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NO. CAAP-20-0000566 

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, 

v.

BRYENT K.M. KANESHIRO, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

(CASE NO. 1DTA-18-00712)

SUMMARY DISPOSITION ORDER

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

Defendant-Appellant Bryent K.M. Kaneshiro (Kaneshiro)

appeals from the (1) October 4, 2019 "Notice of Entry of Judgment

and/or Order and Plea/Judgment," (2) October 4, 2019 "Amended

Notice of Entry of Judgment and/or Order and Plea/Judgment," and

(3) September 11, 2020 "Notice of Entry of Judgment and/or Order

and Plea/Judgment," all entered by the District Court of the

First Circuit1 (District Court), convicting him of Operating a

Vehicle Under the Influence of an Intoxicant (OVUII), in

violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1).2

1 The Honorable Randal I. Shintani presided over the suppression

hearing. The Honorable Philip M. Doi presided over trial and entered the

October 4, 2019 judgment and amended judgment. The Honorable Alvin K.

Nishimura entered the September 11, 2020 judgment. 

2 HRS § 291E-61(a)(1) (2020) provides: 

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000566

09-JUN-2023

08:02 AM

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Kaneshiro raises three points of error on appeal,3

contending that: (1) the "case must be dismissed pursuant to

State v. Thompson where the complaint did not meet the

requirements of HRS § 805-1";4 (2) the District Court erred in

"denying [Kaneshiro]'s motion to suppress his responses to the

[medical rule-out (MRO)] questions and all evidence and

statements that followed as the 'fruit of the poisonous tree'";5

and (3) Kaneshiro "did not knowingly, intelligently and

voluntarily waive his right to testify for purposes of the

suppression motion."

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

Kaneshiro's points of error as follows, and vacate and remand for

a new trial.

2(...continued)

(a) A person commits the offense of [OVUII] 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 We have reordered Kaneshiro's points of error for clarity.

4 This point of error was raised in Kaneshiro's Supplemental Brief

filed May 12, 2022. The Plaintiff-Appellee State of Hawai#i (State) also

filed a Supplemental Brief on May 13, 2022. Kaneshiro was allowed to file the

Supplemental Brief to address the Complaint in this case in light of State v.

Thompson, 150 Hawai#i 262, 267-69, 500 P.3d 447, 452-54 (2021), in which the

Hawai#i Supreme Court held that failure to comply with HRS § 805-1 renders a

complaint "fatally defective," and that such a complaint cannot be used to

support the issuance of an arrest warrant or penal summons. 

5 Kaneshiro does not specify in this point of error what the

"evidence and statements that followed" the MRO responses were, in violation

of Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(4)(A) (requiring

each point to include "the full substance of the evidence admitted" when the

point involves the admission of evidence). 

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(1) Kaneshiro argues that the Complaint was defective 

under HRS § 805-16

 because no witness with direct observations of

Kaneshiro's misconduct "subscribed to" or "submitted a

declaration in support of the [C]omplaint." Rather, the

Complaint was signed by the prosecuting attorney. Whether the

Complaint complied with applicable statute and/or rule is a

question of law we review de novo. Thompson, 150 Hawai#i at 266,

500 P.3d at 451. 

The Hawai#i Supreme Court recently held, in State v.

Mortensen-Young, 152 Hawai#i 385, 397, 526 P.3d 362, 374 (2023),

that HRS § 805-1 applies only to criminal complaints used to

obtain a penal summons or arrest warrant. In other cases, such

as the OVUII prosecutions at issue in Mortensen-Young, Hawai#i

Rules of Penal Procedure (HRPP) Rule 77 provides the proper

framework to analyze the sufficiency of complaints. Id. at 399,

526 P.3d at 376. In Mortensen-Young, the supreme court held that

the appellees were properly charged by complaint, signed by the

prosecutor, for the offense of OVUII pursuant to HRPP Rule 7(d),

6 HRS § 805-1 (2014) states, in pertinent part:

§ 805-1. Complaint; form of warrant. When a complaint

is made to any prosecuting officer of the commission of any

offense, the prosecuting officer shall examine the

complainant, shall reduce the substance of the complaint to

writing, and shall cause the complaint to be subscribed by

the complainant under oath, which the prosecuting officer is

hereby authorized to administer, or the complaint shall be

made by declaration in accordance with the rules of 

court. . . . 

