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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
13-JUL-2026
09:31 AM
Dkt. 23 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellant,
vs.
BASIL WOODY,
Petitioner/Defendant-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 3DTA-23-00311)
July 13, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND CIRCUIT
JUDGE ASHFORD, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This case requires this court to determine the standard
governing a State motion to continue due to witness
unavailability.
According to Officer Alexis Molina (“Officer Molina”), on
February 12, 2023, he saw Defendant Basil Woody (“Woody”) commit
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several traffic offenses. Although he tried to pull Woody over,
she drove at least a mile to her own house before stopping. He
noticed indicia of alcohol intoxication and arrested Woody.
After an intoxilyzer test at the police station, Woody was
charged with operating a vehicle under the influence of an
intoxicant as a highly intoxicated driver. On April 10, 2023,
Woody filed a motion to suppress the fruits of her warrantless
seizure and arrest.
The hearing on Woody’s motion was originally scheduled to
take place on April 24, 2023. At the hearing, Woody requested a
continuance as discovery had not been provided, and the hearing
was rescheduled to take place fifty-three days later, on June
16, 2023.
Nine days before the rescheduled hearing, the State issued
a subpoena for Officer Molina. Four days before the hearing,
Officer Molina informed the State that he could not appear due
to weekend military reservist training. Two days before the
hearing, the State filed a motion to continue.
At the rescheduled hearing, the District Court of the Third
Circuit1 (“district court”) found the State had not exercised due
diligence to secure Officer Molina’s availability and denied the
State’s motion to continue. After the State conceded it had
1 The Honorable Joanna E. Sokolow presided.
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conducted a warrantless seizure and had no other available
witnesses, and after finding that the State also failed to
establish good cause to continue the hearing, the district court
granted Woody’s motion to suppress in its entirety and scheduled
trial for August 15, 2023. But the grant of the suppression
motion in its entirety essentially meant the State lacked
evidence to present at trial.
On August 14, 2023, the State filed an appeal to the
Intermediate Court of Appeals (“ICA”), arguing it had exercised
due diligence and would otherwise be unable to argue the merits
of its case if the suppression order was not vacated.
The ICA applied its “Lee test” from State v. Lee, 9 Haw.
App. 600, 604, 856 P.2d 1279, 1282 (App. 1993), as the test
governing its review of the State’s motion to continue. State
v. Woody, No. CAAP-XX-XXXXXXX, 2025 WL 2092848, at *2 (Haw. App.
July 25, 2025) (SDO). The ICA had initially adopted the Lee
test to address a defense motion to continue based on witness
unavailability. Lee, 9 Haw. App. at 604, 856 P.2d at 1282. The
test required a defendant to show that (1) the defendant acted
with due diligence to obtain the attendance of the witness; (2)
the witness would provide substantial favorable evidence for the
defendant; (3) the witness is available and willing to testify;
and (4) the denial of the continuance would result in material
prejudice to the defendant. Id.
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In State v. Williander, 142 Hawaiʻi 155, 163, 415 P.3d 897,
905 (2018), this court rejected the Lee test as the standard
governing defense motions to continue as violative of a
defendant’s constitutional right to compulsory process. While
acknowledging Williander, the ICA applied the Lee test to the
State’s motion to continue. Woody, 2025 WL 2092848, at *2 n.2.
The ICA then ruled that the State had exercised due diligence
and otherwise satisfied the test and ordered that the
suppression order be set aside.
On certiorari, Woody argues the ICA erred by applying the
Lee test, which has never been adopted by this court, and by
determining the district court abused its discretion by finding
the State did not act with due diligence.
We hold that the ICA erred by applying the Lee test to the
State as it is also unworkable and unjust even as applied to the
State. We therefore now reject the Lee test in its entirety.
We also hold that the ICA erred by overruling the district
court’s due diligence ruling.
But we do not reinstate the district court’s order granting
the suppression motion.
