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NO. CAAP-18-0000150

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

RYAN M. GIUGLIANO, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT

(CASE NO. 3DTA-17-00652)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)

Defendant-Appellant Ryan M. Giugliano (Giugliano)

appeals from the Judgment and Notice of Entry of Judgment, filed

on February 28, 2018, in the District Court of the Third Circuit

(District Court).1

Giugliano was convicted of Operating a Vehicle Under

the Influence of an Intoxicant (OVUII), in violation of Hawaii

Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2017).2

1 The Honorable Margaret K. Masunaga presided.

2 HRS § 291E-61(a) states, in relevant part:

§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[.]

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000150

30-JUN-2020

08:04 AM
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On appeal, Giugliano contends that the District Court

erred by: (1) denying his Motion to Suppress and (2) admitting

the results of the Horizontal Gaze Nystagmus (HGN) 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 Giugliano's points of error as follows:

(1) Giugliano contends that the District Court erred in

denying the suppression of his post-seizure verbal statements and

non-verbal communicative responses because he was neither advised

of his prearrest right to remain silent when Hawai#i County

Police Officer Bradley Llanes (Officer Llanes) detained Giugliano

during an investigatory traffic stop, nor was he advised of his

Miranda3 rights prior to being subjected to custodial

interrogation by Officer Llanes.

Giugliano relies on State v. Tsujimura, 140 Hawai#i

299, 400 P.3d 500 (2017), in arguing that he should have been

advised of his prearrest right to remain silent once he was

stopped and that a failure to do so required suppression of his

verbal statements and non-verbal communications. In Tsujimura,

the supreme court recognized that the right against

self-incrimination attaches before arrest under article I,

section 10 of the Hawai#i Constitution. Id. at 310-11, 400 P.3d

at 511-12. The court further held that "the State may not use as

substantive proof of guilt a defendant's prearrest silence that

occurs at least as of the time of detention, for doing so would

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

A critical safeguard [of the privilege against

self-incrimination] is the Miranda warning: an accused must be

"warned that he or she had a right to remain silent, that

anything said could be used against him or her, that he or she

had a right to the presence of an attorney, and that if he or

she could not afford an attorney one would be appointed for

him or her."

State v. Kazanas, 138 Hawai#i 23, 34, 375 P.3d 1261, 1272 (2016) (quoting State

v. Ketchum, 97 Hawai#i 107, 116, 34 P.3d 1006, 1015 (2001)).

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violate the right against compelled self-incrimination under

article I, section 10 of the Hawai#i Constitution." Id. at 314,

400 P.3d at 515.

Tsujimura does not stand for the proposition that a

defendant must be informed of his right to remain silent at the

initiation of a traffic stop. Tsujimura involved the use of a

defendant's prearrest silence as substantive proof of guilt,

rather than using a defendant's prearrest statements and acts as

substantive proof of guilt. Thus, Tsujimura is distinguishable

and Giugliano's reliance on that case is misplaced.

Giugliano next contends that his verbal statements,

including his responses to medical rule-out questions, and

non-verbal communicative acts during his participation in the

standardized field sobriety tests (SFSTs) should have been

suppressed because they resulted from custodial interrogation and

he was not first advised of his Miranda rights.

The proponent of the motion to suppress has the burden of

establishing, by a preponderance of the evidence, that the

statements or items sought to be excluded were unlawfully

secured and that his or her right to be free from

unreasonable searches or seizures was violated under the

fourth amendment to the United States Constitution and

article I, section 7 of the Hawai#i Constitution. See State

v. Wilson, 92 Hawai#i 45, 48, 987 P.2d 268, 271 (1999)

(citations omitted).

State v. Kaleohano, 99 Hawai#i 370, 375, 56 P.3d 138, 143 (2002).