7 HRPP Rule 7 states, in pertinent part:

Rule 7. INDICTMENT, INFORMATION, OR COMPLAINT.

. . . .

(d) Nature and contents. The charge shall be a plain,

concise and definite statement of the essential facts

constituting the offense charged . . . . A complaint shall

be signed by the prosecutor. The charge need not contain a

formal conclusion or any other matter not necessary to such

statement . . . . The charge shall state for each count the

official or customary citation of the statute, rule,

regulation or other provision of law which the defendant is

alleged therein to have violated.

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which does not require that a "'charging instrument in a

misdemeanor case be signed by anyone other than a prosecutor'" or

"'subscribed under oath or made by declaration in lieu of an

affidavit by anyone.'" Id.

Here, as in Mortenson-Young, HRS § 805-1 is

inapplicable because the Complaint was not used to obtain a penal

summons or arrest warrant. The Complaint set forth a concise and

definite statement of the essential facts, was signed by the

prosecutor, and referenced the statute that Kaneshiro allegedly

violated, as required by HRPP Rule 7(d). Thus, the Complaint was

sufficient to initiate the subject prosecution. See id. at 392,

P.3d at 369; Thompson, 150 Hawai#i at 266-67, 500 P.3d at 451-52.

(2) Kaneshiro argues that because he was never advised

of his Miranda8 rights when he was pulled over, his responses to

the MRO questions were the product of custodial interrogation,

and the District Court should have suppressed "any statement and

evidence obtained subsequent to the MRO questions as the 'fruit

of the poisonous tree.'"

Questions of constitutional law, such as the District

Court's ruling on the motion to suppress, are reviewed "de novo

to determine whether the ruling was 'right' or 'wrong.'" State

v. Manion, 151 Hawai#i 267, 271-72, 511 P.3d 766, 770-71 (2022)

(quoting State v. Lee, 149 Hawai#i 45, 49, 481 P.3d 52, 56

(2021)).

Suppression hearing

Kaneshiro's Motion to Suppress Statements (Motion 

to Suppress) requested suppression of the following:

1. Any statements made by [Kaneshiro] to Honolulu

 Police Department [HPD] Officer or other

 governmental personnel.

2. Any and all evidence seized or information gained

 by the [HPD] after [Kaneshiro] was placed under

 arrest, was not read his/her Miranda rights or was

 instructed that he/she did not have a right to

 have an attorney.

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

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Kaneshiro principally argued what is the subject matter of the

instant appeal –- that he was in custody and subject to

interrogation in violation of his Miranda rights when he was

stopped by HPD Officer Arthur Gazelle (Officer Gazelle). At the

November 7, 2018 hearing on Kaneshiro's Motion to Suppress,

Officer Gazelle testified that he stopped Kaneshiro after

observing Kaneshiro "traveling faster than the posted speed

limit" on the highway; crossing over a "solid yellow line"; and

failing to use turn signals. As Officer Gazelle activated his

sirens, Kaneshiro eventually pulled over at a "very narrow"

shoulder lane, where Officer Gazelle instructed Kaneshiro to take

the off-ramp and "pull into the parking lot" of an elementary

school. Kaneshiro began to slowly drive off the highway to the

off-ramp, where he stopped on the side of the road rather than in

the parking lot of the elementary school. Upon approaching

Kaneshiro's vehicle, Officer Gazelle noticed a "strong odor of

alcohol on [Kaneshiro's] breath" and that he had "red and glassy"

eyes. Kaneshiro's speech was "sluggish" and "slightly slurred."

