In March 1992, plaintiff-appellee State of Hawaii (State) charged defendant-appellant Herbert Sui Ung Lau with Driving Under the Influence of Intoxicating Liquor (DUI), in violation of Hawaii Revised Statutes (HRS) § 291-4(a)(1) & (a)(2) (Supp.1992). In addition, the State charged Lau with Driving Without License in violation of HRS § 286-102 (1985). Lau demanded a jury trial and the case was committed for trial in the First Circuit Court. On April 13, 1993, sixteen months after Lau’s arrest and prior to his jury trial, Lau filed a motion to dismiss all counts, claiming that his jury trial had not commenced within 180 days from his date of arrest as required by Hawaii Rules of Penal Procedure Rule 48 (HRPP Rule 48). In the alternative, Lau moved to have the charges dismissed for: (1) failure of the court to establish time limits for disposition of DUI cases as mandated by article VI, section 1 of the Hawaii Constitution; 1 or (2) violation of his constitutional right 2 to a speedy trial. Thirty-nine other defendants similarly situated and also charged under HRS § 291-4 filed identical motions to dismiss. The cir-euit court denied all of the defendants’ motions to dismiss.
The defendants in this consolidated appeal each take an interlocutory appeal from the circuit courfc’s “0rder Denying Defendant’s Motion to Dismiss.” The defendants urge that the circuit court erroneously denied defendants’ motion to dismiss by: (1) failing to apply HRPP Rule 48 to DUI cases, or in the alternative, by failing to establish or enforce a time limit for disposition; and (2) denying defendants’ motion to dismiss on constitutional speedy trial grounds.
We agree with defendants’ assertion that HRPP Rule 48 applies to DUI cases. Thus, we need not address the alternative argument as to a time limit for disposition. However, we do not find any violation of defendants’ constitutional right to a speedy trial. We therefore reverse in part, affirm in part, and remand this case to the circuit court for proceedings consistent with this opinion.
I. BACKGROUND
Defendant-appellant, Herbert Sui Ung Lau, was arrested on December 9, 1991 for DUI. The State charged Lau with Driving Under the Influence of Intoxicating Liquor under HRS § 291-4(a)(1) & (a)(2),
3
and Driving Without License in violation of HRS § 286-102.
4
The District Court of the First Circuit granted his demand for jury trial on February 3,1992. Lau was arraigned in the Circuit Court of the First Circuit, State of
On April 13, 1993, Lau, along with thirty-nine other defendants charged with DUI, filed a motion to dismiss all counts based on the following assertions: (1) the State faded to comply with the HRPP Rule 48(b) six-month time limitation, 5 or in the alternative, the court failed to establish or enforce a time limit for disposition in accordance with article VI, section 1, of the Hawaii Constitution; 6 and (2) the delay in bringing the defendants’ cases to trial was a violation of their constitutional right to a speedy trial. The circuit court consolidated defendants’ cases for a hearing on the motions.
A hearing was held on April 16, 1993, and the circuit court orally denied the motions. The court, relying on
State v. Leatiota,
7
On May 6, 1993, the circuit court filed an order denying defendants’ motions to dismiss and an order granting leave to file an interlocutory appeal pursuant to HRS § 641-17 (1985). Defendants now appeal the denial of their motions to dismiss.
II. STANDARD OF REVIEW
When interpreting rules promulgated by the court, principles of statutory construction apply.
Keaulii v. Simpson,
The lower court’s determination that defendants’ constitutional right to a speedy trial was not violated, as a conclusion of law, is also reviewed
de novo. State v. Furutani,
III. DISCUSSION
A. Rule 4.8
HRPP Rule 48(b) provides in relevant part:
By Court. Except in the case of traffic offenses, the court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months from:
(1) the date of arrest....
(Emphasis added.)
Defendants first assert that the trial court should have dismissed their cases pursuant to HRPP Rule 48(b), contending that, contrary to our holding in Leatiota, supra, a DUI charge is a “criminal offense” rather than a “traffic offense” and therefore subject to the provisions of HRPP Rule 48. We agree.
In
Leatiota,
the defendant appealed from a conviction for DUI, arguing that, because there were delays in trying him, he was denied the right to a speedy trial and the charges against him should have been dismissed pursuant to HRPP Rule 48(b). This court held that DUI is a “traffic offense” and thus excepted from the provisions of HRPP Rule 48. The rationale underlying this conclusion was that HRS § 291-4 appears in a chapter of the HRS entitled “Traffic Violations.”