Where an individual is being subjected to custodial

interrogation, he may not be asked any questions without his

first being advised of his right to remain silent, that

anything he says can and will be used against him, that he

has the right to have his attorney present, and that if he

cannot afford counsel, one will be appointed for him prior

to any interrogation. Miranda v. Arizona, 384 U.S. 436,

467-474 (1966); State v. Santiago, 53 Haw. 254, 492 P.2d 657

(1971). "Custodial interrogation" means "questioning

initiated by law enforcement officers after a person has

been taken into custody or otherwise deprived of his freedom

of action in any significant way." [Miranda], 384 U.S. at

444.

State v. Kalai, 56 Haw. 366, 368, 537 P.2d 8, 11 (1975) (emphasis

omitted).

"To determine whether 'interrogation' is 'custodial,'

we look to the totality of the circumstances, focusing on 'the

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place and time of the interrogation, the length of the

interrogation, the nature of the questions asked, the conduct of

the police, and any other relevant circumstances.'" State v. Ah

Loo, 94 Hawai#i 207, 210, 10 P.3d 728, 731 (2000) (brackets

omitted) (quoting State v. Melemai, 64 Haw. 479, 481, 643 P.2d

541, 544 (1982)). "In this regard, we have acknowledged that 'no

precise line can be drawn' between 'custodial interrogation,' on

the one hand, and 'permissible general on-the-scene questioning,'

on the other." Id. (quoting State v. Patterson, 59 Haw. 357,

362, 581 P.2d 752, 755-56 (1978)).

On this appeal of the lower court's denial of a motion

to suppress, we look at both the record of the hearing on the

motion to suppress and the record of the trial. State v. Vinuya,

96 Hawai#i 472, 481, 32 P.3d 116, 125 (App. 2001). At the

hearing on the Motion to Suppress, Officer Llanes testified that

he initiated a traffic stop of Giugliano on suspicion of not

wearing a seat belt while operating his vehicle4 in the vicinity

of the Old Airport Beach Park in the County of Hawai#i. Upon

stopping Giugliano, Officer Llanes informed Giugliano of the

reason he was stopped and then observed Giugliano to have red,

watery, glassy eyes and a strong odor of intoxicants emanating

from him. Based on those observations, Officer Llanes asked

Giugliano to exit the vehicle and to participate in the SFSTs.

At trial, Officer Llanes additionally stated that, prior to

administering the SFSTs,5 he asked Giugliano medical rule-out

4 HRS § 291-11.6, entitled "Mandatory use of seat belts, when,

penalty" provides in relevant part:

(a) Except as otherwise provided by law, no person shall

operate a motor vehicle upon any public highway unless the

person is restrained by a seat belt assembly and all

passengers in the front or back seat of the motor vehicle are

restrained by a seat belt assembly or are restrained pursuant

to section 291-11.5 if under eight years of age.

5 Officer Llanes testified at trial that the SFSTs consist of the HGN

test, Walk-and-Turn test, and the One-leg Stand test.

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questions.6 Giugliano responded "no" to all of the questions,

but noted that he normally stutters. Officer Llanes then

instructed Giugliano on how to do the SFSTs and asked if he

understood the instructions, which Giguliano indicated he did.

Giugliano then exited his vehicle and participated in the SFSTs,

after which he was placed under arrest for OVUII. The record

indicates that Giugliano was also cited for operating his vehicle

without being restrained by a seat belt assembly, which proceeded

as a separate case.

Giugliano claims that he was in custody because,

"[c]learly, at the point where Officer Llanes requested that

Giugliano get out of his car, Giguliano was the focus of an OVUII

investigation and he was not free to leave."

In Ah Loo, the court stated:

[W]e affirm the principle that, when an officer lawfully

"seizes" a person in order to conduct an investigative stop,

the officer is not required to inform that person of his or

her Miranda rights before posing questions that are

reasonably designed to confirm or dispel -- as briefly as

possible and without any coercive connotation by either word

or conduct -- the officer's reasonable suspicion that

criminal activity is afoot.

