Dunaway v. Administrative Dir. of Courts

• Decision Date: 29 July 2005
• Docket Number: No. 26616.,26616.
• Citation: 117 P.3d 109
• Parties: Richard J. DUNAWAY, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF the COURTS, State of Hawai`i, Respondent-Appellee.
• Court: Hawaii Supreme Court

Page 109

117 P.3d 109

Richard J. DUNAWAY, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF the COURTS, State of Hawai`i, Respondent-Appellee.

No. 26616.

Supreme Court of Hawai`i.

July 29, 2005.

As Corrected July 29, 2005.

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

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

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

Opinion of the Court by ACOBA, J.

We hold in this appeal by Petitioner-Appellant Richard Dunaway (Dunaway), from the May 13, 2004 judgment of the district court of the first circuit¹ (the court) affirming the March 29, 2004 decision of the Director of the Administrative Driver's License Revocation Office (Respondent),² that Freitas v. Admin. Dir. of the Courts, 104 Hawai`i 483, 92 P.3d 993 (2004) [hereinafter, "Freitas I"], and Freitas v. Admin. Dir. of the Courts, No. 25323, 108 Hawai`i 31, 116 P.3d 673, 2005 WL 1714179 (July 25, 2005) [hereinafter, "Freitas II"], apply, and that as to issues not decided by those cases, (1) Honolulu Police Department (HPD) form 396B, the implied consent form, adequately informs drivers that they have a choice to submit or to refuse a blood or breath alcohol concentration test; (2) the police need only provide statutorily-mandated warnings to drivers suspected of operating a vehicle under the influence of an intoxicant (OUI), hence police need not advise that reasonable suspicion to stop a vehicle and probable cause to arrest must also be established at a revocation hearing; (3) HPD form 396B adequately served notice that the term "vehicle" as it pertained to license revocation encompassed "mopeds" and "vessels"; and (4) the Notice of Administrative Revocation explained the difference between an administrative revocation and a criminal suspension as required under Hawai`i Revised Statutes (HRS) § 291E-34(a)(2) (Supp.2004). In light of our holding we affirm the aforesaid judgment.

I.

On February 14, 2004, Dunaway was arrested in Kaneohe for operating a vehicle under the influence of an intoxicant, HRS § 291E-61(a) (Supp.2004), and was issued a Notice of Administrative Revocation. Dunaway's revocation for three months was upheld at an administrative review by Respondent on February 23, 2004, based on a blood test result of 0.08 or higher. Dunaway requested a hearing pursuant to HRS § 291E-38 (Supp.2004)³ and a hearing was held on March 24, 2004, at which time Dunaway appeared through counsel.

The hearing began with Dunaway's objection to Respondent's procedure of requiring visitors to sign in on a list and produce identification in order to attend the hearing. Dunaway filed a subpoena request for chief adjudicator Ronald Sakata to testify on the justification for the procedure. The hearing officer denied the subpoena request. Security was the justification given for the identification and sign-in procedure. Prior to the hearing, a woman came in and asked to attend Dunaway's hearing, offering to be searched but refusing to show identification or sign the list because this would invade her privacy. Dunaway argued that if the subpoenaed police officers were going to testify, then Dunaway had a right to have members of the public present for his hearing.

The hearing officer stated that the public was not denied access as long as they showed proper identification. Dunaway countered by noting that the public must also sign in to gain access to the hearing and he would waive examination of the police officers if the public was so denied.

The hearing officer explained the procedure she would use in the hearing. When asked whether the hearing was de novo or a review of the administrative review decision, the hearing officer responded that the hearing is de novo under HRS § 291E-38(e).⁴ The hearing officer explained that the police have the initial burden of proof which may be satisfied with documentary evidence received pursuant to HRS § 291E-38(h), sworn statements required by HRS § 291E-36 (Supp.2004), and documents which pertain to prior alcohol enforcement contact as specified by HRS § 291E-38(f). Upon reviewing the police report, the hearing officer concluded that the police had satisfied their initial burden of proof. The report included the Preliminary Alcohol Screening report, the field sobriety test report, and the sworn statements of Arresting Officer Shermon Dowkin dated February 14, 2004, transporting Officer Michael Moya (phonetic spelling), Intoxilyzer Operator Daron Akiyama (Form HPD 396D) dated February 14, 2004, and Intoxilyzer Supervisor Lawrence Santos (Form HPD 396E) dated February 5, 2004.

