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Frequently Asked Questions:

Below are some typical questions which many people have about criminal and traffic law in Hawaii. This information is provided only as a general guide for individuals interested in learning about the criminal justice system, especially as it operates in Hawaii. Nothing on this page should be construed as legal advice. If you are in need of legal advice, please contact me to schedule an appointment.

I was just charged with a crime. Do I have to hire a lawyer or can I represent myself?

Anyone charged with a crime in Hawaii has a right to represent themselves, but that is one right that I would never recommend that you exercise. Even attorneys who get charged with crimes usually get another attorney to represent them in court. Navigating the complex criminal legal system can be challenging for even attorneys if they do not have experience in handling criminal cases. Most criminal defense attorneys in Hawaii offer initial consultations for either free or a small consultation fee. I would always recommend at least talking to an attorney about your options before deciding to represent yourself in court.

Shoud I hire a lawyer or use the Public Defender?

The Public Defenders are attorneys who can represent people who cannot afford to hire an attorney. They can represent you in any case that involves criminal charges that may result in you going to jail, provided you qualify financially. They CANNOT represent you on criminal violations, traffic violations, in administrative license revocation proceedings or in civil TRO hearings. If you think you can afford an attorney, I suggest meeting with a few attorneys for consultations. Just because you are paying for an attorney does not automatically mean you will get better representation than you would with a public defender. If you don't think you can afford a good private attorney, meet with the public defender and see what they can do for you. If you don't feel comfortable with the public defender assigned to your case, you can always hire a private attorney later.

The police did not read me my rights when I was arrested. Don't they have to drop my case?

The police are not required to read everyone they arrest Miranda warnings. Police only have to advise you of your right to remain silent if you are (1) in custody, and (2) are subject to custodial interrogation by law enforcement. Even if you are in custody and interrogated by police without any Miranda warnings, the court will only prohibit the prosecutor from using in court any statements you may make to the police as a result of the illegal interrogation. It will not automatically lead to a complete dismissal of your case. If you were arrested and questioned by police, contact an attorney as soon as possible to discuss your options.

The police called me and want to talk to me. Should I talk to them?

Generally speaking, you should always consult with an attorney prior to speaking with the police in any situation. In any interview with the police you are at a strategic disadvantage. The police will almost always have more information than you and are usually just trying to get a few additional nuggets of evidence they may need to make an airtight case. The police are not required to tell you what evidence they may already have, and they actually can LIE to you and feed you information they know is false just to see how you react and to try to trick you into saying something incriminating. In order to protect yourself from this kind of trickery, you should speak with an attorney prior to agreeing to any interviews with police.

Someone accused me of a crime but they don't have any "evidence". Can I still be arrested?

Evidence doesn't have to be physical evidence. Witness testimony as to the witness' observations and perceptions is evidence as well. If someone says you did something illegal, that person's word alone can be sufficient for the police to arrest you. The law even says that testimony of just a single witness, if believed beyond a reasonable doubt by the judge or jury, is sufficient to prove a fact. So if someone is accusing you of a crime, you should take that accusation seriously.

What is the difference between a misdemeanor and a felony?

Criminal offenses are generally broken down into categories based on severity. The three main categories are petty misdemeanors, misdemeanors, and felonies. In Hawaii, most petty misdemeanors carry a maximum possible jail time of 30 days, misdemeanors from 6 months to 1 year, and felonies from 5 years to life in prison without the possibility of parole. Felonies are broken down into the subcategories of A felony (20 years to life), B felony (10 years) and C felony (5 years). Because of the significant amounts of jail time possible with misdemeanors and felonies, the law says defendants are entitled to a trial by a jury made up of their peers. This is one of the most important fundamental rights defendants have in America and it should not be given up lightly. DO NOT give up your right to a trial, especially by jury, without first consulting an attorney.

I am guilty. Why do I need an attorney?

In the United States of America every person, even those accused of crimes, are presumed innocent. NO ONE is guilty until the judge says they are guilty. Even if you think you are guilty of a crime, you should still consult with an attorney because you may be wrong. For example, the police or prosecutor may have charged you with a more serious offense than what you actually committed. It is also possible that the police violated your rights in obtaining the evidence they have against you. And even in cases where you end up pleading gulity, there are things an attorney can do which could protect your criminal record and minimize your sentence.

What should I do if I am pulled over for DUI?