Leatiota,
Under this rationale, all offenses under HRS Chapter 291 would be “traffic offenses” and exempt from dismissal pursuant to HRPP Rule 48. In addition, because HRS
A review of the relevant statutory provisions pertaining to criminal conduct leads us to conclude that DUI is a criminal offense. HRS § 701-107(1) (1992) provides in relevant part, “An offense defined by this Code or by any other statute of this State for which a sentence of imprisonment is authorized constitutes a crime.” In addition, HRS § 701-107(5) (1985) provides that an offense punishable only by a fine is a violation and not a crime:
An offense defined by this Code or by any other statute of this State constitutes a violation if it is so designated in this Code or in the law defining the offense or if no other sentence than a fine, or fine and forfeiture or other civil penalty, is authorized upon conviction or if it is defined by a statute other than this Code which provides that the offense shall not constitute a crime. A violation does not constitute a crime, and conviction of a violation shall not give rise to any civil disability based on conviction of a criminal offense.
Because HRS § 291-4 authorizes a sentence of imprisonment, DUI is therefore clearly a crime under the definition in HRS § 701-107(1).
State v. O’Brien,
5 Haw.App.
HRPP Rule 48 was adopted in part to ensure the speedy, efficient resolution of cases in which a person is charged with a criminal offense and is subject to a possible term of imprisonment. To interpret the “traffic offense” exception as applying to any offense related to the operation of a vehicle would undermine the underlying policy reasons for the adoption of HRPP Rule 48. As we stated in State v. Estencion:
The purpose óf Rule 48 is to ensure an accused a speedy trial, which is separate and distinct from [the] constitutional protection to a speedy trial. And, its purpose is also in furtherance of policy considerations to relieve congestion in the trial court, to promptly process all cases reaching the courts, and to advance the efficiency of the criminal justice process.
Unreasonable delay in the determination of criminal action subverts the public good and disgraces the administration of justice, and the power of a court to dismiss a case on its own motion for failure to prosecute with due diligence is inherent and exists independently of statute.
Notwithstanding the fact that HRPP Rule 48 is “separate and distinct” from its constitutional counterparts, 12 both provisions seek to ensure the speedy resolution of criminal prosecutions, particularly where a person, may suffer a restraint on his or her liberty. A DUI offense is clearly a “crime” and subjects an accused to criminal prosecution. More significantly, an individual convicted of DUI is subject to a possible term of imprisonment. HRPP Rule 48 was intended to apply to this very type of situation.
The State, citing
State v. Busby,
In Busby, this court addressed the issue of whether violations of HRS § 286-155 13 (refusal to submit) are “traffic” or “civil” cases. The defendant in Busby iriade a request for admissions pursuant to the District Court Rules of Civil Procedure Rule 36. The State failed to respond and defendant moved to dismiss. In denying the motion, the district court found that violations of HRS § 286-155 are “traffic” and not “civil” cases. Accordingly, the district court ruled that Rule 36 of the District Court Rules of Civil Procedure did not apply and that Rule 33(a) of the Rules of the District Courts of the State of Hawai'i applied to violations of HRS § 286-155.
On appeal, we affirmed the district court ruling. Initially, this court stated that refusal to submit cases are neither small claims cases nor
criminal
cases.
Id.
Busby is clearly distinguishable from the present appeal because the offense involved did not prescribe a term of imprisonment. Thus, classifying an offense as either “criminal” as opposed to “traffic” was not at issue. Although the State concedes that Busby is distinguishable, the State relies on it to demonstrate that: (1) the concept of a criminal' prosecution does not make the particular offense a “criminal” offense for purposes of HRPP Rule 48; and (2) an offense can be considered “criminal” in nature but nevertheless be deemed a “traffic” offense.
As to the State’s first proposition, we agree. In refusal to submit cases, the offense is considered a “traffic” offense even though the accused is subject to “criminal” prosecution. However, a person accused of refusal to submit is not subject to a term of imprisonment. In DUI cases, the accused is subject to criminal prosecution and faces the possibility of a term of imprisonment. 14 Therefore, while the possibility of a “criminal” prosecution alone does not make an offense a “crime,” a criminal prosecution coupled with a possible term of imprisonment does constitute a “crime.”
