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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 13-SEP-2021 09:47 AM Dkt. 11 OPA
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
BRENT K. SYLVESTER Petitioner/Petitioner-Appellant,
vs.
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAIʻI, Respondent/Respondent-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 1DAA-16-00003)
SEPTEMBER 13, 2021
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY EDDINS, J.
An Administrative Driver’s License Revocation Office
hearing officer revoked Brent Sylvester’s driver’s license after
finding probable cause to support Sylvester’s arrest for
operating a vehicle under the influence of an intoxicant.
Three civilian witnesses wrote statements on a standard
Honolulu Police Department form (HPD-252). They described
Sylvester’s conduct and interactions with them after he *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
purportedly rear-ended their car. Two police officers’ sworn
statements referenced the witnesses’ accounts.
The hearing officer considered the civilian witnesses’ HPD-
252 statements. The hearing officer also considered the
witnesses’ statements incorporated in the police officers’ sworn
statements. Sylvester objected.
The District Court of the First Circuit sustained the
license revocation. The Intermediate Court of Appeals affirmed
the district court’s decision.
We address whether administrative driver’s license
revocation hearing officers can consider civilian witnesses’
unsworn statements when making probable cause determinations.
We hold they can. The administrative license revocation
laws – namely, HRS §§ 291E-36, 291E-37(c), and 291E-38(g) 1 - do
not require sworn statements from civilian witnesses. Instead,
the sworn statement requirement only covers (1) law enforcement
officers, (2) persons who administer alcohol or drug tests, and
(3) those who maintain the testing equipment.
I.
In April 2016, three people traveled in a Nissan on the H-1
freeway. A Toyota rear-ended them; it did not stop. The Toyota
sped past the Nissan. One person in the Nissan called 911 and
1 All references to HRS provisions reflect their latest published version as of Sylvester’s arrest in 2016.
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reported “a hit and run.” The Nissan followed the Toyota. The
caller told the 911 operator that the Toyota was “swerving” and
“almost slammed [into] the median.”
Later the Nissan’s three occupants wrote statements on an
HPD-252 form. Each detailed the rear-end collision and the
Toyota’s flight. The witnesses also described following the
Toyota to a Kailua residence. There they briefly confronted the
driver. Because of how he smelled, spoke, and walked, the
witnesses believed he was intoxicated. When police officers
arrived, they identified Sylvester as the driver.
The HPD-252 forms contained a preprinted declaration: “I
attest that this statement is true and correct and to the best
of my knowledge, and that I gave this statement freely and
voluntarily without coercion or promise of reward.” 2 The
witnesses signed their names.
HPD officers responded to Sylvester’s residence. For the
administrative revocation proceedings, two officers submitted
sworn statements. 3 They detailed the circumstances surrounding
Sylvester’s arrest. One officer described the damages to the
two cars. The other officer wrote that he smelled alcohol on
2 Our decision does not hinge on deciding whether this attestation language makes the witnesses’ statements “sworn.” 3 At the end of their statements, the officers signed their names and swore that the information in their statements was “true and correct.”
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Sylvester’s breath as he spoke to him. The officer further
reported: “[Sylvester] blurted out that he just had a ‘few’ when
he got home.” Sylvester declined a field sobriety test and a
preliminary alcohol screening test. The officer arrested him
for operating a vehicle under the influence of an intoxicant
(OVUII). He read an implied consent and other required notice
forms to Sylvester. Sylvester refused to take a breath or blood
test. The officer issued him a notice of administrative
revocation.
Four days later, an Administrative Driver’s License
Revocation Office review officer revoked Sylvester’s driver’s
license.
Sylvester requested an administrative hearing. At the
hearing, he moved to strike the three witnesses’ HPD-252
statements. Sylvester also moved to strike the civilian
witnesses’ statements contained in the sworn police statements.
The hearing officer denied the motion.
After considering the HPD-252 statements, 911 recording,
and sworn police statements, 4 the hearing officer found probable
cause that Sylvester operated his vehicle while under the
influence of alcohol. The officer sustained the initial
4 The hearing officer struck other police officers’ unsworn statements contained in the sworn police statements. The hearing officer also granted Sylvester’s request to strike several unsworn police reports prepared by other HPD officers.
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administrative revocation of Sylvester’s driver’s license.
Although their rationale differed, the district court and
the ICA affirmed the hearing officer’s decision. The district
court ruled that “other person[s],” whose sworn statements the
hearing officer must consider under HRS § 291E-38(g), 5 include
the civilian witnesses. It also ruled that their HPD-252
statements were not sworn. Despite these determinations, the
district court upheld the license revocation. It reasoned that
the sworn police statements incorporating “the witnesses’
statements and/or information” provided a sufficient basis to
find probable cause for Sylvester’s arrest.
