*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

BRENT K. SYLVESTER

Petitioner/Petitioner-Appellant,

vs.

ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAIʻI,

Respondent/Respondent-Appellee.

SCWC-17-0000004

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-17-0000004; CASE NO. 1DAA-16-00003)

SEPTEMBER 13, 2021

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

OPINION OF THE COURT BY EDDINS, J.

An Administrative Driver’s License Revocation Office

hearing officer revoked Brent Sylvester’s driver’s license after 

finding probable cause to support Sylvester’s arrest for 

operating a vehicle under the influence of an intoxicant. 

Three civilian witnesses wrote statements on a standard 

Honolulu Police Department form (HPD-252). They described 

Sylvester’s conduct and interactions with them after he 

Electronically Filed

Supreme Court

SCWC-17-0000004

13-SEP-2021

09:47 AM

Dkt. 11 OPA
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

2

purportedly rear-ended their car. Two police officers’ sworn 

statements referenced the witnesses’ accounts.

The hearing officer considered the civilian witnesses’ HPD252 statements. The hearing officer also considered the 

witnesses’ statements incorporated in the police officers’ sworn 

statements. Sylvester objected.

The District Court of the First Circuit sustained the 

license revocation. The Intermediate Court of Appeals affirmed 

the district court’s decision. 

We address whether administrative driver’s license 

revocation hearing officers can consider civilian witnesses’ 

unsworn statements when making probable cause determinations.

We hold they can. The administrative license revocation 

laws – namely, HRS §§ 291E-36, 291E-37(c), and 291E-38(g)1 - do 

not require sworn statements from civilian witnesses. Instead, 

the sworn statement requirement only covers (1) law enforcement 

officers, (2) persons who administer alcohol or drug tests, and 

(3) those who maintain the testing equipment. 

I.

In April 2016, three people traveled in a Nissan on the H-1

freeway. A Toyota rear-ended them; it did not stop. The Toyota

sped past the Nissan. One person in the Nissan called 911 and 

 1 All references to HRS provisions reflect their latest published version 

as of Sylvester’s arrest in 2016. 
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

3

reported “a hit and run.” The Nissan followed the Toyota. The 

caller told the 911 operator that the Toyota was “swerving” and 

“almost slammed [into] the median.”

Later the Nissan’s three occupants wrote statements on an 

HPD-252 form. Each detailed the rear-end collision and the 

Toyota’s flight. The witnesses also described following the 

Toyota to a Kailua residence. There they briefly confronted the 

driver. Because of how he smelled, spoke, and walked, the 

witnesses believed he was intoxicated. When police officers 

arrived, they identified Sylvester as the driver.

The HPD-252 forms contained a preprinted declaration: “I 

attest that this statement is true and correct and to the best 

of my knowledge, and that I gave this statement freely and 

voluntarily without coercion or promise of reward.”2 The 

witnesses signed their names.

HPD officers responded to Sylvester’s residence. For the 

administrative revocation proceedings, two officers submitted

sworn statements.3 They detailed the circumstances surrounding 

Sylvester’s arrest. One officer described the damages to the 

two cars. The other officer wrote that he smelled alcohol on 

 2 Our decision does not hinge on deciding whether this attestation

language makes the witnesses’ statements “sworn.” 

3 At the end of their statements, the officers signed their names and 

swore that the information in their statements was “true and correct.”
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

4

Sylvester’s breath as he spoke to him. The officer further

reported: “[Sylvester] blurted out that he just had a ‘few’ when 

he got home.” Sylvester declined a field sobriety test and a

preliminary alcohol screening test. The officer arrested him

for operating a vehicle under the influence of an intoxicant 

(OVUII). He read an implied consent and other required notice 

forms to Sylvester. Sylvester refused to take a breath or blood 

test. The officer issued him a notice of administrative 

revocation.

Four days later, an Administrative Driver’s License 

Revocation Office review officer revoked Sylvester’s driver’s 

license. 