Instead, we further hold as follows. A State motion to
continue based on witness unavailability is to first be analyzed
for Hawaiʻi Rules of Penal Procedure (“HRPP”) Rule 48 (eff. 2000)
excludability based on HRPP Rule 48(c)(4)(i)’s due diligence
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standard. If the State fails to establish due diligence, State
v. Gillis, 63 Hawaiʻi 285, 288, 626 P.2d 190, 193 (1981),
precludes a court from excluding a continuance period under HRPP
Rule 48(c)(8)’s good cause standard. But if the Rule 48
deadline has yet to expire, the court is to analyze whether a
continuance should be granted based on the common law good cause
standard.
Under the common law good cause analysis, to determine
whether a continuance should still be granted, the court is to
consider the totality of circumstances, which include, but are
not limited to: (1) whether the circumstances that caused the
witness to be unavailable were 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 the State or to the defendant based on the denial
or the grant of a continuance.
Here, the State indicated at the June 16, 2023 hearing that
the six-month deadline under HRPP Rule 48 for trial commencement
would not expire until October 2023. As the district court did
not err in finding a lack of due diligence, we therefore apply
this new totality of circumstances standard. We hold that good
cause existed to grant the State a reasonable continuance to
obtain Officer Molina’s testimony for the suppression hearing.
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Hence, we remand to the district court for further
proceedings consistent with this opinion.
II. Background
A. District court proceedings2
1. Factual background
According to Officer Molina, on February 12, 2023, at
approximately 1:30 AM, he observed Woody’s vehicle traveling
over the speed limit and crossing traffic lines. He turned on
his siren and tried to pull Woody over, but she drove more than
one mile before stopping at her house.
According to Woody, when she pulled over into the driveway
of her home, Officer Molina asked her to step out of the
vehicle. According to Officer Molina, Woody voluntarily exited
her vehicle and showed indicia of intoxication, including red,
watery, and glassy eyes, breath smelling strongly of alcohol,
and being argumentative. Officer Molina also reported that she
tried to push past him and flee into her residence.
Officer Molina arrested Woody and transported her to the
police station, where she apparently blew a blood alcohol level
of over 0.15. She was released from custody later that day.
On February 21, 2023, Woody was charged with operating a
vehicle while under the influence of alcohol based on a blood
2 The facts remain disputed and are based on the State’s and Woody’s allegations.
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alcohol level of at least 0.15, in violation of Hawaiʻi Revised
Statutes (“HRS”) § 291E-61(a)(1) and/or (a)(3) and (b)(4) (Supp.
2021).3 On March 16, 2023, she entered a not guilty plea.
2. Motion to suppress
On April 10, 2023, Woody filed a motion to suppress,
alleging three “warrantless constitutional breaches”: (1) the
3 HRS § 291E-61 provides in relevant part:
(a) A person commits the offense of operating a vehicle
under the influence of an intoxicant if the person operates
or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount
sufficient to impair the person’s normal mental faculties
or ability to care for the person and guard against
casualty;
(3) With .08 or more grams of alcohol per two hundred ten
liters of breath[.]
(b) A person committing the offense of operating a vehicle
under the influence of an intoxicant shall be sentenced
without possibility of probation or suspension of sentence
as follows:
(4) In addition to a sentence imposed under paragraph (1),
for a first offense under this section, or an offense not
preceded within a ten-year period by a conviction for an
offense, any person who is convicted under this section and
was a highly intoxicated driver at the time of the subject
incident shall be sentenced to an additional mandatory term
of imprisonment for forty-eight consecutive hours and an
additional mandatory revocation period of six months;
provided that the total term of imprisonment for a person
convicted under this paragraph shall not exceed the maximum
term of imprisonment provided in paragraph (1).
Notwithstanding paragraph (1), the revocation period for a
person sentenced under this paragraph shall be no less than
eighteen months[.]
