Doe, In Interest of
| Decision Date | 14 November 1973 |
| Citation | 9 Haw.App. 406,844 P.2d 679 |
| Parties | In the Interest of DOE, Born on |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. A state agency must conform to the requirements of the Hawaii Administrative Procedure Act (HAPA) when acting in a rulemaking capacity.
2. The provisions of HAPA relating to rulemaking do not apply to regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public.
3. The field sobriety testing procedures established by the Hawaii County Police Department constitute internal management regulations which are exempt from HAPA's rulemaking requirements.
Theodore Y.H. Chinn, Deputy Public Defender, on the brief, Honolulu, for minor-appellant.
Gilbert M. Halpern, Deputy Pros. Atty., County of Hawaii, on the brief, Hilo, for plaintiff-appellee.
Before BURNS, C.J., and HEEN and WATANABE, JJ.
The Family Court of the Third Circuit entered a decree adjudging that Doe, a minor, was a law violator within the purview of Hawaii Revised Statutes (HRS) § 571-11(1) (1985) for, inter alia, driving under the influence of intoxicating liquor (DUI) in violation of HRS § 291-4(a)(1) (1985). 1 On appeal, Doe contends that the family court erred in denying Doe's motion to suppress evidence of the results of the field sobriety tests administered to him because the procedures regarding those tests had not been adopted pursuant to rule-making directives of HRS Chapter 91, the Hawaii Administrative Procedure Act (HAPA), by the Hawaii County Police Department (HCPD). We affirm.
In the early morning hours of July 20, 1991, Doe was arrested and thereafter charged with (1) DUI; (2) driving through a red light in violation of HRS § 291C-32(a)(3A) (1985); and (3) driving with an expired safety sticker in violation of HRS § 286-25 (1985). Doe filed a motion to suppress "any and all evidence relating to the field sobriety tests and evidence derived as a result thereof[.]" Record at 15. On January 8, 1992, the family court held an evidentiary hearing on Doe's motion. The testimony of HCPD Officer Martin Ellazar (Officer Ellazar) established the following facts.
At about 12:15 a.m. on July 20, 1991, Officer Ellazar observed Doe drive his vehicle through the intersection of Route 19 and Pukihae Street in South Hilo against a red traffic light. Officer Ellazar activated his blue light and stopped Doe. As Officer Ellazar approached Doe's vehicle from the rear, Doe got out of his vehicle to meet the officer. Officer Ellazar observed that the safety sticker on Doe's vehicle had expired and advised Doe of this violation. As Doe stood a foot away from him, Officer Ellazar detected "a very strong odor of an alcoholic beverage on his breath." Trial Transcript at 9. The officer then advised Doe that he would administer field sobriety tests on Doe.
Prior to administering the field sobriety tests, Officer Ellazar asked Doe if he had any physical impairments. Upon receiving a negative reply, Officer Ellazar proceeded to administer to Doe five different field sobriety tests: (1) Horizontal Gaze Nystagmus test; (2) Walk-and-Turn test; (3) One-Leg Stand test; (4) Finger-to-Nose test and (5) Modified Rhomberg test (with heels together and hands down at his side, subject closes his eyes, tilts his head back, and counts backward). Officer Ellazar testified that Doe failed all five tests, so he arrested Doe for DUI.
Officer Ellazar also testified that he had been a police officer since 1985, he had a minimum of eight hours of classroom training and another eight hours of classroom training later relating to administering field sobriety tests. HCPD personnel conducted these training sessions. Officer Ellazar has administered field sobriety tests since becoming a police officer in 1985. He stated that field sobriety tests are routinely administered to a driver suspected of DUI, unless the driver is physically unable or refuses to undergo such tests. The HCPD has printed "Standardized Field Sobriety Tests Work Sheet" forms used by its police officers. State's Exhibit 1. These forms contain instructions to be given to the driver being administered the tests and spaces to score the results for each of the five field sobriety tests. According to Officer Ellazar, based on his knowledge, "there were no administrative rules or regulations governing the administration of the field sobriety tests." Record at 58.
At the close of the hearing, the family court denied Doe's motion to suppress. Thereafter, the jury-waived trial of the case commenced. The parties stipulated that the testimony and other evidence in the suppression hearing be made a part of the trial on the merits. The parties further stipulated that (1) after Doe's arrest, he was transported to the police station where he consented to take a breath test; and (2) the intoxilyzer breath test administered to Doe at 1:45 a.m. indicated a blood alcohol concentration of 0.091 percent. The family court adjudged that Doe was a law violator with respect to DUI, 2 driving through a red light, and driving with an expired safety sticker.
After the denial of his motion for reconsideration, Doe timely appealed. 3
A state agency "must conform to the requirements of HAPA when acting in ... a rule making capacity (quasi-legislative)[.]" Town v. Land Use Comm'n, 55 Haw. 538, 545, 524 P.2d 84, 89 (1974); see also Sharma v. State, 66 Haw. 632, 637, 673 P.2d 1030, 1033 (1983). HAPA defines "agency" and "rule" as follows:
(1) "Agency" means each state or county board, commission, department, or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative or judicial branches.
* * * * * *
(4) "Rule" means each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term does not include regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public, nor does the term include declaratory rulings issued pursuant to section 91-8, nor intra-agency memoranda.
* * * * * *
Doe argues that (1) HCPD is an "agency" as defined in HAPA; (2) HCPD's field sobriety testing procedures are "rules" pursuant to HAPA; (3) because HCPD failed to conform to HAPA's rule-making requirements in adopting the field sobriety testing procedures, the procedures are invalid and unenforceable; (4) consequently, the family court should have suppressed the field sobriety test results which led to Doe's arrest for DUI; (5) without the field sobriety test results, there was insufficient evidence that Doe was guilty of DUI beyond a reasonable doubt; and (6) therefore the family court's adjudication that Doe was a law violator for DUI must be reversed.
The HCPD is a county department authorized by law to make rules. Charter of the County of Hawaii sec. 7-2.3 (1980) (). We therefore agree that the HCPD is an "agency" required to conform to HAPA's rule-making requirements. However, we do not agree that the HCPD's field sobriety testing procedures constitute "rules" subject to HAPA's rule-making requirements.
HAPA itself excludes "regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public" from its rule-making restraints. See Holdman v. Olim, 59 Haw. 346, 355, 581 P.2d 1164, 1170 (1978) (). We conclude that the HCPD's field sobriety testing procedures fall within such exclusion and are not subject to HAPA's rule-making requirements.
In Doe v. Chang, 58 Haw. 94, 564 P.2d 1271 (1977), three welfare recipient plaintiffs sought injunctive relief from investigations and prosecutions of welfare fraud on the ground that the State welfare fraud procedures were invalid because the manual of instructions concerning welfare...
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