NOT FOR PUBLICATION
IN THE INTERMEDIATE COURT OF APPEALS
MICHAEL
P. WILCOX, Petitioner-Appellant, v. THOMAS R.
KELLER, (1) ADMINISTRATIVE DIRECTOR OF THE
COURTS, STATE
OF HAWAI`I,
Respondent-Appellee
APPEAL
FROM THE DISTRICT COURT OF THE THIRD CIRCUIT,
NORTH AND SOUTH KONA DIVISION
(A.R. No. 02-0001KN)
SUMMARY DISPOSITION ORDER
(By: Burns, C.J., Watanabe, and Foley, JJ.)
The administrative revocation proceeding against Wilcox stemmed from his July 19, 2002 arrest by Hawai`i County Police Officer Renee Morinaka (Officer Morinaka) for driving under the influence of intoxicating liquor. On September 26, 2002, prior to his administrative revocation hearing, rescheduled to October 4, 2002 at his request, Wilcox filed a request with the Administrative Drivers' License Revocation Office to have a subpoena issued upon Officer Morinaka, compelling her attendance at the hearing. The request was approved and the subpoena was issued and mailed to Wilcox the very next day. However, Wilcox's process server, who did not attempt to serve Officer Morinaka until October 1, 2002, was unable to serve the subpoena because Officer Morinaka was on vacation for the month of October and the "Police Department will not contact or call her regarding subpoena." At the hearing, the hearings officer offered to continue the hearing due to Officer Morinaka's absence, but Wilcox rejected the offer.
Wilcox now contends that his due process rights were violated because the police department failed to affirmatively assist him in serving the subpoena upon Officer Morinaka. For the following reasons, we disagree with Wilcox.
On the briefs:First,
Wilcox waived this argument by rejecting the hearings officer's offer
to
continue the hearing until Officer Morinaka could be present for
cross-examination. (2)
Second, contrary to Wilcox's argument, there is absolutely no
evidence that the
police department's refusal to attempt to contact Officer Morinaka in
order to
effectuate service of a subpoena upon the officer during her vacation
constituted
obstruction of government operations, in violation of Hawaii Revised
Statutes
§ 710-1010 (1993 & Supp. 2003), or tampering with a
witness, in violation of HRS §
710-1072 (1993). Third, we agree with the hearings officer that Wilcox's inability to
serve a
subpoena upon Officer Morinaka was caused partly by Wilcox's
procrastination in
requesting and serving the subpoena. Fourth, the facts in Robison
v. Administrative Director of the Courts, 93 Hawai`i
337, 3 P.3d 503 (App. 2000), upon which Wilcox relies, are markedly
different from
the facts in this case. Accordingly, we affirm the Decision and Order Affirming
Administrative Revocation,
entered on January 29, 2003. DATED: Honolulu, Hawai`i, October 27, 2004. Christopher J. Roehrig Girard D. Lau, deputy attorney
(Roehrig, Roehrig, Wilson &
Hara) for petitioner-
appellant.
general, State of Hawai`i, for
respondent-appellee.