Dunaway objected, arguing that HRS § 291E-38(a) states that the purpose of the hearing is to review the administrative review decision and nothing in HRS § 291E-38(e) indicates the hearing is de novo. Dunaway then asked that the hearing officer follow a procedure as set forth by him, claiming that the "administrative revocation scheme contemplates that this procedure will be followed pursuant to HRS § 291E-38."⁵ The procedure recommended by Dunaway would mandate a hearing officer to rescind the revocation and end the hearing if the hearing officer was satisfied that a three-prong test of (1) reasonable suspicion to stop the vehicle, (2) probable cause to believe respondent is OUI, and (3) proof of OUI, had not been satisfied. If the hearing officer was satisfied that the test had been met, then the respondent would be given the opportunity to offer evidence to refute any part of the test or any prior alcohol contact.

The hearing officer declined to follow Dunaway's requested procedure. In the hearing, Dunaway objected to the use of some of the documents contained in the police report, arguing that only the sworn statement of the arresting officer (the arrest report) and evidence of prior alcohol or drug enforcement contacts were admissible. Dunaway objected to the consideration of hearsay in any of the sworn statements except to establish reasonable suspicion to stop his vehicle. His objections were overruled.

Dunaway also objected to HPD form 396B which he had received and signed, claiming that the form failed to inform him of the distinction between an administrative revocation and a criminal suspension as required by HRS § 291E-34(a)(2). Dunaway also argued that while the form informed him that driving on a public street meant he had consented to a blood or breath test, the form failed to disclose that drivers have a right to withdraw that consent under State v. Entrekin, 98 Hawai`i 221, 223, 47 P.3d 336, 338 (2002). Finally, Dunaway argued that the form failed to inform him that the administrative revocation of his license and privilege to operate a "vehicle" applied to a "vessel" and a "moped."

None of the subpoenaed witnesses testified. In a decision dated March 29, 2004, the hearing officer imposed a one-year revocation of Dunaway's driver's license. The hearing officer found that the hearing was conducted pursuant to HRS § 291E-38 which prescribes the administrative revocation hearing procedure. The hearing officer did not agree with Dunaway's argument that the three-prong test was in conflict with her findings.

The decision stated that an arresting officer is not required to explain every consequence or aspect related to refusing to take an alcohol concentration test or to taking the test and failing it. The hearing officer further found, by the preponderance of the evidence, and without consideration of the alcohol concentration test result, that Dunaway was operating a vehicle while under the influence of an intoxicant.⁶ Finally, the decision stated that the police are not required to explain the distinction between a criminal prosecution and administrative revocation notwithstanding HRS § 291E-34(a)(2). The hearing officer refused to hear Dunaway's arguments regarding the issue of public access.

In her decision, the hearing officer cited unpublished district court decisions and two summary disposition orders of this court. Dunaway sought judicial review. In a May 13, 2004 decision, the court affirmed the hearing officer's decision.

II.

On appeal, Dunaway argues that (1) the court erred in sustaining Respondent's decision (a) to convene the administrative license revocation hearing without permitting the general public full and open access and (b) to deny a hearing on the validity of Respondent's security procedure; (2) the court erred in ruling that Dunaway had not been denied due process of law based on (a) a seeming contradiction in HRS § 291E-38(a) which declares the revocation hearing will "review the [administrative review] decision" yet allows motorists to call witnesses and offer evidence, suggesting that the hearing is de novo, (b) the lack of a uniform hearing procedure, (c) the admission of Respondent's entire file, (d) the hearing officer's adherence to Desmond v. Admin. Dir. of the Courts, 91 Hawai`i 212, 219, 982 P.2d 346, 353 (App.1998) [hereinafter Desmond I] (advising hearing officers to inform the parties at the beginning of the hearing of the procedure to be followed but not requiring hearing officers to follow the procedure set forth by petitioner), rev'd on other grounds, Desmond v. Admin. Dir. of the Courts, 90 Hawai`i 301, 978 P.2d 739 (1999) [hereinafter Desmond II], and (e) the apparent disregard of the procedure set forth in HRS § 291E, Part III, which requires a valid chemical test result or refusal to confer jurisdiction on Respondent; (3) the court erred in upholding the revocation although HPD form 396B (a) failed to relate that Dunaway had a right to withdraw the consent to a blood or breath test that was implied by his operation of a vehicle on a public street, (b) implied that the only issue in an administrative revocation is whether the chemical alcohol test result reveals a blood alcohol concentration⁷ (BAC) in the driver of over 0.08 or that the test was refused, and (c) failed to inform...