94 Hawai#i at 212, 10 P.3d at 733. Ah Loo makes clear that a

defendant is not in custody for purposes of Miranda merely

because he or she has been pulled over pursuant to a valid

traffic stop. Kaleohano, 99 Hawai#i at 376, 56 P.3d at 144. The

court in Ah Loo stated:

[A]n individual may very well be "seized," within the

meaning of article I, section 7 of the Hawai#i Constitution

(inasmuch as, "given the totality of the circumstances, a

reasonable person would have believed that he or she was not

free to leave") and yet not be "in custody," such that

Miranda warnings are required as a precondition to any

questioning.

94 Hawai#i at 211, 10 P.3d at 732 (citation omitted).

6 Officer Llanes testified at trial that the medical rule-out

questions consisted of asking Giugliano: (1) whether he had any physical defects

or speech impediments; (2) whether he was under the care of a doctor or dentist;

(3) whether he was blind in either eye or had an artificial eye; (4) whether he

was under the care of an eye doctor; (5) whether he was currently taking any

medication; and (6) whether he was epileptic or diabetic.

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If probable cause to arrest or sustained and coercive

questioning are present, then questions posed by the police could

amount to custodial interrogation. Kaleohano, 99 Hawai#i at 377,

56 P.3d at 145.

Unlike cases in which we have held that a defendant was

in custody almost immediately after being stopped because the

police officer had probable cause to arrest the defendant for a

criminal offense, see State v. Sagapolutele-Silva, No.

CAAP-19-0000491, 2020 WL 1699907, at *6 (Haw. App. Apr. 8, 2020),

as corrected (June 1, 2020), as amended (June 8, 2020), Giugliano

was stopped by the officer for failing to wear a seat belt, in

violation of HRS § 291–11.6, which is a civil traffic infraction

and not a criminal offense. See State v. Ribbel, 111 Hawai#i

426, 428, 142 P.3d 290, 292 (2006). Giugliano was therefore not

in custody at the moment he was pulled over for the traffic stop.

See State v. Kuba, 68 Hawai#i 184, 188, 706 P.2d 1305, 1309

(1985) ("Where . . . the seizure of the defendant is reasonable

to investigate a traffic violation and the investigating police

officer engages in legitimate, straightforward, and noncoercive

questioning necessary to obtain information to issue a traffic

citation, there is no custodial interrogation; no Miranda

warnings are required before the police officer begins asking

questions.").

Contrary to his assertion, Giugliano was also not in

custody for OVUII at the point where Officer Llanes observed

Giuglano to have red, watery, glassy eyes and an odor of

intoxicants about him, and requested that Giugliano exit the

vehicle. Giugliano's red, watery, glassy eyes and the strong

odor of intoxicants emanating from him were sufficient to justify

Officer Llanes asking Giugliano to exit the vehicle. See

Vallesteros, 84 Hawai#i at 302, 933 P.2d at 639 ("[A] police

officer must have at least a reasonable basis of specific

articulable facts to believe a crime has been committed to order

a driver out of a car after a traffic stop" (quoting State v.

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Kim, 68 Haw. 286, 290, 711 P.2d 1291, 1294) (1985)); State v.

Barrickman, 95 Hawai#i 270, 274-77, 21 P.3d 475, 479-82 (App.

2001) (holding that there was reasonable suspicion to investigate

driving while intoxicated based on defendant's glassy eyes and

smell of alcohol on breath). However, these observations did not

initially amount to probable cause to arrest Giugliano for OVUII.

