80 Hawai'i 358, Miller v. Tanaka, 17148

• Decision Date: 30 November 1995
• Docket Number: No. 17148,17148
• Parties: 80 Hawai'i 358 Robert C. MILLER, Petitioner-Appellant, v. Irwin TANAKA, Administrative Director of the Courts, State of Hawai'i, Respondent-Appellee.
• Court: Hawaii Court of Appeals

Page 129

910 P.2d 129

80 Hawai'i 358

Robert C. MILLER, Petitioner-Appellant, v. Irwin TANAKA, Administrative Director of the Courts, State

of Hawai'i, Respondent-Appellee.

No. 17148.

Intermediate Court of Appeals of Hawai'i.

Nov. 30, 1995.

Order Denying Reconsideration Dec. 29, 1995.

Certiorari Denied Jan. 16, 1996.

As Amended March 15, 1996.

Syllabus by the Court

Hawai'i Revised Statutes (HRS) § 286-259(a) and (j) (1993) require that an administrative hearing to review the Administrative Director of the Courts' (the Director) revocation of a person's driver's license must be scheduled to begin no later than twenty-five days from the date of the notice of administrative revocation, unless good cause is shown for a continuance.

The term "good cause" has been defined to mean a substantial reason amounting in law to a legal excuse for failing to perform an act required by law. "Good cause" also depends upon the circumstances of the individual case, and a finding of good cause lies largely in the discretion of the officer or court to which the decision is committed.

On appeal, the Director's decision to grant a continuance for good cause shown under HRS § 286-259(j) is reviewed under the abuse of discretion standard.

The requirement that the administrative hearing take place no later than twenty-five days of the notice of revocation is mandatory, and the failure to follow it without good cause voids the administrative revocation of a person's driver's license.

At the administrative hearing held under HRS § 286-259 (1993), an arrestee is entitled, in presenting a defense, to challenge and thus, to examine (or cross-examine) the material witness on the question of whether there was good cause to continue the administrative hearing pursuant to HRS § 286-259(a) and (j).

To ensure that an arrestee's rights are adequately protected, the Director should issue all requested subpoenas unless the witness does not possess any relevant evidence or the subpoena request is otherwise deficient. If a proper request is made for a subpoena for a relevant witness, the refusal to issue the subpoena would constitute an abuse of discretion.

HRS § 286-259(d)(3) provides that "[t]he director shall conduct the hearing and have authority to ... [r]eceive and determine the relevance of evidence[.]" HRS § 286-259(d)(3) does not otherwise limit the Director's discretion in determining what evidence is relevant. Under the statutory language of HRS § 286-259(d)(3), the Director retains the discretion to determine what evidence is relevant, therefore, on appeal, the Director's decision to receive evidence is reviewed for abuse of discretion.

The arresting officer's reference to the police report in his sworn statement was sufficient to establish facts demonstrating reasonable suspicion and probable cause to arrest because there was no ambiguity as to which police report was involved.

The failure to notify Petitioner of the Director's discretion to issue a conditional permit to drive to persons who do submit to a test for intoxicating liquor pursuant to HRS § 286-264 (1993) was immaterial. Petitioner suffered no prejudice since he chose to take a breathalyzer test and was in fact issued a conditional permit to drive. To the extent the notice was deficient, Petitioner is not entitled to relief because he did, in fact, submit to a test for intoxication.

An intoxilyzer machine is presumed to be working properly thirty days from and after the date an intoxilyzer supervisor tests it for accuracy.

Steven T. Barta, on the brief, Honolulu, for petitioner-appellant.

Edwin L. Baker, Deputy Attorney General, Honolulu, for respondent-appellee (no brief filed).

BURNS, C.J., WATANABE and ACOBA, JJ.

ACOBA, Judge.

Petitioner-Appellant Robert C. Miller (Petitioner) appeals from the district court judgment filed on May 20, 1993, affirming the administrative revocation of his driver's license pursuant to Hawai'i Revised Statutes (HRS) chapter 286, Part XIV (1993). ¹ Petitioner raises several points on appeal. We initially note that the administrative director of the courts (the Director), Respondent-Appellee, did not file an answering brief. Exercising our discretion, we believe that five of Petitioner's points on appeal must be addressed. ² Based on our review, we vacate the judgment filed on May 20, 1993 and remand the case. I.

Petitioner first contends that the Director erred in continuing the administrative hearing at which the Director ³ affirmed the revocation of his driver's license. This question merits extended discussion.

