were ameliorative and remedial.

Id. at 216, 638 P.2d at 324. The Von Geldern

court remanded for resentencing, ruling that

because the ameliorative provisions were not

"detrimental nor materially SAAGURORAGIONS, ©

the law was not ex post facto. Id. at 213,

638 P.2d at 322. Thus, retroactive

application of HRS § 291-4, as amended by Act

128, is clearly not prohibited.

Appellants, however, relying on

Thompson v. Utah, 170 U.S. 343 (1898), argue

that “the prohibition against [e]x [p]Jost

[f)acto legislation should bar the

divestiture of the right to trial by jury."

The United States Supreme Court, in Thompson,

held that a Utah law, reducing a criminal

jury size from twelve to eight, deprived a

defendant of “a substantial right involved in

his liberty," thus violating the ex post

facto clause. Collins, 497 U.S. at 47

(quoting Thompson, 170 U.S. at 352). Thompson

and other Supreme Court cases have held that

procedural changes could constitute ex post

facto violations if they “affect matters of

substance," deprive defendants of

"substantial protections with which the

existing law surrounds the person accused of

crime," or arbitratily infringed upon

“substantial personal rights." Collins, 497

U.S. at 45 (citations omitted). The Supreme

Court, in Collins, acknowledged that "this

language . . . has imported confusion into

the interpretation of the Ex Post Facto

Clause. " Id. at 45. The Court, therefore,

specifically overruled Thompson, commnenting

as follows:

The right to jury trial provided

by the Sixth Amendment is

obviously a "substantial" one, but

it is not a right that has

anything to do with definition of

i n . n nts,

which is the concern of the Ex

Post Facto Clause. To the extent

that Thompson v. Utah rested on

the Ex Post Facto Clause and not

the Sixth Amendment, we overrule

4t.

Id. at 51-52 (footnote omitted) (emphasis

added).

Here, the retroactive application of

Act 128, in the context of an ex post facto

analysis, affects only the procedural

determination of whether appellants will be

tried by a judge or jury; their right to

affair and impartial trial has not been

compromised or divested in any way. We fail

to see any substantial prejudice which would

result to appellants from the retrospective

application of a non-jury trial. Thus, we

conclude that retrospectively applying Act

128 does not violate the ex post facto clause

of the United States Constitution.

2. Due Process

Appellants next argue that depriving

them of a vested substantive and fundamental

right violates due process. Under the rubric

of “due process," appellants blend the

arguments that changes to substantive rights

may not be applied retroactively and

retroactive application is fundamentally

unfair.

a. Retroactive Application of Changes to

Substantive Right

Appellants cite cases from other

jurisdictions holding that the right to a

jury trial is a substantive right. See State

v. Chapman, 15 Ran. App. 2d 643, 814 P.2d 449

(1991); and Bertolino v. Industrial Comm’n of

Ohio, 43 Ohio St. 3d 44, 538 N.E.2d 1040,

reh’g denied, 44 Ohio St. 3d 706, 541 N.E.2d

626 (1989). However, unlike the cases before

us, we note that both cases dealt with

statutory (not constitutional) grants of jury

trials.

In Chapman, the defendant faced a

speeding charge. Although a jury trial fora

traffic offense was not guaranteed by

the Kansas Constitution, a state statute

granted the defendant that right. Chapman,

15 Kan. App. 2d at 644, 814 P.2d at 450.

While the action was pending, the legislature

amended the statute to eliminate the jury

trial right. The Ransas appellate court

held:

We believe [defendant] hada

substantive right to a jury trial

under a previously existing state

law. Although this right could be

modified, the repeal of the law

which conferred the right should

not have a retroactive effect so

as to deprive [defendant] of the

Jury trial to which he was

entitled.

lt is difficult to conceive

of a more fundamental right than

an accused’s right to a jury

trial. In the absence of clear

statutory language to the

contrary, we believe the

legislature intended the statutory

changes, discussed here, to

operate prospectively only, and

not retroactively.

Id. at 646-47, 814 P.2d at 451 (emphasis

added). In the instant case, however, there

is "clear statutory language to the

contrary." As noted previously, Act 128

provides that "(t]he amended penalty

provisions for first time offenders shall be

retroactive for all pending first time

offense cases for [DUI]." 1993 Haw. Sess.

Laws at 180.

Similarly, in Bertolino, a party had a

Statutory right to have a jury determine

damages for an intentional tort. Bertolino,

43 Ohio St. 3d at 44, 538 N.E.2d at 1040.

While appellant’s case was pending, the

legislature amended the statute, eliminating

the jury trial right. The Ohio Supreme Court

held that because the right to a jury trial

is substantive, it couId be applied

prospectively only (regardless of legislative

intent). Bertolino, 43 Ohio. St. 3d at 46,

538 N.E.2d at 1042. However, the court in

Bertolino relied on a ban against

retroactivity grounded in Ohio’s Constitution

itself. See Ohio Const. art 2, § 28 ("The

general assembly shall have no power to pass

retroactive laws[.]"). Hawai‘i’s Constitution

has no such provision. Rather, as noted

previously, Hawai‘i law provides, by statute,

that "Injo law has any retrospective

operation, unless otherwise expressed or

obviously intended." HRS § 1-3 (emphasis

added). The intent of the legislature that

HRS § 291-4, as amended, have retroactive

application is clearly set forth in Act

126 .*

b. Fundamen EF

R Vv n

Appellants also argue that retroactive

application of court decisions is

fundamentally unfair, citing State v.

Ikezawa, 75 Haw. 210, 857 P.2d 593 (1993).

Ikezawa was originally charged with

third-degree assault, which was dismissed

without prejudice. Fourteen months later,

based on the same incident, Ikezawa was

charged with second degree assault. Prior to

trial, Ikezawa moved to dismiss on the ground

that the six-month period within which trial

must commence under Hawai‘i Rule of Penal

Procedure (HRPP) 48(b)(1) had lapsed. The

court denied the motion, and Ikezawa was

” Appellants also cite a of Sone —-

v. Michelson, 104 Wis , Ww.

(1981). Michelson, however, also involved a

Statutory grant of a jury trial. Id. at 141, 311

N.W.2d at 663.

subsequently convicted of the lesser included

offense of assault in the third degree.

Ikezawa appealed the court’s denial of his

Rule 48 motion.

The issue on appeal involved the

retroactive application of our decision in

State v. Balauro, 73 Haw. 701, 828 P.2d 267

(1992), which had been decided subsequent to

Ikezawa’s trial. Balauro had departed from

previous precedent by interpreting HRPP

48(c) (6) to exclude certain periods of time

from the six-month period within which a

trial is required. 73 Haw. at 73, 828 P.2d

at 268-69. In Ikezawa, this court held that

where substantial prejudice results from

retrospective application of a new decision,

it would be applied prospectively only. 75

Haw. at 220-21, 857 P.2d at 599.

