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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
30-JUN-2020
10:26 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
MAXWELL F. JONES,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTA-15-03477)
JUNE 30, 2020
McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
CONCURRING IN PART AND DISSENTING IN PART,
WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This appeal arises from Maxwell Jones’s (“Jones”)
conviction by the District Court of the First Circuit (“district
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court”)1 for the offense of operating a vehicle under the
influence of an intoxicant (“OVUII”) in violation of
Hawaiʻi 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[]”?
1
The Honorable James S. Kawashima presided.
2
The August 7, 2015 written complaint, which also included an alleged
violation of HRS § 291E-61(a)(4) regarding blood alcohol content, was orally
amended before trial commenced on January 8, 2016, to charge Jones solely
with violating HRS § 291E-61(a)(1), which provides:
§291E-61 Operating a vehicle under the influence of an
intoxicant. (a) A person commits the offense of operating
a vehicle under the influence of an intoxicant if the
person operates or assumes actual physical control of a
vehicle:
(1) While under the influence of alcohol in an amount
sufficient to impair the person’s normal mental
faculties or ability to care for the person and
guard against casualty[.]
2
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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 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 Hawaiʻi 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 Hawaiʻi 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.”
3
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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.
3
See supra note 2.
4
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On July 25, 2015, at around 3:15 a.m., Officer Wong was
waiting at a red light on Keʻeaumoku 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.
5
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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 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
4
According to Officer Wong, the SFST training was mandatory training
given to all police recruits at the police academy. His later testimony
suggested that this training may have occurred in 2010.
5
California Highway Patrol describes the “ARIDE” program as an Advanced
Roadside Impaired Driving Enforcement course developed by the National
Highway Traffic Safety Administration and the International Association of
Chiefs of Police Technical Advisory Panel and the Virginia Association of
Chiefs of Police to “bridge the gap” in training between standard field
sobriety testing and drug evaluation and classification programs for states
that also have such drug programs. See California Highway Patrol, Advanced
Roadside Impaired Driving Enforcement (ARIDE) Course, available at
https://www.chp.ca.gov/programs-services/for-law-enforcement/drug-
recognition-evaluator-program/schedule-of-classes/aride
[https://perma.cc/QRW9-9M3K].
6
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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.”
6
Nystagmus has been defined as “[a] rapid, involuntary jerking or
twitching of the eyes, sometimes caused by ingesting drugs or alcohol.”
Nystagmus, Black’s Law Dictionary (11th ed. 2019).
7
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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 that’s often missing from this
testimony, and in this case has himself been qualified to
become a certified instructor, and has specifically
testified that this is all in accordance with NHTSA, I’m
satisfied the Mitchell standard has been met in this case.
[DEFENSE COUNSEL]: Except that there was no testimony yet
that he was so certified. He did say he -- he was
initially trained in May of 2011 to do the field sobriety
test and then he testified about drug recognition until
2013 he became -- he said he became a field sobriety test
instructor. But nothing about certification.
THE COURT: Well, to be allowed to be -- I grant you the
exact language hasn’t been adduced. But to become an
instructor and then to be allowed to perform these tests
7
In State v. Mitchell, 94 Hawaiʻi 388, 15 P.3d 314 (App. 2000), the ICA
held that before HGN test results can be admitted into evidence, “it must be
shown that (1) the officer administering the test was duly qualified to
conduct the test and grade the test results; and (2) the test was performed
properly in the instant case.” 94 Hawaiʻi at 397, 15 P.3d at 323.
8
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over the past few years, I find, for foundational purposes,
it does meet the standard. At least he couldn’t have done
that if he wasn’t certified.
So I’m granting you that specific testimony has not
been adduced. That said, I’m satisfied that, at least via
inference if not exact language, the standard has been met.
So objection’s overruled.
Officer Wong then testified as to the SFSTs performed by
Jones. Jones responded in the negative to the medical rule-out
questions regarding whether he had any impediments that could
affect his performance on the SFSTs. Officer Wong also
testified that the sidewalk area of Makaloa Street, where Jones
performed the SFSTs, was well-lit and level, that the weather
was clear, and that he did not notice any physical injuries to
Jones or any other circumstance that would interfere with
Jones’s ability to perform the SFSTs.
Officer Wong was then asked about the HGN test. Jones
immediately objected on the grounds that there is no scientific
evidence to establish a foundation that performance on the HGN
test is admissible to prove intoxication beyond a reasonable
doubt, and that State v. Ito, 90 Hawaiʻi 225, 978 P.2d 191 (App.
1999)8 had discussed the HGN test being admissible as to probable
cause only and had not reached the issue of whether the HGN test
is sufficiently scientifically reliable to prove guilt beyond a
8
In Ito, the ICA held that HGN test results have been sufficiently
established to be reliable, and that as long as a HGN test was properly
administered, its results are relevant and admissible as evidence in an OVUII
(previously referred to as DUI) case that police officers had probable cause
to believe that a defendant was OVUII, but expressly not deciding whether HGN
test results are admissible as evidence of a defendant’s intoxication because
the issue had not been presented. 90 Hawaiʻi at 240-41, 978 P.2d at 206-07.
9
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reasonable doubt. The district court overruled the objection
without prejudice.9
Officer Wong then testified on how he had been trained to
administer the HGN test in accordance with the NHTSA manual,
which was to have a subject place their feet together with heels
and toes touching, hands to the sides, and to inform them he
would be holding a stimulus, a pen, twelve to fifteen inches
from the subject’s face, slightly above eye level, and that the
subject was to follow the tip of his pen with their eyes without
head movement. He testified he was trained to look for the lack
of smooth pursuit, distinct and sustained nystagmus at maximum
deviation, and the onset of nystagmus before forty-five degrees,
and that if a subject exhibited any of those three things, it
would be a “clue” of nystagmus that was considered a “fail.”
When asked by the DPA what that meant regarding a subject’s
sobriety, Jones again objected based a lack of foundation
regarding correlation. The DPA again responded that Officer
Wong had testified he had been trained and certified according
to NHTSA standards to administer SFSTs, including attending a
recent refresher course, which should allow him to give an
opinion regarding nystagmus and a subject’s sobriety. Jones
9
The district court stated, “There’s a wealth of material, not just Ito,
Ferrer, K[ehdy], all those cases get into whether or not HGN is admissible
for the purpose of determining intoxication.” See supra note 8 and infra
notes 12 and 13.
10
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responded that the issue was not whether Officer Wong had
properly administered the test, but the lack of foundation
regarding Officer Wong’s expertise regarding whether the HGN
test is correlated to evidence of intoxication beyond a
reasonable doubt. The district court then stated:
Here’s the issue. Ito,[10][ Mitchell,[11] Ferrer,[12]
even K[ehdy],[13] none of them say what would constitute
admissibility of HGN results for substantive intoxication.
All they say is what wasn’t done in those cases.
I am finding, lacking any guiding authority otherwise,
that the standard they say hasn’t been met in those cases
has been met in this case. And without anything saying I
can’t, I will, over objection, admit the testimony for the
purpose of determining substantive evidence of intoxication
beyond simple probable cause which isn’t even relevant at
this point. So objection is overruled. Your objection is
preserved for the record, [defense counsel].
Officer Wong then testified over another overruled
objection that if there was no medical problem or medication
issue, the existence of nystagmus is indicative that alcohol is
10
See supra note 8.
11
See supra note 7.
12
In State v. Ferrer, 95 Hawaiʻi 409, 23 P.3d 744 (App. 2001), the ICA
held that the State had failed to lay a proper Toyomura foundation, for the
admission of an officer’s expert opinion on whether the defendant had “passed”
or “failed” the psychomotor FSTs. 95 Hawaiʻi at 430, 23 P.3d at 765. Ferrer
also separately held that the foundation laid had been insufficient to
establish that the officer was duly qualified to conduct the HGN test and
grade the test results. 95 Hawaiʻi at 424, 23 P.3d at 759.
13
In State v. Kehdy, No. 29146, 2009 WL 1805908 (App. June 25, 2009)
(SDO), the ICA ruled that the State failed to provide sufficient foundation
to admit an officer’s testimony regarding a driver’s performance on the HGN
test, where the officer stated he was provided with materials from the NHTSA
during his training and that his instructors went through the standards and
guidelines from the NHTSA, but did not state the training he received met
NHTSA standards as required by Ito, and merely stated he received materials
from NHTSA regarding standards and guidelines, and that, like in Ito, there
was no evidence the officer was supervised by certified instructors during
his training. 2009 WL 1805908, at *4.
11
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impairing a subject’s ability to perform the SFSTs and to
operate a motor vehicle. Officer Wong then testified that on
July 25, 2015, he instructed Jones on the HGN test consistent
with the standard instructions indicated above, and that Jones
stated he understood them. This concluded the testimony for
January 8, 2016, and Officer Wong’s testimony was continued
until March 22, 2016.