Sylvester requested an administrative hearing. At the

hearing, he moved to strike the three witnesses’ HPD-252

statements. Sylvester also moved to strike the civilian 

witnesses’ statements contained in the sworn police statements. 

The hearing officer denied the motion.

After considering the HPD-252 statements, 911 recording, 

and sworn police statements,4 the hearing officer found probable 

cause that Sylvester operated his vehicle while under the 

influence of alcohol. The officer sustained the initial 

 4 The hearing officer struck other police officers’ unsworn statements 

contained in the sworn police statements. The hearing officer also granted 

Sylvester’s request to strike several unsworn police reports prepared by 

other HPD officers.
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

5

administrative revocation of Sylvester’s driver’s license. 

Although their rationale differed, the district court and 

the ICA affirmed the hearing officer’s decision. The district 

court ruled that “other person[s],” whose sworn statements the 

hearing officer must consider under HRS § 291E-38(g),5 include 

the civilian witnesses. It also ruled that their HPD-252 

statements were not sworn. Despite these determinations, the 

district court upheld the license revocation. It reasoned that 

the sworn police statements incorporating “the witnesses’ 

statements and/or information” provided a sufficient basis to 

find probable cause for Sylvester’s arrest.

The ICA implicitly rejected the district court’s reasoning

that HRS § 291E-38(g)’s sworn statement requirement encompassed 

civilian witnesses. It read the term “other person” in HRS 

§ 291E-38(g) to mean only “the person who conducted the 

[intoxication] test” or “the person responsible for the 

maintenance of the testing equipment” as specified in HRS 

§ 291E-36. We agree with the ICA. 

II.

In administrative driver’s license revocation proceedings, 

we hold that hearing officers can consider civilian witnesses’ 

 5 The district court, the Honorable Lono J. Lee presiding, relied on the 

following sentence in HRS § 291E-38(g): “The director shall consider the 

sworn statements in the absence of the law enforcement officer or other 

person.” 
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

6

unsworn statements. 

After inspecting the texts and context of HRS §§ 291E-36, 

291E-37(c), and 291E-38(g), we conclude that these laws do not 

impose a sworn statement requirement on civilian witnesses.

They only require sworn statements from (1) law enforcement 

officers, (2) persons who administer alcohol or drug tests, and 

(3) those who maintain the testing equipment. Civilian 

witnesses’ statements - both independently through HPD-252 

statements and as embedded in sworn police statements – can 

support probable cause in license revocation proceedings.

HRS Chapter 291E, Part III guides the administrative 

driver’s license revocation process. It begins when an

individual is arrested and issued a notice of administrative 

revocation.6 See generally HRS §§ 291E-31, 291E-33, 291E-34. 

Next, an administrative review officer examines the police 

officer’s decision to issue the revocation notice. HRS § 291E37(a). This initial review happens automatically. Id. Based 

solely on documentary evidence, including documents listed in 

HRS § 291E-36, the administrative review officer decides whether 

to revoke the driver’s license. See generally HRS § 291E-37. 

If the review officer revokes the license, the driver can

request an administrative hearing. HRS § 291E-38(a). If a 

 6 We call an arrestee who received a notice of administrative revocation 

a “driver.”
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

7

hearing officer affirms the revocation after that administrative

hearing, the driver can petition for judicial review. HRS 

§ 291E-40(a). 

Within the administrative driver’s license revocation 

framework, a trio of intertwined laws - HRS §§ 291E-36, 291E37(c), and 291E-38(g) - identify the types of documents that the

administrative review and hearing officers must receive, 

consider, or admit into evidence. 

