    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***



                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-15-0000461
                                                              20-OCT-2017
                                                              08:47 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                           STATE OF HAWAIʻI,
                    Respondent/Plaintiff-Appellee,

                                    vs.

                           GEORGE FUKUOKA,
                   Petitioner/Defendant-Appellant.


                            SCWC-15-0000461

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-15-0000461; 2DTA-14-01165)

                            OCTOBER 20, 2017

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

          The district court in this case dismissed without

prejudice the charges against Petitioner George Fukuoka based

upon a violation of Rule 48 of the Hawaii Rules of Penal

Procedure (HRPP).    On appeal, the Intermediate Court of Appeals



                                     1
      ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


(ICA) rejected Fukuoka’s contention that the district court

abused its discretion in not dismissing the case with prejudice.

Fukuoka on certiorari to this court reasserts that the charges

were not serious as a matter of law and that the State of Hawaii

should have been precluded from reinstituting prosecution.               In

our review of the ICA’s decision, we consider the principles

that guide a trial court in exercising its discretion to dismiss

a case with or without prejudice for a violation of HRPP Rule

48.   We conclude that the ICA did not err and affirm its

Judgment on Appeal.

                 I. FACTUAL AND PROCEDURAL BACKGROUND

            On September 28, 2014, George Fukuoka was arrested for

operating a vehicle under the influence of an intoxicant

(OVUII).    He posted bail and was ordered to appear at the

District Court of the Second Circuit, Molokaʻi Division,

(district court) on October 28, 2014.

            On October 22, 2014, the State of Hawaiʻi filed a five-

count complaint.      The counts were as follows: 1) OVUII, in

violation of Hawaii Revised Statutes (HRS) §§ 291E-61(a)(1)

and/or 291E-61(a)(3) and 291E-61(b) (Supp. 2012); 2) inattention

to driving, in violation of HRS § 291-12 (Supp. 2012); 3)

reckless driving, in violation of HRS § 291-2 (2007); 4) duty

upon striking an unattended vehicle or other property, in


                                       2
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


violation of HRS § 291C-15 (Supp. 2012); and 5) lack of due

care, in violation of Maui County Code (MCC) § 10.52.010 (1965).1

            Fukuoka appeared at district court on October 28, 2014

for arraignment and entered pleas of not guilty to all of the

charges.2   The district court set a pretrial conference for

November 25, 2014.      At the pretrial conference, Fukuoka

requested that he be permitted to issue subpoenas duces tecum

for the personnel and internal affairs files of Maui Police

Department (MPD) officers involved in the underlying incident.

     1
            Counts 1 through 3 are classified by the Hawaii Revised Statutes
as petty misdemeanors. See HRS § 701-107(4) (Supp. 2013) (an offense is a
petty misdemeanor if it is so designated or if it provides that persons
convicted thereof may be sentenced to a term of imprisonment not to exceed 30
days); HRS § 291E-61(b)(1) (providing maximum possible term of 5 days’
imprisonment for a first offense OVUII); HRS § 291-12 (providing maximum
possible term of 30 days’ imprisonment for inattention to driving); HRS
§ 291-2 (providing maximum possible term of 30 days’ imprisonment for
reckless driving).

            Count 4 is classified by the Hawaii Revised Statutes as a
violation punishable by fines. See HRS § 291C-161 (2007 & Supp. 2012)
(identifying as a violation “violat[ing] any of the provisions” of HRS
chapter 291C and imposing a fine not to exceed $200 for a first offense); HRS
§ 291C-15 (providing trauma system special fund surcharge of up to $100 for
violating duty upon striking an unattended vehicle or other property in
addition to other penalties imposed by HRS chapter 291C).

            Count 5 constitutes a violation punishable by a fine of not more
than $100 for a first offense and not more than $250 for every subsequent
offense. See MCC § 10.72.020 (1983) (defining penalty for violation) (last
amended 1983); MCC § 10.08.050 (1980) (identifying as a violation “do[ing]
any act forbidden or fail[ing] to perform any act required” by title 10 of
the Maui County Code) (last amended 1980).
      2
            The Honorable Adrianne N. Heely presided over the preliminary and
discovery proceedings in this case. The Honorable Kirstin M. Hamman presided
over the motion to dismiss the complaint with prejudice and the motion to
reconsider the court’s dismissal without prejudice.




                                      3
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


The court issued an order on December 12, 2014, permitting

Fukuoka to issue the subpoenas, and the returns of service on

two subpoenas were filed three days later.

          On December 18, 2014, the County of Maui (County), on

behalf of MPD, moved to quash the subpoenas (Motion to Quash).

The hearing date of December 23, 2014 was continued to January

27, 2015; in the meantime, MPD filed documents under seal for in

camera review.    At the scheduled hearing, the district court

continued the matter initially to February 10, 2015 and then

later to February 20, 2015.

          At a status conference on February 20, 2015, Fukuoka

and the County agreed to a protective order regarding the files

to be produced pursuant to the subpoenas.         Later that day, the

district court filed an order granting in part and denying in

part the Motion to Quash.      The court also set a March 24, 2015

trial date.

          On February 24, 2015, Fukuoka filed a proposed sua

sponte order resetting the trial date, which indicated that the

new trial date was necessary due to a previously scheduled

trial.   Three days later, the district court entered the order,

rescheduling the trial from March 24, 2015 to April 14, 2015.

          On the date of trial, Fukuoka filed with the district

court a motion to dismiss the complaint with prejudice (Motion



                                     4
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


to Dismiss) on the ground that his rights under HRPP Rule 48 had

been violated.3    Fukuoka contended that the case should be

dismissed because 198 days had elapsed between his September 28,

2014 arrest and the April 14, 2015 trial date and that no HRPP

Rule 48 exclusions applied to that period.          Fukuoka also argued,

pursuant to the three-factor test set forth by this court in

State v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981), that the

case should be dismissed with prejudice.          Fukuoka submitted that

the first Estencion factor, the seriousness of the offense,

weighed heavily in his favor because all of the charges against

him were petty misdemeanors, which are not “serious offenses” in

comparison to full misdemeanors.          Fukuoka maintained that his

position was supported by the fact that the constitutional right

to a jury trial did not attach to a first OVUII offense because

it is a petty offense and not constitutionally serious.

           As to the remaining factors, Fukuoka submitted that

the second factor, the facts and circumstances of the case that

led to the dismissal, also weighed in his favor because the

delay before trial was the fault of the district court for not

timely resolving the issues related to the subpoenas duces
      3
            Fukuoka also argued that the case should be dismissed because of
a violation of his constitutional speedy trial right. This issue is not
raised in Fukuoka’s application for a writ of certiorari, and therefore it is
not addressed.




                                      5
       ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


tecum.     The third factor, impact of reprosecution on the

administration of HRPP Rule 48 and on the administration of

justice, also weighed in his favor, Fukuoka argued, because a

reprosecution would frustrate the fair administration of HRPP

Rule 48 and of justice.

             The State argued in response that there was no HRPP

Rule 48 violation because much of the elapsed time period should

be charged to Fukuoka as he requested pretrial continuances, he

had never requested that the district court set a trial date,

and the State had never requested a continuance.              The State

reserved argument on whether the dismissal should be with or

without prejudice until the district court ruled on whether

there was a violation of HRPP Rule 48.            Later that day, the

court issued an order dismissing the case without prejudice

(Order Dismissing Without Prejudice).

