APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT 'EWA DIVISION (CASE NO. 1DTA-14-00512)
On the briefs: Alen M. Kaneshiro for Defendant-Appellant
Sonja P. McCullen Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellee
NAKAMURA, CHIEF JUDGE, AND FUJISE AND LEONARD, JJ.
OPINION OF THE COURT
Plaintiff-Appellee State of Hawai'i (State) charged Defendant-Appellant Lester S. Tsujimura (Tsujimura) with operating a vehicle under the influence of an intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a) (1) and (a)(4) (Supp. 2015) Prior to trial, the State informed the District Court of the First Circuit (District Court) that it was only proceeding on the HRS § 291E-61(a)(1) portion of the charge. After a bench trial, the District Court found Tsujimura guilty of OVUII, in violation of HRS § 291E-61(a) (1). The District Court sentenced Tsujimura to a fine of $300, revoked his driver's license for one year, required him to obtain a substance abuse assessment and complete a fourteen-hour substance abuse rehabilitation program, and imposed various fees and assessments. The District Court entered its Judgment on October 21, 2014.
On appeal, Tsujimura contends: (1) the OVUII charge was deficient for failing to define the term "alcohol"; (2) the District Court erred in admitting Officer Thomas Billins' testimony regarding Tsujimura's performance on standardized field sobriety tests; (3) Officer Billins' testimony that Tsujimura did not say he would have difficulty exiting the car due to his prior leg injury constituted an impermissible comment on Tsujimura's assertion of his right to remain silent; (4) there was insufficient evidence that Tsujimura had consumed "alcohol" as defined by HRS § 291E-1 (2007) because the State did not prove that any alcohol he consumed was the product of distillation; and (5) there was insufficient evidence that Tsujimura was under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty. We affirm.
Officer Billins was on duty in a "blue-and-white" police vehicle when he observed Tsujimura driving on the Moanalua Freeway. Officer Billins was following Tsujimura's vehicle, a white SUV, which was in the right-most lane of the highway. Officer Billins observed Tsujimura's SUV enter the right shoulder of the highway, straddle the solid white line that divides the shoulder from the right lane so that the white line was in the middle of Tsujimura's SUV, then return to the right lane. Officer Billins saw Tsujimura's SUV engage in such action several times. Officer Billins activated his strobe lights and then used several types of sirens in an attempt to get Tsujimura to pull over. When Tsujimura did not respond to the strobe lights and sirens, Officer Billins used his PA system to verbally direct Tsujimura to pull over. Tsujimura eventually slowed down and stopped his vehicle on the right shoulder of the road.
Upon approaching and speaking with Tsujimura, Officer Billins observed that Tsujimura had "a very flush red facet, ]" his speech was slurred, he had red, watery eyes, and an odor of an alcoholic type beverage was being emitted from his breath and his vehicle. Officer Billins administered a series of field sobriety tests to Tsujimura. Prior to participating in the tests, Tsujimura informed Officer Billins that Tsujimura had an old injury to his left knee, "[s]omething about his ACL and it was a bad knee[, ]" and that he was taking medication for high blood pressure and diabetes. Officer Billins did not see Tsujimura "limping or anything like that" when Tsujimura exited his SUV.
While administering the horizontal gaze nystagmus test, Officer Billins noticed that Tsujimura swayed slightly from left to right. During the walk-and-turn test, Tsujimura twice failed to maintain the initial heel-to-toe stance; stepped off line five times; failed to walk in a heel-to-toe fashion on all steps; raised his arms contrary to Officer Billins' instructions; and in making his turn, stumbled backwards and had to raise his arms for balance. During the one-leg stand test, Tsujimura was unable to keep his foot six inches above the ground; he put his foot down on several occasions in the first ten seconds; he did not raise his foot off the ground in the last ten seconds; he did not follow Officer Billins' instruction to count after several prompts to begin counting; and "he was unable to maintain his hands down at his side."
We resolve Tsujimura's arguments on appeal as follows: