80 Hawai'i 8, State v. Toyomura

Decision Date11 October 1995
Docket NumberNo. 17973,17973
Parties80 Hawai'i 8, 64 USLW 2302 STATE of Hawai'i, Plaintiff-Appellee, v. Harry Hidenori TOYOMURA, Defendant-Appellant.
CourtHawaii Supreme Court

Samuel P. King, Jr., on the briefs, Honolulu, for defendant-appellant Harry Hidenori Toyomura.

Charlotte J. Duarte, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee State of Hawai'i.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

LEVINSON, Justice.

The defendant-appellant Harry Hidenori Toyomura was convicted in the district court of the first circuit of driving under the influence of intoxicating liquor (DUI), in violation of Hawai'i Revised Statutes (HRS) § 291-4(a)(1) (1993). 1 On appeal, Toyomura urges that the trial court erred in the following respects: (1) in denying his motion to dismiss the charge against him "on Double Jeopardy grounds"; and (2) in permitting a police officer to render opinions as to whether Toyomura had (a) failed his field sobriety test (FST), (b) exhibited a blood alcohol concentration (BAC) in excess of .10 percent, and (c) been intoxicated at the time of his arrest. For the reasons set forth below, we affirm.

I. BACKGROUND

Toyomura was arrested for DUI after colliding with another vehicle on the H-1 freeway on the evening of October 21, 1993. Subsequently, his driver's license was revoked by the Administrative Driver's License Revocation Office (ADLRO), pursuant to Hawai'i Revised Statutes (HRS) chapter 286, Part XIV (1993) (Administrative Revocation Program). 2 Toyomura has sought judicial review of his administrative license revocation, see HRS § 286-260 (1993), and his appeal from the adverse decision of the district court is currently pending in this court under docket number 17845. 3 In the meantime, the State of Hawai'i (the prosecution) initiated proceedings to prosecute Toyomura criminally for DUI, pursuant to HRS § 291-4(a). 4

On March 3, 1994, immediately prior to the commencement of his bench trial, Toyomura orally moved to dismiss the DUI charge against him on the ground that, as a prosecution "successive" to his administrative license revocation, it was barred by the constitutional right against double jeopardy. 5 Specifically, Toyomura argued that his previous administrative license revocation amounted to a "quasi criminal type proceeding" that foreclosed any subsequent criminal prosecution based on the same DUI offense.

The trial court denied Toyomura's motion on the basis that "what the [administrative license revocation process] does is not punishment. It merely removes the unsafe driver from the highway by not giving him his license. Whereas ..., in the event that the [prosecution] is successful [in the DUI prosecution], I can punish [Toyomura]." The case then proceeded to trial.

The first of the prosecution's three witnesses, Mary Williams, testified on direct examination that the family Saab automobile--which her husband was driving and in which she, her two children, and her father-in-law were passengers--was struck by Toyomura's pickup truck on the H-1 freeway, resulting in an accident on the evening of October 21, 1993. She explained that traffic congestion had forced them to come to a halt when, "all of a sudden, bam. I looked up at my husband and said, 'What happened?' And, he said we were hit, and he was looking at his rear view mirror. So, I turned around and looked, and I saw Mr. Toyomura in his truck." Williams's husband then exited the Saab, spoke with Toyomura, and returned to move the Saab out of traffic. Williams's husband parked near a concrete barrier, which was two and a half to three feet in height, and the family exited the Saab, climbed over the barrier to a grassy and presumably safer area, and waited for the police to arrive. Upon the arrival of the police, who parked their vehicle behind Toyomura's truck, the Williamses retraversed the concrete barrier to speak to the police. Toyomura, who had apparently joined the Williamses in the grassy area, likewise attempted to climb over the barrier, but "fell over" it. Toyomura opted not to cross-examine Williams.

The prosecution's second witness, Honolulu Police Officer Arnold Samala, testified on direct examination that, when he arrived at the accident scene, he "saw two cars pulled over to the side and people ... standing on the other side of the barrier. And, as they approached me, ... I saw [Toyomura] climb over the barrier and he fell--fell to the ground." Officer Samala asked Toyomura for proof of auto insurance, Toyomura's driver's license, and the motor vehicle registration for his vehicle. Toyomura walked to his vehicle, retrieved the papers from the glove compartment, returned, and handed them over to Officer Samala. Officer Samala observed that: (1) Toyomura was unsteady on his feet; (2) an odor of alcohol emanated from Toyomura's mouth and chin; and (3) when he was moving Toyomura's vehicle further to the side of the freeway, there was a discernible odor of alcohol in the interior. On cross-examination, Officer Samala acknowledged that he had been dispatched to the scene after the accident had occurred and had therefore not witnessed it. Accordingly, he had no opportunity to observe the manner in which the drivers had operated their respective vehicles.

