90 Hawai'i 225, State v. Ito
| Citation | 978 P.2d 191 |
| Decision Date | 29 April 1999 |
| Docket Number | No. 21259,21259 |
| Parties | 90 Hawai'i 225 STATE of Hawai'i, Plaintiff-Appellee, v. Stanford M. ITO, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Darren W.K. Ching and Darwin L.D. Ching (Yoshida & Ching), on the briefs, Honolulu, for defendant-appellant.
Alexa D.M. Fujise, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.
In this appeal, we have been asked to decide whether the District Court of the First Circuit (the district court) properly relied on the results of a Horizontal Gaze Nystagmus (HGN) test in determining that probable cause existed to arrest Defendant- We disagree with Defendant's first contention. However, because the record reveals serious questions about whether the HGN test was properly administered to Defendant by an officer who was duly qualified to conduct the test and grade the test results, we vacate the August 20, 1997 Judgment convicting Defendant of DUI and remand for further proceedings.
Appellant Stanford M. Ito (Defendant) for driving under the influence of intoxicating liquor (DUI), in violation of Hawai'i Revised Statutes (HRS) § 291-4 (1993 & Supp.1998). 1 Defendant maintains that the HGN test results should not have been admitted into evidence because (1) no expert testimony was presented by Plaintiff-Appellee State of Hawai'i (the State) as to the scientific reliability of the test and the district court should not have taken judicial notice of the test's reliability, and (2) the police officer who administered the test admitted that he did not conduct one part of the test
Based on the facts and documents stipulated to by Defendant and the State at Defendant's August 20, 1997 trial, the relevant circumstances underlying the instant case are as follows:
At about 1:20 a.m. on January 5, 1997, Honolulu Police Department (HPD) Officer Darius Evangelista (Officer Evangelista) stopped Defendant for speeding. Upon initially approaching Defendant, Officer Evangelista did not smell any alcohol on Defendant. On a second approach, however, Officer Evangelista detected a strong odor of alcohol on Defendant's person and noticed that Defendant's eyes were red. Officer Evangelista surmised that he did not smell alcohol on his first approach because the passenger in Defendant's car was smoking. Based on his observations, Officer Evangelista ordered Defendant out of Defendant's car and had Defendant perform three field sobriety tests (FSTs): the walk-and-turn, the one-leg-stand, and the HGN.
During the one-leg-stand test, Defendant stood on one leg without raising his arms for twenty-nine seconds. In a written report documenting Defendant's performance on the FSTs, Officer Evangelista noted that Defendant "[d]id [this] test well."
Prior to administering the walk-and-turn test, Officer Evangelista explained and demonstrated the test to Defendant. Officer Evangelista instructed Defendant to take two sets of nine steps each in a straight line, making sure that the heel of the front foot touched the toes of the back foot. Officer Evangelista also directed Defendant to turn around after the first set by pivoting on the heel of one foot. Officer Evangelista observed that Defendant missed the heel-to-toe on steps seven and eight of the first set. Officer Evangelista also recorded that Defendant missed the heel-to-toe on steps four and nine of the second set. Additionally, Defendant stepped off the line and raised his arms on step four of the second set and, instead of pivoting on the heel of one foot between the first and second sets, picked up both feet and turned around.
While administering the HGN test to Defendant, Officer Evangelista observed that both of Defendant's eyes failed to follow Officer Evangelista's finger smoothly and demonstrated distinct nystagmus at the edge of Defendant's field of vision. Officer Evangelista candidly admitted, however, that in administering the HGN test, he usually did not check for the onset of nystagmus at an angle of forty-five degrees, one of the components of the test, and failed to do so in this instance. Nevertheless, based on Defendant's At the police station, Defendant elected to take the Intoxilyzer 2 test, which measured his breath alcohol concentration level (BrAC) at 0.125.
overall performance on the FSTs, Officer Evangelista arrested Defendant for DUI.
Defendant and the State also stipulated that: (1) HPD had trained Officer Evangelista to administer the FSTs, including the HGN test; (2) the passenger in Defendant's car would testify that he was not smoking at the time of the stop; and (3) Defendant, if called to testify, would state that his eyes were bothered by the light emanating from the flashlight used by Officer Evangelista in conducting the HGN test.
