The Criminal Case

When you were released from custody, you were probably notifed in writing (on either your bail receipt or on a "notice to appear" form) that a "mandatory court appearance" is scheduled for you in one of the District Courts. If you were arrested on a military base, or other property under the jurisdiction of the federal government, the usual procedure is to be given a small DOD form that looks like a traffic ticket and which informs you that you will be notified by mail about the date which you will have to appear in the federal court.


Hawaii's DUI Statute

HRS § 291E-61 is the Hawaii statute that prohibits driving under the influence of alcohol - or any other "intoxicant."


HRS § 291E-61 states:

Operating a vehicle under the influence of an intoxicant.


(a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:


(1) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty;


(2) While under the influence of any drug that impairs the person's ability to operate the vehicle in a careful and prudent manner;


(3) With .08 or more grams of alcohol per two hundred ten liters of breath; or


(4) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.


     The prosecution can use any of the four alternative methods of proof, specified in the DUI statute's four separate subsections, to prove a DUI charge.  If the defendant's alcohol concentration was above .08 at the time the vehicle was being operated, intoxication is legally presumed.  However, a defendant who had less than a .08 alcohol concentration at the time the vehicle was being operated can still be convicted in the state proves beyond a reasonable doubt that it was still enough alcohol to "impair the person's normal mental faculties or ability to care for the person and guard against casualty."  This (a)(1) method of proof is used to prosecute drivers who refused to submit to alcohol concentration testing.  Even if a damaging breath test result can be kept out of the evidentiary record at trial, the State can still attempt to prove the case with the (a)(1) alternative method of proof by using evidence concerning bad driving, how the defendant looked and acted and how the defendant performed on the filed sobriety test. 


     Mr. Mac Master has won many DUI cases at trial where the defendant had a breath test or blood test result that was over .08 by: (1) blocking the prosecution from using evidence of the alcohol concentration result; and (2) arguing successfully that the remaining (a)(1) evidence was not sufficient to prove the charge beyond a reasonable doubt. 

Arraignment: Your First Court Appearance


     If this is your first DUI arrest, the criminal case against you will probably be prosecuted in a state District Court. If you were arrested on a military base, or federal property, the criminal case against you will probably be filed in the United States District Court for the District of Hawaii (i.e. the federal court).


     Both a state District Court case, and a federal court case, start with a hearing called an "arraignment". If you intend to fight your case, your arraignment is basically just a scheduling event. At the arraignment, you may also be charged with additional traffic offenses or criminal charges. However, the Honolulu Police Department's current general practice is to issue at the time of arrest, a written citation (i.e. a "Notice Of Infraction") for any associated moving violations or equipment violations (e.g. speeding, failure to obey a traffic control device, no safety check etc.) Any such associated written citations must be paid or contested. Failure to contest a written citation in a timely manner can be construed as a waiver of the right to do so. Contact Mr. Mac Master for more information concerning how the issuance of an associated written citation can generate a third separate and almost entirely legal independent legal proceeding from one DUI arrest.


The Three Possible Pleas In A

DUI Case


     If you are going to fight your case, at the arraignment, you enter a plea of "not guilty" and request a trial date. If you retain Mr. Mac Master, it will usually not be necessary for you to personally attend the arraignment. The Court will generally allow Mr. Mac Master to enter the "not guilty" plea for you and to request a trial date. Trial dates are usually scheduled between four to eight weeks after the arraignment.


     A "plea" is the defendant's response the the State's charge in the criminal case. When the State charges a defendant with an OVUII, there are only three possible pleas that the defendant can respond with: (1) guilty; (2) no contest; and (3) not guilty.


     A "guilty" plea means that the defendant:


          1. Admits the charge;


          2. Is not requesting a trial; and


          3. Agrees to be convicted.


     A "no contest" plea means that the defendant:


          1. Is not admitting the charge;


          2. Is just not contesting the charge; and


          3. Agrees to be convicted.


     A guilty plea and a no contest plea both get you convicted and would put a criminal conviction for DUI on your record. The only plea in response to a DUI charge that offers the possibility of keeping your record clean is a plea of "not guilty."