Upon resumption of Officer Wong’s testimony on March 22,
2016, Jones renewed his objection to the relevance of SFSTs to
prove intoxication beyond a reasonable doubt. The district
court overruled the objection, indicating that although it
believed Jones’s previous objections had been sufficient, Jones
would be granted a standing objection to the relevance of the
SFSTs to prove intoxication beyond a reasonable doubt. The
district court also overruled Jones’s renewed objection to the
admission of the HGN test testimony in its entirety as evidence
of intoxication and granted a continuing objection to the
admission of the HGN test testimony. The following exchange
occurred:
[DEFENSE COUNSEL]: I would just for the record like to
renew my objection to the relevance of the field sobriety
test to prove intoxication beyond a reasonable doubt, and
ask for a continuing objection in that regard.
THE COURT: So noted. But I think your -- well, objection’s
noted but overruled. And I think it’s -- it’s lodged
sufficiently. If you’re just talking about the field
sobriety test, case law makes it fairly clear what that
consists of. So just saying that you object to the field
sobriety test I think lays out sufficient parameters to
cover what they are.
12
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So running objection is noted. I don’t think it’s
necessary, but your initial objection is sufficient to make
a record.
[DEFENSE COUNSEL]: And I would also like to renew and ask
for a continuing objection to the horizontal gaze nystagmus
test as evidence of intoxication. Under State
versus Ito,[14] it clearly states that it’s admissible for
probable cause but does not reach the issue of whether it’s
admissible for intoxication.
THE COURT: So noted. And again overruled for the same
reasons as before. Ito,[15] Mitchell,[16] Ferrer[17] and
K[ehdy][18] make the requirements fairly stringent. But I
do find or have found and, therefore, will stand on my
finding that this is one of the rare cases because of the
situation with Officer Wong’s having been -- let’s see, was
this the one? Oh, yeah, okay, yeah, not just originally
certified by recently recertified.
To the extent that K[ehdy] makes that requirement,
periodic retraining amongst and including any other
requirements, it’s satisfied in this case. So foundation
has been laid. Objection is noted, though, and lodged for
the record.
[DEFENSE COUNSEL]: Well, I wasn’t -- I wasn’t clear that he
actually testified that he was recertified for the purposes
of HGN. I think he -- I thought he testified that he was
recertified for -- as a -- as a drug recognition expert.
THE COURT: Right, which includes HGN precisely because it
is not, as I recall, an indicator of -- of intoxication due
to THC.[19] But that would necessarily mean covering as
well for alternative intoxication including without --
including and especially alcohol. So, I mean, for the
reasons stated before, your objection is noted and lodged.
I believe it’s safe. And if it’s not, I’m sure that you’ve
made it clear enough for appeal purposes.
[DEFENSE COUNSEL]: Yes. And so just to confirm, I have a
continuing objection, I don’t have to raise it every time
that it’s discussed?
THE COURT: Well, once you’ve -- yeah, you don’t.
Officer Wong then testified that he administered and
evaluated the results of each SFST administered to Jones in
14
See supra note 8.
15
See supra note 8.
16
See supra note 7.
17
See supra note 12.
18
See supra note 13.
19
No such evidence was received in this case. It appears the district
court may have been relying on its knowledge of the contents of NHTSA manuals.
13
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accordance with his training and the NHSTA manual. With respect
to the HGN test, Officer Wong checked for and found no resting
nystagmus, he observed that Jones’s pupils were of equal size,
and he confirmed that Jones could track the stimulus equally -
based on these observations, Officer Wong continued on with the
test. Officer Wong testified that during Jones’s performance of
the HGN test, he observed six out of six clues of intoxication,
which were lack of smooth pursuit, distinct and sustained
nystagmus at maximum deviation, and onset of nystagmus prior to
forty-five degrees, in both eyes.
According to Officer Wong, this meant that Jones had
“failed” the HGN test. Officer Jones also testified the “fail”
meant Jones had a blood alcohol content of 0.08 or above. The
DPA then asked Officer Wong if there were any studies about the
HGN test that would point toward that conclusion. Officer Wong
began testifying about a San Diego field test study, indicating
that it was the most recent study, in which police officers
conducted the test in the field and in the laboratory. At this
point, Jones objected on hearsay grounds, that Officer Wong was
testifying about a study he had not seen. The DPA responded
that the testimony was being offered for foundation. The
district court sustained the objection on the grounds that
“there are certain hoops that still have to be jumped through
for even an expert to testify about external treatises, articles,
14
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that sort of thing that have not been met yet as far as I’m
concerned.”20 Thus, Officer Wong did not testify as to studies
apparently supporting his testimony that Jones’s “failure” on
the HGN test mean he had a blood alcohol content of 0.08 or
above.
Next, Officer Wong testified regarding his administration
of the walk-and-turn test. Once more, he gave Jones
instructions on how to perform the test, including verbal
instructions and a demonstration of the correct position. Jones
confirmed he understood the test and had no questions. Officer
Wong looked for two clues during the instructional phase, in
which he asked Jones to stay in position and not begin until
cued: whether Jones could keep his balance while standing still
and whether he started too soon or without being told to start.
He then looked for six clues during the walking portion of the
test: whether Jones turned around improperly, stopped, failed to
20
It appears the district court was referring to Hawaiʻi Rules of Evidence
(“HRE”) Rule 803(b)(18) (2002), which provides a hearsay exception for
“learned treatises”:
(18) Learned treatises. To the extent called to the
attention of an expert witness upon cross-examination or
relied upon by the witness in direct examination,
statements contained in published treatises, periodicals,
or pamphlets on a subject of history, medicine, or other
science or art, established as a reliable authority by the
testimony or admission of the witness or by other expert
testimony or by judicial notice. If admitted, the
statements may be read into evidence but may not be
received as exhibits.
15
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step heel-toe, stepped off-line, raised his hands, or took an
improper number of steps.
According to Officer Wong, a subject “fails” the test if he
exhibits two clues. Officer Wong testified Jones exhibited
seven clues: he was unable to keep his balance during the
instructional phase, stopped walking while on the turn, turned
improperly, did not step heel-to-toe five times (missing by
about a half-inch), stepped off-line three times, raised his
arms six to eight inches, and took ten steps instead of nine.
Officer Wong also testified that at the end of the first nine
steps, Jones stopped and asked him if he should take nine steps
or ten; Officer Wong responded that he should “take the test as
how he had remembered” from the instructions. Jones ended up
taking ten steps.
Officer Wong then testified that Jones “failed” the walk-
and-turn test and that his blood alcohol content was at or above
0.08.
Officer Wong then testified that he instructed Jones and
demonstrated how to complete the one-leg stand test, after which
Jones affirmed that he understood. During the test, Officer
Wong looked for four clues while Jones stood on one leg and
counted for thirty seconds: whether Jones swayed to keep balance,
raised his arms six inches or more, hopped on one leg, and put
his foot down at any point. Officer Wong testified he observed
16
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Jones three times sway from side-to-side about two inches and
twice raise his arms about eight inches; according to Officer
Wong, these motions were of a sufficiently significant degree to
constitute clues for purposes of the test.
Officer Wong then testified that Jones also “failed” the
one-leg stand test. He also testified this meant Jones was “not
able to drive a car safely.”
Officer Wong then testified regarding Jones’s performance
on the SFSTs as a whole, stating, “My evaluation is that based
on all three of the standardized field sobriety tests that the
defendant was not sober and that he was not able to operate a
vehicle safely and that he did not pass[.]” Over objection, he
testified that Jones was intoxicated. After completion of the
SFSTs, Officer Wong arrested Jones for OVUII.
On cross-examination, with respect to the alleged heel-toe
“miss” on the walk-and-turn test, Officer Wong testified that he
“didn’t have a measuring stick” and that he just “look[ed] and
determine[d] if it’s a half an inch.” Officer Wong conceded he
was “approximating” the distance. With respect to the HGN test,
Officer Wong stated that the last time he had measured exactly,
rather than merely estimated, forty-five degrees of eye
displacement had probably been in 2010 at the police academy.
Officer Wong also testified, over the State’s objection,
that SFSTs provide the probable cause basis for an OVUII arrest
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and that he was trained to “take the arrestee to the police
station for further testing to determine intoxication[.]” In
response to a cross-examination question as to whether “the
conclusion of intoxication is not based on the field sobriety
test, the conclusion of intoxication is based upon what further
testing is done at the police station, blood or breath or
whatever,” however, Officer Wong responded, “No, because if the
person refuses to take a test, then how would we come to the
conclusion that they’re intoxicated?”
2. The district court’s ruling
The district court adjudicated Jones guilty of OVUII.
Although the district court acknowledged Jones’s argument that
the individual clues were insufficient and that Jones’s slurred
speech may have been attributable to his natural speaking
pattern, the district court nevertheless found “the accumulation
sufficient” and described the evidence supporting conviction as
“ample.” The district court then sentenced Jones to 240 hours
of community service, a two-year license suspension, and a $700
fine.
