State v. Werblun

• Court: Hawaii Intermediate Court of Appeals
• Decided: June 17, 2022
• Docket: CAAP-20-0000606
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 17-JUN-2022 08:21 AM Dkt. 59 SO NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v. MAXWELL BENJAMIN WERBLUN, Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT WAILUKU DIVISION (CASE NO. 2DTC-20-694722)

SUMMARY DISPOSITION ORDER (By: Ginoza, Chief Judge, Nakasone and McCullen, JJ.)

Defendant-Appellant Maxwell Benjamin Werblun (Werblun)

appeals from the District Court of the Second Circuit, Wailuku

Division's (district court) August 12, 2020 Judgment and Notice

of Entry of Judgment,1 convicting him of Excessive Speeding, in

violation of Hawaii Revised Statutes (HRS) § 291C-105(a)(1), (2)

(2020).2

Werblun contends Plaintiff-Appellee State of Hawai#i

(State) did not lay sufficient foundation to introduce the speed-

reading because the record is silent as to the manufacturer's

training requirements to operate the LTI 2020 TruSpeed speed-

1 The Honorable Michelle L. Drewyer presided. 2 HRS § 291C-105(a)(1), (2) provides: "(a) No person shall drive a motor vehicle at a speed exceeding: (1) The applicable state or county speed limit by thirty miles per hour or more; or (2) Eighty miles per hour or more irrespective of the applicable state or county speed limit." NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

reading device (Device), and the State failed to demonstrate the

citing officer, Ryan Elers (Officer Elers) met the manufacturer's

training requirements; therefore, the district court abused its

discretion by admitting the "testimony as to the radar speed-

reading," and without the speed-reading, no substantial evidence

supports the conviction.

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 the

parties' arguments as follows, and affirm.

As to whether the State laid a proper foundation, we

review the district court's determination for an abuse of

discretion, State v. Assaye, 121 Hawai#i 204, 210, 216 P.3d 1227,

1233 (2009), and we will not disturb it unless the district court

clearly exceeded the bounds of reason or disregarded rules or

principles of law or practice to the substantial detriment of a

party litigant. State v. Crisostomo, 94 Hawai#i 282, 287, 12

P.3d 873, 878 (2000). To lay foundation for a speed-reading, the

State must demonstrate that (1) the accuracy of the device was tested according to procedures recommended by the manufacturer,

and (2) "the nature and extent of an officer's training in the

operation" of the device met "the requirements indicated by the

manufacturer" (Training Prong). Assaye, 121 Hawai#i at 213, 215,

216 P.3d at 1236, 1238. To satisfy the Training Prong, the State

"must establish both (1) the [training] requirements indicated by

the manufacturer, and (2) the training actually received by the

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

operator." State v. Gonzalez, 128 Hawai#i 314, 327, 288 P.3d

788, 801 (2012).

Here, Officer Elers testified: he was trained to use

the Device several times, most recently in 2019 by Roosevelt

Rogers (Rogers), an employee of the manufacturer, LTI; the

training was 32 hours and consisted of classroom instruction,

testing, field instruction, and learning to operate the Device;

Rogers provided LTI's user manual for the Device, which Officer

Elers used during the training; the training met LTI's

requirements to test and operate the Device, and it conformed to

the manual; upon completion of training, Rogers certified Officer

Elers as proficient in testing and operating the Device; his

certification was valid the day he cited Werblun; and the

training also consisted of learning the four procedures to test

the Device to determine whether it is working properly, as well

as LTI's recommendations for how often to test the Device and how

to operate it to ascertain a vehicle's speed, all of which

Officer Elers described.

Officer Elers's testimony establishes that "the training course itself was approved by the manufacturer [and] was

consistent with the manufacturer's requirements," and Officer

Elers's description of the course, including the testing and

operating procedures he learned, was sufficient to establish "the

type of training the manufacturer recommended." Cf. State v.

Amiral, 132 Hawai#i 170, 178-79, 319 P.3d 1178, 1186-87 (2014).

Moreover, the record indicated he was instructed by the

manufacturer itself, which certified him to operate and test the

device upon completion of training. See, e.g., State v.

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

Portillo, 146 Hawai#i 238, 461 P.3d 29, No. CAAP-XX-XXXXXXX, 2020

WL 1879621, at *1 (App. Apr. 15, 2020) (SDO); State v. Rezentes,

139 Hawai#i 263, 388 P.3d 51, No. CAAP-XX-XXXXXXX, 2016 WL

6330390, at *1 (App. Oct. 28, 2016) (SDO).

Accordingly, the district court did not abuse its

discretion in determining that the State laid proper foundation

for the speed-reading. THEREFORE, we affirm the district court's

August 12, 2020 Judgment and Notice of Entry of Judgment.

DATED: Honolulu, Hawai#i, June 17, 2022. On the briefs: /s/ Lisa M. Ginoza Chief Judge Ashlyn L. Whitbeck, Deputy Public Defender, /s/ Karen T. Nakasone for Defendant-Appellant. Associate Judge

Richard B. Rost, /s/ Sonja M.P. McCullen Deputy Prosecuting Attorney, Associate Judge County of Maui, for Plaintiff-Appellee.