Hearsay Statements Contained in Sworn Statements still Unreliable at ADLRO Hearings
McGrail v. Admin. Dir. of Courts (ICA July 18, 2013)
Background. Patrick McGrail was arrested for operating a vehicle while under the influence of an intoxicant. In her police report, HPD Officer Jasmine McGuire wrote that she was in her car driving eastbound on Kalakaua Avenue “in the mauka most lane” when she saw a sedan ahead of her with no tail lights. McGuire wrote that the vehicle was “moving unsmooth” and “made a left turn onto Pau Street without signaling.” McGuire followed the sedan onto Pau Street, where it continued “making unsmooth movements while changing lanes[.]” McGuire wrote that she saw the sedan hit a sidewalk with its passenger side tire, but no damages were reported. Then the sedan “jerk[ed] suddenly away from the curb and turn left onto Ala Wai Boulevard” and straight toward another curb. McGuire then conducted a traffic stop.
Officer Marc Cobb-Adams came to the scene. McGuire briefed Cobb-Adams and Cobb-Adams conducted field sobriety maneuvers on McGrail. Cobb-Adams also claimed to have smelled alcoholic beverages from McGrail’s breath and body and saw that McGrail had watery and glassy eyes. Cobb-Adams reported that McGrail staggered out of his vehicle and performed the maneuvers poorly. Cobb-Adams was arrested. After the implied consent forms were read to him, McGrail agreed to a breath test. The results came to 0.259 grams of alcohol per 210 liters of breath. He was later served a notice of administrative revocation of his driver’s license.
The reports were submitted to the Administrative Driver’s License Revocation Office. Cobb-Adams’ report was sworn by him to be true and correct. McGrail did not. The ADLRO determined that there was sufficient evidence to revoke his license. McGrail challenged the determination and requested a hearing. Eventually, McGrail moved to strike McGuire’s unsworn report and the unsworn statements of McGuire in Cobb-Adams’ report. The hearing officer granted the motion in part by striking McGuire’s report, but keeping her statements in Cobb-Adams’ report. The hearing officer also upheld the revocation. McGrail requested judicial review and the district court affirmed. McGrail appealed to the ICA.
Challenging an Administrative Revocation. Once a license is revoked, the revocation is affirmed only if the ADLRO determines (1) there was a reasonable suspicion to stop the vehicle; (2) there was probable cause to believe the driver was under the influence of an intoxicant; (3) there was preponderant evidence that the driver was operating a vehicle while under the influence of an intoxicant. HRS § 291E-38(e).
In this case, McGuire was the only officer who observed McGrail’s driving and the hearing officer struck her report because it was not a sworn statement by the officer. That means that the only evidence establishing a reasonable suspicion for the stop came from the McGuire’s hearsay statements contained in Cobb-Adams’ report.
Hearsay in Administrative Proceedings . . . According to the ICA, the issue turned on the use of McGuire’s hearsay statements in the Cobb-Adams report. Hearsay is generally admissible at administrative proceedings. See Price v. Zoning Bd. of Appeals, 77 Hawaii 168, 176 & n. 8, 883 P.2d 629, 637 & n. 8 (1994). McGrail, however, argued that the statutory scheme governing ADLRO proceedings places so much emphasis on sworn statements that the unsworn hearsay statements used by the hearing officer cannot be used. The ICA agreed.
ADLRO Proceedings Hinge on “Sworn Statements.” The ICA began with an overview of HRS Ch. 291E, Part III—better known as the ADLRO process. According to the ICA, in establishing this process, the Legislature “emphasized the importance of sworn statements by requiring them for police and government officers playing key roles in the revocation process.”
For example, the ICA looked at HRS § 291E-36(a). In order to revoke a license, the ADLRO has to receive “the sworn statement of the arresting law enforcement officer . . ., stating facts that establish” reasonable suspicion for the stop, probable cause to believe that the driver was OUI, and that the driver agreed to submit to a chemical test. Moreover, when a blood or breath test is used, the ADLRO must receive sworn statements from “the person responsible for maintenance of the testing equipment” that establishes that the equipment was approved for use in Hawaii, that the person was trained and certified to use the equipment, and the equipment was in proper working order when it was used. Id. The ADLRO also has to receive a sworn statement from the person who actually conducted the chemical test that shows proper training to operate the equipment, that the person followed the proper procedures related to the test, that the equipment was functioning properly, and that the breath or blood sampled belonged to the driver. Id.