B. ICA proceedings
In his opening brief, Jones argued that the district court
erred in admitting, without proper foundation, Officer Wong’s
testimony that Jones failed each SFST and failed the SFSTs as a
whole. Jones maintained Officer Wong lacked the qualifications
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to testify as an expert because he “never testified that he was
certified to administer the test, only that he had received
training from an individual who himself was also not certified.”
According to Jones, the district court committed “clear and
obvious error” when it determined that Officer Wong’s
qualifications “met the standard” for being “certified.” Jones
argued that, thus, Officer Wong’s testimony regarding the
results of the SFSTs was erroneously considered by the district
court on the substantive issue of guilt beyond a reasonable
doubt.
In addition, Jones claimed that the district court erred by
admitting the SFSTs as evidence of intoxication rather than as
merely evidence of probable cause. Jones contended that this
court’s decision in Toyomura, while permitting an officer to
provide a lay opinion that a defendant was intoxicated based on
a lack of coordination, forbids reliance on the results of the
SFSTs as the basis of that opinion. Jones maintained that “the
trial court failed to apply and enforce this prohibition” when
Officer Wong offered an opinion on Jones’s intoxication based
solely on the SFSTs.
Jones also analogized his case to State v. Bebb, 99 Hawaiʻi
213, 53 P.3d 1198 (App. 2001), overruled on other grounds by
State v. Maldonado, 108 Hawaiʻi 436, 121 P.3d 901 (2005), in
which the officer based his lay opinion about an arrestee’s
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intoxication on his assessment of the SFSTs, but the State
failed to lay sufficient foundation as required by Toyomura. 99
Hawaiʻi at 217–218, 53 P.3d at 1202–03. Jones claimed the same
error occurred here.
Jones also asserted that “there was not substantial
evidence to support a finding of guilt beyond a reasonable
doubt.” According to Jones, besides the results of the SFSTs
that should not have been considered, the evidence supporting
the conviction was scant: that he had run a red light, that
Officer Wong smelled alcohol, and that his eyes were red and
bloodshot. Jones argued that he “contested” whether the light
had been red when he passed through the intersection, that “[i]t
is common knowledge that can be judicially noted that . . .
every police officer reports” red, bloodshot eyes after an OVUII
arrest, and that the smell of alcohol could have been coming
from the passengers in the car, who had been drinking.
The State responded that Officer Wong was properly
qualified as an expert. The State argued that Officer Wong’s
testimony was relevant and reliable under Hawaiʻi Rules of
Evidence (“HRE”) Rule 702 (1992), and that it had laid
sufficient foundation for him to opine as an expert on the SFSTs
and Jones’s performance. Likewise, it argued that “any
testimony by Officer Wong opining as to Jones being under the
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influence of alcohol was admissible pursuant to HRE Rule 704,”
which permits an expert to opine even on an ultimate issue.
The State also argued that sufficient evidence existed to
convict Jones. The State, emphasizing that an appellate court
must review the evidence “in the strongest light for the
prosecution,” cited the “strong odor of alcohol coming from
[Jones’s] breath,” that Jones fumbled with his documents, that
Jones exhibited clues on each SFST, and that his eyes were red
and bloodshot.
In his reply, Jones argued that Officer Wong lacked
certification to perform the SFSTs and that even Officer Wong’s
own instructor was not certified. Jones also contended that no
evidence was presented tending to establish Officer Wong’s
expertise to permit him to draw a correlation between the SFST
results and sobriety. Jones argued Officer Wong’s expert
testimony was therefore improper. He also reiterated that a
police officer testifying as a lay witness cannot base an
opinion about a defendant’s sobriety on the results of the SFSTs.
In its June 19, 2019 summary disposition order (“SDO”)
affirming Jones’s conviction, the ICA reasoned that “Officer
Wong was certified by NHTSA and IACP to instruct HPD officers to
perform and evaluate the SFST[s,]” that he was qualified to
“conduct and grade” each component test, and that it was not
error for the district court “to allow Officer Wong to express
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an expert opinion that Jones ‘failed’ the HGN test, the walk-
and-turn test, and the one-leg stand test.” State v. Jones, No.
CAAP-XX-XXXXXXX, at 5, 2019 WL 2521149 (App. June 19, 2019)
(SDO) (footnote omitted).
The ICA also ruled that even if admission of this expert
opinion testimony was erroneous, “the error was harmless because
there was other substantial evidence supporting Jones’s OVUII
conviction.” Jones, SDO at 4-5 n.5.
The ICA also held it was not error for the district court
to rely on Officer Wong’s expert opinions on Jones’s SFST
performance as substantive evidence of intoxication. Jones, SDO
at 6. The ICA cited to Toyomura for the proposition that
“foundational evidence of a police officer’s knowledge of HPD’s
SFST procedure was necessary before the officer could be allowed
to express an expert opinion about whether a defendant was
intoxicated based upon an SFST.” Id. The ICA concluded the
State’s foundation was sufficient for “Officer Wong, an NHTSA-
and IACP-certified SFST instructor for HPD, to opine that Jones
was intoxicated based upon the results of Jones’s SFST.” Id.
The ICA distinguished this case from Bebb, stating, “[B]ecause
we hold that Officer Wong was properly allowed to express an
expert opinion that Jones was intoxicated, Bebb does not apply.”
Id.
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Finally, the ICA rejected the contention that Jones’s
conviction was not supported by substantial evidence. Jones,
SDO at 8-9. Even without the contested expert opinion testimony,
the ICA concluded Officer Wong’s lay observations supported the
conviction. Id. Again citing Toyomura, the ICA ruled that an
officer may describe the results of the SFSTs and offer a lay
opinion about the defendant’s sobriety from those results.
Jones, SDO at 9 (citing Toyomura, 80 Hawaiʻi at 26, 904 P.2d at
911). Thus, even if Officer Wong should not have been qualified
as an expert, the ICA ruled his testimony regarding how Jones
performed the tasks on the SFSTs were admissible:
Officer Wong’s testimony about his observations of
Jones’s performance on the walk-and-turn and one-leg
stand tests, along with 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.
Id.21
C. Certiorari application
On certiorari, Jones presents the four questions presented
in Section I. In Section IV below, we address each question on
certiorari in turn.
21
But see discussion in Section IV.D. infra, explaining a police
officer’s lay opinion testimony regarding a driver’s state of sobriety, if
the testimony is based on the results of the driver’s performance on the
SFSTs, is inadmissible under existing law.
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III. Standards of Review
A. Admission of expert testimony
“Generally, the decision whether to admit expert testimony
rests in the discretion of the trial court. To the extent that
the trial court’s decision is dependent upon interpretation of
court rules, such interpretation is a question of law, which
[the appellate] court reviews de novo.” State v. Metcalfe, 129
Hawaiʻi 206, 222, 297 P.3d 1062, 1078 (2013) (alteration in
original).
B. Whether error is harmless beyond a reasonable doubt
In a criminal case, if there is a reasonable possibility
that error might have contributed to a conviction, then the
error is not harmless beyond a reasonable doubt, and the
judgment of conviction on which the error may have been based
must be set aside. State v. Cabrera, 90 Hawaiʻi 359, 365, 978
P.2d 797, 803 (1999).
C. Sufficiency of the evidence
We review the sufficiency of evidence in a criminal case
“in the strongest light for the prosecution.” State v. Kalaola,
124 Hawaiʻi 43, 49, 237 P.3d 1109, 1115 (2010). “The test on
appeal is not whether guilt is established beyond a reasonable
doubt, but whether there was substantial evidence to support the
conclusion of the trier of fact.” Id. Substantial evidence
means “credible evidence which is of sufficient quality and
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probative value to enable a person of reasonable caution to
support a conclusion.” Id.
IV. Discussion
A. The district court erred by permitting Officer Wong to
express an expert opinion that Jones “failed” the SFSTs
1. Requisite evidentiary foundation
In his first question on certiorari, Jones asks this court
to hold that the district court erred by permitting Officer Wong
to “express an expert opinion that Jones ‘failed’” the elements
of the SFSTs. Jones maintains the district court erred in
admitting, without proper foundation, Officer Wong’s testimony
that Jones “failed” the HGN test, the walk-and-turn test, and
the one-leg stand test.
The ICA reasoned that because “Officer Wong was certified
by NHTSA and IACP to instruct HPD officers to perform and
evaluate the SFST[s,]” he was qualified to “conduct and grade”
each component test, and it was not error for the district court
“to allow Officer Wong to express an expert opinion that Jones
‘failed’ the HGN test, the walk-and-turn test, and the one-leg
stand test.” Jones, SDO at 5 (footnote omitted).
HRE Rule 702 governs the admission of expert testimony and
provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or
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otherwise. In determining the issue of assistance to the
trier of fact, the court may consider the trustworthiness
and validity of the scientific technique or mode of
analysis employed by the proffered expert.
