NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-OCT-2020
07:48 AM
Dkt. 38 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant, v.
DANIEL IRVING JAMES MANION, Defendant-Appellee
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-19-00266)
MEMORANDUM OPINION
(By: Chan, Presiding Judge, and Hiraoka and Wadsworth, JJ.)
Plaintiff-Appellant State of Hawai#i (State) appeals
from the July 10, 2019 Notice of Entry of Judgment and/or Order
and Plea/Judgment (Interlocutory Order), and the August 23, 2019
Findings of Fact, Conclusions of Law, and Order Granting in Part
and Denying in Part Defendant's Motion to Suppress Statements
(Suppression Order), both entered in the District Court of the
First Circuit, Honolulu Division (District Court).1/ The State
contends that the District Court erred by granting in part
Defendant-Appellee Daniel Irving James Manion's (Manion) motion
to suppress statements, arguing that Manion was not in custody or
seized until after he took a Standard Field Sobriety Test (SFST
or FST) and was arrested for Operating a Vehicle Under the
Influence of an Intoxicant (OVUII), in violation of Hawaii
1/
The Honorable Summer Kupau-Odo presided. It appears that the
Interlocutory Order is not appealable because it does not reference the
District Court's ruling on the motion to suppress statements. See Hawai #i
Rules of Appellate Procedure (HRAP) Rule 4(b)(1). In its Statement of
Jurisdiction, the State clarifies its intent to appeal from the Suppression
Order, which is appealable.
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Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2018).2/ Thus, the
State argues that various statements made by Manion, and Manion's
performance on the SFST, should not have been suppressed. The
State also challenges Conclusions of Law (COLs) Nos. 8, 10
through 15, 17, and 18 of the Suppression Order.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we resolve the
State's contentions as follows.
I. BACKGROUND
On January 4, 2019, at about 4:40 a.m., Honolulu Police
Department (HPD) Officer Corey Morgan received a report of a
motor vehicle collision in the Kalama Valley area at Kealahou
Street and Kipukai Place. When Officer Morgan arrived at the
scene, he observed a white Hyundai with extensive front end
damage. Manion was sitting in the driver's seat. While
approaching the driver's window, Officer Morgan also observed a
vehicle fluid trail leading up to the Hyundai, from the scene
where a parked vehicle had been struck. Officer Morgan first
asked Manion "if he was injured, if he was okay," and then asked
him where he was coming from. Manion told Officer Morgan "he had
a rough day and that he was at Sandy's prior to the incident and
he did have an alcoholic beverage." Officer Morgan thought
Manion said it was "a 40-ounce, a 40" and that "the accident
wasn't a result of his drinking but him texting while driving."
While talking to Manion, Officer Morgan detected a strong odor of
alcohol coming from Manion's vehicle and observed him with red
and watery eyes. Officer Morgan asked Manion for his driver's
2/
HRS § 291E-61(a) states, in relevant part:
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[.]
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license, registration, and insurance, and Manion produced those
documents. Officer Morgan then asked Manion if he would be
willing to participate in the SFST. Manion agreed.
Prior to administering the SFST, Officer Morgan asked
Manion several questions, which are known as medical rule-out
questions. Officer Morgan asked Manion whether he had any
physical defects; whether he was taking any medication; whether
he was under the care of a doctor, eye doctor, or dentist;
whether he had an artificial or glass eye; whether he was
epileptic or diabetic; whether he was blind in either eye; and
whether he wore corrective lenses. Manion answered no to all of
the questions.
The SFST consists of three tests and prior to
administering them, Officer Morgan gave Manion instructions on
how to perform the tests, asked him if he understood the
instructions, and asked him if he had any questions. Officer
Morgan told Manion that he would be judged on how well he
followed the instructions. Manion was not advised of his Miranda
rights that night.3/ When the SFST was performed, Officer Morgan
saw signs of impairment on all three tests, and Manion was
offered the option of a preliminary alcohol screening.
HPD Officer Landon Miyamura (Officer Miyamura) arrived
at the scene of the collision at about 5:00 a.m. Officer
Miyamura offered Manion the preliminary alcohol screening.
Following the screening, Manion was arrested for OVUII and
transported to the main station, where Officer Miyamura
administered an Intoxilyzer test to Manion. The Intoxilyzer test
result indicated Manion's blood alcohol content. After
administering the test, Officer Miyamura showed Manion the
Intoxilyzer result and told him "this is your result[.]"