At the commencement of trial on August 20, 1997, Defendant orally moved to dismiss the case and suppress any evidence against him on grounds that the State lacked probable cause to arrest him. After hearing arguments on Defendant's motion and considering the stipulated evidence, the district court identified the following three issues as being relevant to this case:
The first issue is whether or not there was reasonable suspicion sufficient to allow [Officer Evangelista] to order [Defendant] out of the car....
The second issue is, assuming there was reasonable suspicion to order [Defendant] out of the car, was there sufficient additional evidence to give [Officer Evangelista] probable cause to arrest [Defendant] for DUI.
The third issue is whether or not the evidence in total, if I deny your motions, is sufficient to establish beyond a reasonable doubt that [Defendant] either was operating under the influence on an--in an objective level or whether or not he had .085[sic] per cent [sic] or greater of alcohol in his blood[.]
As to the first issue, the district court concluded that the smell of alcohol and the officer's observation of Defendant's red eyes amounted to reasonable suspicion, notwithstanding the proffered testimony of Defendant's passenger. The district court noted that
Regarding the probable cause issue, the district court engaged in the following colloquy:
I've viewed the tape [of Defendant's performance on the FSTs]. From my vantage point viewing the tape, which wasn't perfect and it wasn't a perfect tape certainly, ... I would say that if I had to consider only the evidence on the tape, it didn't However, the transcript and the exhibits submitted show a couple of things. One, they do show that [Officer Evangelista] observed [Defendant's] eyes and smell of alcohol, things I can't discern from the tape, obviously.
appear to me that there was enough to establish probable cause.
It also indicated that, although he did pretty well on the two physical tests given as part of the [FSTs], he also administered a field--one field sobriety test called the [HGN] test, at least two of the three standard tests given as far as the HGN.
And on those, both of those, he noted indicia of impairment, lack of smooth pursuit and the appearance of nystagmus, which is the involuntary jerking of the eyeball.
I will say for the record that if I didn't have the HGN in front of me, I would rule that there was not probable cause based on the evidence that [Officer Evangelista] had in front of him. I don't think a reasonable officer could have entertained a strong suspicion. That's the test under [Hawai'i Rules of Penal Procedure] Rule 5. But I will take, as I have taken, judicial notice of the [HGN test].
Now at this point, [Defense counsel], you're objecting to my taking judicial notice of the HGN, I'm assuming, because it has not been recognize [sic] by the Hawaii [Hawai'i] Appellate Courts, is that correct? And the State has indicate--has introduced no scientific testimony to establish the foundation for it....
[DEFENSE COUNSEL]: Yes, Your Honor.
* * *
The only other thing is, Your Honor, factually there's indication he did not even follow [the HGN] test because he's indicated he didn't even do the third part on that.
[THE COURT]: He didn't do the third part, I agree. He didn't find the angle of onset. And I think probably--well, I haven't ruled on it yet so technically I'll note that he did not do that....
Now what I've done and I'll do today is I'll indicate that I, I follow the rationale of the Oregon Supreme Court in State vs. O'Key, ... at 899 [P.2d] 663, a 1995 case in which Justice Unis ... ruled after a pretty lengthy discussion that courts could take judicial notice of the [HGN test], that HGN wasn't something that was so scientifically difficult to comprehend that we needed scientific testimony.
I'll also note that most other states have indeed recognized [the HGN test] through their appellate decisions. I think our court will indeed do so as well, but the HGN is the same in Hawaii [Hawai'i] as it is in Oregon; and I'm satisfied that Justice Unis' logic and scholarship are sound. So I have taken judicial notice of this for a couple of years at this point.
Soon thereafter, the district court inquired:
Is there a stipulation that Officer Evangelista was trained through the standard course at, at HPD? I assume he would testify to that[,] otherwise he wouldn't be given [sic] the test. But I think, I think they have to establish that as part of the foundation. I don't think it's difficult to establish, but is that a problem?
The following colloquy ensued:
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