Summary
In Leatiota, the defendant appealed from a conviction for DUI, arguing that, because there were delays in trying him, he was denied the right to a speedy trial and the charges against him should have been dismissed pursuant to HRPP Rule 48(b).
Summary of this case from State v. LauOpinion
NO. 11572
July 7, 1987
APPEAL FROM DISTRICT COURT OF THE FIRST CIRCUIT.
NAKAMURA, ACTING C.J., PADGETT, HAYASHI, WAKATSUKI, JJ., AND INTERMEDIATE COURT OF APPEALS ASSOCIATE JUDGE HEEN, IN PLACE OF LUM, C.J., RECUSED
P. Gregory Frey ( Stuart M. Cowan on the briefs; Cowan Frey of counsel) for appellant.
G. Cher Foerster, Deputy Prosecuting Attorney, for appellee.
This is an appeal from a conviction for driving under the influence (DUI) (HRS § 291-4(a) (1)). Appellant contends that because of delays in trying him, he was denied a right to a speedy trial and that the case should have been dismissed pursuant to HRPP 48(b), which provides in part:
Except in the case of traffic offenses, the court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months from:
(1) the date of arrest. . . .
HRS Chapter 291 is entitled "Traffic Violations". HRS § 291-4 begins "a person commits the offense of driving under the influence of intoxicating liquor if. . . ."
Appellant contends that since it has been held that a DUI conviction is a serious crime entitling a defendant to a jury trial, State v. O'Brien, 5 Haw. App. 491, 704 P.2d 905, aff'd 68 Haw. 38, 704 P.2d 883 (1985), it cannot be a traffic offense. We do not agree. The rule in question exempts from the six-month provision all traffic offenses, and DUI is clearly, by statute, a traffic offense, even though it is also a serious crime.
Appellant also contends that his state and federal constitutional rights to a speedy trial were violated in this case. Assuming without deciding that this contention was properly raised below and properly preserved on appeal, nevertheless, on the facts in this case as tested by the criteria laid down in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we hold appellant has made no showing of prejudice by reason of the delay in question. Affirmed.