by David M. Reutter

The Supreme Court of Hawai’i unanimously rejected in its entirety the four-factor continuance test of State v. Lee, 856 P.2d 1279 (Haw. Ct. App. 1993), and announced the standard governing a State motion to continue based on witness unavailability. A court is first to determine whether the State exercised due diligence under Hawai’i Rules of Penal Procedure (“HRPP”) Rule 48(c)(4)(i). If it did not, the continuance period is not excludable under that provision, and Rule 48(c)(8)’s good-cause exclusion cannot be used to cure the lack of diligence. But if the six-month deadline has not expired, the court must still determine under the common-law good-cause standard whether to grant the continuance, considering the totality of the circumstances. Applying that framework, the Court held that good cause supported a reasonable continuance and remanded.

Background

According to Officer Alexis Molina, on February 12, 2023, he observed a vehicle driven by Basil Woody speeding and crossing traffic lines. Woody drove more than one mile before stopping at her house. Molina reported indicia of intoxication and arrested Woody, whose blood alcohol level exceeded 0.15. She was charged with operating a vehicle under the influence of an intoxicant (“OVUII”) as a highly intoxicated driver, in violation of Hawai’i Revised Statutes § 291E-61 (Supp. 2021). The Court noted that the underlying facts are disputed.

On April 10, 2023, Woody moved to suppress the fruits of three alleged warrantless constitutional violations: (1) the seizure of her vehicle, (2) the request that she exit it, and (3) her arrest. The hearing set for April 24, 2023, was continued at Woody’s request for want of discovery to June 16, 2023, 53 days later. On June 7, the State issued a subpoena for Molina, though the record does not show it was served. On June 12, Molina informed the State that he was a military reservist and would be unavailable, so the State moved to continue two days before the hearing, noting his extended service from July 3 through August 8, 2023.

At the rescheduled hearing, the State claimed that the six-month deadline under HRPP Rule 48(b) would not expire until October 2023. The district court expressed concern over the State’s delay in determining Molina’s availability and denied the continuance. Because no other witness could have addressed the reasonable suspicion allegedly supporting the seizure, the State had no evidence to offer, and the court granted suppression in its entirety. A later written order also found good cause lacking on the same timeline.

The State timely appealed, and the Intermediate Court of Appeals (“ICA”) vacated the suppression order. The ICA applied the test it had adopted in Lee, acknowledging that the Supreme Court had rejected it for defense motions in State v. Williander, 415 P.3d 897 (Haw. 2018), but reasoning that Lee still governs a State request, and found the State’s efforts, “while not prompt,” sufficiently diligent. Woody argued on certiorari that the ICA had no basis for applying a test the Supreme Court has never adopted and was wrong to disturb the due diligence ruling.

Analysis

The Court began its analysis by examining the test the ICA applied. The Lee test required a defendant to show due diligence in obtaining the witness’ attendance, substantial favorable evidence from that witness, the witness’ availability and willingness to testify, and material prejudice from denial. The Court observed that it had never adopted that test and that Williander rejected it for defense motions because it “goes too far in limiting the right to compulsory process.”

The Court then rejected the Lee test in its entirety, including for State motions, because “its rigidity is unworkable and fundamentally unfair.” Under its first prong, the State cannot obtain a continuance once due diligence is not established, even where time remains under HRPP Rule 48, so that an extremely serious charge could be dismissed before trial where the absent witness is essential, a result at odds with Hawai’i decisions preferring remedies short of dismissal, the Court explained. State v. Dowsett, 878 P.2d 739 (Haw. Ct. App. 1994). The test also requires a showing “that the witness is available and willing to testify,” but in many prosecutions, the State’s own witnesses are unwilling participants, the Court noted.

