LIHUE — The case against the ‘Jumbo’ Surfer is at a standstill after the state filed a notice of appeal on the Fifth Circuit Court’s decision to suppress results of his blood sample.
James Pellegrine was scheduled to have a hearing Tuesday to discuss the reports by two of three doctors who would determine his penal responsibility for reason of physical or mental disease, disorder, or defect on the night he is alleged to have shouted terrorist threats at EMT workers.
The mental health examination would determine whether Pellegrine had enough cognitive capacity and volitional control during the alleged incident.
Instead the court, which no longer had jurisdiction on the matter, put the case on hold.
Defense Attorney Michael Soong said the parties were working on a resolution and that he had filed a motion for remand with the Intermediate Court of Appeals.
“We are very close to a plea agreement on this case, so once it’s remanded there may be a change of plea,” Soong told the court.
Pellegrine is charged with two felony counts of terroristic threatening in the first degree, a class C felony, for allegedly shouting at two ambulance workers as they transported him from the Hanalei police substation to Wilcox Memorial Hospital following an accident involving his severed arm on the night of Dec. 19, 2014.
Pellegrine is said to have shouted at hospital staff during his time in the ER, but the doctor did not want to press charges, according to court records.
According to the court’s finding of fact, conclusion of law and order suppressing evidence filed March 17, Kauai Police Department’s warrantless search on Pellegrine’s blood was legally baseless.
Kauai police officers took 17 minutes to decide whether they were going to get a blood sample from Pellegrine on Dec. 19, 2014.
Officers at the Feb. 2 hearing on the motion to suppress evidence testified that the thought of obtaining a search warrant had never crossed their mind in 2014, before State vs. Won decision came down in November 2015.
Since then, KPD has implemented policies and procedures to obtain search warrants in OVUII “refusal” cases and in Hawaii Revised Statutes 291E-21 “mandatory blood draw” cases, according to testimony by KPD Sergeant Jason Overmyer.
“(A warrantless BAC) does not offend the Hawaii Constitution so long as the police have probable cause to believe that the person has committed a DUI offense and that the blood sample will evidence that offense, exigent circumstances are present and the sample is obtained in a reasonable manner,” Judge Kathleen Watanabe said in her court findings.
Watanabe said the state had not met its burden of establishing exigent circumstances that justified a warrantless search, according to court records.
Watanabe said Tuesday counsels would have to wait until ICA makes a decision on the remand in the Pellegrine case.