Minnich v. Administrative Dir. of Courts

• Decision Date: 05 January 2006
• Docket Number: No. 27068.,27068.
• Citation: 124 P.3d 965
• Parties: David C. MINNICH, Petitioner-Appellant v. ADMINISTRATIVE DIRECTOR OF the COURTS, State of Hawai`i, Respondent-Appellee.
• Court: Hawaii Supreme Court

124 P.3d 965

David C. MINNICH, Petitioner-Appellant v. ADMINISTRATIVE DIRECTOR OF the COURTS, State of Hawai`i, Respondent-Appellee.

No. 27068.

Supreme Court of Hawai`i.

December 19, 2005.

As Corrected January 5, 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, in this appeal by Petitioner-Appellant David C. Minnich (Petitioner), from the December 20, 2004 judgment of the district court of the first circuit¹ (the court) affirming the October 4, 2004 decision of Respondent-Appellee Administrative Director of the Courts, State of Hawai`i (Respondent),<sup>2</sup> that (1) Freitas v. Admin. Dir. of the Courts, 108 Hawai`i 31, 116 P.3d 673 (2005) [hereinafter, Freitas II], and Dunaway v. Admin. Dir. of the Courts, 108 Hawai`i 78, 117 P.3d 109 (2005) apply, and as to issues not decided by those cases, (2) the provisions under Hawai`i Revised Statutes (HRS) § 291E-3(a) and (c) (Supp.2004)³ apply to administrative revocation of driver's license proceedings, (3) evidence of a defendant's blood-alcohol level obtained from a blood alcohol chemical (BAC) test more than three hours after an alleged violation is relevant but must be offered in compliance with the Hawai`i Rules of Evidence (HRE) as prescribed under HRS § 291E-3(c), and (4) the Director was right in concluding that irrespective of Petitioner's BAC test result, the remainder of the evidence supported the conclusion that Petitioner was operating his vehicle while under the influence of an intoxicant (DUI). In light of our holding, we vacate the Director's finding that the three-hour time frame for drawing a blood sample under HRS § 291E-3 applies only to criminal prosecutions, but affirm the court's judgment.

I.

On September 5, 2004, Petitioner was arrested in Honolulu, Hawai`i, for DUI, in violation of HRS § 291E-61(a) (Supp.2004),⁴ after a motor vehicle he was driving collided with a median guard rail and after he failed the field sobriety tests. Subsequently, Petitioner consented to and failed a BAC test. Petitioner's driver's license was revoked and the revocation was sustained for a period of three months by a review officer of the Administrative Driver's License Revocation Office (ADLRO) on September 10, 2004. Petitioner requested a hearing within six days of the revocation pursuant to HRS § 291E-37 (Supp.2004)⁵ and the hearing was scheduled on September 29, 2004.

On the day of and prior to the hearing, two women came into the ADLRO and asked to attend Petitioner's hearing. The women refused to follow the ADLRO's sign-in and identification procedures, stating that to do so would violate their privacy. The women offered to be searched instead, but were not granted entry.

During the hearing, Petitioner, through his counsel, contended that, under this court's decision in Freitas v. Admin. Dir. of the Courts, 104 Hawai`i 483, 489, 92 P.3d 993, 999 (2004) [hereinafter Freitas I], he was entitled to a hearing on the validity of the ADLRO security procedures.

Over Petitioner's objections, the hearing officer received most of the ADLRO file into evidence, including the Honolulu Police Department (HPD) 396B Implied Consent Form (HPD 396B form), the arrest report, the Standardized Field Sobriety Test (SFST) results, and the sworn statements of the arresting officer and BAC test technician. The arrest report indicated that Arresting Officer Miya Brouwer (Officer Brouwer) was sent by dispatch at approximately 10:35 p.m. and that she arrived at the scene at about 10:40 p.m.

The hearing officer then advised Petitioner that he could begin his presentation and that the hearing was conducted de novo, to which Petitioner objected.

Petitioner requested that a particular procedure be followed.⁶ The hearing officer stated that she was not required to follow Petitioner's requested procedure.

Officer Brouwer was then called to testify. Officer Brouwer testified that she was personally supervised by her training officer, Officer Mei King (Officer King). Officer Brouwer related that this was the third arrest she had made for DUI. When they arrived at the scene of Petitioner's accident, another police officer, Officer Eric Lorica (Officer Lorica), was already present. Officer Brouwer noted that Petitioner's vehicle had sustained front end damage from having hit a guardrail of an on-ramp from Kamehameha Highway to the H-1 freeway and that the damage to the vehicle was severe. Officer Brouwer did not know how much time had elapsed between the time of the accident and her arrival.