HRS § 291E-36 lists what evidence must be submitted for 

administrative review immediately after an OVUII arrest.7 It 

calls for sworn statements from: 

(1) “the arresting law enforcement officer” and “the 

officer who issued the notice of administrative 

revocation,” HRS § 291E-36(a)(1), (b)(1)8; 

(2) “the person responsible for maintenance of the [alcohol 

or drug] testing equipment,” HRS § 291E-36(a)(2), (4); 

and 

(3) “the person who conducted the [alcohol or drug] test,” 

HRS § 291E-36(a)(3), (5).9

HRS § 291E-36 identifies no other person whose statement must be 

 7 HRS § 291E-36 also applies when a driver is arrested for habitually 

operating a vehicle under the influence of an intoxicant under HRS § 291E61.5. 

8 HRS § 291E-36(a) applies when an arrestee submits to an alcohol or drug 

test. HRS § 291E-36(b) governs when an arrestee refuses to do so. Both 

require the arresting officer to submit a sworn statement. Conspicuously, 

only HRS § 291E-36(a) mentions sworn statements of “the officer who issued 

the notice of administrative revocation.” 

9 The persons identified in subparagraphs (2) and (3) are not implicated

when a driver refuses an alcohol or drug test, like Sylvester did. 
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

8

sworn. 

In addition to these sworn statements, the administrative

review officer receives other types of evidence: “a copy of the 

arrest report,” HRS § 291E-36(a)(1), (b)(1); “the report of the 

law enforcement officer who issued the notice of administrative 

revocation to the person involved in a collision resulting in 

injury or death,” HRS § 291E-36(a)(1); “a copy of the notice of 

administrative revocation,” HRS § 291E-36(a)(6), (b)(2); any 

license taken into possession by law enforcement officers, HRS 

§ 291E-36(a)(7), (b)(3); and the driver’s prior alcohol and drug 

enforcement contacts. HRS § 291E-36(a)(8), (b)(4). 

With the information received under HRS § 291E-36 and any 

evidence submitted by the driver, the administrative review 

officer conducts an initial review. HRS §§ 291E-36, 291E-37. 

At this stage, HRS § 291E-37(c) requires consideration of: 

(1) “Any sworn or unsworn written statement or other 

written evidence provided by the respondent”; 

(2) “The breath, blood, or urine test results, if any”; 

and

(3) “The sworn statement of any law enforcement officer or 

other person or other evidence or information required 

by section 291E‐36.” (Emphases added.)

 

If the driver wants an administrative hearing after an 

adverse administrative review decision, HRS § 291E-38(g)

requires the hearing officer to admit into evidence the sworn 

statements generated by HRS § 291E-36 and consider them if the 
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

9

individuals who made the sworn statements do not appear at the 

hearing.10

Both HRS §§ 291E-37(c)(3) and 291E-38(g) refer to the sworn 

statements of “other person” and HRS § 291E-36. The 

Administrative Director of the Courts maintains that “other 

person” means only those individuals identified in HRS § 291E36: the government employees conducting alcohol or drug tests or 

maintaining the testing equipment. Sylvester, in contrast,

reads “other person” expansively to mean everyone who is not a 

law enforcement officer. He contends that civilian witnesses’ 

statements submitted by the government must be sworn.

The Director’s interpretation prevails: “other person” 

does not mean a civilian witness. We conclude that HRS § 291E38(g), like HRS § 291E-36, does not touch civilian witnesses’ 

statements.

Turning to HRS § 291E-38(g), its opening sentence - “The 

sworn statements provided in section 291E-36 shall be admitted 

 10 HRS § 291E-38(g) states:

The sworn statements provided in section 291E-36 

shall be admitted into evidence. The director shall 

consider the sworn statements in the absence of the 

law enforcement officer or other person. Upon 

written notice to the director, no later than five 

days prior to the hearing, that the respondent wishes 

to examine a law enforcement officer or other person 

who made a sworn statement, the director shall issue 

a subpoena for the officer or other person to appear 

at the hearing. . . . 

(Emphasis added.) Additionally, HRS § 291E-38(f) requires that the driver’s 

prior alcohol and drug enforcement contacts be entered into evidence. 
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

10

into evidence” – delimits its scope to HRS § 291E-36. (Emphasis 

added.) “[T]he sworn statements” mentioned in the next sentence 

– “The director shall consider the sworn statements in the 

absence of the law enforcement officer or other person” –

grammatically link back to “the sworn statements provided in 

section 291E-36” in the preceding sentence. HRS § 291E-38(g). 

