State v. Gustafson , 55 Haw. 65 ( 1973 )

Per Curiam.

Defendant-appellant struck a utility pole while driving an automobile on Kinau Street in Honolulu. The investigating police officer, believing appellant to be under the influence of alcohol, placed him under arrest and requested that he take a “breath or blood” test under the implied consent statute, HRS ch. 286. Upon his refusal to submit to a test, the officer executed and filed an affidavit with the magistrate of the district court of Honolulu as required by HRS § 286-155.¹ A hearing was held before the district judge pursuant to HRS § 286-156. At the hearing the district judge found the statements contained in the affidavit to be true and revoked appellant’s license to operate a motor vehicle for a period of six months under the authority of HRS § 286-155.

The appellant appealed to the circuit court of the first circuit. After a hearing the circuit court affirmed the ruling of the district court and the appellant appealed to this court.

ISSUES

The following contentions raised on appeal by the appellant merit consideration by this court:

(1) that appellant was denied procedural due process because he was not provided with a copy of the arresting officer’s affidavit prior to the hearing;

(2) that appellant was arrested without a warrant unlawfully and that said arrest was not made in accordance with the constitutional standard of probable cause.

APPLICABLE STATUTES

HRS § 286-155 Revocation of privilege to drive motor vehicle upon refusal to submit to testing. If a person under arrest refuses to submit to a test of his breath or blood, none shall be given, but the arresting officer shall, as soon as practicable, submit an affidavit to a magistrate of the district in which the arrest was made, stating:

(1) That at the time of the arrest, he had reasonable grounds to believe the arrested person had either been driving or was in actual physical control of a motor vehicle upon the public highways while under the influence of intoxicating liquor;

(2) That the arrested person had been informed of the sanctions of this section; and

(3) That the person had refused to submit to a test of his breath or blood.

Upon receipt of the affidavit, the magistrate shall hold a hearing as provided in section 286-156, and shall determine whether the statements contained in the affidavit are true and correct. If the magistrate finds the statements contained in the affidavit are true, he shall revoke the arrested person’s license, permit, or any nonresident operating privilege for a period of six months.

If the arrested person is a resident without a license or permit to operate a motor vehicle in the State, the magistrate shall send notice of the results of the hearing to the examiners of chauffeurs of all counties. The examiners of chauffeurs shall deny the person the issuance of a license or permit for a period of six months.

The penalties provided by this section are additional penalties and not substitutes for any other penalties provided by law.

HRS § 286-156Hearing before a magistrate. A hearing to determine the truth and correctness of an affidavit submitted to a matistrate shall be held within ten days after the magistrate has received the affidavit.

The magistrate shall hear and determine:

(1) Whether the arresting officer had reasonable grounds to believe that the person had been either driving or in actual physical control of a motor vehicle upon the public highways while under the influence of intoxicating liquor.

(2) Whether the person was lawfully arrested;

(3) Whether the arresting officer had informed the person of the sanctions of section 286-155; and

(4) Whether the person refused to submit to a test of his breath or blood.

PROCEDURAL DUE PROCESS

Appellant’s first contention raised by this appeal is that he was denied procedural due process when the prosecutor failed to provide the appellant with a copy of the arresting officer’s affidavit within a reasonable time prior to the hearing so that appellant could adequately prepare his defense. Appellant’s brief states that he was allowed only a glimpse of the affidavit and did not have sufficient time to read it thoroughly.

The requirements of procedural due process, as to notice and hearing, are so well established that additional dissertation in this opinion would be merely repetitious. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), Walker v. City of Hutchinson, 352 U.S. 112 (1956), Silver v. Castle Memorial Hospital, 53 Haw. 475, 497 P.2d 564 (1972), Kim Poo Kum v. Sugiyama, 33 Haw. 545 (1935).