Officer Gazelle asked Kaneshiro to exit his vehicle for a

standard field sobriety test (SFST), to which Kaneshiro agreed. 

Prior to the SFST, Officer Gazelle asked Kaneshiro 

MRO questions, including whether Kaneshiro had "any physical

defect or speech impediment"; was "taking any medication"; had "a

doctor or an eye doctor"; was "under the care of a dentist"; had

"an artifical or glass eye"; and was "diabetic or epileptic." In

response to whether he had any speech impediment or an artificial

or glass eye, Kaneshiro stated that he "mumbles sometimes" and

has glasses.

Officer Gazelle administered the SFST and determined

that Kaneshiro was unable to safely operate his vehicle.

Kaneshiro was placed under arrest and charged with OVUII and

excessive speeding.

The District Court denied the Motion to Suppress,

ruling as follows: 

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It is -- in this case, there is an excessive

[(speeding)] count as well as the OVUII. Court finds it was

an ongoing investigation. There was no express statement by

Officer Gazelle, I believe, that Mr. Kaneshiro -- Mr. Bryent

Kaneshiro was under arrest for the excessive speeding. So

at that -- there was no express decision that he was in

custody. At that point, it was an ongoing investigation on

the OVUII. 

And the other arguments, [Defense Counsel], in your

memorandum, the state of the appellate decisions right now

regarding the rule-out and regarding the consent to exit, as

long as there's consent, there's nothing that has been

indicated otherwise, his willingness to exit the car at this

point. So based on the evidence thus presented, appellate

decisions, court's again denying your motion to suppress. 

Bench trial 

On July 26 and October 4, 2019, a bench trial was held.

At trial, Officer Gazelle testified that he observed Kaneshiro

speeding, drifting over a yellow lane marking, crossing over into

another lane, and suddenly braking and slowing down. Officer

Gazelle testified that when he initiated the stop, Kaneshiro

failed to pull over at the next safest area, and proceeded to

stop in a shoulder lane, "[p]artially blocking [an] active

lane[.]" Officer Gazelle instructed Kaneshiro to take the next

off-ramp and pull into a parking lot of an elementary school,

upon which Kaneshiro proceeded to travel at about "10 to 15 miles

an hour" off the freeway, where he eventually came to a stop on

the side of a road. Upon approach, Officer Gazelle "smelled a

strong odor of alcoholic-type beverage" "emitting from

[Kaneshiro's] breath," and noticed that his speech was

"sluggish." Officer Gazelle asked Kaneshiro if he would be

willing to participate in a SFST, and Kaneshiro agreed. 

Officer Gazelle testified that he asked Kaneshiro the

MRO questions, to which Kaneshiro "mentioned that he mumbles and

that he wears prescription glasses." Officer Gazelle also

testified that in response to whether Kaneshiro had a glass eye,

it was "odd" that Kaneshiro stated that he wore "glasses," and

that based on his observations, "there was nothing that

interfered" with Kaneshiro's "ability to perform the [SFST]." 

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Officer Gazelle could not remember any observations he

made during the SFST and had to refresh his recollection by

reviewing a SFST form that he had filled out on the date of the

incident. Officer Gazelle then testified that he arrested

Kaneshiro for OVUII and excessive speeding based on how Kaneshiro

was "driving," "speaking," "smelt [sic]," "looked," "acting,"

"performed his [SFST]," and his "preliminary alcohol screening"

result.9 Officer Gazelle testified that in his opinion,

Kaneshiro was "drunk," "impaired," and not driving or able to

drive "safely."10 However, Kaneshiro's driving, by itself, did

9 Kaneshiro's preliminary alcohol screening result was not admitted

into evidence.

10 Over defense objection, Officer Gazelle testified that Kaneshiro

was "drunk" and "impaired" as follows: 

Q. [(By Prosecutor)] In your opinion, was he

drunk?

A. [(By Officer Gazelle)] Yes. Not falling down

piss drunk, but he was drunk.

Q. And, in your opinion, was it safe for

[Kaneshiro] to operate his vehicle?

