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IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

---o0o---

STATE OF HAWAI‘I, 

Respondent/Plaintiff-Appellant,

vs. 

DANIEL IRVING JAMES MANION, 

Petitioner/Defendant-Appellee. 

SCWC-19-0000563

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-19-0000563; CASE NO. 1DTA-19-00266)

JUNE 3, 2022

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND EDDINS, JJ., WITH

EDDINS, J., CONCURRING SEPARATELY, WITH WHOM McKENNA, J., JOINS,

AND WILSON, J., DISSENTING

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

When evidence is obtained against a criminal defendant 

in contravention of constitutional protections, such as when 

police subject a suspect to custodial interrogation without 

Electronically Filed

Supreme Court

SCWC-19-0000563

03-JUN-2022

09:42 AM

Dkt. 19 OP
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first giving Miranda1 warnings as required by article I, section 

10 of the Hawai‘i Constitution, that evidence must be suppressed. 

Evidence obtained after the illegality, acquired because of 

officers’ exploitation of that illegality, must likewise be 

suppressed, as such evidence is fruit of the poisonous tree. 

Here, defendant Daniel Irving James Manion was subject 

to custodial interrogation during a roadside investigation for 

operating a vehicle under the influence of an intoxicant 

(OVUII). But the evidence gathered after that illegality –

specifically, his performance on the standardized field sobriety 

test (SFST) – was neither testimonial,2 nor the fruit of the 

poisonous tree. The police did not exploit the illegal 

interrogation because the interrogation did not lead to the 

discovery of the SFST evidence; the investigation had already 

been directed to the SFST before any illegality. 

Manion’s performance on the SFST was accordingly 

admissible despite the absence of Miranda warnings preceding the 

test. 

 1 Miranda v. Arizona, 384 U.S. 436 (1966).

2 We decline to revisit our holding in State v. Uchima, 147 Hawai‘i

64, 85, 464 P.3d 852, 873 (2020), that a person’s performance on the SFST is 

not testimonial. 
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II. BACKGROUND

A. District Court Proceedings

Manion was arrested in Hawai‘i Kai in the early hours 

of January 4, 2019, after a resident of the neighborhood heard a 

car crash into a parked vehicle and called the Honolulu Police 

Department (HPD). The police arrived to find Manion in the 

driver’s seat of a damaged car, from which a fluid trail led to 

the damaged parked vehicle. After initial inquiry into whether 

Manion was hurt, the officer came to suspect he had been driving 

while intoxicated, administered the SFST on Manion, and arrested 

him.

Manion was charged with OVUII in violation of Hawai‘i

Revised Statutes (HRS) § 291E-61(a)(1) (2020)3 in the District 

Court of the First Circuit.4 Manion moved to suppress any 

statements he made during the encounter with police that led to 

his arrest for lack of Miranda warnings. The district court 

held a hearing on the motion in which three HPD officers

involved in the investigation, along with the Hawai‘i Kai 

 3 HRS § 291E-61(a)(1) provides: 

(a) A person commits the offense of operating a vehicle 

under the influence of an intoxicant if the person operates 

or assumes actual physical control of a vehicle:

 (1) While under the influence of alcohol in an amount 

sufficient to impair the person’s normal mental 

faculties or ability to care for the person and 

guard against casualty[.]

4 The Honorable Summer M. M. Kupau-Odo presided.
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resident who heard the crash, testified as to the following 

facts (as found by the district court in its written order):

1. On January 4, 2019, at approximately 4:40 a.m., 

while patrolling the Hawai‘i Kai area, [HPD] Officer Corey 

Morgan (“Officer Morgan”) responded to a report of a motor 

vehicle collision at Kealahou Street and K[ī]p[ū]kai Place. 

While other officers went to locate the vehicle that 

reportedly had been struck, Officer Morgan went to locate 

the “unit 1” vehicle that reportedly caused the crash, 

which the caller said might be on K[ī]p[ū]kai Place.

