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State v. Kekahuna6/25/2001
ortunity to observe people who had been drinking and at different levels[.]" And, as noted, the record reflects that the trial court both assured Toyomura that he was considering Officer Fujihara's testimony "only from a lay point of view" and that the trial court applied its independent assessment of the evidence in finding Toyomura guilty of DUI. . . .
Examined in the light of the entire proceedings and given the effect that the whole record shows it to be entitled, we are convinced that there is no reasonable possibility that any improper lay opinion testimony on the part of Officer Fujihara contributed to Toyomura's DUI conviction. Accordingly, we hold that any error in the admission of that testimony was harmless. State v. Toyomura, 80 Hawaii 8, 26-27, 904 P.2d 893, 911-12 (1995) (citations omitted, emphasis in the original, footnotes added).
DISCUSSION
In Toyomura, the Hawaii Supreme Court noted (a) the lack of "any authoritatively established relationship between the manner of performance of these procedures and a person's degree of intoxication," and (b) that "the trial court both assured Toyomura that was considering [the police officer's] testimony 'only from a lay point of view' and that the trial court applied its independent assessment of the evidence in finding Toyomura guilty of DUI." The Hawaii Supreme Court concluded that a police officer, based on his/her "lay" observations, can have a "lay" opinion that an arrestee is not sober, and that a police officer cannot base his/her "lay" opinion that an arrestee is not sober on his/her "assessment of the results of the FSTs."
We distinguish the phrase "the manner of performance of these procedures" from the phrase "the results of the FSTs."
We interpret the phrase "the manner of performance of these procedures" as referring to the physical actions or inactions of the person tested while taking the FSTs. We interpret the phrase "the results of the FSTs" as referring to the "pass/fail" results.
As noted in Toyomura, a sufficient foundation must be laid to permit the police officer who administered the FSTs to use his/her "assessment of the results of the FSTs" to render an opinion as to whether the arrestee was intoxicated. In Kekahuna's case, we conclude that the evidence qualified Officer Axt to testify as to the "pass/fail" results of the FSTs he had administered.
We note that Officer Axt testified that the pass/fail result of the HGN test is not accurate twenty-three percent of the time, the pass/fail result of the one-leg stand test is not accurate thirty-four percent of the time, and the pass/fail result of the walk-and-turn test is not accurate thirty-two percent of the time. Officer Axt further testified, in relevant part, as follows:
[DEFENSE COUNSEL]: The less clues appear on the test, isn't it true that that means it's less likely that he's in fact intoxicated or impaired. Less clues, less likelihood----
[OFFICER AXT]: Through my experience, I would say no.
Q: Okay. Are you saying no because there's other variables?
A: Because they're have been times where people do extremely well on the field sobriety test, but have a blood alcohol level which is well above .20.
A: There are other people who do terrible on the test, where their alcohol level is low.
[DEFENSE COUNSEL]: So . . . it could depend on the individual, right?
A: That is correct.
This testimony by Officer Axt establishes that the pass/fail results of the FSTs are not, by themselves, substantial evidence that beyond a reasonable doubt the person tested was "under the influence
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