Desmond v. ADMIN. DIRECTOR OF COURTS, 19966.

• Decision Date: 22 May 1998
• Docket Number: No. 19966.,19966.
• Citation: 982 P.2d 346,91 Haw. 212
• Parties: Cavin C. DESMOND, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAII, Respondent-Appellee.
• Court: Hawaii Court of Appeals

982 P.2d 346

91 Haw. 212

Cavin C. DESMOND, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAII, Respondent-Appellee.

No. 19966.

Intermediate Court of Appeals of Hawai`i.

May 22, 1998.

Reconsideration Denied June 3, 1998.

Earle A. Partington (Partington & Foley) on the briefs, Honolulu, for petitioner-appellant.

Girard D. Lau, Deputy Attorney General, on the briefs for respondent-appellee.

Before BURNS, C.J., ACOBA and KIRIMITSU, JJ.

Opinion of the Court by BURNS, C.J.

This is an administrative revocation of driver's license case governed by Hawai`i Revised Statutes (HRS) §§ 286-251 through 286-266. Petitioner-Appellant Cavin C. Desmond (Desmond) appeals the district court's May 31, 1996 Decision and Order Affirming Administrative Revocation (May 31, 1996 Decision and Order) that affirmed the administrative revocation of Desmond's driver's license. We vacate the May 31, 1996 Decision and Order and remand the case to the district court with the instruction that the matter be remanded for a new administrative hearing in accordance with this opinion and by a different hearing officer.

This opinion discusses the liberal rules of procedure and evidence applicable at administrative hearings held pursuant to HRS § 286-259 (Supp.1995), and a situation where the Administrative Driver's License Revocation Office (ADLRO) should have granted a pre-administrative hearing request for a subpoena requiring a witness to appear at the scheduled first administrative hearing.

FACTS

On January 18, 1996, at approximately 8:35 p.m., Maui Police Officer Anselm Yazaki (Officer Yazaki) observed a vehicle driven by Desmond make an illegal U-turn and almost collide with Officer Yazaki's vehicle.

Officer Yazaki activated his blue lights and Desmond pulled over. Officer Yazaki approached Desmond, smelled a strong odor of liquor coming from Desmond's breath, and noticed Desmond had red and watery eyes, slurred speech, and a red face. Maui Police Officer Michael Rodriguez (Officer Rodriguez) arrived to assist with the traffic stop and was advised by Officer Yazaki of Desmond's strong odor of liquor. Maui Police Officer Barry Aoki (Officer Aoki) was with Officer Rodriguez and was present when the field sobriety test was being conducted.

When Officer Rodriguez approached Desmond, as Desmond spoke, Officer Rodriguez also detected an "overwhelming" odor of liquor, red and watery eyes as well as slurred and repetitive speech. Desmond admitted he had four or five drinks of liquor in the previous hour. When Desmond exited the vehicle, Desmond almost fell backwards, stumbled, and tried to regain his balance. At all phases of a field sobriety test, Desmond's performance showed significant signs of his impairment.

Desmond was arrested for driving under the influence of intoxicating liquor (DUI) and was issued a notice of administrative revocation of his driver's license. Officer Rodriguez submitted a sworn statement¹ in which he stated that Desmond refused to take a breath or blood test. On January 26, 1996, the administrative review, pursuant to HRS § 286-258 (1995), and on March 22, 1996, the administrative hearing, pursuant to HRS § 286-259 (1995), affirmed Desmond's driver's license revocation. On May 31, 1996, after its judicial review pursuant to HRS § 286-260 (1993), the district court affirmed the revocation, and Desmond timely appealed.

PERTINENT STATUTES

The pertinent HRS applicable in this appeal are the following:

§ 286-252 [1993] Notice of administrative revocation; effect. As used in this part, the notice of administrative revocation:

(1) Establishes that the arrestee's driving privilege in this State shall be terminated thirty days after the date of arrest or such later date as is established by the director under section 286-259 if the director administratively revokes the arrestee's license;

(2) Establishes the date on which administrative revocation proceedings against the arrestee were initiated; and

(3) Serves as a temporary permit to drive as provided in section 286-255.

* * *

§ 286-257 [1995] Sworn statements of law enforcement officials.