Qualifying a witness as an expert requires that the
proponent lay foundation establishing that “(1) the witness [is]
qualified by knowledge, skill, training, or education; (2) the
testimony [has] the capacity to assist the trier of fact to
understand the evidence or to determine a fact in issue; and (3)
the expert’s analysis [meets] a threshold level of reliability
and trustworthiness.” Metcalfe, 129 Hawaiʻi at 227, 297 P.3d at
1083. “[T]he determination of whether or not a witness is
qualified as an expert in a particular field is largely within
the discretion of the trial judge, and, as such, will not be
upset absent a clear abuse of discretion.” State v. Torres, 60
Haw. 271, 277, 589 P.2d 83, 87 (1978). HRE Rule 702 thus allows
those qualified by “knowledge, skill, training, or education” to
express expert opinions if the testimony has the capacity to
assist the trier of fact to understand the evidence or to
determine a fact in issue and the expert’s analysis meets a
threshold level of reliability and trustworthiness. Metcalfe,
129 Hawaiʻi at 227, 297 P.3d at 1083.
However, an expert’s opinion testimony is not limitless.
The HRE contemplates that “experts will have a specific field of
expertise, and limit their opinion testimony to matters within
that field.” 129 Hawaiʻi at 244, 297 P.3d at 1100. Furthermore,
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HRE Rule 704 (1980) provides that “[t]estimony in the form of an
opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier
of fact.” “However, it is well settled that ‘questions which
would merely allow the witness to tell the [fact-finder] what
result to reach are not permitted. Nor is the rule intended to
allow a witness to give legal conclusions.’” Vliet, 91 Hawaiʻi
at 296–97, 983 P.2d at 197–98 (alteration in original) (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).
It appears no published Hawaiʻi appellate cases have
actually upheld a ruling admitting expert opinion testimony that
a driver “failed” a SFST. State v. Nishi, 9 Haw. App. 516, 852
P.2d 476 (1993) addressed an officer’s opinion testimony that
the defendant had failed the “heel-to-toe, “leg raised,” and
“arch back” tests. 9 Haw. App. at 523, 852 P.2d at 480. The
ICA ruled this testimony inadmissible as HRE Rule 70122 lay
opinion testimony. Id. The ICA indicated lay opinion testimony
22
HRE Rule 701 (1984) provides:
If the witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences is limited
to those opinions or inferences which are (1) rationally
based on the perception of the witness, and (2) helpful to
a clear understanding of the witness’ testimony or the
determination of a fact in issue.
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rationally based on an officer’s perception regarding a driver’s
lack of coordination while performing SFSTs is admissible. Id.
The ICA noted, however, that a normal person would not be able
to form opinions that a driver had “failed” the tests without
knowledge of the HPD’s field sobriety testing procedures, and
that the record disclosed no such foundational evidence. Id.
Noting that the officer had not been qualified as an expert
witness, the ICA ruled the district court abused its discretion
in admitting the officer’s testimony. 9 Haw. App. at 521 n.6,
523-24, 852 P.2d at 479 n.6, 480.
In Toyomura, we cited Nishi in holding that “foundational
evidence as to the arresting officer’s knowledge of HPD’s field
sobriety testing procedures[,]” which the record in that case
did not disclose, was “necessary” for the admission of an
“arresting officer’s opinion testimony” that a driver had
“failed to pass the FSTs[.]” 80 Hawaiʻi at 25-26, 904 P.2d at
910—11 (brackets omitted). As noted in Bebb, the case heavily
relied on by Jones, Toyomura actually stated:
Toyomura is also correct in observing that insufficient
foundation was laid to permit Officer Fujihara, based on
Toyomura’s performance of the FSTs, to render a lay opinion
as to whether he was intoxicated, inasmuch as the
prosecution elicited no testimony establishing that (1) the
horizontal gaze nystagmus, “one-leg stand,” and “walk-and-
turn” procedures were elements of the HPD’s official FST
protocol, (2) there was any authoritatively established
relationship between the manner of performance of these
procedures and a person’s degree of intoxication, and (3)
Officer Fujihara had received any specific training in the
administration of the procedures and the “grading” of their
results. Therefore, Toyomura is correct that Officer
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Fujihara was improperly permitted to render an opinion that
he (i.e. Toyomura) was intoxicated based in part on Officer
Fujihara’s assessment of the results of the FSTs. . . .
Toyomura is simply wrong, however, in concluding that
the “rule in Nishi was violated in this case” in such a
manner as to require that his DUI conviction be vacated.
As the trial court correctly noted, “any . . . lay person,”
including a police officer, “can have an opinion regarding
sobriety.” As set forth above, Officer Fujihara expressly
testified that, over the course of his approximately
nineteen years as a police officer, he “had an opportunity
to observe people who had been drinking and at different
levels[.]” And, as noted, the record reflects that the
trial court both assured Toyomura that he was considering
Officer Fujihara’s testimony “only from a lay point of view”
and that the trial court applied its independent assessment
of the evidence in finding Toyomura guilty of DUI. . . .
. . . .
Examined in the light of the entire proceedings and
given the effect the whole record shows it to be entitled,
we are convinced that there is no reasonable possibility
that any improper lay opinion testimony on the part of
Officer Fujihara contributed to Toyomura’s DUI conviction.
Accordingly, we hold that any error in the admission of
that testimony was harmless.
99 Hawaiʻi at 216-17, 53 P.3d at 1201-02 (alterations and
ellipses in original) (citations omitted) (second emphasis
added) (quoting Toyomura, 80 Hawaiʻi at 26-27, 904 P.2d at 911-
12).
As indicated by Chief Judge Burns in Bebb, the inclusion of
the word “lay” before “opinion” in the third line of the excerpt
above was erroneous: as stated in Bebb, “[i]n context, it
appears that this word should have been ‘expert’ rather than
‘lay’ because ‘testimony establishing’ the three facts that
follow would qualify Officer Fujihara as an expert.” 99 Hawaiʻi
at 216 n.4, 53 P.3d at 1201 n.4. Thus, Toyomura indicated that
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if the three foundational requirements stated therein were met,
an officer could testify that a driver had “failed” an SFST.
After Toyomura, the ICA held in Ferrer that the State had
failed to lay a proper Toyomura foundation for the admission of
an officer’s expert opinion on whether the defendant had “passed”
or “failed” the psychomotor field sobriety tests.23 95 Hawaiʻi at
430, 23 P.3d at 765. Ferrer also separately held that the
foundation laid had been insufficient to establish that the
officer was duly qualified to conduct the HGN test and grade the
test results. 95 Hawaiʻi at 424, 23 P.3d at 759.
Thus, although our appellate cases set out an evidentiary
foundation framework for admission of expert opinion testimony
that a driver “failed” a SFST, there are no reported cases
upholding the admission of such expert opinion testimony.24
2. Lack of “certification”
Jones contends insufficient foundation exists to qualify
Officer Wong as an expert because Officer Wong never testified
23
The psychomotor FSTs are the walk-and-turn test and the one-leg stand
test. Ferrer held that psychomotor FSTs are nonscientific in nature and that,
therefore, an arresting officer may be permitted to testify as to a driver’s
performance on such tests and to give a lay opinion based on observations
whether the driver was intoxicated when arrested. 95 Hawaiʻi at 427, 23 P.3d
at 762. Ferrer also held, however, that absent foundation testimony
establishing conformity to NHTSA training standards, it was an abuse of
discretion to allow an officer to testify about a driver’s performance on the
HGN test. 95 Hawaiʻi at 425, 23 P.3d at 760.
24
Vliet reaffirmed Nishi’s holding that “a lay witness may express an
opinion regarding another person’s sobriety, provided the witness has had an
opportunity observe the other person. 91 Hawaiʻi at 298, 983 P.2d at 199.
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that he was certified to administer the SFSTs, only that he had
received training from someone who himself was not certified.
Jones therefore argues that it was error for the district court
to qualify Officer Wong as an expert; he argued that just
because an officer was “allowed” to perform the SFST, it did not
mean “that he was therefore certified and qualified to do so.”
This objection appears to arise from the ICA’s opinion in
Ito, in which the ICA stated:
In this case, no evidence was adduced that [the
officer] was duly qualified to conduct the HGN test and
grade the test results. Over Defendant’s objection, the
district court “assum[ed] that the standard training from
HPD is, I’ve always assumed it to be sufficient so I’ll
assume he has in fact been qualified to give the test.”
However, it is not clear what HPD’s “standard training”
consists of and whether HPD’s standard training program
meets the requirements of the NHTSA. Therefore, we have no
way of knowing the extent and nature of [the officer’s] HGN
training, whether [the officer’s] training was supervised
by certified instructors, whether [the officer] was
certified to administer the test . . . .
90 Hawaiʻi at 244, 978 P.2d at 210.25
With respect to Jones’s contention regarding
“certifications,” the Hawaiʻi appellate cases setting forth
foundational requirements for admission of expert opinion
testimony regarding a driver’s performance on SFSTs, see Section
IV.A.1. above, do not contain any “certification” requirement.
