State v. Hewitt. ( 2021 )

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-FEB-2021
07:47 AM
Dkt. 54 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
CYRINA HEWITT, Defendant-Appellant
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
KONA DIVISION
(CASE NUMBER 3DTA-15-00745)
FEBRUARY 16, 2021
GINOZA, CHIEF JUDGE, LEONARD AND HIRAOKA, JJ.
OPINION OF THE COURT BY HIRAOKA, J.
After a bench trial, Defendant-Appellant Cyrina Hewitt
(Hewitt) was convicted of operating a vehicle under the influence
of an intoxicant (OVUII) in violation of Hawaii Revised Statutes
(HRS) § 291E-61(a)(1),1 and driving without a license in
1
HRS § 291E-61 (2007) provides, in relevant part:
(a) A person commits the offense of operating a vehicle
under the influence of an intoxicant if the person operates
or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an
(continued...)
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
violation of HRS § 286-102(b).2 Hewitt appeals from the
"Judgment and Notice of Entry of Judgment" (Judgment) entered by
the District Court of the Third Circuit, Kona Division,3 on
May 20, 2016. She contends that the district court erred by
(1) denying her motion to suppress her statement to a police
officer that she was driving and failing to determine the
voluntariness of her statement; (2) denying her motion to
suppress the result of her warrantless blood draw; and
(3) admitting her blood test result into evidence.
We hold that the district court did not err by denying
Hewitt's motion to suppress her statement, but did err by
overruling Hewitt's HRS § 621-26 trial objection and failing to
conduct a hearing on the voluntariness of her statement. In
addition, the district court erred by denying Hewitt's motion to
suppress her blood test result because the State did not develop
the record to justify the warrantless blood draw. Accordingly,
we vacate the Judgment and remand for a new trial; we need not
decide Hewitt's third point of error.
BACKGROUND
At 1:00 a.m. on July 3, 2014, Hawai#i County Police
1
(...continued)
amount sufficient to impair the person's normal
mental faculties or ability to care for the
person and guard against casualty[.]
2
HRS § 286-102 (Supp. 2013) provides, in relevant part:
(b) A person operating the following category or
combination of categories of motor vehicles shall be
examined as provided in section 286–108 and duly licensed by
the examiner of drivers:
. . . .
(3) Passenger cars of any gross vehicle weight
rating, buses designed to transport fifteen or
fewer occupants, and trucks and vans having a
gross vehicle weight rating of eighteen thousand
pounds or less[.]
3
The Honorable Margaret K. Masunaga presided.
2
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Department (HCPD) police officer Chandler Nacino was assigned to
contact a possible assault victim at the Kona Community Hospital
emergency room. The possible victim was Hewitt. Hospital staff
told Officer Nacino that Hewitt had been dropped off at the
emergency room by an unknown male. The male was not present when
Officer Nacino made contact with Hewitt. A nurse was present,
but left the room as Officer Nacino entered. HCPD police officer
Kaea Sugata was also present in the emergency room, but Officer
Nacino "did the majority of the talking[.]"
Hewitt was lying in a hospital bed, awake, and wearing
a medical gown. She appeared to be disoriented. Neither Officer
Nacino nor Officer Sugata remembered whether Hewitt was hooked up
to an intravenous line. Hewitt had large contusions on her face.
Her eyes were swollen shut. She had a laceration on her ear.
She gave Officer Nacino her name and date of birth. She did not
know where she was, and did not know why she was in the hospital.
Officer Nacino then served her with "legal documents" for "an
unrelated case[,]" for which she had to sign.4
Officer Nacino testified that when he asked Hewitt if
she had been assaulted, "She gave me incoherent answers like, you
know, that she's a big girl, she can handle her stuff, and kinda
undecipherable, really, what she was saying." Officer Nacino
observed that Hewitt "appeared to be out of it and had slurred
speech."
Officer Nacino asked Hewitt why her eyes were swollen.
Hewitt said she had pink eye, and later said she had stye eye.
Officer Nacino did not think her injuries were consistent with
either medical condition. Officer Nacino suspected that Hewitt
was under the influence of alcohol or some kind of intoxicant,
but he did not testify whether he knew if Hewitt had been given
any medication in the emergency room that might have affected her
level of consciousness.
4
The record does not show what the document was, to what case it
pertained, or why Officer Nacino had possession of the document at the time he
was assigned to investigate an unidentified potential assault victim.
