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State v. Campbell9/10/2002
SUMMARY DISPOSITION ORDER
Plaintiff-appellant State of Hawaii [hereinafter, the prosecution] appeals from an order by the Circuit Court of the First Circuit, the Honorable Reynaldo Graulty, presiding, suppressing evidence of defendant-appellee Jason J. Campbell's breath alcohol test result. On appeal, the prosecution argues that the circuit court erred in suppressing evidence of Campbell's breath alcohol concentration test because he was fully apprised of the applicable sanctions under the administrative license revocation scheme. The defense responds, inter alia, that the warnings contained in Form 396B were inadequate because they failed to inform Campbell: (1) that he could be charged with habitually driving under the influence of intoxicating liquor; and (2) of the definition of "prior alcohol enforcement contacts."
Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the issues raised and the arguments presented, we hold that neither Hawaii Revised Statutes §§ 286-151 nor 286-255 (Supp. 2000) require that drivers be warned that they may be charged with habitually driving under the influence of intoxicating liquor or drugs pursuant to HRS § 291-4.4 (Supp. 2000). However, inasmuch as: (1) the circuit court's findings of fact indicate that its ruling was also based upon the defense's argument that Campbell was not informed of the definition of "prior alcohol enforcement contacts"; and (2) the prosecution failed to address this argument, raised by the defense below and again in its answering brief, we hold that the prosecution has waived any challenge to this basis for the circuit court's ruling, see Hawaii Rules of Appellate Procedure Rule 28(b)(7) (2000), and, therefore, has failed to sustain its burden of demonstrating error in the record. See State v. Hoang, 93 Hawaii 333, 336, 3 P.3d 499, 502 (2000). Accordingly,
IT IS HEREBY ORDERED that the November 13, 2001 "Findings of Fact, Conclusions of Law, and Order Granting Defendant Jason J. Campbell's Motion to Preclude Evidence of Result of Alcohol Concentration Test" is affirmed.
Page 1 Hawaii DUI Attorneys
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