Officer Wong repeatedly testified he had been qualified to
administer and evaluate SFSTs pursuant to NHTSA standards and
the NHTSA manual. When asked whether he had been required to
25
See also supra note 8.
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receive any certifications to become an SFST instructor for HPD,
Officer Wong actually described the “certification” process as
NHTSA and IACP qualifying senior instructors, who trained
officers who then trained him. The district court permitted
Officer Wong to express various opinions regarding Jones’s
performance on the SFSTs constituting expert opinion testimony,
describing Officer Wong at various times as “certified” and
“qualified.” For example, the district court stated, “[I]n this
case[, the officer] has himself been qualified to become a
certified instructor, and has specifically testified that this
is all in accordance with the NHTSA, I’m satisfied[.]”
According to NHTSA manuals, although NHTSA provides
certificates of completion of SFST training, neither NHTSA nor
IACP are certifying agencies for impaired driving courses, i.e.,
SFST and ARIDE, “includ[ing] both practitioners and instructors.”
See NHTSA, DWI Detection and Standardized Field Sobriety Testing
(SFST) Instructor Guide, 40, 44, available at
https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/sfst_i
g_full_manual.pdf [https://perma.cc/53W5-MSNV] (“NHTSA 2015
Instructor Guide”).26
26
“[O]ur appellate courts have ‘not hesitated in the past to take
judicial notice [on appeal] of the validity of underlying scientific
principles and the reliability of scientific techniques.’” Vliet, 95 Hawaiʻi
at 112, 19 P.3d at 60 (second alteration in original). The trial and
appellate record are replete with references to NHTSA and its manuals. The
district court referred to information from NHTSA manuals not received in
(continued. . .)
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It therefore appears that although “certificates of
completion” are provided, NHTSA does not actually “certify” SFST
instructors or officers.27 In any event, existence or non-
existence of “certification” is not dispositive, because
pursuant to HRE Rule 702, a witness can render expert opinion
testimony based on “knowledge, skill, experience, training, or
education.” The ICA expressed concern in Ito that “it [was] not
clear what HPD’s ‘standard training’ consists of and whether
HPD’s standard training program meets the requirements of the
NHTSA.” 90 Hawaiʻi at 244, 978 P.2d at 210. In Jones’s case,
Officer Wong testified regarding the training and testing he had
undergone pursuant to NHTSA standards to administer and evaluate
SFSTs. In general, sufficient foundation was laid under
Toyomura to qualify Officer Wong to render expert opinion
(continued. . .)
evidence, when it stated that Officer Wong’s recertification as a drug
recognition expert included retraining that the presence of HGN “is not . . .
an indicator of [] intoxication due to THC.” The district court in Ferrer
had taken judicial notice of various NHTSA manuals, and the ICA opinion
contains various excerpts from them. 95 Hawaiʻi at 420, 424, 23 P.3d at 755,
759. Ito also contains various excerpts from NHTSA manuals. 90 Hawaiʻi 225,
978 P.2d 191, passim. See also Webster v. State, 26 S.W.3d 717, 721 n.4 (Ct.
App. Tex. 2000) (“Although the parties have not provided a copy of the
1992 NHTSA Manual, we take judicial notice of its contents.”). We therefore
take judicial notice of the NHTSA 2015 Instructor Guide and the NHTSA 2015
Participant Manual.
27
Our appellate cases, however, contain references to NHTSA
“certifications.” See, e.g., State v. Wilson, 144 Hawaiʻi 454, 458, 445 P.3d
35, 39 (2019) (“NHTSA Certified Instructor”); Mitchell, 94 Hawaiʻi at 398, 15
P.3d at 324 (“certified DUI instructor”); Ito, 90 Hawaiʻi at 244, 978 P.2d at
210 (discussing lack of evidence of whether the officer was certified to
administer HGN test and whether his training had been supervised by certified
instructors). Based on the NHTSA manuals, it is unclear whether such
“certifications” exist for Hawaiʻi officers.
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testimony regarding Jones’s performance on the SFSTs and clues
of intoxication based on NHTSA standards.
3. Expert opinion testimony that Jones “failed” the SFSTs
Jones more specifically asserts in his first question on
certiorari, however, that the district court erred in allowing
Officer Wong to express an expert opinion that Jones “failed”
the HGN test, the walk-and-turn test, and the one-leg stand test.
Jones argues the district erred in admitting Officer Wong’s
testimony that he had failed each test and failed the SFSTs as a
whole.
As noted, Officer Wong’s qualifications to testify as an
expert as to his administration and evaluation of SFSTs were
based entirely on NHTSA standards. As he testified, SFSTs are
conducted pursuant to NHTSA standards contained in the NHTSA
manual.
NHTSA itself dictates, however, that the SFSTs are not
scored “pass” or “fail,” and are merely tools to assist an
officer in seeing visible signs of impairment. In other words,
NHTSA itself does not recognize “pass” or “fail” scores on
SFSTS:
Remember, you should not testify that the defendant passed
or failed the SFSTs. The tests are not scored “pass” or
“fail.” You should testify if the defendant completed the
tests as instructed. These tests simply identify
impairment.
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NHTSA, DWI Detection and Standardized Field Sobriety Testing
(SFST) Participant Manual, 349, available at
https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/sfst_p
m_full_manual.pdf [https://perma.cc/X22R-3XXT] (“NHTSA 2015
Participant Manual”); NHTSA 2015 Instructor Manual, at 409; see
also NHTSA 2015 Participant Manual, at 257 (“Remember that the
SFSTs are a tool to assist you in seeing visible signs of
impairment and are not a pass/fail test.”).
Thus, the very standards upon which Officer Wong based his
expertise explicitly state that SFSTs are not “pass” or “fail”
tests.28 Hence, although our appellate cases set out an
evidentiary foundation framework for admission of expert opinion
testimony that a driver “failed” a SFST, no reported cases had
previously upheld the admission of such expert opinion testimony.
NHTSA standards do not allow such testimony. Therefore, the
district court erred in allowing Officer Wong to render such
expert opinion testimony.
B. The erroneous admission of expert opinion testimony that
Jones “failed” the SFSTs was not harmless beyond a
reasonable doubt
Jones next challenges the ICA’s holding that even if it was
error to permit Officer Wong to opine that Jones failed the SFST,
28
Based on our holding that it was error to allow Officer Wong to testify
that Jones “failed” the SFSTs, we do not go through the thorough analysis
conducted by the ICA in Ferrer regarding whether the officer met specific
NHTSA requirements as to each test. See 95 Hawaiʻi at 422-27, 23 P.3d at 757-
62.
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“the error was harmless because there was substantial other
evidence supporting Jones’s OVUII conviction.”
“Erroneously admitted evidence is evaluated under
the harmless beyond a reasonable doubt standard.” State v.
Matsumoto, 145 Hawaiʻi 313, 327, 452 P.3d 310, 324 (2019) (citing
State v. McCrory, 104 Hawaiʻi 203, 210, 87 P.3d 275, 282 (2004)).
“Under this standard, ‘[t]he relevant question . . . is whether
there is a reasonable possibility that error might
have contributed to [the] conviction.’” Id. (alteration and
ellipsis in original) (emphasis omitted) (quoting State v. Han,
130 Hawaiʻi 83, 93, 306 P.3d 128, 138 (2013) (citing State v. Kim,
140 Hawaiʻi 421, 434 n.15, 402 P.3d 497, 510 n.15 (2017)).
“In applying the harmless beyond a reasonable doubt
standard, the court is required to examine the record and
determine whether there is a reasonable possibility that the
error complained of might have contributed to the
conviction.” State v. Souza, 142 Hawaiʻi 390, 402, 420 P.3d 321,
333 (2018) (brackets omitted) (quoting State v. Mundon, 121
Hawaiʻi 339, 368, 219 P.3d 1126, 1155 (2009)).
Thus, the ICA applied an erroneous standard in ruling that
“the error was harmless because there was other substantial
evidence supporting Jones’s OVUII conviction.” The existence of
“other substantial evidence” supporting a conviction is not
determinative of whether error is harmless beyond a reasonable
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doubt. Rather, as our cases have repeatedly held, the issue is
whether there is a reasonable possibility that the error
contributed to a conviction. Cabrera, 90 Hawaiʻi at 365, 978
P.2d at 803. If so, the error is not harmless beyond a
reasonable doubt.
Granted, in a bench trial, “[i]t is well established that a
judge is presumed not to be influenced by incompetent evidence.”
Vliet, 91 Hawaiʻi at 298, 983 P.2d at 199 (alteration in
original). In Vliet, this court found harmless an officer’s
improper opinion testimony regarding the defendant’s sobriety
and whether the officer believed the defendant was able to
operate his vehicle safely that night. 91 Hawaiʻi at 290, 983
P.2d at 191.