Let me say this first, don't drink and drive. Not even if you have only drank a single drink. While drinking one drink likely won't make you legally intoxicated, just the smell of alcohol from that one drink will make the officer more suspicious and at that point you are half way to being arrested. Just don't cause yourself the hassle. That being said, it is not illegal to drive after drinking unless your blood alcohol level is over 0.08%, or you are otherwise impaired by the alcohol you have consumed. (For a rough guide of how much alcohol it takes for a person to get to 0.08%, check out the BAC calculator in the left sidebar of this page.) If you get pulled over, there is no one single way to handle every situation. The best way for one scenario may not be the best for another. There are a few things which I would recommend to everyone, however.

First, don't flunk the attitude test. Be cooperative. Don't argue with the officer. The more you argue, the more you have to talk. The more you talk, the more opportunity they have to smell any alcohol on your breath and listen for slurred speech. Not to mention that if you annoy the officers, it will color what they write in your reports and how they handle your case. Also, have your license, registration, insurance and safety check in one spot and have them ready to go at all times. Almost every singe report I see the officer writes something like, "Suspect fumbled through the glovebox looking for his/her paperwork." It's just another small thing that the officers use to try to make it look like you are intoxicated.

While it is important you be cooperative, you don't have to do everything they say. You are under no legal obligation to do the field sobriety tests and I would recommend to most people that they don't do them. They are difficult to pass even without any alcohol. The tests are "standardized" but the officer's grading of your performance is largely subjective. If the officer asks you to take the test, politely decline and tell the officer you are electing not to take the test. If the officer asks you questions about how much you have had to drink or where you are coming from, I would again decline to answer. Legally you don't have the right to talk to an attorney at that point, but the officer likewise cannot make you answer his/her questions. Be respectful, but simply decline to answer. Also, do not take the FIELD breath test. This is not to be confused with the breath test after you have been arrested at the station. The small handheld PAS test which they conduct in the field is NOT required and you have the right to refuse. Those devices are often inaccurate.

If after all of this the police still arrest you, at the station they will advise you of your options regarding taking a breath or blood test. You have the option of refusing these tests as well, but if you do not take either a breath or blood test, you risk losing your license for a longer period of time than if you consented to take one of the two tests. Listen carefully to the officer when he explains your options and ask to speak with an attorney. The officer will tell you that you do not have the right to speak with an attorney before making the decision, and thus far the courts are backing up that interpretation, but make the request anyway and make sure it is clear in the officer's mind that you do not fully understand your choices. This may help you later if your case goes to trial. Beyond that information, whether you should take the tests and which one of the two you should choose is dependant on so many different factors it is impossible to come up with a single right answer.

If you refuse the tests, or fail the breath and/or blood test and are arrested, you will have the opportunity to post bail. Once you are out of custody, consult with an attorney as soon as possible. The police will also give you a piece of paper for you to explain anything you want to the Administrative Driver's License Revocation Office. The form leads you to believe that there is something you could possibly write which would cause them not to revoke your license. DO NOT fill out that form. There is nothing you can put in that form that will help you get your license back. Before filling out any forms, go talk to a lawyer.

But again, to avoid having to make all these tough decisions, just DON'T DRINK AND DRIVE!

What is the difference between speeding and "excessive" speeding?

"Excessive speeding" is a relatively new law which makes it a petty misdemeanor to either (1) do more than 30mph over the posted speed limit, or (2) do more than 80mph irrespective of the posted speed limit. While regular speeding tickets only carry a fine, excessive speeding carries a fine from $500 to $1000, as well as a possible 2 to 5 day jail sentence, a 30 days license suspension, driver education classes, community service and other court costs. A conviction for excessive speeding will also result in a criminal record and the plea cannot be deferred. If you are cited for excessive speeding consult with an experienced attorney as there are defenses which can be raised to help decrease the liklihood of a conviction.

When does the court order restitution?

A defendant convicted of a crime can be ordered to pay restitution to the victim(s) of the crime. There are many restrictions on who is eligible to receive restitution. Generally speaking, the person seeking restitution must be a direct victim of the crime. For example, if the Defendant assaulted the victim and the victim suffered injuries, the Defendant could be ordered to pay the medical costs as well as other out of pocket costs that the victim suffered as a result of the assault. The Defendant could NOT be ordered, however, to pay victim's family members for lost wages they incurred helping victim with his injuries since they are not direct "victims" of the assault. A defendant can plead guilty to charges and still chanllenge restitution amounts at a restitution hearing before a judge. You are not entitled to a jury on decisions regarding restitution amounts. The restitution statute can be found here.

What is a Deferral?