A. No, he wasn't operating his vehicle safely

from what I observed.

. . . . 

A. I don't have a present recollection of

anything on the standardized field sobriety test.

Q. Okay. All of it is coming from your report?

A. Correct. I have present recollection of the

driving and how he's acting. All the other stuff we

testified to, I definitely remember all of that.

. . . .

Q. You refreshed your recollection with your

report, but based on your recollection apart from

your report, do you still hold the opinion that the

defendant was drunk on the night you pulled him over?

A. Yes, I believe he was impaired, and I

believe that he did exhibit that he wasn't driving

safely. I watched him not drive safely.

(continued...)

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not give Officer Gazelle the impression that Kaneshiro was

"impaired" or under the influence.11

Kaneshiro made a motion for judgment of acquittal,

which the District Court granted for the excessive speeding

charge, but denied for the OVUII charge. Kaneshiro then made a

"motion to strike the totality" of Officer Gazelle's testimony

regarding Kaneshiro's performance on the SFST, because the

officer had "no present recollection" of the SFST.12 The

District Court granted Kaneshiro's motion to strike the SFST. 

Kaneshiro then moved to strike Officer Gazelle's testimony

regarding his opinion on whether Kaneshiro was "drunk" or

"impaired," because this was "in part based on the results of the

SFST." The District Court denied this motion because Officer

Gazelle testified he "remember[ed] everything else" except for

10(...continued)

(Emphases added). 

11 Officer Gazelle testified as follows:

Q. [(By Defense Counsel)] And the speeding

didn't give you the impression that he was under the

influence, correct?

A. [(By Officer Gazelle)] In and of itself?

Q. Correct.

A. No.

Q. And even the crossing over the lane lines

didn't give you the impression that he was under the

influence, correct?

A. Are you going to break up every little

observation in and of itself?

Q. Just talking about the driving.

A. Oh, okay. No.

12 Kaneshiro's counsel stated: "Your Honor, I would be also making a

motion to strike the totality of the standardized field sobriety test. As

Officer Gazelle testified, he has no present recollection about the SFST, and

his testimony is purely based on basically reading his reports[.]"

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the "particulars" of the SFST.13 Kaneshiro did not testify, but

called a witness who was in Kaneshiro's vehicle at that time. 

The witness testified that they had just left a barbeque, that

they "were confused" about where to pull over, and that she did

not recall Kaneshiro drinking prior to him driving. 

During closing argument, the State acknowledged that

the case depended on Kaneshiro's driving and Officer Gazelle's

"opinion as to intoxication," which was partly "based on the

administration of the [SFST]."14 Kaneshiro argued that although

13 The District Court denied Kaneshiro's motion to strike Officer

Gazelle's opinion testimony as follows: 

[DEFENSE COUNSEL]: . . . And I also think that

his opinions based on Mr. Kaneshiro either being drunk

or intoxicated or impaired, or whatever he said,

should also be stricken because that was based on the

standardized field sobriety test results --

. . . .

[DEFENSE COUNSEL]: When Officer Gazelle

testified about, you know, why he arrested Mr.

Kaneshiro for operating a vehicle under the influence

and whether he had a lay opinion on whether he was

intoxicated, Officer Gazelle testified that it was in

part based on the results of the SFST, and if that is

stricken, then his opinion should be stricken as well

if he has no present recollection of it.

. . . . 

THE COURT: The -- he's saying that today,

in court, he has no present recollection of the

particulars of the field sobriety test that he --

about which he was asked and -- and -- and -- and

responded, that his responses were due solely to the

report, but he said I remember everything else. And

the opinion that he stated when questioned was based

on a decision he made, I forget when it was, but

sometime ago, and that decision was based on the --

the knowledge he had on that same evening from within

the previous probably five minutes, maybe ten minutes,

so --

[DEFENSE COUNSEL]: Okay. Thank you.

THE COURT: -- I'm denying that.

14 The State stated the following:

(continued...)

