NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JAN-2021
07:50 AM
Dkt. 36 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
BRENT K. SYLVESTER, Respondent-Petitioner-Appellant,
v.
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI#I,
Respondent-Appellee
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DAA-16-00003)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Respondent-Petitioner-Appellant Brent K. Sylvester
(Sylvester) appeals from the "Decision and Order Affirming
Administrative Revocation and Denying Motion to Reverse for
Violation of Due Process" (Decision & Order) entered by the
District Court of the First Circuit, Honolulu Division,1 on
December 5, 2016, and the "Judgment on Appeal" (Judgment) entered
on December 6, 2016. For the reasons explained below, we affirm
the Decision & Order and the Judgment.
BACKGROUND
At about 2:00 a.m. on April 3, 2016, three people were
traveling on the H-1 freeway in a Nissan when their car was rear-
1
The Honorable Lono J. Lee presided.
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ended by a Toyota. The Toyota did not stop. The people in the
Nissan followed the Toyota. One of them called 911 and gave the
police dispatcher the Toyota's license plate number. The people
in the Nissan followed the Toyota to a residence in Kailua. They
confronted the driver, Sylvester, when he got out of the Toyota.
They thought Sylvester was intoxicated because he had a hard time
getting out of the Toyota, and because of the way he spoke, the
way he smelled, and the way he walked. Sylvester denied knowing
anything about the incident, and entered the residence. Honolulu
Police Department (HPD) officers arrived at the scene. The
people who were in the Nissan submitted written statements on
HPD-252 forms.
HPD Sergeant Ralstan Tanaka prepared a sworn statement.
When he arrived at Sylvester's residence he saw a Toyota with
minor damage to the front bumper and grill, and a Nissan with
major rear-end damage. The people who were in the Nissan
identified Sylvester as the driver of the Toyota that rear-ended
their Nissan. Sergeant Tanaka instructed HPD Corporal Francis
Yanagi to initiate an investigation for operating a vehicle under
the influence of an intoxicant (OVUII).
According to Corporal Yanagi's sworn statement,
Sylvester answered a knock on his door. Sylvester "blurted out
that he just had a 'few' when he got home[.]" Corporal Yanagi
reported detecting the odor of alcohol on Sylvester's breath.
Corporal Yanagi offered Sylvester the opportunity to take the
standardized field sobriety test. Sylvester declined. Sylvester
also declined to take a preliminary alcohol screening. Corporal
Yanagi placed Sylvester under arrest for OVUII. Sylvester was
transported to the Kailua police station, where he refused to
take a breath or blood test. He was then issued a "Notice of
Administrative Revocation" of his driver's license.
On April 7, 2016, the Administrative Driver's License
Revocation Office (ADLRO) sustained the administrative revocation
of Sylvester's license. Sylvester requested a hearing. An
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administrative hearing was conducted. On September 19, 2016, the
Administrative Director of the Courts (Director) sustained the
ADLRO decision sustaining the administrative revocation of
Sylvester's license. Sylvester's license was revoked until
July 20, 2018.
On September 22, 2016, Sylvester filed a "Petition for
Judicial Review[.]" On November 28, 2016, Sylvester filed a
"Motion to Reverse License Revocation for Violation of Due
Process[.]" The district court held a hearing on December 2,
2016. The Decision & Order was entered on December 5, 2016; it
included a denial of Sylvester's due process motion. The
Judgment was entered on December 6, 2016. This appeal followed.
JURISDICTION
Although neither party raises the issue of mootness,
"mootness is an issue of subject matter jurisdiction." Hamilton
ex rel. Lethem v. Lethem, 119 Hawai#i 1, 4, 193 P.3d 839, 842
(2008). Every court must determine "as a threshold matter
whether it has jurisdiction to decide the issue presented." Pele
Def. Fund v. Puna Geothermal Venture, 77 Hawai#i 64, 67, 881 P.2d
1210, 1213 (1994) (citation omitted).
Under the mootness doctrine:
the suit must remain alive throughout the course of
litigation to the moment of final appellate disposition.
. . . The doctrine seems appropriate where events subsequent
to the judgment of the trial court have so affected the
relations between the parties that the two conditions for
justiciability relevant on appeal — adverse interest and
effective remedy — have been compromised.
Hamilton, 119 Hawai#i at 5, 193 P.3d at 843 (citations omitted).
It would appear that Sylvester's appeal is moot because his
license revocation ended on July 20, 2018, more than two years
ago. There is, however, an exception to the mootness doctrine
for cases that are "capable of repetition, yet evading review[.]"