             Fukuoka filed a motion to reconsider the court’s

dismissal without prejudice (Motion to Reconsider).              He argued

that petty misdemeanors are not serious offenses as a matter of

law.    Fukuoka also contended that the facts and circumstances

leading to dismissal should be viewed in his favor because many

of the delays were due to the County’s Motion to Quash.

             In response, the State maintained that the delay was

at least partly attributable to the defense.             The State



                                        6
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


submitted that the impact of reprosecution on the administration

of justice weighed in its favor because of the short length of

the delay and because the reasons for the delay were proper.                As

for the seriousness of the offense, the State alluded to various

circumstances of the incident, which the defense challenged.4

           The district court denied the Motion to Reconsider.

In its oral ruling, the court stated that it was not taking into

consideration circumstances regarding the incident that had been

stated by the prosecution at the hearing.          The district court

also stated that “given the short delay[, it did] not find that

there would be a significant impact of reprosecution under

[HRPP] Rule 48.”     An Order Denying Motion to Reconsider was

entered at the conclusion of the hearing.

           Thereafter, the district court issued findings of

fact, conclusions of law, and an order granting in part and

denying in part the Motion to Dismiss (Findings of Fact and

Conclusions of Law).      The court found that Fukuoka’s case had

been pending disposition for 198 days and that trial would have

commenced within the 180-day deadline but for the court’s sua

     4
            The State contended that “this was a serious accident” involving
“blood at the scene” and that a windshield that “was thrown quite far.” The
State also suggested that Fukuoka fled the scene of the accident. In
rebuttal, Fukuoka argued that these assertions were hearsay and that the
State did not have a declaration of an officer to support the assertions.




                                      7
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


sponte order continuing the trial date.         Citing HRPP Rule 48(c),

the district court stated that a delay due to court congestion,

absent exceptional circumstances, is not an excludable time

period.   The court noted that the order resetting the trial date

did not indicate any exceptional circumstances for the resetting

of trial.    Thus, finding no applicable excludable time periods

under HRPP Rule 48(c), the district court concluded that HRPP

Rule 48 had been violated because trial had not commenced with

180 days of Fukuoka’s arrest and the setting of bail.

            The district court then addressed whether dismissal of

the case would be with or without prejudice.          The court stated

that it had considered the three Estencion factors.           First, as

to the seriousness of the offenses, the court reasoned that the

charges were serious in nature, the offense of intoxicated

driving can result in significant harms, the other charges were

tied to the OVUII offense, and the court would not extend the

constitutional jury trial right analysis to its determination

under HRPP Rule 48.

            With respect to the facts and circumstances of the

case that led to the dismissal, the district court found that it

was well within the right of the County to file a Motion to

Quash the subpoenas duces tecum.         The court noted that the

prosecution did not request any continuances nor have control



                                     8
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


over the resolution of the issues relating to the Motion to

Quash.   Additionally, the district court determined that, but

for the court’s sua sponte order continuing the trial to April

14, 2015, the trial would have commenced within the time period

required by HRPP Rule 48.      As to this factor, the court found

that it weighed in favor of dismissal without prejudice.

          Lastly, as to the impact of reprosecution, the

district court noted that there had been no showing of prejudice

to Fukuoka and that reprosecution furthers the public’s interest

in bringing defendants charged with crimes to trial.           The court

found that the 18-day delay was not substantial.           The court

concluded that the seriousness of the offenses and the facts and

circumstances that led to the dismissal outweighed any impact of

reprosecution on the administration of HRPP Rule 48 and on the

administration of justice.      Accordingly, the district court

determined that the dismissal should be without prejudice.

          Fukuoka appealed to the ICA from both the Order

Dismissing Without Prejudice and the Order Denying Motion to

Reconsider.   Fukuoka principally focused his argument on the

contention that petty misdemeanors should be non-serious as a

matter of law under the first Estencion factor.          The State

responded that there was no abuse of discretion because the

district court had properly applied the holding of Estencion,



                                     9
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


and it disputed Fukuoka’s argument that petty misdemeanors

should be categorically non-serious.         In reply, Fukuoka

contended that seriousness in the context of HRPP Rule 48 is

linked to the constitutional jury trial right.           Fukuoka also

argued that the district court’s conclusion that the prosecution

had no control over the process of resolving the subpoenas and

the Motion to Quash improperly relieved the prosecution from its

shared responsibility of carrying out HRPP Rule 48 requirements.

           In a Summary Disposition Order (SDO) affirming the

Order Dismissing Without Prejudice,5 the ICA stated that it had

already rejected a mechanical per se rule for the “seriousness

of the offense” factor, citing State v. Kim, 109 Hawaii 59, 66,

122 P.3d 1157, 1164 (App. 2005).          Rather, the ICA concluded that

“the maximum possible punishment is merely one measure of the

gravity of the offense” and that the trial court may consider

the combination of the charges brought against the defendant.

The ICA noted that the district court had determined that

“although the charges were petty misdemeanors, . . . the

offenses were inextricably tied to the OVUII charge, and that

OVUII was a serious offense because it could result in


     5
            The ICA’s SDO can be found at State v. Fukuoka, No. CAAP-15-
0000461, 2016 WL 5107025, 2016 Haw. App. LEXIS 405 (Sept. 20, 2016) (SDO).




                                     10
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


significant harm to life and property.”          The ICA also concluded

that the seriousness of an offense with respect to HRPP Rule 48

is not related to whether the offense is constitutionally petty

and thus “does not determine whether an offense is serious under

Estencion.”    Therefore, the ICA held that the district court did

not abuse its discretion in finding that the offenses were

serious for purposes of HRPP Rule 48 and that the court did not

err in dismissing without prejudice the charges against Fukuoka.6

            In his application for a writ of certiorari, Fukuoka

asserts that petty misdemeanors are categorically non-serious

offenses under Estencion, that the district court erred in its

determination that the facts and circumstances weighed in favor

of dismissal without prejudice, and that the court erred in

concluding that these two Estencion factors outweighed any

impact of the third factor.       Accordingly, Fukuoka contends that

the district court abused its discretion in dismissing his case

without prejudice.

                        II. STANDARD OF REVIEW

            We review a trial court’s decision to dismiss a case

with or without prejudice for violation of HRPP Rule 48 for
     6
            The ICA also concluded that Fukuoka had waived any challenge to
the Order Denying Motion to Reconsider and determined that his remaining
arguments were without merit.




                                     11
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


abuse of discretion.     See State v. Estencion, 63 Haw. 264, 269,

625 P.2d 1040, 1044 (1981).       An abuse of discretion occurs when

“the decisionmaker ‘exceeds the bounds of reason or disregards

rules or principles of law or practice to the substantial

detriment of a party.’”       State v. Kony, 138 Hawaii 1, 8, 375

P.3d 1239, 1246 (2016) (quoting State v. Vliet, 95 Hawaii 94,

108, 19 P.3d 42, 56 (2001)).

                             III. DISCUSSION

                   A. HRPP Rule 48 and Estencion

           HRPP Rule 48 is intended to “ensure an accused a

speedy trial, which is separate and distinct from [the]

constitutional protection to a speedy trial.”             State v.

Estencion, 63 Haw. 264, 268, 625 P.2d 1040, 1043 (1981).

Subsection (b) of HRPP Rule 48 provides in relevant part as

follows:

                 (b) By court. Except in the case of traffic offenses
           that are not punishable by imprisonment, 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:

                  (1) from   the date of   arrest if bail is set or from
             the filing of   the charge,   whichever is sooner, on any
             offense based   on the same   conduct or arising from the
             same criminal   episode for   which the arrest or charge was
             made . . . .

