State v. Jones, SCWC-16-0000345

• Court: Hawaii Supreme Court
• Citation: 468 P.3d 166
• Decision Date: 30 June 2020
• Parties: STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Maxwell F. JONES, Petitioner/Defendant-Appellant.
• Docket Number: SCWC-16-0000345

468 P.3d 166

STATE of Hawai‘i, Respondent/Plaintiff-Appellee,
v.
Maxwell F. JONES, Petitioner/Defendant-Appellant.

SCWC-16-0000345

Supreme Court of Hawai‘i.

JUNE 30, 2020
MOTION FOR RECONSIDERATION DENIED JULY 17, 2020

I. Introduction

This appeal arises from Maxwell Jones's ("Jones") conviction by the District Court of the First Circuit ("district court")¹ for the offense of operating a vehicle under the influence of an intoxicant ("OVUII") in violation of Hawai‘i Revised Statutes ("HRS") § 291E-61(a)(1) (Supp. 2014).² Jones's certiorari application raises four questions:

1. Did the ICA gravely err as a matter of law in finding that "it was not error for the [d]istrict [c]ourt to allow Officer Wong to express an expert opinion that Jones ‘failed’ the HGN [horizontal gaze nystagmus] test, the walk-and-turn test, and the one-leg stand test[ ]"?

2. Did the ICA gravely err as a matter of law in finding that "even if the [d]istrict [c]ourt erroneously allowed Officer Wong to opine that Jones failed the HGN test and other SFSTs, the error was harmless because there was other substantial evidence supporting Jones's OVUII conviction[ ]"?

3. Did the ICA gravely err as a matter of law in finding that "Officer Wong was properly allowed to express an expert opinion that Jones was intoxicated"?

4. Did the ICA gravely err as a matter of law in determining that "Officer Wong's observations of Jones's operation of his car, the strong odor of alcohol coming from Jones's breath, Jones's red and bloodshot eyes, Jones's fumbling with his driver's license, and Jones's dropping his license in his lap, was sufficient to support Jones’[s] conviction[ ]"?

We answer the first two questions "yes." The third question has three components. On certiorari, Jones reasserts questions he raised to the Intermediate Court of Appeals ("ICA") regarding (a) whether Officer Joshua Wong's ("Officer Wong") expert opinion testimony regarding Jones's performance on the standardized field sobriety tests ("SFSTs" or "FSTs") was admissible as substantive evidence of intoxication and not just as to probable cause for arrest; (b) whether Officer

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Wong's expertise permitted him to draw a correlation between the test results and sobriety to render an expert opinion that Jones was intoxicated; and (c) whether Officer Wong's expertise permitted him to testify that Jones had a blood alcohol level of 0.08 or above. We answer question 3(a) "yes."

Based on State v. Toyomura, 80 Hawai‘i 8, 26, 904 P.2d 893, 911 (1995) (setting out evidentiary foundation required for admission of a police officer's expert opinion testimony about whether a defendant was intoxicated based on performance on SFSTs), we answer question 3(b) "yes."

Based on State v. Vliet, 91 Hawai‘i 288, 296–97, 983 P.2d 189, 197–98 (1999) (ruling in OVUII case that any error in the officer's legal conclusion testimony that defendant's state of sobriety "would have been over the legal limit" was harmless beyond a reasonable doubt), we answer question 3(c) "no."

Based on the reasons discussed herein, however, we also prospectively hold that for trials occurring after the date of this opinion, police officers may no longer testify, whether in a lay or expert capacity, that a driver appeared "intoxicated."

Finally, because there was substantial evidence supporting Jones's OVUII conviction, we answer the fourth question "no."

Accordingly, we vacate the ICA's July 15, 2019 judgment on appeal and the district court's March 22, 2016 judgment of conviction, and we remand this matter to the district court for further proceedings consistent with this opinion.

II. Background

A. District court proceedings

Jones was arrested on July 25, 2015, on suspicion of OVUII. He was charged by complaint on August 7, 2015.³ Jones pleaded not guilty, and the case proceeded to a bench trial, which began on January 8, 2016, and ended on March 22, 2016.

1. Officer Wong's testimony

The State presented only one witness: Officer Wong of the Honolulu Police Department ("HPD"), the arresting officer. Jones did not testify nor did he present any other witnesses.

