State v. Vliet

• Decision Date: 15 March 2001
• Docket Number: No. 22827.,22827.
• Citation: 19 P.3d 42,95 Haw. 94
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. James L. VLIET, also known as Spiderman, Defendant-Appellant.
• Court: Hawaii Supreme Court

19 P.3d 42

95 Haw. 94

STATE of Hawai`i, Plaintiff-Appellee, v. James L. VLIET, also known as Spiderman, Defendant-Appellant.

No. 22827.

Supreme Court of Hawai`i.

March 15, 2001.

Linda C.R. Jameson, Deputy Public Defender, on the briefs, for defendant-appellant.

Richard K. Minatoya, Deputy Prosecuting Attorney, County of Maui, on the briefs, for plaintiff-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.

Opinion of the Court by ACOBA, J.

We hold that, in the absence of a designated culpable state of mind in Hawaii Revised Statutes (HRS) § 291-4.5 (Supp.1998), which pertains to driving after suspension or revocation of a driver's license, and HRS § 291-4.4 (Supp.1998), which concerns habitually driving under the influence of alcohol or drugs, the offenses described therein are committed if the defendant acted with an intentional, knowing, or reckless state of mind, as provided by HRS § 702-204 (1993). Contrary to the contention of Defendant-Appellant James L. Vliet (Defendant), we conclude the second circuit court (the court) properly so instructed the jury.

Additionally, we hold that plain error was not committed by the court in admitting, pursuant to Hawaii Rules of Evidence (HRE) Rule 702 (1993), expert evidence of the "Widmark¹ formula" for the purpose of ascertaining Defendant's blood alcohol concentration (BAC) level at the time of his arrest. In doing so, we review the relevancy of expert evidence under the right/wrong standard and its reliability under the abuse of discretion standard.

There being no reversible error, we affirm Defendant's September 9, 1999 judgment of conviction and sentence for habitually driving under the influence of intoxicating liquor or drugs, in violation of HRS § 291-4.4, as charged in Count I of the Complaint (the habitual DUI offense), and of driving after license suspended or revoked for driving under the influence of intoxicating liquor or drugs pursuant to Part XIV of chapter 286, HRS §§ 291-4 (Supp.1998) or 291-7 (1993), or HRS § 291-4.5, as charged in Count IV² (the license revocation offense).

I.

A.

Defendant's jury trial began on June 14, 1999 and continued through June 17, 1999. Evidence was adduced as set forth herein. On October 16, 1998, Sergeant Clarence Kenui of the Maui Police Department (MPD) was driving on Maunaloa Highway, on the island of Molokai, when he saw an orange pickup truck "weaving in the entire roadway." Kenui stopped the vehicle at around 11:00 p.m., approached Defendant, who was driving, and asked him "what the problem was." Defendant answered that he had taken medication and had also been "drinking." Kenui observed that Defendant's eyes were bloodshot, his speech was slurred, and he fumbled when looking for his driver's license.

"Backup" officer, Wade Maneda, continued the investigation upon his arrival at the scene. As he approached the scene, Maneda saw that the truck's left front tire was flat. Kenui related the circumstances of the stop to Maneda, after which Kenui left the scene. Maneda personally made the same observations of Defendant as had Kenui. Another officer called for a license check and was informed that Defendant's license was on "revoked status." When asked if he had been drinking, Defendant replied, "I had three beers, brah." Maneda then asked Defendant to perform "some field sobriety maneuvers."

As he exited the vehicle, Defendant told Maneda that he was intoxicated because he had ingested beer and taken the drugs clonazepam and phenobarbital as medication. In Maneda's opinion, Defendant's inability to keep his balance and "unusually slow" responses in the walk-and-turn and the one-leg stand demonstrated that Defendant was "impaired" and could not operate a vehicle safely on the roadway. As a result, Maneda arrested Defendant for driving under the influence of intoxicating liquor.

After being taken to the Molokai Police Station, Defendant was reportedly agitated and had to be handcuffed and placed in a cell. Maneda informed Defendant that he could take a breath test, a blood test, or both tests to determine his blood alcohol content, or refuse to take any test.

At about 11:39 or 11:40 p.m., approximately forty minutes after he was stopped by Officer Kenui, Defendant voluntarily chose to take a breath test on an Intoxilyzer machine.³ The parties stipulated to certification of the Intoxilyzer personnel and the Intoxilyzer, and to the accuracy of the Intoxilyzer test records. Defendant did not eat, drink, smoke, or vomit between the time of the arrest and time of the test. The Intoxilyzer indicated Defendant had a BAC of .079 grams of alcohol per 210 liters of breath, expressed according to the percentage of weight per volume.