HRPP Rule 48(b) (2000) (emphasis added).            Thus, under HRPP Rule

48, a court must dismiss the charges upon the defendant’s motion

when trial has not commenced within six months from the date of


                                     12
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


arrest if bail is set or from the filing of the charge,

whichever is sooner, taking into account any periods of delay

excluded under the rule.       See HRPP Rule 48(b)(1), (c) (2000).

            Though dismissal for a violation of HRPP Rule 48 is

mandatory, whether to dismiss charges with or without prejudice

is subject to the discretion of the court.           HRPP Rule 48(b).       We

have adopted factors from the federal Speedy Trial Act to guide

our courts in exercising this discretion.          Estencion, 63 Haw. at

269, 625 P.2d at 1044.       In determining whether to dismiss the

case with or without prejudice, “the court shall consider, among

others, each of the following factors: the seriousness of the

offense; the facts and the circumstances of the case which led

to the dismissal; and the impact of a reprosecution on the

administration of this chapter and on the administration of

justice.”    Id. (quoting 18 U.S.C.A. § 3162(a)(1) (1969, Supp.

1980)).7



      7
            Courts of this jurisdiction that have interpreted the three
factors (including the ICA in this case) have considered federal caselaw
analyzing the language of the federal Speedy Trial Act from which the three-
part Estencion test was adopted. See, e.g., State v. Coyaso, 73 Haw. 352,
357, 833 P.2d 66, 68-69 (1992); State v. Hern, 133 Hawaii 59, 64-65, 323 P.3d
1241, 1246-47 (App. 2013); State v. Kim, 109 Hawaii 59, 62-64, 122 P.3d 1157,
1160-62 (App. 2005). Because the Estencion court adopted its analysis from
analogous provisions of the federal Speedy Trial Act, this court likewise
considers federal caselaw regarding those provisions in interpreting the
three Estencion factors. There are, however, significant differences between
HRPP Rule 48 and the federal Speedy Trial Act with respect to calculating

                                                             (continued . . .)



                                      13
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


            Although not set forth as one of the three enumerated

factors, “prejudice to the defendant may be a relevant

consideration in the trial court’s decision to dismiss with or

without prejudice” under HRPP Rule 48.          State v. Coyaso, 73 Haw.

352, 357, 833 P.2d 66, 69 (1992).         However, an inquiry into

prejudice to the defendant “will most often be inherent in the

court’s examination of the impact of reprosecution on the

administration of [HRPP] Rule 48 and the administration of

justice.”    Id.    We have also concluded that “the trial court may

consider other factors it finds to be relevant to the case

before it” beyond those enumerated in Estencion.            Id.

            In analyzing whether to dismiss a case with or without

prejudice under HRPP Rule 48 and Estencion, the trial court must

“clearly articulate the effect of the Estencion factors and any

other factor it considered in rendering its decision.”             State v.

Hern, 133 Hawaii 59, 64, 323 P.3d 1241, 1246 (App. 2013).8



(. . . continued)

whether a violation occurred, including the length of elapsed time that
results in a violation and the periods of delay excluded from calculation.
      8
             In Hern, the ICA concluded that the trial court had abused its
discretion when it dismissed the case without prejudice based on the court’s
“typical practice” of HRPP Rule 48 dismissals and because the trial court
failed to make specific findings with respect to the Estencion factors. 133
Hawaii at 61, 323 P.3d at 1243.




                                     14
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Accordingly, the court must explain the effect of the Estencion

factors on its reasoning to dismiss a charge with or without

prejudice.    Id.    The court is not required, however, to make a

determination as to whether each individual factor weighs in

favor of dismissal with or without prejudice.9

           The trial court must therefore provide an “explanation

of its consideration of the Estencion factors[,]” and any other

factors it considered, “and the basis for its decision.”             See

id. at 65, 323 P.3d at 1247.        Accordingly, to address the merits

of Fukuoka’s claim on certiorari, we consider general principles

applicable to each of the Estencion factors, review the effect

of the Estencion factors on the district court’s decision, and

then determine whether the district court abused its discretion

in dismissing the case without prejudice.

                    i.    Seriousness of the Offense

                     a.     Relevant Considerations

           Fukuoka’s argument on certiorari relates primarily to

the first Estencion factor, seriousness of the offense.


     9
            Additionally, even if the trial court elects to make such a
determination with regard to some or all of the Estencion factors, the court
may conclude that a factor does not favor the prosecution or the defense.
See United States v. Montecalvo, 861 F. Supp. 2d 110, 116 (E.D.N.Y. 2012)
(concluding that the seriousness of the offense factor “in this case does not
weigh in favor of either party”).




                                     15
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Specifically, Fukuoka contends that petty misdemeanors are

categorically non-serious offenses for purposes of determining

whether to dismiss a case with or without prejudice for a

violation of HRPP Rule 48.

          The first Estencion factor requires the court to

consider “the seriousness of the offense.”         Estencion, 63 Haw.

at 269, 625 P.2d at 1044.      However, considering the seriousness

of an offense does not mean that a court simply determines

whether the offense is serious or not serious.          Courts are

reluctant to identify any crime as “non-serious.”           See United

States v. Montecalvo, 861 F. Supp. 2d 110, 114-15 (E.D.N.Y.

2012) (observing that a review of the caselaw concerning the

seriousness of the offense factor reveals “very few cases that

deem a crime ‘non-serious’ for Speedy Trial Act purposes”);

United States v. Peppin, 365 F. Supp. 2d 261, 264 (N.D.N.Y.

2005) (reasoning in context of the seriousness of the offense

factor that “[c]ourts are reluctant to declare any federal

crime . . . as ‘not serious’”).

          For this reason, the inquiry into the seriousness of

the offense is “more complex than awarding a ‘yes’ or ‘no’

determination of seriousness.”       Peppin, 365 F. Supp. 2d at 264.

Rather, offenses vary in seriousness, and whether an offense is

more or less serious will depend on the particular charges in a



                                    16
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


given case.    United States v. Mancuso, 302 F. Supp. 2d 23, 26

n.1 (E.D.N.Y. 2004) (noting that “[a]ny felony charge is

serious” but observing that “there are degrees of seriousness”

for purposes of the first factor).

            Determining the relative seriousness of an offense is

consistent with the wording of the factor itself, which requires

that the court consider the seriousness of the offense rather

than whether an offense is serious or non-serious.           See

Estencion, 63 Haw. at 269, 625 P.2d at 1044.          Analyzing the

relative seriousness of the offense rather than making a

categorical determination of “serious” or “non-serious” also

facilitates a more nuanced balancing of the three Estencion

factors.

            Thus, although every crime may be considered “serious”

in a general sense, the trial court in considering the first

Estencion factor should determine the relative seriousness of

the particular offense at issue, i.e., whether the offense is

more serious or less serious for purposes of dismissal under

HRPP Rule 48 and not whether an offense is “serious” or “non-

serious.”   See United States v. Pierce, 17 F.3d 146, 149 (6th

Cir. 1994) (rejecting a “mechanical test” based on federal

sentencing guidelines “to label an offense ‘serious’ or ‘not

serious’” and requiring courts considering the seriousness of



                                    17
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


the offense to “carefully consider[]” the “gravity” of the

offense); see also State v. Kim, 109 Hawaii 59, 62-64, 122 P.3d

1157, 1160-62 (App. 2005) (rejecting the argument that felonies

are categorically not serious for purposes of HRPP Rule 48 when

there are no exacerbating circumstances such as violence).