In Jones’s trial, however, the district court repeatedly
overruled Jones’s objections and admitted Officer Wong’s expert
testimony that Jones had “failed” each SFST individually, and
then that Jones “failed” the SFSTs as a whole. In adjudicating
Jones guilty of OVUII at the conclusion of trial, the district
court stated that although the individual clues regarding
Jones’s performance on the SFSTs were insufficient, and that
Jones’s slurred speech may have been attributable to his natural
speaking pattern, the “accumulation” of evidence was “sufficient”
and the evidence supporting conviction was “ample.” On this
record, there is a reasonable possibility that the erroneous
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admission of expert opinion testimony that Jones had failed the
SFSTs individually and as a whole contributed to Jones’s
conviction. Therefore, the error was not harmless beyond a
reasonable doubt.
C. The district court (a) did not err by admitting expert
opinion testimony regarding Jones’s performance on the
SFSTs as substantive evidence of intoxication and not just
as to probable cause for arrest, and (b) based on Toyomura,
did not err in permitting expert opinion testimony that
Jones was intoxicated, but (c) based on Vliet, did err in
permitting expert opinion testimony that Jones had a blood
alcohol content of 0.08 or above
We have already concluded that Jones’s conviction must be
vacated. We address the third question on certiorari, however,
to provide guidance on remand.
As noted, the third question has three parts. On
certiorari, Jones reasserts the questions he raised to the ICA,
which are: (a) whether the district court erred in admitting
Officer Wong’s expert opinion testimony regarding Jones’s
performance on the SFSTs as substantive evidence of intoxication
and not just as to probable cause for arrest; (b) whether
evidence was presented to establish Officer Wong’s expertise to
permit 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.
The ICA found no error.
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1. Expert opinion testimony regarding Jones’s
performance on the SFSTs as substantive evidence
of intoxication and not just as to probable cause
for arrest
We first address Jones’s assertion that the ICA erred in
holding the HGN test and SFSTs were admissible for the purpose
of establishing substantive evidence of intoxication beyond
probable cause.
In Ito, the ICA stated:
[W]e conclude that HGN test results have been sufficiently
established to be reliable and are therefore admissible as
evidence that police had probable cause to believe that a
defendant was [OVUII]. Since the issue was not presented,
we do not decide whether HGN test results are admissible at
trial as evidence of a defendant’s intoxication.
90 Hawaiʻi at 241, 978 P.2d at 207.
As contended by Jones, NHTSA states that the SFSTs are to
determine whether probable cause exists to arrest a driver for
OVUII: “The third phase in the DWI detection process.[29] In
29
According to the NHTSA 2015 Participant Manual, the phases are as
follows:
In Phase One: Your first task is to observe the vehicle in
operation. Based on this observation, you must decide
whether there is sufficient cause to command the driver to
stop. Your second task is to observe the stopping sequence.
You may want to take a picture of the vehicle or scene,
especially if the vehicle was involved in a crash.
In Phase Two: Your first task is to observe and interview
the driver face to face. Based on this observation, you
must decide whether there is sufficient cause to instruct
the driver to step from the vehicle for further
investigation. Your second task is to observe the driver’s
exit and walk from the vehicle. You may want to take a
photo of the defendant.
In Phase Three: Your first task is to administer structured,
formal psychophysical tests. Based on these tests, you
(continued. . .)
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this phase the officer administers field sobriety tests to
determine whether there is probable cause to arrest the driver
for DWI.” NHTSA 2015 Participant Manual, at 23. NHTSA further
defines “probable cause” as “more than mere suspicion; facts and
circumstances within the officer’s knowledge, and of which [they
have] reasonably trustworthy information, are sufficient to
warrant a person of reasonable caution to believe that an
offense has been or is being committed.” Id.
NHTSA does not, however, limit a driver’s performance on
the SFSTs to an establishment of probable cause. NHTSA
instructs on the importance of officers taking field notes of a
driver’s performance on the SFSTs to “determine whether there is
probable cause to arrest[,]” but points out that “to secure a
conviction, more descriptive evidence is needed. The officer
must be able to describe how the subject performed on the tests,
and what the subject did.” Id. at 268. Thus, NHTSA recognizes
that an officer’s observation and description of the manner in
which a driver performs a field sobriety test is admissible at
trial on the issue of impairment.
(continued. . .)
must decide whether there is sufficient probable cause to
arrest the driver for DWI. Your second task is then to
arrange for (or administer) a Preliminary Breath Test.
Id. at 95.
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Hawaiʻi appellate cases have also allowed for consideration
of the manner in which a driver performs SFSTs as substantive
evidence of intoxication, regardless of whether the officer was
qualified as an expert. See, e.g., Toyomura, 80 Hawaiʻi at 26,
904 P.2d at 911 (specifying foundation necessary for expert
opinion testimony regarding SFST performance); Nishi, 9 Haw. App.
at 524, 852 P.2d at 480 (allowing police officer to give lay
witness testimony regarding observations of a driver’s
coordination problems while performing SFSTs).
Therefore, evidence of a driver’s conduct and physical
actions while performing a SFST is not only relevant to probable
cause for an arrest, but is also admissible as indicia of
whether a driver was OVUII beyond a reasonable doubt.
2. Expert opinion testimony that Jones was
intoxicated
With respect to the second part of this question on
certiorari, the ICA stated that pursuant to Toyomura,
“foundational evidence of a police officer’s knowledge of HPD’s
SFST procedure was necessary before the officer could be allowed
to express an expert opinion about whether a defendant was
intoxicated based upon an SFST.” The ICA concluded the State’s
foundation was sufficient for “Officer Wong, an NHTSA- and IACP-
certified SFST instructor for HPD, to opine that Jones was
intoxicated based upon the results of Jones’s SFST.”
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In Toyomura, we cited Nishi and stated that “foundational
evidence as to the arresting officer’s knowledge of HPD’s field
sobriety testing procedures[,]” which the record in that case
did not disclose, was “necessary” for the admission of an
“arresting officer’s opinion testimony” that a driver had
“failed to pass the FSTs[.]” 80 Hawaiʻi at 25-26, 904 P.2d at
910—11 (brackets omitted). The issue Jones directly presents in
this case, whether such opinion testimony should be excluded
even when the requisite foundation has been laid, was not
presented in Toyomura. In addition, Vliet, discussed in more
detail below, was decided after Toyomura and pertains to whether
such testimony would be admissible. And as further discussed
below, there are significant issues with allowing such testimony.
We recognize, however, that Toyomura indicated that an officer
could express an expert opinion that a driver was intoxicated as
long as sufficient foundation was laid.
Here, Officer Wong testified he had been trained and re-
trained and had passed written and practical examinations
regarding the administration and evaluation of SFSTs in
accordance with NHTSA standards, and he had performed hundreds
of SFSTs. Therefore, an adequate foundation was laid, and the
district court did not err in allowing Officer Wong to testify
as an expert in the administration and evaluation of SFSTs and
to express his opinions regarding the NHTSA-recognized “clues of
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intoxication” in Jones’s performance of the SFSTs. Thus, under
Toyomura, in this case, Officer Wong was properly allowed to
render expert opinion testimony regarding his evaluation of
Jones’s performance on the SFSTs and to render expert opinion
testimony that Jones was “intoxicated.”
3. Expert opinion testimony that Jones had a blood
alcohol level of 0.08 or above
Officer Wong’s expert opinion testimony, however, exceeded
the scope of allowable testimony as an expert under existing law.
Officer Wong not only testified as to the clues of intoxication
he observed during Jones’s performance of the SFSTs, he also
opined that Jones had a blood alcohol content of 0.08 based on
his performance on the SFSTs. First, as Jones argues, Officer
Wong’s testimony did not provide adequate foundation to allow
him to draw such a correlation based on Jones’s performance on
each of the SFSTs. Officer Wong did testify that the NHTSA
practical exam included going over studies that described the
findings and “success rate” of each SFST. He never testified,
however, as to what “success rate” meant. Then, when Officer
Wong testified that a “fail” meant Jones had a blood alcohol
content of 0.08 or above and the DPA asked Officer Wong whether
there were any studies about the HGN test that would point
toward that conclusion, the district court sustained Jones’s
objection. Therefore, no foundation was laid that clues of
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intoxication correlated to a blood alcohol level of 0.08 or
above.
In addition, it is well-settled that opinion testimony
should not merely tell the fact-finder what result to reach, and
witnesses are not permitted to give legal conclusions. See
State v. Batangan, 71 Haw. 552, 559, 799 P.2d 48, 52 (1990)
(stating that HRE Rule 704 does not permit opinion testimony
that merely tells the jury what result to reach); Vliet, 91
Hawaiʻi at 296-97, 983 P.2d at 197-98 (noting that HRE Rule 704
does not allow a witness to give legal conclusions). Although
Toyomura indicated that if sufficient foundation existed of a
police officer’s knowledge of SFST procedures the officer could
be allowed to express an expert opinion about whether a
defendant was intoxicated based upon SFST performance, our
ruling in Vliet, which came after Toyomura, directly addressed
the issue. In Vliet, an OVUII case, we noted that although HRE
Rule 704 provides that “[t]estimony in the form of an opinion or
inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact[,]”
“questions which would merely allow the witness to tell the
[fact-finder] what result to reach are not permitted.” 91
Hawai’i at 296, 983 P.2d at 197. We further noted that
HRE Rule 704 is not “intended to allow a witness to give legal
conclusions.” 91 Hawaiʻi at 296–97, 983 P.2d at 197–98.
