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Voellmy v. Broderick6/28/1999
We hold that in the administrative driver's license revocation hearing (revocation hearing) held herein pursuant to Hawaii Revised Statutes (HRS) § 286-259 (Supp. 1998), the purported information in police dispatch tapes was not "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence," that is, evidence relevant to whether the stop and subsequent arrest of Petitioner-Appellant Mark W. Voellmy (Petitioner) for driving under the influence of intoxicating liquor (DUI) were valid.
We hold, further, that HRS § 286-255 (Supp. 1998) requires an arresting officer to indicate on the notice of administrative license revocation (the notice) that the notice shall serve as a temporary driver's permit, unless the arrestee falls within any of the disqualifying categories listed in that section. We conclude, however, that an arresting officer's error in failing to so mark the notice does not warrant a reversal of a license revocation in light of the policy objective of HRS chapter 286, Part XIV (1993 and Supp. 1998) to decrease death and injury caused by DUI incidents. The grant by the administrative director of the courts of a credit for driving privileges to reduce the period of license suspension is an appropriate remedy for a violation of HRS § 286-255. That being so in this case, we conclude the violation of Petitioner's right to a temporary driving permit was remedied by the credit therefor that was extended to him by Respondent-Appellee Michael F. Borderick, Administrative Director of the Courts, State of Hawaii (Director).
I.
The matters which follow are derived from the record on appeal. Honolulu Police Department (HPD) Officer Robert Steiner (Officer Steiner) testified that he observed a dark-colored Acura turn left onto Hamakua Road from Kailua Road at approximately 2:30 a.m. on July 12, 1998. As he followed the Acura, Officer Steiner saw it speed up and make a left turn into the parking lot on Hekili Street. When Officer Steiner drove into the parking lot, he observed a male, later identified as Petitioner, standing next to a parked car that resembled the Acura.
Officer Steiner exited his vehicle and asked Petitioner "why he was speeding." Petitioner apologized, and at Officer Steiner's request, produced his driver's license. At about the same time, Officer Steiner smelled the odor of an alcoholic beverage, which prompted him to administer a horizontal gaze nystagmus eye test to Petitioner.
After concluding that Petitioner had not passed the test, Officer Steiner informed Petitioner that he was legally drunk and should not drive. Officer Steiner testified that he did not arrest Petitioner at this time because he had lost sight of the Acura as it pulled into the parking lot and thus was not certain Petitioner was the driver of that vehicle.
After advising Petitioner to take a cab home if he was going to patronize a nearby bar, Officer Steiner drove across the street to write up "tags." Subsequently, he observed Petitioner in the Acura drive past a stop sign on Hekili Street, without stopping.
Officer Steiner immediately pursued and halted the vehicle. When he asked Petitioner to produce a driver's license, Officer Steiner again became aware of the odor of an alcoholic beverage. He noted, further, that Petitioner's speech was slurred, his eyes were red and his face was flushed. He then asked Petitioner to perform a field sobriety test in which Appellant was to walk a line placing the heel of one foot to the toe of his other foot. Petitioner failed to match heel to toe on four of his steps. Officer
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