NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-DEC-2025 07:57 AM Dkt. 42 SO NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
STATE OF HAWAI I, Plaintiff-Appellee, v. TIHANI ARBOGAST, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT WAILUKU DIVISION (CASE NO. 2DTA-23-00334)
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.) Defendant-Appellant Tihani Arbogast (Arbogast) appeals
from the November 17, 2023 Judgment and Notice of Entry of
Judgment (Judgment), entered by the Wailuku Division of the
District Court of the Second Circuit (District Court).1 Arbogast
also challenges the District Court's November 17, 2023 Findings
of Fact; Conclusions of Law; Decision and Order Denying Defendant
[Arbogast's] Motion to Suppress Evidence [(Motion to Suppress)]
Filed October 20, 2023 (FOFs/COLs), entered in favor of
Plaintiff-Appellee State of Hawai i (State).
Arbogast raises a single point of error on appeal,
contending that the District Court's COLs 18, 19, 21, and
1 The Honorable Christopher M. Dunn entered the Judgment; the Honorable Blaine J. Kobayashi presided over the hearing on the Motion to Suppress and entered the FOFs/COLs. NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
footnote 2 are plainly erroneous as a matter of law, and that
field sobriety tests (FSTs) constitute warrantless searches and
seizures under Haw. Const. art. I, § 7 and are presumed
unreasonable unless they fall within a well-defined exception to
the warrant requirement. Arbogast also argues that the Motion to
Suppress sufficiently raised and adequately provided notice to
both the prosecution and the District Court that one of the
grounds for her motion was that the prosecution failed to
establish probable cause to arrest Arbogast.
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
Arbogast's point of error as follows:
On May 18, 2023, the State filed its Complaint and
charged Arbogast with the offense of Operating a Vehicle Under
the Influence of an Intoxicant (OVUII) in violation of Hawaii
Revised Statutes § 291E-61 (a)(1) and/or 291E-61 (a)(3) (2021).
It is undisputed that on May 7, 2023, at around 1:30 a.m., Maui
Police Department Officer Rahul Mehra (Officer Mehra) observed a
certain SUV (SUV) traveling in front of him, that Officer Mehra
observed the SUV travel over the white fog line for
"approximately one second," then later observed the SUV drift to
the left and over the double solid yellow line, then finally
observed the SUV drift right again with the passenger tires
traveling over the white fog line again. Officer Mehra then
effectuated a traffic stop. Arbogast was the operator of the
2 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
SUV; a female passenger was in the front seat. As Officer Mehra
informed Arbogast of the reason for the stop, he detected the
odor of liquor coming from within the subject vehicle and the
female passenger admitted that she had been drinking; Officer
Mehra, after obtaining Arbogast's driver's license, registration,
and insurance, detected an odor of liquor on Arbogast and that
she had red, watery eyes. Arbogast denied having anything to
drink. Officer Mehra then directed Arbogast to step out of the
subject vehicle to participate in the FST.
Arbogast originally pleaded not guilty, and filed the
Motion to Suppress. The thrust of Arbogast's Motion to Suppress
was that FSTs constitute both a warrantless search and/or seizure
within the meaning of Haw. Const. art. I, §§ 6 and 7, and thus
that for such warrantless searches and/or seizures to be valid, a
defendant would need to consent to such FSTs; thus, consent by
the defendant in the context of an FST constitutes a voluntary
waiver whereas the absence of consent does not. In the
introductory paragraph of the motion, Arbogast included that
"[t]his motion is made on the grounds that [Arbogast's] seizure
and subsequent arrest were unlawful, having lacked reasonable
suspicion, probable cause or lawful consent[.]"
On October 27, 2023, the District Court held a hearing
on the Motion to Suppress. Officer Mehra was the only testifying
witness. No testimony was elicited by either party regarding
probable cause for Arbogast's arrest.
On November 17, 2023, the District Court issued its
FOFs/COLs in favor of the State, and in a footnote stated that:
3 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
At the conclusion of the hearing on the Motion, counsel for Defendant also argued that the State failed to set forth sufficient facts to establish probable cause for the OVUII arrest. This argument is unavailing. Aside from simply stating so in a single sentence in the introductory paragraph of the Motion, it is clear from the body of the Motion that lack of probable cause was not a ground for the Motion. Accordingly, the Court respectfully declines to address this issue.
On the same day, Arbogast entered a conditional guilty plea
reserving the right to appeal from the judgment to seek review of
the Motion to Suppress.
