State v. Berman

• Court: Hawaii Intermediate Court of Appeals
• Decided: September 22, 2025
• Docket: CAAP-23-0000355
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 22-SEP-2025 08:04 AM Dkt. 62 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellee, v. SHELDAN NANEA BERMAN, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT NORTH AND SOUTH KONA DIVISION (CASE NO. 3DTA-22-00218)

SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, Hiraoka and Guidry, JJ.)

Defendant-Appellant Sheldan Nanea Berman (Berman)

appeals from the District Court of the Third Circuit's (district

court) "Amended Judgment and Notice of Entry of Judgment"

(Amended Judgment), entered on April 24, 2023.1

Plaintiff-Appellee State of Hawaiʻi (State) charged

Berman with Operating a Vehicle Under the Influence of an

Intoxicant (OVUII), in violation of Hawaii Revised Statutes

1 The Honorable Kimberly B.M. Taniyama presided. NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

(HRS) § 291E-61(a)(1) and/or (a)(3) (2020).2 Berman filed a

motion to suppress evidence obtained from police officer Alysa

Gamache's (Officer Gamache) stop and arrest of Berman.

The district court denied Berman's motion to suppress,

and, at trial, Officer Gamache testified that she administered a

standardized field sobriety test (SFST) to Berman on January 15,

2022. The SFST was comprised of three parts: Horizontal Gaze

Nystagmus (HGN); Walk-and-Turn; and One-Leg-Stand. Officer

Gamache testified that Berman exhibited the following signs of

intoxication: six out of six HGN clues; six out of eight Walk-

and-Turn clues; and three out of four One-Leg-Stand clues. The

district court found Berman guilty of OVUII.

Berman contends on appeal that "[t]he [d]istrict

[c]ourt erred in denying Berman's [m]otion to [s]uppress as to

Officer Gamache's SFST testimony." Upon careful review of the

record, briefs, and relevant legal authorities, and having given

due consideration to the arguments advanced and the issues

raised by the parties, we resolve Berman's point of error as

follows.

"We review the trial court's ruling on a motion to

suppress de novo and must look to the entire record on appeal to

determine whether the ruling was right or wrong." State v.

2 The State also charged Berman with Driving Without a License, in violation of HRS § 286-102(b)(3) (2020). That charge was dismissed with prejudice, and is not at issue on appeal.

2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Skapinok, 151 Hawaiʻi 170, 179, 510 P.3d 599, 608 (2022) (cleaned

up).

Officer Gamache agreed, on cross-examination at the

hearing on Berman's motion to suppress, that she told Berman:

"Here's the deal. If you do [the SFST] and you pass I'll let

you go." Berman contends that Officer Gamache's statement

constituted "verbal judo" intended "to trick Berman into

believing that the only way that Berman could leave would be by

submitting to the SFST," and, on this basis, that Berman's

participation in the SFST could not be considered voluntary.3

On this record, we conclude that the district court

did not err by not suppressing Officer Gamache's statements at

trial. At the outset, we note that participation in the SFST

itself does not implicate any right of constitutional dimension,

such that the use at trial of a driver's refusal to participate

in an SFST does not violate the driver's constitutional rights:

In State v. Wyatt, 67 Haw. 293, 687 P.2d 544 (1984), the Hawaiʻi Supreme Court explained that the fifth amendment and article I, section 10 [of the Hawaiʻi Constitution] prohibit the State from compelling "communications" or "testimony" from a defendant. Deciding that the field sobriety test involves nothing more than an "exhibition of 'physical characteristics of coordination,'" the supreme court held that the State, through the field sobriety test, seeks neither "communications" nor "testimony" from a defendant. Hence, the supreme court concluded that the test, even if compelled, does not run afoul of the constitutional prohibition against compulsory self-incrimination.

3 At the suppression hearing, Officer Gamache testified that the term "verbal judo" was "a technique that [they're] taught basically to kind of get voluntary compliance." (Emphasis added.)

3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

The supreme court also held that the field sobriety test does not infringe a defendant's constitutional right, under the fourth amendment to the United States Constitution and article I, section 7 of the Hawaiʻi State Constitution, to be secure from unreasonable searches, seizures[,] and invasions of privacy.

Following Wyatt, we reason that because no right of constitutional dimension is implicated by the field sobriety test, no fundamental right was chilled by the court in weighing [the d]efendant's refusal against him.

State v. Ferm, 94 Hawaiʻi 17, 28, 7 P.3d 193, 204 (App. 2000)

(bold emphasis added) (citations omitted).

Moreover, to the extent that participation in an SFST

is voluntary, we conclude that Officer Gamache's statement,

considered in the context of the record,4 did not coerce Berman's

participation. The footage from Officer Gamache's bodycam,

which was accepted as the State's Exhibit 3 and published during

the trial, shows that Officer Gamache expressly asked Berman "if

[Berman] wanna [sic] consent to do the DUI test or [SFST]."

When Berman asked, "[d]o we have to do this," Officer Gamache

responded "[y]ou don't have to." At that point, Berman told

Officer Gamache: "I'm new at this. I just -- I'm just trying to

get to my friend. I don't have to do any of this." To which

4 The record reflects that Officer Gamache asked Berman to participate in the SFST after observing that Berman's car was "traveling at a high rate of speed[,] . . . swerved towards the vehicle in front of [Officer Gamache's vehicle], [as] it crossed the double solid yellow line[,] . . . cross[ed] the solid white [fog] line," and came to a stop in obstruction of a driveway. Officer Gamache also observed that Berman had "red, watery, glassy eyes, slurred speech[,] and the smell of an intoxicating beverage."

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Officer Gamache replied: "[I]f you do [the SFST] and you pass

I'll let you go, but that's the deal here."

Officer Gamache explained that it is not standard

police practice to present a "conditional offer" to a driver or

to characterize the SFST as "pass or fail."5 Nevertheless, as

relevant here, Officer Gamache's response left to Berman the

decision of whether to participate in the SFST.

Berman argues that, without Officer Gamache's

testimony as to Berman's performance on the SFST, i.e., if

the SFST testimony had been suppressed, there would be

insufficient evidence to support the OVUII conviction. As we

have concluded that the district court did not err in admitting

the SFST testimony into evidence, this argument is without

merit.

We therefore affirm.

DATED: Honolulu, Hawaiʻi, September 22, 2025

On the briefs: /s/ Karen T. Nakasone Chief Judge Jon N. Ikenaga, Deputy Public Defender, /s/ Keith K. Hiraoka for Defendant-Appellant. Associate Judge

Stephen L. Frye, /s/ Kimberly T. Guidry Deputy Prosecuting Attorney, Associate Judge County of Hawaiʻi, for Plaintiff-Appellee.

5 Officer Gamache clarified that she did not grade Berman's SFST on a "pass-or-fail basis," and that she graded the SFST "based on the totality of the circumstances." Officer Gamache explained that, "[she] use[s] the terms 'pass' or 'fail' usually because it is easier for people to kind of understand . . . what [she's] looking at and -- and what [she's] doing."