     A "not guilty" plea does not mean that you are denying that you committed the crime of OVUII. It means that:


1. You are not agreeing to be convicted;


2. You have the right to have a trial at which the State is required to adduce evidence sufficient to prove you guilty beyond a reasonable doubt; and

3. You are requesting a trial at which the State must meet it's burden of proof.


     Mr. Mac Master fights DUI cases. Mr. Mac Master only wants to represent clients who want to plead "not guilty" and fight their case.  If you would like to plead "guilty" or "no contest" to a DUI charge, please hire someone else.


     Many of Mr. Mac Master's clients have avoided conviction because he was willing to expend the time and effort necessary to fight their cases and make the State "prove it if they can" at trial. Talk to Mr. Mac Master about how you can plead "not guilty" and possibly avoid a conviction.


     If this is is your first DUI arrest, your trial will probably be heard and decided by a judge, without a jury. The prosecution will have the burden of proving it's case against you "beyond a reasonable doubt".


    To meet it's burden of proof, the prosecution must present the testimony of each witness that it needs to prove it's case. It will almost always be necessary for the prosecution to produce the officer who arrested you to testify against you at trial. If the prosecution wants to use breath test evidence against you, it usually must produce the testimony of at least two witnesses: (1) the officer who arrested you; and (2) the officer who operated the breath test machine. The prosecution may also want to offer the testimony of other officers who participated in your arrest and the processing. The prosecution may also want to use testimony from the officer who did the accuracy verification testing that was done to ensure that the machine was giving accurate readings.


     Many DUI defendants have avoided conviction merely because an essential witness was not available to testify at trial. No one who pleads guilty avoids conviction.


    If you are truly innocent, it may be possible to defend your case on it's merits. Even if you were driving under the influence when you were arrested, your case may still be able to be defended successfully.


     Sometimes incriminating evidence can be suppressed or is otherwise unavailable for use by the prosecution. The Constitution of the United States of America, and the Constitution of the State of Hawaii, protect you from unreasonable searches and seizures. If the police lacked "reasonable suspicion" to stop your vehicle, all evidence resulting from the vehicular stop may be able to be suppressed. If you were stopped at "an intoxication control roadblock" that was not established and operated in compliance with sections 291E-19 and 291E-20, all evidence resulting from the stop may be able to be suppressed. If you were ordered out of your vehicle, subjected to police questioning before the officer observed "sufficient facts to believe that a crime had been committed", incriminating evidence may be able to be suppressed. If a breath test, or a blood test, was not performed in a manner that complies with the requirements of Title 11 Chapter 114, the prosecution may be blocked from presenting evidence of the test result. If a horizontal gaze nystagmus test was not performed in accordance with the applicable standards established by the National Highway Safety Institute, the results of the test may be able to be suppressed. If any of the witnesses against you lack a sufficient "present recollection" of the events about which they are being asked to testify, their testimony may be able to be precluded. If the police arrested you, then failed to "read you your rights", self-incriminating statements may be able to be suppressed.


     The outcome of your criminal case can determine the manner in which, for the rest of your life, you will answer the question "Have you ever been convicted of a crime." The only answer that you ever want to give to that question is a simple "no." If you are in the military, the outcome of your criminal case may determine the fate of your career. The military is not likely to care whether you saved yourself an extra $100 or $200 in fines by pleading "guilty" or "no contest" and spared the Court or the prosecutor the time and inconvenience of a trial. However, if your are convicted for a DUI, or any other criminal offense, the military will care.


     In the military, you are trained to fight. You are not trained to give up and surrender. For those in the military: "There is no substitute for victory." In our country, all persons charged with committing a crime are presumed to be innocent unless proven guilty. Even if you were DUI, Mr. Mac Master may be able to help you to "stay innocent" by avoiding a conviction. Remember, it is not up to you to prove you are innocent. All you are required to do is to appear in Court.  That's it.  Show up.  Just show up. It is the prosecution's burden to: (1) prove

that your are guilty; and (2) prove it beyond a reasonable doubt.



