Ige v. Administrative Director of the Court, No. 22466.

• Decision Date: 23 February 2000
• Docket Number: No. 22466.
• Citation: 997 P.2d 59,93 Haw. 133
• Parties: Melvin M. IGE, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF THE COURT, State of Hawai`i, Respondent-Appellee.
• Court: Hawaii Court of Appeals

997 P.2d 59

93 Haw. 133

Melvin M. IGE, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF THE COURT, State of Hawai`i, Respondent-Appellee.

No. 22466.

Intermediate Court of Appeals of Hawai`i.

February 23, 2000.

Michael G.M. Ostendorp, Honolulu, for petitioner-appellant.

Kumu B. Vasconcellos and George K.K. Kaeo, Jr., Honolulu, Deputy Attorneys General, for respondent-appellee.

WATANABE, ACOBA, and LIM, JJ.

Opinion of the Court by ACOBA, J.

We hold that an Intoxilyzer operator's sworn declaration which stated, in essence, that a breathalyzer test for blood alcohol concentration was conducted in compliance with operator training and that the Intoxilyzer did not malfunction, states facts sufficient to establish compliance with Hawaii Revised Statutes (HRS) § 286-257(a)(3)(B) and (C) (Supp.1998) as part of the foundation for admission of the Intoxilyzer test result. Because the Intoxilyzer operator's declaration in the driver's license revocation proceeding brought against Petitioner-Appellant Melvin M. Ige (Petitioner) so stated, we affirm, on the grounds set forth herein, the March 9, 1999 decision and order of the District Court of the First Circuit (the court) affirming the January 4, 1999 administrative revocation of Petitioner's driver's license by the Administrative Driver's License Revocation Office (the ADLRO).

I.

A.

The following facts are adduced from the January 4, 1999 ADLRO findings of fact (findings), conclusions of law (conclusions), and decision. At 1:37 a.m. on November 9, 1998, Honolulu Police Department (HPD) Officer Nathan Santos (Officer Santos) observed a silver Oldsmobile (the vehicle) weaving westbound on the H-1 Freeway somewhere before the Hickam off-ramp. While passing the vehicle, Officer Santos observed the vehicle cross over and straddle two traffic lanes before nearly sideswiping Officer Santos's vehicle. The officer drove past the vehicle and kept pace with it, traveling at about fifteen miles under the minimum speed limit of forty-five miles per hour. Officer Santos stopped the vehicle and then requested and obtained Petitioner's driver's license from him. When Officer Santos requested Petitioner's vehicle registration and insurance card, Petitioner provided a "medical/health card" instead.

The officer observed that Petitioner's eyes were "glassy" and "bloodshot," and that Petitioner appeared to be "lost." Officer Santos detected a moderate odor of an alcoholic beverage from Petitioner and noted that Petitioner's speech was slurred. After administering a field sobriety test to Petitioner, the officer believed Petitioner exhibited signs of intoxication.¹

Petitioner was arrested and transported to the Kalihi Police Station. He was then told that he could take a blood test, breath test, or both, and was informed of the sanctions and consequences of refusing to be tested. Petitioner elected to take a breath test. The Intoxilyzer,² model 5000, number XX-XXXXXX, was used to test Petitioner. Intoxilyzer operator Joel K. Gonsalves (Gonsalves) administered the test. The test result revealed Petitioner's blood alcohol concentration to be.189 percent. The ADLRO was provided with Petitioner's driver's license and other relevant documents, such as the statements of the Intoxilyzer supervisor and the operator, and the statements of Officer Santos and HPD Officer Prudencio Dela Cruz (Officer Dela Cruz), who was a passenger in the car with Officer Santos on November 9, 1998.

B.

The ADLRO revoked Petitioner's driver's license for the period from December 10, 1998 to December 9, 1999. Petitioner requested an administrative hearing on November 18, 1998. After two continuances at Petitioner's request, a hearing was held on December 31, 1998. Petitioner was present with counsel. Officer Santos and Officer Dela Cruz testified at the hearing. Petitioner did not call as witnesses the Intoxilyzer supervisor or the Intoxilyzer operator whose statements had been submitted to the ADLRO.

On January 4, 1999, the presiding hearing officer (hearing officer) issued a decision sustaining the ADLRO's revocation.

C.

On February 3, 1999, Petitioner filed a petition for judicial review and a hearing was set for March 8, 1999, before the court. Petitioner was present with counsel at that hearing. At the March 8, 1999 court hearing, the court stated to Petitioner's counsel, "The [I]ntoxilyzer operator ... did submit a report. You're just alleging that the report is insufficient." To this, counsel for Petitioner responded, "Yes[.]" Petitioner argued the sworn statement of the Intoxilyzer operator did not reveal whether proper procedure was followed when administering the test to Petitioner.

