State v. Dauer, 083019 HIICA, CAAP-18-0000004

Docket Nº:CAAP-18-0000004
Party Name:STATE OF HAWAI'I, Plaintiff-Appellee, v. CHELSEA L. DAUER, Defendant-Appellant
Attorney:On the briefs: Earle A. Partington, Law Office of Earle A.Partington), R. Patrick McPherson, (Law Office of R. Patrick McPherson, AAL, ALC), for Defendant-Appellant. Chad Kumagai, Deputy Prosecuting Attorney, for Plaintiff-Appellee.
Judge Panel:Ginoza, Chief Judge, Leonard and Chan, JJ.
Case Date:August 30, 2019

STATE OF HAWAI'I, Plaintiff-Appellee,

v.

CHELSEA L. DAUER, Defendant-Appellant

No. CAAP-18-0000004

Intermediate Court of Appeals of Hawaii

August 30, 2019

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION (CASE NO. 1DTA-17-00865)

On the briefs: Earle A. Partington, Law Office of Earle A.Partington), R. Patrick McPherson, (Law Office of R. Patrick McPherson, AAL, ALC), for Defendant-Appellant.

Chad Kumagai, Deputy Prosecuting Attorney, for Plaintiff-Appellee.

Ginoza, Chief Judge, Leonard and Chan, JJ.

SUMMARY DISPOSITION ORDER

Defendant-Appellant Chelsea L. Dauer (Dauer) appeals from a Notice of Entry of Judgment and/or Order and Plea/Judgment (Judgment), entered on December 6, 2017, by the District Court of the First Circuit, Honolulu Division (district court).[1]The district court convicted Dauer of one count of Operating a Vehicle Under the Influence of an Intoxicant, in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) (2007 and Supp. 2018} .2

On appeal, Dauer argues the district court wrongly concluded (1) the roadblock at which she was stopped complied with the Hawaii Administrative Rules (HAR), where Plaintiff-Appellee State of Hawai'i (State) failed to* demonstrate the Honolulu Police Department (HPD) issued a news release, notifying the public "of the fact and purpose of the roadblock," in compliance with the Rules of the Chief of Police (RCP) Rule 18-3(d); and (2) the evidence was sufficient to convict her where the district court failed to find her normal mental faculties were impaired.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Dauer's points of error as follows.

A. Compliance with RCP Rule 18-3(d)

RCP Rule 18-3(d) provides: The following safety precautions shall be provided at every roadblock.

(d) Advance warning of the fact of the roadblock, either by reflective sign, flares, or other alternative methods. Advance warning of the fact and purpose of the roadblocks by proper news release[.]

Dauer argues the roadblock was invalid where the State failed to prove compliance with RCP Rule 18. This point lacks merit. Even if the HPD failed to issue a news release to warn the public about potential future roadblocks, a failure to comply scrupulously with internal police procedures that do not fall within the definition of a "rule" under HRS § 91-1, 3 "shall not invalidate a roadblock that otherwise meets the minimum statutory criteria[.]" State v. Claunch, 111 Hawai'i 59, 65, 137 P.3d 373, 379 (App. 2006).

Dauer does not argue the State failed to comply with HRS § 291E-20 ("Minimum standards for roadblock procedures."). RCP Rule 18-3(d) falls within an exception to HRS § 91-1's definition of "rule" for "regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public[.]" RCP Rule 18-3(d) "does not command members of the public to do anything or prohibit them from doing anything, nor does it declare the rights of members of the public or affect a procedure available to members of the public[, ]" see Kawashima v. State, 140 Hawai'i 139, 152, 398 P.3d 728, 741 (2017), and is directed only at police officers, see In re Doe, 9 Haw.App. 406, 412, 844 P.2d 679, 682 (1992), and aimed at "prescribing and controlling the police officer's activities in order to minimize the intrusion on the driver's rights[, ]" see State v. Fedak, 9 Haw.App. 98, 101, 825 P.2d 1068, 1070 (1992), superseded by statute as stated in Claunch, 111 Hawai'i at 64, 137 P.3d at 378.

Dauer argues the RCP were adopted pursuant to HRS Chapter 91, and, therefore, must be treated as requirements for a legally...

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