NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 26-SEP-2024 07:55 AM Dkt. 80 SO
CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. WAILANI K. AH MOW, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (WAHIAWA DIVISION) (CASE NO. 1DTA-20-01426)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Guidry, JJ.)
Defendant-Appellant Wailani K. Ah Mow (Ah Mow) appeals
from the March 11, 2021 Notice of Entry of Judgment and/or Order
and Plea/Judgment (Judgment) entered against him by the District
Court of the First Circuit, Wahiawa Division (District Court).1
Ah Mow was convicted of the offenses of Operating a Vehicle Under
the Influence of an Intoxicant (OVUII) in violation of Hawaii
1 The Honorable Michelle N. Comeau presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Revised Statutes (HRS) § 291E-61(a)(1) and (b)(2) (2020),2 and
the offense of Excessive Speeding in violation of HRS § 291C-
105(a)(2) and (c)(1) (2020).3
Ah Mow raises two points of error, contending that the
District Court abused its discretion: (1) in accepting into
evidence the results of the Stalker XLR LIDAR speed gun (the
2 HRS § 291E-61(a)(1) and (b)(2) provides, in relevant part:
§ 291E-61 Operating a vehicle under the influence of an intoxicant. (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 amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty; . . . .
(b) A person committing the offense of operating a vehicle under the influence of an intoxicant shall be sentenced without possibility of probation or suspension of sentence as follows:
. . . .
(2) For an offense that occurs within ten years of a prior conviction for an offense under this section or section 291E-4(a)[.] 3 HRS § 291C-105(a)(2) and (c)(1) provides, in relevant part: § 291C-105 Excessive speeding. (a) No person shall drive a motor vehicle at a speed exceeding:
. . . . (2) Eighty miles per hour or more irrespective of the applicable state or county speed limit. . . . .
(c) Any person who violates this section shall be guilty of a petty misdemeanor and shall be sentenced as follows without the possibility of probation or suspension of sentence: (1) For a first offense not preceded by a prior conviction for an offense under this section in the preceding five years[.]
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
LIDAR) because there was insufficient foundation showing that
Honolulu Police Department (HPD) Sergeant Jesse Takushi (Sergeant
Takushi) received training that met the LIDAR manufacturer's
requirements; and (2) in finding there was sufficient foundation
for HPD Officer Art Gazelle's (Officer Gazelle's) testimony
regarding Ah Mow's performance on the standardized field sobriety
test (SFST).
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 by the parties, we
resolve Ah Mow's points of error as follows:
(1) Ah Mow argues that the District Court abused its
discretion in admitting the results of the LIDAR reading because
there was insufficient foundation to show that Sergeant Takushi's
training met the manufacturer's requirements, as required by
State v. Assaye, 121 Hawai#i 204, 210, 216 P.3d 1227, 1233
(2009).
The Hawai#i Supreme Court has held: In order to establish a sufficient foundation for the admission of a speed reading from a laser gun, the prosecution is required to produce evidence that the "nature and extent of an officer's training in the operation of the laser gun meets the requirements indicated by the manufacturer." [Assaye, 121 Hawai#i at 215, 216 P.3d at 1238]. "[T]o meet this burden the prosecution must establish both (1) the requirements indicated by the manufacturer, and (2) the training actually received by the operator of the laser gun." [State v.] Gonzalez, 128 Hawai#i [314,] 327, 288 P.3d [788,] 801 [(2012)].
State v. Amiral, 132 Hawai#i 170, 178, 319 P.3d 1178, 1186
(2014).
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Here, Sergeant Takushi testified that in conjunction
with his training he received and reviewed an operator's manual
issued by Applied Concepts/Stalker, the manufacturer of the LIDAR
device, which had the LIDAR on the front cover, and the
manufacturer's copyright on the back. He testified as to the
specifics of his training and the manufacturer's recommendations.