2. On K[ī]p[ū]kai Place, Officer Morgan found a white 

Hyundai with extensive and severe front-end damage. 

Defendant was the lone occupant of the Hyundai and was 

seated in the driver’s seat. Officer Morgan observed a 

fluid trail from Defendant’s Hyundai leading to the parked 

vehicle that was struck on Kealahou Street less than two 

blocks away.

3. Officer Morgan approached Defendant and asked if 

he was okay, if he was injured, if he needed an ambulance, 

and where was he coming from. This initial exchange was 

brief – lasting a few seconds - as Officer Morgan tried to 

determine if Defendant needed medical attention. Defendant 

responded that he was okay. He also explained that after a 

“rough day,” he had gone to [Sandy Beach, also known as 

Sandy’s,] and drank a “40” and was heading home. Defendant 

further explained that he was texting and that is what 

caused the accident, not his prior drinking.

4. During this brief encounter, Officer Morgan 

observed Defendant to have red and watery eyes and a strong 

odor of an alcoholic beverage coming from his breath.

5. Believing, upon observing the indicia of alcohol, 

that he had probable cause to arrest Defendant for [OVUII], 

Officer Morgan asked Defendant if he would be willing to 

participate in a [SFST]. Defendant agreed and stepped

outside of his vehicle. Defendant was not free to leave.

6. Officer Morgan would not have administered the 

SFST without first asking Defendant if he agreed to 

participate in the SFST and receiving Defendant’s “yes”

answer. 

7. Prior to administering the SFST, Officer Morgan 

asked Defendant questions referred to as the Medical Rule 

Out (“MRO”) questions, including whether Defendant was 

taking any medications or whether he was under the care of 

a doctor or dentist. Officer Morgan asked the questions to 

rule out causes, other than alcohol, that could affect 

Defendant’s performance on the SFST. Defendant answered 

“no” to the MRO questions.
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8. Officer Morgan would not have administered the 

SFST without first asking the MRO questions.

9. The SFST consists of three tests that are 

administered in a particular order - Horizontal Gaze 

Nystagmus (“HGN”) first, Walk and Turn (“W&T”) second, and 

One Leg Stand (“OLS”) third.

10. Prior to beginning the tests, Officer Morgan told 

Defendant he would be judged on how well he follows the 

instructions for each of the three tests. Before 

administering each of the three tests, Officer Morgan 

instructed Defendant on how to perform the test. Each time 

after instructing Defendant, Officer Morgan asked Defendant 

if he understood the instructions and whether he had any 

questions. For each of the three tests, Defendant 

indicated he understood the instructions and he had no 

questions.

11. Officer Morgan would not have administered each 

of the three tests if he had not received Defendant’s 

responses that he understood the instructions for the tests 

and had no questions.

12. After Officer Morgan obtained Defendant’s 

agreement to participate in the SFST, Defendant’s responses 

to the MRO questions, and Defendant’s affirmative responses 

that he understood the instructions for each of the three 

tests, Officer Morgan had Defendant perform the HGN, W&T, 

and OLS.

13. Following the SFST, HPD Officer Landon Miyamura 

(“Officer Miyamura”) offered Defendant the Preliminary 

Alcohol Screening and then arrested Defendant for OVUII.

14. At the main station, Officer Miyamura 

administered the intoxilyzer test to Defendant. Upon 

completion of the test, Officer Miyamura showed Defendant 

the print-out from the intoxilyzer, pointed out Defendant’s 

breath-test result, and stated, “This is your result.”

Defendant responded: “That’s impossible, I only had one 

‘40’ and two fireball shots in three hours.”

15. At no point in time did either officer tell 

Defendant he had the right to remain silent and anything he 

said could be used against him. Defendant was never 

advised of any of his Miranda rights.