In Ikezawa, we reasoned that

"It)he Constitution neither prohibits nor

requires retrospective effect. .. . Free to

apply decisions with or without

retroactivity, the Court’s task is to

exercise its discretion, weighing the merits

and demerits of retroactive application of

the particular rule." Id. at 220, 857 P.2d at

598 (citing State v. Santiago, 53 Haw. 254,

268, 492 P.2d 657, 665 (1971)).

The Ikezawa court recognized the

need to consider different factors in

determining whether to apply a decision

retroactively. We noted that the United

States Supreme Court “has given consideration

to three factors: (a) the purpose to be

served by the newly announced rule[;] (b) the

extent of reliance by law enforcement

authorities on the old standardst;] and (c)

the effect on the administration of justice

of a retroactive application of the new

standards." Id. (citing Santiago, 53 Haw. at

268-69, 492 P.2d at 665-66). We stated that,

alternatively, "’ [fJactors to be considered

include: Prior history of the rule in

question, its purpose and effect, and whether

retroactive operation will further or retard

its operation; interests in the

administration of justice and the integrity

of the judicial process.’" Id, (citing

Russell v., Blackwell, 53 Haw. 274, S97,

= 492 P.2d 953, 956 (1972)). We emphasized that

implicit in these factors is the concept of

fairness. Id,

Relying on the selective-retroactive

doctrine set forth in Santiago and Russell,

the court in Ikezawa declined to

retrospectively apply its holding in Balauro,

applying instead case law applicable prior to

Ikezawa’s trial. The selective retroactive

doctrine in Santiago and Russell was based on

United States Supreme Court authority from

the 1960s enunciated in, among other cases,

Linkletter v. Walker, 381 U.S. 618 (1965);

Johnson v. New Jersey, 384 U.S. 719 (1966);

and Stovall _v. Denno, 388 U.S. 293 (1967).

See generally R. Fallon & D. Meltzer, New

Law, Non-Retr ivi nd nstitutional

Remedies, 104 Harv. L. Rev. 1731 (1991).

Under this Goctrine, = coust “couse. aay __—_

retroactive effect to a newly announced rule

of criminal law" based upon factors such as

"the purpose of the new rule, the reliance

placed upon the previous view of the law, and

the effect on the administration of justice

of a retrospective application of the new

rule." Harper v. Virginia Dept. of Taxation,

___ —~-U.S. __, 113 S. Ct. 2510, 2516 (1993)

(citations omitted) (internal quotation marks

omitted).

The United States Supreme Court,

however, has overruled its previous

precedents in the non-retroactivity area and

now applies retroactively all its new

criminal decisions whose holdings are applied

to the appealing party. In Harper, the

Supreme Court recently confirmed that it

“overruled Linkletter in Griffith v.

Kentucky, 479 U.S. 314 (1987), and eliminated

limits on retroactivity in the criminal

context by holding that all newly declared

~ rukefs] must be applied retroactively to

all criminal cases pending on direct review."

Harper, _—s«~*vu.S. at __—_—si_, -'113 S. Cth. at 2516

(citation omitted) (internal quotation marks

omitted).** See also United States v.

Johnson, 457 U.S. 537, 545-48 (1981) and

Powell v. Nevada, 0.8. roe ot ee wae.

1280 (1994).

We acknowledge that this recent

United States Supreme Court case law, by

overruling the doctrinal foundation of

Hawai‘i case law, could call into question

our continued adherence to Ikezawa. However,

relying on independent state law grounds, we

choose to continue to follow the more

flexible test we reiterated in lkezawa when

determining whether to retroactively apply

” Under federal law, a similar rule also now

applies in the civil context.- aa overruled

Chevron Oil Co. v. Huson, 404 U.S. (1991) and

applied a civi ecision retroactively. Harper,

U.S. at Pgh ee om F Ct. at 2518 (citing

James B. Beam Distillina Co. v. Georgia, 501 U.S.

529, Pe > ie i ee OS 2446 T551)).

decisions of state law made by this court.

In Ikezawa, we held that the defendant

was substantially prejudiced by his reliance

on previous precedent because the success of

defendant’s motion to dismiss turned on

whether the Balauro case would be given

retroactive effect. Ikezawa, 75 Haw. at 222,

857 P.2d at 599. Thus, the retroactivity

question was outcome-determinative. Here,

appellants have failed to show how they would

be substantially prejudiced by the

retroactive application of Act 128. The

appellants would receive an impartial trial,

albeit a non-jury trial, and would face

lesser penalties under the new version of HRS

§ 291-4. As the Supreme Court stated in

Duncan:

We would not assert, however, that

every criminal trial -- or any

paricular trial -- held before

ajudge alone is unfair or that a

defendant may never be as fairly

treated by ajudge as he would be

by ajury. Thus we hold no

nstitutional ub about th

Practices, common in both federal

and state courts, of ....

prosecuting petty crimes without

extendng a right tojury trial.

Duncan, 391 U.S. at 158 (emphasis added).

Unlike Ikezawa, retroactive application of

Act 128 would not be outcome-determinative.

Therefore, we hold that retroactive

application of today’s decision to pending

cases passes the test enunciated in Ikezawa.

Accordingly, we answer the second reserved

question in the affirmative.

C. Equal Protection and Separation

of Powers

The trial court made a finding that

some DUI defendants, charged after appellants

were charged, have already had jury trials.

Thus, appellants claim they have been treated

differently than similarly situated

individuals in violation of their equal

protection rights under both the United

States and Hawai’i constitutions.

When a denial of equal protection of

the laws is alleged, the initial inquiry is

whether the legislation is subjected to a

"strict scrutiny" or a “rational basis" test.

Baehr v. Lewin, 74 Haw. 530, 571, 8S2 P.2d

44, 63, reconsidera- tion and clarification

granted in part, 74 Haw. 645, 852 P.2d 74

(1993). If either a suspect class or

fundamental right is involved, the court

applies a strict scrutiny analysis. Id.

Otherwise, the rational basis standard

traditionally applies, that is, whether the

statute has a rational relationship to a

legitimate government interest. Id. at 572,

852 P.2d at 64.

Act 128 does not divest the

appellants of a constitutional right to trial

by jury because that right never applied to

"petty offenses." In enacting the statute,

the legislature merely clarified its original

view that first-time DUI offenses are

constitutionally petty. Therefore, no

fundamental constitutional right being

implicated, the court applies a rational

basis standard of review.

Act 128 passes a rational-basis review.

The purpose of the reduction in penalties is

to make clear that first-offense DUI is

constitutionally petty. The state interest

is to allow non-jury trials for first-offense

DUI charges and, therefore, "“allevrate the

current backlog that is overwhelming the

judicial system, and. . . allow for timely

adjudication of repeat offenders who pose the

greatest risk to the community and public

safety." Sen. Stand. Comm. Rep. No. 1107, in

1993 Senate Journal, at 1177. Thus, we hold

that the state interest is legitimate and the

Act is rationally related to the interest.