          Relevant caselaw likewise shows that rather than deem

certain classes of offenses to be categorically serious or non-

serious, the trial court should consider whether the individual

offenses charged are more serious or less serious by looking to

a variety of factors relating to the individual offense.            The

trial court may consider, for example, the possible penalties

for the offense charged.      See, e.g., Kim, 109 Hawaii at 63-64,

122 P.3d at 1161-62 (in considering seriousness factor, noting

that charged drug offense carried possible sentence of five

years’ imprisonment); United States v. Koory, 20 F.3d 844, 847

(8th Cir. 1994) (offenses were more serious based in part on

“the length of the applicable minimum and maximum sentences”).

Consideration of an offense’s possible penalty may include a

review of both the possible term of imprisonment and other

penalties that may be implicated following a finding of guilt.

See, e.g., Montecalvo, 861 F. Supp. 2d at 115 (observing large

financial sum forfeited by racketeering defendants in

considering the seriousness of the offense).


                                    18
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


          Significantly, a trial court considering whether an

offense is more or less serious for purposes of HRPP Rule 48 may

also look to the nature of the offense charged.          See, e.g.,

United States v. Medugno, 233 F. Supp. 2d 184, 186 (D. Mass.

2002) (witness tampering and intimidation offenses were serious

because they involved obstruction of justice, “a crime that

strikes at the very heart of our justice system”); United States

v. Munlyn, 607 F. Supp. 2d 394, 398-99 (E.D.N.Y. 2009) (in

considering the seriousness of possession of a firearm as a

convicted felon, noting that offense had been deemed a “crime of

violence” because the “possession of a gun by its nature gives

rise to a risk of its use in violence” (quoting United States v.

Dillard, 214 F.3d 88, 94 (2d Cir. 2000))); Montecalvo, 861 F.

Supp. 2d at 116 (“the non-violent nature” of a mail fraud

conspiracy charge “is a factor to take into consideration and

does weigh against the seriousness of [the defendant’s]

offense”).

          In evaluating seriousness, a trial court may also

consider the combination of charges and the relation among

multiple charges.    See, e.g., Koory, 20 F.3d at 847 (noting the

fact of multiple charged felonies in considering the seriousness

of the offense factor); United States v. Hastings, 847 F.2d 920,

925 (1st Cir. 1988) (noting that defendant was indicted on



                                    19
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


multiple drug and weapons charges and reasoning that the

“presence of several such charges in this case . . . militates

strongly against dismissal with prejudice”).

          Additionally, although the trial court may consider

the nature of the offense charged, the inquiry into seriousness

generally centers on the charge, rather than on the underlying

facts of the particular case.       See Mancuso, 302 F. Supp. 2d at

26 n.1 (the seriousness factor “ordinarily focuses solely on the

charge rather than, e.g., the strength of the government’s case

or the likely outcome of the proceedings,” because “[t]o do

otherwise would inordinately complicate and extend the

analytical process”).     Focusing on the charge rather than on the

underlying facts is appropriate because, by the very nature of

the HRPP Rule 48 violation, it is likely that evidence has yet

to be proffered and analyzed for admissibility under the Hawaii

Rules of Evidence and the state and federal constitutions; as a

result, such evidence may not have been tested for reliability

or accuracy.

          Permitting the State and the defendant to present

evidence on the underlying facts of the case, and requiring the

court to determine whether these facts weigh in favor of

dismissal with or without prejudice, would also unnecessarily

complicate and lengthen proceedings that are intended to



                                    20
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


“relieve congestion in the trial court” and to “advance the

efficiency of the criminal justice process.”           Estencion, 63 Haw.

at 268, 625 P.2d at 1043 (discussing the purposes of HRPP Rule

48).10    However, when the charge itself includes information

pertinent to the seriousness inquiry, such information may be

relied upon by the trial court.        See, e.g., State v. Pulse, 83

Hawaii 229, 239, 925 P.2d 797, 807 (1996) (concluding that

circuit court did not abuse its discretion, when it considered

that the charge involved assaultive behavior with a firearm).11

            Fukuoka’s argument in support of a categorical rule as

to misdemeanor and petty offenses for purposes of an HRPP Rule


      10
            The proceedings in this case are illustrative of the
complications inherent in relying on the underlying facts of a case when
analyzing the seriousness of the offense factor. Although no evidence was
proffered or admitted with regard to Fukuoka’s Motion to Dismiss, the State
contended at the hearing on the Motion to Reconsider that the seriousness of
the offense factor weighed in favor of dismissal without prejudice because
“this was a serious accident” involving “blood at the scene” and a broken
windshield; the State also suggested that Fukuoka fled the scene of the
accident. In rebuttal, Fukuoka argued that this was “hearsay, double
hearsay.” We do not address this issue because the district court expressly
disavowed reliance on these allegations regarding the incident in its oral
ruling denying the Motion to Reconsider. However, we observe that permitting
the proceedings to devolve into a trial-like hearing on the merits would run
counter to the purposes of HRPP Rule 48.
     11
            See also Peppin, 365 F. Supp. 2d at 264 (reasoning that the
defendant was charged with possession of marijuana with intent to distribute
and noting that “[t]he drug at issue is . . . an arguably less serious drug
than heroin, cocaine or methamphetamine”); Koory, 20 F.3d at 847 (where the
defendant was charged with possession of cocaine with intent to distribute
within 1,000 feet of an elementary school, seriousness of the offense weighed
in favor of dismissal without prejudice in part given proximity of the
offense to a school).




                                     21
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


48 violation is misguided.      First, although an offense’s

classification as a misdemeanor or felony and the offense’s

possible penalty are a significant part of a court’s

determination of the seriousness of an offense, a variety of

factors should be considered in determining whether the offense

is more serious or less serious, as discussed above.           See, e.g.,

Pulse, 83 Hawaii at 239, 925 P.2d at 807 (holding no abuse of

discretion that the trial court, when considering seriousness

factor, stated that the case involved a Class A felony, “the

most serious level of felony” and that the nature of the charge

involved assaultive conduct with a firearm).          HRPP Rule 48 is

best served by a comprehensive approach in which the trial court

evaluates the relative seriousness of an offense based on

several factors, rather than determining whether one single

aspect of the charge renders an offense “serious” or “non-

serious.”    See Mancuso, 302 F. Supp. 2d at 26 n.1.

            Second, we are not persuaded by Fukuoka’s argument

that an offense’s possible sentence should play a dispositive

role as to the first factor because of a sentence’s significance

in constitutional jury-trial-right jurisprudence.           Whether the

right to a jury trial attaches to an offense may be considered




                                    22
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


for purposes of determining whether an offense is more serious

or less serious under the first Estencion factor.12           However,

fully importing jurisprudence on the constitutional jury trial

right into an analysis regarding a Hawaiʻi Rule of Penal

Procedure is not warranted.       The right provided by HRPP Rule 48

is intended to “ensure an accused a speedy trial.”            Estencion,

63 Haw. at 268, 625 P.2d at 1043.         “[I]ts purpose is also in

furtherance of policy considerations to relieve congestion in

the trial court, to promptly process all cases reaching the

courts, and to advance the efficiency of the criminal justice

process.”    Id.   In contrast, the purpose of the constitutional

jury trial right is to, inter alia, “prevent[] miscarriages of

justice,” “assur[e] that fair trials are provided for all

defendants,” and “mak[e] judicial or prosecutorial unfairness

less likely.”      See Duncan v. Louisiana, 391 U.S. 145, 157-58

     12
            The jury trial right provided for by the Hawaii Constitution
attaches only to “serious crime[s].” State v. Wilson, 75 Haw. 68, 73, 856
P.2d 1240, 1243 (1993) (deeming the relevant inquiry for constitutional jury
trial right as whether an offense “is a petty versus serious crime”). To
determine whether an offense is constitutionally serious thus guaranteeing
the right to trial by jury, courts look to “(1) treatment of the offense at
common law; (2) the gravity of the offense; and (3) the authorized penalty.”
Id. at 74, 856 P.2d at 1244 (citing State v. O’Brien, 68 Haw. 38, 41-43, 704
P.2d 883, 885-87 (1985)). Thus, to the extent that an offense’s
categorization as a crime entitling a defendant to a jury trial is indicative
of its “seriousness” within the meaning of Estencion, the fact that an
offense has been deemed of sufficient constitutional gravity to entitle one
to a jury trial may be considered in the context of the first Estencion
factor.