The "Best Defense In A DUI Case":

The State Was Not Ready To Proceed



     In terms of statistics, the "best defense in a DUI case" is basically "we showed up ready to fight and they didn't."  If the prosecution does not have all of the witnesses it needs to prove its case, available and ready to testify, it will ask the Court for a "continuance", i.e. a postponement of the trial until a later date.  The most frequent situation in which DUI cases are dismissed occurs when the State was not ready to proceed on two or more occasions, the prosecution requested another continuance, and the Court denied the request and dismissed the case.  


     There is no "three strikes you're out" rule written into any statute or the Hawaii Rules Of Penal Procedure.  The Court usually has the choice of continuing the case, or dismissing the case, without having to be concerned that its decision would be overturned on an appeal.  However, it is the "Rule 48 timeclock" that limits the amount of times a case can be continued by requiring that cases usually by commenced within 180 "includable" days after the date of the arrest. 


     There are many reasons why the State may not be ready to proceed with a trial on your trial date.  A witness essential to the State's case may not be present.  Usually there is at least one police officer who is a witness essential to the State's case. Often times the police officer who made a DUI defendant's arrest works the night shift.  Some police officers like being subpoenaed as trial witnesses because it enables them to receive overtime pay for the time spent in Court.  However, many police officers who work the night shift prefer to spend their days sleeping.  For them being subpoenaed to testify at the ADLRO at 1:00 p.m. is like a normal person being subpoenaed to testify at 1:00 a.m. In short, some police prefer sleep over overtime pay. The police also tend to prioritize their annual training, vacations, sick days and subpoenas to testify in more serious criminal cases, over subpoenas to testify in District Court DUI cases.


     Even if all the State's witnesses against you are present and ready to testify, the State may still choose not to proceed with your case because it has: (1) another case with a more serious charge that is ready to go to trial that day; (2) a case that has non-police/civilian witnesses present; (3) there is a continued trial set as the priority case for the day; or (4) the State is lacking documentary evidence that it wants to present as part of its case. When you have a District Court trial date, you do not get your own private Judge, Prosecutor and Courtroom.  Instead, it is likely to be you and at least 15 other defendants will be on the calendar for that session. If all defendants locked arms and refused to plead guilty, the system would collapse under the weight of the bottleneck in the Courtroom.  Frankly, what keeps it all flowing is the high percentage of defendants who are willing to plead guilty and surrender without a fight.


When It's Time To Fight 


     If the State's witnesses are all present and ready to testify, and the State is ready to proceed with your case, that is when you will need Mr. Mac Master the most.  When the State is not ready to proceed, any competent attorney can object and ask the Court to dismiss the case.  The real measure of an attorney's value comes when the State is ready proceed and the final decision must be made to fight, or surrender. Will the attorney stand and fight for you?  Will the attorney advise you to surrender?  Mr. Mac Master is an attorney that you can rely on to fight for you.  


     There are usually very good reasons to fight a DUI case.  When you go to Court, you do not have to prove anything.  The burden is on the State to prove that you are guilty, and to prove it beyond a reasonable doubt.  Contact Mr. Mac Master today for a free case evaluation and fight your case!

Contact Mr. Mac Master immediately for a free telephone consultation


(808) 531-8080


fax: (808) 531-4044


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The information in this website is provided as a public service. It is not intended to be given to, or taken by, any individual or organization as legal advice specifically for that individual or organization. Merely viewing this website does not create an attorney-client relationship with Mr. Mac Master. Any individual who has been arrested for DUI, or any other criminal offense, or cited for any violation, is hereby requested to contact Mr. Mac Master, or another duly licensed attorney, to seek legal advice applicable to the unique facts and circumstances of that individual's situation.