The district court granted the motion to suppress, 

concluding that Manion was subjected to custodial interrogation 

without Miranda warnings. The court first determined that 
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Manion was not in custody during the initial exchange with 

Officer Morgan, and accordingly, Manion’s statements “admitting 

to drinking a ‘40’ at Sandy’s and then explaining that his 

texting, as opposed to drinking, caused the accident” were 

admissible. However, the district court concluded Manion was in 

custody after that initial exchange, and that he was subjected 

to custodial interrogation when Officer Morgan (1) asked Manion 

if he would be willing to participate in the SFST, (2) asked him 

the medical rule-out questions, and (3) asked him whether he 

understood the SFST instructions or had any questions about the 

tests. As a result, the district court concluded that Manion’s 

“performance on the SFST is inadmissible fruit of the poisonous 

tree.”5 

B. Intermediate Court of Appeals (ICA) Proceedings

The State appealed, and the ICA affirmed in part and 

vacated in part in a memorandum opinion. As relevant here, the 

ICA concluded that Manion was in custody based on the State’s 

concession at the motion to suppress hearing. Namely, “that 

Officer Morgan had probable cause to arrest Manion for OVUII 

after their initial exchange and before Officer Morgan asked 

 5 The district court also suppressed Manion’s statements after the 

breath test (“That’s impossible, I only had one ‘40’ and two fireball shots 

in three hours”) as the product of a separate violation (showing Manion the 

intoxilyzer results after his arrest without Miranda warnings). The ICA 

affirmed this conclusion, which is not at issue here.
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Manion if he would participate in the SFST.”6 The ICA next 

determined that “the defendant’s performance on the [S]FST did 

not constitute an interrogation requiring Miranda warnings”

pursuant to our decision in Uchima, 147 Hawai‘i at 84-85, 464 

P.3d at 872-73, in which we held that the SFST was 

nontestimonial. Likewise, the ICA relied on Uchima to hold that 

“[a]sking Manion whether he was willing to participate in the 

SFST, whether he understood the instructions to the SFST, and 

whether he had any questions did not implicate his right to 

self-incrimination and did not constitute interrogation[.]” 

However, the ICA followed its published opinion in 

State v. Sagapolutele-Silva, 147 Hawai‘i 92, 101-03, 464 P.3d 

880, 889-91 (App. 2020), and held that the medical rule-out 

questions were interrogation. The ICA did not address the 

argument that the SFST was the fruit of the medical rule-out 

questions.

C. Supreme Court Proceedings

Both the State and Manion filed applications for writ 

of certiorari seeking review of the ICA’s memorandum opinion. 

 6 The State’s application for writ of certiorari (which we rejected 

in any event) did not contest the custody holding and indeed explicitly 

conceded it. For purposes of this opinion, therefore, Manion was in custody 

at all relevant times. 
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We rejected the State’s application and accepted Manion’s.7 

Manion asks this court to consider whether the ICA erred by 

“failing to suppress all evidence and statements obtained after 

the Medical Rule-Out [] questions as the ‘fruit of the poisonous

tree[.]’” He also urges us to revisit our recent holding in 

Uchima, 147 Hawai‘i at 84-85, 464 P.3d at 872-73, that “the SFST 

does not seek ‘communications’ or ‘testimony,’” arguing that 

Uchima’s reliance on State v. Wyatt, 67 Haw. 293, 687 P.2d 544 

(1984), was misplaced because the SFST has changed since Wyatt

was decided. 

III. STANDARD OF REVIEW

“We review questions of constitutional law under the 

‘right/wrong’ standard.” State v. Jenkins, 93 Hawai‘i 87, 

100, 997 P.2d 13, 26 (2000) (citing State v. Toyomura, 80 

Hawai‘i 8, 15, 904 P.2d 893, 900 (1995)). Accordingly, “we 

review the circuit court’s ruling on a motion to suppress 

de novo to determine whether the ruling was ‘right’ or 

‘wrong.’” State v. Kauhi, 86 Hawai‘i 195, 197, 948 P.2d 

1036, 1038 (1997) (citing State v. Navas, 81 Hawai‘i 113, 

123, 913 P.2d 39, 49 (1996)).

