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State v. Kekahuna6/25/2001
hree FSTs, that his training was National Highway Traffic Safety Administration (NHTSA) certified,and that he "was re-certified in 1997 of July, and that class consisted of twenty-four hours, twenty hours of classroom, and four hours of practical training."
Kekahuna testified that he had worked a nine-hour shift as a bus driver taking tourists from Waikiki to the airport. At about 3:00 or 4:00 p.m., he went to a friend's house to "talk story." At about 5:00 to 6:00 p.m., he went to another friend's house and drank three beers. He returned to his home in Ewa Beach at about 7:30 p.m. and ate dinner. He arrived at Stuart Anderson's in Waimalu at 9:30 p.m. and, while there, drank one beer. He was taking his cousin to his cousin's house in Kalihi when he was stopped by Officer Axt.
RELEVANT PRECEDENT
" ield sobriety tests are designed and administered to avoid the shortcomings of casual observation." "They are premised upon the relationship between intoxication and the externally manifested loss of coordination it causes." They essentially require a suspected driver to go through prescribed routines so his physical characteristics may be observed by the police. State v. Wyatt, 67 Haw. 293, 302, 687 P.2d 544, 551 (1984) (citations omitted).
When the issue is probable cause of intoxication, this court has concluded that
efore HGN test results can be admitted into evidence in a particular case, however, it must be shown that (1) the officer administering the test was duly qualified to conduct the test and grade the test results; and (2) the test was performed properly in the instant case.
. . . t is not clear what HPD's "standard training" consists of and whether HPD's standard training program meets the requirements of the NHTSA. Therefore, we have no way of knowing the extent and nature of [the officer's] HGN training, whether [the officer's] training was supervised by certified instructors, whether [the officer] was certified to administer the test, and whether [the officer] received periodic retraining to refresh himself on his HGN test administration skills. State v. Ito, 90 Hawaii 225, 244, 978 P.2d 191, 210 (App. 1999) (footnote and citations omitted).
When the issue is proof of intoxication beyond a reasonable doubt, the Hawaii Supreme Court has concluded that
Toyomura is also correct in observing that insufficient foundation was laid to permit Officer Fujihara, based on Toyomura's performance of the FSTs, to render a lay opinion as to whether he was intoxicated, inasmuch as the prosecution elicited no testimony establishing that (1) the horizontal gaze nystagmus, "one-leg stand," and "walk-and-turn" procedures were elements of the HPD's official FST protocol, (2) there was any authoritatively established relationship between the manner of performance of these procedures and a person's degree of intoxication, and (3) Officer Fujihara had received any specific training in the administration of the procedures and the "grading" of their results. Therefore, Toyomura is correct that Officer Fujihara was improperly permitted to render an opinion that he (i.e., Toyomura) was intoxicated based in part on Officer Fujihara's assessment of the results of the FSTs. .
Toyomura is simply wrong, however, in concluding that "the rule in Nishi was violated in this case" in such a manner as to require that his DUI conviction be vacated. As the trial court correctly noted, "any . . . lay person," including a police officer, "can have an opinion regarding sobriety." As set forth above, Officer Fujihara expressly testified that, over the course of his approximately nineteen years as a police officer, he "had an opp
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