FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

CYRINA HEWITT, Defendant-Appellant

NO. CAAP-16-0000460

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT

KONA DIVISION

(CASE NUMBER 3DTA-15-00745)

FEBRUARY 16, 2021

GINOZA, CHIEF JUDGE, LEONARD AND HIRAOKA, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

After a bench trial, Defendant-Appellant Cyrina Hewitt

(Hewitt) was convicted of operating a vehicle under the influence

of an intoxicant (OVUII) in violation of Hawaii Revised Statutes

(HRS) § 291E-61(a)(1),1 and driving without a license in

1 HRS § 291E-61 (2007) provides, in relevant part:

(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

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-16-0000460

16-FEB-2021

07:47 AM

Dkt. 54 OP
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

violation of HRS § 286-102(b).2 Hewitt appeals from the

"Judgment and Notice of Entry of Judgment" (Judgment) entered by

the District Court of the Third Circuit, Kona Division,3 on

May 20, 2016. She contends that the district court erred by

(1) denying her motion to suppress her statement to a police

officer that she was driving and failing to determine the

voluntariness of her statement; (2) denying her motion to

suppress the result of her warrantless blood draw; and

(3) admitting her blood test result into evidence.

We hold that the district court did not err by denying

Hewitt's motion to suppress her statement, but did err by

overruling Hewitt's HRS § 621-26 trial objection and failing to

conduct a hearing on the voluntariness of her statement. In

addition, the district court erred by denying Hewitt's motion to

suppress her blood test result because the State did not develop

the record to justify the warrantless blood draw. Accordingly,

we vacate the Judgment and remand for a new trial; we need not

decide Hewitt's third point of error.

BACKGROUND

At 1:00 a.m. on July 3, 2014, Hawai#i County Police

1 (...continued)

amount sufficient to impair the person's normal

mental faculties or ability to care for the

person and guard against casualty[.]

2 HRS § 286-102 (Supp. 2013) provides, in relevant part:

(b) A person operating the following category or

combination of categories of motor vehicles shall be

examined as provided in section 286–108 and duly licensed by

the examiner of drivers:

. . . .

(3) Passenger cars of any gross vehicle weight

rating, buses designed to transport fifteen or

fewer occupants, and trucks and vans having a

gross vehicle weight rating of eighteen thousand

pounds or less[.]

3 The Honorable Margaret K. Masunaga presided.

2
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Department (HCPD) police officer Chandler Nacino was assigned to

contact a possible assault victim at the Kona Community Hospital

emergency room. The possible victim was Hewitt. Hospital staff

told Officer Nacino that Hewitt had been dropped off at the

emergency room by an unknown male. The male was not present when

Officer Nacino made contact with Hewitt. A nurse was present,

but left the room as Officer Nacino entered. HCPD police officer

Kaea Sugata was also present in the emergency room, but Officer

Nacino "did the majority of the talking[.]"

Hewitt was lying in a hospital bed, awake, and wearing

a medical gown. She appeared to be disoriented. Neither Officer

Nacino nor Officer Sugata remembered whether Hewitt was hooked up

to an intravenous line. Hewitt had large contusions on her face. 

Her eyes were swollen shut. She had a laceration on her ear. 

She gave Officer Nacino her name and date of birth. She did not

know where she was, and did not know why she was in the hospital. 

Officer Nacino then served her with "legal documents" for "an

unrelated case[,]" for which she had to sign.4

Officer Nacino testified that when he asked Hewitt if

she had been assaulted, "She gave me incoherent answers like, you

know, that she's a big girl, she can handle her stuff, and kinda

undecipherable, really, what she was saying." Officer Nacino

observed that Hewitt "appeared to be out of it and had slurred

speech."

Officer Nacino asked Hewitt why her eyes were swollen. 

Hewitt said she had pink eye, and later said she had stye eye. 

Officer Nacino did not think her injuries were consistent with

either medical condition. Officer Nacino suspected that Hewitt

was under the influence of alcohol or some kind of intoxicant,

but he did not testify whether he knew if Hewitt had been given

any medication in the emergency room that might have affected her

level of consciousness.

4 The record does not show what the document was, to what case it

pertained, or why Officer Nacino had possession of the document at the time he

was assigned to investigate an unidentified potential assault victim.

3
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

At that time, some paramedics walked by and asked what

was happening. Officer Nacino told the paramedics he was

investigating whether Hewitt was an assault victim. The

paramedics told Officer Nacino they had seen a pickup truck in

the bushes near the intersection of Queen Ka#ahumanu Highway and

Kuakini Highway. The paramedics gave Officer Nacino the truck's

license plate number.