State v. Lee, 149 Hawai‘i 45, 49, 481 P.3d 52, 56 (2021) 

(brackets omitted).

 7 Because we rejected the State’s application for writ of 

certiorari, which challenged the holding that the medical rule-out questions 

were interrogation, the question of whether there was an “illegality” at all 

is not before us. Nevertheless, the holding that the medical rule-out 

questions were interrogation was correct, as we explained in State v. 

Skapinok, SCWC-19-0000476 (Haw. 2022).
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IV. DISCUSSION

The exclusionary rule is “a judicially created remedy 

designed to safeguard against future violations of 

[constitutional] rights.” Arizona v. Evans, 514 U.S. 1, 10 

(1995). “The Hawai‘i exclusionary rule serves the dual purposes 

‘of deterring governmental officials from circumventing the 

protections afforded by the Hawai‘i Constitution’ and of 

‘protecting the privacy rights of our citizens.’” Lee, 149 

Hawai‘i at 49, 481 P.3d at 56 (brackets omitted) (quoting State 

v. Lopez, 78 Hawai‘i 433, 446, 896 P.2d 889, 902 (1995)). 

Accordingly, when evidence is obtained “as a result of the 

exploitation of a previous illegal act of the police,” it, too, 

must be suppressed as “the fruit of the poisonous tree,” in 

order to ensure adequate deterrence of police actions that 

violate the constitution. Id.

A. The SFST Was Not the Fruit of the Illegality

We first address whether the evidence obtained after 

the illegality – here, asking the medical rule-out questions 

while Manion was in custody without Miranda warnings, which 

contravened article I, section 10 of the Hawai‘i Constitution8 –

was tainted by the Miranda violation and therefore must be Alth

 8 “No person shall . . . be compelled in any criminal case to be a 

witness against oneself.” Haw. Const. art. I, § 10. 
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of the poisonous tree.9 In particular, Manion argues that 

“Manion’s responses during the SFST and performance of the SFST” 

(to which we will refer collectively as “the SFST”) must be 

suppressed. We disagree.

“[T]he ‘fruit of the poisonous tree’ doctrine 

‘prohibits the use of evidence at trial which comes to 

light as a result of the exploitation of a previous illegal 

act of the police.’” State v. Fukusaku, 85 Hawaiʻi 462, 

475, 946 P.2d 32, 45 (1997) (quoting State v. Medeiros, 4 

Haw. App. 248, 251 n.4, 665 P.2d 181, 184 n.4 (1983)). 

“Under the fruit of the poisonous tree doctrine, 

[a]dmissibility is determined by ascertaining whether the 

evidence objected to as being ‘fruit’ was discovered or 

became known by the exploitation of the prior illegality or 

by other means sufficiently distinguished as to purge the 

later evidence of the initial taint.” State v. Poaipuni, 

98 Hawaiʻi 387, 392–93, 49 P.3d 353, 358–59 (2002) 

(alteration in original) (quoting Fukusaku, 85 Hawaiʻi at 

475, 946 P.2d at 45).

. . . .

“In other words, the ultimate question that the fruit 

of the poisonous tree doctrine poses is as follows: 

Disregarding the prior illegality, would the police 

nevertheless have discovered the evidence?” Id. at 393, 49 

P.3d at 359. . . .

Accordingly, the State’s burden is to demonstrate 

that [the purported fruit] is not a benefit gained or an 

advantage derived by the police from the prior illegality 

or that the subsequent statement has become sufficiently 

attenuated from the initial illegality so as to purge the 

taint.

State v. Trinque, 140 Hawaiʻi 269, 281, 400 P.3d 470, 482 (2017).