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Vliet specifically addressed an officer’s testimony that a
defendant’s state of sobriety “would have been over the legal
limit.” 91 Hawaiʻi at 296–97, 983 P.2d at 197–98.30 This court
held that the officer’s testimony amounted to a legal conclusion
and was therefore impermissible. 91 Hawaiʻi at 298, 983 P.2d at
199 (“Clearly, Officer Uehara was attempting to offer a legal
conclusion as to whether [the defendant] was DUI.”). Although
in Vliet we ruled the admission of this testimony harmless
beyond a reasonable doubt, we identified its problematic nature.
The officer’s testimony in Vliet is comparable to Officer
Wong’s testimony that Jones had a blood alcohol level of 0.08 or
above. Jones was charged with OVUII in violation of
HRS § 291E-61(a)(1). This subsection proscribes operating a
vehicle “while under the influence of alcohol in an amount
sufficient to impair the person’s normal mental faculties or
ability to care for the person and guard against casualty.”
Officer Wong’s testimony that Jones had a blood alcohol level of
0.08 or above based on his performance on the SFSTs was
tantamount to telling the fact-finder what result to reach and
constituted legal conclusion testimony in violation of Vliet.
Therefore, on this basis also, the district court erred by
30
As recognized by the concurrence and dissent, Vliet also found
impermissible the officer’s testimony that the defendant “did poorly, he
would be driving poorly too[.]” 91 Hawaiʻi at 298, 983 P.2d at 199. Vliet
indicated that the officer’s testimony that he believed the defendant was not
able to operate his vehicle safely that night was improper. Id.
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permitting Officer Wong to testify as an expert that Jones had a
blood alcohol level above 0.08.
D. Prospectively, police officers may no longer testify,
whether in a lay or expert capacity, that a driver
appeared “intoxicated”
In this case, Officer Wong testified as an expert witness,
and the issues raised by Jones on certiorari relate to Officer
Wong’s expert testimony. The ICA ruled, however, that Officer
Wong’s testimony was in any event admissible as lay opinion
testimony as an officer may describe the results of the SFSTs
and offer a lay opinion about the defendant’s sobriety from
those results. Jones, SDO at 9 (citing Toyomura, 80 Hawaiʻi at
26, 904 P.2d at 911).
To the extent the ICA stated that an officer’s lay opinion
testimony can be based on SFST results, this conclusion was
erroneous under existing law. As Chief Judge Burns stated in
Bebb,
In Toyomura, the Hawaiʻi Supreme Court concluded that a
police officer, based on [their] “lay” observations, can
have a “lay” opinion that an arrestee is not sober. It also
says, however, that a police officer cannot base [their]
“lay” opinion that an arrestee is not sober on [their]
“assessment of the results of the FSTs.”
99 Hawaiʻi at 217, 53 P.3d at 1202 (citing Toyomura, 80 Hawaiʻi
at 26, 904 P.2d at 911).
Under HRE Rule 701, a lay opinion must be “rationally based
on the perception of the witness[.]” As recognized in Nishi,
which we adopted in Toyomura, an officer’s opinion that a driver
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was intoxicated based upon SFST performance would necessarily
rely on that officer’s knowledge of SFSTs and would not be based
solely on the officer’s perception. See 9 Haw. App. at 523, 852
P.2d at 480 (“A normal person may not necessarily form such an
opinion if [they] had not been taught to grade the performance
of the three field sobriety tests[, and thus] this was a
situation where foundational evidence as to [the arresting
officer’s] knowledge of HPD's field sobriety testing procedures
was necessary.”). Thus, as recognized in Bebb, Toyomura, which
adopted Nishi, ruled that although an officer performing a SFST
may be able to testify as to what would constitute lay
observations, such as the general physical condition or
coordination of a driver, an officer’s opinion regarding a
driver’s level of intoxication cannot be based on the driver’s
SFST results.
Thus, under existing law, a police officer cannot provide a
lay opinion that a driver was “intoxicated” or with respect to
the driver’s state of sobriety if the testimony is based on the
results of the driver’s SFST performance.31 Our existing law
31
Thus, the dissent misstates that law when it states that:
Toyomura also recognized that a lay witness,
including an officer testifying as such, can form an
opinion as to whether someone they observed is intoxicated
based on information besides the SFSTs, and Hawaiʻi courts
have long followed this rule. Toyomura, 80 Hawaiʻi at 25-27,
904 P.2d at 910-12 (“[A]ny lay person, including a police
officer, can have an opinion regarding sobriety.” (ellipsis,
(continued. . .)
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states that an officer can, however, offer expert opinion
testimony that a driver was “intoxicated” assuming sufficient
foundation, and an officer can offer lay opinion testimony that
a driver was “intoxicated” if that testimony is based on general
observations regarding a driver’s coordination. Toyomura, 80
Hawaiʻi at 25-26, 904 P.2d at 910—11.
We now prospectively hold that police officers may no
longer testify, whether in a lay or expert capacity, that a
driver appeared “intoxicated.”32
(continued. . .)
citation, and internal quotation marks omitted)); see also
State v. Bebb, 99 Hawaiʻi 213, 217, 53 P.3d 1198, 1202 (App.
2001) (recognizing that “a police officer, based on his or
her ‘lay’ observations, can have a ‘lay’ opinion that an
arrestee is not sober” (citation omitted)).
(Alteration in original.) (Footnote omitted.)
32
As we explain, our prospective holding is based on HRE Rule 704.
Although not necessary to our holding, we also note that lay opinion
testimony from an officer conducting a SFST from whom expert testimony is
sought raises additional concerns recognized in State v. Torres, 122 Hawaiʻi 2,
222 P.3d 409 (App. 2009):
When enacted in 1980, HRE Rules 701 and 702 were
modeled upon and were virtually identical to the
corresponding Federal Rules of Evidence (FRE) Rules 701 and
702. See Commentary to HRE Rule 701 and HRE Rule 702. In
2000, FRE Rule 701 was amended to specifically provide that
lay opinions could “not [be] based on scientific, technical,
or other specialized knowledge within the scope of
[FRE] Rule 702.” The Advisory Committee Notes to the 2000
amendment to FRE Rule 701 explain that the purpose of the
amendment was to “eliminate the risk that the reliability
requirements set forth in Rule 702 will be evaded through
the simple expedient of proffering an expert in lay witness
clothing.” FRE Rule 701 advisory committee’s note. The
2000 amendment to FRE Rule 701 also ensures that a party
will not evade rules requiring pre-trial disclosure of
expert witnesses by “simply calling an expert witness in
the guise of a layperson.” Id. The 2000 amendment to
(continued. . .)
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(continued. . .)
FRE 701 incorporates the distinction set forth in State v.
Brown, 836 S.W.2d 530, 549 (Tenn. 1992), that “lay
testimony ‘results from a process of reasoning familiar in
everyday life,’ while expert testimony ‘results from a
process of reasoning which can be mastered only by
specialists in the field.’” FRE Rule 701 advisory
committee’s note.
Although Hawaiʻi has not amended HRE Rule 701 to
incorporate the 2000 amendment to FRE Rule 701, the Hawaiʻi
Supreme Court has implicitly recognized the limitation on
lay opinion testimony set forth in the 2000 amendment to
FRE Rule 701. In cases upholding the admission of opinion
testimony as lay opinion, the supreme court justified its
decisions by noting that the challenged testimony did not
require “scientific, technical, or other specialized
knowledge” within the scope of HRE Rule 702. Jenkins, 93
Hawaiʻi at 105, 997 P.2d at 31 (“Jenkins does not suggest,
nor does the record reflect, that testimony regarding
whether the pouches qualified as rigidly constructed
containers or commercial gun cases required ‘scientific,
technical, or other specialized knowledge,’ such that
expert testimony would have been required pursuant to
HRE Rule 702 (1993).”); Yoneda v. Tom, 110 Hawaiʻi 367, 385,
133 P.3d 796, 814 (2006) (“Yoneda’s testimony as to the
events leading up to the accident and his observations
regarding the location of the restroom building and the
route of the cart path did not require ‘scientific,
technical, or other specialized knowledge’ such that expert
testimony would have been required pursuant to
HRE Rule 702[.]”).