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At that time, some paramedics walked by and asked what
was happening. Officer Nacino told the paramedics he was
investigating whether Hewitt was an assault victim. The
paramedics told Officer Nacino they had seen a pickup truck in
the bushes near the intersection of Queen Ka#ahumanu Highway and
Kuakini Highway. The paramedics gave Officer Nacino the truck's
license plate number.
Officer Nacino left Hewitt in the emergency room,
contacted his sergeant, Mekia Rose, and relayed the information
provided by the paramedics. Sergeant Rose went to the location
described by the paramedics and found a pickup truck in the
bushes. The truck had front-end damage and both front airbags
had been deployed. Sergeant Rose told Officer Nacino that the
registered owner of the truck was named Cyrus Hewitt, and that
Cyrina Hewitt's state identification card was found in a wallet
inside the truck. Sergeant Rose took a photograph of Hewitt's
identification card and sent it to Officer Nacino in a text
message.
Officer Nacino returned to Hewitt in the emergency
room. Up to that time, Officer Nacino had not placed Hewitt
under arrest or told her she was not free to terminate their
conversation. Officer Nacino told Hewitt the pickup truck had
been found. He asked Hewitt if she was driving. Hewitt stated
that she was driving to a friend's house and parked the truck in
the bushes. She then stated she was going to the doctor.
Officer Nacino stopped asking questions, placed Hewitt under
arrest for OVUII, told her a blood draw would be conducted, and
told her she would be released after her blood was drawn.
Hewitt's blood was drawn at around 3:30 a.m.
PROCEDURAL HISTORY
Hewitt was charged by complaint with OVUII and driving
without a license. She filed motions to suppress her statement
that she was driving and evidence of her blood alcohol
concentration. Both motions were denied. At trial, Officer
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Nacino testified that Hewitt told him she was driving. Hewitt's
father, Cyrus Hewitt, testified that a friend of his named Bill
Thomas was the driver. Hewitt testified that "Uncle Bill" was
driving, she fell asleep in the passenger seat, and woke up in
the hospital. Hewitt was convicted of OVUII and driving without
a license; when announcing the verdict, the district court stated
it "heard the testimony of Mr. Cyrus Hewitt and defendant, Cyrina
Hewitt, and does not find their testimonies to be credible."
This appeal followed.
STANDARD OF REVIEW
A trial court's ruling on a motion to suppress is
reviewed de novo to determine whether the ruling was right or
wrong. State v. Vinuya, 96 Hawai#i 472, 480, 32 P.3d 116, 124
(App. 2001).
[W]hen the defendant's pretrial motion to suppress is denied
and the evidence is subsequently introduced at trial, the
defendant's appeal of the denial of the motion to suppress
is actually an appeal of the introduction of the evidence at
trial. Consequently, when deciding an appeal of the pre-
trial denial of the defendant's motion to suppress, the
appellate court considers both the record of the hearing on
the motion to suppress and the record of the trial.
Id. at 481, 32 P.3d at 125 (cleaned up).
DISCUSSION
1. The district court did not err by denying
Hewitt's motions to suppress, but erred when
it overruled her trial objection.
A. Motions to suppress.
Hewitt's motions to suppress argued that she was
interrogated by Officer Nacino while in custody without being
advised of her Miranda rights.5 A person in police custody may
not be subjected to interrogation without first being advised of
their Miranda rights. State v. Melemai, 64 Haw. 479, 481, 643
5
See Miranda v. Arizona, 384 U.S. 436 (1966).
5
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P.2d 541, 543 (1982). But the Hawai#i Supreme Court has also
noted that "application of the Miranda rule is limited." Id. at
481, 643 P.2d at 544. "It does not preclude the police, in the
exercise of their investigatory duties or functions, from making
general on-the-scene inquiries as to facts surrounding a crime or
other general questions in the fact-finding process." Id. at
481-82, 643 P.2d at 544 (citation omitted).
In Melemai, a jogger was struck by a pickup truck.
Eyewitnesses gave a police officer the license number and a
description of the truck, which contained two occupants. The
officer radioed the license number to the police station and
obtained Melemai's name and address. The officer went to
Melemai's address and waited. A truck arrived, driven by
Melemai. It matched the description given by the witnesses, and
contained one other occupant. At the officer's request, Melemai
came out of the truck and produced his driver's license. The
officer asked Melemai if he had hit anyone with his truck.
Melemai answered affirmatively. The officer then asked Melemai
why he ran away. Melemai responded that he got angry when he saw
the jogger and "went for him." Melemai, 64 Haw. at 480, 643 P.2d
at 543. Both questions were asked before Melemai was given
Miranda warnings.
