This decision is published in table format in the Hawai'i reporter
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT. (HONOLULU DIVISION). (CASE NO. 1DTA-12-07191).
Foley, Presiding J.,
Fujise and Leonard, JJ.
This instant appeal arises from the arrest and subsequent conviction of Defendant-Appellant Daniel Dolan (Dolan) for the offense of operating a vehicle under the influence of an intoxicant (OVUII) in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) and/or (a)(3), and (b)(1) (Supp. 2013). Dolan appeals from the District Court of the First Circuit, Honolulu Division's (district court) " Notice of Entry of Judgment and/or Order and Plea/Judgment" (Order Denying Dolan's Motion to Suppress) filed June 20, 2013 and " Notice of Entry of Judgment and/or Order and Plea/Judgment" (Judgment of Conviction and Sentence) filed July 9, 2013.
On appeal, Dolan asserts that the district court erred by denying his " motion to suppress all evidence obtained by police" (Motion to Suppress) because the police did not have a sufficient basis to order Dolan out of his vehicle to conduct a OVUII investigation.
On December 4, 2012, Dolan was charged in the district court with one count of OVUII for an incident that occurred on November 18, 2012. Dolan pled not guilty on December 19, 2012. Dolan filed a Motion to Suppress on April 30, 2013, arguing that Honolulu Police Department (HPD) officer Alan Ahn (Officer Ahn) illegally ordered Dolan out of his vehicle. Plaintiff-Appellee State of Hawai'i (State) did not file a memorandum in opposition to Dolan's Motion to Suppress, but opposed the motion at a hearing on June 20, 2013.
At the June 20, 2013 hearing, Officer Ahn testified that upon arrival at the scene of the November 18, 2012 incident, and before approaching Dolan, he spoke with HPD officer Christopher Chung (Officer Chung), who was already at the scene. Officer Ahn testified that Officer Chung instructed him to conduct a Standardized Field Sobriety Test (SFST) on Dolan after explaining that he had observed' Dolan " jump the curb and drive his car on the sidewalk" and perceived " signs of alcohol consumption indicia, odor of alcohol, slurred speech, [and a] red, flush face." Dolan's counsel objected on the basis of hearsay, and the district court overruled the objection under the " state of mind" exception. Officer Ahn further testified that it was a bright and sunny afternoon, and that prior to instructing Dolan to exit his vehicle for a SFST, he observed Dolan with a red and flushed face and sitting in the driver's seat of a car that was parked " a little askew" and probably with one wheel " up on the curb."
The State argued that the Motion to Suppress should be denied because
[f]or probable cause purposes, the knowledge of one officer is the knowledge of all officers when the officers are working together. . . . Officer Chung informed Officer Ahn of the reason for the stop and also the indicia of alcohol, specifically the odor of alcohol and the slurred speech. And so . . . there is reasonable suspicion for the stop. And there's also . . . enough evidence from that to order [Dolan] out of the vehicle to perform the . . . [SFST]. So based on the testimony of Officer Ahn, he's working together with Officer Chung; he received information from Officer Chung; that was the basis for ordering the [Dolan] out of the car.
In denying Dolan's Motion to Suppress, the district court stated:
even considering [Dolan's] argument that Officer Ahn cannot rely on what Officer Chung told him, I think what the Court thinks -- or finds, that what is significant, that upon Officer Ahn's arrival at the scene of Bishop and Queen that he noticed red and flush -- red and flushed face of [Dolan], albeit on a bright, sunny afternoon or day. But most significantly, even without talking to Officer Chung, Officer Ahn testified that he did see [Dolan's] car on the -- one wheel on the curb. Taking both of those facts together, ...