See Meyer v. Jones, 106 N.M. 708, 713, 749

P.2d 93, 98 (1988) (right of jury trial for

DUI in “magistrate court" while no right in

“metropolitan court™ in same state not an

equal protection violation).

Moreover, if the court does not

apply Act 128 retroactively, defendants

charged after enactment of the Act could

argue that they are being denied equal

protection. If we were to subscribe to the

selective-retroactive application theory

proffered by the appellants, those charged

after Act 128 would have nonjury trials while

those charged before would be entitled to

jury trials although all would face the same

reduced penalties. Indeed, this is one tenet

relied on by the United States Supreme Court

in Griffith, in deciding to apply all new

criminal decisions retroactively. See

Griffith, 479 U.S. at 322-23 ("[s]Jelective

application of new rules violates the

principle of treating similarly situated

defendants the same. .. . [T]he problem with

not applying new rules to cases pending on

direct review is ‘the actual inequity that

results when the Court chooses which of many

similarly situated defendants should be the

chance beneficiary’ of a new rule." (Citation

omitted) (Emphasis in original)).

Lastly, appellants raise a

separation of powers argument. They argue

that the legislature cannot usurp the

judicial branch’s power by denying jury

trials to first-time DUI offenders. This

argument plainly fails because Act 128 itself

does not eliminate the jury trial right; this

court’s interpretation of Act 128 determines

whether, as a matter of constitutional law, a

defendant must be given the right to a jury

trial. Because the legislature does not

answer this question for the court, we find

no merit to appellants’ separation of powers

argument. As we indicated previously, the

legislature’s mere labeling of a criminal

offense as “petty"™ does not necessarily make

it so. It is the judicial branch that

independently determines whether such a label

is justified.

V. CONCLUSION

Based on the foregoing discussion,

we hold that a charge of first-offense DUI

under HRS § 291-4, as amended by Act 128, is

constitutionally petty and, therefore, no

right to jury trial attaches to first-offense

DUI. Conseguently, we overrule State v.

Jordan, 72 Haw. 597, 825 P.2d 1065 (1992), to

the extent that it deals with first-offense

DUI. We specifically limit Jordan to repeat

DUI offenses, which remain constitutionally

serious. Accordingly, we answer the first

reserved question in the affirmative.

We also hold that (1) the

retrospective application of HRS § 291-4, as

amended by Act 128 does not violate the ex

post facto clause of the United States

Constitution and, (2) retroactive application

of our decision today to pending

cases passes the test enunciated in State v.

Ikezawa, 75 Haw. 210, 857 P.2d 593 (1993).

We therefore answer the second reserved

question in the affirmative.

Having answered both reserved questions

affirmatively, we remand those cases which

are the subject of appeal No. 17317, that is,

Nakata, Lau, and Daoang for further

proceedings. We also deny Whittlngton’s

petition for writ of mandamus and/or

prohibition.

Paul J. Cunney (Arthur E.

Ross and Robert D. /s/ RR. Moon

Eheler, Jr., with him

on the briefs) for /s/ RR. Klein

defendants-appellants

Glenn Nakata and Alvin /s/ §&. Levinson

R. L. Lau in No. 17317

/s/ P. Nakayama

Theodore Y. H. Chinn,

Deputy Public Defender, /s/ ™M. Ramil

for defendant-appellant

Eddie Daoang in No. 17317

James M. Anderson, Deputy

Attorney General, for

plaintiff-appellee State

of Hawai’i in No. 17317

Stephen S. Michaels (Gerard D.

Lau, with. him on the amicus

brief), Deputies Attorney

General, for Amicus Curiae

Attorney General of Hawai'i

3m BO. ivsaar

Paul J. Cunney, Arthur E.

Ross and Robert D.

Eheler, Jr., on the writ

for petitioner Jon David

Whittington in No. 17228

Steven S. Michaels, Deputy

Attorney General, for

respondents in No. 17228

Appendix "B"

IN THE SUPREME COURT

OF THE STATE OF HAWAI ‘I

---o0o---

[Filed Aug. 18. 1994]

STATE OF HAWAI‘I, Plaintiff-Appellee,

v. GLENN NAKATA, Defendant-Appellant

(CR. NO. 90-1679)

STATE OF HAWAI‘I, Plaintiff-Appellee,

v. ALVIN K. L. LAU, Defendant-Appellant

(CR. NO. 90-1657)

STATE OF HAWAI‘I, Plaintiff-Appellee,

v. EDDIE DAOANG, Defendant-Appellant

(CR. NO. 90-1838)

NO. 17317

and

JON DAVID WHITTINGTON, Petitioner,

v. JAMES H. DANNENBERG, in his capacity as

Judge of the District Court of the First

Circuit, State of Hawai‘i, and all other

District Court Judges of the State of

Hawai‘i, STATE OF HAWAI‘I, the real party in

interest, Respondents

NO. 17228

MOTIONS FOR RECONSIDERATION

(CASE NOS. OF 5/4/93)

AUGUST 18, 1994

MOON, C.J., KLEIN, LEVINSON,

NAKAYAMA, AND RAMIL, JJ.

Having considered defendent-appellants Glenn

Nakata, Alvin K. L. Lau, and petitioner Jon

David Whittington’s motion for reconsideration,

filed on August 12, 1994, as well as defendant-

appellant Eddie Daoang’s motion for

reconsideration filed on August 12, 1994,

IT IS HEREBY ORDERED that both motions for

reconsideration are denied.

Arthur E. Ross for

defendants-appellants

Glenn Nakata and /s/ R. J. Moon

Alvin K. L. Lau in

No. 17317 and for

petitioner Jon David /s/ Robert Klein

Whittington in

No. 17228

/s/ Steven Levinson

Theodore Y. H. Chinn,

Deputy Public Defender,/s/ Paula Nakayama

for defendant-appellants

Eddie Daoang in

No. 17317 /s/ Mario R. Ramil

No. 17317 State v. Nakata -- Motion for

Reconsideration

IN THE SUPREME COURT OF THE STATE OF HAWAI ‘I

~--o0o4Ftled Aug. 18. 1994)

STATE OF HAWAI‘*I, Plaintiff-Appellee, v.

GLENN NAKATA,

Defendant-Appellant (CR. NO. 90-1679)

STATE OF HAWAI‘I, Plaintiff-Appellee, v.

ALVIN K. L. LAU,

Defendant-Appellant (CR. NO. 90-1657)

STATE OF HAWAI‘I, Plaintiff-Appellee, v.

EDDIE DAOANG,

Defendant-Appellant (CR. NO. 90-1838)

mo. Braat

and

JON DAVID WHITTINGTON, Petitioner, v.

