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State v. Miura12/30/1986
[6 HawApp Page 501] In a case charging defendant Daniel T. Miura (Defendant) with the offense of driving under the influence of intoxicating liquor, plaintiff State of Hawaii (State) appeals from the district court's "Order Granting in Part Motion to Suppress Evidence." Defendant contends the order was not appealable under Hawaii Revised Statutes (HRS) § 641-13(7) (Supp. 1984) and this court lacks appellate jurisdiction. We agree and dismiss the appeal.
After a not guilty plea, Defendant filed a "Motion to Suppress Evidence of Driving Under Influence of Intoxicating Liquor." The motion sought to suppress "as evidence any and all statements, test results, declarations, documents or observations of defendant made as a result of an illegal search or seizure in violation of defendant's rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section Four and Section Eight of the Hawaii State Constitution[.]" (Emphasis added.)
At the commencement of the hearing on the motion, the State made an oral motion in limine "to have the court make a determination in respect to the qualification of Mr. Milton Chang," an operator/supervisor of breath testing instruments with the Honolulu Police Department. The State made an offer of proof "as to Mr. Chang's qualifications." No witness testified at the hearing. In its "Order Granting in Part Motion to Suppress Evidence" (Order), the district court concluded that since Mr. Chang had not been properly "recertified" pursuant to § 11-111-8 of Chapter 111 of Title 11 of the Hawaii Administrative Rules, he "cannot testify on the subject of the operation, care or maintenance of the intoxilyzer machine" and ordered the suppression of "the State's evidence as to Intoxilyzer Test results[.]"
We start with the precept that "the prosecutor has no right to appellate review in criminal cases absent clear statutory authority." State v. Johnson, 5 Haw. App. 357, 358, 692 P.2d 1171, 1172 (1984). See also State v. Bikle, 60 Haw. 576, 592 P.2d 832 (1979); State v. Johnson, 50 Haw. 525, 445 P.2d 36 (1968). HRS § 641-13 (1976 & 1984 Supp.) specifies the instances wherein the State may appeal in criminal cases. The State asserts the instant appeal is proper under HRS § 641-13(7) which authorizes an appeal " rom a pre-trial order granting a motion
for the suppression of evidence[.]" In our view, however, the Order appealed from is really an order denying the State's oral motion in limine rather than an order granting Defendant's motion to suppress.
The State relies on the literal wording of the Order which states that "Defendant's Motion to Suppress Evidence is granted in part," and contends its appeal falls within the scope of HRS § 641-13(7). We construe the State's justification of the Order to be that (1) its motion in limine directed to Mr. Chang's qualifications to testify regarding the intoxilyzer was necessitated by Defendant's motion which was partially to suppress the intoxilyzer test results and (2) therefore the motion in limine was part and parcel of Defendant's motion to suppress. The record, however, does not support the State's contention and purported justification.
Defendant's motion unequivocally alleged that the evidence sought to be suppressed, including the "test results," were obtained "as a result of an illegal search
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