Officer Nacino left Hewitt in the emergency room,

contacted his sergeant, Mekia Rose, and relayed the information

provided by the paramedics. Sergeant Rose went to the location

described by the paramedics and found a pickup truck in the

bushes. The truck had front-end damage and both front airbags

had been deployed. Sergeant Rose told Officer Nacino that the

registered owner of the truck was named Cyrus Hewitt, and that

Cyrina Hewitt's state identification card was found in a wallet

inside the truck. Sergeant Rose took a photograph of Hewitt's

identification card and sent it to Officer Nacino in a text

message.

Officer Nacino returned to Hewitt in the emergency

room. Up to that time, Officer Nacino had not placed Hewitt

under arrest or told her she was not free to terminate their

conversation. Officer Nacino told Hewitt the pickup truck had

been found. He asked Hewitt if she was driving. Hewitt stated

that she was driving to a friend's house and parked the truck in

the bushes. She then stated she was going to the doctor. 

Officer Nacino stopped asking questions, placed Hewitt under

arrest for OVUII, told her a blood draw would be conducted, and

told her she would be released after her blood was drawn. 

Hewitt's blood was drawn at around 3:30 a.m.

PROCEDURAL HISTORY

Hewitt was charged by complaint with OVUII and driving

without a license. She filed motions to suppress her statement

that she was driving and evidence of her blood alcohol

concentration. Both motions were denied. At trial, Officer

4
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Nacino testified that Hewitt told him she was driving. Hewitt's

father, Cyrus Hewitt, testified that a friend of his named Bill

Thomas was the driver. Hewitt testified that "Uncle Bill" was

driving, she fell asleep in the passenger seat, and woke up in

the hospital. Hewitt was convicted of OVUII and driving without

a license; when announcing the verdict, the district court stated

it "heard the testimony of Mr. Cyrus Hewitt and defendant, Cyrina

Hewitt, and does not find their testimonies to be credible." 

This appeal followed.

STANDARD OF REVIEW

A trial court's ruling on a motion to suppress is

reviewed de novo to determine whether the ruling was right or

wrong. State v. Vinuya, 96 Hawai#i 472, 480, 32 P.3d 116, 124

(App. 2001).

[W]hen the defendant's pretrial motion to suppress is denied

and the evidence is subsequently introduced at trial, the

defendant's appeal of the denial of the motion to suppress

is actually an appeal of the introduction of the evidence at

trial. Consequently, when deciding an appeal of the pretrial denial of the defendant's motion to suppress, the

appellate court considers both the record of the hearing on

the motion to suppress and the record of the trial. 

Id. at 481, 32 P.3d at 125 (cleaned up).

DISCUSSION

1. The district court did not err by denying

Hewitt's motions to suppress, but erred when

it overruled her trial objection. 

A. Motions to suppress.

Hewitt's motions to suppress argued that she was

interrogated by Officer Nacino while in custody without being

advised of her Miranda rights.5 A person in police custody may

not be subjected to interrogation without first being advised of

their Miranda rights. State v. Melemai, 64 Haw. 479, 481, 643

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

5
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

P.2d 541, 543 (1982). But the Hawai#i Supreme Court has also

noted that "application of the Miranda rule is limited." Id. at

481, 643 P.2d at 544. "It does not preclude the police, in the

exercise of their investigatory duties or functions, from making

general on-the-scene inquiries as to facts surrounding a crime or

other general questions in the fact-finding process." Id. at

481-82, 643 P.2d at 544 (citation omitted).

In Melemai, a jogger was struck by a pickup truck.

Eyewitnesses gave a police officer the license number and a

description of the truck, which contained two occupants. The

officer radioed the license number to the police station and

obtained Melemai's name and address. The officer went to

Melemai's address and waited. A truck arrived, driven by

Melemai. It matched the description given by the witnesses, and

contained one other occupant. At the officer's request, Melemai

came out of the truck and produced his driver's license. The

officer asked Melemai if he had hit anyone with his truck. 

Melemai answered affirmatively. The officer then asked Melemai

why he ran away. Melemai responded that he got angry when he saw

the jogger and "went for him." Melemai, 64 Haw. at 480, 643 P.2d

at 543. Both questions were asked before Melemai was given

Miranda warnings.