JAMES H. DANNENBERG, in his capacity as Judge

of the District Court of the First Circuit,

State of Hawai‘i, and all other District

Court Judges of the State of Hawai'i,

STATE OF HAWAI‘I, the real party in interest,

Respondents

NO. 17228

ORDER OF AMENDMENT

(CASE NOS. OF 5/4/93)

AUGUST 18, 1994

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA,

AND RAMIL, JJ.

The opinion of the court, filed on August 2,

1994, is hereby amended as follows:

1. On page 29 of the opinion, the

parenthetical phrase following Baker v. City of

Fairbanks, 471 P.2d 386 (Alaska 1970), is

amended to read "(holding that a jury trial is

provided for any criminal offense, regardless

of potential prison sentence, under the Alaska

Constitution) ." The amendment deletes the

phrase "analyzing a DUI statute with a maximum

penalty of $600 and sixty days imprisonment

and."

2. On page 29 of the opinion, the sentence

following the reference to Baker is amended to

read: "These cases review constitutional

requirements, legislative histories, and

penalties different under Hawai‘i’s DUI

statute."

The Clerk of the Court is directed to

incorporate the foregoing changes in the

Original opinion.

/s/ R. J. Moon

/s/ Robert Klein

/s/ Steven Levinson

/s/ Paula Nakayama

/s/ Mario R. Ramil

Appendix "C"

NOS. 17317 and 17228

IN THE SUPREME COURT OF THE STATE OF HAWAII

S.C. NO, 17317: CR. No. 90-1679

STATE OF HAWAII

Plaintiff,

GLENN NAKATA,

Defendant.

STATE OF HAWAII, CR. No. 90-1657

Plaintiff,

Vv.

ALVIN K. L. LAU,

STATE OF HAWAII, CR. No. 90-1838

Plaintiff,

EDDIE DAOANG,

Defendant.

S.C. NO. 17228: CASE NOS. OF 05-04-93

)

Defendant. )

)

JON DAVID WHITTINGTON, )

é )

Petitioner, )

Vv. )

[caption continued on next page]

JAMES H. DANNENBERG,

In his capacity as

Judge of the District

Court of the First

Circuit, State of

Hawaii, and all

other District Court

Judges of the State of

Hawaii; STATE OF

HAWAII, the real party

in Interest,

[ORDER]

RR de

Respondents.

ORDER

Upon review of the record in State v.

Nakata, No. L73ii, and Whittington -.

Dannenberg, No. 17228, and it appearing the two

cases raise the same issues for consideration,

IT IS HEREBY ORDERED, that No. 17317 and

No. 17228 are consolidated for further

disposition under No. 17317. Any future

documents in Whittington v. Dannenberg, shall

be filed under the consolidated number.

DATED: Honolulu, Hawaii, October 12, 1993.

/s/ H. Lum

Associate Justice

Appendix "D"

RONALD G. JOHNSON, ESQ.

Deputy Prosecuting Attorney

PAUL J. CUNNEY, ESQ.

Attorney for Defendants

Nakaté and Lau [Filed July 30, 1993)

THEODORE Y. H. CHINN, ESQ.

Deputy Public Defender

Attorney for Defendant Daoang

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

STATE OF HAWAII CR. No. 90-1679

COUNTS I & II:

DRIVING UNDR THE

INFLUENCE OF

INTOXICATING LIQUOR

COUNT III:

FAILURE TO STOP AT A

STOP SIGN

COUNT IV:

DRIVING ON ROADWAYS

)

Plaintiff, )

)

) LANED FOR TRAFFIC

)

Vv.

GLENN NAKATA,

Defendant.

STATE OF HAWAII, CR. No. 90-1657

DRIVING UNDER THE

INFLUENCE OF

INTOXICATING LIQUOR

Plaintiff,

V «

ALVIN K. L. LAU,

Defendant.

[caption continued on next page]

STATE OF HAWAII, CR. No. 90-1838

COUNTS I & II:

DRIVING UNDER THE

INFLUENCE OF

INTOXICATING LIQUOR

COUNT III:

DISREGARDING A RED

TRAFFIC CONTROL SIGNAL

LEGEND

COUNT IV:

NON-COMPLIANCE WITH

SPEED LIMIT

Plaintiff,

Vv.

EDDIE DAOANG,

Defendant.

ORDER PRESERVING

QUESTIONS OF LAW

PURSUANT TO RULE 15 OF

THE HAWAII RULES OF

APPELLATE PROCEDURE;

EXHIBIT "A"

mm ee et eee eet eee

ORDER RESERVING QUESTIONS OF LAW PURSUANT TO

RULE 15 OF THE HAWAII RULES

F PELLATE PROCEDURE

This Court believes that there are

important and far reaching Constitutional

questions that have been presented in the

instant cases and it is appropriate, pursuant

to Rule 15 of the Hawaii Rules of Appellate

Procedure, to reserve them for consideration by

the Hawaii Appellate Courts. This Court hereby

reserves the questions presented in the above-

entitled cases, AS contained within its

findings filed July 30, 1993, and attached

hereto as Exhibit "A", for consideration by the

Hawaii Supreme Court.

Pursuant to Rule 15 of the Hawaii Rules

Of Appellate Procedure, this Court hereby

designates the entire record in the above-

entitled cases, including but not limited to,

the Circuit Court files and their full contents

under Criminal Number 90-1679, 90-1657, 930-

1838; the minutes of the Court with respect to

the above-referenced cases, the reporter’s

transcripts of the proceedings, all exhibits

entered and documents filed in the instant

cases, as the record for the findings and

reserved questions attached hereto as Exhibit

“a «

This Court directs the Clerk of the

Circuit Court of the First Circuit, State of

Hawaii, to transmit the above-referenced

record, including this Order, to the Clerk of

the Supreme Court, State of Hawaii.

DATED: Honolulu, Hawaii, July, 30, 1993.

/s/__Dexter D. Del Rosario

THE HONORABLE DEXTER D. DEL ROSARIO

Judge of the above-entitled Court

APPROVED AS TO FORM:

/s/_ Ronald G. Johnson

RONALD G. JOHNSON

Prosecuting Attorney

State of Hawaii

APPROVED AS TO FORM:

PAUL J. CUNNEY, ESQ.

Attorney for Defendants

Glenn Nakata and

Alvin K.L. Lau

APPROVED AS TO FORM:

' inn

THEODORE Y.H. CHINN

Deputy Public Defender

Attorney for Defendant

Eddie Daoang

RONALD G. JOHNSON, ESQ.

Deputy Prosecuting Attorney

PAUL J. CUNNEY, ESQ.

. Attorney for Defendants

Nakata and Lau [Filed July 30, 1993)

THEODORE yY. H. CHINN, ESQ.