And in order to sustain that revocation, the hearing officer must consider the “sworn statement of any law enforcement officer or other person or other evidence or information required by section 291E-36.” HRS § 291E-37(c)(3). At an ADLRO hearing, the hearing officer is required to admit into evidence all sworn statements. HRS § 291E-38(h).
Hearsay is Frowned Upon at ADLRO Hearings. The importance of sworn statements means that hearing officers “must exclude from the record . . . all unsworn statements (except the arrest report) of law enforcement officials who do not appear to testify[.]” Desmond v. Admin. Dir. of the Courts, 91 Hawaii 212, 220, 982 P.2d 346, 354 (App. 1998), rev’d on other grounds, 90 Hawaii 301, 978 P.2d 739 (1999). The reliance on sworn statements, according to the ICA, also ensures reliability.
Can’t Bootstrap Hearsay at the ADLRO. Given the importance of sworn statements in these proceedings, the ICA held that the hearing officer erred in considering the unsworn statements of McGuire that were included in the Cobb-Adams report. In more general terms, the ICA held that “where . . . the Arresting Officer played no role in, and had no influence on, the decision to stop the vehicle, the hearing officer cannot consider the unsworn statements of the Stopping Officer in determining whether there was reasonable suspicion for the stop simply because the Stopping Officer’s unsworn statements were included in the sworn police-report statement of the Arresting Officer.” To rely on those statements would conflict with the legislative intent behind the ADLRO procedures, Desmond, and its reliability would be questioned.
Thus, the hearing officer erred in relying on the hearsay statements and the ICA reversed the district court’s judgment affirming the revocation.
Grand Juries: Begging the Question. The ICA examined not the plain language of any particular statute here. There is no statute that really applies to this situation. Police reports contain a lot of different statements out there. They record the observations of the officer, and take down statements of witnesses and other officers. It seems that in ADLRO proceedings, the ICA is convinced that when those reports, which are sworn to be true by the officer writing the report, contain statements of fellow officers that have not been verified, those statements are unreliable and cannot be used by the hearing officer. That makes sense. It’s hearsay—even if the rule doesn’t apply in an administrative context. And the rationale is fairly sound: the statutory scheme frowns upon it.
McGrail Clashing with Murphy and Costello? Decades ago, defense attorneys were challenging the sufficiency of evidence adduced before Grand Juries. Officers are often sworn in to testify before the Grand Jury and once there, they tell present hearsay statements of other officers, witnesses, and sometimes the professional opinions of doctors and experts. The HSC confronted the issue head on in State v. Layton, 53 Haw. 513, 497 P.2d 559 (1972). There, the HSC noted the uneasiness courts felt about the prosecution’s reliance on “excessive hearsay.”
[W]e think it not amiss for us to state that excessive use of hearsay in the presentation of government cases to grand juries tends to destroy the historical function of grand juries in assessing the likelihood of prosecutorial success and tends to destroy the protection from unwarranted prosecutions that grand juries are supposed to afford the innocent. Hearsay evidence should only be used when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge.
Id. at 515, 497 P.2d at 561 (quoting Costello v. United States, 350 U.S. 359 (1956).
Later, the HSC watered down the standard even further and held that “where the hearsay testimony was not used deliberately in the place of better evidence to improve the case for an indictment, dismissal of the indictment is not required.” State v. Murphy, 59 Haw. 1, 6, 575 P.2d 448, 453 (1978). Since Murphy, it has been extremely difficult to find excessive hearsay being used deliberately and in the place of better evidence. In fact, the HSC has not thrown out a there is no published case showing that the standard has been met. See State v. Corpuz, 67 Haw. 438, 440, 690 P.2d 282, 285 (1984).
But that’s grand juries returning indictments for serious felonies. The administrative review of a driver’s license revocation, however, is a different matter entirely and hearsay is clearly impermissible. Perhaps it’s time for the defense bar to revisit the old Murphy rule.