Officer Wong testified that he attended the police academy as a police recruit in 2010. As of his January 8, 2016 testimony, Officer Wong had been an HPD officer for five years.

On July 25, 2015, at around 3:15 a.m., Officer Wong was waiting at a red light on Ke‘eaumoku Street heading inland at the intersection of Makaloa Street. After his light turned green, Officer Wong heard a loud sound, as from a roaring engine, to his left and saw headlights heading eastbound on Makaloa Street; the car, a four-door Toyota sedan, went through the intersection, running the red light. Officer Wong followed and pulled over the car.

When he approached the driver's side window, Officer Wong could "smell the strong odor of alcohol from [the driver's] breath." Officer Wong informed the driver, whom he identified as Jones, why he had been pulled over, to which Jones responded, "[O]h, I didn't make the light?" Jones spoke with "[s]trong slurred speech." When Officer Wong viewed Jones and the interior of the cabin with his flashlight, he also noticed that Jones had red, bloodshot eyes. When Officer Wong asked Jones for his license, car registration, and insurance, Jones fumbled with his wallet and driver's license, and the license fell in his lap.

Officer Wong then asked Jones if he would participate in SFSTs. Jones stated he had not been drinking as he was the designated driver for his friends, and that they had just come from a nightclub, but that he would participate in the SFSTs.

As of July 25, 2015, Officer Wong had administered SFSTs approximately 800 times. He first received training in SFST administration in May 2011.⁴ Officer Wong's

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initial training had consisted of more than twenty-four hours of training on three days and two nights of SFST testing on live subjects, some of whom had been drinking and some of whom had not. As part of his training, which included both classroom and practical components, he was taught how to evaluate a subject's performance on the SFSTs. Officer Wong had passed written and practical examinations on administering SFSTs; the practical exam included going over studies that described the findings and success rate of each SFST. As a result of his training, he had been qualified to administer and evaluate the SFSTs.

In 2012, Officer Wong attended the "ARIDE" program, which he described as a refresher course on SFSTs and an introductory course in the drug recognition expert program.⁵ Upon completion of the ARIDE program in 2012, he was recognized as a drug recognition expert, and he also took a refresher course in drug recognition in 2013.

In 2015, Officer Wong became a SFST instructor for the HPD. To become an instructor, he was again trained by senior instructors, gave classes, and passed exams. When asked whether he was required to receive any certifications to become an instructor, Officer Wong responded that the senior instructors were qualified by the National Highway and Traffic Safety Administration ("NHTSA") and the International Association of the Chiefs of Police ("IACP"). The senior instructors then trained the officers who trained him. He described this as the certification process. Jones's nonresponsive objection to this testimony was overruled. Officer Wong's later testimony regarding his instructors’ certifications by NHTSA was also received over Jones's lack of foundation and hearsay objections.

According to Officer Wong, the NHTSA manual sets forth standards for the administration of SFSTs, which consist of the horizontal gaze nystagmus⁶ test ("HGN"), the walk-and-turn test, and the one-leg stand test. Officer Wong testified that a subject's performance on SFSTs "is indicative of whether or not they can operate a vehicle in a safe and prudent manner."

Officer Wong was asked what correlation, if any, existed between a subject's ability to perform the SFSTs and the subject's ability to operate a motor vehicle. Jones objected to this question based on a lack of foundation for Officer Wong to testify as an expert on a correlation, the lack of scientific evidence of a correlation, and the lack of evidence that Officer Wong had received training on making such a correlation. The deputy prosecuting attorney ("DPA") responded that Officer Wong had testified that he had been certified, that he was a trainer on SFSTs, and that he was trained multiple times on the SFSTs. The following exchange occurred:

THE COURT: Okay. Well, the -- the testimony was rather summary in nature, but as far as I'm concerned, it did [hit] the prime points initially set forth [ ] in State versus Mitchell ^{[7 ]} not in the order listed and not necessarily broken up in bullet point form. But I'm satisfied that the officer's testimony does meet with the primary requirements set forth, the foundational requirements.

If the officer has been certified and retrained which is, by the way, something

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that's often missing from this testimony, and in this case has himself been qualified to become a certified instructor, and has specifically

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