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Officer Gazelle noted Kaneshiro's driving, there is "driving like

this involving no alcohol[,]" and that Officer Gazelle testified

that "the driving alone was not an indicator . . . that Mr.

Kaneshiro was intoxicated." Additionally, Kaneshiro argued that

because Officer Gazelle's testimony regarding Kaneshiro being

intoxicated was in part based on the stricken SFST, the District

Court should not give much weight to the testimony.15

14(...continued)

In this case, as with all OVUII cases, or most,

we're looking at a couple of things. We're looking at

driving, we're looking at indicia, and we're looking

at the officer's opinion as to the intoxication, and

that's based on the administration of the field

sobriety test.

. . . .

But the officer did recall administering a

complete SFST, and based on the SFST, the officer's

observations of driving, in particular the hazardous

driving, and the totality of the circumstances, the

officer believed [Kaneshiro] to be both drunk and

impaired and subject to arrest for OVUII.

15 Kaneshiro argued that:

He -- Officer Gazelle testified that Mr.

Kaneshiro told him that he mumbled. Mumble and

slur, he didn't say slur, he said sluggish, mumble

and sluggish. He was never asked could you explain

the difference between a mumble and -- and

sluggish? That could explain the speech.

Officer Gazelle testified about the odor of

alcohol and what it can tell him and what it can't

tell him. He had no difficulty exiting the vehicle. 

And there is no field sobriety test. Officer's

opinion as to whether somebody is drunk as a lay

testify -- person testifying has very little

weight, and should have very little weight,

especially since he's basing some of it on the

observations on the standardized field sobriety

test. So this court shouldn't give much weight, if

any, to Officer Gazelle's testimony that Mr.

Kaneshiro was drunk or intoxicated, and -- and,

besides that, being drunk and intoxicated is not

the standard that the State has to prove. They have

to prove impair -- impairment. So neither of those

opinions go to impairment.

The bottom line is in this particular case,

the State has not proven beyond a reasonable doubt

all of these things that the State points to. It

(continued...)

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Kaneshiro was found guilty of OVUII.16 This appeal

followed.

Kaneshiro's responses to the MRO questions should have

been suppressed.

Kaneshiro argues that when he was pulled over by

Officer Gazelle, he was in "custody" because Officer Gazelle had

probable cause to arrest Kaneshiro for excessive speeding, and he

was not free to leave. Kaneshiro contends that the MRO questions

15(...continued)

says it could be because of this, it could be

because of that. It could also be because people

simply drive fast, people dis-- cross over lane

markings on S turns, people get startled with --

with police officers or confused where they're

going to pull over on the freeway. It could be --

it could be a whole bunch of things, and all of

those could-be's are reasonable doubts. Thank you.

16 The District Court stated the following when finding Kaneshiro

guilty: 

The burden that the State has, I think you

left out one little portion, [Defense Counsel]. The

State has to prove beyond a reasonable doubt,

certainly, that alcohol was a contributing factor in

the impairment, not that it was the sole cause of the

impairment. And -- I -- I -- I think the -- the – the

-- the driving as described by Officer Gazelle was not

good, it was -- it was -- he -- he frankly said it was

not safe driving. Yeah, you know, when people are --

can straighten out the S curve, I think we've all seen

something like that happen, but this is at a very high

speed, so the high speed could be maintained, blew

past the SUV, but in particular hit the brakes when --

when he -- when Mr. Kaneshiro realized that the

officer was behind him, which is an exceptionally, I

would say, dangerous maneuver. Could possibly have

been the -- the reason why Officer Gazelle spoke in an

aggressive manner.

The District Court then recounted details regarding the physical location of

the stop, and found Kaneshiro guilty as follows: 

I am — — bottom line — — okay, and no one — — no one's

disputing the date or the time or the — — or the

location of this, that it occurred in the City and

County of Honolulu, State of Hawaii, and it was a

public street, road or highway. You're disputing the

issues you actually addressed in closing, and I — — I

— — Mr. Kaneshiro, I — — I — — I — — I'm left with the

belief that State has proven beyond a reasonable doubt

the elements of its case. I'm finding you guilty of

this charge of Operating a Vehicle Under the Influence

of an Intoxicant.

