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NO. CAAP-19-0000408

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

ISAAC LIAM HOPKINS, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

(CASE NO. 1DTA-19-00572)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)

Defendant-Appellant Isaac Liam Hopkins (Hopkins)

appeals from the Notice of Entry of Judgment and/or Order and

Plea/Judgment, filed on May 1, 2019, and the Notice of Entry of

Judgment and/or Order and Plea/Judgment, filed on May 21, 2019,

in the District Court of the First Circuit, Honolulu Division

(District Court).1

Following a bench trial, the District Court convicted

Hopkins of Operating a Vehicle Under the Influence of an

Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS)

1 The Honorable Florence T. Nakakuni presided. 

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000408

14-SEP-2021

07:51 AM

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§ 291E-61(a)(1) (2007),2 and sentenced him as a first-time OVUII

offender.

On appeal, Hopkins contends: (1) there was

insufficient evidence to convict him of OVUII because the State

failed to prove impairment of his mental faculties or ability to

care for himself and guard against casualty, and the District

Court incorrectly stated "faculty" instead of "casualty" as an

element of the offense; (2) the State failed to prove Hopkins

acted with the requisite intentional, knowing, or reckless state

of mind; and (3) the District Court erred by relying upon

improper evidence, specifically (a) Hopkins's statement that he

had one drink earlier, without the court holding a voluntariness

hearing pursuant to HRS § 621-26 (2016),3

 (b) the opinion of an

officer that Hopkins was intoxicated when the officer did not

testify as to his opinion, (c) no testimony regarding clues to

the standardized field sobriety tests (SFSTs) or how to interpret

performance of them, and (d) Hopkins hopping for ten seconds

during the one-leg stand test.

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 by the parties, we

resolve Hopkins's points of error as follows, and we vacate and 

remand.

2 HRS § 291E-61(a) states:

§ 291E-61. Operating a vehicle under the influence of an intoxicant. 

(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; . . . .

3 HRS § 621-26, entitled "Confessions, when admissible," provides: 

"No confession shall be received in evidence unless it is first made to appear

to the judge before whom the case is being tried that the confession was in

fact voluntarily made."

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On February 13, 2019, Plaintiff-Appellee State of

Hawai#i (State) charged Hopkins with OVUII.4 At the May 1, 2019

bench trial, the State presented one witness, Honolulu Police

Department (HPD) Officer Ty Ah Nee (Officer Ah Nee). Officer Ah

Nee testified that while on duty on January 25, 2019, at

approximately 2:30 a.m., he noticed Hopkins's vehicle traveling

faster than other vehicles on the westbound lanes of the H-1

freeway under the Ward Avenue overpass. Hopkins was measured

with a LIDAR5 device traveling at 68 miles per hour in a 45 mile

per hour zone and was observed weaving side to side within the

lane. Officer Ah Nee initiated a traffic stop, and Hopkins

pulled over near the School Street offramp. Two males were in

the vehicle, with Hopkins in the driver's seat. Officer Ah Nee

explained to Hopkins that he was going 23 miles per hour over the

speed limit, and Hopkins replied that he did not realize the

freeway speed was only 45 miles per hour. While speaking with

Hopkins and obtaining Hopkins's license, registration, and

insurance, Officer Ah Nee noticed a strong odor of an alcoholic

beverage coming from the vehicle, and observed that Hopkins's

eyes were watery, red, and glassy. Officer Ah Nee informed

Hopkins of his observations and asked Hopkins to participate in a

4 The complaint against Hopkins states: 

On or about January 25, 2019, in the City and County

of Honolulu, State of Hawai#i, ISAAC LIAM HOPKINS did

intentionally, knowingly or recklessly operate or assume

actual physical control of a vehicle upon a public way,

street, road, or highway while under the influence of

alcohol in an amount sufficient to impair his normal mental

faculties or ability to care for himself and guard against

casualty; and/or did operate or assume actual physical

control of a vehicle upon a public way, street, road, or

highway with .08 or more grams of alcohol per two hundred

ten liters of breath, thereby committing the offense of

Operating a Vehicle Under the Influence of an Intoxicant, in

violation of Section 291E-61(a)(1) and/or (a)(3) of the

Hawai[]i Revised Statutes. ISAAC LIAM HOPKINS is subject to

sentencing in accordance with Section 291E-61(b)(1) of the

Hawaii Revised Statutes as a first offender.

5 A LIDAR device is a "speed measuring device," also known as a

"laser gun," that allows a police officer to estimate a vehicle's speed.

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SFST. The prosecutor then asked Officer Ah Nee if Hopkins said

anything when Hopkins was informed of his observations about the

"odor and the eyes," prior to the officer offering a SFST. 