Melemai was indicted. He filed a motion to suppress

the statements he made to the police officer and a motion to

dismiss the indictment. The trial court granted both motions,

ruling that Miranda warnings were required before the police

officer could question Melemai. The State appealed. The Hawai#i

Supreme Court reversed in part. The supreme court held that the

determination of whether a defendant was in custody "is to be

made by objectively appraising the totality of the

circumstances[,]" including

the place and time of the interrogation, the length of the

interrogation, the nature of the questions asked, the

conduct of the police, and all other relevant circumstances. 

Among the relevant circumstances to be considered are

whether the investigation has focused on the suspect and

6
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

whether the police have probable cause to arrest [the

suspect] prior to questioning. While focus of the

investigation upon the defendant, standing alone, will not

trigger the application of the Miranda rule, it is an

important factor in determining whether the defendant was

subjected to custodial interrogation. Probable cause to

arrest is also not determinative, but it may play a

significant role in the application of the Miranda rule.

Melemai, 64 Haw. at 481, 643 P.2d at 544 (citations omitted). 

The supreme court described "the outer parameters beyond which

on-the-scene interviews may not proceed without Miranda

warnings":

Persons temporarily detained for brief questioning by police

officers who lack probable cause to make an arrest or bring

an accusation need not be warned about incrimination and

their right to counsel, until such time as the point of

arrest or accusation has been reached or the questioning has

ceased to be brief and casual and become sustained and

coercive[.]

Id. at 482, 643 P.2d at 544 (cleaned up). The court ultimately

held:

In the instant case, the officer knew that the jogger

had been struck by a pickup truck with two occupants and

also knew the vehicle's license number and its description. 

After obtaining the name and address of defendant, who was

the vehicle's registered owner, the officer proceeded to

defendant's address, and he waited for the defendant. Upon

defendant's arrival, the officer noticed that the truck met

the description given to him and was occupied by two

persons. On the basis of the officer's knowledge and

observation, we conclude that the investigation had focused

upon the defendant, and that, after defendant admitted his

participation in the accident, the police had probable cause

to arrest.

Inasmuch as the totality of circumstances created the

kind of coercive atmosphere that Miranda warnings were

designed to prevent, custody attached and Miranda warnings

were required. Based upon our analysis, defendant's answer

to the first question [if he had hit anyone with his car]

was admissible while his answer to the second [why he ran

away] was not.

Id. (emphasis added) (footnote omitted).

In this case, Officer Nacino initially interviewed

Hewitt as a potential assault victim. Hewitt argues that she was

not free to leave the hospital emergency room while being

questioned by Officer Nacino because she was physically

7
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

incapacitated and heavily sedated. Her inability to leave was

not the result of being detained by Officer Nacino or any other

law enforcement authority. Cf. State v. Kazanas, 138 Hawai#i 23,

375 P.3d 1261 (2016) (police officer asking defendant how his

Halloween went, while defendant was under arrest and being

transported to hospital, constituted custodial interrogation);

and State v. Pebria, 85 Hawai#i 171, 174-75, 938 P.2d 1190, 1193-

94 (App. 1997) (holding that defendant's statement to police

officer, in response to question if defendant knew why he was

being detained by hospital security guards, that "I [wen'] grab

the girl[,]" was result of custodial interrogation).

Even after Officer Nacino received information that

Hewitt's identification had been found in a pickup truck that had

apparently been involved in an accident, he did not have probable

cause to arrest Hewitt for OVUII. Hewitt was not seen in the

driver's seat, and her injuries could have been caused when the

front-passenger-seat airbag deployed. We hold that Hewitt was

not in custody when Officer Nacino asked her if she was driving. 

Once Hewitt said she was driving the pickup truck, Officer Nacino

appropriately stopped asking Hewitt questions. Because Hewitt

was not in custody while she was being questioned by Officer

Nacino, we need not decide whether Officer Nacino's questions

"were reasonably likely to elicit an incriminating response from

the person in custody." Kazanas, 138 Hawai#i at 26, 375 P.3d at

1264 (citation omitted).

Hewitt argues that Officers Nacino and Sugata

interrogated her for almost three hours. Hewitt admittedly did

not remember speaking to either officer. All of the evidence in

the record indicates that Officer Nacino initially questioned

Hewitt to determine whether she was the victim of an assault. 