                                     23
       ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


(1968) (identifying right to jury trial as a fundamental right

applicable to the states through the Fourteenth Amendment).13

              In sum, when considering the seriousness of the

offense, the trial court should conduct a particularized inquiry

that may include considerations of the possible penalty, the

nature of the offense charged, the combination of charges, and

other factors that weigh on the seriousness of a particular

offense.      Though an offense’s possible sentence and

categorization as a misdemeanor or petty offense are relevant to

the inquiry, HRPP Rule 48 and the first Estencion factor require

the court to consider the charges on a case-by-case basis.

  b.        District Court’s Application of the Seriousness of the
                              Offense Factor

              The dismissed charges in this case included OVUII,

inattention to driving, reckless driving, duty upon striking an

unattended vehicle or other property, and lack of due care.                   In

its Findings of Fact and Conclusions of Law, the district court

       13
            As noted by the ICA, the difference between the constitutional
jury trial right and HRPP Rule 48 is further demonstrated by this court’s
prior rulings that an OVUII offense is subject to the protections of HRPP
Rule 48 but that a right to trial by jury does not attach to a first-offense
OVUII. Compare State v. Nakata, 76 Hawaii 360, 374, 878 P.2d 699, 713 (1994)
(holding that the constitutional jury trial right does not attach to a first-
offense OVUII based on determination that the offense is “constitutionally
petty”), with State v. Lau, 78 Hawaii 54, 60, 890 P.2d 291, 297 (1995)
(holding that HRPP Rule 48 applies to driving under the influence of
intoxicating liquor offenses because it is a crime that subjects an
individual to a possible term of imprisonment).




                                       24
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


concluded that “the charges are serious in nature.”           The court

stated that “commission of the crime of OVUII can result in

significant harm to life and property by way of vehicular

accidents due to intoxicated driving.”         The court also

referenced the multiple charges, stating that “[t]he remaining

charges in this case are inextricably tied to the charge of

OVUII.”   Lastly, the court determined that although OVUII is a

petty offense for purposes of the constitutional right to a jury

trial, it would “not extend the same analysis” for determining

the gravity of OVUII for purposes of HRPP Rule 48.

           As stated, in evaluating the seriousness of the

offense, the trial court may consider possible penalties, the

nature of the offense charged, the combination of charges, and

other factors.    Here, the district court observed that

intoxicated driving poses a safety risk to others on the

highways and that the OVUII offense was linked to the other four

charges in this case.     The district court also correctly

rejected the contention that the charged offenses were not

serious merely because they did not entitle Fukuoka to a jury

trial.    Thus, the district court explained its reasoning in




                                    25
      ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


relation to the first Estencion factor, applying relevant

considerations in concluding that the offenses were “serious.”14

ii.        Facts and Circumstances of the Case that Led to Dismissal

                       a. Relevant Considerations
              Under the second Estencion factor, a court in

determining whether to dismiss a case with or without prejudice

for violation of HRPP Rule 48 must consider “the facts and the

circumstances of the case which led to the dismissal.”

Estencion, 63 Haw. at 269, 625 P.2d at 1044.            In evaluating the

facts and circumstances of the case, the court should focus on

“the culpability of the conduct that led to the delay.”              United

States v. Cano-Silva, 402 F.3d 1031, 1036 (10th Cir. 2005); see

United States v. Peppin, 365 F. Supp. 2d 261, 265 (N.D.N.Y.

2005) (under the facts and circumstances factor, “[t]he inquiry

thus turns to who is responsible for the delay and for what

reasons”); Wayne R. LaFave et al., Criminal Procedure 1072 (6th


      14
            The district court appears to have made a categorical
determination that the offenses charged were “serious.” However, rather than
give a “‘yes’ or ‘no’ determination of seriousness[,]” Peppin, 365 F. Supp.
2d at 264, this first Estencion factor obliges courts to look to a variety of
considerations to determine the relative seriousness of an offense, see
Pulse, 83 Hawaii at 239, 925 P.2d at 807. See supra III(A)(i)(a). Although
the district court examined some of these considerations, it did not indicate
the relative seriousness of the offenses. Such a determination would assist
the trial court in determining whether the balance of the factors weighs in
favor of allowing or precluding reprosecution, see infra III(B), and the
appellate court in its review of that determination.




                                      26
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


ed. 2017) (observing that determining whether to dismiss a case

with or without prejudice for violation of federal Speedy Trial

Act involves weighing of “government ‘fault,’ and defense

‘fault’”); State v. Pulse, 83 Hawaii 229, 239, 925 P.2d 797, 807

(1996) (concluding that circuit court did not abuse its

discretion, when it considered as a factor that the record did

not indicate that the State sought to delay the trial).

          Relevant considerations within this factor may include

whether the delay was caused by the State’s neglect or

deliberate misconduct.     United States v. Bert, 814 F.3d 70, 80

(2d Cir. 2016); see United States v. James, 861 F. Supp. 151,

156 (D.D.C. 1994) (dismissing case with prejudice when federal

Speedy Trial Act violation was based on prosecution’s failure to

comply with the rule relating to motions to dismiss and noting

that the court “cannot condone the Government’s failure to

recognize and follow the requirements of the Federal Rules of

Criminal Procedure”).     Similarly, the court may consider whether

the delay was caused by the defendant’s conduct when analyzing

this factor.   In United States v. Taylor, for example, the

Supreme Court concluded that a defendant’s “culpable conduct” in

failing to appear for trial and his flight before the case was

to be tried prevented the trial from going forward in a timely

fashion in the first instance and was “certainly relevant as


                                    27
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


‘circumstances of the case which led to the dismissal.’”            487

U.S. 326, 340 (1988).

          The trial court should also consider delays caused by

the court itself.    See, e.g., United States v. Ramirez, 973 F.2d

36, 39 (1st Cir. 1992) (“When a [Speedy Trial Act] violation is

caused by the court or the prosecutor, it weighs in favor of

granting a dismissal with prejudice.”); United States v. Howard,

218 F.3d 556, 561 (6th Cir. 2000) (acknowledging possibility

that a lengthy “period of inactivity on the part of the district

court may warrant dismissal with prejudice in some cases”);

United States v. Moss, 217 F.3d 426, 431-33, 436 (6th Cir. 2000)

(Gilman, J., concurring in the judgment) (noting that the text

of the federal Speedy Trial Act “clearly expresses Congress’s

concern that, without prodding, judges would not bring

defendants to trial with sufficient speed” and concurring in the

judgment remanding for an order dismissing with prejudice where

district court had taken defendant’s motion to suppress under

advisement for ten months).