The prosecution's third witness, Honolulu Police Officer Craig Fujihara, who had accompanied Officer Samala to the accident scene, testified on direct examination that, from his police vehicle, he witnessed Toyomura "flip[ ] head-over-heels over [the] concrete barrier," landing on his side. Toyomura "then got up rather unsteadily, and ... walked over to a pickup truck," the side of which "he held on to ... for support." Officer Fujihara exited his vehicle, approached Toyomura, and "asked him if he was okay. He said yes." Officer Fujihara, who accompanied Toyomura while the latter complied with Officer Samala's request that he retrieve his identification papers from the pickup truck, was able to observe that: (1) Toyomura's "eyes were bloodshot"; (2) there was "a moderate odor of an alcoholic beverage on [Toyomura's] breath"; and (3) Toyomura "appeared to be unsteady on his feet," inasmuch as he (a) "couldn't stand," (b) "was swaying from side to side," and (c) "had to hold on to objects for support, such as the side of the truck, the door."

Officer Fujihara testified that he next instructed Officer Samala to move Toyomura's truck off the roadway to a safer place and that he did the same with the police vehicle. Returning to the accident scene, Officer Fujihara asked Toyomura if he would be willing to take a field sobriety test (FST), to which Toyomura agreed. The following colloquy ensued between the deputy prosecuting attorney (DPA) and Officer Fujihara regarding Fujihara's knowledge of prescribed procedures for administering FSTs:

Q [by the DPA:] Had you been trained in ... giving ... the field sobriety test?

A [By Officer Fujihara:] Yes, I have.

Q And, who had provided that training?

A My first training was with the ... people from NHSTA. This was in 19--it was '82. I was assigned to the Traffic Division. That was my first training. After that I received training from the Training Division in the standardized field sobriety testing.

Q Okay. And, for my own benefit, what is NHSTA?

A National Highway Safety Traffic Administration.

Q Is that the federal government or something else?

A I believe so, yes.[ 6

Q Okay. Before giving [Toyomura] a field sobriety test did you ask [Toyomura] any questions?

A Yes, I did.

Q And, what were those questions?

A I asked him if he was under any doctor's care. He replied no. I asked him if he was taking any medication[;] if he was a diabetic or epileptic; if he was under a dentist['s] care; if he had any physical disabilities that would hamper taking the test. He replied no to ... all of those.

Officer Fujihara testified that he then administered the horizontal gaze nystagmus, "one-leg stand," and "walk-and-turn" phases of the FST, but before he could describe the adequacy of Toyomura's performance of the horizontal gaze nystagmus phase, Toyomura objected, 7 and the trial court instructed the prosecution to "go on to the next test." The DPA asked Officer Fujihara to describe the instructions that he gave Toyomura regarding the one-leg stand procedure, but the defense again objected, inter alia, on the ground that the prosecution had not laid the proper foundation by first calling an expert to testify as to the significance of that phase of the FST. 8 Citing State v. Nishi, 9 Haw.App. 516, 852 P.2d 476 (1993), and State v. Wyatt, 67 Haw. 293, 687 P.2d 544 (1984), the trial court ruled that

it [i.e., the one-leg stand phase of the FST] is a valuable and reliable test. There is some question as to what foundation's necessary. I think the officer could establish the foundation. But, at this point, in any event, I look only at ... the observations of the officer; not his grading of the test itself. It's just another way for me to take a look at the defendant through the officer's eyes. So, I think under State v. Nishi, which ... was one of my cases, I ... assure [you that] I will consider it only from a lay point of view.

(Emphases added.)

Officer Fujihara was then permitted to testify regarding his administration of the one-leg stand and walk-and-turn procedures and Toyomura's performance of them. With respect to the one-leg stand procedure, Officer Fujihara testified that he instructed Toyomura to "raise either his right or his left leg, keeping his leg approximately six to twelve inches above the ground, keeping the knee locked, and ... put[ting] his hands down by his sides[,]" and to count off thirty seconds. After nine seconds, Toyomura fell forward, put down his leg, and said, "I cannot do it any more." Officer Fujihara characterized Toyomura's performance as "unbalanced," and remarked that Toyomura's "ability to perform the test...

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