State v. Ferrer, No. 22654.

• Decision Date: 30 March 2001
• Docket Number: No. 22654.
• Citation: 95 Haw. 409,23 P.3d 744
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Victor Michael FERRER, Defendant-Appellant.
• Court: Hawaii Court of Appeals

23 P.3d 744

95 Haw. 409

STATE of Hawai`i, Plaintiff-Appellee, v. Victor Michael FERRER, Defendant-Appellant.

No. 22654.

Intermediate Court of Appeals of Hawai`i.

March 30, 2001.

Reconsideration Denied May 24, 2001.

Timothy I. MacMaster, on the briefs, for defendant-appellant.

Bryan K. Sano, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.

BURNS, C.J., WATANABE, and LIM, JJ.

Opinion of the Court by WATANABE, J.

Defendant-Appellant Victor Michael Ferrer (Defendant) appeals from the June 1, 1999 Judgment of the District Court of the First Circuit, `Ewa Division (the district court), convicting him of Driving Under the Influence of Intoxicating Liquor (DUI), in violation of Hawai`i Revised Statutes (HRS) § 291-4 (Supp.1998).¹ Concluding that the record on appeal supports Defendant's conviction of DUI under HRS § 291-4(a)(2), we affirm.

BACKGROUND

A. The Traffic Stop

The transcripts of the district court proceedings below indicate that on March 22, 1999, at approximately 12:05 a.m., Officer Alfred Chock (Officer Chock) of the Honolulu Police Department (HPD) "was running laser reports, speeding reports" at the corner of Farrington Highway and Kahuali`i Street in Waipahu when he observed Defendant's motorcycle "[c]oming down Farrington Highway west bound[.]" Officer Chock testified that he "initiated" Defendant's vehicle with an LTI 20-20 hand-held laser, which indicated that Defendant's vehicle was traveling at a speed of seventy-seven miles per hour. Officer Chock thereupon activated his "blue lights and sirens and pulled [Defendant] over and initiated a traffic stop."

According to Officer Chock, Defendant, who was not wearing a helmet, pulled over his motorcycle "right away" and produced, at Officer Chock's request, a driver's license, vehicle registration, and no-fault insurance card. After detecting a "moderate odor" of alcohol emanating from Defendant's breath and noticing that Defendant's eyes were red, "[h]is demeanor was kinda sluggish" and "[h]is verbal toneage was kinda slurred[,]" Officer Chock asked Defendant if "he wouldn't mind consenting to . . . take any field sobriety test" (FST). According to Officer Chock, Defendant replied, "Yeah, sure. Okay."

On cross-examination, Officer Chock was asked about why he administered the FSTs to Defendant. The following colloquy transpired:

Q Okay. And let me ask you this: Why didn't you just arrest him before you did the [FST]?

A `Cause all I had was speed.

Q Okay. Isn't it a fact that prior to the administration of the [FST] you did not have sufficient probable cause to arrest [Defendant] for [DUI] —

A Prior to, no.

. . . .

Q Consider everything that you observed right up until the point in time at which you started to administer the [FST] — let's back up. One of the reasons that you administered the [FST] is to determine whether or not someone is under the influence of intoxicating liquor, correct?

A Yes.

. . . .

Q Okay. And so isn't it a fact that prior to the administration of the [FST], you did not have sufficient probable cause to arrest [Defendant] for [DUI].

A That's why we do the test.

Q Okay. And you're agreeing that you did not have a sufficient probable cause to arrest [Defendant] until you administered the test and evaluated his performance on it, correct?

A I did not have enough to — I just wanted to see if he was capable of driving (inaudible).

Q Okay. And so because you did not have sufficient probable cause at that time, you administered the [FST], correct?

A Or I took the (inaudible) his red eyes, the moderate odor of alcohol, maybe his speed into account. That's why I asked him to take the test.

Q Okay. And actually, actually to the extent to which his speech was slurred, that was something that you had had some opportunity to detect prior to the administration of the test —

A Yes.

. . . .

Q Okay. Considering — just to be real clear on this — considering the 77-mile-per-hour speed that he was driving; considering the extent to which you believed his speech was slurred, considering the red eyes that you had observed and then considering the moderate odor of an alcoholic beverage that you had detected on his breath, up until that point, the totality of those circumstances did not give you probable cause to arrest [Defendant]. That's why you had to go ahead and do the FST to get more facts that could support probable cause, correct?