According to Officer Miyamura, Manion responded: "[T]hat's
impossible, I only had one 40 and two fireball shots in three
hours."
Manion filed a motion to suppress statements. At the
hearing on the motion to suppress, Officers Morgan and Miyamura,
3/
See Miranda v. Arizona, 384 U.S. 436 (1966).
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as relevant, testified to the above. In addition, Officer Morgan
testified that he believed he had probable cause to arrest Manion
for OVUII at the point when he (Officer Morgan) made observations
consistent with alcohol impairment, and before asking Manion if
he would participate in the SFST. Officer Morgan also stated
that Manion was not free to leave at this point. During closing
argument, the State asserted: "Now, at the point where [Officer
Morgan] when he's speaking with the defendant notices indicia of
alcohol consumption and he has observed that there is severe
front end damage to the vehicle, the State is willing to concede
that probable cause might have developed at that point. The
officer certainly believed that it had developed at that point."
The State then argued, among other things, that there was no
interrogation after that point, but did not argue that Manion was
not in custody.
After the hearing concluded, the District Court ruled
that Officer Morgan did not have probable cause to arrest Manion
during their initial exchange when Officer Morgan asked Manion if
he was okay and where he was coming from. This ruling was later
set forth in COL No. 7 of the Suppression Order, which states:
7. At the time Officer Morgan first approached
Defendant and asked him if he was okay and where he was
coming from, the officer knew only that Defendant had been
involved in an accident. During this initial, brief
conversation, Officer Morgan was trying to determine whether
Defendant needed medical attention. Officer Morgan did not
have probable cause to arrest Defendant for an offense;
Defendant was not the focus of any criminal investigation.
Therefore, Defendant was not in "custody," and his
statements – admitting to drinking a "40" at Sandy's and
then explaining that his texting, as opposed to drinking,
caused the accident – were not the product of custodial
interrogation.
On appeal, the State does not dispute this conclusion.
The District Court also ruled that Officer Morgan did
have probable cause to arrest Manion for OVUII after their
initial exchange, and before Morgan asked Manion to participate
in the SFST. The District Court's COLs that are challenged on
appeal state as follows:
8. Following the initial exchange with Defendant, at
this stage of the encounter, Officer Morgan now knew:
Defendant had hit a parked vehicle; Defendant had drank a
"40"; and Defendant was exhibiting red and watery eyes and
an odor of alcohol from his breath. Thus, not only did
Defendant become the focus of an OVUII investigation,
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Officer Morgan had sufficient probable cause to arrest
Defendant for OVUII. Defendant also was not free to leave
the scene. Accordingly, legal custody had attached.
. . . .
10. Focusing on Defendant's perception, without regard
to Officer Morgan's intent, at the point where Defendant had
already admitted to drinking a "40" and tried to explain how
his texting, as opposed to his drinking, caused the
accident, Officer Morgan should have known that all of his
subsequent questions were reasonably likely to elicit
incriminating responses. See [State v. ]Melemai, 64 Haw.
[479,] 482, 643 P.2d [541,] 544 [(1982)] (finding "custody
attached and Miranda warnings were required" after the
officer's first question (if he had hit anyone with his car)
and before the second (why he ran away)).
11. Asking Defendant if he would be willing to
participate in the SFST, after Defendant claimed his texting
caused the accident, was akin to saying, "I don't believe
you," which reasonably invites more incriminating statements
from Defendant. Asking Defendant the MRO questions –
requests for personal health information about medications
taken, whether he was under the care of a doctor or dentist
– was reasonably likely to elicit an incriminating response,
including admissions to having taken other substances. See
State v. Rippe, 119 Hawai#i 15, 23, 193 P.3d 1215, 1223
(App. 2008) ("interrogation" comprises "a request for
information").
12. The further Defendant progressed into the SFST,
the more coercive the atmosphere became, so that asking him
whether he understood the instructions and had no questions
for each of the three parts of the SFST compounded the
reasonable likelihood of more incriminating responses.
13. Defendant's responses were in fact incriminating.
Defendant's answers to the MRO questions and his "yes"
responses to understanding the SFST instructions gave
Officer Morgan information that the officer used (and the
State would argue the court use) to evaluate Defendant's
performance on the SFST and, in turn, level of impairment.
See Rippe, 119 [Hawai#i ]at 23, 193 P.3d at 1223.