[COUNSEL FOR PETITIONER]: ... Clearly that sworn statement [of the Intoxilyzer operator] establishes albeit inclusary terms but in terms I'm satisfied is in compliance with the statute; that the test was conducted pursuant to Department of Health Regulations.

However, it does not establish that the test was otherwise conducted properly; that is, that the proper procedures necessary to use the machine were in fact followed in this case.

(Emphasis added.)

After the hearing, the court issued a March 9, 1999 decision and order affirming the revocation of Petitioner's driver's license, stating, in relevant part, as follows:

Having considered the submission and arguments of counsel and the records and files herein, the [c]ourt hereby finds:

. . . .

5. The Administrative Director did not make a determination which was unsupported by the evidence in the record.

. . . .

The "Petitioner's Brief" references to page 4 of the transcript of the administrative hearing ... to show that the issue on appeal was raised in the administrative hearing. However, the transcript does not support Petitioner's assertion that the issue was raised in the administrative hearing. Not only did Petitioner not object to the admission of the intoxilyzer result, Petitioner affirmatively asked the Hearings Officer to "put in all the documents." (Record at 67) This request included both the "Sworn statement of the Intoxilyzer Operator" and the sworn statement of the [I]ntoxilyzer supervisor. (Record at 61 and 62.)

Since Petitioner did not raise the issue in the administrative hearing, this Court will not consider it on appeal. Even if it had been raised below, this Court would not engage in the conjecture urged by Petitioner. There being no other issue on appeal and no plain error, the administrative revocation of Petitioner's driver's license is affirmed.

(Emphases added.) Judgment was entered on March 9, 1999.

II.

On appeal to this court, Petitioner argues that the court erred (1) in ruling that he had not raised an objection to the insufficiency of "established procedures" and "operating procedures" required under HRS § 286-257(a)(3)(B) and (C)³; and 2) in finding that evidence as to the testing procedure was sufficient to support Petitioner's driver's license revocation. Respondent-Appellee Administrative Director of the Court, State of Hawaii (the director) maintains that the court correctly denied the appeal because Petitioner failed to raise the issue of HRS § 286-257(a)(3) compliance, and the sworn statement of the Intoxilyzer operator met the statutory requirements of HRS § 286-257(a)(3)(B) and (C).

III.

HRS § 286-257(a)(3) provides that following an arrest and submission to a test which "establishes that the arrestee's alcohol concentration was .08 percent or more,⁴ the following shall be forwarded to the director":⁵

The sworn statement of the person who conducted the test stating facts that establish that pursuant to section 321-161 and rules adopted thereunder:

. . . .

(B) The person followed the procedures established for conducting the test;

(C) The equipment used to conduct the test functioned in accordance with operating procedures and indicated that the person's alcohol concentration was at, or above, the prohibited level[.]

(Emphases added).

A.

We conclude that the court erred in ruling that Petitioner did not raise the HRS § 286-257(a)(3) compliance issue at the administrative hearing.

Petitioner admits in his brief that his arguments to the hearing officer at the December 31, 1998 hearing were "concededly confused." The transcript of the proceedings, in pertinent part, states the following:

[COUNSEL FOR PETITIONER]: I was first going to say, let's not [go] any further, I'd like the license returned, because the sworn statement⁶ isn't there, but I[now] see despite what I've got that there is a sworn statement. I will, however, refer the [h]earing [o]fficer to the Administrative Decision, this is HPD 396a, and nonetheless proceed.

I note that the operational checklist, or as I read it in the statute, the requirement under § 286-257(a)(2)—I'm sorry—it's interesting, (C), that is usually we consider the [I]ntoxilyzer supervisor, but the checklist goes to show that the test was properly performed. That is, that all the required steps, including observing the suspect for the required period of time prior to the blow, that during the period of observation the suspect didn't eat, smoke or place anything in his mouth, that the proper steps to use the machine were taken—

HEARING OFFICER: I'll note the following, counsel, just for counsel's information, this matter has been raised in the past and has been disclosed [sic] on, I believe, on judicial appeal. The situation arose where the [HPD], this [h]earing [o]fficer[] will take administrative notice that they have since discontinued the [I]ntoxilyzer checklist for—I'm not sure how long.

[COUNSEL FOR PETITIONER]: This machine.

HEARING OFFICER: For awhile.

[COUNSEL FOR PETITIONER]: Okay.

HEARING OFFICER: And this matter was then raised at that time.

[COUNSEL FOR PETITIONER]: Right.

HEARING OFFICER: Taken up and disposed of, just to let counsel be aware of I will find that Title 11, Chapter 114, does not require a checklist, neither does the statute and I do believe there is a

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