CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-17-0000674; CASE NO. 1DTA-16-04150)
M. Kaneshiro for petitioner
R. Vincent for respondent
RECKTENWALD, C.J. 
case requires us to consider the advisements that a trial
court provided a defendant with regard to the right to
testify, when the court consolidated a suppression motion
with the trial on the merits.
Yen Hoy Chang (Chang) was charged with Operating a Vehicle
Under the Influence of an Intoxicant (OVUII). Chang filed a
motion to suppress statements that he allegedly made to the
police officer who arrested him. The District Court of the
First Circuit consolidated the hearing on Chang's motion
to suppress with his bench trial, and provided Chang with
several advisements about his right to testify. Chang
declined to testify. The district court granted the
suppression motion in part, but found Chang guilty. After
unsuccessfully appealing to the Intermediate Court of Appeals
(ICA), Chang timely filed an application for writ of
certiorari with this court.
conclude that the district court erroneously advised Chang
with regard to his right to testify in the context of a
consolidated suppression hearing and trial. Accordingly, we
vacate his conviction, and remand the case for further
District Court Proceedings
was charged by complaint with OVUII. Chang filed motions to
suppress all verbal and non-verbal statements that he made
after he was pulled over by Honolulu Police Department
Officer Jared Spiker (Officer Spiker) and prior to his
arrest, including his performance on the standardized field
sobriety test (SFST).
Consolidated Suppression Hearing and Bench Trial
outset of the proceeding, the court asked defense counsel if
counsel was going to consolidate the hearing on the motion to
suppress with the bench trial. The district
court engaged Chang as follows:
The Court: Mr. Chang, based on what your attorney is saying,
it's my understanding that we're going to consolidate
this motion with the trial[.] [I]s that your understanding as
The Court: And that's what you want to do today?
The Court: Okay. So then, since we're ultimately doing a
trial, I'm going to go through my  trial questions.
the district court asked Chang preliminary questions
regarding a proposed plea agreement, Chang pled not guilty.
The district court then accepted the parties'
stipulations, for the purposes of both the suppression motion
and trial, that Officer Spiker was trained, experienced, and
qualified to administer and evaluate SFSTs; would testify
only as a lay witness; would not testify about the horizontal
gaze nystagmus (HGN) portion of the SFST; and would not make
legal conclusions as to whether Chang had passed or failed
any portions of the SFST.
district court informed Chang of his right to testify and his
right not to testify at trial as follows:
The Court: [S]ince we're doing this as a . .
.consolidated trial, I have to inform you, Mr. Chang, you
have the constitutional right to testify in your own defense.
Do you understand that?
Chang: Yes, I do.
The Court: Okay. Although you should consult with your
attorney regarding the decision to testify, it is your
decision and no one can prevent you from testifying should
you . . . choose to do so; do you understand?
Chang: I do.
The Court: Okay. If you decide to testify, the prosecutor
will be allowed to cross-examine you; do you understand?
Chang: I do understand that.
The Court: Okay. You also have a constitutional right not to
testify and to remain silent. Do you understand that as well?
The Court: Okay. If you choose not to testify, the court
cannot hold your silence against you in deciding your case;
do you understand?
The Court: Do you have any questions about what I have
Chang: No, I do not.
State called Officer Spiker as its sole witness for the
purposes of both the suppression motion and the trial.
Officer Spiker's Testimony
Spiker testified that at approximately 1:10 a.m. on November
13, 2016, he noticed Chang driving without illuminated
headlights. Officer Spiker observed Chang make an illegal
left turn at an intersection with "at least two signs
that [said] no left turn." Officer Spiker followed Chang
and pulled him over.
Spiker testified that as soon as he began conversing with
Chang, who had been driving alone, he smelled a "strong
odor of alcohol" coming from Chang's breath. He also
noticed that Chang's eyes were "red, watery, and
glassy," that Chang's face was flushed, and that
Chang's speech was slurred.
Spiker asked for Chang's driver's license,
registration, and insurance, which Chang provided without
difficulty or delay. Officer Spiker informed Chang that he
had been pulled over because of his driving infractions and
offered Chang an SFST. At Officer Spiker's request, Chang
exited his vehicle without difficulty. Officer Spiker
testified that at this point, Chang "was not free to
Spiker testified that Chang agreed to participate in the SFST
and stated "that he had [had] some drinks earlier."
After Chang answered "no" to each of the medical
rule-out questions posed by Officer Spiker, Officer Spiker
administered the SFST. The SFST consisted of the HGN test,
the walk-and-turn test, and the one-leg-stand test. Officer
Spiker testified that Chang did not perform the walk-and-turn
test or the one-leg-stand test as instructed. With respect to
the walk-and-turn test, Officer Spiker noted that Chang
started the test before being instructed to do so; missed
numerous heel-to-toe steps; stepped off the line three times;
and turned the wrong way without the required pivot. With
respect to the one-leg-stand test, Officer Spiker noted that
Chang's right foot touched the ground multiple times
during the balancing sets; Chang did not look at his foot
throughout the sets despite instructions to do so; Chang
skipped numbers as he counted; and Chang was "swaying
Spiker further testified that throughout the SFST, Chang was
argumentative, interrupted him, and asked him at least five
times why he pulled Chang over, despite his repeated
explanations. Officer Spiker also testified that, at some
point during the SFST, Chang was offered a preliminary
alcohol screening device test (PAS), but refused the PAS
because he said "he didn't trust it."
Spiker testified that he arrested Chang for OVUII, in light
of the totality of the circumstances. He explained that he
considers the "totality of the circumstances" when
deciding whether to arrest someone for OVUII, including the
amount of traffic violations observed, indicia of
intoxication, and an individual's demeanor, SFST
performance, and abilities to cooperate and follow
instructions. Officer Spiker also testified that he did not
at any point advise Chang regarding the right to remain
Hearing on the Motion to Suppress
Officer Spiker testified, the district court addressed
Chang's motion to suppress. The following discussion took
place, wherein defense counsel initially indicated that Chang
intended to testify for purposes of the suppression hearing:
The Court: Why don't we do the argument on the motion . .
. first, okay? . . . . [W]ell, even before then, did you want
to have anyone  testify in regard to the motion? . . . [I]f
you're going to have [Chang] testify in regard to the
motion, I need to know[.]
Wait. This is going to get a little confusing since we're
doing the motion combined with the trial. So I'm going to
Tachibana him a second time - okay. Wait. So the
State has no further witnesses. You're saying ...