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State v. Nakata8/2/1994
ts moral delinquency, or carries a sufficient disgrace to require labelling the offense as constitutionally serious." Id. In applying the second factor, the legislature's perception of an offense, as reflected by its statements in legislative history, often provides a strong indication of society's view of the gravity of an offense. Id. at 75, 856 P.2d at 1245.
Finally, the third factor "focuses on the authorized penalty for the offense." Id. at 76, 856 P.2d at 1245. We consider not only the maximum possible prison term, but also the possible additional statutory "mix of penalties" that may attach to the offense. Id.
In Wilson, we held that a charge under HRS § 291-4.5 (1985) (driving after license suspended for DUI) is constitutionally petty and, therefore, a defendant so charged is not entitled to a jury trial. Id. at 78, 856 P.2d at 1246. Significantly, in Wilson, we reviewed our past application of the three-part test in O'Brien and Jordan to the underlying DUI statute, HRS § 291-4.
The test we applied in Wilson arose out of O'Brien. In O'Brien, we analyzed the 1983 version of HRS § 291-4 and interpreted the offense of DUI to be constitutionally serious, granting a right to jury trial. In applying the three-part test in O'Brien, this court analogized DUI to common law reckless driving (an indictable offense requiring the right to a jury trial), interpreted legislative pronouncements in assessing the gravity of the offense, and considered the identical maximum prison term of 180 days authorized in 1985 for first and repeat DUI offenders as well as the potential mix of penalties. O'Brien, 68 Haw. at 42-43, 704 P.2d at 886. Significantly, the defendant in O'Brien was not a first-time DUI offender. Id. at 40, 704 P.2d at 885. The holding in O'Brien applied to DUI as a whole and did not distinguish between first and repeat offenders. In concluding that the offense of DUI was serious, we commented:
Were we faced with a situation where a first DUI offense was punishable, for example, by imprisonment for no more than five days, a second conviction by imprisonment for no more than ten days and a third, by imprisonment for no longer than one month, we would perhaps be persuaded by State's position that DUI is not a serious offense in the constitutional sense.
Id. at 44, 704 P.2d at 887 (emphasis added). By suggesting the maximum prison terms for first and repeat DUI offenses that would perhaps persuade the court that DUI is not constitutionally serious, it is apparent that this court placed primary emphasis on the imprisonment aspect of the three-part test, as did the United States Supreme Court in Blanton, wherein the Court stated:
Primary emphasis, however, must be placed on the maximum authorized period of incarceration. Penalties such as probation or a fine may engender "a significant infringement of personal freedom, but they cannot approximate in severity the loss of liberty that a prison term entails. Indeed, because incarceration is an "intrinsically different" form of punishment, it is the most powerful indication of whether an offense is "serious. "
Blanton, 489 U.S. 538, 103 L. Ed. 2d 550, 109 S. Ct. 1289 (citations omitted) (emphasis added).
The Legislature appears to have specifically considered the comment from O'Brien regarding a maximum imprisonment term of five days for a first-offense DUI when it promulgated Act 128, declaring a first offense to be petty. We note that because Act 128 authorizes
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