The challenged COLs are as follows: 18. Standardized field sobriety tests do not infringe upon a defendant's constitutional right, under the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Hawai i State Constitution, to be secure from unreasonable searches, seizures, and invasions of privacy. These tests involve nothing more than an exhibition of physical characteristics of coordination. The tests seek neither communications nor testimony from a defendant. The tests, even if compelled, do not run afoul of the constitutional prohibition against compulsory self- incrimination. State v. Wyatt, 67 Haw. 293, 301-03 (1984) (emphasis added).
19. Defendant's consent to the SFSTs was not required.
. . . .
21. Even assuming, arguendo, consent was required, based on the court's review of the totality of the circumstances, Defendant freely and voluntarily consented to participate in the SFSTs, and there was also no evidence of any force or compulsion on the part of Officer Mehra for Defendant to consent to participate in the SFSTs.
"A trial court's conclusions of law are reviewed de
novo under the right/wrong standard." State v. Kalua, 144
Hawai i 7, 10, 434 P.3d 1202, 1205 (2019) (quoting State v.
Adler, 108 Hawai i 169, 174, 118 P.3d 652, 657 (2005)).
It is well settled that an FST does not infringe upon a
defendant's constitutional rights, under the Fourth Amendment to
the United States Constitution and article I, section 7 of the
Hawai i State Constitution, to be secure from unreasonable
4 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
searches, seizures and invasions of privacy, even if compelled.
State v. Wyatt, 67 Haw. 293, 303-06, 687 P.2d 544, 551-53 (1984);
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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-DEC-2025 07:57 AM Dkt. 42 SO NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
STATE OF HAWAI I, Plaintiff-Appellee, v. TIHANI ARBOGAST, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT WAILUKU DIVISION (CASE NO. 2DTA-23-00334)
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.) Defendant-Appellant Tihani Arbogast (Arbogast) appeals
from the November 17, 2023 Judgment and Notice of Entry of
Judgment (Judgment), entered by the Wailuku Division of the
District Court of the Second Circuit (District Court).1 Arbogast
also challenges the District Court's November 17, 2023 Findings
of Fact; Conclusions of Law; Decision and Order Denying Defendant
[Arbogast's] Motion to Suppress Evidence [(Motion to Suppress)]
Filed October 20, 2023 (FOFs/COLs), entered in favor of
Plaintiff-Appellee State of Hawai i (State).
Arbogast raises a single point of error on appeal,
contending that the District Court's COLs 18, 19, 21, and
1 The Honorable Christopher M. Dunn entered the Judgment; the Honorable Blaine J. Kobayashi presided over the hearing on the Motion to Suppress and entered the FOFs/COLs. NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
footnote 2 are plainly erroneous as a matter of law, and that
field sobriety tests (FSTs) constitute warrantless searches and
seizures under Haw. Const. art. I, § 7 and are presumed
unreasonable unless they fall within a well-defined exception to
the warrant requirement. Arbogast also argues that the Motion to
Suppress sufficiently raised and adequately provided notice to
both the prosecution and the District Court that one of the
grounds for her motion was that the prosecution failed to
establish probable cause to arrest Arbogast.
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
Arbogast's point of error as follows:
On May 18, 2023, the State filed its Complaint and
charged Arbogast with the offense of Operating a Vehicle Under
the Influence of an Intoxicant (OVUII) in violation of Hawaii
Revised Statutes § 291E-61 (a)(1) and/or 291E-61 (a)(3) (2021).
It is undisputed that on May 7, 2023, at around 1:30 a.m., Maui
Police Department Officer Rahul Mehra (Officer Mehra) observed a
certain SUV (SUV) traveling in front of him, that Officer Mehra
observed the SUV travel over the white fog line for
"approximately one second," then later observed the SUV drift to
the left and over the double solid yellow line, then finally
observed the SUV drift right again with the passenger tires
traveling over the white fog line again. Officer Mehra then
effectuated a traffic stop. Arbogast was the operator of the
2 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
SUV; a female passenger was in the front seat. As Officer Mehra
informed Arbogast of the reason for the stop, he detected the
odor of liquor coming from within the subject vehicle and the
female passenger admitted that she had been drinking; Officer
Mehra, after obtaining Arbogast's driver's license, registration,
and insurance, detected an odor of liquor on Arbogast and that
she had red, watery eyes. Arbogast denied having anything to
drink. Officer Mehra then directed Arbogast to step out of the
subject vehicle to participate in the FST.