As to the State’s second proposition, the State cites the following passage in support of its contention:
Although we have stated on several occasions that refusal to submit cases are “civil in nature,” see, e.g., State v. Severino,56 Haw. 378 ,537 P.2d 1187 (1975); State v. Uehara,68 Haw. 512 ,721 P.2d 705 (1986); cf. State v. Winchester,69 Haw. 600 ,752 P.2d 105 (1988), the “civil” description was only used to distinguish refusal to submit eases from criminal cases. In the above cases, whether a refusal to submit case was a traffic case as opposed to a civil case was not at issue.
Busby,
The State asserts that refusal to submit cases are considered “traffic” cases, even though “civil” in nature, and contends by analogy that DUI cases should be considered “traffic offenses” even though they are “criminal” in nature. The State’s argument is not persuasive. As the court in Busby made clear, the “civil” description was used only to distinguish refusal to submit cases from criminal cases. It was not a description to be used in all situations because classification of the nature of an offense may depend on the purpose of the classification.
For the foregoing reasons, we conclude that an accused who faces the possibility of imprisonment for any period of time is entitled to the protections of HRPP Rule 48, regardless of whether the offense is related to the operation of a vehicle. Accordingly, we hold that DUI is a “criminal offense” and not a “traffic offense” for purposes of HRPP Rule 48, and we expressly overrule Leatiota. We further hold that the “traffic offense” exception of HRPP Rule 48 applies exclusively to “all violations of statutes, ordinances, or rules relating to traffic movement and control, including parking, standing, equipment, and pedestrian offenses, for which the prescribed penalties do not include imprisonment” (i.e. “traffic infractions”). See HRS § 291D-2 (1993) (effective July 1, 1994).
A violation of HRPP Rule 48 entitles the defendants to have the trial court dismiss the charges against them “with or without prejudice.” HRPP Rule 48(b). But defendants also assert a violation of their constitutional right to a speedy trial, and “[t]he only remedy for the violation of an accused’s right to a speedy trial is dismissal
with prejudice.” State v. Nihipali,
Under the sixth amendment to the United States Constitution and article I, section 14 of the Hawai'i Constitution, an accused is guaranteed the right to a speedy trial in all criminal prosecutions.
Whether the Government has violated an accused’s right to a speedy trial is determined by applying the four-part test articulated in Barker v. Wingo,407 U.S. 514 , [92 S.Ct. 2182 ,33 L.Ed.2d 101 ] (1972), and adopted by this court in State v. Almeida,54 Haw. 443 ,509 P.2d 549 (1973), to the particular facts in each case. The four factors to be considered in determining whether dismissal is warranted are: (1) length of the delay; (2) reasons for the delay; (3) defendant’s assertion of his right to speedy trial; and (4) prejudice to the defendant. Barker, supra [407 U.S.] at 530[,92 S.Ct. at 2192 ]. Because the right to speedy trial, unlike other rights guaranteed by the [United States and Hawai'i] Constitution^], is unusually amorphous and serves to protect the separate, often conflicting interests of the accused and of the public in the speedy disposition of cases, the weight accorded each of these factors is to be determined on an ad hoc basis. “None of these four factors is to be regarded ‘as either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial,’ but rather ‘they are related factors and must be considered together with such circumstances as may be relevant.’ ” State v. English,61 Haw. 12 , 16 n. 6,594 P.2d 1069 ,1072-73 n. 6 [ (1979) ], quoting Barker, supra [407 U.S.] at 533 [,92 S.Ct. at 2192 ],
State v. Wasson,
In these consolidated appeals, the relevant circumstances surrounding each case are the same or very similar. Neither the State nor the defendants indicate any significant differences among the individual defendants other than the length of the delay. Therefore, we will apply the “Barker test” to the defendants’ cases as a whole.
1. Length of the Delay
“The length of the delay is to some extent a triggering mechanism” to the other
Barker
factors.
State v. Almeida,
In these consolidated appeals, the defendants became “accused” when they were arrested for DUI.
15
The length of delay from the date of arrest until the filing of the motion to dismiss ranged from six months to twenty-four months. In the past, we have considered a delay of seven months between
2. Reasons for the Delay
In
Barker,
the United States Supreme Court stated that “different weights should be assigned to different reasons” for the delay.