14. These precise questions and responses were not at
issue in State v. Wyatt, 67 Haw. 293, 303, 687 P.2d 544, 551
(1984), in which the Hawai#i Supreme Court held that because
a field sobriety test seeks neither "communications" nor
"testimony," but rather "an exhibition of physical
characteristics of coordination," it does not violate the
constitutional prohibition against compulsory self-
incrimination. Again, pursuant to Kazanas, which was decided
after Wyatt, the questions Officer Morgan asked Defendant
(after Defendant was in legal custody and denied alcohol as
the cause of his car accident) were reasonably likely to
induce Defendant to "communicate" incriminating responses
and hence constituted "interrogation."
15. Because Officer Morgan did not advise Defendant of
his Miranda rights prior to asking him (1) to participate in
the SFST, (2) the MRO questions, and (3) whether he
understood the instructions for, and if he had any questions
about, the HGN, W&T, and OLS, Defendant's responses to these
questions are inadmissible at trial.
. . . .
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17. Officer Morgan would not have administered the
SFST without (1) asking for and obtaining Defendant's
agreement to participate in the SFST, (2) asking for and
obtaining Defendant's responses to the MRO questions, and
(3) asking for and obtaining Defendant's assurances that
Defendant understood the instructions to the HGN, W&T, and
OLS. Accordingly, inasmuch as Defendant's performance of
the SFST resulted from Officer Morgan illegally obtaining
Defendant's responses to the foregoing questions,
Defendant's performance on the SFST is inadmissible fruit of
the poisonous tree.
18. Finally, Officer Miyamura should have known that
showing Defendant the results of his breath test at the main
station constituted an accusation that was reasonably likely
to elicit an incriminating response. Accordingly,
Defendant's response – "that's impossible, I only had one
'40' and two fireball shots in three hours" – stems from
custodial interrogation and is inadmissible.
II. Discussion
The State contends that the District Court erred in
suppressing "Manion's agreement to take the SFST, Manion's
responses to the 'medical rule-out' questions, Manion's responses
to the SFST instructions, Manion's responses to why he had been
approached, Manion's performance on the SFST and any statements
[he] made after the SFST," on the ground that Miranda warnings
had not been read to Manion "immediately when he was stopped."4/
The State argues that Miranda warnings were not required because
Manion was not in custody or interrogated until after the SFST
was administered and he was arrested for OVUII.
Thus, we must examine whether Manion's statements after
he was asked to participate in the SFST stemmed from custodial
interrogation. See State v. Uchima, 147 Hawai#i 64, 84, 464 P.3d
852, 872 (2020) ("as a matter of state constitutional law,
statements stemming from custodial interrogation may not be used
by the State unless it 'first demonstrate[s] the use of
procedural safeguards effective to secure the privilege against
self-incrimination'" (quoting State v. Kazanas, 138 Hawai#i 23,
34, 375 P.3d 1261, 1272 (2016))). Custodial interrogation is
comprised of two components, "interrogation" and "custody."
4/
Contrary to the State's argument, the District Court did not
suppress Manion's various statements because Miranda warnings had not been
read to Manion "immediately when he was stopped." See supra COLs 7, 15. In
addition, the District Court did not suppress "Manion's responses to why he
had been approached." See supra COLs 8, 10 through 15, 17, and 18.
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Kazanas, 138 Hawai#i at 35, 375 P.3d at 1273. See Uchima, 147
Hawai#i at 84, 464 P.3d at 872 ("Our caselaw has stated that 'two
criteria are required before Miranda rights must be given: (1)
the defendant must be under interrogation; and (2) the defendant
must be in custody." (brackets omitted) (quoting State v. Kauhi,
86 Hawai#i 195, 204, 948 P.2d 1036, 1045 (1997))).
To determine whether an interrogation is custodial, the
totality of the circumstances analysis focuses on "the place and
time of the interrogation, the length of the interrogation, the
nature of the questions asked, the conduct of the police, and any
other relevant circumstances." State v. Ah Loo, 94 Hawai#i 207,
210, 10 P.3d 728, 731 (2000) (brackets omitted) (quoting State v.
Melemai, 64 Haw. 479, 481, 643 P.2d 541, 544 (1982)); see also
Kazanas, 138 Hawai#i at 35, 375 P.3d at 1273 (reiterating same).
