State v. DiBenedetto

906 P.2d 624, 80 Haw. 138
CourtHawaii Intermediate Court of Appeals
DecidedNovember 3, 1995
Docket16893
StatusPublished
Cited by11 cases

This text of 906 P.2d 624 (State v. DiBenedetto) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. DiBenedetto, 906 P.2d 624, 80 Haw. 138 (hawapp 1995).

Opinions

ACOBA, Judge.

Defendant-Appellant Gary R. Dibenedetto (Defendant) was charged in an August 13, 1991 Complaint with Driving Under the Influence of Intoxicating Liquor (DUI) in violation of either Hawaii Revised Statutes (HRS) § 291-4(a)(l) (Supp.1992) (Count I) or HRS § 291-4(a)(2) (Supp.1992)1 (Count II) and with Non-Compliance with Speed Limit in violation of HRS § 291C-102 (1993) (Count III). After a jury trial on February [141]*1412, 1993, Defendant was found guilty on all counts. The court sentenced Defendant and entered judgment on February 5, 1993. We affirm.

I.

On April 18, 1991, Officer Lester Hite (Officer Hite) was on duty on the midnight shift, driving on South King Street in the Koko Head direction2 on the island of 0‘ahu. Defendant’s vehicle “quickly” passed him on the left and moved in front of the officer. The officer was traveling thirty miles per hour, the speed limit for that area. Officer Hite then “sped up and maintained a distance of about four car lengths [from Defendant’s vehicle] and monitored [Defendant’s] speed ... [at] approximately thirty-eight miles an hour.” After “clocking” Defendant in this manner for “[a]pproximately three-tenths of a mile[,]” Officer Hite followed Defendant into a parking lot at approximately 11:50 p.m.

In the parking lot, Officer Hite observed Defendant’s vehicle turn “quickly” into an open space, “str[ike] [a] raised curb[,] ... [move] up on the curb and eventually roll[ ] back down into the [parking] space.” The officer stopped behind Defendant’s car. When Defendant exited, Officer Hite approached him. Standing within three feet of Defendant, the officer “detected a moderate odor of alcohol [on Defendant’s] breath” and observed that Defendant’s “eyes appeared to be bloodshot and glassy.” Officer Hite also noticed that Defendant’s “speech appeared ... to be slurred somewhat.”

Officer Hite then requested Defendant to perform a field sobriety test which consisted of three parts—the “horizontal walk and turn,” the “one-leg stand,” and the “count to thirty” during the one-leg stand. In the officer’s opinion, Defendant failed the tests, and he arrested Defendant for “speeding and driving under the influence of alcohol[.]”

During cross-examination, Officer Hite testified, in part, as follows:

Q. [ (Defense counsel) ] ... earlier you testified that you don’t remember all the particulars of this field sobriety test that you refreshed your memory ... using this sheet and the other sheets that you filled out?
A. [(Officer Hite)] Yes.
[[Image here]]
Q. ... how big [was] the gap [between Defendant’s heel and toe] on that fourth step ... [in the “horizontal walk and turn”]?
A. I don’t recall exactly the distance of the gap, no.
Q. You don’t recall the distance of the gap so you are basically testifying to that distance on that gap from ... this sheet of paper....
A. Yes.
Q. Without memory of what actually happened?
A. Yes.
[[Image here]]
Q. ... is it fair to say that your memory as to what the actual events are is pretty cloudy ... what you have is memory of your recently reviewing this field sobriety test [document]?
A. Yes.

(Emphases added.)

Defense counsel argued that the officer was not testifying from his “independent recollection” but “testifying off of the written [police] report” and moved to strike the officer’s testimony. The court ruled that the matter was for the jury to determine.

[Defense counsel]: Your Honor, it seems that he’s not testify [sic] of his independent recollection of the night in question and I move to strike all of his testimony since he’s not able to remember. He’s just testifying off of the written report which I don’t think satisfies the standard of admissible [sic] for evidence in the trial.
[Deputy Prosecutor]: The State would argue that he said on the field sobriety test, he doesn’t have a clear memory of all the facts of the field sobriety test and he says he does not [sic] have an independent [142]*142recollection of the arrest of the speeding as well as talking to the defendant.
THE COURT: All right. I note the objection for the record. It’s for the jury to make a determination on that basis. I think that’s entirely appropriate for the jury to determine this initial testimony.

(Emphasis added.)

Officer Hite testified that another officer arrived at their location to transport Defendant to the police station. At the station, Officer Hite explained Hawaii’s “implied consent law” to Defendant. After the officer explained the implied consent form (State’s Exhibit No. 2) to Defendant, Defendant signed the form, electing to take the breathalyzer or intoxilyzer test.

The results of the intoxilyzer test administered at 12:45 a.m. on April 19, 1991 indicated that Defendant’s blood alcohol concentration (BAC) by weight was .113% (State’s Exhibit No. 5). At trial, defense counsel cross-examined Joanne Furuya and Claire Chun, both criminalists for the Honolulu Police Department on the accuracy of the intox-ilyzer machine. Ms. Furuya testified that the recognized “margin of error” for the intoxilyzer machine was “[pjoint 0 one [.01].” She explained that because the intoxilyzer’s margin of error was in the hundredths of one percent, the thousandth digit was “irrelevant.”

Q. So the machine is not reading completely accurately that there is no alcohol in that air blank sample?
A. That’s why the margin of error is at the hundredth place. That’s why it’s not at the thousandth place.
Q. And so when we get the number in the thousands [sic] column, there is a question as to just how accurate the machine is reading at that point?
A. No. Because as I mentioned before if one gets a point one seven three reading it’s plus or minus point zero one which [sic] a hundredth place it can vary between one six three and one eight three so that third digit is irrelevant.
Q. The third digit is irrelevant?
A. For the reading as proposed here.
Q. It only become[s] relevant as applied to the defendant?
A. Yes, it’s—you are mistaken for what I am saying. When you apply the hundredths place margin of error, your third digit becomes irrelevant because you are moving the range in the hundredths place which is a less accurate value. Now you understand what I am saying?

According to Ms. Furuya, the thousandth place digit is not rounded off or considered:

A. If your margin of error is plus, minus point 0 one, what we do is

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State v. DiBenedetto
906 P.2d 624 (Hawaii Intermediate Court of Appeals, 1995)

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Bluebook (online)
906 P.2d 624, 80 Haw. 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dibenedetto-hawapp-1995.