Because of the lack of evidence, a judge should dismiss charges against three vehicle owners whose upcoming trials have been consolidated and designated a test case for the traffic enforcement program, attorneys Michael Kam and Katherine Kealoha argued.

If District Judge Leslie Hayashi rules the "presumption" of driving is not enough evidence, prosecutors would have little choice but to end the prosecution of everyone else contesting a photo citation, the attorneys said.

"They admit they don't have any other evidence to show who was driving," Kam said.

Deputy City Prosecutor Renee Sonobe Hong said the law allows the state to "infer" a rational connection between the driver and the registered owner. "I think in this case, it's sufficient to identify the driver," she said.

The legal issue is critical to the prosecution of hundreds of upcoming trials for motorists who photo citations for speeding. Those trials are sceduled to start next week.

In preliminary proceedings, Honolulu district judges have ruled that the presumption of driving is enough to move the cases forward, but at the trial stage the state is required to identify the driver "beyond a reasonable doubt," the standard for criminal convictions.

In a written motion, Kam and Kealoha argued that allowing the state to "presume" the owner is the same as the driver shifts the burden of proof to the defendants, "making a mockery of the very essence of the criminal justice system."

The law authorizing the camera program in Hawai'i specifically says that the combination of a violation and the identification of the registered owner constitutes "prima facie" evidence or establishes that the registered owner of the motor vehicle was the person who committed the violation.

"There is a rational, logical relationship between the registered owner and the driver of the car," Sonobe Hong said. "It does not shift the burden of the proof to the defendant at all," Sonobe-Hong said.

The City Prosecutor's office and defense attorneys have had several pre-trial meetings and agreed to allow the three cases, all set for Monday, to be considered together as a test case for other pending trials.

Today's hearing on a key legal issue in the case wasn't unusual for a new law that is being challenged for the first time, Kam said. The discussions were initiated by defense attorneys and responded to by the prosecutor's office, Sonobe Hong said.

Hayashi took the motions from both sides under advisement and indicated she would rule on the issue by Wednesday, Kam said.

If the judge sides with the defense, city prosecutors would have no choice but to dismiss pending cases, Kam said. "They can either do that all at once or force people to show up individually to have their cases dismissed," he said.

Sonobe Hong refused to speculate on what would happen if the judge rules against the state. "We'd need to assess all the pending cases, but we don't know what will happen," she said.