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constituted "interrogation" because they "were specifically

designed to rule out any possible causes for irregularities on

the SFST other than intoxication."

 The District Court found that Kaneshiro was not in

"custody," because when Officer Gazelle pulled Kaneshiro over for

excessive speeding, Officer Gazelle made "no express statement"

that Kaneshiro was under arrest for excessive speeding, and it

was still an "ongoing investigation." The District Court also

denied suppression of Kaneshiro's responses to the MRO questions

because Kaneshiro consented to exit the vehicle for a SFST and

willingly answered the MRO questions.

"[T]he requirement of Miranda warnings is triggered by

two criteria: (1) the defendant must be under interrogation; and

(2) the defendant must be in custody." State v. Ah Loo, 94

Hawai#i 207, 210, 10 P.3d 728, 731 (2000) (cleaned up). The

State in its Answering Brief presented no argument that Kaneshiro

was not subjected to custodial interrogation, or that the MRO

responses were admissible and should not have been suppressed.17

Rather, the State presented argument based on the arguendo

assumption that the District Court erred in failing to suppress

Kaneshiro's MRO responses. The State's failure to argue that

Kaneshiro was not in custody constitutes a waiver of that

argument. See HRAP Rule 28(b)(7) and (c).

In State v. Skapinok, 151 Hawai#i 170, 185, 510 P.3d

599, 614 (2022) (citation omitted), the supreme court held that

"all of the [MRO] questions are interrogation" because

"[a]lthough the 'incriminating inference' may be indirect, the

questions nevertheless adduce evidence to establish that

intoxication caused any poor performance on the SFST."18 Thus,

17 In this regard, the State argued: "Even assuming that the

district court erred in failing to suppress Kaneshiro's answers to the medical

rule-out questions, the district court did not err in refusing to suppress the

remaining evidence and any error was harmless beyond a reasonable doubt[.]" 

18 In Skapinok, the officer asked the following MRO questions:

(continued...)

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Miranda warnings were required prior to the officer asking these

questions. Here, no Miranda warnings were given, and Kaneshiro's

responses to the MRO questions should have been suppressed. The

District Court was wrong in this regard. See Manion, 151 Hawai#i

at 271-72, 511 P.3d at 770-71.

The erroneous admission of the MRO responses was not

harmless beyond a reasonable doubt. 

The State argues that even assuming that the District

Court erred in failing to suppress the MRO responses, "any error

in admitting them into evidence in the instant case was harmless

beyond a reasonable doubt." Kaneshiro argues that while the

District Court "did not cite the specific bases for its verdict,

the fact that it only excluded the SFST testimony and the court

specifically stated that it disagreed with [d]efense [c]ounsel's

argument in closing, evidence[s] that it relied upon evidence and

statements which should have been suppressed." Kaneshiro's

argument has merit. 

"Erroneously admitted evidence is evaluated under the

harmless beyond a reasonable doubt standard." State v. Jones,

148 Hawai#i 152, 170, 468 P.3d 166, 184 (2020) (citation and

internal quotation marks omitted). "The erroneous admission of

evidence is not harmless when there is a reasonable possibility

that the error might have contributed to the conviction." State

18(...continued)

i. Do you have any physical defects or speech

impediments?

ii. Are you taking any medications?

iii. Are you under the care of a doctor or dentist for

anything?

iv. Are you under the care of an eye doctor?

iv. Do you have an artificial or glass eye?

v. Are you epileptic or diabetic?

vi. Are you blind in either eye?

151 Hawai#i at 173-74, 510 P.3d at 602-03. These questions are identical to

the MRO questions that Officer Gazelle asked Kaneshiro. 

