State v. Boyer

1

STATE OF HAWAI'I, Plaintiff-Appellee, v. PAULA BOYER, Defendant-Appellant

No. CAAP-21-0000333

Intermediate Court of Appeals of Hawaii

June 9, 2023

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT KONA DIVISION (CASE NO. 3DTA-20-01091)

Henry P. Ting, Deputy Public Defender, for Defendant-Appellant.

Stephen L. Frye, Deputy Prosecuting Attorney, County of Hawai#i, for Plaintiff-Appellee.

Ginoza, Chief Judge, Leonard and Nakasone, JJ.

SUMMARY DISPOSITION ORDER

Defendant-Appellant Paula Boyer (Boyer) appeals from the May 11 2021 Judgment and Notice of Entry of Judgment entered in the District Court of the Third Circuit^[1] (District Court), convicting her of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1).

On appeal, Boyer raises three points of error,^[2] contending that the District Court erred by: (1) "not suppressing Boyers['s] un-Mirandized statements made in response to custodial interrogation and evidence that is 'fruit' of those statements"; (2) "granting, over the defense's objections, the [Plaintiff-Appellee State of Hawai'i (State)]'s oral motion to continue trial after the testimony of its first witness"; and (3) "considering [the] Horizontal Gaze Nystagmus test [(HGN)]'clues' as substantive evidence of impairment."

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we resolve Boyer's points of error as follows, and affirm.

Suppression hearing

On October 15, 2020, Boyer filed a Motion to Suppress Evidence and Statements (Motion to Suppress), requesting to suppress any "[e]vidence discovered by Hawaii County police officers during [the] warrantless stop of [the] vehicle operated by [Boyer]" in violation of Boyer's Miranda^[3] rights, and "[a]ny additional fruits of the poisonous tree."

At a January 12, 2021 hearing on the Motion to Suppress, Hawai'i County Police Department Officer Patrick Robinson (Officer Robinson) testified that on April 10, 2020, he received a report of a "reckless driver," a description of the vehicle which was "driving in an erratic matter [sic]," and that the "reporting party and the responsible party were parked in the Kona Reef Hotel parking lot." Upon arrival, Officer Robinson saw two vehicles parked in the parking lot with a sole operator in each, and one of the vehicles matched the description in the report. The officer made contact with the reporting party and took a statement, and the reporting party directed the officer to the location of the suspect's vehicle. Officer Robinson identified the driver of the suspected vehicle as Boyer, and asked for her "license, registration, and proof of insurance." Boyer began looking for her license and had a difficult time locating it. Officer Robinson "witnessed [Boyer] pass[] her Hawaii State driver's license" and offered assistance in locating her license. Boyer declined any assistance and Officer Robinson asked Boyer to "exit the vehicle" twice, which Boyer "disregarded." Officer Robinson then "opened the door and assisted her out of the vehicle." Officer Robinson observed that Boyer's eyes were "glassy" and that she had a "slight smell of [an] intoxicant on her breath."

Officer Robinson testified that he then administered a Standardized Field Sobriety Test (SFST) on Boyer. Prior to the SFST, Officer Robinson asked medical rule-out (MRO) questions, including whether Boyer was "under the care of a doctor or dentist"; had "physical defects or speech impediments"; was "epileptic or diabetic"; taking "any type of medication"; or was "blind" or had an "artificial eye." In response to whether she was under the care of a doctor or dentist, diabetic or epileptic, and taking any medication, Boyer responded that she was under the care of a doctor, was epileptic, and was on diazepam^[4] for her related symptoms.

Upon completion of the SFST, Officer Robinson determined that he had probable cause to place Boyer under arrest for OVUII. During the encounter, Officer Robinson never advised Boyer of her Miranda rights.

The District Court denied the Motion to Suppress, ruling as follows:

The Court will find that the Officer had specific articulable facts, taken together with rational inferences from those facts to create a reasonable suspicion [that Boyer] had been or was about to be involved in criminal conduct. Officer Robinson received a report from police dispatch of a reckless driver northbound on Alii Drive, public road, street or highway. That the reporting driver or reporting party observed erratic driving and described the vehicle....