 9 We note that Manion squarely raised the fruits doctrine in his 

answering brief to the ICA, but the ICA’s memorandum opinion did not address 

it. We ultimately agree with the result the ICA reached. But because fruit 

of the poisonous tree, if applicable, would require suppression of evidence 

acquired after the Miranda violation irrespective of whether that evidence 

was the product of interrogation, the ICA erred by failing to evaluate 

whether the fruits doctrine applied.
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Here, the SFST was not an “exploitation of the 

previous illegality,” Poaipuni, 98 Hawai‘i at 392, 49 P.3d at 

358, or a “benefit gained or an advantage derived” from the 

Miranda violation. Trinque, 140 Hawai‘i at 281, 400 P.3d at 482. 

That the State cannot exploit or derive an advantage from a 

constitutional violation reflects the principle that adequately 

deterring police misconduct, a key purpose of the exclusionary 

rule, requires ensuring that police cannot profit from a 

constitutional violation by gaining an undue investigative edge 

that they would not have otherwise had. Elkins v. United 

States, 364 U.S. 206, 217 (1960) (“The [exclusionary] rule is 

calculated . . . to deter – to compel respect for the 

constitutional guaranty in the only effectively available way –

by removing the incentive to disregard it.”). But subsequently

obtained evidence may not be an exploitation of the illegality 

if it “did not lead the officers to search for th[e allegedly 

tainted] evidence nor direct any investigation into its 

discovery.” Lee, 149 Hawaiʻi at 50, 481 P.3d at 57. In Lee, for 

instance, the defendant had locked himself in his bedroom, and 

his family, fearful of a suicide attempt, called the police. 

Id. at 48, 481 P.3d at 55. The police opened his bedroom door, 

which we assumed to be a constitutional violation, and the

defendant assaulted the police officers. Id. at 48-49, 481 P.3d 
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at 55-56. We held that evidence obtained after the illegal 

entry was not the fruit of the poisonous tree because the police 

did not “exploit that illegal entry to procure the relevant 

evidence – their observations of Lee’s actions.” Id. at 50, 481 

P.3d at 57. Although the police would not have gathered that 

evidence but for the constitutional violation (they could not 

have observed the defendant without opening the door), they were 

neither led “to search for” nor “direct[ed]” to discover that 

evidence because of the constitutional violation. Id. 

Although they immediately preceded the SFST in time, 

the medical rule-out questions did not give the officers 

information that “le[d] [them] to search for” evidence of 

intoxication, nor did the medical rule-out questions pique their 

suspicions such that their investigation was “direct[ed]” 

towards discovering evidence of intoxication. Id. Rather, the

police decided to administer the SFST before committing the 

Miranda violation – the district court’s findings of fact 

reflect that Officer Morgan asked Manion to participate in the 

SFST, and Manion agreed, prior to any interrogation (the medical 

rule-out questions). The officers did not exploit the 

illegality by continuing to gather evidence that they had 

already set out to gather. 
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Manion argues that the medical rule-out questions were 

“a necessary predicate to the administration of the SFST. 

Indeed, the validity of the conclusion that a subject’s 

performance on the SFST indicated intoxication was contingent 

upon negative answers to the MRO questions.” This argument is 

unpersuasive. Although the district court found as a factual 

matter that “Officer Morgan would not have administered the SFST 

without first asking the MRO questions,” Officer Morgan’s 

investigation was already “direct[ed]” to the SFST before the 

medical rule-out questions, as he obtained Manion’s consent to 

administer the SFST before the interrogation. Lee, 149 Hawaiʻi 

at 50, 481 P.3d at 57. In Lee, the police would not have 

observed the defendant without first opening the door, which we 

assumed was a constitutional violation. Id. Here, as in Lee, 

that Officer Morgan would not have continued with the SFST 

absent asking the medical rule-out questions does not render the 

SFST an “exploitation of the prior illegality.” Poaipuni, 98 

Hawai‘i at 392, 49 P.3d at 358. The medical rule-out questions 

did not point the officers toward the evidence they would 

discover from the SFST, even if certain answers to those 

questions (or failing to ask them at all) may have impacted 

whether they could administer the test as a practical matter. 

