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State v. Kekuewa11/21/2005
By: Watanabe, Acting C.J., Lim and Fujise, JJ.
Kekoa K. Kekuewa (Defendant) appeals the June 30, 2004 judgment upon a bench trial in the District Court of the Third Circuit (district court) that convicted him of driving under the influence of alcohol (DUI).
Defendant contends (1) the district court failed to find a material element of the DUI offense beyond a reasonable doubt, and (2) the evidence adduced at trial was not sufficient to convict him of DUI. We disagree, and affirm.
I. Background
On October 2, 2003, at about 1:23 a.m., Hawaii County Police Department (HCPD) officer Tuckloy Aurello (Officer Aurello) saw Defendant speeding northbound on Route 11 in South Hilo. Officer Aurello clocked Defendant with a laser gun going sixty-one miles per hour in a thirty-five-miles-per-hour zone. Officer Aurello activated his blue lights and pursued. Defendant turned right onto Kamehameha Avenue, then right again into the old airport, where he stopped. Officer Aurello pulled up behind and approached Defendant's car. When Officer Aurello told Defendant why he was being stopped, Defendant said he did not realize he was going that fast. Defendant claimed his dashboard light was out, so he could not see the speedometer. On cross-examination, Officer Aurello acknowledged that, the speeding aside, Defendant did not commit any other driving peccadilloes.
As he was talking to Defendant, Officer Aurello noticed the odor of an alcoholic beverage. He also saw that Defendant's eyes were red and glassy. Officer Aurello ran a license and warrant check, which turned up an outstanding warrant for Defendant. Officer Aurello arrested Defendant and took him down to the police station.
At the station, Officer Aurello confirmed his initial observations of Defendant: "Strong odor of intoxicating liquor and red, glassy, watery eyes." Thus, Officer Aurello believed Defendant was under the influence of alcohol, so he asked Defendant to take the standardized field sobriety tests (FSTs). Defendant was reluctant at first, but ultimately agreed. During preliminary questioning, it was revealed that Defendant was wearing soft contact lenses and taking penicillin for a toothache. Officer Aurello administered the FSTs in a station hallway set up for that purpose, complete with a strip of masking tape on the floor. With HCPD officer Darrell A. Clinton (Officer Clinton) there to document the results, Officer Aurello conducted the horizontal gaze nystagmus (HGN), walk-and-turn, and one-leg-stand tests. The parties stipulated that Officer Aurello was qualified to administer those tests.
During the HGNtest, Defendant lacked smooth pursuit in both eyes. Defendant also exhibited nystagmus at maximum deviation in both eyes. Officer Aurello concluded that Defendant exhibited four of the six possible clues on the HGN test that indicate impairment. Hence, Officer Aurello opined that Defendant "showed impairment."
As for the walk-and-turn test, Officer Aurello remembered that Defendant broke his stance twice, mixed his feet up and appeared to sway slightly while he stood in the "instructional position" before the test (heel of his right foot touching the toe of his left foot on the line, with arms at his side). Defendant started the test prematurely and -- moving very slowly with his arms slightly raised -- took thirteen steps forward instead of nine, then performed an "improper" turn and counted twenty-three steps back instead of nine. In addition, Officer Clinton saw Defendant step off the line once, and raise his arms and momentarily stop walking both coming and going. Officer Clinton also detected "a bit of imbalance." Officer Aurello opined that,
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