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Hawai’i Supreme Court Announces Police Officers May Not Testify That Driver Appeared Intoxicated, Overruling Toyomura

Maxwell F. Jones was convicted following a bench trial of operating a vehicle under the influence of an intoxicant (“OVUII”) in violation of Hawai’i Revised Statutes (“HRS”) § 291E-(a)(1) (Supp. 2014).

During Jones’ trial, arresting officer Joshua Wong testified as an expert for the State. He testified, over objection, that because Jones “failed” standard field sobriety tests (“SFST”), Jones was intoxicated. On cross-examination, Wong was asked whether “the conclusion of intoxication is not based on the field sobriety test, [but] the conclusion of intoxication is based upon what further testing is done at the police station, blood or breath or whatever?” Wong answered, “No, because if the person refuses to take a test, then how would we come to the conclusion that they’re intoxicated?”

In his appeal to the Intermediate Court of Appeals (“ICA”), Jones raised numerous assignments of error challenging Wong’s testimony. The ICA affirmed Jones’ conviction, and the Hawai’i Supreme Court granted Jones’ certiorari application.

While the Court was addressing the merits of Jones’ appeal, it revisited the issue of allowing police officers to testify that a “driver appeared intoxicated.” The Court first concluded that “[t]o the extent the ICA stated that an officer’s lay opinion testimony can be based on SFST results, this conclusion was erroneous under existing law.” While officers may base their lay opinion that an arrestee was not sober on their lay observations of the arrestee (e.g., physical condition and coordination), Hawai’i Rules of Evidence (“HRE”) Rule 701 prohibits basing a lay opinion on their “assessment of the results of the” SFST. State v. Bebb, 53 P.3d 1198 (Haw. App. 2001). An opinion based on such an assessment would not be based on the officers’ perception. Id. In Toyomura, the Court ruled that if sufficient foundation was laid, an officer could testify as an expert that a suspect was intoxicated, and the officer could offer a lay opinion that a driver was intoxicated based on general observations of the driver’s coordination.

But in State v. Vliet, 983 P.2d 189 (Haw. 1999), the Court ruled that HRE Rule 704 prohibits a witness, whether in a lay or expert capacity, from expressing an opinion that simply tells a factfinder what result to reach. HRE Rule 704 also does not allow a witness to give legal conclusions. Vliet. Based on that, the Vliet Court ruled that an officer’s testimony that a defendant’s state of sobriety “would have been over the legal limit” was impermissible. His testimony that the defendant “did poorly, he would be driving poorly too” was also impermissible. The Court determined that there was no qualitative distinction between the testimony in Vliet and testimony that a driver was intoxicated or appeared intoxicated. Both invade the province of the factfinder, and both are legal conclusions.

The Court observed that Webster’s Third International Dictionary defines “intoxicated” as “being under the marked influence of an intoxicant: drunk, inebriated.” The ultimate issue to be decided by the factfinder in an OVUII case is whether a person drove “[w]hile under the influence of alcohol in an amount sufficient to impair the person’s normal faculties or ability to care for the person and guard against casualty....” HRS § 293E-61(a)(1). When a witness tells the factfinder the driver was intoxicated, the witness has decided the ultimate issue for the factfinder. Further, the witness has made a legal conclusion. Both violate HRE Rule 704, the Court explained.

While not necessary to the Court’s holding in the present case, the Court announced: “We therefore prospectively hold that for trials occurring after the date of this opinion, police officers may no longer testify, whether in a lay or expert capacity, that a driver appeared ‘intoxicated.’”

Because this was a new rule that changed standards upon which courts and law enforcement had relied, it was given purely prospective effect. Lewis v. State, 452 P.3d 330 (Haw. 2019).

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Related legal case

State v. Jones



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