EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, December 28, 2012

Hawaii Five-O: Hawai'i Court Finds Official Duty Presumption Inapplicable to Warrantless Arrest

Hawai'i Rule of Evidence 304(c) sets forth a number of presumptions that impose a burden of proof:

(1) Owner of legal title is owner of beneficial title. The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.  

(2) Official duty regularly performed; lawful arrest. It is presumed that official duty has been regularly performed. This presumption does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.  

(3) Intention of ordinary consequences of voluntary act. A person is presumed to intend the ordinary consequences of the person's voluntary act.  

(4) Doing of an unlawful act. An unlawful intent is presumed from the doing of an unlawful act.  

(5) Any court, any judge acting as such. Any court of this State or the United States, or any court of general jurisdiction in any other state or nation, or any judge of such a court, acting as such, is presumed to have acted in the lawful exercise of its jurisdiction. This presumption applies only when the act of the court or judge is under collateral attack.  

(6) Ceremonial marriage. A ceremonial marriage is presumed to be valid.  

(7) Death. A person who is absent for a continuous period of five years, during which the person has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead.

In Kaneshiro v. Administrative Director of Courts, 2012 WL 6621141 (Hawai'i App. 2012), the respondent sought to rely upon the presumption contained in Rule of Evidence 304(c)(2). But there was one little problem...

In Kaneshiro

Ronald Kaneshiro...was stopped at a sobriety checkpoint roadblock and arrested for operating a vehicle under the influence of an intoxicant (OVUII). Respondent–Appellee Administrative Director of the Courts, State of Hawai‘i..., acting through a hearing officer of the Administrative Driver's License Revocation Office..., sustained the administrative revocation of Kaneshiro's driver's license. Kaneshiro sought judicial review of the Director's decision. The District Court of the First Circuit...affirmed the Director's decision and issued a "Decision and Order Affirming Administrative Revocation" and a "Judgment on Appeal"...on May 19, 2008. Kaneshiro appeal[ed] from the this Judgment.

Kaneshiro's argument on appeal was "that the District Court erred in holding that there was sufficient evidence to find that the police stopped Kaneshiro's vehicle in conformity with the predetermined roadblock procedure of stopping every fifth vehicle." In response, the Director of the Courts claimed "that the presumption of '[o]fficial duty regularly performed' (official duty presumption) set forth in Hawai'i Rules of Evidence (HRE) 304(c)(2)" could be applied to the case at hand. 

The Intermediate Appellate Court of Hawai'i disagreed, finding that 

The commentary to HRE 304(c)(2)  reveals that the presumption was not intended to apply to warrantless seizures or searches. Commentary to HRE Rule 304 ("The qualification barring extension of the [official duty] presumption to the lawfulness of arrests or searches conducted without warrants is implicit in search and seizure law[.]"). 



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