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initial seizure of Woody’s vehicle; (2) the request for Woody to
exit her vehicle; and (3) the warrantless arrest of Woody and
transport to the station. She argued that the credibility and
quality of Officer Molina’s observations required an evidentiary
hearing. She requested that the following be suppressed: (1)
her identity as the driver of the vehicle; (2) observations of
her; (3) observations of her demeanor and physical appearance;
and (4) the fruits of the poisonous tree to include any
statements, observations at the police station, and results of a
blood alcohol or breathalyzer test.
The motion was originally scheduled to be heard on April
24, 2023. On that day, Woody requested a continuance to receive
discovery, and the evidentiary hearing was continued to June 16,
2023, fifty-three days later.
On June 7, 2023, nine days before the rescheduled hearing,
the State issued a subpoena for Officer Molina, but it is
unclear on the existing record whether it was ever served. On
June 12, 2023, four days before the hearing, Officer Molina
informed the State that he was a military reservist and would
not be available to testify.
On June 14, 2023, two days before the rescheduled hearing,
the State filed its opposition to Woody’s motion to suppress,
arguing warrantless seizures are generally permissible when
supported by reasonable suspicion, such as Woody’s alleged
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traffic violations. The State further argued probable cause was
established after Woody exited her vehicle, attempted to flee
into her house, exhibited indicia of intoxication, and refused
to participate in standardized field sobriety tests.
On the same day, the State also filed a motion to continue
the hearing on the grounds Officer Molina was unavailable to
testify on June 16, 2023 due to a weekend military training
assignment. The State also indicated Molina had an extended
military service from July 3, 2023 through August 8, 2023.
On Friday, June 16, 2023, the district court began the
rescheduled hearing on the motion to suppress. The State orally
repeated its request for a continuance on the grounds Officer
Molina was not available. The State also represented that the
six-month deadline under HRPP Rule 48(b) would not expire until
October 2023.
The district court expressed concern regarding the State’s
lack of due diligence in waiting so long to ascertain Officer
Molina’s availability and not issuing a subpoena until nine days
before the hearing. The district court then orally denied the
State’s motion to continue. As Officer Molina was the only
witness that could have testified regarding the possible
reasonable suspicion to justify the warrantless seizure, the
State had no evidence to counter the defense motion. The
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district court then granted the motion to suppress and set trial
for August 15, 2023.
On July 28, 2023, the district court entered its written
order granting the motion to suppress. On August 1, 2023, the
district court also entered an order denying the State’s motion
to continue, ruling there was no good cause based on the
timeline of events. The district court noted that if the State
had attempted to contact Officer Molina earlier, the State could
have sought to advance the hearing to accommodate the officer’s
schedule. The district court ordered Woody to return to court
on August 15, 2023, for trial.
On August 14, 2023, the State appealed, arguing the
district court erred by denying the motion to continue and then
granting the motion to suppress.
B. ICA proceedings
The ICA vacated the district court’s order granting the
motion to suppress. Woody, 2025 WL 2092848, at *3.
In doing so, the ICA applied its Lee test, which required a
defendant to show that (1) the defendant acted with due
diligence to obtain the attendance of the witness; (2) the
witness would provide substantial favorable evidence for the
defendant; (3) the witness is available and willing to testify;
and (4) the denial of the continuance would result in material
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prejudice to the defendant. Woody, 2025 WL 2092848, at *2-3
(citing Lee, 9 Haw. App. at 604, 856 P.2d at 1282).
The ICA acknowledged that in Williander, this court
overruled Lee as the test governing defense motions to continue
trial as violative of a defendant’s constitutional right to
compulsory process. Woody, 2025 WL 2092848, at *2 n.2. The ICA
reasoned that Lee still applies, however, when the State moves
to continue. Id.
According to the ICA, at issue here was the first factor,
due diligence. Woody, 2025 WL 2092848, at *3. The ICA noted
“the subpoena for Officer Molina was issued on June 7, 2023; the
assigned prosecutor did not receive the file until June 9, 2023,
[the] ‘last Friday’ before the June 16, 2023 hearing; and the
prosecutor was in communication with the officer regarding his
availability[.]” Id.