Deputy Public Defender

Attorney for Defendant Daoang

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

STATE OF HAWAII CR. No. 90-1679

COUNTS I & II:

DRIVING UNDR THE

INFLUENCE OF

INTOXICATING LIQUOR

COUNT III:

FAILURE TO STOP AT A

STOP SIGN

COUNT IV:

DRIVING ON ROADWAYS

)

Plaintiff, )

)

) LANED FOR TRAFFIC

)

GLENN NAKATA,

Defendant.

STATE OF HAWAII, CR. No. 90-1657

DRIVING UNDER THE

INFLUENCE OF

INTOXICATING LIQUOR

Plaintiff,

ALVIN K. L. LAU,

Defendant.

)

[caption continued on next page]

EXHIBIT "A"

STATE OF HAWAII, CR. No. 90-1838

COUNTS I & II:

DRIVING UNDER THE

INFLUENCE OF

INTOXICATING LIQUOR

COUNT III:

DISREGARDING A RED

TRAFFIC CONTROL SIGNAL

LEGEND

COUNT IV:

NON-COMPLIANCE WITH

SPEED LIMIT

Plaintiff,

Vv.

EDDIE DAOANG,

Defendant.

FINDINGS OF FACT AND

RESERVED QUESTIONS

OF LAW

mee me ee ee ee ee ee ee ee eee eee

FINDINGS OF FACT

AND _ RESERVED QUESTIONS OF LAW

The State of Hawaii, having filed a Motion

to Remand Case to the District Court of the

First Circuit for Trial on the Merits, the

motion having come on for hearing on July 29,

1993, before the Honorable Dexter D. Del

Rosario, Judge of the above-entitled Court, and

the Court having accepted the stipulations of

the parties, having heard the argument of

counsel, and being fully advised in the

premises, makes the following findings:

FINDIN OF FACT

yi That Glenn Nakata, Alvin K. L. Law,

and Eddie Daoang (hereinafter "Defendants") are

all charged with a first offense of Driving

Under the Influence of Liquor (hereinafter

"DUI"), in violation of Section 291-4 of the

Hawaii Revised Statutes (hereinafter "HRS").

zs The instant cases are currently

pending jury trial in the Circuit Court of the

First Circuit.

a. A Motion to Remand Case to the

District Court of the First Circuit for Trial

on the Merits was filed in each of the above-

entitled cases by the Honolulu City

Prosecutor’s office on behalf of the State of

Hawaii (hereinafter "the State").

4. The Court took judicial notice of

all the records and files docketed with the

Circuit Court in Criminal Numbers 90-1679, 90-

1657, and 90-1838.

9S. The Court took judicial notice of

Hawaii Rules of Penal Procedure, Rule 5 (b) (4),

HRS 602-5(2), and Hawaii Rules of Appellate

Procedure, Rule 15.

6. The Court took judicial notice that

HRS 291-4 was amended by the legislature so

that the maximum period of incarceration for

first-time offenders is five (5) days. (House

Bill 747, Act 128). The amendment became

effect May 21, 1993.

Ve The Court took judicial notice that

jury trials had occurred after May 21, 1993, in

the Circuit Court of the First Circuit, for DUI

cases which had been pending prior to that

date.

8. The Court took judicial notice that,

pursuant to State v. Leatiota, 69 Haw. 253

(1987), DUI traffice offense and Rule 48,

Hawaii Rules of Penal Procedure, does not apply

to DUI cases.

9. The Court took judicial notice that

specific traffic offenders must comply with the

financial responsibility requirements under the

Motor Vehicle Safety Responsibility Act, HRS

287-20.

10. The Court took judicial notice that

the traffic offenses which trigger a financial

responsibility requirement under HRS 287-20

include: reckless driving, inattention to

driving, driving while under the influence of

drugs, driving while under the influence of

intoxicating liquor, conviction of a moving

offense while at fault in a major motor vehicle

accident, and conviction of a No-Fault

insurance offense.

11. The Court took judicial notice that

some DUI cases with a date of offense after the

instant cases have completed jury trials.

12. The Court took judicial notice that

a person convicted under HRS 291-4 may be

required to perform up to 72 hours of community

service.

13. The Court took judicial notice that

prior to the May 21, 1993, amendment to HRS

291-4, the sentencing scheme of HRS 291-4

required installation of an ignition interlock

system; such sentencing scheme was. neve

implemented, and the May 21, 1993, amendment to

HRS 291-4 removed said requirements for an

ignition interlock device.

14. Pursuant to State’s Exhibits 1(a),

l(b) and l(c) (hereinafter “"State’s Exhibit

1"), the parties stipulate that a person

convicted under HRS 291-4 who elects a blood

test may bear the cost of such test.

15. Pursuant to State’s Exhibit 1, the

parties stipulate that a defendant who hires a

private defense attorney bears such cost.

16. Pursuant to State’s Exhibit 1, if

called to testify, Gwen Ha, a representative of

the Criminal Assignments division of the

Circuit Court, would testify as follows:

a. There are currently three

thousand three hundred and seventy-five DUI

cases pending jury trial.

b. One Circuit Court courtroom is

primarily responsible for hearing DUI jury

trials.

CG. DUI jury trials are calendared

chronologically, with the earliest offense

dates being called to trial first.

d. Circuit Court dockets and

assigns the trial week for all DUI jury trials.

e. The State does not decide which

DUI jury trial is called for trial.

17. Pursuant to State’s Exhibit 1, if

called to testify, Steven Alm, Misdemeanor

Prosecution Director, would testify as follows:

a. The current policy of the State

in a DUI case is to dismiss the related traffic

charges in exchange for a guilty plea to the

DUI.

b. A DUI offense is rarely plea-

bargained to a lesser charge due to the

enhanced sentencing scheme provided in HRS 291-

4 for repeat offenders.

18. Pursuant to the State’s Exhibit l,

if called to testify, Mona McNamara, a section

Supervisor with the State Department of

Finance, would testify as follows:

a. Ms. McNamara is responsible for

the enforcement of the Motor Vehicle Safety

Responsibility Act and its financial

responsibility provisions.

b. There are four ways to post proof

of financial responsibility: (1) proof of

insurance via Form SR-22, (2) posting a bond in

accordance with the Act, (3) depositing money

Or securities in the amount of twenty-five

thousand dollars, or (4) submitting a self-

insurance certification under HRS 287-22.

Gq. Approximately 65% of the

individuals who comply with the Act do so by

way of an SR-22, as opposed to posting a bond.

d. The financial responsibility

requirement remains in effect for three years

from date of conviction.

e. The money or securities posted

are refundable after the three-year period if

no lawsuits occur during that period.

Failure to post proof of

financial responsibility results in a driver’s

license suspension for three years, or until

compliance.

g. The Department of Finance does

not control the cost that insurance companies

charge individuals for posting an SR-22.

h. Proof of financial

responsibility, or posting of an SR-22, is also

required for driver’s license revocation under

HRS 286-14.