And though the answers to the questions provided information 
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germane to the SFST (which is, indeed, why they constitute 

interrogation, see State v. Skapinok, SCWC-19-0000476, at *36

(Haw. 2022)), that the illegally-obtained evidence is relevant 

to interpreting subsequently-obtained evidence does not mean 

that discovery of the latter “exploit[s]” the former. Poaipuni, 

98 Hawai‘i at 392, 49 P.3d at 358.

Accordingly, the SFST was not fruit of the poisonous 

tree. 

B. A Suspect’s Performance on the SFST Is Not Testimonial

“The privilege against self-incrimination is a bar 

against compelling communications or testimony.” Uchima, 147 

Hawai‘i at 84, 464 P.3d at 872 (brackets and quotation marks 

omitted) (quoting Wyatt, 67 Haw. at 303, 687 at 551). 

Accordingly, if performance on the SFST is testimonial, it, like 

the answers to the medical rule-out questions, would constitute 

statements adduced in violation of Miranda.10 But as we settled 

in Wyatt and recently reaffirmed in Uchima, performance on the 

SFST is not testimonial. 

“[I]n order to be testimonial, an accused’s 

communication must itself, explicitly or implicitly, relate a 

 10 In this way, the theory that the SFST is testimonial would 

independently require suppression of that evidence as a new Miranda

violation, separate and apart from the (ultimately unsuccessful) argument 

that the SFST is the fruit of an earlier Miranda violation. 
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factual assertion or disclose information.” Pennsylvania v. 

Muniz, 496 U.S. 582, 594 (1990) (citation omitted). We first 

considered whether a field sobriety test was testimonial in 

Wyatt, wherein the defendant was asked to perform a threecomponent battery of tests similar – though not identical – to 

the SFST at issue in this case.11 We explained that “the 

privilege against self-incrimination is not necessarily 

implicated whenever a person suspected of criminal activity is 

compelled in some way to cooperate in developing evidence which 

may be used against him.” Wyatt, 67 Haw. at 302, 687 P.2d at 

551. We relied on Schmerber v. California, 384 U.S. 757, 763-64 

(1966), in which the United States Supreme Court held that a 

blood draw was nontestimonial because it was “real or physical 

 11 Specifically, the defendant participated in the following: 

(a) The arch back test which requires the driver to stand 

with her back arched and her eyes closed; (b) the heel walk 

test where the officer requests the driver to take six 

steps down, turn to the right, and take seven steps back. 

Each step requires contact between the heel of one foot and 

the toe of the other foot; and (c) the leg lift test where 

the driver places her hands behind her head, interlocking 

her fingers, lifts one leg fifteen inches off the ground 

and holds it straight ahead of her for fifteen seconds. 

Wyatt, 67 Haw. at 301 n.8, 687 P.2d at 550 n.8.

Components (b) and (c) of the above appear virtually identical to 

the walk-and-turn and one-leg-stand tests respectively. Only component (a) 

differs from the SFST at issue in this case; Manion was given the HGN test 

instead of the arch back test. Manion argues that this difference warrants 

revisiting Wyatt and its progeny. However, he fails to explain why this 

difference would be meaningful. In any event, the test at issue in Uchima

was identical to the one given in the instant case. 147 Hawai‘i at 70, 464 

P.3d at 858. Uchima, therefore, belies Manion’s argument that we should 

revisit these cases because the SFST has changed.
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evidence,” to hold that the field sobriety test merely sought 

“an exhibition of ‘physical characteristics of coordination,’”

and the defendant’s participation in the test therefore did not 

violate the privilege against self-incrimination. Wyatt, 67

Haw. at 302-03, 687 P.2d at 551 (quoting State v. Arsenault, 336 

A.2d 244, 247 (1975)). 