The ICA found due diligence to exist, concluding that
“while not prompt, these efforts were reasonable and established
sufficient diligence under the circumstances.” Id.
The ICA ruled the Lee test was otherwise met and then held
the district court abused its discretion by denying the State’s
motion to continue the suppression hearing. Id.
C. Certiorari proceedings
On certiorari, Woody asserts the ICA erred by overturning
the district court’s order granting the motion to suppress. In
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summary, she argues that the State’s efforts in securing the
attendance of Officer Molina were not diligent. She also
asserts that this court has never adopted the Lee test.
III. Standards of Review
A. Decision on motion to continue
A motion for continuance is addressed to the sound
discretion of the trial court, and the court’s ruling will
not be disturbed on appeal absent a showing of abuse of
that discretion. Generally, to constitute an abuse, it
must appear that the court clearly exceeded the bounds of
reason or disregarded rules or principles of law or
practice to the substantial detriment of a party litigant.
Williander, 142 Hawai‘i at 162, 415 P.3d at 904 (cleaned
up).
B. Mixed questions of fact and law
We review conclusions of law presenting mixed questions of
fact and law under the clearly erroneous standard because the
conclusion is dependent upon the facts and circumstances of the
particular case. Matter of Kuamoo, 142 Hawaiʻi 492, 496, 421
P.3d 1262, 1266 (2018).
IV. Discussion
A. The ICA erred by applying its Lee test, which we now reject
in its entirety
The ICA applied the test it adopted in Lee to this State
motion to continue the hearing on a defense suppression motion.
Woody, 2025 WL 2092848, at *2-3. The Lee test required a
defendant to show that (1) the defendant acted with due
diligence to obtain the witness’s attendance; (2) the witness
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would provide substantial favorable evidence for the defendant;
(3) the witness was available and willing to testify; and (4)
the denial of the continuance would result in material prejudice
to the defendant. 9 Haw. App. at 604, 856 P.2d at 1282.
The Lee test was adopted by the ICA from a federal Fifth
Circuit Court of Appeals opinion. Id. (citing United States v.
Walker, 621 F.2d 163, 168 (5th Cir. 1980)). In Lee, the ICA
applied the same four factors from the federal test to uphold
the trial court’s denial of a defense motion to continue because
the defendant had not been diligent and had waited until the day
of trial to secure the witness, did not show that the witness
even existed, and failed to prove the testimony would bear
directly upon the issue of guilt and not merely impeachment.
Id.
Woody correctly argues that this court has never adopted
the Lee test. See State v. Villiarimo, 132 Hawai‘i 209, 223, 320
P.3d 874, 888 (2014) (Nakayama, J., concurring). In Williander,
this court rejected the Lee test in the context of a defense
motion to continue. 142 Hawai‘i at 163, 415 P.3d at 905. This
court held that the circuit court violated the defendant’s
constitutional right to compulsory process under the United
States and Hawaiʻi constitutions by denying his motion to
continue. Id. In rejecting the Lee test, this court held it
“goes too far in limiting the right to compulsory process, thus
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creating unnecessary burdens on defendants who wish to exercise
this right.” Id. This court instead held that the factors
relevant to a defendant’s request to continue trial based on
witness unavailability are: “(1) whether counsel exercised due
diligence in seeking to obtain the attendance of the witness;
and (2) whether the witness provides relevant and material
testimony that benefits the defendant.” Id.
The ICA deemed Williander inapplicable here because it
addressed a defendant’s motion to continue based on witness
unavailability, which implicated a defendant’s constitutional
rights. Woody, 2025 WL 2092848, at *2 n.2. The ICA held that
“because the State was moving to continue, the Lee test still
applies.” Id.
In applying the Lee test here, the ICA cited its own
summary disposition order that described the test in terms of a
movant’s burden instead of a defendant’s burden. Woody, 2025 WL
2092848, at *2 (citing State v. O’Donnell, No. 29730, 2009 WL
5116359, at *2 (Haw. App. Dec. 29, 2009) (SDO) (citation
omitted)). But both Lee and O’Donnell addressed defense motions
to continue based on witness unavailability. Id. And this
court rejected the Lee test in Williander for defense motions to
continue. Williander, 142 Hawai‘i at 163, 415 P.3d at 905.