Although this contention has some merit, the State gives no indication that any of the defendants are responsible for the delay in bringing them to trial. Therefore, while court congestion is a “more neutral” reason that “counts less heavily against the State than would a deliberate delay ... it nevertheless still tips the scales in favor of [the defendants], ‘since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.’ ”
Wasson,
We therefore hold that the second Barker factor weighs in favor of the defendants.
3. Assertion of the Right to a Speedy Trial
The third
Barker
factor to consider is whether the defendant asserted his or her right to a speedy trial. “[F]ailure to assert the right will make it difficult for a defendant to prove that he [or she] was denied a speedy trial.”
Barker,
In the present case, the defendants raised their constitutional speedy trial right as a ground for dismissal of their cases. When the motions to dismiss were filed on April 13, 1993, a period ranging from six to twenty-four months had passed since the defendants’ dates of arrest. On the record before us, it appears that none of the defendants asserted their right to a speedy trial because the defendants failed to establish that a
demand
for a speedy trial was made in any of the cases. However, defendants contend that
In this ease, none of the defendants made a demand for a speedy trial. Rather, the defendants moved only to have the charges dismissed, and “an assertion that charges be dismissed for a speedy trial violation is not a protected value under
Barker.” Cowart v. Hargett,
The defendants may also argue that the motions to dismiss on speedy trial grounds were made well in advance of trial and should be considered as a demand for a speedy trial. However, regardless of how far in advance of trial the defendants’ filed their motions to dismiss, “in the absence of some other indication that a defendant making a motion to dismiss actually desires a speedy trial, the motion, standing alone, does not weigh in his or her favor.”
Id.
(citing
Co-wart,
4. Prejudice to Defendant
We now turn to the fourth Barker factor and determine whether there was any prejudice to the defendants. In Barker, the United States Supreme Court stated:
Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past.
Barker,
As to the second interest which the right to a speedy trial protects, the defendants allege that they suffer from increased anxiety and concern due to increased automobile insurance premiums. Although “ ‘a mere assertion that one had been upset or concerned about a pending criminal prosecution is not sufficient’ to establish prejudicial anxietyt,]”
State v. Ferraro,
[W]hoUy aside from possible prejudice to a defense on the merits, [inordinate delay] may “seriously interfere 'with the defendant’s liberty, whether he is free on bail or not, and ... may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” United States v. Marion,404 U.S. 307 , 320,92 S.Ct. 455 ,463,30 L.Ed.2d 468 (1971).
Moore,
In the present case, the defendants’ insurance carriers assessed “points” to policy holders who had violations outstanding for a period of six months or longer. Although those policy holders with “points” may have been subject to higher insurance premiums, the circuit court concluded that the increase in insurance premiums did not create a degree of anxiety sufficient to warrant the dismissal of charges. We agree. There is no evidence in the record to indicate an increase in insurance premiums to an extent sufficient to warrant a finding of substantial prejudice to the defendants. Furthermore, if the defendants were suffering severe financial prejudice and anxiety, one would expect them to have made a demand for a speedy trial at some point prior to the filing of the motion to dismiss. “[T]he government will prevail unless the defendant offers objective, contemporaneous evidence of anxiety, such as prompt and persistent assertion of the desire for a speedy trial coupled with a demonstrable basis for the court’s believing the delay is traumatic.”
State v. Ferraro,
We now turn to the “most serious” interest protected by the right to a speedy trial— limiting the possibility that the defense will be impaired. In this case, the defendants make no attempt to show that the delay has impaired their defense in any way. In defendants’ affidavits of counsel, counsel asserts that “any witnesses will probably be unable to recall accurately the events preceding Defendant’s arrest due to the passing of time.” We are not persuaded by this general assertion that fails to identify any particular witness who may suffer significant memory loss. “[The]
possibility
of prejudice is not sufficient to support [defendants’] position that their speedy trial rights were violated.”
Loud Hawk,
In light of the interests which the speedy trial right was designed to protect, we believe that the defendants have not suffered any actual prejudice. We are aware that a showing of actual prejudice to the defense is neither sufficient nor necessary to every speedy trial claim. Nevertheless, an exceedingly long delay in bringing an accused to trial, which is not caused or consented to by the accused, may create such a strong presumption of prejudice that, if not “persuasively rebutted” by the prosecution, “will entitle the accused to relief, even absent specifically demonstrable prejudice.” Wasson
5. Conclusion on the Speedy Trial Claim
Our
Barker
analysis leads us to hold that the defendants were not deprived of
IV. CONCLUSION
For the foregoing reasons, we reverse the circuit court’s ruling on the applicability of HRPP Rule 48 to DUI cases and remand the eases to the circuit court for a HRPP Rule 48 hearing to determine the merits of each ease. However, we affirm the circuit court’s ruling denying defendants’ motions to dismiss for violation of their constitutional right to a speedy trial.