19. Pursuant to State’s Exhibit : Pe |

called to testify, Shelly Santos, a

representative from the Hawaii Insurance

Commissioner’s Office, would testify as

follows:

a. The last study conducted on DUI

insurance rates was in 1990.

b. The Hawaii Insurance Commission

currently utilizes this study.

oe. According to the 1990 study, the

average insurance rate for a 1990 Toyota Camry

for a driver with a clear traffic abstract is

approximately $1,086.00 per year; the same

coverage for a person convicted of a DUI costs

$7,913.00 a year. A 1986 Ford Tempo GL costs

$962.00 annually to insure with a clear traffic

abstract and $7,131.00 with a DUI conviction.

A 1990 BMWO0325 costs $1,798.00 annually to

insure with a clear traffic abstract and

$14,413.00 with a DUI conviction.

d. Insurance companies are _ for-

profit organizations who set rates based on

perceived risks which they assess and assign to

drivers based on a number of factors. An

individual’s driving record is one such factor.

e. The rate an insurance company

charges for an SR-22 is directly related to the

profit and risk that the company is willing to

bear.

&. Given the number of people who

are insured versus the number of people who

have been convicted of DUI, insurance companies

could lower rates for those convicted and

absorb the cost.

20. Pursuant to State’s Exhibit l, if

called to testify, Michael Muraoka, 4

representative of the Division of Driver

Education, State of Hawaii Judiciary, would

testify as follows:

a. The cost of an alcohol abuse

assessment and resultant report by a substance

abuse counselor ranges from 0-$150.00 and is

dependent on the defendant’s financial status

at the time of the assessment.

b. 90 - 95% of the first-time DUI

offenders are not required to undergo alcohol

abuse treatment.

Cc. If required to undergo alcohol

abuse treatment, the defendant bears the cost.

d. Alcohol abuse treatment cost

covers a broad range depending on the type of

treatment facility chosen.

21. Pursuant to Defense Exhibit my if

called to testify, Pauline Namuo, the Driver

Education Administrator of the Division of

Driver Education, State of Hawaii Judiciary,

would testify as follows:

a. The Division of Driver Education

supervises defendants who are convicted of DUI

and monitor their compliance with the sentence

ordered by the trial court.

b. DUI offenders are required to

confer with a representative of the Division of

Driver Education regarding the assessment of

the offender’s alcohol abuse or dependence and

the need for appropriate treatment.

C. The Division of Driver Education

has a Court Referral List for Substance Abuse

Assessments which is a list of substance abuse

counselors who are certified by the Department

of Health to perform assessments of alcohol

abuse of dependence.

d. With assistance from a

representative of Driver Education, the DUI

offenders select a counselor from this list of

certified counselors for alcohol assessment.

e. The fees for the assessment

charged by the various certified counselors are

listed in the Court Referral List.

Ss DUI offenders are responsible for

the cost of the assessments.

g. Ms. Namuo is aware that 1) the

offender’s medical insurance (provided that the

offender does have medical insurance and the

medical insurance policy will cover the

expense) will pay for a substantial portion of

the fee, 2) depending on the financial status

of the offender, state funding through welfare

on Medicaid may pay for the entire cost of the

fee, and 3) certain individuals, such as

Vietnam/combat zone military veterans, may have

the assessment performed free of charge.

h. If the assessment reports that

the offender requires alcohol abuse or

dependency treatment, then the offender is

required to undergo treatment at his/her

expense.

ae Similar to the assessments, the

Division of Driver Education has a Court

Referral List for Substance Abuse Treatment

which is a list of substance abuse counselors

and agencies who are certified by the

Department of Health to perform treatment of

alcohol abuse or dependence.

j. With assistance from a

representative of Driver Education, the DUI

offenders will select a counselor or agency

from this list of certified counselors and

agencies for alcohol treatment.

k. The Division of Driver Education

does not have the fee schedule charged by the

various certified counselors and agencies for

alcohol abuse treatment.

Ae Similar to the assessments, Ms.

Namuo is aware that the offender’s medical

insurance and the medical insurance policy will

cover the expense) will pay for a substantial

portion of the cost for treatment and that

depending on the financial status of the

offender, state funding through welfare or

Medicaid may pay for a substantial, if not, the

entire cost of the treatment.

yr 2 Pursuant to Defense Exhibit A, if

called to testify, Darlene Wade, administrator

with Anodyne, Inc., a provider who is certified

for alcohol abuse treatment by the Department

of Health, would testify as follows:

a. Anodyne offers outpatient alcohol

abuse treatment.

b. Anodyne charges $150.00 for each

session and $75.00 for each group session,

although a sliding fee schedule is available if

a client has financial hardship.

G. A client typically attends one

individual or group session per week, and

typically, the treatment program runs for six

months to one year depending on the progress

and condition of the client.

d. The average cost of the program

is $3,600.00 to $7,200.00

e. Most Hawaii insurance plans will

cover 50% to 80% of the cost of the treatment.

S. Anodyne will accept Medicaid

coverage.

23. Pursuant to Defense Exhibit A, if

called to testify, Sharon Holland, office

manager of Hawaii Counseling and Education

Center, Inc. (hereinafter "Center"), an agency

that is certified for alcohol abuse treatment

by the Department of Health, would testify as

follows:

a. The Center offers intensive

outpatient alcohol abuse treatment.

b. An individual session costs

$100.00 and a group session costs $40.00.

Se: The program is individually

based, and clients in the program are required

to attend individual and group sessions three

times a week initially and are seen less

frequently as they progress in the treatment.

d. The length of the treatment

varies from individual to individual, with the

shortest period being four months and an

average of eight months.

e. The average cost of treatment is

approximately $3,000.00

f. The Center participates in HMSA

medical insurance plan and other insurance

plans, which generally pay 80% of the cost of

treatment.

g. A Client Instruction Sheet

details certain program requirements regarding

client_responsibility for payment of the cost

of treatment and other charges.

24. Pursuant to Defense Exhibit A, if

called to testify, Karin Shelley, the

Outpatient Director with Hina Mauka, an agency

that is certified for alcohol abuse treatment

by the Department of Health, would testify as

follows:

a. The fee for the outpatient

alcohol treatment program is $1,680.00.

b. The program will only accept

clients who have medical insurance or pay on

their own.

Cc. Most medical insurance plans will

pay for 80% of the cost-.of the treatment.

25. Pursuant to Defense Exhibit A, if

called to testify, Renee Shimabukuro, risk

manager of the Castle Medical Center

(hereinafter “Center"), an agency that is

certified for alcohol abuse treatment, would

testify as follows:

a. The Alcohol and Addiction Program

provides outpatient, residential and inpatient

alcohol abuse treatment.

b. The program is highly

individualized and tailored to the needs of

each patient.

