ICA's Foray Into SFSTs

State v. Tsujimura (ICA January 27, 2016)

Background. Lester Tsujimura was charged with a single count of operating a vehicle while under the influence of an intoxicant in violation of HRS § 291E-61(a)(1). Officer Thomas Billins was on duty in his “blue and white” when he saw Tsujimura driving on the Moanalua Freeway. Tsujimura was operating an SUV on the far right lane when Officer Billins saw him swerve onto the fog line on the right. Then the SUV moved across the lane and straddled the white divider lane on the left side. Officer Billins saw Tsujimura do this “several times” before he pulled him over.

When he approached the SUV he saw Tsujimura as the operator of the vehicle and saw that he had “a very flush red face,” slurred speech, and red, watery eyes. He also smelled the odor of an alcoholic drink coming from his breath and vehicle. Officer Billins asked him to get out of the car to perform the Standardized Field Sobriety Tests (SFSTs). Tsujimura informed Billins that had an old ACL injury to his left knee and it was his bad knee. Officer Billins noted that Tsujimura was not “limping or anything like that” when he got out of the SUV.

At trial, Officer Billins testified that he administered the horizontal gaze nystagmus test and noticed that Tsujimura was swaying from left to right. The district court sustained objections for the admission of the HGN. During the walk-and-turn test, Tsujimura twice failed to maintain the initial heel-to-toe stance, stepped off the line five times, failed to walk in a heel-to-toe fashion on all steps, raised his arms contrary to the officer’s instructions, and in making his turn, stumbled backwards and had to raise his arms to keep balance. During the one-leg stand, Tsujimura was unable to keep his foot six inches above the ground, put his foot down on several occasions during the first ten seconds, did not raise his foot off the ground in the last ten seconds, did not follow the officer’s instructions to count after several prompts to start counting, and he did not maintain balance without keeping his hands at his side.

Tsujimura was found guilty as charged.

Alcohol Means Ethyl Alcohol, which Includes Beer and Wine (at least for DUI Purposes). The ICA rejected Tsujimura’s claims that the complaint was deficient because it did not fully define the term “alcohol” and that there was insufficient evidence showing that Tsujimura was under the influence of the intoxicant known as “alcohol.” According to the ICA, HRS Chapter 291E limits the definition of “alcohol” to that which is a product of distillation, such as distilled liquor, and does not include beer or wine, which is not produced through distillation. The ICA quickly dispensed with the argument by pointing out that “alcohol” includes ethyl alcohol, which includes beers and wines. HRS § 291E-1. The definition plainly includes the term “ethyl alcohol.” State v. Turping, 136 Hawaii 333, 337, 361 P.3d 1236, 1240 (2015). The ICA added that interpreting the term “alcohol” to exclude beer and wine in the DUI statute would lead to an absurd result. State v. McKnight, 131 Hawaii 379, 389-390, 319 P.3d 298, 308-309 (2013).

Not All Field Sobriety Tests were Created Equal. The ICA moved onto the next claims related to SFSTs. Foundational requirements for the HGN test is different than the other SFSTs. State v. Ferrer, 95 Hawaii 409, 425, 23 P.3d 744, 760 (App. 2001). The walk-and-turn and the one-leg stand are “psychomotor FSTs” that are “nonscientific in nature.” Id. at 427, 23 P.3d at 762. That means that the officer is like any other layperson who can testify about his or her observations when monitoring the FSTs. However, “an arresting officer may not, without a proper foundation laid, testify that, in his or her opinion, an arrestee ‘failed’ the FSTs.” Id.

In this case, no foundation was laid and Officer Billins’ testimony was that of a layperson: his observations of Tsujimura performing the test. He did not conclude if he had ‘failed’ them. Thus, it was not error in allowing this testimony.

Saying Nothing About an Old Injury is not Remaining Silent. Tsujimura contends that the prosecution wrongly commented on his silence when he got out of the SUV. Tsujimura later told the officer that he had a bad knee due to an ACL injury. The prosecutor asked the officer if Tsujimura said anything about his knee when he was trying to get out of the SUV. Over Tsujimura’s objection, the district court allowed the officer to testify that he said nothing as he was getting out of the vehicle.

The accused has a constitutional right to remain silent and the government may not use that silence against him at trial. State v. Mainaaupo, 117 Hawaii 235, 252, 178 P.3d 1, 18 (2008). It follows that a prosecutor cannot argue that by exercising one’s right to remain silent, the accused is guilty (i.e., an innocent person would not have remained silent). Id. at 253-255, 178 P.3d at 19-21. In assessing whether the prosecution impermissibly commented or elicited testimony relating to the defendant’s failure to testify or remain silent, the trial court must examine “whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify” or remain silent. State v. Padilla, 57 Haw. 150, 158, 552 P.2d 357, 362 (1976); State v. Smith, 106 Hawaii 365, 375, 105 P.3d 242, 252 (App. 2004).

According to the ICA, the prosecutor’s questions did not comment on Tsujimura’s right to remain silent. Making no comment as he got out of the car was not in response to any questions. There is nothing in the record suggesting that Tsujimura was invoking his right to remain silent. Moreover, there is no attempt by the prosecution to imply that an innocent person in Tsujimura’s position would have said something.

The ICA affirmed the judgment.