The ICA implicitly rejected the district court’s reasoning
that HRS § 291E-38(g)’s sworn statement requirement encompassed
civilian witnesses. It read the term “other person” in HRS
§ 291E-38(g) to mean only “the person who conducted the
[intoxication] test” or “the person responsible for the
maintenance of the testing equipment” as specified in HRS
§ 291E-36. We agree with the ICA.
II.
In administrative driver’s license revocation proceedings,
we hold that hearing officers can consider civilian witnesses’
5 The district court, the Honorable Lono J. Lee presiding, relied on the following sentence in HRS § 291E-38(g): “The director shall consider the sworn statements in the absence of the law enforcement officer or other person.”
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unsworn statements.
After inspecting the texts and context of HRS §§ 291E-36,
291E-37(c), and 291E-38(g), we conclude that these laws do not
impose a sworn statement requirement on civilian witnesses.
They only require sworn statements from (1) law enforcement
officers, (2) persons who administer alcohol or drug tests, and
(3) those who maintain the testing equipment. Civilian
witnesses’ statements - both independently through HPD-252
statements and as embedded in sworn police statements – can
support probable cause in license revocation proceedings.
HRS Chapter 291E, Part III guides the administrative
driver’s license revocation process. It begins when an
individual is arrested and issued a notice of administrative
revocation. 6 See generally HRS §§ 291E-31, 291E-33, 291E-34.
Next, an administrative review officer examines the police
officer’s decision to issue the revocation notice. HRS § 291E-
37(a). This initial review happens automatically. Id. Based
solely on documentary evidence, including documents listed in
HRS § 291E-36, the administrative review officer decides whether
to revoke the driver’s license. See generally HRS § 291E-37.
If the review officer revokes the license, the driver can
request an administrative hearing. HRS § 291E-38(a). If a
6 We call an arrestee who received a notice of administrative revocation a “driver.”
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hearing officer affirms the revocation after that administrative
hearing, the driver can petition for judicial review. HRS
§ 291E-40(a).
Within the administrative driver’s license revocation
framework, a trio of intertwined laws - HRS §§ 291E-36, 291E-
37(c), and 291E-38(g) - identify the types of documents that the
administrative review and hearing officers must receive,
consider, or admit into evidence.
HRS § 291E-36 lists what evidence must be submitted for
administrative review immediately after an OVUII arrest. 7 It
calls for sworn statements from:
(1) “the arresting law enforcement officer” and “the officer who issued the notice of administrative revocation,” HRS § 291E-36(a)(1), (b)(1) 8;
(2) “the person responsible for maintenance of the [alcohol or drug] testing equipment,” HRS § 291E-36(a)(2), (4); and
(3) “the person who conducted the [alcohol or drug] test,” HRS § 291E-36(a)(3), (5). 9
HRS § 291E-36 identifies no other person whose statement must be
7 HRS § 291E-36 also applies when a driver is arrested for habitually operating a vehicle under the influence of an intoxicant under HRS § 291E- 61.5.
8 HRS § 291E-36(a) applies when an arrestee submits to an alcohol or drug test. HRS § 291E-36(b) governs when an arrestee refuses to do so. Both require the arresting officer to submit a sworn statement. Conspicuously, only HRS § 291E-36(a) mentions sworn statements of “the officer who issued the notice of administrative revocation.” 9 The persons identified in subparagraphs (2) and (3) are not implicated when a driver refuses an alcohol or drug test, like Sylvester did.
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sworn.
In addition to these sworn statements, the administrative
review officer receives other types of evidence: “a copy of the
arrest report,” HRS § 291E-36(a)(1), (b)(1); “the report of the
law enforcement officer who issued the notice of administrative
revocation to the person involved in a collision resulting in
injury or death,” HRS § 291E-36(a)(1); “a copy of the notice of
administrative revocation,” HRS § 291E-36(a)(6), (b)(2); any
license taken into possession by law enforcement officers, HRS
§ 291E-36(a)(7), (b)(3); and the driver’s prior alcohol and drug
enforcement contacts. HRS § 291E-36(a)(8), (b)(4).
With the information received under HRS § 291E-36 and any
evidence submitted by the driver, the administrative review
officer conducts an initial review. HRS §§ 291E-36, 291E-37.
At this stage, HRS § 291E-37(c) requires consideration of:
(1) “Any sworn or unsworn written statement or other written evidence provided by the respondent”;
(2) “The breath, blood, or urine test results, if any”; and
(3) “The sworn statement of any law enforcement officer or other person or other evidence or information required by section 291E‑36.” (Emphases added.)