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v. Baker, 147 Hawai#i 413, 435, 465 P.3d 860, 882 (2020)

(emphasis added) (citing State v. McCrory, 104 Hawai#i 203, 210,

87 P.3d 275, 282 (2004)). 

Here, the record reflects that there is a reasonable

possibility that the erroneous admission of the MRO responses

might have contributed to Kaneshiro's OVUII conviction. See id.

Officer Gazelle testified that prior to administering the SFST,

he asked Kaneshiro the MRO questions, to which Kaneshiro

responded that he "mumbles" and wore "prescription glasses." In

response to whether Kaneshiro had a glass eye, Kaneshiro oddly

responded that he wore "glasses." Based on Officer Gazelle's

observations of the area where the SFST was administered, "there

was nothing that would've interfered" with Kaneshiro's ability to

perform the SFST. Officer Gazelle arrested Kaneshiro for OVUII

based on how Kaneshiro was "driving," "smelt [sic]," "looked,"

"acting," "performed on his [SFST]," and the result of

Kaneshiro's "preliminary alcohol screening." (Emphases added). 

Officer Gazelle did not remember the "specifics" of Kaneshiro's

SFST performance, but recalled "administering" the test and how

Kaneshiro was "acting" and "driving." Officer Gazelle's opinion

that Kaneshiro was "impaired"19 was based on his "recollection

apart from [his SFST] report[.]"

The State argued in closing that while Officer Gazelle

did not remember the specifics of Kaneshiro's SFST performance,

he "did recall administering a complete SFST, and based on the

SFST, the officer's observations of driving, in particular the

hazardous driving, and the totality of the circumstances, the

officer believed [Kaneshiro] to be both drunk and impaired and

subject to arrest for OVUII." (Emphases added). In adjudicating

Kaneshiro guilty of OVUII, the District Court found that "alcohol

19 Officer Gazelle's opinion testimony that Kaneshiro was "drunk" or

"impaired" is not subject to the 2020 holding in Jones, 148 Hawai#i at 176,

468 P.3d at 190, in which the supreme court prospectively held that: "police

officers may no longer testify, whether in a lay or expert capacity, that a

driver appeared 'intoxicated.'" The trial in this case occurred prior to

Jones, on July 26, 2019 and October 4, 2019.

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was a contributing factor in the impairment" and noted

Kaneshiro's unsafe driving.

On this record, we cannot conclude that the admission

of the MRO responses was harmless beyond a reasonable doubt,

where Officer Gazelle's opinion that Kaneshiro was "impaired" was

based in part on Kaneshiro's SFST performance, and where the MRO

questions are specifically designed to "'rule out' other reasons,

besides intoxication, for poor performance on the SFST." See

Skapinok, 151 Hawai#i at 172, 510 P.3d at 601; Baker, 147 Hawai#i

at 435, 465 P.3d at 882; cf. State v. Uchima, 147 Hawai#i 64, 84,

464 P.3d 852, 872 (2020) (finding that the defendant suffered no

prejudice from the admission of the MRO questions, where the

district court specifically stated that the questions "would have

no probative value, no inculpatory or exculpatory value" in the

trial part of the proceeding) (emphasis added). 

Given our disposition, it is not necessary to address

Kaneshiro's remaining contention.

For the foregoing reasons, the (1) October 4, 2019

"Notice of Entry of Judgment and/or Order and Plea/Judgment," 

(2) October 4, 2019 "Amended Notice of Entry of Judgment and/or

Order and Plea/Judgment," and (3) September 11, 2020 "Notice of

Entry of Judgment and/or Order and Plea/Judgment," all entered by

the District Court of the First Circuit, are vacated, and this

matter is remanded for a new trial consistent with this Summary

Disposition Order.

DATED: Honolulu, Hawai#i, June 9, 2023.

On the briefs:

Alen M. Kaneshiro

for Defendant-Appellant.

Brian R. Vincent

Deputy Prosecuting Attorney

for Plaintiff-Appellee.

/s/ Keith K. Hiraoka

Presiding Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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