In this regard, the supreme court has acknowledged that "'no
precise line can be drawn' between 'custodial interrogation,' on
the one hand, and 'permissible general on-the-scene questioning,'
on the other." Ah Loo, 94 Hawai#i at 210, 10 P.3d at 731
(brackets omitted) (quoting State v. Patterson, 59 Haw. 357, 362,
581 P.2d 752, 755-56 (1978)). The totality of the circumstances
test applies to custodial interrogation, "in the sense that the
defendant is deprived of his or her freedom of action in any
significant way." Kazanas, 138 Hawai#i at 35, 375 P.3d at 1273.
In contrast, "the touchstone in analyzing whether
'interrogation' has taken place is whether the police officer
'should have known that his or her words and actions were
reasonably likely to elicit an incriminating response from the
defendant.'" Id. at 38, 375 P.3d at 1276 (brackets omitted)
(quoting State v. Paahana, 66 Haw. 499, 503, 666 P.2d 592, 595-
596 (1983)); see Uchima, 147 Hawai#i at 84, 464 P.3d at 872
("[I]nterrogation encompasses not only express questioning, but
also any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating
response from the suspect." (quoting State v. Trinque, 140
Hawai#i 269, 277, 400 P.3d 470, 478 (2017))).
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In State v. Wyatt, 67 Haw. 293, 687 P.2d 544 (1984),
where the defendant was briefly detained and therefore seized,
but not in custody or coercively questioned, the supreme court
held that Miranda warnings were not required before she was asked
if she had been drinking. Id. at 297-301, 687 P.2d at 548-50.
The supreme court further concluded that the SFST that the
defendant performed was not constitutionally infirm because the
test sought only an exhibition of her physical characteristics of
coordination, rather than communications or testimony, even
though its purpose was to gather evidence of criminal conduct.
Id. at 302-03, 687 P.2d at 551. In State v. Kaleohano, 99
Hawai#i 370, 377, 56 P.3d 138, 145 (2002), the supreme court
noted that if probable cause to arrest or sustained and coercive
questioning were present, then questions posed by the police
could amount to custodial interrogation. Id. (quoting Ah Loo, 94
Hawai#i at 210, 10 P.3d at 731). The court concluded that
because there was no probable cause to arrest the defendant, and
in light of the fact that the officer did not subject the
defendant to sustained and coercive questioning, the officer was
not required to give the defendant a Miranda warning prior to
asking her if she had been drinking. Id. at 377-78, 56 P.3d at
145-46.
Here, in its closing remarks at the suppression
hearing, the State did not dispute – and indeed, stated it "was
willing to concede" – that Officer Morgan had probable cause to
arrest Manion for OVUII after their initial exchange and before
Officer Morgan asked Manion if he would participate in the SFST.
Relatedly, the State did not dispute that Manion was in custody
when Officer Morgan asked him whether he would participate in the
SFST. These issues are therefore waived on appeal. See, e.g.,
State v. Skapinok, No. CAAP-XX-XXXXXXX, 2020 WL 2991783, at *5
(Haw. App. June 4, 2020) (Mem. Op.) (concluding that where the
State conceded in the District Court that the defendant was in
custody prior to the suppressed statements, the issue was waived
on appeal), cert. granted, No. SCWC-XX-XXXXXXX, 2020 WL 5836356,
at *1 (Haw. Oct. 1, 2020); State v. Moses, 102 Hawai#i 449, 456,
77 P.3d 940, 947 (2003) (stating the general rule that if a party
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fails to raise an argument at trial, that argument will be deemed
to be waived on appeal); State v. Harada, 98 Hawai#i 18, 30, 41
P.3d 174, 186 (2002) (concluding that the prosecution failed to
properly preserve its exigent circumstances claim and thus waived
it); State v. Anger, 105 Hawai#i 423, 432–33, 98 P.3d 630, 639–40
(2004) (applying the doctrine of judicial estoppel in declining
to address an argument by the prosecution-appellee that was
inconsistent with the position the prosecution had taken in the
trial court); State v. Adler, 108 Hawai#i 169, 175, 118 P.3d 652,
658 (2005) (defendant judicially estopped from claiming on appeal
he possessed marijuana by prescription when he conceded in motion
to dismiss it cannot be prescribed).
Moreover, the record supports the District Court's
conclusions in COL No. 8. We recognize that red and glassy eyes
and "imperfect driving," standing alone, are insufficient to
establish probable cause to arrest a person for OVUII.
