Brune v. Administrative Director of Courts

• Decision Date: 16 March 2006
• Docket Number: No. 27108.,27108.
• Parties: Albine J. BRUNE, III, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF the COURTS, STATE OF HAWAI`I, Respondent-Appellee.
• Court: Hawaii Supreme Court

Page 1037

130 P.3d 1037

Albine J. BRUNE, III, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF the COURTS, STATE OF HAWAI`I, Respondent-Appellee.

No. 27108.

Supreme Court of Hawai`i.

March 16, 2006.

Earle A. Partington, Honolulu, on the briefs, for petitioner-appellant.

Girard D. Lau, Deputy Attorney General, State of Hawai`i, on the briefs, for respondent-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by ACOBA, J.

We hold that the completion of certain Administrative Driver's License Revocation Office (ADLRO) forms by Petitioner-Appellant U.S. Navy Lieutenant Albin J. Brune, III (Appellant) and subsequent transmittal of the forms by a civilian police officer for the Department of the U.S. Navy (the Navy) to the ADLRO do not violate the Posse Comitatus Act (the PCA)¹ inasmuch as (1) the enforcement of Hawai`i state law against military personnel on a military base does not infringe on civil authority, and (2) a primary military purpose for the completion and transmittal was established. In light of the foregoing, the January 10, 2005 "Decision and Order Affirming Administrative Revocation" of the district court of the first circuit² (the court), which upheld the suspension of Appellant's driver's license, is affirmed.

Appellant was arrested on October 3, 2004, near the intersection of Center Drive and Kamehameha Highway, on the Pearl Harbor Naval reservation, by Navy Civilian Police Officer Jose Valentin-Santana (Officer Santana) of Navy Regional Security Hawai`i, Pearl Harbor, for operating a vehicle under the influence of an intoxicant, Hawai`i Revised Statutes (HRS) § 291E-61(a) (Supp. 2004).

After stopping the vehicle, Officer Santana read to Appellant the Special Assistant United States Attorney (SAUSA) form entitled "Implied Consent Warning/Waiver Certificate and Hawaii Administrative Driver's License Revocation Office" form (the Implied Consent form). The Implied Consent form refers to (1) "Prescribing Directive[s]," (2) "Authority," (3) "Principle Purpose," (4) "Routine Use [for the form]," and (5) "mandatory or voluntary disclosure and effect on individual not providing information." According to the Implied Consent form, this "data" is provided under the mandate of the Privacy Act of 1974.³ Officer Santana completed the Implied Consent form, and the Navy forwarded it to the ADLRO with a Navy police report and a SAUSA form entitled "Administrative Driver's License Revocation Document Checklist" (the ADLRD Checklist). The ADLRD Checklist enumerates the forms that must be included in the packet submitted to the ADLRO and the forms that must be provided to the driver.

Appellant was also issued a Notice of Administrative Revocation on October 3, 2004, informing him of the "administrative revocation of [his] license and privileges" for one year. On October 8, 2004, Appellant's one-year driver's license revocation was sustained by an ADLRO review officer. Appellant requested an administrative hearing, which took place on November 10, 2004.⁴

The hearing began with the hearing officer relating the procedure to be followed. Subsequently, the hearing officer received most of the ADLRO file into evidence, as well as subpoenas Appellant had requested for the arresting officer and the Intoxilyzer operator. Also admitted was a subpoena request for the ADLRO "Chief Adjudicator"; this subpoena was denied.

Counsel for Appellant notified the hearing officer that before the hearing, a woman asked to attend the hearing and offered to be searched. This woman was not willing to present identification and sign in, declaring it a violation of her privacy. Appellant's counsel stated for the record that the hearing officer denied her access to the hearing, unless the identification and sign-in procedure was followed.

Counsel for Appellant also requested a particular procedure be followed, and a copy of the procedure was made part of the record. Appellant objected to the hearing officer's procedure but was ultimately overruled.

Lt. David Thomas (Lt. Thomas), an Intoxilyzer operator, was then called to testify. He related that he is a lieutenant with the Pearl Harbor police and is a "civilian, government service, general schedule employee."⁵ He further reported that the police force is under direct military command.

Lt. Thomas was shown the ADLRD Checklist. Lt. Thomas confirmed that he was familiar with the form and that the purpose of the ADLRD Checklist was to ensure that the documents required to be sent to the ADLRO were transmitted. Lt. Thomas then identified the Implied Consent form, with which he was also acquainted. He affirmed that the Implied Consent form is to be forwarded to the ADLRO for compliance with Hawaii's implied consent law.