A "Deferral" is a Deferred Acceptance of Guilty or No Contest plea, also known as a DAG or DANC plea. It is a special type of plea which allows a defendant to plead guilty or no contest, yet keep his record clear of a criminal conviction. If the defendant doesn't have a significant criminal history and meets certain requirements, he may meet the eligibility requirements for a DAG or DANC plea. If the Defendant does meet the requirements, the judge has the discretion to grant or deny the request for the deferral after weighing several factors. There are certain types of offenses, like Abuse of a Family Member and DUI, which cannot be deferred. If the defendant successfully complete the deferral, he can have his arrest records expunged. To see the deferral statute, click here.

How does bail work?

When you are charged with a crime, usually there is a bail amount set. If you do not post bail, you will typically remain in custody at least until your first court date. If you do post cash bail, you are released and the court hold the bail amount to assure your appearance in court. At the conclusion of the case, the bail is discharged and returned to you or whoever posted it. If the bail amount is more than you can afford, you can arrange to have a bail bond posted by a bondsman. You pay a fee to the bondsman, typically 10% of the total bail amount, and you are then released on bond. The bondsman may also ask for collateral. At the conclusion of your case the bond is discharged but you do not receive any money back. The money paid to the bondsman is the fee they earn for posting your bond. A couple of local bail bond companies I frequently use are A-1 Bonding and All Oahu Bail Bonds.

How does a mental defense work?

A defendant's mental state can come into play in a criminal case primarily in two ways. First, if the judge, prosecutor, or defendant's attorney feel that the defendant may be suffereing from a mental disease or defect which prevents him/her from effectively working with the attorney in preparing a defense, or if the defendant isn't capable of making informed decisions in the case, then the court may order three doctors to examine the defendant and render opinions on defendant's fitness to proceed to trial. The second way a defendant's mental condition comes into play deals with the defendant's mental state at the time of the alleged offense. This is what is commonly referred to as an insanity plea.

If the defendant wants to raise a defense based on his/her inability to conform his/her conduct to the law due to a mental disease or defect, then he/she can ask the court to appoint 3 doctors to examine him/her and render opinions as to whether he/she was legally responsible for the conduct at the time of the alleged offense. So the former looks at the mental state of the defendant at the present time while the latter looks at the mental state at the time the offense was allegedly committed. The decision to raise the latter issue rests with the defendant while the decision on raising fitness to proceed rests with the attorneys and/or the judge. This is an important distinction as a defendant who is not fit to proceed CANNOT make decisions in his/her case and cannot even raise an insanity defense unless he/she regains fitness to proceed.

If the court determines that a defendant is not fit to proceed he/she can be sent to the State Hospital for treatment with the goal being the restoration of fitness. If a person is found to be fit, but then succesfully raises a defense based on a lack of responsibility, he/she will be found not guilty by reason of mental disease or defect and can be also sent to the State Hospital if the court determines the defendant is dangerous.

How can I get my criminal record expunged?

If you were arrested but not convicted of a criminal offense in Hawaii, you are eligible to have your arrest records expunged. This also applies if you received a DAG or a DANC (see above for explanation of DAG/DANC pleas) and you successfully completed your period of deferral. If you were convicted of the offense you are not eligible to have your record expunged. In order to clear convictions from your record you would need to apply for a pardon from the Governor. If you would like to find out if you are eligible for an expungement, contact me for a free initial consultation.

What are my rights to a "speedy trial"?

In Hawai'i you have a constitutional right to a "speedy trial" under both the United States and Hawai'i Constitutions, as well as a right to a trial within 180 days of your arrest or charging under Rule 48 of the Hawai'i Rules of Penal Proceedure. The constitutional rights to a speedy trial don't have a specific time limit but are more circumstantial depending on various factors such as the reasons for the pretrial delay, the prejudice the Defendant suffers from the delay, as well as the seriousness of the charges. The right to a trial within 180 days under Rule 48, on the other hand, has a specific 180 day time limit. The 180 days starts running at the time of arrest or at the time the charges are filed, whichever occurs first. There may be periods of time, however, which "toll" the running of time. For example, if the Defendant asks the court to delay his or her trial for any reason, the period of that delay doesn't count toward the 180 day time limit and are excludable. If the court fails to bring you to trial within 180 non-excludable days from the date of your arrest/charging, the court must dismiss the charges against you. The court, however, has the discretion to dismiss the case "without prejudice", meaning the prosecutor can refile the charges.

What does "without prejudice" mean?