Kaleohano, 99 Hawai#i at 377-78, 56 P.3d at 145-46. Here,
however, the evidence showed that after Officer Morgan's initial
exchange with Manion, Officer Morgan knew that Manion: (1) had
hit a parked vehicle; (2) was exhibiting red and watery eyes and
an odor of alcohol; and (3) had said that he was coming from
Sandy's and had drunk a "40." On this record, we cannot conclude
that the District Court was wrong in ruling that Officer Morgan
had probable cause to arrest Manion for OVUII after their initial
exchange, as set forth in COL No. 8. Given the additional
testimony by Officer Morgan that Manion was not free to leave the
scene at that point, and based on the totality of the
circumstances, we also cannot conclude that the District Court
was wrong in ruling that legal custody had attached.
Because "[a]n individual in police custody may not be
subjected to interrogation without first being advised of his [or
her] Miranda rights[,]" the remaining issue is whether the
subsequent questions by police that resulted in the suppressed
statements and SFST performance constitute interrogation.
Melemai, 64 Haw. at 481, 643 P.2d at 543-44 (quoting Patterson,
59 Haw. at 358-59, 581 P.2d at 753); see Uchima, 147 Hawai#i at
84-85, 464 P.3d at 872-73. In Uchima, the supreme court rejected
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a similar claim that an officer's preliminary questions prior to
administering an FST constituted an interrogation requiring
Miranda warnings. 147 Hawai#i at 84-85, 464 P.3d at 872-73. The
court reasoned:
Here, [the officer who administered the FST] asked [the
defendant] whether he would participate in an FST, whether
he understood the instructions of the individual tests, and
whether he had any questions. These preliminary questions
were not reasonably likely to lead to incriminating
responses because neither an affirmative or negative
response to these questions is incriminating. Rather, the
questions allow the officer to determine whether [the
defendant] was willing to undergo the FST and whether he
understood the officer's instructions prior to performing
the three tests comprising the FST. Thus, these questions
were not of such nature that [the officer who administered
the FST] should have known that they were likely to elicit
an incriminating response.
Id. at 84, 464 P.3d at 872; see also Pennsylvania v. Muniz, 496
U.S. 582, 603-04 (1990) (rejecting the contention that Miranda
warnings are required prior to an inquiry as to whether a
defendant understood SFST instructions, because the "focused
inquiries were necessarily 'attendant to' the police procedure
held by the court to be legitimate.")
In Uchima, the supreme court also ruled that the
defendant's performance on the FST did not constitute an
interrogation requiring Miranda warnings. 147 Hawai#i at 84-85,
464 P.3d at 872-73. The court stated:
[The defendant's] performance on the FST does not
constitute incriminating statements. "[T]he privilege
[against self-incrimination] is a bar against compelling
'communications' or 'testimony[.]'" State v. Wyatt, 67 Haw.
293, 303, 687 P.2d 544, 551 (1984) (quoting Schmerber v.
California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 16 L.Ed.2d
908 (1966)). In Wyatt, this court held that when conducting
an FST the State does not seek "communications" or
"testimony," but rather, "an exhibition of 'physical
characteristics of coordination.'" Id. (quoting State v.
Arsenault, 115 N.H. 109, 336 A.2d 244, 247 (1975)). Here,
[the officer who administered the FST] did not seek
"communications" or "testimony" from [the defendant].
Rather, in conducting the FST, the officer sought "an
exhibition of 'physical characteristics of coordination.'"
Id. "Consequently, the field sobriety test was not rendered
infirm by the constitutionally guaranteed privilege against
compulsory self-incrimination." Id.
Id. at 84, 464 P.3d at 872-73 (footnote omitted).
The same analysis applies here. Asking Manion whether
he was willing to participate in the SFST, whether he understood
the instructions to the SFST, and whether he had any questions
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did not implicate his right to self-incrimination and did not
constitute interrogation, as these questions were not reasonably
likely to lead to incriminating responses. Similarly, Manion's
performance on the SFST did not constitute incriminating
statements in response to an interrogation requiring Miranda
warnings. Thus, we conclude that the District Court erred in COL
Nos. 10 through 15 and 17 by suppressing Manion's responses to
whether he would participate in the SFST, whether he understood
the instructions and had any questions regarding the SFST, and
the officer's observations of Manion's performance on the SFST.
Accordingly, COL Nos. 10 through 15 and 17 are wrong in relevant
part.
