Changes underway to reduce mounting DUI dismissals, stalled cases on Oahu

Police are trying to cut back on the number of dismissed DUI cases, while courts are moving to clear a backlog of cases.

These actions are coming after Always Investigating uncovered the growing trend of drunk driving cases getting dismissed while others sat dormant.

After our investigation, several changes are underway to tackle a big DUI logjam at Hawaii’s busiest court, but a recent higher-court ruling could be leading to more trouble on the horizon, now that suspected drunk drivers can hold their breath when pulled over.

Always Investigating dug through thousands of DUI case files and found at first that more than one in four — and later approaching one in three — were getting dismissed. It was usually caused by police witnesses not showing up, or getting tossed due the prosecution or defense taking too long to be ready for trial.

The police problem often came when three, four or more officers at a time had to keep showing up, continuance after continuance, because they’re all witnesses. Now the Honolulu Police Department tells Always Investigating it’s working toward having fewer witnesses to have to call up in the first place.

“We’re using additional training and closer supervision to help reduce the number of officers involved in OVUII arrests, thereby reducing the number of officers needed in court,” a department spokesperson said.

We’ve also been asking prosecutors what could reduce the high dismissal rate. When asked will we see any efforts from the office with legislation that could help, Deputy Prosecutor Jeen Kwak told KHON2 last fall, “Of course, as soon as this upcoming session.”

Now that the session is on, we asked what are their bills? The office spokesperson said, “We will not be introducing legislation this session. We will continue to press the court for the procedural changes that we believe can make a significant difference.”

We asked attorneys, are they seeing any changes at all from the state’s readiness to get to trial?

“I think the changes I have seen is the prosecutors being more proactive on providing discovery,” said DUI defense attorney Jonathan Burge. “They’re trying to do better in that regard.”

Some who are supporting stiffer DUI legislation include Mothers Against Drunk Driving, which points to two bills back for review this session. “One by saying okay, if you don’t get interlock for XYZ reasons, we’re going to insist you don’t drink,” said Arkie Koehl of MADD, “and if you don’t get interlock and we catch you driving anyhow, we’re going to do something about your car.”

But what about cases just stuck in the system? Our investigation found thousands of cases stalled, many of them on hold until a Hawaii Supreme Court ruling last November that said it’s no longer a crime to refuse to give a breath test.

That ruling came down right around Thanksgiving, and since then, police are coming across fewer drunk drivers willing to take a breath test. In November before the ruling, 60 refused. In December, it jumped to 112.

But don’t hold your breath and think there won’t be consequences.

“A lot of it was confusion where they think they don’t have to take it and nothing is going to happen,” Burge said. “That isn’t necessarily true, because the license is very important to a lot of people and if you refuse, they’re still going to take your license. People have to understand that. It’s not a get-out-of-jail free pass or anything.”

And the stalled cases that wanted the breath-tests thrown out?

“They’re opening another courtroom on Mondays, Wednesdays and Fridays over here because a lot more cases are going to trial,” Burge said, “so the judiciary is responding to it.”

In light of the breath-test court case, police say they’ve placed more emphasis on documenting driving behavior, physical demeanor, breath odor and such as evidence of intoxication.

Meanwhile defense attorneys say the new forms that tell people they can refuse may be written too legalese and could make for future court challenges.

“They tell you if you don’t take a test you will be sanctioned according to ‘Part 3 of 291E.’ They may as well be saying Part 4 of the Martian code from Klingon because people don’t understand that,” Burge said. “All that’s required is that they say you have a choice of blood, breath or refusal, what do you want to do? Instead of doing that, they throw this sanction language in and then don’t explain it, so to me it’s still a violation. It doesn’t comply and I will be filing in every case once they start hitting in February.”

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