After the paramedics mentioned seeing a pickup truck in the

bushes, Officer Nacino left the emergency room to follow up with

Sergeant Rose. It was only after Sergeant Rose texted Hewitt's

identification card to Officer Nacino that he returned to the

emergency room to ask if Hewitt was driving. The record does not

8
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

establish that Hewitt was subjected to "sustained and coercive"

questioning by Officer Nacino. Melemai, 64 Haw. at 482, 643 P.2d

at 544. Given this record, the district court did not err by

denying Hewitt's motion to suppress. See also State v.

Kaleohano, 99 Hawai#i 370, 377, 56 P.3d 138, 145 (2002) ("[I]f

neither probable cause to arrest nor sustained and coercive

interrogation are present, then questions posed by the police do

not rise to the level of 'custodial interrogation' requiring

Miranda warnings.") (quoting State v. Ah Loo, 94 Hawai#i 207,

210, 10 P.3d 728, 731 (2000)).

B. Trial objection.

Hewitt did not cite HRS § 621-26 in her motion to

suppress or during the hearing on the motion. The statute

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.

HRS § 621-26 (1993). At trial, after Officer Nacino testified he

asked Hewitt whether she had been in a traffic accident, the

State asked "what was her response?" Defense counsel objected,

citing HRS § 621-26. The district court overruled the objection. 

Officer Nacino then testified: "She informed me that she was

driving the vehicle and had parked it there[ in the bushes]."

Rather than overruling the objection, the district

court should have conducted an evidentiary hearing to determine

whether Hewitt's statement was voluntarily made, in light of the

evidence that Hewitt had sustained significant head trauma, did

not know where she was, and was incoherent. Although Hewitt's

statement to Officer Nacino was not a confession of OVUII, HRS

§ 621-26 applies to inculpatory statements as well as

confessions. See State v. Kelekolio, 74 Haw. 479, 501 n.13, 849

P.2d 58, 69 n.13 (1993) ("we perceive no meaningful distinction

between a 'confession' and 'inculpatory statements' for purposes

9
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

of the right against self-incrimination.") The district court

erred by not conducting an evidentiary hearing to determine

whether Hewitt's inculpatory statement was voluntarily made.

2. The district court erred by denying Hewitt's

motion to suppress her blood test result. 

The State argued that Hewitt's motion to suppress

evidence of the alcohol content of her blood was not timely filed

under Hawai#i Rules of Penal Procedure (HRPP) Rule 12(c). The

district court recognized the issue, but proceeded to rule on the

merits. The district court had discretion to so proceed, and the

denial of the motion on its merits is properly before us. See

State v. Przeradski, 5 Haw. App. 29, 32, 677 P.2d 471, 474-75

(1984) (noting that HRPP Rule 12(f) gives the trial court

discretion to rule on an untimely pretrial motion).

Hewitt contends that the district court should have

suppressed evidence of her blood alcohol content because it was

the result of a warrantless search and seizure in violation of

her constitutional rights. She acknowledges that the blood draw

was performed pursuant to HRS § 291E-21(a) (2007), which

authorizes a law enforcement officer to obtain a sample of blood

"from the operator of any vehicle involved in a collision

resulting in injury to . . . any person, as evidence that the

operator was under the influence of an intoxicant."

A warrantless [blood alcohol concentration] test . . .

pursuant to HRS § 291E–21 . . . does not offend the Hawai#i

Constitution "so long as (1) the police have probable cause

to believe that the person has committed a DUI offense and

that the blood sample will evidence that offense,

(2) exigent circumstances are present, and (3) the sample is

obtained in a reasonable manner."

State v. Won, 137 Hawai#i 330, 344 n.26, 372 P.3d 1065, 1079 n.26

(2015) (emphasis added) (quoting State v. Entrekin, 98 Hawai#i

221, 232, 47 P.3d 336, 347 (2002)).

In Entrekin, the Hawai#i Supreme Court discussed

Schmerber v. California, 384 U.S. 757 (1966), where the United

10
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

States Supreme Court held that the fourth amendment to the

Constitution does not prohibit a nonconsensual, warrantless blood 

extraction from a person suspected of driving under the influence

of drugs or alcohol (DUI) if: "(1) the police have probable cause

to believe that the person is DUI; (2) exigent circumstances are

present under which the delay necessary to obtain a warrant would

result in the loss of evidence; and (3) the procedures employed

to extract the blood are reasonable." Entrekin, 98 Hawai#i at

231, 47 P.3d at 346. The Hawai#i Supreme Court then held:

The exigent circumstances exception is present when the

demands of the occasion reasonably call for an immediate

police response. More specifically, it includes situations

presenting an immediate threatened removal or destruction of

evidence. However, the burden, of course, is upon the

government to prove the justification, and whether the

requisite conditions exists [sic] is to be measured from the

totality of the circumstances. And in seeking to meet this

burden, the police must be able to point to specific and

articulable facts from which it may be determined that the

action they took was necessitated by the exigencies of the

situation.