Hopkins's counsel objected, citing a violation of HRS § 621-26

and Hopkins's "right to remain silent." The District Court

overruled the objection, and Officer Ah Nee testified that

Hopkins stated, "he did drink earlier but he only had one because

he was the driver . . . ."6

When administering the horizontal gaze nystagmus test,

the officer continued to smell an alcoholic type beverage coming

from Hopkins. Hopkins's head also swayed slightly during the

test, and he had to be reminded to keep his head still. During

the walk-and-turn test, Hopkins missed one heel-to-toe step on

the first nine steps, swung around on his right foot, hopped a

little, shuffled his feet during a turn, and missed three heel6 The trial transcript reflects the following:

A. [(OFFICER AH NEE)] So I explained my

observations to him. Mr. Hopkins, you know, I don't 

drink alcohol but I can smell it coming from the car. 

There's two of you, I'm not really sure who it's coming 

from or both. If you don't mind, I just want to make 

sure everybody gets home safely, can you -- can you 

please come out and let's do a sobriety test, make sure 

that you both are going to be able to get home.

 Q. [(BY PROSECUTOR)] Okay. Now, before we get 

to the exit or even the offering of the field sobriety 

test, when you told the defendant about your observations 

about the odor and the eyes, did the defendant say 

anything to you? 

[DEFENSE COUNSEL]: So I'm going to object, 

Your Honor. This violates 621-26, it violates defendant's 

right to remain silent.

THE COURT: No. Overruled.

A. (By the Witness) Yes. When I explained my

observations to him before I asked him out, he did -- he 

had said that they were coming from Waikiki and he did 

drink earlier but he only had one because he was the 

driver . . . .

The transcript reflects that Hopkins objected on grounds of both HRS § 621-26

and his constitutional right against self-incrimination. On appeal, however,

Hopkins's argument exclusively relies on HRS § 621-26 to challenge the

admission of the statement.

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to-toe steps and stepped off the line on the nine return steps,

all of which were contrary to the instructions. During the oneleg stand test, Hopkins lifted his foot and his leg swayed,

hopped a little at the ten second mark, did not look at his foot

while counting, and did not raise his leg six inches, all of

which were contrary to the instructions. After the SFSTs,

Officer Ah Nee arrested Hopkins for OVUII.

Following the State's case, Hopkins rested without

presenting any evidence. The District Court found Officer Ah Nee

credible, and convicted Hopkins of OVUII.

The District Court entered judgment on May 1, 2019, and

Hopkins subsequently filed a Motion for Reconsideration that was

denied on May 21, 2019. Hopkins timely appealed.

We first address Hopkins's contention that the District

Court, without holding a voluntariness hearing under HRS § 621-

26, erroneously admitted Hopkins's statement to the officer that

he had one drink, and that the District Court erroneously relied

on this improperly admitted statement to convict Hopkins. This

contention has merit and is dispositive.

Hopkins's statement that he had one drink was an

inculpatory statement that tended to establish guilt for the

offense. HRS § 621-26 "applies to inculpatory statements as well

as confessions." State v. Hewitt, 149 Hawai#i 71, 76, 481 P.3d

713, 718 (App. 2021), cert. granted, No. SCWC-16-0000460, 2021 WL

2775190, at *1 (Haw. July 2, 2021) (citing State v. Kelekolio, 74

Haw. 479, 501 n.13, 849 P.2d 58, 69 n.13 (1993)). In Hewitt, we

held that the district court in an OVUII bench trial erred when

it similarly overruled the defendant's HRS § 621-26 trial

objection. Id. at 72, 481 P.3d at 714. In Hewitt, the officer

initially interviewed the defendant at the hospital emergency

room as a potential assault victim. Id. at 73, 481 P.3d at 715. 

The defendant was physically incapacitated and heavily sedated. 

Id. The officer, after being informed that the defendant's

identification was found in a pickup truck that crashed on the

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side of the highway, asked the defendant if she was driving. Id.

The defendant answered that "she was driving to a friend's house

and parked the truck in the bushes." Id. At trial, the officer

testified that he had asked the defendant whether she had been in

a traffic accident. Id. at 76, 481 P.3d at 718. The State

asked, "[W]hat was her response?" and defense counsel objected,

which the district court overruled. Id. We held, "Rather than

overruling the objection, the district court should have

conducted an evidentiary hearing to determine whether [the

defendant's] statement was voluntarily made, in light of the

evidence that [the defendant] had sustained significant head

trauma, did not know where she was, and was incoherent." Id.

Under HRS § 621-26, "[t]he trial judge has a duty to

determine the admissibility of an inculpatory statement . . . ." 