A Yes.

B. The Administration of the FSTs

Officer Chock testified that the three FSTs he administered were the horizontal gaze nystagmus (HGN) test,² the one-leg-stand, and the walk-and-turn. Before administering the tests, he asked Defendant a number of preliminary questions, including whether Defendant was on any medication, under the care of a doctor, had a glass eye, or was epileptic or diabetic. Defendant informed Officer Chock that he was on medication but answered negatively to the remaining questions.³

1. The HGN Test

Officer Chock related that the first FST he administered to Defendant was the HGN test. Officer Chock had been trained by "certified" instructors at the police academy to administer the HGN test and had given the test numerous times. At the time of his HGN training, the "instructors were part of the solo bike, the motorcycle police officers. They came out and since they always do the test so often, they come out and the certified instructors come out and teach us, not the instructors (inaudible) that we've had."

Regarding the nature of his training to administer the HGN test, Officer Chock explained:

When we were at the [police] academy, the course we went through instruction, classroom time, going over each one of the tests. And then they brought in subjects, volunteers to basically drink and get them inebriated, you know, certain levels and certain body types. And some of them would have eaten, some of them would have been on an empty stomach.

Then we perform tests. There are (inaudible) tests on these individuals and then we would say yes or no if they did not or if they did pass; and then they would focus on how well you did as far as your gaging [sic] if he passed or failed that test that certain person. There's like over a dozen people there. So we all got a chance to do each one of them.

Some of the test subjects were, they were cold sober, but acting in a, a drunken fashion, you know. But some of them were, they had plenty to drink and they were not able to drive.

Officer Chock further testified that the instructors went over the results of the testing with him and would have informed him had he not performed well. Officer Chock related that he completed one full day of training and additionally "might have had fringe training," which he defined as "four hours here, four hours there." He asserted that he had also performed actual HGN tests on the road. According to Officer Chock, he did not get a "piece of paper" certifying that he was authorized to administer the HGN test. His certification "just means that [he is] able to recognize what gives [him] the probable cause to think that this person who was driving or had been driving might be under the influence of alcohol."

Over Defendant's objection that proper foundation had not been laid for the admission of Officer Chock's testimony, Officer Chock described Defendant's performance on the HGN test. Officer Chock related that in administering the first part of the HGN test,

we would have [Defendant] focus on a fixed object in front of [his] face a little bit above the eye. We would of course have a flashlight which (inaudible) have a better view (inaudible).

We would first of all go slowly to the right, (inaudible) go slowly to the right and see if the eyes track the fixed object that I hold in front of his face. Okay. Then I bring it back to center. Okay. . . .

In his opinion, Officer Chock testified, Defendant failed this part of the test because "[h]is eyes did not track smoothly."

Officer Chock explained that the second portion of the HGN test is nystagmus⁴ at maximum deviation.

We take the same test, held an object which he can see and, you know, shiny object or something, above his — in front of his face about six to eight inches, a little bit above the eyes and then we take his eyes all the way to as far as he could see without moving his head.

Then we leave it there for a couple of seconds so we can see the maximum — and if there's any nystagmus at that maximum deviation, then all the way either to the right or to the left.

Officer Chock opined, over defense counsel's objection, that Defendant failed this part of the test because "the eye was twitching at maximum deviation." Officer Chock explained that, in his view, an individual would "pass" the second portion of the HGN test if "at maximum deviation . . . basically the eyeball is still."

Officer Chock then stated that the third part of the HGN test involves

start[ing] off from the same position as we did, four to eight inches in front of the person's eyes having his head (indiscernible). What we do is we raise the object above [the person's] head about six inches or however high he can look up and we track it going back down.

Officer Chock explained the grading of this portion of the test as follows:

There would be subject or [Defendant] tracked it smoothly going up or he wouldn't track it at all going up and then he tracks it going back down instead of if the eyeball just comes straight down, judging from up to down, then that would lead what you'd call a fail. If he tracks smoothly going back down, then basically he would pass.

On this portion of the test, Officer Chock noted that he "did not see anything out of the ordinary other than just tracking." However, his total evaluation of Defendant's overall performance was that Defendant failed the HGN test.

Officer Chock never mentioned testing Defendant to determine the angle of onset of nystagmus.

2. The One Leg Stand Test

Officer Chock testified...