. . . .

. . . [E]xigent circumstances were clearly present. 

It is undisputed that the percentage of alcohol in the blood

begins to diminish shortly after drinking stops, as the body

functions to eliminate it from the system. [T]he arrested

person's blood-alcohol level by its very nature dissipates

and is forever lost as time passes, and any alcohol ingested

by the arrested person is digested and its effects on the

body pass[.]

Id. at 232-33, 47 P.3d at 347-48 (cleaned up) (emphasis added).

In this case the district court relied upon Schmerber

in denying Hewitt's motion to suppress. But in Missouri v.

McNeely, 569 U.S. 141 (2013) (decided after Entrekin), the United

States Supreme Court held "that in drunk-driving investigations,

the natural dissipation of alcohol in the bloodstream does not

constitute an exigency in every case sufficient to justify

conducting a blood test without a warrant." Id. at 165. The

Supreme Court reasoned:

It is true that as a result of the human body's

natural metabolic processes, the alcohol level in a person's

blood begins to dissipate once the alcohol is fully absorbed

11
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

and continues to decline until the alcohol is eliminated.

. . . Regardless of the exact elimination rate, it is

sufficient for our purposes to note that because an individual's alcohol level gradually declines soon after [the

person] stops drinking, a significant delay in testing will

negatively affect the probative value of the results. This

fact was essential to our holding in Schmerber, as we recognized that, under the circumstances, further delay in order

to secure a warrant after the time spent investigating the

scene of the accident and transporting the injured suspect

to the hospital to receive treatment would have threatened

the destruction of evidence.

But it does not follow that we should depart from

careful case-by-case assessment of exigency and adopt the

categorical rule proposed by the State and its amici. In

those drunk-driving investigations where police officers can

reasonably obtain a warrant before a blood sample can be

drawn without significantly undermining the efficacy of the

search, the Fourth Amendment mandates that they do so. We

do not doubt that some circumstances will make obtaining a

warrant impractical such that the dissipation of alcohol

from the bloodstream will support an exigency justifying a

properly conducted warrantless blood test. That, however,

is a reason to decide each case on its facts, as we did in

Schmerber, not to accept the "considerable overgeneralization" that a per se rule would reflect.

The context of blood testing is different in critical

respects from other destruction-of-evidence cases in which

the police are truly confronted with a "'now or never'"

situation. In contrast to, for example, circumstances in

which the suspect has control over easily disposable

evidence, [blood alcohol concentration] evidence from a

drunk-driving suspect naturally dissipates over time in a

gradual and relatively predictable manner. . . .

The State's proposed per se rule also fails to account

for advances in the 47 years since Schmerber was decided

that allow for the more expeditious processing of warrant

applications, particularly in contexts like drunk-driving

investigations where the evidence offered to establish

probable cause is simple. The Federal Rules of Criminal

Procedure were amended in 1977 to permit federal magistrate

judges to issue a warrant based on sworn testimony communicated by telephone. As amended, the law now allows a

federal magistrate judge to consider "information communicated by telephone or other reliable electronic means." 

Fed. Rule Crim. Proc. 4.1. States have also innovated. 

Well over a majority of States allow police officers or

prosecutors to apply for search warrants remotely through

various means, including telephonic or radio communication,

electronic communication such as e-mail, and video

conferencing.

12
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Id. at 152-54 (cleaned up) (citing, among other states' court

rules, Hawai#i Rules of Penal Procedure (HRPP) Rule 41(h)–(i)

(2013)6).

We cited McNeely in State v. Niceloti-Velazquez, 139

Hawai#i 203, 386 P.3d 487 (App. 2016), in which we held:

In the case before this court, the record does not

support a finding that, given the totality of the circumstances, the police officers could not have reasonably

obtained a search warrant before drawing Velazquez's blood

sample. Because the district court only cited the risk of

blood alcohol dissipation to support its finding of exigency

and because the prosecution failed to adequately develop the

record to demonstrate that the police officers were justified to act without a warrant, the district court clearly

erred in holding that exigent circumstances existed to

justify the warrantless extraction of Velazquez's blood

sample.