Melemai was indicted. He filed a motion to suppress
the statements he made to the police officer and a motion to
dismiss the indictment. The trial court granted both motions,
ruling that Miranda warnings were required before the police
officer could question Melemai. The State appealed. The Hawai#i
Supreme Court reversed in part. The supreme court held that the
determination of whether a defendant was in custody "is to be
made by objectively appraising the totality of the
circumstances[,]" including
the place and time of the interrogation, the length of the
interrogation, the nature of the questions asked, the
conduct of the police, and all other relevant circumstances.
Among the relevant circumstances to be considered are
whether the investigation has focused on the suspect and
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whether the police have probable cause to arrest [the
suspect] prior to questioning. While focus of the
investigation upon the defendant, standing alone, will not
trigger the application of the Miranda rule, it is an
important factor in determining whether the defendant was
subjected to custodial interrogation. Probable cause to
arrest is also not determinative, but it may play a
significant role in the application of the Miranda rule.
Melemai, 64 Haw. at 481, 643 P.2d at 544 (citations omitted).
The supreme court described "the outer parameters beyond which
on-the-scene interviews may not proceed without Miranda
warnings":
Persons temporarily detained for brief questioning by police
officers who lack probable cause to make an arrest or bring
an accusation need not be warned about incrimination and
their right to counsel, until such time as the point of
arrest or accusation has been reached or the questioning has
ceased to be brief and casual and become sustained and
coercive[.]
Id. at 482, 643 P.2d at 544 (cleaned up). The court ultimately
held:
In the instant case, the officer knew that the jogger
had been struck by a pickup truck with two occupants and
also knew the vehicle's license number and its description.
After obtaining the name and address of defendant, who was
the vehicle's registered owner, the officer proceeded to
defendant's address, and he waited for the defendant. Upon
defendant's arrival, the officer noticed that the truck met
the description given to him and was occupied by two
persons. On the basis of the officer's knowledge and
observation, we conclude that the investigation had focused
upon the defendant, and that, after defendant admitted his
participation in the accident, the police had probable cause
to arrest.
Inasmuch as the totality of circumstances created the
kind of coercive atmosphere that Miranda warnings were
designed to prevent, custody attached and Miranda warnings
were required. Based upon our analysis, defendant's answer
to the first question [if he had hit anyone with his car]
was admissible while his answer to the second [why he ran
away] was not.
Id. (emphasis added) (footnote omitted).
In this case, Officer Nacino initially interviewed
Hewitt as a potential assault victim. Hewitt argues that she was
not free to leave the hospital emergency room while being
questioned by Officer Nacino because she was physically
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incapacitated and heavily sedated. Her inability to leave was
not the result of being detained by Officer Nacino or any other
law enforcement authority. Cf. State v. Kazanas, 138 Hawai#i 23,
375 P.3d 1261 (2016) (police officer asking defendant how his
Halloween went, while defendant was under arrest and being
transported to hospital, constituted custodial interrogation);
and State v. Pebria, 85 Hawai#i 171, 174-75, 938 P.2d 1190, 1193-
94 (App. 1997) (holding that defendant's statement to police
officer, in response to question if defendant knew why he was
being detained by hospital security guards, that "I [wen'] grab
the girl[,]" was result of custodial interrogation).
Even after Officer Nacino received information that
Hewitt's identification had been found in a pickup truck that had
apparently been involved in an accident, he did not have probable
cause to arrest Hewitt for OVUII. Hewitt was not seen in the
driver's seat, and her injuries could have been caused when the
front-passenger-seat airbag deployed. We hold that Hewitt was
not in custody when Officer Nacino asked her if she was driving.
Once Hewitt said she was driving the pickup truck, Officer Nacino
appropriately stopped asking Hewitt questions. Because Hewitt
was not in custody while she was being questioned by Officer
Nacino, we need not decide whether Officer Nacino's questions
"were reasonably likely to elicit an incriminating response from
the person in custody." Kazanas, 138 Hawai#i at 26, 375 P.3d at
1264 (citation omitted).
Hewitt argues that Officers Nacino and Sugata
interrogated her for almost three hours. Hewitt admittedly did
not remember speaking to either officer. All of the evidence in
the record indicates that Officer Nacino initially questioned
Hewitt to determine whether she was the victim of an assault.