Grant Schule, a paramedic, testified that he was called to treat a contusion on Defendant's lip. While Schule was in Defendant's cell tending to Defendant's injury, Defendant told Schule he was on anti-seizure medication called klonopin.

Clifford Wong, a forensic toxicology and laboratory director of Clinical Laboratories of Hawaii, was qualified without objection as an expert in toxicology⁴ and "in particular. . . rendering [an] opinion as to the effect of common and other drugs on the human body." Using a formula devised by Dr. Eric Widmark in the 1920s, Wong calculated the BAC levels of Defendant to have been .094 grams per 210 liters of breath at 10:52 p.m. and .090 grams per 210 liters of breath at 11:00 p.m., the time of the traffic stop. Wong also opined that the combined effect of taking clonazepam, phenobarbitol, and alcohol would impair a person to a greater extent than would be the case if he or she had ingested only one of the substances. Wong testified, further, that neither clonazepam nor phenobarbitol should be taken while operating a motor vehicle.

A MPD fingerprint identification specialist matched fingerprints in three previous arrest reports with Defendant's fingerprints taken in the instant case. Certified copies of the fingerprint and arrest records in each of these three cases and district court calendars indicating Defendant's convictions in each case of driving under the influence of intoxicating liquor (dated December 19, 1988, November 16, 1990, and September 29, 1998, respectively) were admitted into evidence.

A clerk from the Maui driver's license department determined that Defendant's driver's license had been placed on "revoked status" by the Administrative Driver's License Revocation Office for a period of one year, commencing June 18, 1998 and ending June 17, 1999. The revocation was granted due to "driving under the influence."

In the defense's case, Tad Camara, the person from whom Defendant rented the truck he drove, testified about steering problems Camara had experienced with the vehicle. He said that the truck's steering was "uncontrollable" and described its operating condition as "all over the road" and difficult to control. Kevin Lee testified he had been with Defendant on a "diving" trip earlier on the day of the arrest. On the morning after Defendant's arrest, Lee drove the same vehicle as Defendant had driven. Lee found that the truck was "very loose" on the road. The right front tire blew out, and Camara was called to drop off a spare. When Lee returned the vehicle, Camara did not demand payment for the rental.

B.

Jury instructions were settled on June 16, 1999. In Instruction No. 21, the court instructed the jury as to the elements of the habitual DUI offense, including the culpable state of mind thereof and in Instruction No. 27, did the same with respect to the license revocation offense.

On June 17, 1999, the jury found Defendant guilty of Counts I and IV and acquitted him of Count III, reckless driving. Defendant was sentenced to concurrent prison terms of five years on Count I and thirty days on Count IV, to run consecutively to a term being served by Defendant on other offenses.

Defendant filed his notice of appeal on September 20, 1999. On appeal, Defendant argues (1) that Instruction No. 21 regarding the habitual DUI offense and Instruction No. 27 regarding the license revocation offense were erroneous because each failed to "clearly instruct the jury that the states of mind [(intentionally, knowingly, or recklessly)] applied to all the elements of the offense," and (2) that the court committed plain error by allowing Wong to testify, using the Widmark formula, as to Defendant's BAC at the time he was stopped by the police.

II.

With respect to Defendant's challenge of Instructions Nos. 21 and 27, the prosecution contends (1) the defense did not object to the instructions and should not benefit from the plain error rule, as the instruction on the habitual DUI offense was almost entirely drafted by the defense; (2) although the required states of mind were listed last in the instructions, they clearly modified all of the preceding elements for each count; and (3) if read as a whole, the instructions designated how each state of mind applied to conduct, result of conduct, and attendant circumstances.⁵ According to the prosecution, Defendant, therefore, failed to show that the jury instructions were "prejudicial[.]" State v. Horswill, 75 Haw. 152, 155, 857 P.2d 579, 581 (1993) (citing State v. Kelekolio, 74 Haw. 479, 514-15, 849 P.2d 58, 74 (1993)).

III.

In connection with Instruction No. 27, Count IV charged the following:

That on or about the 16th day of October, 1998, in the County of Maui, State of Hawaii, JAMES L. VLIET, whose driver's license had been revoked, suspended or otherwise restricted pursuant to Part XIV of Chapter 286 or Section 291-4 or 291-7 of the Hawaii Revised Statutes, did operate a motor vehicle upon the highways of this State while such license remained suspended, revoked, or in violation of the restrictions placed on the license, thereby committing the offense of Driving After License Suspended or Revoked for Driving Under the Influence of Intoxicating Liquor or Drugs in violation of

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