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We now also reject the Lee test in its entirety, including
for State motions to continue based on witness unavailability,
because its rigidity is unworkable and fundamentally unfair.
First, under the Lee test, if due diligence is not
established under its first prong, the State is not able to
obtain a continuance even when time remains under HRPP Rule 48.
If there is no due diligence and testimony from the unavailable
witness is required to prosecute the State’s case, then, a
dismissal could result, even for extremely serious charges. For
example, here, after Officer Molina’s testimony was suppressed,
if the State had appeared for trial on August 15, 2023, with no
evidence to present, it most likely would have moved to dismiss
the charge so that jeopardy would not attach, then hope for a
dismissal without prejudice so that it could refile the charge.
But if that request was denied, the prosecution would end.
Hence, strict application of the Lee test could result in a
pretrial dismissal of a serious charge despite there being
significant time remaining on the HRPP Rule 48 deadline if a
prosecutor fails to exercise due diligence to secure the
presence of a critical witness.
But Hawaiʻi appellate case law generally favors sanctions
less severe than dismissal. For example, in State v. Dowsett,
10 Haw. App. 491, 494-96, 878 P.2d 739, 741-42 (App. 1994), the
ICA held that courts should consider “measures less severe than
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dismissal” where the State had violated its discovery
obligations by failing to hand over key documents to the
defendant under HRPP Rule 16 and the trial court sanctioned the
State through dismissal. The ICA held that “before the court
orders dismissal of a case because of the State’s violation of
HRPP Rule 16, it must consider whether less severe measures
would rectify prejudice caused to the defendant by the
violation.” 10 Haw. App. at 495, 878 P.2d at 742.
In addition, the Lee test would require the State to
establish “that the witness is available and willing to
testify.” 9 Haw. App. at 604, 856 P.2d at 1282. But there are
many prosecutions in which State witnesses are actually quite
reluctant to testify.
Thus, the Lee test is unworkable and unfair, even when
applied to a State motion to continue.
Hawaiʻi state courts need not adopt federal tests,
especially those that create rigid, unjust standards.
We now hold the Lee test does not govern motions to
continue for witness unavailability in Hawaiʻi state courts.
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B. A State motion to continue based on witness unavailability
is to be analyzed for “due diligence” under HRPP Rule
48(c)(4)(i) and even if due diligence does not exist,
rendering a State requested continuance inexcludable under
Rule 48, if time remains under Rule 48, the request is to
be analyzed under the common law good cause standard under
the totality of circumstances
Having rejected the Lee test, we must determine how courts
should address a State motion to continue due to witness
unavailability. Here, the district court found due diligence
lacking at the hearing. Then, in its written order, it also
found good cause lacking based on the lack of due diligence.
1. A court is to first address whether the State has
shown “due diligence” under HRPP Rule 48(c)(4)(i)
In analyzing due diligence, the district court may have
been considering HRPP Rule 48(c)(4)(i). HRPP Rule 48 is
intended to ensure the accused a speedy trial, separate and
distinct from the constitutional protection to a speedy trial.
State v. Estencion, 63 Haw. 264, 268, 625 P.2d 1040, 1043
(1981). Rule 48(b) requires that trials commence within six
months of certain triggering dates. Rule 48(c) then provides
for exclusion of designated categories of time from the sixmonth deadline.
Subsection (c)(4)(i) of HRPP Rule 48 specifically allows
for exclusion based on the unavailability of a State witness as
long as the State exercised due diligence. Subsection (c)(8)
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then seemingly generally allows for exclusion based on good
cause:
(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:
(c) Excluded periods. The following periods shall be
excluded in computing the time for trial commencement:
(4) periods that delay the commencement of trial and are
caused by a continuance granted at the request of the
prosecutor if:
(i) the continuance is granted because of the
unavailability of evidence material to the
prosecution’s case, when the prosecutor has exercised
due diligence to obtain such evidence and there are
reasonable grounds to believe that such evidence will
be available at a later date[.]