          However, although neglect by the court or the State

may be considered in determining whether the facts and

circumstances of the case weigh in favor of dismissal with or

without prejudice, a finding of neglect or intentional

misconduct is not necessary to determine that this Estencion



                                    28
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


factor weighs in favor of a dismissal with prejudice.             See

Ramirez, 973 F.2d at 38–39 (affirming a dismissal with

prejudice, reasoning that “[n]othing unusual occurred” in the

case and “district court merely lost track of the [Speedy Trial

Act] deadline” and noting that violations caused by the court or

prosecutor weigh in favor of granting dismissal with

prejudice).15

b.    District Court’s Application of the Facts and Circumstances
                              Factor

            The district court concluded in this case that the

facts and circumstances that led to dismissal weighed in favor

of dismissal without prejudice.         In support of its conclusion,

the court reasoned that “[n]one of the continuances were at the

request of the prosecution.”        The court further determined that


      15
             In addition to considering the reasons for the delay, some courts
give consideration to the length of the delay in analyzing this second
factor. See, e.g., Bert, 814 F.3d at 81 n.7 (considering the length of delay
in the context of facts and circumstances leading to dismissal but
acknowledging that it is also “intertwined with the element of prejudice”).
However, the length of delay is most appropriately considered when analyzing
the third Estencion factor, impact of reprosecution on the administration of
HRPP Rule 48 and on the administration of justice. See, e.g., State v. Kim,
109 Hawaii 59, 64-65, 122 P.3d 1157, 1162-63 (App. 2005) (analyzing the
length of delay under the third Estencion factor); United States v. Koerber,
813 F.3d 1262, 1285 (10th Cir. 2016) (stating that the “length of delay” is
relevant when assessing the impact of reprosecution on the federal Speedy
Trial Act and on the administration of justice). Thus, although the length
of delay in a given case may be considered by a trial court in determining
whether an HRPP Rule 48 dismissal should be with or without prejudice, it is
most appropriately considered in the context of the third Estencion factor
and will be discussed in greater detail below.




                                      29
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


“the prosecution had no control over the process of” resolving

the subpoenas duces tecum filed by Fukuoka and the County’s

resulting Motion to Quash.16

            As discussed, when evaluating the facts and

circumstances that led to the dismissal, the court should

consider “the culpability of the conduct that led to the delay.”

United States v. Cano-Silva, 402 F.3d 1031, 1036 (10th Cir.

2005).    While Fukuoka’s discovery request triggered the County’s

Motion to Quash, it was followed by multiple continuances over a

two-month period before the motion was resolved.            Nothing

indicates that Fukuoka requested the discovery to delay trial.

See United States v. Peppin, 365 F. Supp. 2d 261, 264 (N.D.N.Y.

2005) (noting that, under this factor, one of the main

considerations is the reasons for the delay).           Further, the

rescheduling of the trial was attributable to court congestion,

insofar as the March 25, 2015 trial date was rescheduled to

April 14, 2015, due to a previously scheduled proceeding.

            The district court appears to have determined that the

second Estencion factor weighed in favor of dismissal without


     16
            The district court also appears to have considered the length of
delay in this case within the second Estencion factor, as it concluded that
the 18-day delay was not “substantial.” For the reasons discussed, see
infra, III(A)(iii)(a), the district court’s conclusion is analyzed within the
context of the third Estencion factor.




                                     30
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


prejudice because the State was not to blame for the delay, the

County had the right to file the Motion to Quash, and the

prosecution had no control over the process.           Our caselaw,

however, has emphasized that the prosecution shares with the

court and the defendant the “responsibility for carrying out the

speedy-trial requirements of [HRPP] Rule 48.”           Coyaso, 73 Haw.

at 356, 833 P.2d at 68 (quoting State v. English, 68 Haw. 46,

53, 705 P.2d 12, 17 (1985)); State v. Faalafua, 67 Haw. 335,

339, 686 P.2d 826, 829 (1984) (quoting State v. Soto, 63 Haw.

317, 321, 627 P.2d 279, 281 (1981)).

            Accordingly, the court, the prosecution, and the

defendant have a responsibility to facilitate timely resolution

of proceedings, including discovery issues involved in a case

and moving the case forward.17

            Thus, simply because the County filed the Motion to

Quash does not relieve the court and the parties from seeking to

     17
            The rule governing discovery, HRPP Rule 16, helps to expedite the
discovery process, thereby allowing parties to get to trial more quickly.
See State v. Dowsett, 10 Haw. App. 491, 497–98, 878 P.2d 739, 743 (1994)
(“Faithful adherence to discovery obligations serves the public interest:
Discovery provides the basic information which is necessary to expedite
trials . . . .”); see also HRPP Rule 16(b)(2) (2012) (“the prosecutor shall
use diligent good faith efforts” to facilitate the obtaining of discovery
when material or information is sought from the possession of other
government entities that would otherwise be discoverable if it had been
within the control of the prosecutor, but if the prosecutor’s efforts are
unsuccessful, “the court shall issue suitable subpoenas or orders to cause
such material or information to be made available to defense counsel”).




                                     31
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


fulfill the requirements of HRPP Rule 48.          However, the record

in this case does not disclose whether the district court, the

prosecution, or the defense bore any responsibility for the

duration of the delay in resolving the Motion to Quash.18

Additionally, the final continuance that resulted in the HRPP

Rule 48 violation was a result of court congestion and not the

actions of the parties.19      Here, the district court fully

acknowledged that periods of delay caused by court congestion

are excludable only when the congestion is attributable to

exceptional circumstances.       While the court did not delineate

its consideration of the court’s shared responsibility for the

trial delay in addressing the facts and circumstances that led

to the dismissal, the Findings of Fact and Conclusions of Law

indicate that the district court did not minimize its




     18
            The district court found that the prosecution had no control over
the resolution of the discovery dispute between Fukuoka and the County.
      19
            It is noted that although Fukuoka was arraigned on October 28,
2014, an initial trial date was not set by the district court until February
20, 2015, the date that the County’s Motion to Quash was ruled upon. An
earlier setting of the trial date may have helped the district court and the
parties to be more cognizant of the approaching expiration of the time period
to commence trial under HRPP Rule 48. See United States v. Ramirez, 973 F.2d
36, 39 (1st Cir. 1992) (“Even though a prosecutor does not bear the burden of
monitoring the court’s compliance with the [Speedy Trial Act] in absence of
an announced rule, district courts do look to prosecutors for assistance as
officers of the court.”).




                                     32
       ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


 responsibility for the trial continuance that resulted in the

 Rule 48 violation.

             On certiorari, Fukuoka’s challenge as to the second

 factor contends that the district court erroneously relieved the

 State from its shared responsibility under HRPP Rule 48.

 Fukuoka, however, references no facts or circumstances that

 indicate the delay in resolving the discovery dispute should be

 attributed to a lack of due diligence by either the County or

 the State.     Additionally, even assuming that the State was not

 diligent with regard to monitoring or seeking to expedite the

 discovery matter, Fukuoka does not present any argument as to

 the effect of any such dilatory conduct on the period of trial

 delay or as to its impact on the district court’s determination

 as to the second factor of the Estencion analysis.             Accordingly,

 the record does not indicate that the district court’s

 evaluation of the second Estencion factor was based upon its

 misapplication of relevant considerations, and additionally, the

 effect of this factor on the reasoning of the court is set forth

 in the court’s Findings of Fact and Conclusions of Law.

iii.    Impact of Reprosecution on the Administration of HRPP Rule
               48 and on the Administration of Justice

                         a. Relevant Considerations

             The third Estencion factor requires the court to

 consider the impact of reprosecution on the administration of


                                       33
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


HRPP Rule 48 and on the administration of justice.           Estencion,

63 Haw. at 269, 625 P.2d at 1044.        Thus, under the third

Estencion factor, the court evaluates considerations relating to

the purposes of HRPP Rule 48 and the administration of justice.