The Officer drove to the reported area and observed two vehicles, observed [Boyer] in one vehicle with the engine on and the motor running. From contacting the reporting party he then contacted [Boyer] and asked for driver's license, insurance, and registration. He observed [that Boyer was] unable to locate those documents, specifically a driver's license even though he saw the driver's license in . . . [Boyer]'s wallet and she fail [sic] to -- she was unable to retrieve it for him.

He asked her to exit the vehicle. Upon seeing that she had glassy eyes and had a slight smell of intoxicating liquors on her breath, conducted the field sobriety tests and observed clues which indicated a suspicion of intoxication on all of the NHTSA [(National Highway and Traffic Safety Administration)] tests....

Upon arresting . . . [Boyer] he had facts and circumstances within his knowledge and which were reasonably trustworthy and were sufficient to warrant a person of -- person of reasonable caution to believe that the offense was committed.

So the Court will deny the Motion to Suppress the arrest and evidence emanating from the arrest.

Bench trial

At the February 9, 2021 bench trial, when the District Court asked if the State was ready to proceed, the State indicated that it was prepared to proceed with Officer Robinson's testimony and would be asking for a "continuance in part for the testimony of Petra Reinhardt [(Reinhardt)]," who initially observed Boyer's operation of the vehicle. The defense did not object. The District Court commenced trial with Officer Robinson's testimony.

Officer Robinson testified that on April 10, 2020, he received a report of a "reckless driver." Upon arriving to the location of the reported reckless driver, Officer Robinson spoke to the reporting party, Reinhardt, who pointed out the alleged reckless driver in the vehicle to the officer. Officer Robinson observed the vehicle in a "parking space [,] parked and running" with Boyer as the driver. Officer Robinson approached the vehicle and asked for Boyer's driver's license, proof of insurance, and vehicle registration, during which Boyer "[h]ad to be reminded several times of what she was looking for." Officer Robinson noticed that as Boyer looked through her purse for her driver's license, she "pass[ed] it several times." Officer Robinson noticed that Boyer had a "slight smell of an intoxicant emitting from her breath and body," and her eyes appeared to be "glassy." Officer Robinson requested that Boyer exit the vehicle, but after Boyer did not respond, Officer Robinson "opened her vehicle door and gently assisted her out and informed her that [he would] like to perform SFSTs on her," to which she agreed. Officer Robinson asked Boyer the MRO questions, to which Boyer responded that she was "epileptic and that she was currently prescribed diazepine [sic]." Officer Robinson then "continued on with the SFSTs," which consisted of the HGN, Walk and Turn, and One Leg Stand tests. Officer Robinson testified about the procedure of the tests, what he looked for, and that he observed "clues" for intoxication from each test. Boyer related she understood the instructions for the HGN, Walk and Turn, and One Leg Stand, when each test was explained. After the SFST, Officer Robinson arrested Boyer for OVUII.

Following Officer Robinson's testimony, the State orally moved for a continuance of trial and represented that the State had subpoenaed Reinhardt to appear at trial that day, but excused her after it was notified by Reinhardt the day before that she was a health care worker who was receiving a second dose of the Covid-19 vaccination the morning of trial. While Boyer had not initially objected to the District Court commencing trial without Reinhardt, Boyer objected at this point, arguing that a continuance would violate "the spirit" of Hawai'i Rules of Penal Procedure (HRPP) Rule 48. The District Court found that there was a "meaningful commencement" of trial and granted a continuance to May 11, 2021.

At the continued trial on May 11, 2021, Reinhardt testified that on April 10, 2020, she was driving behind Boyer's vehicle; she observed the vehicle swerve into the oncoming lane, run through two stop signs, and stop in the middle of an intersection. She called 911, followed Boyer's car until it parked, and waited until Officer Robinson arrived.

At the end of trial, the District Court found Boyer guilty of OVUII, citing Boyer's driving, the smell of an intoxicant from Boyer's breath, "glassy eyes," "difficulty" producing her driver's license, and performance on the SFST.^[5] This appeal followed.

(1) Boyer argues that because she was never advised of her Miranda rights when Officer Robinson approached her her "statements," including her responses to the MRO questions and whether she understood the instructions to the SFST,^[6] were the product of a custodial interrogation and should have been suppressed. Boyer argues that when Officer Robinson approached her vehicle, she...