See id. (citation omitted).
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The phrase, "capable of repetition, yet evading review,"
means that "a court will not dismiss a case on the grounds
of mootness where a challenged governmental action would
evade full review because the passage of time would prevent
any single plaintiff from remaining subject to the
restriction complained of for the period necessary to
complete the lawsuit."
Id. (citation omitted). We hold that the exception applies here,
and we have jurisdiction to decide Sylvester's appeal. See
Slupecki v. Admin. Dir. of the Courts, 110 Hawai#i 407, 409 n.4,
133 P.3d 1199, 1201 n.4 (2006).
STANDARD OF REVIEW
Our review of the district court's Decision & Order is
a secondary appeal; we must determine whether the district court
was right or wrong in its review of the Director's decision.
Wolcott v. Admin. Dir. of the Courts, ___ Hawai#i ___, ___, ___
P.3d ___, ___, No. SCWC-XX-XXXXXXX, 2020 WL 7487845, at *5
(Dec. 21, 2020) (SDO).
DISCUSSION
Sylvester contends that the district court erred by:
(1) relying upon unsworn HPD-252 statements to establish probable
cause for his arrest; and (2) violating his right to due process.
1. The district court did not err by
relying upon unsworn statements of
civilians to sustain probable cause.
The district court's review of the Director's adminis-
trative decision is limited to the record of the administrative
hearing; the district court must decide whether the Director:
(1) Exceeded constitutional or statutory authority;
(2) Erroneously interpreted the law;
(3) Acted in an arbitrary or capricious manner;
(4) Committed an abuse of discretion; or
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(5) Made a determination that was unsupported by the
evidence in the record.
McGrail v. Admin. Dir. of the Courts, 130 Hawai#i 74, 78, 305
P.3d 490, 494 (App. 2013) (citing Hawaii Revised Statutes (HRS)
§ 291E–40(c) (2007)).
HRS § 291E–38 (Supp. 2015) provides, in relevant part,
that upon conducting the administrative hearing:
(e) The [D]irector shall affirm the administrative
revocation only if the [D]irector determines that:
(1) There existed reasonable suspicion to stop the
vehicle . . .;
(2) There existed probable cause to believe that the
respondent operated the vehicle while under the
influence of an intoxicant; and
(3) The evidence proves by a preponderance that:
(A) The respondent operated the vehicle while
under the influence of an intoxicant[.]
. . . .
(g) The sworn statements provided in section 291E-36
shall be admitted into evidence. The [D]irector shall
consider the sworn statements in the absence of the law
enforcement officer or other person.
(Underscoring added.)
HRS § 291E–36 (2007) provides, in relevant part:
(b) Whenever a respondent has been arrested for
[OVUII] and refuses to submit to a test to determine alcohol
concentration . . . the following shall be forwarded
immediately to the [D]irector:
(1) A copy of the arrest report and the sworn
statement of the arresting law enforcement
officer, stating facts that establish that:
. . . .
(B) There was probable cause to believe that
the respondent had been operating the
vehicle while under the influence of an
intoxicant[.]
(Underscoring added.)
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During Sylvester's administrative hearing the hearings
officer considered the HPD-252 statements, written by the three
occupants of the Nissan, that identified Sylvester as the driver
of the Toyota that hit their Nissan. Citing McGrail, Sylvester
argues that was error because the witnesses did not swear to
their statements.
In McGrail, the police officer who stopped McGrail
(Stopping Officer) did not submit a sworn statement attesting to
her basis for the stop, nor did she testify at the ADLRO hearing.
The Stopping Officer's unsworn statement was included in the
sworn statement of the officer who arrested McGrail (Arresting
Officer). McGrail moved to strike, among other things, the
Stopping Officer's unsworn statements included in the Arresting
Officer's sworn statement. The hearings officer denied that
portion of McGrail's motion and sustained the revocation of his
license. McGrail filed a petition for judicial review. The
district court affirmed. McGrail appealed. We noted that "[i]n
enacting the statutory scheme, the Legislature chose to require
the submission of sworn statements by key police and government
officers as a means of ensuring the reliability of the revocation
process." McGrail, 130 Hawai#i at 80, 305 P.3d at 496
(underscoring added). We held that the Director erred by
considering the unsworn statements of the Stopping Officer, even
though they were contained in the sworn statement of the
Arresting Officer, and reversed the district court's judgment.