          HRPP Rule 48 operates to “ensure an accused a speedy

trial” and to further “policy considerations to relieve

congestion in the trial court, to promptly process all cases

reaching the courts, and to advance the efficiency of the

criminal justice process.”      Id. at 268, 625 P.2d at 1043; see

also State v. Jackson, 81 Hawaii 39, 53, 912 P.2d 71, 85 (1996)

(same); State v. Hoey, 77 Hawaii 17, 29, 881 P.2d 504, 516

(1994) (same).    “One way in which these goals are achieved is

through the threat of sanctions for violation of HRPP Rule 48.”

Jackson, 81 Hawaii at 53, 912 P.2d at 85.         The rule’s sanction

of a dismissal with prejudice creates an incentive for courts to

“design and implement efficient and fair procedures to decrease

the potential for delay” and for prosecutors “to design

screening procedures to ensure that as much as possible those

cases that may be disposed of by means other than trial are

removed from the criminal justice system as quickly as




                                    34
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


possible.”    Id. (quoting State v. Kahawai, 9 Haw. App. 205, 210-

11, 831 P.2d 936, 939 (1992)).20

           In analyzing the third Estencion factor, however, the

court must also consider the impact of reprosecution on the

administration of justice generally.         Courts have noted that the

“government can always argue that reprosecution furthers the

public’s interest in bringing [defendants] to trial.”             State v.

Kim, 109 Hawaii 59, 64, 122 P.3d 1157, 1162 (App. 2005) (quoting

United States v. Williams, 314 F.3d 552, 559-60 (11th Cir.

2002)).   On the other hand, the administration of justice is

also furthered by the timely and efficient adjudication of

criminal cases.     See Jackson, 81 Hawaii at 54, 912 P.2d at 86

(observing that a remedy that increases congestion in the courts

“disgraces the administration of justice”); United States v.

Koory, 20 F.3d 844, 849 (8th Cir. 1994) (observing that


      20
            Thus, it may be argued that only dismissal with prejudice
effectuates the purposes of the rule and so, the impact of reprosecution on
the administration of HRPP Rule 48 weighs in favor of dismissal with
prejudice. See Jackson, 81 Hawaii at 53 n.13, 912 P.2d at 85 n.13 (dismissal
without prejudice “[i]n effect . . . rewards unacceptable delay with further
delay” (quoting Robert L. Misner, Speedy Trial: Federal and State Practice
300 (1983))). Although the argument may have validity, this consideration
alone is an insufficient basis for dismissal with prejudice. See United
States v. Koory, 20 F.3d 844, 849 (8th Cir. 1994) (“Reprosecution always
involves some element of increased burden on the administration of justice
and hinders the [Speedy Trial] Act’s goal of swift prosecution, yet the Act
does not mandate that every dismissal be with prejudice.”).




                                     35
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


permitting reprosecution may result in an “increased burden on

the administration of justice”).

          These diverse and often competing interests in

furthering the administration of HRPP Rule 48 and in serving the

administration of justice are inherent in every case.            There

are, however, circumstances that are unique to each case that

are relevant to these interests and that a court may consider in

analyzing the third Estencion factor.        See United States v.

Godoy, 821 F.2d 1498, 1506 (11th Cir. 1987) (stating that the

defendants failed to show “any unique circumstances” that weigh

on the impact of reprosecution on the administration of the

speedy trial rule and on the administration of justice).            For

example, the court may consider whether the State or the court’s

conduct in the case reflect a pattern of lack of diligence,

thereby suggesting that dismissal with prejudice is necessary to

vindicate the purposes of HRPP Rule 48 and justice generally.

See United States v. Giambrone, 920 F.2d 176, 180-81 (2d Cir.

1990) (“A pattern of disregard for speedy trial rights is also

detrimental to the administration of the criminal justice system

since delays risk the loss of important evidence, and repetitive

prosecutions on the same charges cause wasteful replication of

effort.”).




                                    36
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


            Prejudice to the defendant may also be considered when

analyzing the impact of reprosecution on the administration of

HRPP Rule 48 and on the administration of justice.           Coyaso, 73

Haw. at 357, 833 P.2d at 69.      Prejudice to the defendant in the

context of a statutory speedy trial violation “may take many

forms” and is often closely related to the length of delay,

insofar as the length of the delay in a given case may be

relevant to the extent that it causes prejudice to the

defendant.    United States v. Taylor, 487 U.S. 326, 340, 341 n.13

(1988) (“The longer the delay, the greater the presumptive or

actual prejudice to the defendant, in terms of his ability to

prepare for trial or the restrictions on his liberty . . . .”);

United States v. Hastings, 847 F.2d 920, 929 (1st Cir. 1988)

(identifying “length of delay” as a “proxy for direct proof of

actual prejudice” because “stretching delay to greater and

greater extents tends ineluctably to provoke prejudice”).

Longer delays, for example, may more significantly impair a

defendant’s ability to mount an effective defense.           See, e.g.,

United States v. Jones, 601 F.3d 1247, 1257-58 (11th Cir. 2010)

(observing in context of the third factor that the brief length

of delay did not impair the defendant’s ability to present his

defense).




                                    37
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


           Although the prejudice caused to a defendant by the

trial delay may be considered in determining the impact of

reprosecution on the administration of HRPP Rule 48 and on the

administration of justice, this court has cautioned that

prejudice to the defendant is not a “mandatory factor to be

considered by the trial court prior to ordering dismissal with

prejudice” for an HRPP Rule 48 violation.21          Coyaso, 73 Haw. at

355, 833 P.2d at 68.      Rather, the Coyaso court held that

“dismissal with prejudice may be warranted without a specific

finding that the defendant has been prejudiced by the delay.”

Id. at 356, 833 P.2d at 68.       Indeed, to consider the absence of

prejudice to be a consequential consideration in analyzing the

third Estencion factor would essentially adopt the considerably

higher standard used in constitutional speedy trial

jurisprudence despite the fact that HRPP Rule 48 is intended to

provide broader protections than the analogous constitutional

guarantee.    See id. at 355-56, 833 P.2d at 68 (observing that

HRPP Rule 48’s purpose is “broader than the constitutional right

to a speedy trial” and rejecting the ICA’s conclusion that a

showing of prejudice was required to prohibit reprosecution
     21
            Fukuoka makes no substantive argument with respect to prejudice
in his application for a writ of certiorari to this court, and therefore, we
do not address this consideration.




                                     38
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


following an HRPP Rule 48 violation because prejudice is a

mandatory factor to consider in constitutional speedy trial

analysis); see also Wayne R. LaFave et al., Criminal Procedure

1069 (6th ed. 2017) (describing that federal and state statutes

guaranteeing the right to a speedy trial are necessary in part

because the constitutional right is inadequate to ensure timely

proceedings and because defendants “as a class need some

additional basis upon which to compel the government to try them

promptly”).   Therefore, although the presence of prejudice to

the defendant may be of substantial importance in analyzing the

third Estencion factor, there is no requirement that the absence

of prejudice “be separately considered prior to dismissal with

prejudice under Rule 48(b).”      Coyaso, 73 Haw. at 357, 833 P.2d

at 69.

b. District Court’s Application of the Impact of Reprosecution
                              Factor

            The district court determined that “the seriousness of

the offenses and the facts and circumstances that led to the

dismissal outweigh any impact of a reprosecution on the

administration of [HRPP Rule 48], and on the administration of

justice.”   The court reasoned that, with respect to the impact

of reprosecution, there had been “no showing of any prejudice to

the defendant” and that “a reprosecution furthers the public’s

interest in bringing criminal defendants to trial.”           The


                                    39
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


district court also determined that the delay of 18 days in

violation of HRPP Rule 48 in this case was not “substantial.”