C. The fee for outpatient counseling

is variable and the Center charges the

following fees: 1) $26.00 per session for

aftercare, 2) $73.50 per session for outpatient

counseling, and 3) $148.50 for outpatient day

treatment.

d. The length of the outpatient

treatment varies from individual to individual,

although typically, the patient is required to

attend three session per week and the length of

treatment varies with from four to eight weeks.

e. The fee for inpatient care varies

from $605.00 per day for full hospitalization

to $448.00 per day for residential care to

$297.00 per day for partial hospitalization.

The length of the residential

treatment varies from individual to individual,

although typically, the patient is hospitalized

for ten days and thereafter the patient is

placed on either full outpatient or partial

Outpatient care with the length of care

averaging four to eight weeks.

g. The Center participates in HMSA

medical insurance plan and other insurance

plans.

h. The Center provides free services

through the Department of Health for outpatient

services.

26. Pursuant to Defense Exhibit A, if

called to testify, Marlene Nalani, the Director

of Admissions with Salvation Army ATS, an

agency that is both State licensed and

certified for alcohol abuse treatment, would

testify as follows:

a. Salvation Army ATS provides

alcohol detoxification, outpatient and

residential alcohol and drug abuse treatment.

b. Alcohol detoxification is

typically a five-day client treatment stay with

a cost of $115.00 per day.

CG. Outpatient treatment is typically

a program of 32 primary care sessions and 12

aftercare sessions, with additional session

based on need. The client attends three to

four sessions per week up to two months, at a

cost of $60.00 per session.

d. Residential treatment program is

typically a 90-day program costing $115.00 per

day, for a total cost of $10,350.

e. Salvation Army ATS participates

in medical insurance such as HMSA and Kaiser;

insurance will typically pay for 70% to 90% of

the cost of the treatment.

£. Salvation Army ATS also has state

funding which is available for qualified

indigent individuals, which pays for the entire

cost of the treatment except for the room and

board portion of the residential treatment

program.

Pursuant to HRS 602-5(2) and Rule 15 of

the Hawaii Rules of Appellate Procedure, the

Court reserves the following questions of law

for the Supreme Court of Hawaii:

RESERVED TION F_LAW

be Whether the amendments to the

sentencing provisions of HRS 291-4 provided in

Act 128, Session Laws of Hawaii, Regular

Session of 1993, effective May 21, 1993,

eliminates the rights to jury trial for

defendants charged with a first offense under

HRS 291-4.

Ye If the amendments to the sentencing

provisions of HRS 291-4 provided in Act 128,

Session Laws of Hawaii, Regular Session of

1993, effective May 21, 1993, do eliminate the

right to jury trial, whether the deprivation of

such a right may be applied retrospectively to

alleged offenses occurring prior to the

enactment of the Act.

DATED: Honolulu, Hawaii, July, 30, 1993.

/s/__Dexter D. Del Rosario

THE HONORABLE DEXTER D. DEL ROSARIO

Judge of the above-entitled Court

APPROVED AS TO FORM:

/s/ Ronald G. Johnson

RONALD G. JOHNSON

Prosecuting Attorney

State of Hawaii

APPROVED AS TO FORM:

/s/ Arthur E. Ross for

PAUL J. CUNNEY, ESQ.

Attorney for Defendants

Glenn Nakata and

Alvin K.L. Lau

APPROVED AS TO FORM:

/s/ Theodore Y.H. Chinn

THEODORE Y.H. CHINN, ESQ.

Deputy Public Defender

Attorney for Defendant

Eddie Daoang

Appendix "E"

No. 17317

IN THE SUPREME COURT OF THE STATE OF HAWAII

STATE OF HAWAII CR. No. 90-1679

Pla.ntiff,

GLENN NAKATA,

)

Vv. )

)

Defendant. )

)

STATE OF HAWAII, CR. No. 90-1657

Plaintiff,

Vv.

ALVIN K. L. LAU,

eee ee ee ee ee

Defendant.

STATE OF HAWAII, CR. No. 90-1838

Plaintiff,

EDDIE DAOANG,

See eee ee ee ee ee we

Defendant.

ORDER

Upon consideration of the Order Reserving

Questions of Law Pursuant to Rule 15 of the

Hawaii Rules of Appellate Procedure.

IT IS HEREBY ORDERED, Pursuant to HRS,

Section 602-5(2) and HRAP Rule 15, that this

court accepts jurisdiction.

IT IS FURTHER ORDERED that the parties

shall file briefs on the reserved questions as

follows:

A» The briefs shall conform to the

format and content requirement of HRAP Rule 28

insofar as applicable.

, The defendants are designated as the

appellants in this case and shall file an

opening brief within 20 days from the date of

this order.

LP The State is designated as the

appellee and shall file an answering brief

within 20 days after service of the opening

brief.

4. Reply briefs may be filed within

five days after service of the answering

briefs. The reply brief shall be confined to

matters presented in the answering brief. If

no reply brief is to be filed, the appellants

shall notify the clerk and appellee in writing

reply brief.

iF Oral argument will be scheduled at

a later date.

6. Pursuant to HRAP Rule 28(g) the

Attorney General may file an amicus brief in

this case.

DATED: Honolulu, Hawaii, August 18, 1993.

FOR THE COURT

/s/ H. Lum

Chief Justice

No. 17317 State v. Nakata

Appendix "F"

No. 17317

STATE OF HAWAII

Plaintiff- Appellee,

GLENN NAKATA,

Defendant-Appellant.

CR. No. 90-1679

STATE OF HAWAII

Plaintiff-Appellee,

ALVIN K. L. LAU,

Defendant-Appellant.

)

) CR. No. 90-1657

)

No. 17228

JON DAVID WHITTINGTON,

Petitioner,

Vv.

JAMES H. DANNENBERG,

In his capacity as Judge of the

District Court of the First

Circuit, State of Hawaii, and

all other District Court Judges

of the State of Hawaii; STATE

OF HAWAII, The real party in

Interest,

Respondents.

Case Nos. of 5-4-93

)

) DRIVING UNDER THE

) INFLUENCE OF

) INTOXICATNG LIQUOR

) (HLR.S., Sect, 291-4)

) SAFETY INSPECTION

) (HRS., Sect. 286-25)

)

POLICE REPORT NO.

93-043370

M DUM _ OF LAW

FOR RECONSIDERATION

and

CERTIFICATE OF SERVICE

LAW OFFICE OF PAUL J. CUNNEY

1121 Nuuanu Avenue, Suite 203

Honolulu, Hawaii 96817

Telephone: (808)523-0077

PAUL C. CUNNEY 3145

ARTHUR E. ROSS 1005

Attomeys for Defendant-Appellants

GLENN NAKATA & ALVIN K.L. LAU

and Attomey for Petitioner

JON DAVID WHITTINGTON

No. 17317

STATE OF HAWAII )

Plaintiff- Appellee,

GLENN NAKATA,

Defendant-Appellant.

)

CR. No. 90-1679

STATE OF HAWAII CR. No. 90-1657

Plaintiff- Appellee,

Vv.