HRPP Rule 48
Due Diligence Inquiry

Having rejected the Lee test, the Court turned to the governing framework. HRPP Rule 48 affords the accused a speedy trial protection independent of the constitutional one. State v. Estencion, 625 P.2d 1040 (Haw. 1981). Rule 48(b) sets a six-month limit, running from specified triggering events, for the start of trial, and Rule 48(c) removes designated categories of time from that computation. Subsection (c)(4)(i) excludes delay from a prosecution continuance granted for unavailable material evidence, where the prosecutor “has exercised due diligence to obtain such evidence” and it is reasonably likely to become available. Subsection (c)(8) excludes “other periods of delay for good cause.” A court is first to address due diligence under Rule 48(c)(4)(i), the Court instructed.

The Court held that the district court’s finding of no due diligence should not have been disturbed. A diligent State would have learned of Molina’s conflict well in advance and could have moved to advance or continue the hearing without requiring Woody to appear.

Common Law
Good Cause Standard

Where the State fails to establish due diligence under Rule 48(c)(4)(i), the good-cause exclusion of Rule 48(c)(8) is unavailable to it. State v. Gillis, 626 P.2d 190 (Haw. 1981) (“[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)].”). The Court thus assumed that the district court had applied the common-law good-cause standard, which it has used for continuance requests premised on witness unavailability. State v. Villiarimo, 320 P.3d 874 (Haw. 2014).

The Court observed that other state supreme courts have applied a good cause standard to prosecution requests to continue suppression hearings for witness unavailability. People v. Bakari, 780 P.2d 1089 (Colo. 1989) (denial tantamount to dismissal; court should have weighed “the harsh consequences of dismissal, the public interest in prompt disposition of the case, and the available alternatives”); People v. Brown, 525 P.3d 1036 (Cal. 2023) (court must consider “the totality of the extant circumstances,” including whether denial will foreseeably result in dismissal).

Good cause lies largely within the trial court’s discretion and admits of no single definition, according to the Court. Doe v. Doe, 44 P.3d 1085 (Haw. 2002); Chen v. Mah, 457 P.3d 796 (Haw. 2020). Under Rule 48(c)(8), the Supreme Court has defined it as “a substantial reason which affords a legal excuse.” State v. Choy Foo, 414 P.3d 117 (Haw. 2018). The Court also recognized that the Supreme Court has applied some combination of the Lee factors to such requests. State v. Valmoja, 540 P.2d 63 (Haw. 1975); State v. Mara, 41 P.3d 157 (Haw. 2002).

Thus, the Court held that where the State seeks such a continuance and fails to establish due diligence, but the Rule 48 deadline has yet to expire, the court is to consider the totality of the circumstances, which “include, but are not limited to” whether the circumstances causing the unavailability “were unanticipated or not reasonably foreseeable”; whether the witness “is anticipated to provide relevant and material testimony that benefits the State”; and “prejudice to the State or to the defendant based on the denial or the grant of a continuance.” Good cause depends on the circumstances of each case, and not all factors will be relevant in every one, the Court instructed.

Application to the State’s Continuance Request

Applying that framework, the Court determined that Molina’s unavailability was not anticipated and arguably was not reasonably foreseeable and that his testimony was clearly relevant and material to the State’s opposition to suppression. The Court recognized that OVUII, though a petty misdemeanor, can be considered a serious offense, State v. Fukuoka, 404 P.3d 314 (Haw. 2017), and that the charge here, OVUII as a highly intoxicated driver, was more serious still. Denying the continuance would foreseeably lead to suppression and dismissal, while granting it would not prejudice Woody through the unavailability of any defense witnesses.

On balance, the Court held that the totality of the circumstances established good cause for a continuance of reasonable length. Molina may have been available once his weekend reserve training ended, presumably on June 18, 2023, and before his extended service began on July 3.

Conclusion

Accordingly, the Court affirmed the ICA’s August 25, 2025, judgment vacating the district court’s order granting the suppression motion, but for the reasons stated in its own opinion, and remanded for further proceedings consistent with its opinion. See: State v. Woody, 2026 Haw. LEXIS 177 (2026).  

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