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State v. Kekahuna6/25/2001
Defendant-Appellant Keliimana Kekahuna (Kekahuna) appeals from the district court's April 7, 2000 judgment pertaining to his driving of an automobile on November 17, 1999. Kekahuna was charged with the following offenses:
(A) Driving Under the Influence of Intoxicating Liquor (DUI), Hawaii Revised Statutes (HRS) § 291-4(a)(1) (Supp. 1999).
(B) Unsafe Changing of Lanes, HRS § 291C-49 (1993).
(C) Defective Tail Light, HRS § 291-31 (1993).
After a trial on April 7, 2000, Kekahuna was found guilty of (A) and (C) and not guilty of (B) . As to item (A), he was sentenced to a suspension of his driver's license for 90 days, an alcohol assessment and any recommended treatment, a $250 fine, $107 driver education assessment, and a $25 criminal injury compensation fee. As to item (C), he was sentenced to pay a fine of $15. The district court denied the request to enter a stay pending appeal.
The district court's April 7, 2000 dispositional calendar has erroneously transposed the court's actions as to items (B) and (C). We vacate those actions and remand for corrective action.
Kekahuna challenges the district court's April 7, 2000 judgment only as to item (A). We affirm.
RELEVANT STATUTE
HRS § 291-4(a)(1) (Supp. 1999) prohibits the operation of a vehicle by a person who is "under the influence of intoxicating liquor in an amount sufficient to impair the person's normal mental faculties or ability to care for oneself and guard against casualty[.]"
POINT ON APPEAL
Kekahuna states his point on appeal as follows: "The court erred in admitting [Officer] Axt's opinion testimony as to Kekahuna's performance on the FST [(field sobriety tests)] where [Plaintiff-Appellee State of Hawaii] failed to lay a proper foundation in accordance with State v. Toyomura."
BACKGROUND
Traveling eastbound on the H-1 freeway on Wednesday, November 17, 1999, Honolulu Police Department (HPD) Police Officer William Axt (Officer Axt) observed that the car ahead of him (a) changed lanes without using a turn signal, (b) had a driver's side tail light that was out, and (c) wove and in and out of a one traffic lane. Officer Axt caused the driver of the car to pull over and stop. Kekahuna was the driver. Officer Axt observed that Kekahuna's eyes were red and bloodshot and he smelled the odor of an alcoholic beverage on Kekahuna's breath. Kekahuna told Officer Axt that he was taking the pain killer "Motrin" for an eye infection. Officer Axt asked Kekahuna to step out of the car to participate in FSTs. Officer Axt testified that Kekahuna (1) failed the Horizontal Gaze Nystagmus (HGN) test when he exhibited three out of the three clues possible for each eye: a lack of smooth pursuit, distinct nystagmus, and nystagmus prior to 45 degrees; (2) failed the walk-and-turn test when he exhibited the following four out of the eight clues: unable to maintain his balance during the instructional phase, began the test before being instructed to, raised his arms while walking, and did not make the turn as instructed; and (3) failed the one-leg-stand test when he exhibited the following two out of the four clues: raised his arms and put his foot down. Based on Kekahuna's driving performance and performance of the FSTs, Officer Axt opined that Kekahuna was impaired to the point where he could not operate a motor vehicle safely.
Officer Axt testified that he had been with the police department " ust shy of ten years" and had made " lose to 300" stops, 175 of which had led to arrests. He further testified that while he was at the Honolulu Police Academy in Waipahu, he was taught how to conduct the t
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