HRS § 286-259(a) and (j) require that an administrative hearing to review the Director's administrative revocation of a person's driver's license must be scheduled to begin no later than twenty-five days from the date of the notice of administrative revocation, unless good cause is shown for a continuance.

§ 286-259 Administrative hearing. (a) If the director administratively revokes the arrestee's license after administrative review, the arrestee may request an administrative hearing to review the decision within five days of the date the administrative review decision is mailed. The hearing shall be scheduled to commence no later than twenty-five days from the date the notice of administrative revocation was issued. The director may continue the hearing only as provided in subsection (j).

....

(j) For good cause shown, the director may grant a continuance either of the commencement of the hearing or of a hearing that has already commenced. If a continuance is granted at the request of the director, the director shall extend the validity of the temporary permit for a period not to exceed the period of the continuance. If a continuance is granted at the request of the arrestee, the director shall not extend the validity of the temporary permit. For purposes of this section a continuance means a delay in the commencement of the hearing or an interruption of a hearing that has commenced other than for recesses during the day or at the end of the day or week.

(Emphases added.)

The requirement that the administrative hearing take place no later than twenty-five days from the notice of revocation is mandatory, and the failure to follow it without good cause "voids the administrative revocation of [a] driver's license...." Aspinwall v. Tanaka, 9 Haw.App. 396, 405, 843 P.2d 145, 149 (1992), cert. denied, 74 Haw. 651, 845 P.2d 1193 (1993).

On February 5, 1993, Petitioner submitted a request for an administrative hearing to review the Director's revocation of his driver's license. The hearing was scheduled by the Administrative Driver's License Revocation Office (ADLRO) for February 19, 1993, some twenty-three days after the Notice of Administrative Revocation was issued. On February 19, 1993, the ADLRO continued the hearing to March 11, 1993, setting the hearing forty-three days after the Notice of Administrative Revocation. The Director sent a letter dated February 19, 1993 to Petitioner notifying him of the continuance. A form entitled "Request for Continuance of Administrative Hearing and Extension of Temporary Permit" is part of the record on appeal. It indicates the continuance was a "Director's continuance" and the reason for continuing the hearing was stated on the form as follows: "Due to the unavailability of hearing officers (family emergency and illness), hearing being continued by the ADLRO. ADLRO to resubpoena witnesses." The statement was signed by a Wesley Oasa (Mr. Oasa) as the "Requestor" and "for [the] Chief Adjudicator" and dated February 19, 1993. The statement was admitted into evidence over Petitioner's objection.

At the hearing held on March 11, 1993, Petitioner's counsel objected to the continuance of the hearing to March 11, 1993. Petitioner's counsel questioned the lack of specific facts underlying the request for continuance and indicated that Petitioner would have been available for the hearing at any time on February 19, 1993 and on the following day. Because the statement had been admitted over Petitioner's objection, Petitioner's counsel requested the opportunity to cross-examine Mr. Oasa, the maker of the statement, on the facts supporting the continuance.

[PETITIONER'S COUNSEL]: ... [F]irst of all we object to the characterization of this hearing having been continued. It never began; so I think the proper characterization is that the hearing date had been continued. And as you indicated--

HEARING OFFICER: Alright [sic].

[PETITIONER'S COUNSEL]:--had been continued from February 19. We object to that continuance. We were notified on the 19[th] that the hearing would not take place for the reasons you stated. However, no offer was made as to which officers were gone, how many were gone, how many were still at the ADLRO, and what the remaining schedule or calendar was for the rest of the day. We would have been available to come any time during the 19[th] for that hearing.

In addition to that, we would have been available to come the following day, the following working day. [Petitioner] is entitled to a hearing within 25 days; no reason has been offered as to why a hearing could not have been scheduled within that 25 day time period, the 19th not being the 25th day.

Additionally at this time I would like an opportunity to examine the maker of that statement which is in the record which you have admitted into evidence over our objection. That document which says that the Hearings Officers were unavailable. We would ask you now [for] the opportunity to call [Mr. Oasa] in and examine him to determine the exact situation.

HEARING OFFICER: Alright [sic]. What do you want to ask him?

[PETITIONER'S COUNSEL]: I wish to ask him which Hearings Officers were present on the 19[th], which--how many cases were scheduled. I'm sure he has a calendar which has the ... schedule for that day. And I would like to thereby determine independently whether or not there was an opportunity to...