(8) other periods of delay for good cause.
HRPP Rule 48.
When the State moves to continue a hearing or trial based
on witness unavailability, a court is to first address due
diligence under HRPP Rule 48(c)(4)(i). The district court did
so and found due diligence lacking. The ICA reversed. But we
agree with Woody that the ICA erred by overruling the district
court’s due diligence determination.
After the original hearing date on the motion to suppress
was continued for fifty-three days, until June 16, 2023, the
State waited until nine days before the continued hearing to
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attempt to subpoena Officer Molina. The State did not learn
until four days before the hearing that he would not be
available, then filed its motion to continue two days before the
hearing date. If the State had acted diligently, it would have
known well in advance that Officer Molina would not be available
on June 16, 2023. As the district court indicated, the State
could have then moved to advance or continue the hearing, which
could have been decided without Woody needing to appear for the
continued hearing. The ICA therefore erred by overruling the
district court’s due diligence determination.
2. If due diligence does not exist under HRPP Rule
48(c)(4)(i), then “good cause” under Rule 48(c)(8)
cannot be considered
In its written order, the district court also found good
cause lacking based on the timeline — the same facts on which it
determined due diligence did not exist. It does not appear the
district court was referring to the good cause exclusion under
HRPP Rule 48(c)(8), as this court has held that if a Rule 48
exclusion is not available under Rule 48(c)(4)(i) for the
State’s failure to exercise due diligence, then the good cause
exclusion under the HRPP is also not available. See Gillis, 63
Haw. at 288, 626 P.2d at 193 (“[HRPP] Rule 48(c)(8) is not to be
used to excuse a lack of diligence on the part of the government
to comply with Rule 48[(c)(4)].”). Therefore, we assume the
district court was referring to the common law good cause
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standard for continuances when it also determined good cause to
be lacking.
3. If the State fails to exercise due diligence but time
still remains under HRPP Rule 48, then the common law
“good cause” standard applies
We assume the district court was attempting to apply the
common law good cause standard because, separate and apart from
the good cause standard under HRPP Rule 48(c)((8), this court
has applied the common law good cause standard to motions to
continue based on witness unavailability. For example, in
Villiarimo, this court applied the good cause standard to
analyze whether a continuance should have been granted for a
defendant to secure expert testimony in a probation modification
or revocation hearing context. 132 Hawai‘i at 218, 320 P.3d at
883.
Other state supreme courts have applied a good cause
standard to prosecution requests to continue suppression motion
hearings based on State witness unavailability.
In People v. Bakari, 780 P.2d 1089, 1091-92 (Colo. 1989),
the Colorado Supreme Court addressed a trial court’s denial of a
State requested continuance for lack of “good cause” and
granting of a defendant’s motion to suppress after the State
lacked witnesses to testify. In overruling the lower court, the
Colorado Supreme Court ruled that denying the motion to continue
was tantamount to granting a motion to dismiss and that “the
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district court should have considered the harsh consequences of
dismissal, the public interest in prompt disposition of the
case, and the available alternatives.” 780 P.2d at 1092-93. It
emphasized that there was no reason for the district court to
insist, upon pain of dismissal, that it hear the suppression
motion when continuance would not result in delay of the trial
or prejudice the defendant. 780 P.2d at 1093.
In People v. Brown, 525 P.3d 1036, 1038 (Cal. 2023), the
California Supreme Court addressed a trial court’s denial of the
State’s motion to continue a suppression hearing based on the
absence of “good cause,” which led to the suppression of key
evidence and prevented the State from prosecuting its case. The
California Supreme Court held that in determining whether denial
of the State motion for continuance was inappropriate, courts
should consider the totality of extant circumstances, which
include whether denial of the continuance will result in a
dismissal of charges:
In determining whether the denial of a continuance will
make it reasonably foreseeable that a case will be
dismissed, the court must consider the totality of the
extant circumstances. One of the factors to be considered
is the People’s representation that they will be unable to
proceed without the challenged evidence . . . . In the
final analysis, the burden is on the People to make this
showing. If that showing falls short, the court is free to
deny the continuance and proceed with the suppression
hearing.