After the paramedics mentioned seeing a pickup truck in the
bushes, Officer Nacino left the emergency room to follow up with
Sergeant Rose. It was only after Sergeant Rose texted Hewitt's
identification card to Officer Nacino that he returned to the
emergency room to ask if Hewitt was driving. The record does not
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establish that Hewitt was subjected to "sustained and coercive"
questioning by Officer Nacino. Melemai, 64 Haw. at 482, 643 P.2d
at 544. Given this record, the district court did not err by
denying Hewitt's motion to suppress. See also State v.
Kaleohano, 99 Hawai#i 370, 377, 56 P.3d 138, 145 (2002) ("[I]f
neither probable cause to arrest nor sustained and coercive
interrogation are present, then questions posed by the police do
not rise to the level of 'custodial interrogation' requiring
Miranda warnings.") (quoting State v. Ah Loo, 94 Hawai#i 207,
210, 10 P.3d 728, 731 (2000)).
B. Trial objection.
Hewitt did not cite HRS § 621-26 in her motion to
suppress or during the hearing on the motion. The statute
provides:
No confession shall be received in evidence unless it is
first made to appear to the judge before whom the case is
being tried that the confession was in fact voluntarily
made.
HRS § 621-26 (1993). At trial, after Officer Nacino testified he
asked Hewitt whether she had been in a traffic accident, the
State asked "what was her response?" Defense counsel objected,
citing HRS § 621-26. The district court overruled the objection.
Officer Nacino then testified: "She informed me that she was
driving the vehicle and had parked it there[ in the bushes]."
Rather than overruling the objection, the district
court should have conducted an evidentiary hearing to determine
whether Hewitt's statement was voluntarily made, in light of the
evidence that Hewitt had sustained significant head trauma, did
not know where she was, and was incoherent. Although Hewitt's
statement to Officer Nacino was not a confession of OVUII, HRS
§ 621-26 applies to inculpatory statements as well as
confessions. See State v. Kelekolio, 74 Haw. 479, 501 n.13, 849
P.2d 58, 69 n.13 (1993) ("we perceive no meaningful distinction
between a 'confession' and 'inculpatory statements' for purposes
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of the right against self-incrimination.") The district court
erred by not conducting an evidentiary hearing to determine
whether Hewitt's inculpatory statement was voluntarily made.
2. The district court erred by denying Hewitt's
motion to suppress her blood test result.
The State argued that Hewitt's motion to suppress
evidence of the alcohol content of her blood was not timely filed
under Hawai#i Rules of Penal Procedure (HRPP) Rule 12(c). The
district court recognized the issue, but proceeded to rule on the
merits. The district court had discretion to so proceed, and the
denial of the motion on its merits is properly before us. See
State v. Przeradski, 5 Haw. App. 29, 32, 677 P.2d 471, 474-75
(1984) (noting that HRPP Rule 12(f) gives the trial court
discretion to rule on an untimely pretrial motion).
Hewitt contends that the district court should have
suppressed evidence of her blood alcohol content because it was
the result of a warrantless search and seizure in violation of
her constitutional rights. She acknowledges that the blood draw
was performed pursuant to HRS § 291E-21(a) (2007), which
authorizes a law enforcement officer to obtain a sample of blood
"from the operator of any vehicle involved in a collision
resulting in injury to . . . any person, as evidence that the
operator was under the influence of an intoxicant."
A warrantless [blood alcohol concentration] test . . .
pursuant to HRS § 291E–21 . . . does not offend the Hawai#i
Constitution "so long as (1) the police have probable cause
to believe that the person has committed a DUI offense and
that the blood sample will evidence that offense,
(2) exigent circumstances are present, and (3) the sample is
obtained in a reasonable manner."
State v. Won, 137 Hawai#i 330, 344 n.26, 372 P.3d 1065, 1079 n.26
(2015) (emphasis added) (quoting State v. Entrekin, 98 Hawai#i
221, 232, 47 P.3d 336, 347 (2002)).
In Entrekin, the Hawai#i Supreme Court discussed
Schmerber v. California, 384 U.S. 757 (1966), where the United
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States Supreme Court held that the fourth amendment to the
Constitution does not prohibit a nonconsensual, warrantless blood
extraction from a person suspected of driving under the influence
of drugs or alcohol (DUI) if: "(1) the police have probable cause
to believe that the person is DUI; (2) exigent circumstances are
present under which the delay necessary to obtain a warrant would
result in the loss of evidence; and (3) the procedures employed
to extract the blood are reasonable." Entrekin, 98 Hawai#i at
231, 47 P.3d at 346. The Hawai#i Supreme Court then held:
The exigent circumstances exception is present when the
demands of the occasion reasonably call for an immediate
police response. More specifically, it includes situations
presenting an immediate threatened removal or destruction of
evidence. However, the burden, of course, is upon the
government to prove the justification, and whether the
requisite conditions exists [sic] is to be measured from the
totality of the circumstances. And in seeking to meet this
burden, the police must be able to point to specific and
articulable facts from which it may be determined that the
action they took was necessitated by the exigencies of the
situation.
