State v. Shimkus

Andrew E. Shimkus was arrested and convicted for OVUII. “On appeal, Shimkus challenges the District Court’s denial of his motion to suppress. Shimkus argues that: (1) because the police failed to give him Miranda warnings before reading the Implied Consent Form to him and obtaining his decision on testing, the results of his breath test should have been suppressed as the fruit of a Miranda violation; (2) the results of his breath test should have been suppressed because the police misinformed him of his statutory right to an attorney under HRS 803-9 (1993); and (3) the results of his breath test should have been suppressed because the police misinformed him of the sanctions for refusing to submit to testing.” The ICA noted that it had recently rejected the same arguments in State v. Won, No. CAAP-12-0000858, and, following Won, it affirmed Shimkus’ conviction. http://www.courts.state.hi.us/docs/opin_ord/ica/2014/May/CAAP-12-0000840sdo.pdf. On September 2, 2014, the Hawai’i Supreme Court accepted Shimkus’ Application for Writ of Certiorari of the Hawai’i Intermediate Court of Appeal's decision filed on May 24, 2014. If the Hawai’i Supreme Court reverses, it could have far-reaching implications for OVUII cases in Hawai’i. http://www.courts.state.hi.us/docs/opin_ord/sct/2014/September/SCWC-12-0000840certacc.pdf

State v. Tyrone Smith, Jr.

Yesterday, the Hawai'i Intermediate Court of Appeals issued its memorandum opinion in State v. Tyrone Smith, Jr., CAAP-12-0000583. In this case, I represented Mr. Smith on the briefs and also argued the case before the ICA on July 24, 2014. The ICA affirmed Mr. Smith's conviction, but did note that the police illegally seized Mr. Smith's bags from his room without his consent. In those bags were found a pack of Pall Mall cigarettes, the same brand the victim of the rape said were taken from her that night by her assailant. A copy of the decision can be found here: http://www.courts.state.hi.us/docs/opin_ord/ica/2014/August/CAAP-12-0000583mop.pdf

6/22/14: Hawaii Governor Signs 10 Bills Relating to Criminal Justice Gov. Neil Abercrombie has signed 10 criminal justice-related measures (Acts 112 to 121) addressing sex abuse, prostitution, crimes against children, violation of privacy, domestic violence, property crime, human trafficking, parking violations and law enforcement misconduct. . . . Senate Bill 2687 (Relating to Limitation of Actions) extends the period by an additional two years that a victim of child sexual abuse may bring an otherwise time-barred civil action against an abuser or entity with a duty or care, including the state and counties. House Bill 2034 (Relating to Sexual Assault) removes the statute of limitations for criminal actions of sexual assault in the first and second degrees, as well as the continuous sexual assault of a minor under the age of 14. House Bill 1926 (Relating to Crime) amends the offense of solicitation of a minor for prostitution and the offense of prostitution to include sadomasochistic abuse under the definition of sexual conduct, including clarification that a law enforcement officer shall not be exempt from the offense while acting in the course and scope of duties. This measure also amends the applicability of a deferred acceptance of a guilty or nolo contendere plea and clarifies sentencing of repeat offenders and enhanced sentences for repeat violent and sexual offenders. Senate Bill 702 (Relating to Child Abuse), known as “Alicia’s Law,” establishes an internet crimes against children special fund and an internet crimes against children fee of up to $100 for each felony or misdemeanor conviction. Fees will be deposited into the special fund, which will be used by the Department of the Attorney General to combat internet crimes against children. This measure also appropriates $62,500 into the new special fund. House Bill 1750 (Relating to Public Order) expands the offense of violation of privacy in the first degree to include the disclosure of an image or video of another identifiable person either in the nude or engaging in sexual conduct without the consent of the depicted person with intent to harm substantially the depicted person. House Bill 1993 (Relating to Domestic Violence) requires a police officer to make a reasonable inquiry of witnesses or household members when physical abuse or harm is suspected and order a no-contact period of 48 hours. This measure also makes the commission of physical abuse in the presence of a family or household member under the age of 14 a class C felony. House Bill 2205 (Relating to Crime) imposes a mandatory minimum term of one year imprisonment upon conviction of habitual property crime and authorizes probation only for a first conviction. House Bill 2038 (Relating to Human Trafficking) establishes the human trafficking victims services fund to be administered by the Department of Labor and Industrial Relations to provide support and services to human trafficking victims. This measure also imposes human trafficking victim fees to be imposed upon persons convicted of labor trafficking and prostitution offenses. House Bill 1706 (Relating to Illegal Parking Upon Bikeways) sets a fixed fine of $200 for parking a vehicle on a bicycle lane or pathway. Senate Bill 2591 (Relating to Law Enforcement), requires additional information from county police departments in their annual report to the Legislature of misconduct incidents that resulted in the suspension or discharge of an officer. This measure also allows the disclosure of certain information regarding officer misconduct in cases that result in discharge, after 90 days have passed following the issuance of the decision.