Notes
. Article VI, section 1 of the Hawaii Constitution provides:
The judicial power of the State shall be vested in one supreme court, one intermediate appellate court, circuit courts, district courts and in such other courts as the legislature may from time to time establish. The several courts shall have original and appellate jurisdiction as provided by law and shall establish time limits for disposition of cases in accordance with their rules. (Emphasis added).
. Although a defendant’s constitutional right to a speedy trial is guaranteed by both the sixth amendment to the United States Constitution, and article I, section 14 of the Hawaii Constitution, we will refer to these rights as a single constitutional “right.”
. HRS § 291-4 (Supp.1992) provides in relevant part:
(a) A person commits the offense of driving under the influence of intoxicating liquor if:
(1) The person operates or assumes actual physical control of any vehicle while under the influence of intoxicating liquor, meaning that the person concerned is under the influence of intoxicating liquor in an amount sufficient to impair the person's normal mental faculties or ability to care for oneself and guard against casualty; or
(2) The person operates or assumes actual physical control of the operation of any vehicle with .10 per cent or more, by weight of alcohol in the person’s blood.
.The circuit court granted the State’s motion to amend its complaint and charge Lau with Driving Without License under HRS § 286-102 instead of Driving While License Suspended under HRS § 286-132 (1985).
.HRPP 48(b) provides in relevant part:
By Court. Except in the case of traffic offenses, the court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months from:
(1) the date of arrest....
. See supra note 1.
. In Leatiota, this court held that a DUI charge is a “traffic offense” and therefore not subject to the provisions of HRPP Rule 48(b).
. HRS § 291C-12 (Supp.1992) provides in relevant part:
(a) The driver of any vehicle involved in an accident resulting in serious bodily injury to or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until the driver has fulfilled the requirements of HRS § 291C-14. Every such stop shall be made without obstructing traffic more than is necessary.
(b) Any person who violates subsection (a) shall be guilty of a class B felony.
. HRS § 711-1101 (1985) provides in relevant part:
(3) Disorderly conduct is a petty misdemeanor if it is the defendant’s intention to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a violation.
A petty misdemeanor is punishable by a sentence of imprisonment not exceeding thirty days. HRS § 706-663 (Supp.1992).
.Desecration is a misdemeanor, HRS §711—1107(3) (1985), punishable by a sentence of imprisonment not exceeding one year. HRS § 706-663.
. HRS § 291-5(a) & (b) (1985) begin with the following statement:
"In any criminal prosecution for a violation of section 291-4....”
. Sixth amendment to the United States Constitution, and art. I, section 14 of the Hawai'i Constitution.
.Refusal to submit cases involve the revocation of driving privileges for refusal to submit to breath or blood alcohol testing. See HRS § 286-155 (1985).
. HRS § 291-4(b)(1) (Supp.1992 & Comp.1993) provides:
(b) A person committing the offense of driving under the influence of intoxicating liquor shall be sentenced as follows without possibility of probation or suspension of sentence:
(1) For a first offense, or any offense not preceded within a five-year period by a conviction under this section, by:
(A)A fourteen-hour minimum alcohol abuse rehabilitation program ...; and
(B) Ninety-day prompt suspension of license ...; and
(C) Any one or more of the following:
(i) Seventy-two hours of community service work;
(ii) Not less than forty-eight hours and not more than five days of imprisonment; or
(iii) A fine of not less than $150 but not more than $1000.
(Emphasis added.)
. In discussing when the right to a speedy trial attaches, this court has stated:
This right attaches the moment a person becomes an "accused.” In this jurisdiction, “accused” denotes the point at which a formal indictment or information has been returned against a person or when he becomes subject to actual restraints on his liberty imposed by arrest, whichever first occurs.
State v. Nihipali,
. The State concedes that “an examination of the remaining three Barker factors would be appropriate in this case.” Answering Brief at 11.