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State v. Himuro10/6/1988
[70 Haw Page 103] The issue in this appeal is whether the twenty day time period prescribed by Hawaii Revised Statutes (HRS) § 286-156 for an affidavit hearing prior to revoking an arrested person's driver's license for refusal
to submit to a sobriety test is mandatory or directory. We conclude that the twenty day hearing provision is mandatory and affirm.
I.
Appellee was arrested for Driving While Under the Influence of Intoxicating Liquor (DUI) and transported to the police station where he refused to take a blood or breath test in violation of the "implied consent law," HRS § 286-155. The sanctions for refusal to submit to sobriety testing include revocation of the arrested person's driver's license for twelve months and referral to a substance abuse counselor. The arresting officer prepared the affidavit required by § 286-155 whenever an arrested person refuses to submit to testing.
At Appellee's arraignment one week later, the district court ordered that a hearing on the § 286-155 violation be held within twenty days in accordance with HRS § 286-156. However, the hearing was mistakenly set for the twenty-first day. At the hearing, the Appellee moved to dismiss the case against him for Refusal to Submit to Sobriety Testing. The court denied the motion based on a belief that the Appellee had waived the twenty day requirement. Appellee was found guilty of DUI and Refusal to Submit to Chemical Testing.
Appellee subsequently filed a Motion for Reconsideration, arguing that the twenty day time period is mandatory and, therefore, failure to comply with it rendered the judgment against him void. The court found that a clerical error was the cause of the hearing being held on the twenty-first day. Subsequently, the court granted the Motion for Reconsideration and vacated the finding of guilty on the § 286-155 violation. The court also granted the Defendant's earlier motion to dismiss the case. The State appeals.
II.
The sole issue in this case is whether the twenty day time period prescribed by HRS § 286-156 is mandatory, or directory. The provision at issue states in relevant part:
A hearing to determine the truth and correctness of an affidavit submitted to a district judge shall be held within twenty days after the district judge has received the affidavit.
The statute clearly and unambiguously provides that a hearing on the affidavit required to be filed prior to revocation of a person's driver's license for refusing to submit to sobriety testing " shall be held within twenty days." Where the language of a statute is plain and unambiguous that a specific time provision must be met, it is mandatory and not merely directory. Town v. Land Use Comm'n , 55 Haw. 538, 542, 524 P.2d 84, 88 (1974); Hawaii Corp. v. Kim , 53 Haw. 659, 666, 500 P.2d 1165, 1169 (1972). We have also recognized, however, that while the word "shall" is generally regarded as mandatory, in certain situations it may be given a directory meaning. Jack Endo Elec. Co. v. Lear Siegler, Inc. , 59 Haw. 612, 616, 585 P.2d 1265, 1269 (1978). Appellant contends that the language in question, while mandatory on its face, should be construed in directory fashion. We disagree.
In determining whether a statute is mandatory or directory, the intent of the legislature must be ascertained. 59 Haw. at 617, 585 P.2d at 1269. "The legislative inten
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