Brown, 525 P.3d at 1049-50. Granted, Brown noted California’s
legislative intent that “courts may not dismiss a case due to a
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failure to meet the good cause requirements for a continuance
before the statutory period had expired.” 525 P.3d at 1045
(cleaned up). This differs from our HRPP Rule 48 analysis based
on Gillis discussed above. But Brown did apply the “good cause”
standard.
Thus, we hold that if the State fails to establish due
diligence when it seeks a continuance based on witness
unavailability, but time still remains under HRPP Rule 48, then
the court is to address whether a continuance should be granted
under the common law good cause standard, even if the time
period for a continuance cannot be excluded under Gillis based
on HRPP Rule 48(c)(8).
This court has held that “good cause” depends on the
circumstances of the individual case, and a finding of its
existence will lie largely in the court’s discretion. Doe v.
Doe, 98 Hawaiʻi 144, 154, 44 P.3d 1085, 1095 (2002). Here, the
district court found good cause lacking based on the timeline
indicating a lack of due diligence.
But this court has said it is not possible to provide one
definition of good cause, as standards governing whether good
cause exists depends upon the circumstances of the individual
case. Chen v. Mah, 146 Hawaiʻi 157, 178, 457 P.3d 796, 817
(2020). And although, based on Gillis, the good cause exclusion
of Rule 48(c)(8) cannot exclude time for a continuance due to
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State witness unavailability when due diligence under HRPP Rule
48(c)(4)(i) is lacking, in discussing what constitutes good
cause under HRPP Rule 48(c)(8), this court has stated:
This court has defined good cause to mean a substantial
reason which affords a legal excuse, and has held that the
good cause provision is provided to take care of
unanticipated circumstances. Additionally, a period is
excludable as good cause under HRPP Rule 48(c)(8) if the
events causing the delay are unanticipated and not
reasonably foreseeable. Most importantly, this court has
said that whether a period of time is excludable as good
cause under HRPP Rule 48(c)(8) is dependent on the facts of
each case.
State v. Choy Foo, 142 Hawaiʻi 65, 76, 414 P.3d 117, 128 (2018)
(cleaned up).
Also, although we have rejected a strict application of the
Lee test, as we said in Villiarimo, we have considered its
factors:
This court has not explicitly adopted the Lee test.
However, we have often applied some combination of these
factors in evaluating a motion for a continuance to obtain
the testimony of an unavailable witness at trial. In
State v. Valmoja, 56 Haw. 452, 540 P.2d 63 (1975), we held
that the trial court abused its discretion in denying a
motion for a continuance where the defendant exercised due
diligence in attempting to obtain the testimony of the
absent witness and the materiality of the witness’s
evidence was apparent. 56 Haw. at 454, 540 P.2d at 64.
In State v. Mara, 98 Hawaiʻi 1, 41 P.3d 157 (2002), we
concluded that the circuit court did not abuse its
discretion in denying the defendant’s request for a
continuance where the defendant failed to show that he was
materially prejudiced by his inability to present the
unidentified witness’s testimony. 98 Hawaiʻi at 14-15, 41
P.3d at 170-71.
Villiarimo, 132 Hawaiʻi at 223, 320 P.3d at 888 (Nakayama, J.,
concurring).
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Estencion also discusses possible factors in the context of
determining whether a case should be dismissed with or without
prejudice for a HRPP Rule 48 violation:
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.
63 Haw. at 269, 625 P.2d at 1044 (citation omitted).
Estencion also discusses additional HRPP Rule 48 policy
considerations relevant to the administration of justice, which
are 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. 63 Haw. at 268, 625
P.2d at 1043.
