"I defend & help people facing OVUII (DUI) charges and License Revocations in the state of Hawaii."
- Robert D. Eheler, Jr.
Attorney at Law
The OVUII offense is a traffic crime so those charged with an OVUII will be subject to the criminal court’s jurisdiction. The first step, investigation, begins the moment an officer’s attention is drawn to your vehicle. Allegedly, you may have committed a moving violation such as crossing lane markings, speeding, failure to use a turn signal or merely weaving within your lane. Or, you may have simply had expired plates and/or safety check or been involved in an accident. Once an officer’s attention is on you, the officer continues to observe your driving behavior up to the moment when you are stopped. In other words, the officer must establish a justifiable reason for stopping you or, as stated in the law, the officer must point to specific and articulable facts that justify stopping you. The investigation continues as the officer approaches your car with flashlight in hand checking inside the vehicle for contraband, paraphernalia and/or open containers. While conversing with you, the officer is listening for slurred or mumbled speech, smelling for the odor of alcohol, burnt marijuana and/or other substances and viewing your eyes for clues that would indicate alcohol and/or drug consumption as well as whether you dropped the requested documents asked for and whether your clothing has a disheveled look.
Once an officer smells the odor of any controlled substance, it is almost a guarantee that you will be asked to exit your vehicle to participate in a field sobriety test (FST). The officer’s observations continue with the manner in which you exit the vehicle such as using the door for support. The officer also looks for unsteadiness, swaying, tripping etc. as you make your way to the testing area. The officer continues to use his senses of smell, sight and hearing throughout the FSTs. The FSTs consist of the Horizontal Gaze Nystagmus Test (HGN), Walk and Turn or Heel to Toe Test and the One Leg Stand or Leg Raise. The officer is testing you on two (2) criteria, (1) how well you follow instructions, and (2) how well you perform the tests. One other test being employed in the last couple of years is the Preliminary Alcohol Screening test (PAS) or Preliminary Breath Test (PBT), as it is commonly known in other jurisdictions outside Hawai‘i. This test is used to detect the presence of alcohol in your body.
After the FST and PAS, the officer will look at the totality of the evidence and most likely come to the decision to arrest you for suspicion of OVUII, the next step in the criminal process. At this juncture, the officer is most concerned about two (2) legal hurdles that must be met in order to get a conviction. First, did the officer have reasonable suspicion to stop you and second, did the officer have probable cause to arrest you. These legal standards of proof are very low and easy for an officer to meet. As discussed above, any technical violation of the law provides reasonable suspicion to stop, but, so does weaving within your lane. Probable cause, the next highest standard of proof, is what an officer needs to make an arrest. After gathering all of the facts would a reasonable person other than the officer have a good faith belief that a crime has been committed (OVUII) and you’re the person who committed it, i.e. you were the driver.
The investigation continues through observation after your arrest while you’re being transported. For example, the transporting officer, who could be the arresting officer and/or the stopping officer, is paying attention for the presence of odors or whether you’re slurring your speech, if engaged in conversation. A common statement in police reports is “[d]uring the transport . . . did not eat, drink, smoke or regurgitate while in my custody.” At the police station, the booking process begins and it is during this time that you will be read the implied consent law, the third step in the OVUII criminal process. Under the implied consent law, you have the option to take a breath and/or blood test or refuse to be tested in the case of being suspected of being impaired by alcohol. A breath test under .080 will result in your release in most cases. If you are suspected of drug impairment, an officer qualified as a Drug Recognition Expert (DRE) may be summoned to put you through battery of further testing before you are given the choice taking or refusing a blood and/or urine test. An exception could be if you were involved in an accident in which you were the at-fault driver. If you take a blood or urine test, the test results are not readily available and, in that event, you will most likely be formally charged. If the breath test is .080 or greater, you will be charged for OVUII. Your mugshot and fingerprints will be taken as part of the booking process, bail will be set and you can post bail yourself or through a bond company or you may be released on your own recognizance (RORd) or be released pending investigation (RPI’d) . In some cases you can be held and brought directly to court for arraignment. At this point the investigation essentially ends.
The final authority to formally prosecute you for the crime of OVUII is the Prosecutor’s Office. The Prosecutor’s office will review the reports and decide what the final charges will be. In Hawai‘i, the Prosecutor’s Office will then file a written complaint or information, as it is commonly referred to in other jurisdictions. At that time, you are now subject to the criminal court’s jurisdiction and you and/or your attorney’s failure to appear will in most cases result in a forfeiture of any posted bail and the issuance of a bench warrant for your arrest. The first appearance in court is called the arraignment where you will receive the written complaint from the deputy prosecutor. The Court will inquire whether you want the complaint read to you and if you understand the charge(s) and whether you plead guilty, not guilty or no contest. If you plead guilty, you are admitting you committed the charge(s). If you plead not guilty, you are denying you committed the charge(s). If you plead no contest, you are not admitting or denying you committed the charge(s) but the court will find you guilty because the Court will deem the charges are correct because you are not defending the charges against you. In reality, because of the potential jail sentence you are facing, the arraignment Court will only accept a not guilty plea and refer you to the Public Defender’s Office or give you an opportunity to retain a private attorney. After the not guilty plea is entered, a trial date, the next step in the criminal process, is set at which time the officers involved in your arrest are subpoenaed by the Prosecutor’s Office to appear and testify against you.
At the trial setting you will either exercise your constitutional right to a trial or your attorney will plea bargain with the Deputy Prosecutor. Plea bargaining is an opportunity to take responsibility for the offense(s) charged and get a lesser sentence and/or some charges dismissed in exchange for your plea to the OVUII charge. If you don’t plea bargain, then the State has the burden of proving you guilty of each charge beyond a reasonable doubt, the highest standard of proof in the law. You do not have to prove yourself innocent, testify or put on any evidence whatsoever. If the State fails to prove the charge(s), you will be found not guilty by the Court. If you are found guilty, the last step is sentencing. In most cases, this occurs immediately after the verdict.
Your conviction triggers possible jail, community service and/or fines. Depending on your history of prior convictions, a verdict of guilty will result in fines, possible or mandatory jail, license revocation, community service and/or other miscellaneous assessments. It is also possible that the criminal proceeding could be dismissed without trial. A major difference in the criminal proceeding is that the judge does not review the police reports and form an opinion prior to your appearance in court. The State has the burden of subpoenaing the officers to appear and testify. Without the officer(s) presence, the State is unable to proceed and cannot obtain a conviction.
ROBERT D. EHELER, JR. Attorney at Law
Pauahi Tower at Bishop Square 1003 Bishop Street, Suite 2700 Honolulu, HI 96813 (808) 531-9957