Sergeant Takushi testified to taking two training courses, in
March of 2018 and January of 2019, one conducted by HPD Officer
Ryan Espiritu, who had received instructor training and certification by Stalker, and one conducted by Steven Hocker, a
representative from Stalker. The training included in-class and
practical training, going over the manual, hands-on training and
practice with the LIDAR, and written and practical tests.
Sergeant Takushi testifed that he was trained to conduct the four
accuracy tests at both training sessions, and he testified as to
the details of each of the four tests for inspecting and testing
the accuracy of the LIDAR device. He testified as to how he was
trained to obtain a speed measurement and how to read the
accuracy results, as well as the results of the speed
measurement. Thus, we conclude that the District Court did not
abuse its discretion in determining that there was sufficient
foundation to establish Sergeant Takushi's training as foundation
for the admission of the LIDAR speed reading.
(2) The District Court determined and informed the
parties that it would treat Officer Gazelle as a lay witness, not
an expert witness, and that the court would allow Officer Gazelle
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
to testify as to his observations of Ah Mow, not as "clues of
intoxication."
It is well-established that an arresting officer is
permitted to testify as to his or her observations of a
defendant's physical performance on an SFST. See State v.
Ferrer, 95 Hawai#i 409, 427, 23 P.3d 744, 762 (App. 2001).
However, effective prior to Ah Mow's arrest, the supreme court
held that police officers can no longer testify, in either a lay
or an expert capacity, that a driver appeared to be intoxicated. State v. Jones, 148 Hawai#i 152, 174, 468 P.3d 166, 188 (2020).4
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 26-SEP-2024 07:55 AM Dkt. 80 SO
CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. WAILANI K. AH MOW, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (WAHIAWA DIVISION) (CASE NO. 1DTA-20-01426)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Guidry, JJ.)
Defendant-Appellant Wailani K. Ah Mow (Ah Mow) appeals
from the March 11, 2021 Notice of Entry of Judgment and/or Order
and Plea/Judgment (Judgment) entered against him by the District
Court of the First Circuit, Wahiawa Division (District Court).1
Ah Mow was convicted of the offenses of Operating a Vehicle Under
the Influence of an Intoxicant (OVUII) in violation of Hawaii
1 The Honorable Michelle N. Comeau presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Revised Statutes (HRS) § 291E-61(a)(1) and (b)(2) (2020),2 and
the offense of Excessive Speeding in violation of HRS § 291C-
105(a)(2) and (c)(1) (2020).3
Ah Mow raises two points of error, contending that the
District Court abused its discretion: (1) in accepting into
evidence the results of the Stalker XLR LIDAR speed gun (the
2 HRS § 291E-61(a)(1) and (b)(2) provides, in relevant part:
§ 291E-61 Operating a vehicle under the influence of an intoxicant. (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 amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty; . . . .
(b) A person committing the offense of operating a vehicle under the influence of an intoxicant shall be sentenced without possibility of probation or suspension of sentence as follows:
. . . .
(2) For an offense that occurs within ten years of a prior conviction for an offense under this section or section 291E-4(a)[.] 3 HRS § 291C-105(a)(2) and (c)(1) provides, in relevant part: § 291C-105 Excessive speeding. (a) No person shall drive a motor vehicle at a speed exceeding:
. . . . (2) Eighty miles per hour or more irrespective of the applicable state or county speed limit. . . . .
(c) Any person who violates this section shall be guilty of a petty misdemeanor and shall be sentenced as follows without the possibility of probation or suspension of sentence: (1) For a first offense not preceded by a prior conviction for an offense under this section in the preceding five years[.]
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
LIDAR) because there was insufficient foundation showing that
Honolulu Police Department (HPD) Sergeant Jesse Takushi (Sergeant
Takushi) received training that met the LIDAR manufacturer's
requirements; and (2) in finding there was sufficient foundation
for HPD Officer Art Gazelle's (Officer Gazelle's) testimony
regarding Ah Mow's performance on the standardized field sobriety
test (SFST).