If the driver wants an administrative hearing after an
adverse administrative review decision, HRS § 291E-38(g)
requires the hearing officer to admit into evidence the sworn
statements generated by HRS § 291E-36 and consider them if the
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individuals who made the sworn statements do not appear at the
hearing. 10
Both HRS §§ 291E-37(c)(3) and 291E-38(g) refer to the sworn
statements of “other person” and HRS § 291E-36. The
Administrative Director of the Courts maintains that “other
person” means only those individuals identified in HRS § 291E-
36: the government employees conducting alcohol or drug tests or
maintaining the testing equipment. Sylvester, in contrast,
reads “other person” expansively to mean everyone who is not a
law enforcement officer. He contends that civilian witnesses’
statements submitted by the government must be sworn.
The Director’s interpretation prevails: “other person”
does not mean a civilian witness. We conclude that HRS § 291E-
38(g), like HRS § 291E-36, does not touch civilian witnesses’
statements.
Turning to HRS § 291E-38(g), its opening sentence - “The
sworn statements provided in section 291E-36 shall be admitted
10 HRS § 291E-38(g) states:
The sworn statements provided in section 291E-36 shall be admitted into evidence. The director shall consider the sworn statements in the absence of the law enforcement officer or other person. Upon written notice to the director, no later than five days prior to the hearing, that the respondent wishes to examine a law enforcement officer or other person who made a sworn statement, the director shall issue a subpoena for the officer or other person to appear at the hearing. . . .
(Emphasis added.) Additionally, HRS § 291E-38(f) requires that the driver’s prior alcohol and drug enforcement contacts be entered into evidence.
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into evidence” – delimits its scope to HRS § 291E-36. (Emphasis
added.) “[T]he sworn statements” mentioned in the next sentence
– “The director shall consider the sworn statements in the
absence of the law enforcement officer or other person” –
grammatically link back to “the sworn statements provided in
section 291E-36” in the preceding sentence. HRS § 291E-38(g).
So “other person” in the second sentence refers to the
individuals who submitted sworn statements under HRS § 291E-36. 11
See McGrail v. Admin. Dir. of the Courts, 130 Hawaiʻi 74, 80, 305
P.3d 490, 496 (App. 2013) (explaining that “the hearing officer
must admit into evidence and consider the sworn statements
required by HRS § 291E-36” (emphasis added)). 12
HRS § 291E-37(c)(3)’s sworn statement requirement, like HRS
§ 291E-38(g), unites with HRS § 291E-36. HRS § 291E-37(c)(3)
states: “The sworn statement of any law enforcement officer or
other person or other evidence or information required by
section 291E-36.” (Emphases added.)
Sylvester argues that HRS § 291E-37(c)(3) requires the
administrative review officer to consider “1) the sworn
11 The first two sentences of HRS § 291E-38(g) establish the context in which the rest of the provision (concerning when a hearing officer must issue a subpoena for “a law enforcement officer or other person who made a sworn statement”) should be read.
12 In McGrail, the ICA held that considering a police officer’s unsworn statements in another police officer’s sworn statement is impermissible. 130 Hawaiʻi at 81, 305 P.3d at 497. McGrail did not involve civilian witnesses.
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statement of any law enforcement officer or other person or 2)
other evidence or information required by section 291E-36.” He
reads the provision’s ending phrase - “required by section 291E-
36” – to modify only the latter part of the preceding terms,
“other evidence or information,” but not the other antecedent
terms, “[t]he sworn statement of any law enforcement officer or
other person.” Sylvester’s interpretation of HRS § 291E-
37(c)(3) is flawed.
The series-qualifier canon undercuts Sylvester’s view.
This canon provides that “when there is a straightforward,
parallel construction that involves all nouns or verbs in a
series, a modifier at the end of the list normally applies to
the entire series.” Facebook, Inc. v. Duguid, 141 S. Ct. 1163,
1169 (2021) (cleaned up).
Here, HRS § 291E-37(c)(3) contains a parallel, connected
list of nouns in a series: “[t]he sworn statement of any law
enforcement officer or other person or other evidence or
information.” So the modifier, “required by section 291E-36,”
applies to each of the antecedent noun phrases. 13 Said
13 Generally, a determiner (for example, “other” before “evidence” in this sentence) “tends to cut off the modifying phrase so that its backward reach is limited.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 149 (2012). Yet “that effect is not entirely clear.” Id. “The rule of the last antecedent is context dependent.” Facebook, 141 S. Ct. at 1170. As discussed below, the context of HRS §§ 291E- 36, 291E-37(c), and 291E-38(g) shows that the determiner before “evidence” in HRS § 291E-37(c)(3) does not sever the modifier’s reach.
