TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0001151; CASE
M. Kaneshiro for Petitioner/Defendant-Appellant.
M. Kaneshiro Sonja P. McCullen for
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
Ryan Nakamitsu (Nakamitsu) was convicted of one count of
Operating a Vehicle Under the Influence of an Intoxicant
(OVUII) in violation of Hawai'i Revised Statutes (HRS)
§ 291E-61(a)(1) and/or §
291E-61(a)(3). The Intermediate Court of Appeals (ICA)
vacated the conviction for OVUII based on HRS §
291E-61(a)(1), reversed the conviction for OVUII based on HRS
§ 291E-61(a)(3), and remanded for proceedings consistent
with its opinion.
essence, Petitioner Nakamitsu argues that his conviction
under HRS § 291E-61(a)(1) should be reversed rather than
vacated and remanded for a new trial. Four principal issues
are presented on certiorari. The first three issues are
raised by Nakamitsu: (1) whether the ICA gravely erred in
holding that the charge was not fatally defective for failing
to include the statutory definition of the term
"alcohol"; (2) whether the ICA gravely erred in
holding that the district court did not err in denying
Nakamitsu's motion to strike Officer Desiderio's
testimony; and (3) whether the ICA gravely erred in holding
that there was substantial evidence to support
Nakamitsu's conviction under HRS § 291E-61(a)(1). We
consider sua sponte a fourth issue, whether the district
court's admonishment of Nakamitsu for his decision to
pursue trial violated his constitutional rights to due
process and against self-incrimination.
that the ICA did not err concerning the first and third
issues. We find it unnecessary to consider the second issue
as to whether the ICA erred in affirming the district
court's denial of Nakamitsu's motion to strike
Officer Desiderio's testimony. On the fourth issue, we
find that the district court's admonishment of Nakamitsu
may have violated his constitutional rights to due process
and against self-incrimination. We affirm the judgment of the
ICA vacating the conviction for OVUII in violation of HRS
§ 291E-61(a)(1), reversing the conviction for OVUII in
violation of HRS § 291E-61(a)(3), and remanding for a
District Court Proceedings
is an engineer at Pearl Harbor. In June, 2014, the State
charged Nakamitsu with one count of Operating a Vehicle Under
the Influence of an Intoxicant as a first time
filed a Motion to Dismiss Count 1 for Failure to State an
Offense. He argued that the OVUII charge in Count 1
was insufficient because it failed to include the definition
of "alcohol" as defined in HRS § 291E-1. The
State opposed the Motion, arguing that the Complaint's
reference to "alcohol" was consistent with its
commonly-understood meaning. After a hearing, the court
denied the Motion.
Direct Examination of Officer Desiderio
trial, Officer Desiderio testified that he responded to a
vehicular accident on June 1, 2014 around 4:50 a.m. Upon
arriving at the scene, he saw a vehicle on the side of the
road in front of a light post that had fallen to the ground.
A man (later identified as Nakamitsu) walked from the vehicle
and knelt on the side of the road. Nakamitsu told Officer
Desiderio that he had been driving the vehicle, and then
began crying. Officer Desiderio detected the smell of alcohol
on Nakamitsu's body and breath. Officer Desiderio
testified that Nakamitsu was attempting to balance himself
and uttering something approximating "I'm fucked,
I'm fucked." Officer Desiderio then conducted a
Standardized Field Sobriety Test (SFST). Nakamitsu exhibited
six clues, and failed the Horizontal Gaze Nystagmus (HGN)
portion of the test. According to Officer Desiderio, during
the Walk-and-Turn section of the test Nakamitsu kept trying
to keep his balance.
direct examination, in regard to the Walk-and-Turn and
One-Leg Stand segments of the test, the State refreshed
Officer Desiderio's recollection with a copy of his SFST
[STATE]: Do you remember what -- any clues exhibited during
the instructional portion of the . . . [Walk and Turn] test?
[OFFICER DESIDERIO]: Can't recall it. I have it in my
report that I submitted.
[STATE]: Would anything refresh your recollection?
[OFFICER DESIDERIO]: Yes, my report that I submitted.
[STATE]: Officer, is -- you recognize this document?
[OFFICER DESIDERIO]: Yes, ma'am.
[STATE]: What is this?
[OFFICER DESIDERIO]: This is -- what we use for [sic] SFST
sheet, the standard --
[STATE]: Is this the . . . [S]FST sheet you used that night?
[OFFICER DESIDERIO]: Yes, ma'am.
[STATE]: Can you refresh your recollection.
[OFFICER DESIDERIO]: Okay.
further exchange regarding the Walk-and-Turn segment of the
test, the State then asked Officer Desiderio about
Nakamitsu's performance on the One-Leg Stand test:
[STATE]: And do you recall what you observed?
[OFFICER DESIDERIO]: Yes. Everything is recorded in the
report I submitted.
[STATE]: All right . . . . [H]ow many clues can be exhibited?
Do you remember?
[OFFICER DESIDERIO]: No, I don't. I --
[STATE]: Would you like to --
[STATE]: -- refresh your memory --
[STATE]: -- with your report?
[OFFICER DESIDERIO]: -- yes.
[STATE]: Do you independently remember this, once you looked
at your report? Do you remember how [Nakamitsu] did on the
[OFFICER DESIDERIO]: Yeah, somewhat remember.
[STATE]: Okay. And do you remember what you observed about
how he did the test?
[OFFICER DESIDERIO]: Basically, he hops. I -- I do remember
[him] putting his foot down at 19 seconds and [sic] kind of
swayed sideways. And then -- yeah, he wasn't able ...