ALVIN K. L. LAU,

Defendant-Appellant.

No. 17228

JON DAVID WHITTINGTON,

)

Petitioner, )

v. )

)

JAMES H. DANNENBERG, )

In his capacity as Judge of the )

District Court of the Firsi )

Circuit, State of Hawaii, and )

Case Nos. of 5-4-93

DRIVING UNDER THE

INFLUENCE OF

INTOXICATNG LIQUOR

(H.R.S., Sect, 291-4)

SAFETY INSPECTION

(H.R.S., Sect. 286-25)

all other District Court Judges

)

of the State of Hawaii; STATE ) POLICE REPORT NO.

OF HAWAII, The real party in ) 93-043370

Interest, )

) MOTION FOR

Respondents. ) RECONSIDERATION

)

M N_FOR RECONSIDERTION

Defendant-Appellants Glenn Nakata, Alvin K. L. Lau, and

Petitioner, John Whittington, by and through their attomeys, Paul

J. Cunney and Arthur E. Ross, hereby move this Court to reconsider

its opinion filed August 2, 1994, for the reason that the opinion

failed to answer the separate issue raised by Whittington,

misinterpreted the impact of the financial responsibility law on

insurance rates, and incorrectly concluded that appellants have

failed to show how they would be substantially prejudiced by the

retroactive application of Act 128.

This motion is made pursuant to Rule 40 of the Hawaii

Rules of Appellate Procedure and is based upon the memorandum

of law and certificate of good faith attached hereto, and the records

and files in this case.

DATED: Honolulu, Hawaii, August 12, 1994.

Arthur E.

ARTHUR E. ROSS

Attomey for Defendant-Appellants

GLENN NAKATA & ALVIN K.L. LAU

and Attomey for Petitioner

JON DAVID WHITTINGTON

No. 17317

STATE OF HAWAII

Plaintiff- Appellee,

GLENN NAKATA,

Defendant-Appellant.

STATE OF HAWAII

Plaintiff- Appellee,

ALVIN K. L. LAU,

Defendant-Appellant.

Ne eee Nee ee eee ae ee

CR. No. 90-1679

CR. No. 90-1657

No. 17228

JON DAVID WHITTINGTON,

Petitioner,

Vv.

JAMES H. DANNENBERG,

In his capacity as Judge of the

District Court of the First

)

Circuit, State of Hawaii, and )

Case Nos. of 5-4-93

DRIVING UNDER THE

INFLUENCE OF

INTOXICATNG LIQUOR

(H.R.S., Sect, 291-4)

SAFETY INSPECTION

(H.R.S., Sect. 286-25)

all other District Court Judges

)

of the State of Hawaii; STATE ) POLICE REPORT NO.

OF HAWAII, The real party in ) 93-043370

Interest, )

) CERTIFICATE OF GOOD

Respondents. ) FAITH

)

CERTIFICATE OF GOOD FAITH

I hereby certify, as one of the attomeys for Appellants

Glenn Nakata, Alvin K. L. Lau, and Petitioner John Whittington,

that the foregoing Motion for Reconsideration is presented in good

faith and not for purposes of delay.

DATED: Honolulu, Hawaii, August 12, 1994.

/s/ Arthur E. Ross

ARTHUR E. ROSS

No. 17317

STATE OF HAWAII

Plaintiff- Appellee,

¥.

GLENN NAKATA,

Defendant-Appellant.

STATE OF HAWAII

Plaintiff- Appellee,

Vv.

ALVIN K. L. LAU,

)

Defendant-Appellant. )

)

CR. No. 90-1679

CR. No. 90-1657

No. 17228

JON DAVID WHITTINGTON,

Petitioner,

Vv.

JAMES H. DANNENBERG,

In his capacity as Judge of the

District Court of the First

)

Circuit, State of Hawaii, and )

Case Nos. of 5-4-93

DRIVING UNDER THE

INFLUENCE OF

INTOXICATNG LIQUOR

(H.R.S., Sect, 291-4)

SAFETY INSPECTION

(H.R.S., Sect. 286-25)

all other District Court Judges

)

of the State of Hawaii; STATE ) POLICE REPORT NO.

OF HAWAII, The real party in ) 93-043370

Interest, )

) MEMORANDUM OF LAW

Respondents. ) IN SUPPORT OF MOTION

) FOR RECONSIDERATION

MEMORANDUM OF LAW IN SUPPORT OF MOTION

- FOR RECONSIDERATION

I. Premature Denial of Jury Trial

The opinion fails to answer the separate issue raised in

Whittington’s petition for writ of mandamus and/or prohibition, to

wit: Whether the district court prematurely denied him a jury trial

before the Governor signed Act 128 on May 21, 1993?

On May 4, 1993, Whittington demanded a jury trial which

was denied by Judge Dannenberg who set the case for a bench trial.

As a result, Whittington, sought relief by way of a petition for writ

claiming inter-alia the district court exceeded its authority in

denying him a jury trial before the law became effective.

Although the opinion decides most of the issues raised in

the petition, it fails to answer the question of whether the lower

court acted prematurely in denying Whittington a jury trial on May

4, 1993.

II. Premature Denial of Jury Trial

The opinion incorrectly concluded that the increased rated

changed by private insurance companies for violating HRS §291-4

is not mandated by law and therefore, the statutory "penalty" is not

a result of "State" action.

The trial court found that an individual convicted of DUI

must comply with the financial responsibility requirement under

HRS §287-20. Findings No. 9.

The trial court further noted that representative from the

Department of Finance would testify to the following. Findings No.

18. The Department of Finance is responsible for the enforcement

and compliance with HRS §287-20. Findings No. 18(a). There are

four ways in which this requirement may be met: (1) proof of

insurance via Form SR-22, (2) posting bond in accordance with the

Act, (3) the depositing of money or securities in the amount of

$25,000, and (4) submitting a self-insurance certificate under HRS

§287-22. Findings No. 18(b). This requirement exists for a three

year period and non-compliance will result in the individual’s

license suspended for the three year period or until compliance.

Findings 18(d) - (f). Approximately 65% of the individuals who

comply with the requirement elects to do so by the way of SR-22,

proof of insurance. Findings 18(c).

A representaitve from the Hawaii Insurance Commissioner’s

Office would testify to the following. Findings No. 19. The

insurance rate for the individual with a clean driving record who is

convicted of DUI will see an increase of between 7 to 8 times the

existing insurance premium. Findings No. 19(c).

The requirement for proof of financial penalty pursuant to

HRS §287-20 was not changed by Act 128. This requirement

results in a financial penalty amounting to thousands of dollars

annually for three years in order for one convicted of DUI to obtain

a new drivers license. For example, the average insurance rate

changed for a 1990 Toyota Camry, for a person with a clean

driving record, is approximately $1086 for a year. Findings N

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