State v. Green, 51 Haw. 260, 264, 457 P.2d 505, 508 (1969)

(citation omitted). A defendant has both a "constitutional and

statutory right to a judicial determination of the voluntariness

of his confession" or inculpatory statement. State v. Goers, 61

Haw. 198, 201, 600 P.2d 1142, 1144 (1979); see State v. Eli, 126

Hawai#i 510, 520 n.17, 273 P.3d 1196, 1206 n.17 (2012)

("[C]onstitutional due process, based on article 1, section 5 of

the Hawai#i Constitution, requires a statement to be 'voluntary'

in order to be admissible.") (citation omitted). 

While HRS § 621-26 does not expressly require a trial

court to conduct a separate voluntariness hearing, the statute

requires that the trial judge must determine "that the confession

was in fact voluntarily made." (Emphasis added). Thus, the

judge presiding over the trial must make a factual determination

of voluntariness before the admission of the statement. See

Green, 51 Haw. at 264, 457 P.2d at 508; Hewitt, 149 Hawai#i at

76, 481 P.3d at 718. Here, the District Court erred when it did

not hold a hearing or make a factual determination of the

voluntariness of Hopkins's statement before admitting the

statement into evidence. 

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Once it has been determined that a confession or

inculpatory statement was erroneously admitted into evidence, the

appellate court must consider whether the erroneous admission was

harmless beyond a reasonable doubt. See State v. Baker, 147

Hawai#i 413, 435, 465 P.3d 860, 882 (2020) (erroneous admission

of confession subject to harmless error analysis on appeal). "In

applying the harmless beyond a reasonable doubt standard, the

court is required to examine the record and determine whether

there is a reasonable possibility that the error complained of

might have contributed to the conviction." State v. Jones, 148

Hawai#i 152, 170, 468 P.3d 166, 184 (2020) (citations omitted).

In this case, because the District Court expressly

referenced Hopkins's inculpatory statement in its recitation of

the evidence to support its finding of guilt,7 the error is not

harmless beyond a reasonable doubt, and we must vacate and remand

for a new trial.

Given our disposition, it is not necessary to address

Hopkins's remaining contentions, except for his evidentiary

sufficiency challenge. We review the sufficiency of evidence

based on admissible evidence; stated another way, we must review

the remaining evidence, without considering Hopkins's inculpatory

statement. See State v. Wallace, 80 Hawai#i 382, 413-15, 910

P.2d 695, 726-28 (1996) (holding that review for evidentiary

sufficiency is based on "substantial and admissible evidence")

(emphasis in original). Evidence must be considered in the

"strongest light for the prosecution;" and the "test on appeal is

7 The District Court stated: 

And he [(Officer Ah Nee)] -- one of the things

he testified to was he told Mr. Hopkins about his

observations. Oh, and also about his observations and he

wasn't sure if the odor was coming from Mr. Hopkins or the

other person so he asked Mr. Hopkins if he could come out of

the car and do the standardized field sobriety test. And at

that point Mr. Hopkins told him that he had drank earlier

but only had one drink.

(Emphasis added).

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not whether guilt is established beyond a reasonable doubt, but

whether there was substantial evidence to support the conclusion

of the trier of fact." State v. Matavale, 115 Hawai#i 149, 157-

58, 166 P.3d 322, 330-31 (2007).

Here, there was substantial evidence to convict Hopkins

of OVUII. See id. at 157, 166 P.3d at 330. The record reflects

that Hopkins was speeding 23 miles per hour over the speed limit,

and did not know the speed limit despite speed control signs in

the area. He was also weaving side to side within a lane and

could not follow the SFST instructions. Hopkins's driving,

combined with Officer Ah Nee's observations of Hopkins's physical

indicia of intoxication and performance on the SFSTs, viewed in

the strongest light for the prosecution, constitutes substantial,

admissible evidence of Hopkins's OVUII offense. See id.;

Wallace, 80 Hawai#i at 413-15; 910 P.2d at 726-28.

Therefore, IT IS HEREBY ORDERED that the Notice of

Entry of Judgment and/or Order and Plea/Judgment filed on May 1,

2019, and the Notice of Entry of Judgment and/or Order and

Plea/Judgment filed on May 21, 2019, in the District Court of the

First Circuit, Honolulu Division, are vacated, and we remand for

a new trial consistent with this Summary Disposition Order.

DATED: Honolulu, Hawai#i, September 14, 2021.

On the briefs:

Marcus L. Landsberg IV

(Landsberg Law Office)

for Defendant-Appellant

Donn Fudo

Deputy Prosecuting Attorney

for Plaintiff-Appellee

/s/ Katherine G. Leonard

Presiding Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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