See Sagapolutele-Silva, No. CAAP-19-0000491, 2020 WL 1699907, at

*6 (determining that police did not initially have probable cause

to arrest a defendant for OVUII based upon noticing she had red,

watery, and glassy eyes and an odor of alcohol about her). As a

result, Giugliano was not in custody at the time Officer Llanes

requested that Giugliano exit his vehicle and proceeded to ask

Giugliano the medical rule-out questions. Therefore, Miranda

warnings were not required at that point and the District Court

did not err in admitting Giugliano's responses to the medical

rule-out questions. See Ah Loo, 94 Hawai#i at 211, 10 P.3d at

732; Kuba, 68 Haw. at 184, 706 P.2d at 1306 (holding that Miranda

warnings were not required before investigative questioning

regarding suspicion of alcohol or drug impairment during a valid

traffic stop); State v. Wyatt, 67 Haw. 293, 300-01, 687 P.2d 544,

550 (1984) (holding that, during a valid traffic stop, police

officer was not required to issue Miranda warnings prior to

asking motorist if she had been drinking).

The District Court also did not err in admitting the

observations of Giugliano's performance on the SFSTs or

Giugliano's responses to being asked to participate in the SFSTs

and to the instructions. The right 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. In Wyatt, the court stated that

observations of a defendant's performance on the SFSTs was an

exhibition of physical characteristics of coordination. Id. at

303, 687 P.2d at 551. Thus, the Wyatt court held that since

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performance on the SFSTs was neither communication nor testimony,

the trial court did not err by refusing to suppress the SFST

observations. Id. at 301-03, 687 P.2d at 550-51. Similarly,

except as discussed infra, the District Court did not err in

admitting Officer Llanes's observation of Giugliano's performance

on the SFSTs. The District Court also did not err in admitting

Giugliano's responses to being asked to participate in the SFSTs

and to the instructions because these questions are necessarily

attendant to a legitimate police procedure and did not amount to

"interrogation." See Pennsylvania v. Muniz, 496 U.S. 582, 605

(1990) (determining that a police officer's questioning of a

defendant regarding whether the defendant understood the field

sobriety test instructions and wished to submit to the test did

not amount to an "interrogation" because they were "limited and

focused inquiries [that] were necessarily 'attendant to' the

legitimate police procedure, and were not likely to be perceived

as calling for any incriminating response." (citation omitted)).

(2) Giugliano claims that the District Court abused its

discretion by admitting the result of the HGN test because it

lacked proper foundation and could not be used as substantive

evidence of impairment. Giugliano further asserts that the error

was not harmless.

In State v. Ito, this court held: "Before HGN test

results can be admitted into evidence in a particular case, . . .

it must be shown that (1) the officer administering the test was

duly qualified to conduct the test and grade the test results;

and (2) the test was performed properly in the instant case." 90

Hawai#i 225, 244, 978 P.2d 191, 210 (App. 1999) (citations

omitted). We further concluded that the evidence presented at

the trial in that case failed to demonstrate that the officer was

duly qualified to conduct the HGN test and grade the test results

because, inter alia, it was not clear whether a standard training

program that the officer received met the requirements of the

National Highway Traffic Safety Administration and whether the

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officer received periodic retraining to refresh himself on his

HGN test administration skills. Id.

In this case, Officer Keith Nacis (Officer Nacis)

testified that the National Highway Transportation Safety

Administration, and not the National Highway Traffic Safety

Administration, provided him with a manual which he used to train

Officer Llanes. Even if Officer Nacis's misidentification of the

entity is excused, there was no evidence that the training

Officer Llanes received met the National Highway Traffic Safety

Administration (NHTSA) requirements. There was no evidence as to

what the manual stated regarding training requirements and

whether Officer Llanes met those requirements. Officer Llanes

stated that he was provided a manual during training but could

not recall if it was from the NHTSA. Officer Nacis also stated

that he did not instruct officers during training to check

themselves on a monthly basis to make sure they can estimate a 45

degree angle on the HGN test. Officer Llanes's testimony did not

indicate that he engaged in periodic retraining to refresh

himself on his HGN test administration skills. Thus, there was

insufficient evidence to demonstrate that Officer Llanes was duly

qualified to administer the HGN test and grade the results.

