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[T] State v. Clancey8/29/2003
* NOT FOR PUBLICATION *
SUMMARY DISPOSITION ORDER
Defendant-appellant Shannon M. Clancey appeals from the August 21, 2002 judgment of the district court of the first circuit, the Honorable Fa'auuga To'oto'o presiding, convicting Clancey of (1) driving under the influence of intoxicating liquor (DUI), in violation of Hawaii Revised Statutes (HRS) § 291-4(a)(1) (Supp. 2000), (2) making an unsafe lane change, in violation of HRS § 291C-49(1) (1993), and (3) violating the basic speed rule, in violation of HRS § 291C-101 (1993). On appeal, Clancey challenges only her DUI conviction, arguing that the district court erred by (1) denying her motion to dismiss because the arresting officer did not have reasonable suspicion to order her out of her vehicle, and (2) failing to obtain an on-the-record waiver of her right to testify, as required by Tachibana v. State, 79 Hawaii 226, 900 P.2d 1293 (1995). The State of Hawaii [hereinafter, "the prosecution"] concedes that the district court failed to engage in an on-the-record waiver of Clancey's right to testify, but contests that the arresting officer had reasonable suspicion to order Clancey out of her vehicle.
Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we hold that: (1) the district court did not err by denying Clancey's motion to dismiss, as Clancey's (a) going 75-85 miles per hour in a 45 mile per hour zone, (b) drifting into another lane on four occasions, (c) straddling two lanes of traffic, (d) almost hitting the median, (e) slurred speech, (f) bloodshot and glassy eyes, and (g) flushed face provided the arresting officer with specific articulable facts to support a reasonable suspicion that Clancey was driving under the influence of intoxicating liquor; and (2) the district court erred by failing to obtain an on-the-record waiver of Clancey's right to testify, as required by Tachibana. Therefore,
IT IS HEREBY ORDERED that the judgment from which the appeal is taken is vacated and this case remanded for a new trial.
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