Officer Santana testified that he is a civilian police officer for the Navy. According to the officer he stopped Appellant in the Hale Moke housing area, which is a part of the Pearl Harbor Naval reservation. After being shown the Implied Consent form, he, like Lt. Thomas, testified that it is forwarded to the ADLRO in compliance with the implied consent law.

On November 15, 2004, the hearing officer, on behalf of Respondent-Appellee Administrative Director of the Courts, State of Hawai`i (the Director),⁶ issued her "Findings of Fact, Conclusions of Law, and Decision" (the Decision). In the Decision, the hearing officer stated that she is authorized by HRS § 291E-38 (Supp. 2005) only to conduct an administrative hearing concerning the revocation of Appellant's driver's license and that constitutional claims concerning the ADLRO security measures are outside the scope of that provision. Appellant argued that the PCA was violated because there was not a separate military purpose for the completion and subsequent transmittal of the Implied Consent form and the ADLRD Checklist and that the military has its own administrative revocation proceedings. The hearing officer concluded that Appellant's arguments regarding the PCA were unpersuasive, declaring that the State has concurrent jurisdiction of violations of HRS § 291E-61 (Supp. 2005)⁷ which occur on a military installation and "there is nothing that specifically prohibits military personnel from carrying out their duties with respect to on-base/military reservation violations for operating a vehicle while under the influence of an intoxicant." She further stated that the arresting officer is not required to explain every consequence or aspect related to a refusal or taking of a blood alcohol concentration (BAC) test and failing it. The hearing officer made the following findings of fact:

1. On October 3, 2004, at 2:50 a.m., in the County of Honolulu, Arresting Officer Jose Valentin-Santana observed a (a 1991 Volvo wagon with Hawaii license number EDZ-638) vehicle driven by the [Appellant]. The officer observed the vehicle travelling north-east on Center Drive near the intersection with Kamehameha Highway. The officer saw the vehicle travelling at a high rate of speed and observed the vehicle executed [sic] a left turn at the intersection against a red light without stopping.

2. Officer Santana pulled the vehicle over, approached the driver's side of the vehicle, and spoke with [Appellant]. Officer Santana identified [Appellant] with his driver's license and informed him of the reason for the traffic stop.

3. Officer Santana, as he spoke with [Appellant], detected a strong odor of an alcoholic beverage on [Appellant's] breath, eyes that were red and bloodshot, and slurred speech.

4. The result of [Appellant's] field sobriety tests were not considered by this Hearing Officer based upon the foundational testimony of the Arresting Officer. However, Officer Valentin's personal observations that [Appellant] was unsteady on his feet, difficulty with balance, swaying, and inability to follow [sic] as instructed were considered by this Hearing Officer.

5. [Appellant] was arrested for operating a vehicle under the influence of an intoxicant.

6. [Appellant] was read the sanctions of [HRS chapter] 291E, Part III. [Appellant] did not refuse to take an alcohol concentration test by a breath test.

7. [Appellant's] prior driving record in the State of Hawaii shows no prior alcohol enforcement contact, as defined by [HRS] § 291E-1, from the State of Hawai`i traffic violator database ("TRAVIS").

8. [Appellant's] driver's license was revoked by the Administrative Review Officer for the period November 3, 2004, through to and including November 2, 2005. However, this Hearing Officer amended the administrative revocation to a three month period, from November 3, 2004 to February 2, 2005.

The hearing officer rendered the following conclusions of law:

1. The Director concludes there existed reasonable suspicion, the traffic violation(s), to stop the motor vehicle driven by [Appellant].

2. The Director concludes there existed probable cause that [Appellant] drove, operated, or was in actual physical control of the vehicle, while under the influence of an intoxicant.

3. [Appellant] did not refuse to take an alcohol concentration test.

4. The Director separately and independently concludes, by a preponderance of the evidence, without consideration of the alcohol concentration test result that [Appellant] drove, operated, or was in actual physical control, of the vehicle while under the influence of an intoxicant.

Appellant's driver's license thus was revoked for three months. The hearing officer made no findings or conclusions regarding the PCA.

On November 17, 2004, Appellant filed a Petition for Judicial Review. On January 10, 2005, the court affirmed the hearing officer via a decision and a separate judgment. The court concluded that the PCA does not prohibit a military police officer from acting upon an on-base violation of HRS § 291E-61 by an active-duty Navy officer. The court further ruled that the hearing was conducted in accordance with HRS § 291E-38. It was noted that the issue...