So “other person” in the second sentence refers to the 

individuals who submitted sworn statements under HRS § 291E-36.11 

See McGrail v. Admin. Dir. of the Courts, 130 Hawaiʻi 74, 80, 305 

P.3d 490, 496 (App. 2013) (explaining that “the hearing officer 

must admit into evidence and consider the sworn statements 

required by HRS § 291E-36” (emphasis added)).12 

HRS § 291E-37(c)(3)’s sworn statement requirement, like HRS 

§ 291E-38(g), unites with HRS § 291E-36. HRS § 291E-37(c)(3)

states: “The sworn statement of any law enforcement officer or

other person or other evidence or information required by 

section 291E-36.” (Emphases added.)

Sylvester argues that HRS § 291E-37(c)(3) requires the

administrative review officer to consider “1) the sworn 

 11 The first two sentences of HRS § 291E-38(g) establish the context in 

which the rest of the provision (concerning when a hearing officer must issue 

a subpoena for “a law enforcement officer or other person who made a sworn 

statement”) should be read. 

12 In McGrail, the ICA held that considering a police officer’s unsworn 

statements in another police officer’s sworn statement is impermissible. 130 

Hawaiʻi at 81, 305 P.3d at 497. McGrail did not involve civilian witnesses. 
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

11

statement of any law enforcement officer or other person or 2) 

other evidence or information required by section 291E-36.” He 

reads the provision’s ending phrase - “required by section 291E36” – to modify only the latter part of the preceding terms, 

“other evidence or information,” but not the other antecedent 

terms, “[t]he sworn statement of any law enforcement officer or 

other person.” Sylvester’s interpretation of HRS § 291E37(c)(3) is flawed. 

The series-qualifier canon undercuts Sylvester’s view. 

This canon provides that “when there is a straightforward, 

parallel construction that involves all nouns or verbs in a 

series, a modifier at the end of the list normally applies to 

the entire series.” Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 

1169 (2021) (cleaned up). 

Here, HRS § 291E-37(c)(3) contains a parallel, connected 

list of nouns in a series: “[t]he sworn statement of any law 

enforcement officer or other person or other evidence or 

information.” So the modifier, “required by section 291E-36,” 

applies to each of the antecedent noun phrases.13 Said 

 13 Generally, a determiner (for example, “other” before “evidence” in this 

sentence) “tends to cut off the modifying phrase so that its backward reach 

is limited.” Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 149 (2012). Yet “that effect is not entirely 

clear.” Id. “The rule of the last antecedent is context dependent.” 

Facebook, 141 S. Ct. at 1170. As discussed below, the context of HRS §§ 291E36, 291E-37(c), and 291E-38(g) shows that the determiner before “evidence” in 

HRS § 291E-37(c)(3) does not sever the modifier’s reach. 
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

12

differently, HRS § 291E-36 covers both (1) the sworn statements 

of law enforcement officers or “other person” (other government 

officials who conduct alcohol or drug tests or maintain the 

relevant testing equipment under HRS § 291E-36(a)(2)-(5)) and 

(2) other evidence or information (such as a listing of any 

prior alcohol and drug enforcement contacts under HRS § 291E36(a)(8), (b)(4)). 

HRS §§ 291E-36, 291E-37, and 291E-38 all address the same 

subject matter: the review process for administrative driver’s 

license revocation. So we interpret “other person” in both HRS 

§§ 291E-38(g) and 291E-37(c)(3) harmoniously. See HRS § 1-16 

(“Laws in pari materia, or upon the same subject matter, shall 

be construed with reference to each other. What is clear in one 

statute may be called in aid to explain what is doubtful in 

another.”). 