However, in McGrail we also noted that "hearsay is
generally admissible at administrative hearings[,]" id. at 79,
305 P.3d at 495 (citing Price v. Zoning Bd. of Appeals, 77
Hawai#i 168, 176 & n.8, 883 P.2d 629, 637 & n.8 (1994)), and
stated the caveat that "our decision does not depend on whether
hearsay is admissible in administrative proceedings[,]" id. at
82, 305 P.3d at 498. We noted that "[t]he ability of police
officers to rely on hearsay information in determining reasonable
suspicion also does not detract from our analysis. The focus of
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the reasonable suspicion determination is still on what the
officer who effected the traffic stop knew and believed at the
time of the stop." Id. (cleaned up). In this case, the
occupants of the Nissan who identified Sylvester as the driver of
the Toyota that hit them were not law enforcement officers. The
Director did not err in considering their unsworn statements to
determine whether Corporal Yanagi had probable cause to arrest
Sylvester for OVUII. Because the Director did not err, the
district court was right to affirm the Director's decision.
Sylvester also argues that the reference in HRS § 291E-
38(g) to the Director issuing a subpoena for "a law enforcement
officer or other person who made a sworn statement" requires
sworn statements from civilian witnesses (underscoring added).
We disagree. In context, the phrase "other person who made a
sworn statement" refers to "the person responsible for the
maintenance of the testing equipment" and "the person who
conducted the test" mentioned in HRS § 291E-36(a)(2)&(3) (2007).
No such persons were involved in Sylvester's case because
Sylvester refused to take breath or blood tests to determine
alcohol concentration.
Because of our disposition of Sylvester's first point
of error we need not address the Director's argument that the
HPD-252 forms, each of which was signed by the writer and stated:
"I attest that this statement is true and correct to the best of
my knowledge, and that I gave this statement freely and
voluntarily without coercion or promise of reward," were sworn
statements.
2. Sylvester was not deprived of due process.
Sylvester contends that he was deprived of due process
because the district court failed to schedule a hearing on his
petition for judicial review "as quickly as practicable" as
required by HRS § 291E-40 and Rule 72 of the District Court Rules
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of Civil Procedure (DCRCP). The statute provides, in relevant
part:
(a) If the [D]irector sustains the administrative
revocation after an administrative hearing, the respondent
. . . may file a petition for judicial review . . . . The
filing of the petition shall not operate as a stay of the
administrative revocation, nor shall the court stay the
administrative revocation pending the outcome of the
judicial review. . . .
(b) The court shall schedule the judicial review as
quickly as practicable[.]
HRS § 291E-40 (2007). DCRCP Rule 72 provides, in relevant part:
(h) Hearing. The district court shall schedule the
hearing on the petition [for judicial review] as quickly as
practicable[.]
Sylvester filed his petition for judicial review on
September 22, 2016. The petition designated the entire ADLRO
record as the record on appeal, as well as transcripts of the
May 13, 2016 and September 14, 2016 administrative hearings.
ADLRO had 15 days (until October 7, 2016) to file the record on
appeal under DCRCP Rule 72(d)(1).
On September 30, 2016, the Director requested, and was
granted, a 2-week extension of time to file the record on appeal
(until October 21, 2016) because "the transcriber requires more
time to complete the transcript." An extension of time is
permitted under DCRCP Rule 72(d)(1), which provides that the
record and transcripts must be filed "within 15 days of the date
of the order [ordering transmission of the record] or within such
further time as may be allowed by the court." (Underscoring
added.) The record and transcripts were filed on October 18,
2016, 11 days after they were originally due.
On October 18, 2016 (the same day the record on appeal
was filed), the district court issued a notice that Sylvester's
petition would be heard on November 18, 2016, and set a deadline
to file briefs. The 31-day period between the filing of the
record on appeal and the hearing was reasonable, considering the
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parties needed time to brief the appeal after receiving the
record and transcripts.
On November 16, 2016, the district court continued the
hearing date 14 days, to December 2, 2016. The record does not
indicate the reason for the continuance. The extension and
continuance totaled 25 days, with no indication in the record
that the extension or the continuance was necessitated because of
an act or omission of the Director, and no indication that the
continuance was sought by the Director. We reject Sylvester's
contention that he was deprived of due process because the
hearing on his petition for judicial review was not scheduled "as
quickly as practicable[.]"
CONCLUSION
For the foregoing reasons, the Decision & Order and the
Judgment entered by the district court are affirmed.
DATED: Honolulu, Hawai#i, January 29, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Alen M. Kaneshiro, Chief Judge
for Respondent-
Petitioner-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Ewan C. Rayner,
Deputy Solicitor General, /s/ Karen T. Nakasone
for Respondent-Appellee. Associate Judge
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