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State v. Cunney12/23/2002
SUMMARY DISPOSITION ORDER
Acoba, J., Dissenting
Defendant-appellant Paul J. Cunney (Cunney) appeals from the November 9, 1999 judgment of guilty conviction and sentence, issued by the district court of the first circuit, the Honorable James Dannenberg presiding, entered after Cunney's conditional plea of no contest to driving under the influence (DUI), in violation of Hawaii Revised Statutes (HRS) § 291-4 (Supp. 1999). On appeal, Cunney argues that: (1) the district court abused its discretion in failing to recuse itself from the case, and (2) the district court erred when it took judicial notice of Cunney's status as an attorney licensed to practice in Hawaii, specializing in DUI defense.
Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we hold that: (1) the district court was not required to recuse itself pursuant to HRS § 601-7 (1993) because the alleged bias was not of a "personal" nature; (2) there was no appearance of impropriety, as set forth by this court in State v. Ross, 89 Hawaii 371, 974 P.2d 11 (1998), that required recusal, and (3) this court cannot address Cunney's other points of error because he failed to reserve the right to appeal these issues pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 11(a)(2). Therefore,
IT IS HEREBY ORDERED that the judgment from which the appeal is taken is affirmed.
DISSENTING OPINION OF ACOBA, J.,
I respectfully disagree with the statement that "the district court was not required to recuse itself[.]" Summary Disposition Order at 2. It is undisputed that Defendant-Appellant Paul J. Cunney (Defendant) was previously involved in a series of conflicts with the presiding judge, including complaints to the Office of Disciplinary Counsel, referral for criminal contempt charges, and several heated arguments apparently in conjunction with driving under the influence cases.
Saying he was "holding" Defendant to a "higher standard," the judge singled out Defendant by taking judicial notice of Defendant's law license and imputing to Defendant constructive knowledge of the sanctions for failing, or refusing to take, an alcohol concentration test. However, Defendant was entitled to be given the same information required by State v. Wilson, 92 Hawaii 45, 987 P.2d 268 (1999), as any other driver, irrespective of his occupation. The burden is on the government to provide such information and a defendant's knowledge is irrelevant. C.f. Castro v. Administrative Dir. of the Courts, 97 Hawaii 463, 469, 40 P.3d 865, 871 (2002) ("the obligation to accurately inform a driver of the sanctions rests on the police; no obligation is imposed on the driver to make any inquiry"). Under the circumstances, the questionable application of the law to this particular Defendant would raise an appearance of impropriety.
For that reason, I respectfully dissent.
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