Niceloti-Velazquez, 139 Hawai#i at 205, 386 P.3d at 489 (emphasis

added) (citation omitted).

6 HRPP Rule 41 has not been amended since it was cited in McNeely. 

It provides, in relevant part:

Rule 41. SEARCH AND SEIZURE.

. . . .

(c) Issuance and contents. A warrant shall issue

only on an affidavit or affidavits sworn to before the judge

and establishing the grounds for issuing the warrant. . . .

. . . .

(h) Warrant issuance on oral statements. In lieu of

the written affidavit required under section (c) of this

rule, a sworn oral statement, in person or by telephone, may

be received by the judge, which statement shall be recorded

and transcribed, and such sworn oral statement shall be

deemed to be an affidavit for the purposes of this rule.

Alternatively to receipt by the judge of the sworn oral

statement, such statement may be recorded by a court

reporter who shall transcribe the same and certify the

transcription. In either case, the recording and the

transcribed statement shall be filed with the clerk.

(i) Duplicate warrants on oral authorization. The

judge may orally authorize a police officer to sign the

signature of the judge on a duplicate original warrant,

which shall be deemed to be a valid search warrant for the

purposes of this rule. The judge shall enter on the face of

the original warrant the exact time of issuance and shall

sign and file the original warrant and, upon its return, the

duplicate original warrant with the clerk.

13
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The facts of this case illustrate why more than just

"the risk of blood alcohol dissipation" should be required to

justify a warrantless blood draw. Officer Nacino 

testified:

Q. Okay. And can you just tell us what you based,

uh, the breath or why you conducted that blood draw? What

information did you base it on?

A. Um, slurred speech. She seemed to be completely

out of it, unaware of her surroundings.

Q. Uh-huh.

A. And the fact that she had been in a traffic

accident that involved injuries.

On cross-examination, Officer Nacino was asked:

Q. Okay.

 Now it wasn't until she had made the statement

that "I had been driving the truck" that you informed her

that she would be arrested for suspicion of a DUI, correct?

A. Yes, sir.

State's Exhibit 11, admitted into evidence at trial without

objection, was Officer Nacino's sworn statement of probable cause

for Hewitt's arrest. Officer Nacino stated:

[Hewitt] stated she was the operator of [the truck]. 

[Hewitt] had slow speech, when asked question[s] [Hewitt]

would go off topic and ramble on about things unrelated to

[the] question. [Hewitt] appeared to be disoriented and was

unaware of injuries sustained from traffic casualty. This

lead [sic] me to believe [Hewitt] was under the influence of

drugs and or alcohol.

Officer Nacino did not testify that he detected an odor similar

to that of an alcoholic beverage on Hewitt's breath or body. 

There was no evidence that empty or open containers of liquor, or

a bar or restaurant tab or other receipt evidencing the recent

consumption of alcohol, were found in the cab of Cyrus Hewitt's

truck, or with Cyrina Hewitt's identification card. Hewitt's

apparent disorientation could have been explained by a concussion

(as evidenced by Hewitt's significant head trauma). Although she

14
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

knew who she was, she did not know where she was. There was no

evidence that Officer Nacino attempted to determine if Hewitt was

oriented to time (as one would to attempt to diagnose or rule out

a concussion). Hewitt's disorientation could also have been the

result of prescription medication administered to her in the

hospital emergency room. Under the totality of these

circumstances, it would not have been unreasonable for a judge to

require more information before issuing a warrant for a blood

draw. There was no evidence that Officer Nacino, Officer Sugata,

Sergeant Rose, or any other police officer attempted to contact a

judge to obtain a warrant before requesting the blood draw. We

hold that the State failed to adequately develop the record to

demonstrate the existence of exigent circumstances that would

have justified Officer Nacino requesting a warrantless blood

draw. The district court erred in denying Hewitt's motion to

suppress the blood test results.

CONCLUSION

Based upon the foregoing, the "Judgment and Notice of

Entry of Judgment" entered by the district court on May 20, 2016,

is vacated. This case is remanded for a new trial consistent

with this opinion.

On the briefs: /s/ Lisa M. Ginoza

Chief Judge

Charles E. Murray III,

Deputy Prosecuting Attorney, /s/ Katherine G. Leonard

State of Hawai#i, Associate Judge

for Plaintiff-Appellee.

/s/ Keith K. Hiraoka

Taryn R. Tomasa, Associate Judge

Deputy Public Defender,

State of Hawai#i,

for Defendant-Appellant.

15