But the existence of good cause depends on the
circumstances of each individual case, and not all possible
factors may be relevant in a particular case. We therefore hold
that when the State requests a continuance based on witness
unavailability and fails to establish due diligence under HRPP
Rule 48(c)(4)(i), but the HRPP Rule 48 deadline has yet to
expire, in determining whether to grant a State request for
continuance to obtain a witness’s presence, a court is to
consider the totality of circumstances, which include, but are
not limited to: (1) whether the circumstances that caused the
witness to be unavailable were unanticipated or not reasonably
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foreseeable; (2) whether the witness is anticipated to provide
relevant and material testimony that benefits the State; and (3)
prejudice to the State or to the defendant based on the denial
or the grant of a continuance.
C. Here, under the totality of circumstances, the State
established “good cause”
As noted, the district court did not err by finding a lack
of due diligence. Hence, if the district court had granted the
State’s requested continuance to obtain Officer Molina’s
presence, based on Gillis, the time period of the continuance
would not have been excludable for HRPP Rule 48 purposes under
both HRPP Rule 48(c)(4)(i)’s due diligence exception and
48(c)(8)’s good cause exception.
After the district court determined there was no due
diligence, it also found good cause lacking but referred only to
the due diligence timeline. We assume the district court was
attempting to apply the common law good cause standard, but this
court had yet to establish the totality of circumstances
framework set out in this opinion.
We therefore now apply the framework to this case.
Although the State did not exercise due diligence, Officer
Molina’s unavailability was not anticipated and arguably was not
reasonably foreseeable. Officer Molina’s testimony was clearly
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relevant and material to the State’s opposition to Woody’s
motion to suppress.
With respect to prejudice to the State, we have ruled that
despite Operating a Vehicle Under the Influence of an Intoxicant
(“OVUII”) being a petty misdemeanor, it can be considered a
serious offense. State v. Fukuoka, 141 Hawai‘i 48, 59-60, 404
P.3d 314, 325-26 (2017). And the charge here was the even more
serious one of OVUII as a highly intoxicated driver. Further,
it was foreseeable here that denial of the State’s motion to
continue would result in the grant of the motion to suppress and
a dismissal of the charge. Also, it was highly likely that
Officer Molina would have been available after a continuance.
Granted, Woody would have been prejudiced as the denial of
the continuance would have almost undoubtedly led to the result
here – a grant of the motion to suppress and the inability of
the State to present its percipient witness testimony. But
there was no prejudice to Woody based on unavailability of
witnesses she might need if a continuance was granted.
We hold that, on balance, based on the totality of
circumstances, there was good cause for a reasonable
continuance. It appears Officer Molina may have been available
after his weekend reserve training, which presumably ended on
Sunday, June 18, 2023. His extended military service was not to
begin until July 3, 2023. The original hearing was scheduled to
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take place two weeks from its filing; if the same timing were to
apply, it appears the hearing could have taken place on or by
Friday, June 30, 2023. If the district court’s schedule did not
allow a hearing by that date or if Woody or counsel were not
available, Officer Molina’s training was only through August 8,
2023, and the hearing could have taken place after that. Even
if the continuance period was not excludable for HRPP Rule 48
purposes, the HRPP Rule 48 deadline apparently would not have
expired until October 2023.
Hence, as good cause existed, we remand the case to the
district court for further proceedings consistent with this
opinion.
V. Conclusion
Based on the reasons above, we therefore affirm the ICA’s
August 25, 2025 judgment on appeal vacating the district court’s
July 28, 2023 “Order Granting Defendant’s First Pretrial Motion:
Motion to Suppress Fruits of Warrantless Seizure”, but for the
reasons stated in this opinion. We remand this case to the
district court for further proceedings consistent with this
opinion.
Eli N. Bowman, /s/ Vladimir P. Devens
for petitioner /s/ Sabrina S. McKenna
/s/ Todd W. Eddins
Matthew P. Woodward, /s/ Lisa M. Ginoza
for respondent /s/ James H. Ashford
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