After questioning Petitioner for approximately ten minutes, at approximately 10:50 p.m., Officer Brouwer began to administer the SFSTs because of Petitioner's appearance and the odor of alcohol on his breath. While Petitioner's eyes were not red or bloodshot, Officer Brouwer observed them to be glassy and Officer Lorica reported them to be "watery and glassy." Officer Brouwer conceded that a driver would be "shaken up" in an accident such as this one.

Officer Brouwer administered the SFSTs on the freeway. The ground was level and the street was damp as it had begun to drizzle. The three SFSTs are (1) the walk-and-turn (WAT), (2) the one-leg stand (OLS), and (3) the horizontal gaze nystagmus (HGN). Officer Brouwer administered all three tests to Petitioner. Officer Brouwer admitted to not knowing how the accident affected Petitioner's performance on the SFSTs, although Petitioner was observed to be, and claimed that, he was fine.

During his cross examination of Officer Brouwer, Petitioner's counsel referred to a manual entitled DWI Detection and Standardized Field Sobriety Testing, Participant Manual, 2002 ed., published by the National Highway Traffic Safety Administration (NHTSA). The manual provides instructions for administering SFSTs. The WAT instructions state that the "[w]alk and [t]urn test requires a designated straight line and should be conducted on a reasonably dry, hard, level, nonslippery surface." Officer Brouwer was not trained at the police academy to administer the WAT on an actual line and she did not do so with Petitioner. Officer Brouwer also admitted that the surface "might" have been slightly slippery from the drizzle, but not wet. The OLS test instructions in the manual provide that the "[o]ne-leg-stand requires a reasonably dry, hard, level and non-slippery surface. Suspect's safety should be considered at all times." Officer Brouwer noted that the ground was level and that it had started to drizzle at the time she administered the OLS to Petitioner.

In connection with the HGN test, the manual contained an illustration of a protractor device which aids a police officer to estimate a forty-five degree angle required for the test's accuracy. Officer Brouwer had never seen the device before and had not used it in her training. Officer Brouwer was taught it was important to be able to identify a forty-five degree angle when administering the HGN, and although she did not use a protractor to do so, she employed an alternative technique.⁷ Petitioner asserted that all three SFST results were inadmissible because the tests were not administered in accordance with NHSTA standards.

The record indicated that Petitioner was arrested and consented to a BAC test. The BAC test registered .23 grams of alcohol per hundred milliliters or cubic centimeters of blood.⁸ Between the time of his arrest and the time a blood sample was taken, Petitioner did not consume any food or beverage. Petitioner objected when Respondent admitted the BAC test results into evidence, arguing that under HRS § 291E-3, such results are admissible without further evidence only if the blood is drawn within three hours of the alleged violation. Petitioner claimed that because there was no evidence to indicate the time at what any alcoholic beverage was consumed and the time of the collision, the BAC test results were inadmissible. The hearing officer found that the three-hour limitation pertained to criminal prosecutions and that because the ADLRO process is a civil administrative proceeding, the three-hour limit did not apply.

Petitioner then made the following objections: (1) he was denied his own hearing on the ADLRO security procedures; (2) a valid breath or BAC test is a jurisdictional requirement for administrative revocation and, given the absence of a time frame for the accident, the ADLRO does not have jurisdiction; (3) the Notice of Administrative Revocation (Notice) is void because the arresting officer failed to properly inform Petitioner of the implied consent law; (4) while Petitioner was informed that he had consented to a BAC test by driving, he was not informed that he had a legal right to refuse such a test; (5) the Notice fails to explain the distinction between administrative revocation and criminal suspension pursuant to HRS § 291E-34(a)(2) (Supp.2004); (6) the HPD 396B form (a) erroneously notified him that the only issue in an administrative revocation was whether the result of the BAC test was .08 or over or the test was refused, and (b) erroneously advised him that the minimum length of revocation is three months when HRS § 286-104(1) (Supp.2004) mandates a minimum revocation of one year; and (7) that the form misled him to believe that the State of Hawai`i could revoke his New York driver's license.

II.

By a decision dated October 4, 2004, the hearing officer sustained the three-month revocation of Petitioner's driver's license. The hearing officer made the following relevant findings and conclusions:

4. Validity of the SFST.

....

The Arresting Officer testified that: she could not identify the manual proffered by Counsel; she is certified to administer the SFST; she administered the test in accordance with her training; and, she had the benefit of the oversight...