NO. 22175
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAII
NOEL JAY ROBISON, ) JR98-0093
Petitioner-Appellant, )
v. ) OF THE FIRST CIRCUIT, HONOLULU
ADMINISTRATIVE DIRECTOR OF THE )
COURTS, STATE OF HAWAII, )
Respondent-Appellee. )
________________________________)
ORDER GRANTING MOTION FOR PARTIAL RECONSIDERATION
AND AMENDING OPINION OF THE COURT
Upon consideration of the Motion for Partial Reconsideration filed by Respondent-Appellee Administrative Director of the Courts, State of Hawaii on April 28, 2000,
IT IS HEREBY ORDERED that said motion be and is hereby granted;
IT IS FURTHER ORDERED that the Opinion of this court filed on April 19, 2000 (the Opinion) is hereby amended by deleting pages 15, 16, and 17 of the Opinion and substituting in their place, the pages 15, 16, and 17 attached to this Order.
The Clerk of the Court is directed to incorporate the foregoing changes in the Opinion.
DATED: Honolulu, Hawaii, May 8, 2000.
CORINNE K. A. WATANABE
Acting Chief Judge
SIMEON R. ACOBA, JR.
Associate Judge
JOHN S. W. LIM
Associate Judge
and Robison thus "enjoyed uninterrupted driving privileges." We disagree.
The record reveals that Robison did everything within his power to ensure that the hearings could proceed expeditiously. Additionally, Robison incurred much expense, inconvenience, and uncertainty regarding his status as a result of the continued hearings. Not only did he incur the expense of serving and re-serving subpoenas for each hearing, he also had to rearrange his schedule to be present at each hearing and pay fees for his attorney to be present at each hearing as well. Robison thus suffered substantial detriment as a result of the hearing officer's granting of the continuances without first determining that the specific facts underlying Officer Branco's general statement constituted "good cause" to support the continuances.
D. Robison's Due Process and Statutory Rights Were Violated When the Hearing Officer Held the Fourth Hearing and Precluded Robison from Cross-examining Officer Branco.
"A driver's license is a constitutionally protected interest and due process must be provided before one can be deprived of his or her license." Kernan v. Tanaka, 75 Haw. 1, 21, 856 P.2d 1207, 1218 (1993), cert. denied, 510 U.S. 1119 (1994). Moreover, HRS § 286-259(g) explicitly provides that
[u]pon notice to the [D]irector no later than five days prior to the hearing that the arrestee wishes to examine a law enforcement official who made a sworn statement, the [D]irector shall issue a subpoena for the official to appear at the hearing. If the official cannot appear, the official may at the discretion of the [D]irector testify by telephone.
(Emphasis added.) In Kernan, the supreme court upheld the constitutionality of the administrative hearing process for reviewing the administrative revocation of a driver's license because
Hawaii's procedure allows the arrestee to correct any mistakes that may have been made by the [D]irector as well as to challenge the reports and statements presented against him. See HRS §§ 286-258(f) and 259(d). The arrestee is also given the opportunity to confront those who submitted statements and reports. Id. These procedures provide a reasonable and reliable basis for ascertaining the facts.
Id. at 27-28, 856 P.2d at 1221.
In this case, Robison properly exercised his due process and statutory rights to subpoena Officer Branco, the arresting officer, to appear at the four scheduled hearings. Robison was entitled, in preparing his defense, to have Officer Branco present, either personally or telephonically, at the hearings. Moreover, Robison appeared for each of the four administrative hearings and was ready to "examine" Officer Branco each time. When Officer Branco left a message prior to the fourth hearing that he would be unable to testify because he would be in the 'Ewa District Court, the hearing officer, upon Robison's objection to any further continuances, did not determine that good cause existed for a continuance and, instead, proceeded with the fourth hearing as scheduled.
The Director was not represented by counsel at the hearing. However, the hearing officer received into evidence numerous documents, including the arrest report of Officer Branco. Because Officer Branco was not present, Robison was unable to question the officer about his report and the underlying arrest. Under these circumstances, we conclude that Robison was denied his due process and statutory rights to examine "a law enforcement official who made a sworn statement[.]"
CONCLUSION
In light of the foregoing discussion, we vacate the district court's Decision and Judgment and remand this case to the district court with instructions that it reverse the Director's September 8, 1998 Findings of Fact, Conclusions of Law and Decision. See Simmons v. Administrative Director, 88 Hawaii 55, 67, 961 P.2d 620, 632 (1998); HRS § 286-260(d) (Supp. 1999).
On the briefs:
Timothy I. MacMaster
for petitioner-appellant.
Renee Van Keulen,
Deputy Attorney General,
for respondent-appellee.