122 Hawaiʻi at 29–30, 222 P.3d at 436–37, aff’d and corrected on other grounds
by State v. Torres, 125 Hawaiʻi 382, 262 P.3d 1006 (2011) (alterations in
original). Thus, pursuant to Torres, for opinion testimony from officers
regarding their evaluation of a driver’s performance on SFSTs to be
admissible, they must be properly identified as expert witnesses. Federal
courts also recognize an additional concern with “proffering an expert in lay
witness clothing.” As stated by the Tenth Circuit Court of Appeals:
We recognize that witnesses who testify in both a lay
capacity and an expert capacity may present special risks
at trial. The “aura of special reliability and
trustworthiness surrounding expert testimony,” may give the
witness “unmerited credibility” and “create[] a risk of
prejudice ‘because the jury may infer that the agent’s
opinion about the criminal nature of the defendant’s
activity is based on knowledge of the defendant beyond the
evidence at trial.’” United States v. Dukagjini, 326 F.3d
45, 53–54 (2d Cir. 2003) (citations omitted). In light of
this concern, some circuits have encouraged district courts
to take precautionary measures, including warning the jury
about the witness’s dual roles or bifurcating the
questioning to clearly demarcate lay and expert testimony
(continued. . .)
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As discussed in Section IV.C. above, an officer cannot
express an opinion, whether in a lay or expert capacity, that
simply tells a factfinder what result to reach or that provides
a legal conclusion. As discussed, Vliet held that although
HRE Rule 704 provides that “[t]estimony in the form of an
opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier
of fact[,]” “questions which would merely allow the witness to
tell the [fact-finder] what result to reach are not permitted.”
91 Hawai’i at 296, 983 P.2d at 197. Vliet also held that
[HRE Rule 704] is not intended “to allow a witness to give legal
conclusions.” 91 Hawaiʻi at 296–97, 983 P.2d at 197–98; see also
State v. Pinero, 70 Haw. 509, 520-21, 778 P.2d 704, 712 (1980)
(holding conclusory questions with answers that told jury what
result to reach improper under HRE Rule 704).
On these bases, Vliet thus found impermissible an officer's
testimony that a defendant’s state of sobriety “would have been
(continued. . .)
offered by the same witness, to protect against these
dangers. See, e.g., United States v. Rios, 830 F.3d 403,
414–15 (6th Cir. 2016), cert. petition filed, No. 16-7314
(Dec. 27, 2016); United States v. Moralez, 808 F.3d 362,
365–67 (8th Cir. 2015); United States v. Haines, 803 F.3d
713, 730–32 (5th Cir. 2015); United States v. Vera, 770
F.3d 1232, 1242–43 (9th Cir. 2014); United States v. Garcia,
752 F.3d 382, 392 (4th Cir. 2014); United States v. Tucker,
714 F.3d 1006, 1016 (7th Cir. 2013); United States v.
Flores-De-Jesus, 569 F.3d 8, 21 (1st Cir. 2009); Dukagjini,
326 F.3d at 53–56.
United States v. Sandoval, 680 F. App’x 713, 718–19 (10th Cir. 2017). As
noted, however, our prospective holding is based on HRE Rule 704.
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over the legal limit.” 91 Hawaiʻi at 296–97, 983 P.2d at 197–98.
Vliet also found impermissible the officer’s testimony that the
defendant “did poorly, he would be driving poorly too” and that
he believed the defendant was not able to operate his vehicle
safely that night. 91 Hawaiʻi at 298, 983 P.2d at 199. The
dissent concedes that, pursuant to Vliet, testimony that the
driver “would be driving poorly” and was “over the legal limit”
reflect improper legal conclusions. The dissent disagrees,
however, that an officer’s testimony that a driver was
“intoxicated,” whether given in a lay or expert capacity, tells
the factfinder what result to reach, and invades the province of
the factfinder.
There is no real qualitative distinction between the
testimony found improper in Vliet and our other caselaw, however,
with testimony that a driver was “intoxicated.” As recently
reaffirmed in State v. Ikimaka, No. SCWC-XX-XXXXXXX, 2020 WL
3056494 (Haw. June 9, 2020):
Officer Hsu’s testimony on Ikimaka’s intent and knowledge
was [] impermissible because it expressed a legal
conclusion as to Ikimaka’s state of mind. See State v.
Vliet, 91 Hawaiʻi 288, 296-97, 983 P.2d 189, 197-98 (1999).
While HRE Rule 704 (1980) permits testimony “embrac[ing] an
ultimate issue to be decided by the trier of fact,” it
“does not allow ‘the admission of opinions which would
merely tell the jury what result to reach[.]’” State v.
Batangan, 71 Haw. 552, 559, 799 P.2d 48, 52 (1990) (quoting
HRE Rule 704 cmt.); see also State v. Ryan, 112 Hawaiʻi 136,
141, 144 P.3d 584, 589 (App. 2006) (holding an officer’s
opinion testimony that the complaining witness was truthful
impermissibly invaded the province of the jury to determine
the facts). “Nor is [HRE Rule 704] intended to allow a
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witness to give legal conclusions.” Vliet, 91 Hawaiʻi at
296-97, 983 P.2d at 197-98.
No. SCWC-XX-XXXXXXX, at 33 (alterations in original).
Allowing an officer to testify that a driver was
“intoxicated” likewise expresses a legal conclusion and invades
the province of the factfinder. Webster’s Third International
Dictionary defines “intoxicated” as “being under the marked
influence of an intoxicant: DRUNK, INEBRIATED.” An officer’s
testimony that a driver was “intoxicated,” whether given in a
lay or expert capacity, invades the province of the factfinder
to determine whether a person drove “[w]hile under the influence
of alcohol in an amount sufficient to impair the person’s normal
mental faculties or ability to care for the person and guard
against casualty[,]” HRS § 293E-61(a)(1), and is tantamount to a
legal conclusion that they did. Accordingly, testimony that a
driver was “intoxicated” violates HRE Rule 704.33
33
We also observe that the definition of the term “intoxicated” appears
to be evolving, and that the term can mean different things to different
people. As noted, the 1966 Webster’s Third International Dictionary defines
“intoxicated” as “being under the marked influence of an intoxicant: DRUNK,
INEBRIATED.” The 1988 Webster’s Ninth Collegiate Dictionary defines the term
as “affected by [] alcohol[.]” The 2019 Black’s Law Dictionary defines the
term as “[h]aving the brain affected by the presence in the body of a drug or
alcohol. —Also termed inebriated.” Intoxicated, Black’s Law Dictionary
(11th ed. 2019). In addition, we have cited other legal definitions of
“intoxication” above.
Jones was charged with driving “[w]hile under the influence of alcohol
in an amount sufficient to impair [his] normal mental faculties or ability to
care for [himself] and guard against casualty” under HRS § 291E-61(a)(1). He
was not charged with driving under the influence of other intoxicants. Yet,
a person can appear “intoxicated” even if under the influence of other
substances. Thus, admission of testimony from a police officer, whether in a
lay or expert capacity, that a person was “intoxicated,” raises significant
HRE Rule 403 concerns based on “unfair prejudice, confusion of the issues, or
(continued. . .)
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We therefore 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.”34
E. Jones’s conviction was supported by substantial evidence
Finally, Jones alleges there was not substantial evidence
to support his conviction. Citing Bebb, Jones asserts the
evidence was insufficient to support his conviction because
besides the results of the SFSTs - which he challenges - the
other evidence supporting guilt was “subjective.” Moreover, he
claims that “[n]o evidence was proffered as to the correlation
between red, watery eyes and intoxication, or whether such
indicia rise to the level of substantial evidence of alcohol
consumption in an amount sufficient to impair a person’s normal
mental faculties[.]”
We review the sufficiency of the evidence supporting a
criminal conviction in the light most favorable to the State.
(continued. . .)
misleading the jury [or factfinder judge]” as to what “intoxicated” means.
See HRE Rule 403 (“Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative
evidence.”). In addition, such opinion testimony, whether offered in a lay
or expert capacity, also may be needless and cumulative when, for example,
the officer is able to testify as to the driver’s physical actions, conduct,
and appearance or when a video of the SFSTs exists.
34
This is a “new rule” that changes standards upon which courts and law
enforcement have relied. Therefore, we give it purely prospective effect.
See Lewi v. State, 145 Hawaiʻi 333, 349 n.21, 452 P.3d 330, 346 n.21 (2019).
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Kalaola, 124 Hawaiʻi at 49, 237 P.3d at 1115. “‘Substantial
evidence’ as to every material element of the offense charged is
credible evidence which is of sufficient quality and probative
value to enable a person of reasonable caution to support a
conclusion.” Id.
Jones argues that substantial evidence was lacking that he
was “under the influence of alcohol in an amount sufficient to
impair [his] normal mental faculties.” HRS § 291E-61(a)(1).
As indicated by the ICA, Jones’s conviction was supported
by “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[.]” In
addition, we have held that Officer Wong’s expert opinion
testimony as to clues of intoxication based on Jones’s
performance on the SFSTs was properly admitted. Thus,
substantial evidence supported Jones’s conviction.
V. Conclusion
Based on these reasons, 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
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district court for further proceedings consistent with this
opinion.
Michael S. Zola, /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Sonja P. McCullen,
for respondent /s/ Michael D. Wilson
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