Background
On February 12, 2023, Officer Alexis Molina stopped Basil Woody after observing traffic violations; Woody drove more than a mile before pulling into her driveway. After exhibiting signs of intoxication and blowing a blood alcohol level above 0.15, Woody was charged with operating a vehicle under the influence of an intoxicant as a highly intoxicated driver under HRS § 291E-61(a)(1) and/or (a)(3) and (b)(4). Woody moved to suppress evidence of the warrantless seizure and arrest, with the suppression hearing continued at Woody’s request to June 16, 2023.
Nine days before the rescheduled hearing, the State issued a subpoena for its sole witness, Officer Molina. Four days before the hearing, Molina informed the State he could not appear due to military reservist training. The State filed its motion to continue just two days before the hearing. At the June 16 hearing, the District Court of the Third Circuit found the State had not exercised due diligence to secure Molina’s availability and denied the continuance. With no other witnesses and no evidence to counter the suppression motion, the district court granted the motion to suppress in its entirety.
The State appealed to the Intermediate Court of Appeals (ICA), which vacated the suppression order after applying the ICA’s own four-factor “Lee test” — originally drawn from a Fifth Circuit opinion and adopted in State v. Lee, 9 Haw. App. 600 (1993) — and finding the State had exercised sufficient diligence. Woody petitioned for certiorari, arguing the Hawaii Supreme Court had never adopted the Lee test and that the ICA erred in overriding the district court’s due diligence finding.
The Court’s Holding
The Hawaii Supreme Court vacated the ICA’s decision and remanded, rejecting the Lee test in its entirety. The Court held that the Lee test — which required a movant to show due diligence, that the witness would provide substantial favorable evidence, that the witness is available and willing to testify, and that denial would cause material prejudice — is both unworkable and fundamentally unfair when applied to State motions to continue. The Court agreed with the district court that the State had failed to demonstrate due diligence under HRPP Rule 48(c)(4)(i), reversing the ICA on that point.
In place of the Lee test, the Court established a two-step framework for State motions to continue based on witness unavailability. First, the court must assess whether the State exercised due diligence under HRPP Rule 48(c)(4)(i); if not, the continuance period cannot be excluded under Rule 48, and per State v. Gillis, 63 Haw. 285 (1981), Rule 48(c)(8)’s good cause exclusion is also unavailable. Second, if time remains under the Rule 48 six-month deadline, the court must still consider whether to grant a continuance under the common law good cause standard, analyzing the totality of circumstances.
Under that totality-of-circumstances inquiry, courts should consider at minimum: (1) whether the witness’s unavailability was unanticipated or not reasonably foreseeable; (2) whether the witness is anticipated to provide relevant and material testimony that benefits the State; and (3) prejudice to either side from granting or denying the continuance. Applying this new standard, and noting that the Rule 48 deadline would not expire until October 2023, the Court held that good cause existed to grant the State a reasonable continuance to secure Officer Molina’s testimony for the suppression hearing. The district court’s suppression order was therefore not reinstated.
Key Takeaways
- The Lee test — previously applied by the ICA to continuance motions based on witness unavailability — is now rejected in full by the Hawaii Supreme Court for both defense and State motions in Hawaii state courts.
- When the State moves to continue based on witness unavailability, courts must first evaluate due diligence under HRPP Rule 48(c)(4)(i); a failure of due diligence also forecloses exclusion under the Rule 48(c)(8) good cause provision per Gillis.
- Even if due diligence is lacking, if time remains on the Rule 48 speedy-trial clock, courts must separately analyze whether good cause to continue exists under the common law totality-of-circumstances standard — considering foreseeability of unavailability, materiality of the witness, and prejudice to either party.
- Hawaii appellate courts disfavor sanctions as severe as de facto dismissal; a continuance should be considered before evidence is suppressed in a manner that leaves the prosecution unable to proceed.
Why It Matters
This decision resolves a significant gap in Hawaii criminal procedure by establishing a clear, unified framework for evaluating State motions to continue when a key witness is unavailable. By discarding the rigid Lee test — which could effectively force dismissal of serious charges based solely on a lack of due diligence, even with ample time remaining under Rule 48 — the Court aligns Hawaii practice with the more flexible totality-of-circumstances approach used by California and Colorado. Prosecutors, defense attorneys, and district court judges now have explicit guidance on the sequential analysis required: first Rule 48(c)(4)(i) due diligence, then common law good cause if the speedy-trial deadline has not yet run.
The ruling also carries a practical warning for prosecutors: failing to timely subpoena or contact witnesses will not automatically doom a continuance request, but it will forfeit Rule 48 excludability and require a separate showing of good cause. Courts retain discretion to deny the continuance, but must weigh the full circumstances — including whether denial amounts to a de facto dismissal of charges — rather than applying a mechanical checklist.