We reaffirmed this holding in Uchima: 

[The defendant’s] performance on the [S]FST does not 

constitute incriminating statements. . . . In Wyatt, this 

court held that when conducting an [S]FST the State does 

not seek “communications” or “testimony,” but rather, “an 

exhibition of ‘physical characteristics of coordination.’” 

. . . Here, [the officer administering the SFST] did not 

seek “communications” or “testimony” from [the defendant]. 

Rather, in conducting the [S]FST, the officer sought “an 

exhibition of ‘physical characteristics of coordination.’”

“Consequently, the field sobriety test was not rendered 

infirm by the constitutionally guaranteed privilege against 

compulsory self-incrimination.”

Uchima, 147 Hawai‘i at 84–85, 464 P.3d at 872–73 (citations 

omitted).

Uchima was correctly decided, and Manion offers no 

compelling reason to revisit it. Manion argues that SFST 

performance is “communication” or “testimony” because it “tests 

mental capability instead of just purely physical coordination.” 

But this is not what it means to be “testimonial.” Purely 

physical evidence can provide incriminating information about a 

person’s mental faculties yet nonetheless be nontestimonial. 

Muniz, 496 U.S. at 593 (“[T]hat the ‘fact’ to be inferred might 

be said to concern the physical status of [the defendant’s]
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brain merely describes the way in which the inference is 

incriminating. The correct question for . . . purposes [of 

determining whether there has been a Miranda violation] is 

whether the incriminating inference of mental confusion is drawn 

from a testimonial act or from physical evidence.”).

Slurred speech is an apt example. In Pennsylvania v. 

Muniz, the United States Supreme Court considered whether asking 

a suspect accused of driving while intoxicated the date of his 

sixth birthday was testimonial. 496 U.S. at 590–93. The Court 

distinguished between the content of the answer – which revealed 

that the defendant was unable to remember the date of his sixth 

birthday – and the way in which the answer was given. Id. The 

former was testimonial because it “convey[ed] information or 

assert[ed] facts.”12 Id. at 597 (quoting Doe v. United States, 

487 U.S. 201, 213 (1988)). But the act of slurring the response 

was not:

We agree with the [prosecution’s] contention that 

[the defendant’s] answers are not rendered inadmissible by 

Miranda merely because the slurred nature of his speech was 

incriminating. The physical inability to articulate words 

in a clear manner due to “the lack of muscular coordination 

of his tongue and mouth,” . . . is not itself a testimonial 

component of [the defendant’s] responses . . . . 

 12 Muniz recognized that “‘[t]he vast majority of verbal statements 

thus will be testimonial’ because ‘[t]here are very few instances in which a 

verbal statement, either oral or written, will not convey information or 

assert facts.’” 496 U.S. at 597 (brackets in original) (quoting Doe, 487 

U.S. at 213).
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[A]ny slurring of speech and other evidence of lack 

of muscular coordination revealed by [the defendant’s] 

responses to [the officer’s] direct questions constitute 

nontestimonial components of those responses. Requiring a 

suspect to reveal the physical manner in which he 

articulates words, like requiring him to reveal the 

physical properties of the sound produced by his voice,

. . . does not, without more, compel him to provide a 

“testimonial” response for purposes of the privilege.

Muniz, 496 U.S. at 590–92 (citations omitted).

The SFST, like the slurring of words, is 

nontestimonial in that it constitutes “an exhibition of physical 

characteristics of coordination.” Uchima, 147 Hawai‘i at 84, 464 

P.3d at 872 (quotation marks and citation omitted). We 

therefore see no reason to revisit our recent holding in Uchima, 

with which we continue to agree. 

V. CONCLUSION

For the foregoing reasons, the ICA’s December 16, 2020

judgment on appeal is affirmed.

Brian R. Vincent /s/ Mark E. Recktenwald

for respondent

/s/ Paula A. Nakayama

Alen M. Kaneshiro

for petitioner /s/ Sabrina S. McKenna

/s/ Todd W. Eddins