Because there was insufficient foundational evidence that Officer

Llanes was qualified to administer and grade the test results, we

need not address whether he properly performed the HGN test in

the instant case. Therefore, the District Court erred by

admitting the results of the HGN test. Based on our

determination that the District Court erred in the admission of

this evidence, it is unnecessary to address Giugliano's

contention that the results were inadmissible outside of the

context of probable cause determinations.

Nonetheless, the erroneous admission of the HGN test

results was harmless because there was a wealth of overwhelming

and compelling evidence tending to show Giugliano was guilty of

OVUII beyond a reasonable doubt. See State v. Mitchell, 94

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Hawai#i 388, 400, 15 P.3d 314, 326 (App. 2000).

At trial, Officer Llanes testified as a witness with

specialized training to administer the other SFSTs and from

personal experience. Giugliano does not contend that there was a

lack of foundation regarding Officer Llanes's testimony

pertaining to his observations of the other SFSTs. See Hawai#i

Rules of Appellate Procedure (HRAP) Rule 28(b)(4) (2016) ("Points

[of error] not presented [in the opening brief] in accordance

with this section will be disregarded, except that the appellate

court, at its option, may notice a plain error not presented.");

HRAP Rule 28(b)(7) (2016) ("Points not argued [in the opening

brief] may be deemed waived."). Therefore, Officer Llanes could

testify about his observations of Giugliano's performance on the

SFSTs, other than the HGN test, and give an opinion, based on

such observations, whether Giugliano was intoxicated. See State

v. Ferrer, 95 Hawai#i 409, 429, 23 P.3d 744, 764 (App. 2001)

("[I]t is permissible for a police officer to testify as a lay

witness about his or her observations of a defendant's

performance on various [S]FSTs and to give an opinion, based on

such observations, that the defendant was intoxicated. However,

unless proper foundation is laid, it is improper for a police

officer to testify that in his or her opinion, a defendant

'failed' or 'passed' a [S]FST." (citing State v. Nishi, 9 Haw.

App. 516, 852 P.2d 476 (1993) and State v. Toyomura, 80 Hawai#i

8, 904 P.2d 893 (1995)).

At trial, Officer Llanes testified that Giugliano's

behavior was erratic, switching from compliant and calm to

argumentative and angry, and that he was repeating himself.

Officer Llanes also observed Giugliano to have red, watery,

glassy eyes, and a strong odor of an intoxicating beverage

emanating from his breath and person. During the Walk-and-Turn

test, Giugliano stepped out of the instructional position, failed

to keep his balance, missed several heel-to-toe steps during the

initial nine steps, took ten steps instead of nine steps, did not

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turn as instructed, raised both arms almost parallel to the

ground, and stopped walking, all contrary to the instructions.

During the One-leg Stand test, Giugliano raised his arms

approximately two feet from his waist, put his foot down and

asked if the test was done after counting to ten, and put his

foot back up and began counting from one when he was informed the

test was not done, all contrary to the instructions. Officer

Llanes testified that based on his training and personal

experience, these were indicia or clues of intoxication and that

Giugliano was unable to operate his vehicle in a safe manner. On

this record, there was substantial evidence for a trier of fact

to conclude that Giugliano was guilty beyond a reasonable doubt

of OVUII. State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d

322, 330-31 (2007).

Therefore, IT IS HEREBY ORDERED that the Judgment and

Notice of Entry of Judgment, filed on February 28, 2018, in the

District Court of the Third Circuit is affirmed.

DATED: Honolulu, Hawai#i, June 30, 2020.

On the briefs:

Kori A. Weinberger,

Deputy Prosecuting Attorney,

County of Hawai#i,

for Plaintiff-Appellee.

Saisamoa F. Grey Price,

Deputy Public Defender,

for Defendant-Appellant.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Derrick H. M. Chan

Associate Judge

/s/ Keith K. Hiraoka

Associate Judge

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