We conclude that “other person” in HRS § 291E-37(c)(3), 

like the identical term in HRS § 291E-38(g), refers only to the 

individuals mentioned in HRS § 291E-36. The sworn statement 

requirement under these statutes does not cover civilian 

witnesses’ statements. 

Sylvester maintains that if the legislature intended to 

allow consideration of unsworn civilian witness statements 

submitted by the government, it would have said so in HRS 

§ 291E-37(c)(3), just like it did in HRS § 291E-37(c)(1).
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

13

Subsection (c)(1) involves statements submitted by the driver. 

It requires an administrative review officer to consider any 

“sworn or unsworn written statement or other written evidence 

provided by the respondent.” HRS § 291E-37(c)(1) (emphases 

added). We do not view the absence of language concerning 

unsworn statements in HRS § 291E-37(c)(3) as a deliberate choice 

to bar unsworn civilian witness statements submitted by the 

government. Rather, the provision reflects the legislature’s 

attention to specific evidence central to revocation 

determinations. “[T]he Legislature chose to require the 

submission of sworn statements by key police and government 

officers as a means of ensuring the reliability of the 

revocation process.” McGrail, 130 Hawaiʻi at 80, 305 P.3d at 496

(emphasis added).

Further, the administrative driver’s license revocation 

framework does not limit the evidence the hearing officer may

consider to only the evidence identified by HRS §§ 291E-36, 

291E-37, and 291E-38. See Desmond v. Admin. Dir. of the Courts, 

91 Hawaiʻi 212, 220, 982 P.2d 346, 354 (App. 1998) (rejecting the 

driver’s argument that a hearing officer could not admit 

“anything that is not specified by the statute”), rev’d on other 
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

14

grounds, 90 Hawaiʻi 301, 978 P.2d 739 (1998).14 

The evidence must be relevant and not prejudicial. Freitas 

v. Admin. Dir. of the Courts, 108 Hawaiʻi 31, 45–46, 116 P.3d 

673, 687–88 (2005). But Sylvester doesn’t claim that the 

civilian witnesses’ statements were irrelevant or prejudicial. 

Finally, Sylvester’s concern about the reliability of the 

civilian witnesses’ statements is overblown. The HPD-252 forms 

contained a declaration from each witness attesting to the

statement’s truth. The HPD-252 statements and the witnesses’ 

statements referenced in the sworn police statements provided 

“reasonably trustworthy information” to support a probable cause 

determination. State v. Maganis, 109 Hawaiʻi 84, 86, 123 P.3d 

679, 681 (2005). 

Because HRS §§ 291E-36, 291E-37(c)(3), and 291E-38(g) do 

not require sworn civilian witness statements, we hold that a 

hearing officer can consider civilian statements – sworn or 

unsworn - in the probable cause determination. The hearing 

officer who conducted Sylvester’s administrative hearing did not 

err in considering statements from the Nissan’s occupants.

 14 Based on its review of HRS §§ 291E-36, 291E-37, and 291E-38’s 

predecessor statutes, the ICA held that the hearing officer did not 

reversibly err in admitting the entire case file into evidence. Desmond, 91 

Hawaiʻi at 220-21, 982 P.2d at 354-55. It opined that though the hearing 

officer erroneously admitted unsworn statements of a police officer who did 

not appear to testify, the error was harmless. Id. at 220, 982 P.2d at 354. 

Desmond did not involve civilian witnesses. 
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

15

We affirm the ICA’s February 24, 2021 judgment on appeal.15

Alen M. Kaneshiro,

for petitioner

Ewan C. Rayner,

(Kimberly T. Guidry and Robert 

T. Nakatsuji on the briefs)

for respondent

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins

 15 In addition to raising the statutory interpretation issue, Sylvester 

claims that the district court failed to schedule his judicial review hearing 

“as quickly as practicable.” This argument lacks merit. We agree with the 

ICA’s conclusion that the 25-day delay (resulting from an extension of the 

time to file the record on appeal and a two-week continuance) did not violate 

Sylvester’s due process rights.