. . . .
. . . [E]xigent circumstances were clearly present.
It is undisputed that the percentage of alcohol in the blood
begins to diminish shortly after drinking stops, as the body
functions to eliminate it from the system. [T]he arrested
person's blood-alcohol level by its very nature dissipates
and is forever lost as time passes, and any alcohol ingested
by the arrested person is digested and its effects on the
body pass[.]
Id. at 232-33, 47 P.3d at 347-48 (cleaned up) (emphasis added).
In this case the district court relied upon Schmerber
in denying Hewitt's motion to suppress. But in Missouri v.
McNeely, 569 U.S. 141 (2013) (decided after Entrekin), the United
States Supreme Court held "that in drunk-driving investigations,
the natural dissipation of alcohol in the bloodstream does not
constitute an exigency in every case sufficient to justify
conducting a blood test without a warrant." Id. at 165. The
Supreme Court reasoned:
It is true that as a result of the human body's
natural metabolic processes, the alcohol level in a person's
blood begins to dissipate once the alcohol is fully absorbed
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and continues to decline until the alcohol is eliminated.
. . . Regardless of the exact elimination rate, it is
sufficient for our purposes to note that because an indi-
vidual's alcohol level gradually declines soon after [the
person] stops drinking, a significant delay in testing will
negatively affect the probative value of the results. This
fact was essential to our holding in Schmerber, as we recog-
nized that, under the circumstances, further delay in order
to secure a warrant after the time spent investigating the
scene of the accident and transporting the injured suspect
to the hospital to receive treatment would have threatened
the destruction of evidence.
But it does not follow that we should depart from
careful case-by-case assessment of exigency and adopt the
categorical rule proposed by the State and its amici. In
those drunk-driving investigations where police officers can
reasonably obtain a warrant before a blood sample can be
drawn without significantly undermining the efficacy of the
search, the Fourth Amendment mandates that they do so. We
do not doubt that some circumstances will make obtaining a
warrant impractical such that the dissipation of alcohol
from the bloodstream will support an exigency justifying a
properly conducted warrantless blood test. That, however,
is a reason to decide each case on its facts, as we did in
Schmerber, not to accept the "considerable overgenerali-
zation" that a per se rule would reflect.
The context of blood testing is different in critical
respects from other destruction-of-evidence cases in which
the police are truly confronted with a "'now or never'"
situation. In contrast to, for example, circumstances in
which the suspect has control over easily disposable
evidence, [blood alcohol concentration] evidence from a
drunk-driving suspect naturally dissipates over time in a
gradual and relatively predictable manner. . . .
The State's proposed per se rule also fails to account
for advances in the 47 years since Schmerber was decided
that allow for the more expeditious processing of warrant
applications, particularly in contexts like drunk-driving
investigations where the evidence offered to establish
probable cause is simple. The Federal Rules of Criminal
Procedure were amended in 1977 to permit federal magistrate
judges to issue a warrant based on sworn testimony communi-
cated by telephone. As amended, the law now allows a
federal magistrate judge to consider "information communi-
cated by telephone or other reliable electronic means."
Fed. Rule Crim. Proc. 4.1. States have also innovated.
Well over a majority of States allow police officers or
prosecutors to apply for search warrants remotely through
various means, including telephonic or radio communication,
electronic communication such as e-mail, and video
conferencing.
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Id. at 152-54 (cleaned up) (citing, among other states' court
rules, Hawai#i Rules of Penal Procedure (HRPP) Rule 41(h)–(i)
(2013)6).
We cited McNeely in State v. Niceloti-Velazquez, 139
Hawai#i 203, 386 P.3d 487 (App. 2016), in which we held:
In the case before this court, the record does not
support a finding that, given the totality of the circum-
stances, the police officers could not have reasonably
obtained a search warrant before drawing Velazquez's blood
sample. Because the district court only cited the risk of
blood alcohol dissipation to support its finding of exigency
and because the prosecution failed to adequately develop the
record to demonstrate that the police officers were justi-
fied to act without a warrant, the district court clearly
erred in holding that exigent circumstances existed to
justify the warrantless extraction of Velazquez's blood
sample.