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differently, HRS § 291E-36 covers both (1) the sworn statements
of law enforcement officers or “other person” (other government
officials who conduct alcohol or drug tests or maintain the
relevant testing equipment under HRS § 291E-36(a)(2)-(5)) and
(2) other evidence or information (such as a listing of any
prior alcohol and drug enforcement contacts under HRS § 291E-
36(a)(8), (b)(4)).
HRS §§ 291E-36, 291E-37, and 291E-38 all address the same
subject matter: the review process for administrative driver’s
license revocation. So we interpret “other person” in both HRS
§§ 291E-38(g) and 291E-37(c)(3) harmoniously. See HRS § 1-16
(“Laws in pari materia, or upon the same subject matter, shall
be construed with reference to each other. What is clear in one
statute may be called in aid to explain what is doubtful in
another.”).
We conclude that “other person” in HRS § 291E-37(c)(3),
like the identical term in HRS § 291E-38(g), refers only to the
individuals mentioned in HRS § 291E-36. The sworn statement
requirement under these statutes does not cover civilian
witnesses’ statements.
Sylvester maintains that if the legislature intended to
allow consideration of unsworn civilian witness statements
submitted by the government, it would have said so in HRS
§ 291E-37(c)(3), just like it did in HRS § 291E-37(c)(1).
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Subsection (c)(1) involves statements submitted by the driver.
It requires an administrative review officer to consider any
“sworn or unsworn written statement or other written evidence
provided by the respondent.” HRS § 291E-37(c)(1) (emphases
added). We do not view the absence of language concerning
unsworn statements in HRS § 291E-37(c)(3) as a deliberate choice
to bar unsworn civilian witness statements submitted by the
government. Rather, the provision reflects the legislature’s
attention to specific evidence central to revocation
determinations. “[T]he Legislature chose to require the
submission of sworn statements by key police and government
officers as a means of ensuring the reliability of the
revocation process.” McGrail, 130 Hawaiʻi at 80, 305 P.3d at 496
(emphasis added).
Further, the administrative driver’s license revocation
framework does not limit the evidence the hearing officer may
consider to only the evidence identified by HRS §§ 291E-36,
291E-37, and 291E-38. See Desmond v. Admin. Dir. of the Courts,
91 Hawaiʻi 212, 220, 982 P.2d 346, 354 (App. 1998) (rejecting the
driver’s argument that a hearing officer could not admit
“anything that is not specified by the statute”), rev’d on other
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grounds, 90 Hawaiʻi 301, 978 P.2d 739 (1998). 14
The evidence must be relevant and not prejudicial. Freitas
v. Admin. Dir. of the Courts, 108 Hawaiʻi 31, 45–46, 116 P.3d
673, 687–88 (2005). But Sylvester doesn’t claim that the
civilian witnesses’ statements were irrelevant or prejudicial.
Finally, Sylvester’s concern about the reliability of the
civilian witnesses’ statements is overblown. The HPD-252 forms
contained a declaration from each witness attesting to the
statement’s truth. The HPD-252 statements and the witnesses’
statements referenced in the sworn police statements provided
“reasonably trustworthy information” to support a probable cause
determination. State v. Maganis, 109 Hawaiʻi 84, 86, 123 P.3d
679, 681 (2005).
Because HRS §§ 291E-36, 291E-37(c)(3), and 291E-38(g) do
not require sworn civilian witness statements, we hold that a
hearing officer can consider civilian statements – sworn or
unsworn - in the probable cause determination. The hearing
officer who conducted Sylvester’s administrative hearing did not
err in considering statements from the Nissan’s occupants.
14 Based on its review of HRS §§ 291E-36, 291E-37, and 291E-38’s predecessor statutes, the ICA held that the hearing officer did not reversibly err in admitting the entire case file into evidence. Desmond, 91 Hawaiʻi at 220-21, 982 P.2d at 354-55. It opined that though the hearing officer erroneously admitted unsworn statements of a police officer who did not appear to testify, the error was harmless. Id. at 220, 982 P.2d at 354. Desmond did not involve civilian witnesses.
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We affirm the ICA’s February 24, 2021 judgment on appeal. 15
Alen M. Kaneshiro, /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Ewan C. Rayner, /s/ Sabrina S. McKenna (Kimberly T. Guidry and Robert T. Nakatsuji on the briefs) /s/ Michael D. Wilson for respondent /s/ Todd W. Eddins
15 In addition to raising the statutory interpretation issue, Sylvester claims that the district court failed to schedule his judicial review hearing “as quickly as practicable.” This argument lacks merit. We agree with the ICA’s conclusion that the 25-day delay (resulting from an extension of the time to file the record on appeal and a two-week continuance) did not violate Sylvester’s due process rights.