(a) Whenever a person is arrested for a violation of section 291-4 and submits to a test that establishes that the arrestee's alcohol concentration was .08 or more, the following shall be immediately forwarded to the director:

(1) A copy of the arrest report and the sworn statement of the arresting officer stating facts that establish that:

(A) There was reasonable suspicion to stop the motor vehicle (B) There was probable cause to believe that the arrestee had been driving, operating, or in actual physical control of the motor vehicle while under the influence of intoxicating liquor;

(C) The arrestee was informed of the sanctions of this part, that criminal charges may be filed, and the consequences of refusing to be tested for alcohol concentration in the blood; and

(D) The arrestee refused to be tested;

* * *

(4) A copy of the notice of administrative revocation issued to the arrestee;

(5) Any driver's license taken into possession by the arresting officer; and

(6) A listing of any prior alcohol enforcement contacts involving the arrestee.

§ 286-258 [1995] Administrative review; procedures. (a) The director shall automatically review the issuance of a notice of administrative revocation, and a written decision administratively revoking the license or rescinding the notice of administrative revocation shall be mailed to the arrestee no later than eight days after the date the notice was issued.

(b) The arrestee shall have the opportunity to demonstrate in writing why the arrestee's license should not be administratively revoked and shall submit any written information within three days of the notice, either by mail or in person, to the director's office or to any office or address designated by the director for that purpose.

(c) In conducting the administrative review, the director shall consider:

(1) Any sworn or unsworn statement or other evidence provided by the arrestee;

* * *

(3) The sworn statements of the law enforcement officials, and other evidence or information required by section 286-257.

* * *

(f) If the director administratively revokes the arrestee's driver's license, the director shall mail to the arrestee a written decision stating the reasons for the administrative revocation. The decision shall also indicate that the arrestee has five days from the date the decision is mailed to request an administrative hearing to review the director's decision ....

(g) ... In no event shall the temporary permit be extended if the arrestee fails to request a hearing within the initial five-day period provided for that purpose....²

(Footnote added.)

§ 286-259 [1995] Administrative hearing. (a) If the director administratively revokes the arrestee's license after administrative review, the arrestee may request an administrative hearing to review the decision within six days of the date the administrative review decision is mailed. The hearing shall be scheduled to commence no later than twenty-five days from the date the notice of administrative revocation was issued. The director may continue the hearing only as provided in subsection (j).

* * *

(d) The director shall conduct the hearing and have authority to:

(1) Administer oaths and affirmations;

(2) Examine witnesses and take testimony;

(3) Receive and determine the relevance of evidence;

(4) Issue subpoenas, take depositions, or cause depositions or interrogatories to be taken;

(5) Regulate the course and conduct of the hearing; and

(6) Make a final ruling.

(e) The director shall affirm the administrative revocation only if the director determines that:

(1) There existed reasonable suspicion to stop the motor vehicle or the motor vehicle was stopped at an intoxication control roadblock established and operated in compliance with sections 286-162.5 and 286-162.6;

(2) There existed probable cause to believe that the arrestee drove, operated, or was in actual physical control of the motor vehicle while under the influence of intoxicating liquor; and

(3) The evidence proves by a preponderance that the arrestee drove, operated or was in actual physical control of the motor vehicle while under the influence of intoxicating liquor or while having an alcohol concentration of .08 or more or that the arrestee refused to submit to a breath or blood test after being informed of the sanctions of this part.

(f) The arrestee's prior alcohol enforcement contacts shall be entered into evidence.

(g) The sworn statements provided in section 286-257 shall be admitted into evidence. Upon notice to the director no later than five days prior to the hearing that the arrestee wishes to examine a law enforcement official who made a sworn statement, the director shall issue a subpoena for the official to appear at the hearing....

* * *

(j) . . . If a continuance is granted at the request of the arrestee, the director shall not extend the validity of the temporary permit ....

(k) If the arrestee fails to appear at the hearing, administrative revocation shall take effect for the period and under the conditions established by the director in the administrative review decision issued by the director under section 286-258.

§ 286-260 [1993] Judicial review; procedure.

* * *

(c) The sole issues before the court shall be whether the director exceeded constitutional or statutory authority, erroneously interpreted the law, acted in an arbitrary or capricious manner, committed an abuse of discretion, or made a determination that was unsupported by the evidence in the record.

DISCUSSION

A.

Desmond contends that the district court erred when it affirmed the administrative revocation because, at the administrative hearing, the hearing officer (Hearing Officer) (1) refused to (a) follow any prescribed procedure, (b) rule on objections, and (c) permit counsel to conduct his case; (2) did not remain impartial; and (3)...