Niceloti-Velazquez, 139 Hawai#i at 205, 386 P.3d at 489 (emphasis
added) (citation omitted).
6
HRPP Rule 41 has not been amended since it was cited in McNeely.
It provides, in relevant part:
Rule 41. SEARCH AND SEIZURE.
. . . .
(c) Issuance and contents. A warrant shall issue
only on an affidavit or affidavits sworn to before the judge
and establishing the grounds for issuing the warrant. . . .
. . . .
(h) Warrant issuance on oral statements. In lieu of
the written affidavit required under section (c) of this
rule, a sworn oral statement, in person or by telephone, may
be received by the judge, which statement shall be recorded
and transcribed, and such sworn oral statement shall be
deemed to be an affidavit for the purposes of this rule.
Alternatively to receipt by the judge of the sworn oral
statement, such statement may be recorded by a court
reporter who shall transcribe the same and certify the
transcription. In either case, the recording and the
transcribed statement shall be filed with the clerk.
(i) Duplicate warrants on oral authorization. The
judge may orally authorize a police officer to sign the
signature of the judge on a duplicate original warrant,
which shall be deemed to be a valid search warrant for the
purposes of this rule. The judge shall enter on the face of
the original warrant the exact time of issuance and shall
sign and file the original warrant and, upon its return, the
duplicate original warrant with the clerk.
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The facts of this case illustrate why more than just
"the risk of blood alcohol dissipation" should be required to
justify a warrantless blood draw. Officer Nacino
testified:
Q. Okay. And can you just tell us what you based,
uh, the breath or why you conducted that blood draw? What
information did you base it on?
A. Um, slurred speech. She seemed to be completely
out of it, unaware of her surroundings.
Q. Uh-huh.
A. And the fact that she had been in a traffic
accident that involved injuries.
On cross-examination, Officer Nacino was asked:
Q. Okay.
Now it wasn't until she had made the statement
that "I had been driving the truck" that you informed her
that she would be arrested for suspicion of a DUI, correct?
A. Yes, sir.
State's Exhibit 11, admitted into evidence at trial without
objection, was Officer Nacino's sworn statement of probable cause
for Hewitt's arrest. Officer Nacino stated:
[Hewitt] stated she was the operator of [the truck].
[Hewitt] had slow speech, when asked question[s] [Hewitt]
would go off topic and ramble on about things unrelated to
[the] question. [Hewitt] appeared to be disoriented and was
unaware of injuries sustained from traffic casualty. This
lead [sic] me to believe [Hewitt] was under the influence of
drugs and or alcohol.
Officer Nacino did not testify that he detected an odor similar
to that of an alcoholic beverage on Hewitt's breath or body.
There was no evidence that empty or open containers of liquor, or
a bar or restaurant tab or other receipt evidencing the recent
consumption of alcohol, were found in the cab of Cyrus Hewitt's
truck, or with Cyrina Hewitt's identification card. Hewitt's
apparent disorientation could have been explained by a concussion
(as evidenced by Hewitt's significant head trauma). Although she
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knew who she was, she did not know where she was. There was no
evidence that Officer Nacino attempted to determine if Hewitt was
oriented to time (as one would to attempt to diagnose or rule out
a concussion). Hewitt's disorientation could also have been the
result of prescription medication administered to her in the
hospital emergency room. Under the totality of these
circumstances, it would not have been unreasonable for a judge to
require more information before issuing a warrant for a blood
draw. There was no evidence that Officer Nacino, Officer Sugata,
Sergeant Rose, or any other police officer attempted to contact a
judge to obtain a warrant before requesting the blood draw. We
hold that the State failed to adequately develop the record to
demonstrate the existence of exigent circumstances that would
have justified Officer Nacino requesting a warrantless blood
draw. The district court erred in denying Hewitt's motion to
suppress the blood test results.
CONCLUSION
Based upon the foregoing, the "Judgment and Notice of
Entry of Judgment" entered by the district court on May 20, 2016,
is vacated. This case is remanded for a new trial consistent
with this opinion.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Charles E. Murray III,
Deputy Prosecuting Attorney, /s/ Katherine G. Leonard
State of Hawai#i, Associate Judge
for Plaintiff-Appellee.
/s/ Keith K. Hiraoka
Taryn R. Tomasa, Associate Judge
Deputy Public Defender,
State of Hawai#i,
for Defendant-Appellant.
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