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 by the parties, we
resolve Ah Mow's points of error as follows:
(1) Ah Mow argues that the District Court abused its
discretion in admitting the results of the LIDAR reading because
there was insufficient foundation to show that Sergeant Takushi's
training met the manufacturer's requirements, as required by
State v. Assaye, 121 Hawai#i 204, 210, 216 P.3d 1227, 1233
(2009).
The Hawai#i Supreme Court has held: In order to establish a sufficient foundation for the admission of a speed reading from a laser gun, the prosecution is required to produce evidence that the "nature and extent of an officer's training in the operation of the laser gun meets the requirements indicated by the manufacturer." [Assaye, 121 Hawai#i at 215, 216 P.3d at 1238]. "[T]o meet this burden the prosecution must establish both (1) the requirements indicated by the manufacturer, and (2) the training actually received by the operator of the laser gun." [State v.] Gonzalez, 128 Hawai#i [314,] 327, 288 P.3d [788,] 801 [(2012)].
State v. Amiral, 132 Hawai#i 170, 178, 319 P.3d 1178, 1186
(2014).
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Here, Sergeant Takushi testified that in conjunction
with his training he received and reviewed an operator's manual
issued by Applied Concepts/Stalker, the manufacturer of the LIDAR
device, which had the LIDAR on the front cover, and the
manufacturer's copyright on the back. He testified as to the
specifics of his training and the manufacturer's recommendations.
Sergeant Takushi testified to taking two training courses, in
March of 2018 and January of 2019, one conducted by HPD Officer
Ryan Espiritu, who had received instructor training and certification by Stalker, and one conducted by Steven Hocker, a
representative from Stalker. The training included in-class and
practical training, going over the manual, hands-on training and
practice with the LIDAR, and written and practical tests.
Sergeant Takushi testifed that he was trained to conduct the four
accuracy tests at both training sessions, and he testified as to
the details of each of the four tests for inspecting and testing
the accuracy of the LIDAR device. He testified as to how he was
trained to obtain a speed measurement and how to read the
accuracy results, as well as the results of the speed
measurement. Thus, we conclude that the District Court did not
abuse its discretion in determining that there was sufficient
foundation to establish Sergeant Takushi's training as foundation
for the admission of the LIDAR speed reading.
(2) The District Court determined and informed the
parties that it would treat Officer Gazelle as a lay witness, not
an expert witness, and that the court would allow Officer Gazelle
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
to testify as to his observations of Ah Mow, not as "clues of
intoxication."
It is well-established that an arresting officer is
permitted to testify as to his or her observations of a
defendant's physical performance on an SFST. See State v.
Ferrer, 95 Hawai#i 409, 427, 23 P.3d 744, 762 (App. 2001).
However, effective prior to Ah Mow's arrest, the supreme court
held that police officers can no longer testify, in either a lay
or an expert capacity, that a driver appeared to be intoxicated. State v. Jones, 148 Hawai#i 152, 174, 468 P.3d 166, 188 (2020).4
Contrary to Ah Mow's assertions, as made clear in the
District Court's oral findings and conclusions, the District
Court properly considered Officer Gazelle's testimony recounting
his observations of Ah Mow's physical actions and conduct as he
performed the SFST. Officer Gazelle did not state an opinion as
to Ah Mow's intoxication in his testimony; nor did the court
improperly rely on any such opinion testimony. Rather, the court
credited the officer's testimony based on the detail and
description that was given concerning the officer's observations.
Finally, Ah Mow submits that because the SFST "results"
should not have been considered, there was insufficient evidence
to support his conviction of OVUII. As we have rejected his
challenge to Officer Gazelle's testimony, we conclude this
argument is without merit.
4 Nor can an officer testify that a defendant passed or failed an SFST. Jones, 148 Hawai#i at 170, 468 P.3d at 184.
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
For these reasons, the District Court's March 11, 2021
Judgment is affirmed.
DATED: Honolulu, Hawai#i, September 26, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge William Bagasol, for Defendant-Appellant. /s/ Keith K. Hiraoka Associate Judge Stephen K. Tsushima, Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry City and County of Honolulu, Associate Judge for Plaintiff-Appellee.