Arbogast originally pleaded not guilty, and filed the
Motion to Suppress. The thrust of Arbogast's Motion to Suppress
was that FSTs constitute both a warrantless search and/or seizure
within the meaning of Haw. Const. art. I, §§ 6 and 7, and thus
that for such warrantless searches and/or seizures to be valid, a
defendant would need to consent to such FSTs; thus, consent by
the defendant in the context of an FST constitutes a voluntary
waiver whereas the absence of consent does not. In the
introductory paragraph of the motion, Arbogast included that
"[t]his motion is made on the grounds that [Arbogast's] seizure
and subsequent arrest were unlawful, having lacked reasonable
suspicion, probable cause or lawful consent[.]"
On October 27, 2023, the District Court held a hearing
on the Motion to Suppress. Officer Mehra was the only testifying
witness. No testimony was elicited by either party regarding
probable cause for Arbogast's arrest.
On November 17, 2023, the District Court issued its
FOFs/COLs in favor of the State, and in a footnote stated that:
3 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
At the conclusion of the hearing on the Motion, counsel for Defendant also argued that the State failed to set forth sufficient facts to establish probable cause for the OVUII arrest. This argument is unavailing. Aside from simply stating so in a single sentence in the introductory paragraph of the Motion, it is clear from the body of the Motion that lack of probable cause was not a ground for the Motion. Accordingly, the Court respectfully declines to address this issue.
On the same day, Arbogast entered a conditional guilty plea
reserving the right to appeal from the judgment to seek review of
the Motion to Suppress.
The challenged COLs are as follows: 18. Standardized field sobriety tests do not infringe upon a defendant's constitutional right, under the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Hawai i State Constitution, to be secure from unreasonable searches, seizures, and invasions of privacy. These tests involve nothing more than an exhibition of physical characteristics of coordination. The tests seek neither communications nor testimony from a defendant. The tests, even if compelled, do not run afoul of the constitutional prohibition against compulsory self- incrimination. State v. Wyatt, 67 Haw. 293, 301-03 (1984) (emphasis added).
19. Defendant's consent to the SFSTs was not required.
. . . .
21. Even assuming, arguendo, consent was required, based on the court's review of the totality of the circumstances, Defendant freely and voluntarily consented to participate in the SFSTs, and there was also no evidence of any force or compulsion on the part of Officer Mehra for Defendant to consent to participate in the SFSTs.
"A trial court's conclusions of law are reviewed de
novo under the right/wrong standard." State v. Kalua, 144
Hawai i 7, 10, 434 P.3d 1202, 1205 (2019) (quoting State v.
Adler, 108 Hawai i 169, 174, 118 P.3d 652, 657 (2005)).
It is well settled that an FST does not infringe upon a
defendant's constitutional rights, under the Fourth Amendment to
the United States Constitution and article I, section 7 of the
Hawai i State Constitution, to be secure from unreasonable
4 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
searches, seizures and invasions of privacy, even if compelled.
State v. Wyatt, 67 Haw. 293, 303-06, 687 P.2d 544, 551-53 (1984);
see also State v. Uchima, 147 Hawai i 64, 84–85, 464 P.3d 852
872–73 (2020). COLs 18, 19, and 21 correctly reflect the well-
settled law on this issue. Thus, Arbogast's arguments to the
contrary are without merit.
Arbogast further argues that the Motion to Suppress
should have been granted because the State did not establish
probable cause for her arrest during the hearing on the Motion to
Suppress. The District Court correctly noted that Arbogast had
not argued that the State failed to set forth sufficient facts to
establish probable cause for the OVUII arrest in the Motion to
Suppress, except for a passing reference in the introductory
paragraph of the motion, and that Arbogast merely repeated this
bare assertion at the conclusion of the hearing on the motion.
Hawai i Rules of Penal Procedure Rule 47 requires that a motion
made in writing or orally shall state the grounds upon which it
is made. Arbogast did not state, in her Motion to Suppress, the
grounds on which the State allegedly failed to establish probable
cause and instead argued at length about the FST issues discussed
supra. Moreover, Arbogast offers no support for the proposition
that evidence of Arbogast's performance on an FST must be
suppressed because probable cause to arrest Arbogast for OVUII
had not been established prior to the administration of the FST.
Accordingly, we conclude that this argument is without merit.
5 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
For these reasons, the District Court's November 17,
2023 Judgment is affirmed.
DATED: Honolulu, Hawai i, December 23, 2025.
On the briefs: /s/ Katherine G. Leonard Presiding Judge Hayden Aluli, for Defendant-Appellant. /s/ Keith K. Hiraoka Associate Judge Renee Ishikawa Delizo, Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry County of Maui, Associate Judge for Plaintiff-Appellee.