           As discussed, the trial court is required to explain

the effect of the Estencion factors on its reasoning to dismiss

a charge with or without prejudice.         Hern, 133 Hawaii at 64, 323

P.3d at 1246.     With respect to the third factor, the district

court’s explanation is not clear.         On the one hand, the court

determined that the first and second factors outweighed “any

impact of reprosecution,” which suggests that the district court

concluded that permitting reprosecution in this case would have

an adverse impact on the administration of HRPP Rule 48 and the

administration of justice.22       On the other hand, the court

concluded that reprosecution would serve the public’s interest.

           The district court’s conclusion that “a reprosecution

furthers the public’s interest in bringing criminal defendants

to trial” would inherently be applicable in every case in which

an HRPP Rule 48 violation occurred.         Relying on such a

consideration in analyzing the third Estencion factor would

essentially put a thumb on the scale in favor of dismissal

without prejudice for every HRPP Rule 48 violation, which is

     22
            The district court in its oral order denying the Motion to
Reconsider stated that “given the short delay[, it did] not find that there
would be a significant impact of reprosecution under [HRPP] Rule 48.”




                                     40
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


contrary to the requirement that the trial court consider the

three Estencion factors as they apply to the circumstances of

each individual case.      See Hern, 133 Hawaii at 64-65, 323 P.3d

at 1246-47 (requiring the trial court to analyze and articulate

the effect of the Estencion factors as they apply to each HRPP

Rule 48 violation).

           The district court also concluded in its Findings of

Fact and Conclusions of Law that the 18-day delay was not

“substantial.”     However, identifying a delay as “substantial” or

“not substantial,” based merely on the number of days of delay,

could create a situation in which a motion to dismiss for an

HRPP Rule 48 violation would be brought just before commencement

of the trial in order to make the delay more “substantial.”

Creating an incentive for strategic timing of a motion to

dismiss would not appear to benefit the administration of

justice or HRPP Rule 48 itself.        Rather, the brevity of a delay,

if considered, should be viewed in the context of any potential

impact on the administration of justice or of any prejudice

resulting to the defendant.23       Correspondingly, a long delay may

     23
            While the district court separately “note[d]” in analyzing the
third Estencion factor that Fukuoka had made no showing of prejudice, the
absence of prejudice is not a consequential consideration under the third
factor, see Coyaso, 73 Haw. at 355-57, 833 P.2d at 68-69, as such a
requirement would run counter to HRPP Rule 48’s purpose of providing broader

                                                             (continued . . .)



                                     41
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


be significant in evaluating whether to permit reprosecution,

insofar as a lengthy delay may reflect a lack of due diligence

on the part of the State or the court and adversely impact the

administration of HRPP Rule 48 and the administration of

justice.    See United States v. Giambrone, 920 F.2d 176, 180-81

(2d Cir. 1990).

            Accordingly, although the district court could have

more clearly explained its reasoning regarding the third

Estencion factor, the court’s ultimate assessment that the first

and second factors outweighed any impact of the third factor

indicates that the court recognized the adverse impact of

reprosecution on the administration of HRPP Rule 48 and on the

administration of justice.       Fukuoka made no specific challenge

on certiorari regarding the district court’s analysis of the

third Estencion factor, which implicitly favored Fukuoka’s

position, and the record does not indicate that relevant

considerations were misapplied by the district court to the

extent the court’s evaluation of this factor was affected.

(. . . continued)

protection than the constitutional speedy trial guarantee. See supra
III(A)(iii)(a). It appears that the district court correctly did not weigh
the absence of prejudice against Fukuoka (or at least not to any significant
degree), as the court found that the first two Estencion factors outweighed
the third factor, thus indicating that the court did not consider the absence
of prejudice as a consequential consideration.




                                     42
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


            B.     Dismissal With or Without Prejudice

          In analyzing whether to dismiss a case with or without

prejudice for a violation of HRPP Rule 48, the court must

evaluate each Estencion factor and determine whether the balance

of the factors weighs in favor of permitting or prohibiting

reprosecution.    See State v. Hern, 133 Hawaii 59, 65, 323 P.3d

1241, 1247 (App. 2013) (“The trial court’s explanation of its

consideration of the Estencion factors and the basis for its

decision will permit meaningful appellate review.”); United

States v. Clymer, 25 F.3d 824, 831 (9th Cir. 1994) (observing

that the three factors must be balanced and that no one factor

is dispositive); United States v. Montecalvo, 861 F. Supp. 2d

110, 116 (E.D.N.Y. 2012) (noting that even when seriousness of

the offense factor weighs in favor of dismissal without

prejudice, “seriousness alone is not determinative” and must be

weighed against the other two factors).         When conducting that

analysis, trial courts must consider the factors as they apply

to each individual case.      See Hern, 133 Hawaii at 65, 323 P.3d

at 1247 (remanding to the trial court because the court relied

on a blanket policy to dismiss without prejudice rather than

“considering the Estencion factors and exercising its discretion

based on the particular circumstances” of the case).




                                    43
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


          The district court concluded with regard to the first

Estencion factor that although the charges in this case involve

petty misdemeanor offenses, the charges were serious in nature

as the crime of OVUII can result in significant harms.            The

court also found that the other charges in this case were

inextricably tied to the charge of OVUII.         As to the second

Estencion factor, the court found that the facts and

circumstances in this case did not weigh in favor of dismissal

with prejudice because none of the continuances were at the

request of the prosecution and the prosecution had no control

over the County’s Motion to Quash.        Fukuoka’s contention that

the State was responsible for the delay of trial is not

supported by the record.      As to the third Estencion factor,

relating to the impact of reprosecution on HRPP Rule 48 and the

administration of justice, the district court concluded that any

impact was “outweighed” by the first and second factors.            This

conclusion acknowledged the adverse impact of reprosecution on

the administration of HRPP Rule 48 and on the administration of

justice in this case.     As to each Estencion factor, the district

court, under the circumstances of this case, sufficiently

applied relevant considerations within its analysis.

          The district court also appropriately considered

whether the balance of the factors weighed in favor of



                                    44
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


permitting or prohibiting reprosecution.         In reaching its

decision, the district court evaluated each Estencion factor,

sufficiently explained under the circumstances of this case the

effects of the Estencion factors on its reasoning, and weighed

the Estencion factors against one another.         We therefore

conclude based on the record in this case--and in light of the

applicable principles that guide a court in the exercise of its

discretion--that the district court did not abuse its discretion

in dismissing the charges without prejudice.

                            IV. CONCLUSION

          For the foregoing reasons, the district court’s entry

of the Order Dismissing Without Prejudice was not an abuse of

discretion.   Accordingly, we affirm the ICA’s Judgment on

Appeal.

Hayden Aluli                             /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
John D. Kim and
                                         /s/ Sabrina S. McKenna
Richard K. Minatoya
for respondent                           /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




                                    45
