PATRICK M. McGRAIL, Petitioner-Appellant
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI'I, Respondent-Appellee
NOT FOR PUBLICATION IN WEST'S HAWAI`I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (Honolulu Division) (Case No. JR 1DAA-10-0003 (08-00558))
Jonathan Burge for Petitioner-Appellant.
Girard D. Lau Deputy Attorney General Department of the Attorney General for Respondent-Appellee.
NAKAMURA, CHIEF JUDGE, AND LEONARD AND REIFURTH, JJ.
NAKAMURA, CHIEF JUDGE.
Petitioner-Appellant Patrick McGrail (McGrail) appeals the administrative revocation of his driver's license after he was arrested for driving under the influence of an intoxicant (OVUII). A police officer, who reportedly observed McGrail driving unsafely and erratically, made a traffic stop of McGrail's car. A second officer, who had not observed McGrail's driving, later arrived at the scene, spoke to McGrail, and arrested McGrail for OVUII after witnessing McGrail perform field sobriety tests.
At McGrail's administrative revocation hearing, the hearing officer struck the report of the police officer who had made the traffic stop of McGrail's car (Stopping Officer) because the report was not a sworn statement. However, the hearing officer, over McGrail's objection, considered the Stopping Officer's unsworn statements that were included in a sworn report prepared by the police officer who arrested McGrail (Arresting Officer), in finding that the police had reasonable suspicion to stop McGrail's car. The Stopping Officer did not testify, at the revocation hearing.
The question presented in this appeal is whether the hearing officer could properly consider the unsworn statements of the Stopping Officer that were included in the sworn police report of the Arresting Officer in determining that the police had reasonable suspicion to stop McGrail's car. As explained below, in light of the importance placed by the Hawai'i Legislature on sworn statements to ensure reliability in the administrative revocation process, Hawaii Revised Statutes (HRS) Chapter 291E, Part III, we conclude that the answer to this question is no. Accordingly, we reverse the administrative revocation of McGrail's driver's license.
Honolulu Police Department (HPD) Officer Jasmine McGuire (Officer McGuire or Stopping Officer) conducted a traffic stop of McGrail car. Officer McGuire prepared a police report that described the observations that led to her stopping McGrail's car, as follows:
At about 2235 hours I was traveling east bound on Kalakaua ' Avenue in the mauka most lane when I observed a sedan in the same lane ahead of me with no tail lights. I observed that this vehicle appeared to be moving unsmooth and that this vehicle now about 15 feet in front of me then made a left turn onto Pau Street without signaling.
I then followed this vehicle onto Pau Street where I observed that the vehicle appeared to be making unsmooth movements while changing lanes into the [Koko Head] most lane mauka bound.
I then observed this vehicle strike the [Koko Head] most sidewalk or curb area with its front passenger side tire, no damages observed or reported. The vehicle then appeared to jerk suddenly away from the curb and turn left onto Ala Wai Boulevard where it headed directly for the mauka most lane and appeared to be heading straight for the retaining curb.
At about 10:40 p.m., HPD Officer Marc Cobb-Adams (Officer Cobb-Adams or Arresting Officer) responded to a call to assist Officer McGuire regarding her traffic stop and subsequently arrived at the scene. Officer McGuire informed Officer Cobb-Adams of the facts and circumstances regarding the traffic stop, which Officer Cobb-Adams documented in his police report as follows:
On 09-17-09 at about 2240 hours, Officer J. MCGUIRE informed me of the facts and circumstances of the stop. She related that she observed the driver traveling east bound on Kalakaua Ave[.] with out any headlights. She further related that the vehicle failed to signal as it made a left turn on to Pau St. She then related that she observed the vehicle strike the sidewalk or curb area with its front passenger side tire, but no damages observed or reported.
Officer Cobb-Adams spoke to McGrail and noticed that. McGrail's eyes were watery and glassy and that there was a strong odor of alcohol coming from his breath and body.
At Officer Cobb-Adams's request, McGrail agreed to participate in standard field sobriety tests. McGrail staggered as he exited his vehicle and performed poorly on the field sobriety tests. HPD Officer Michele Yoshiki (Officer Yoshiki), who had also responded to the scene, gave McGrail a preliminary alcohol screening test, which McGrail "failed."
Officer Cobb-Adams placed McGrail under arrest for OUVTI. Officer Cobb-Adams read and explained the "Use of Intoxicants While Operating a Vehicle Implied Consent for Testing" form and the "Notice of Administrative Revocation" form to McGrail. McGrail agreed to take a breath, test, which was performed by HPD Officer Miya Brouwer (Officer Brouwer). The test showed that McGrail had 0.259 grams of alcohol per 210 liters of breath. McGrail was served with the "Notice of Administrative Revocation."
As part of the administrative revocation process, the police reports prepared by Officer Cobb-Adams, Officer McGuire, and Officer Yoshii were submitted to the Administrative Director of the Courts, State of Hawai'i (Director). Officer Cobb-Adams and Officer Yoshiki each swore that the information contained in their respective police reports was true and correct. Officer McGuire did not swear that the information contained in her report was true and correct. Officer Brouwer, the Intoxilyzer operator who conduced McGrail's breath test, and Tracy J. Morita, the person responsible for maintaining the Intoxilyzer equipment used for McGrail's test, also submitted sworn statements to the Director.
The Director, through the Administrative Driver's License Revocation Office (ADLRO), conducted an administrative review of the issuance of the notice of administrative revocation. Based on the preponderance of the evidence considered, the Director determined that (1) McGrail's alcohol concentration was .08 or more; (2) there existed reasonable suspicion to stop McGrail's vehicle; (3) there existed probable cause to believe that McGrail operated the vehicle while under the influence of an intoxicant; (4) the evidence proved by the preponderance that McGrail operated the vehicle while under the influence of an intoxicant; and (5) McGrail was a highly intoxicated driver. The Director issued an administrative review decision which revoked McGrail's driver's license for six months.
McGrail requested a hearing on the administrative review decision. McGrail initially requested subpoenas for Officer Cobb-Adams, Officer McGuire, and Officer Brouwer, but the ADLRO only issued subpoenas for Officers Cobb-Adams and Brouwer. At the first hearing, McGrail waived the testimony of Officers Cobb-Adams and Brower. The ADLRO hearing officer then granted McGrail's renewed request to subpoena Officer McGuire and the hearing was continued to secure her presence. The hearing was continued twice more, once because McGrail failed to submit the documents necessary to subpoena Officer McGuire and the second time because Officer McGuire called in sick after being subpoenaed. McGrail did not subpoena Officer McGuire for the rescheduled hearing, and McGrail informed the hearing officer that he was not requesting a further continuance to secure Officer McGuire's presence.
At the rescheduled hearing, McGrail moved to strike Officer McGuire's unsworn police report. McGrail also moved to strike Officer McGuire's unsworn statements to Officer Cobb-Adams regarding Officer McGuire's basis for stopping McGrail's vehicle, which were included in Officer Cobb-Adams's sworn police report. The hearing officer took McGrail's motions under advisement. The hearing officer subsequently granted McGrail's motion to strike Officer McGuire's police report because it was an unsworn statement. The hearing officer, however, denied ...