However, because Manion was in custody for OVUII before
the SFST was administered (see supra), the medical rule-out
questions constituted interrogation warranting Miranda warnings.
See State v. Sagapolutele-Silva, 147 Hawai#i 92, 101-03, 464 P.3d
880, 889-91 (App. 2020), cert. granted, SCWC-XX-XXXXXXX, 2020 WL
5544434, at *1 (Haw. Sept. 16, 2020). As stated above, "the
touchstone in analyzing whether interrogation has taken place is
whether the police officer should have known that his [or her]
words and actions were reasonably likely to elicit an
incriminating response from the defendant." Kazanas, 138 Hawai#i
at 38, 375 P.3d at 1276 (brackets omitted) (quoting Paahana, 66
Haw. at 503, 666 P.2d at 595-96) (internal quotation marks
omitted). Relying upon Rhode Island v. Innis, 446 U.S. 291
(1980), Kazanas reiterated that "interrogation consists of any
express question — or, absent an express question, any words or
conduct — that the officer knows or reasonably should know is
likely to elicit an incriminating response." Id. (quoting State
v. Ketchum, 97 Hawai#i 107, 121, 34 P.3d 1006, 1020 (2001))
(internal quotation marks omitted). An incriminating response is
any response, either inculpatory or exculpatory. Innis, 446 U.S.
at 301 n.5. In contrast, a physical inability to articulate
words in a clear manner due to lack of muscular coordination of
the tongue and mouth is not testimonial evidence for purposes of
self-incrimination. Muniz, 496 U.S. at 590-91.
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Here, during his testimony, Officer Morgan identified
the medical rule-out questions that he posed to Manion, and the
District Court summarized those questions in Finding of Fact
(FOF) No. 7.5/ Based on, among other things, our analysis in
Sagapolutele-Silva, we conclude that the medical rule-out
questions posed to Manion were reasonably likely to elicit an
incriminating response and, therefore, constituted interrogation.
See 147 Hawai#i at 101-03, 464 P.3d at 889-91.
Manion was in custody when the medical rule-out
questions were asked. He had not been given Miranda warnings.
The medical rule-out questions constituted interrogation. Thus,
we conclude that Manion's responses to those questions should
have been suppressed and the District Court did not err to the
extent it so concluded in COL Nos. 10 through 15.
The State also challenges COL No. 18, in which the
District Court concluded that Manion's response to being shown
the results of his Intoxilyzer test at the main police station
stemmed from custodial interrogation and was inadmissible. The
State does not dispute that Manion had been arrested and was in
custody at that time. The State also does not dispute FOF No.
15, in which the District Court found:
At no point in time did either officer tell Defendant
he had the right to remain silent and anything he said could
be used against him. Defendant was never advised of any of
his Miranda rights.
Yet the State makes no argument that showing Manion the results
of his Intoxilyzer test in these circumstances did not constitute
custodial interrogation. We therefore deem the point of error
waived. See HRAP Rule 28(b)(7).
5/
FOF No. 7 states:
Prior to administering the SFST, Officer Morgan asked
Defendant questions referred to as the Medical Rule Out
("MRO") questions, including whether Defendant was taking
any medications or whether he was under the care of a doctor
or dentist. Officer Morgan asked the questions to rule out
causes, other than alcohol, that could affect Defendant's
performance on the SFST. Defendant answered "no" to the MRO
questions.
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III. Conclusion
For these reasons, we conclude that the District Court
erred in suppressing Manion's responses to whether he would
participate in the SFST, whether he understood the instructions
and had any questions regarding the SFST, and the officer's
observations of Manion's performance on the SFST. We conclude
that the District Court did not err in suppressing Manion's
responses to the medical rule-out questions and to being shown
the results of his Intoxilyzer test. Accordingly, the August 23,
2019 Findings of Fact, Conclusions of Law, and Order Granting in
Part and Denying in Part Defendant's Motion to Suppress
Statements is affirmed in part and vacated in part. The case is
remanded to the District Court for further proceedings.
DATED: Honolulu, Hawai#i, October 30, 2020.
On the briefs: /s/ Derrick H.M. Chan
Presiding Judge
Brian R. Vincent,
Deputy Prosecuting Attorney,
City & County of Honolulu, /s/ Keith K. Hiraoka
for Plaintiff-Appellant. Associate Judge
Alen M. Kaneshiro
for Defendant-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
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