However, in Stafford v. Dickison, 46 Haw. 52, 59-60, 374 P.2d 665, 670(1962), we cited, with approval,Linkv. Wabash Railroad Co., 370 U.S. 626 (1962), to-wit:

[T]he requirement of due process “does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The adequacy of notice and hearing respecting proceeding that may affect a party’s rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct.”

HRS § 286-155 definitively provides what must be stated in the affidavit and thus forewarns and gives appellant notice as to the contents of the affidavit. HRS § 286-156 then provides for a hearing to determine the truth and correctness of the statements in the affidavit and specifically delineates the issues that the district judge shall hear and determine. And though appellant was not served with a copy of the affidavit days prior to the date of hearing, since the provisions of HRS § 286-155 make it clear to the appellant what the affidavit must necessarily state and the appellant is further protected against surprise as to the scope of the hearing under HRS § 286-156, we are of the opinion that the relevant statutes are clear, unambiguous and provide the necessary constitutional procedural due process safeguards.

LAWFUL ARREST

Appellant’s final contention is that his arrest was unlawful in that there was no probable cause for the arresting officer to have made the arrest without a warrant. He further contends that, since HRS § 286-155 is only applicable after a lawful arrest, he should not have been required to submit to the “breath or blood” test.

The record indicates the following facts. When the arresting officer arrived at the arrest site, he observed that appellant’s car was damaged; that appellant was very unsteady on his feet and that he had a small cut on his lip. The officer then asked the appellant whether he had been involved in an automobile accident to which the appellant answered affirmatively. The appellant was then advised of his constitutional rights and responded that he was a lawyer and that he knew them. While engaged in this conversation the officer smelled alcohol on the appellant’s breath. The arresting officer then asked appellant if he had taken any intoxicating liquor and the appellant responded that he was not required to answer this question. The appellant then described to the arresting officer the circumstances of the accident by stating that he was on his way home at a rate of approximately fifteen miles per hour. Appellant stated that he was tired and that he had struck an unidentified telephone pole. At this point the officer placed the appellant under arrest.

In State v. Texeira, 50 Haw. 138, 142, 433 P.2d 593, 597 (1967), this court cited Carroll v. United States, 267 U.S. 132 (1925), in which case the United States Supreme Court stated:

Officers have probable cause to make an arrest when the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that [a crime was being committed].

In State v. Chong, 52 Haw. 226, 231, 473 P.2d 567, 571 (1970), we cited People v. Scott, 259 Cal. App. 2d 268, 66 Cal. Rptr. 257 (1968), with approval:

[P]robable cause [to arrest] is generally based upon a combination of factors, which together form a sort of mosaic, of which any one piece by itself often might not be enough to constitute probable cause, but which, when viewed as a whole, does constitute probable cause.

Based on the facts and circumstances put forth in the record, we are of the opinion that the arresting officer had probable cause to arrest appellant for the charges involved herein and that the subsequent request that he submit to the “breath or blood” test was lawful.²

Robert T. Gustafson, defendant-appellant, pro se. Adrienne Sepaniak, Deputy Prosecuting Attorney (Barry Chung, Prosecuting Attorney, with her on the brief) for plaintiff-appellee.

The other issues raised by appellant are without merit. The judgment of the circuit court is affirmed.

1 Magistrate is now entitled District Judge under Act 188, section 39, of the Session Laws of Hawaii 1970, effective January 1, 1972.

2 The appellant further contends that the officer, relying on HRS § 708-5, which reads:

§708-5, By policeman without warrant. Policemen, or other officers of justice, in any seaport or town, even in cases where it is not certain that an offense has been committed, may, without warrant, arrest and detain for examination such persons as may be found under such circumstances as justify a reasonable suspicion that they have committed or intend to commit an offense,

arrested appellant on reasonable suspicion and thus the arrest was unlawful. Appellant also maintains that said HRS § 708-5 is unconstitutional because it allows arrest without warrant based upon “reasonable suspicion”. Since it is not necessary to construe HRS 708-5 for the resolution of the instant case, we dispose of appellant’s contention by stating that arrest without warrant must be premised on probable canse.