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State v. Hearn1/23/2003
ORDER DISMISSING CERTIORARI PROCEEDINGS
By: Moon, C.J., Levinson, Nakayama, and Circuit Judge Graulty, assigned by reason of vacancy, JJ; and Acoba, J., dissenting
Upon further consideration of the records and files in this case and it appearing that the writ of certiorari herein was improvidently granted,
IT IS HEREBY ORDERED that this certiorari proceeding is dismissed.
DISSENTING OPINION OF ACOBA, J.
On June 5, 2002, the Intermediate Court of Appeals (ICA) affirmed, by summary disposition order, the October 24, 2000 judgment of the district court of the first circuit (the court) convicting and sentencing Petitioner/Defendant-Appellant Lawrence Paul Hearn (Petitioner) of driving under the influence of intoxicating liquor (DUI), Hawaii Revised Statutes (HRS) § 291-4(a)(1) (Supp. 2000). See State v. Hearn, No. 23924 (Haw. Ct. App. June 5, 2002) (SDO).
After Petitioner had rear-ended a vehicle, he was arrested by a police officer who testified that Petitioner had an odor of alcohol, swayed slightly and, in the opinion of the officer, failed the field sobriety tests (FSTs). At trial, Petitioner was precluded from using the 1984 National Highway Traffic Safety Administration (NHTSA) instruction manual entitled "Improved Sobriety Testing" to impeach the arresting officer as to his administration of the tests and to assess the reliability of the test results.
The ICA agreed with Petitioner that he should have been permitted to use the manual in an attempt to impeach the officer, because "the manual provided the proper techniques for administering [FSTs] . . . and the arresting officer was trained in administering the FSTs pursuant to NHTSA guidelines." SDO at 2. However, the ICA concluded "that there substantial
evidence in the record to support the district court's conclusion that [Petitioner] was driving [under the influence]." SDO at 2.
Petitioner filed his application for a writ of certiorari on July 5, 2002. In his application, Petitioner maintains that the ICA erred because (1) " he ICA applied a substantial evidence standard to a trial error of constitutional [instead of harmless error analysis] magnitude," and (2) "the ICA passed upon the credibility of the arresting officer in holding that the error [in prohibiting Petitioner from] impeach the arresting officer as to the FSTs had no effect on the officer's credibility" as to the officer's testimony of other DUI indicia.
As to his first point, Petitioner relies on State v. Balisbisana, 83 Hawaii 109, 924 P.2d 1215 (1996), in which this court held that " enial of a defendant's constitutionally protected opportunity to impeach a witness . . . is subject to harmless error analysis . . . [and w]hether such an error is harmless in a particular case depends upon a host of factors[.]" Id. at 117, 924 P.2d at 1223 (citations omitted).
As to his second point, Petitioner maintains that "it is totally speculative whether a successful impeachment of the arresting officer as to the FSTs would have caused the district court to discredit the officer's testimony as to his observations of [Petitioner] beyond the FSTs." (Emphasis omitted.)
A finding of DUI may be based on circumstantial evidence. See Spock v. Administrative Dir. of the Courts, 96 Hawaii 190, 193, 29 P.3d 380, 383 (2001) (holding that other evidence was sufficient to support finding that driver was driving under influence of intoxicating liquor, irrespective of admissibility of alcohol breath test results). The court relied on the FSTs to establish proof of the offense beyond a reasonable doubt, indicating that it took into consideration with oth
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