When the court says something is dismissed or denied "without prejudice", it means the issue can be brought up again at a later time. The two most common instances of the court using the term "without prejudice" occur when a motion is denied or a case is dismissed. For example, if the court dismisses a case "without prejudice", it means the prosecutor can go back and charge the case again and basically get a second bite at the apple. These dismissals have to occur before the trial actually starts so that constitutional double jeopardy protections don't apply. If the court denies a motion "without prejudice", that just means that the same motion may be brought again at a later time in the case should circumstances change warranting the court's reconsideration of the issues. Conversely, if the court dismisses a case "with prejudice", it means that the case is dismissed for good. The prosecutor may not charge the case again and it is forever over.

What is a "preliminary hearing"?

In Hawaii generally felony charges are brought in one of three ways, (1) information charging, (2) grand jury indictment, or (3) preliminary hearing. At a preliminary hearing the prosecutor is required to present sufficient evidence, usually in the form of witness testimony, to a District Court judge to establish probable cause to believe that a defendant committed the charged felony. The defendant is present at the hearing and has a right to counsel at the hearing. Defendant's counsel can cross examine the witnesses. Defendant can also present evidence although for strategic reasons that is almost never done. At the conclusion of the hearing the court decides if there is enough evidence to sustain the charges and send the case to Circuit Court for trial. The prosecutor's burden of "probable cause" at a preliminary hearing is considerably less than the standard at a trial which is "beyond a reasonable doubt".

What is an "arraignment"?

An arraignment is the where the defendant is formally advised of the charges against him/her. It is usually the first step in the criminal process following arrest and is a very quick proceeding. At the arraignment hearing, after being advised of the charges, the defendant usually enters a plea. Under most circumstances, a "not guilty" plea is entered, even if the defendant may want to plead guilty to the charges. This is because at the arraignment little is know by the defense about the strength or weakness of the evidence in the case. Absent exceptional circumstances, you should never plead guilty to a charge until you know what the evidence is against you.

What is the difference between a "grand jury" and a "jury trial"?

The short answer is that the GRAND JURY decides at the beginning of a case if charges should be brought, and a JURY TRIAL is at the end of a case where a decision is made whether the defendant is guilty or not guilty. In Hawaii, a grand jury's primary function is to listen to evidence presented by prosecutors and decide if charges should be brought against individuals accused of felonies. The grand jury is selected at the beginning of each year and sits for an entire year. There must be at least 8 people present for the grand jury to proceed. Grand jury proceedings are secret and closed to the public. If the grand jury concludes that the prosecutor presented enough evidence for probably cause, then they return a "true bill" or an indictment and the court issues a bench warrant for the individual who was indicted. The grand jury does not decide guilt for an offense, only "probably cause" as to whether an offense was committed.

A jury trial is a public proceeding where a jury of 12 members of the public are asked to decide if a defendant is guilty or not guilty of a crime beyond a reasonable doubt. These proceedings are public and the defendant and his counsel are present and allowed to present evidence and ask questions, although they do not have to. Members of the jury are selected for that individual case only and once the case is over, their jury service is done until they are randomly selected again to serve. Both the prosecutor and the defendant get an opportunity to participate in the selection of the jury through a process called voir dire.

I don't live in Hawai'i! Do I have to fly back there to resolve my case?

If you are charged with an offense in Hawai'i but are not a resident of the state, there are ways to resolve your case without you having to return to the islands. While not every case can be handled in this way, the majority of petty misdemeanor and misdemeanor cases can be. It is highly recommended that you contact an attorney in Hawai'i as soon as possible regarding you case so that the attorney can make sure no bench warrants are issued for your non-appearance in court.

Is there a way I can look up court records in Hawai'i online?

Depending on the type of case, there are a couple of web pages where you can find court records in Hawai'i. If you are wanting to search for traffic cases, go to the eCourt Kokua page. You can search by name, license plate, VIN or citation number to find any active or past traffic cases. If you are looking for Family Court or Circuit Court cases, use Ho'ohiki. On both of these sites you can see the dates and times of court hearings past and future, court minutes of past hearings, the names of judges who sat on past hearings, and the filing information for any documents filed in the case (you can not actually view the filed documents). Unfortunately, there is not any way presently to look up District Court criminal case information online. For other online court information, check out my "Resources" page.

What is a "hung jury"?

In order to acquit or convict someone of a crime in a jury trial, all members of the jury must unanimously agree on the verdict. If the jurors are unable to unanimously agree on either a conviction or an acquittal, then the jury is "hung" and the court will dismiss the jury and declare a mistrial. Typically, the court will reset the case for trial again with a new jury to see if a verdict can be reached. If the court determines that further trials are not likely to result in a verdict, and after weighing other considerations such as the seriouness of the offenses, the court may also dismiss the case with prejudice. Usually this isn't done until after two hung juries.

 

JasonBurks25

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