Salley v. Administrative Director of the Courts

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-MAY-2021
08:10 AM
Dkt. 51 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STEPHEN C. SALLEY, Respondent-Petitioner-Appellant,
v.
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI#I,
Respondent-Appellee
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
NORTH AND SOUTH KONA DIVISION
(CASE NO. 3RC18100342K)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Respondent-Petitioner-Appellant Stephen C. Salley
appeals from the "Order Affirming Administrative Revocation"
entered by the District Court of the Third Circuit, North and
South Kona Division1 on August 2, 2018. For the reasons
explained below, we reverse.
On October 2, 2017, Salley was driving a pickup truck
that collided with the rear of another vehicle. After Salley
took the Standardized Field Sobriety Tests, Hawai#i County Police
Department officer E. Fontes arrested him for operating a vehicle
under the influence of an intoxicant (OVUII) in violation of
Hawaii Revised Statutes (HRS) § 291E-61. Salley refused to take
a breath or blood test. Officer Fontes issued a Notice of
1
The Honorable Margaret K. Masunaga presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Administrative Revocation of Salley's driver's license (NOAR)and
completed a form titled "Sworn Statement of Arresting Officer[.]"
The Administrative Driver's License Revocation Office
(ADLRO) sustained the NOAR. Salley requested an administrative
hearing.
On June 6, 2018, Respondent-Appellee Administrative
Director of the Courts, through an ADLRO hearings officer,
affirmed the ADLRO's administrative decision sustaining the NOAR.
Salley's license was revoked until November 2, 2019.2
On July 5, 2018, Salley filed a "Petition for Judicial
Review." A hearing was held on July 31, 2018. The district
court issued the Order Affirming Administrative Revocation on
August 2, 2018. This appeal followed.
Salley first argues we should temporarily remand this
case for the district court to enter findings of fact. In an
appeal from the administrative revocation of a driver's license,
the function of the district court is not to make its own
findings of fact. The sole issues before the district court are
whether the Director: (1) exceeded constitutional or statutory
authority; (2) erroneously interpreted the law; (3) acted in an
arbitrary or capricious manner; (4) committed an abuse of
discretion; or (5) made a determination that was unsupported by
the evidence in the record. HRS § 291E-40 (2007). Our review of
a decision by a district court on appeal from an administrative
decision is a secondary appeal; we must determine whether the
district court was right or wrong to affirm the ADLRO hearing
officer's administrative revocation of Salley's driver's license,
Wolcott v. Admin. Dir. of the Courts, 148 Hawai#i 407, 413, 477
P.3d 847, 853 (2020), applying the standard set forth in HRS
§ 291E-40.
2
The "capable of repetition, yet evading review" exception to the
mootness doctrine applies to this appeal. Slupecki v. Admin. Dir. of the
Courts, 110 Hawai#i 407, 409 n.4, 133 P.3d 1199, 1201 n.4 (2006).
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
HRS § 291E-61 (2007) provides, 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[.]
(Emphasis added.) "Operate" means "to drive or assume actual
physical control of a vehicle upon a public way, street, road, or
highway[.]" HRS § 291E-1 (2007) (emphasis added).
Salley argues there was no evidence that he drove his
truck on "a public way, street, road, or highway." The hearings
officer held:
Although the Sworn Statement of the Arresting Officer only
states that Respondent was "arrested" at the address listed,
the SFST report states that the "location" of the SFST was
also at HIGHWAY 190/HINA LANI. When viewing this and other
evidence that can be considered in this case, there is a
reasonable inference that the traffic accident and OVUII
happened at HIGHWAY 190/HINA LANI DRIVE, in Kona, Hawai#i.
With respect to Counsel's "public roadway" argument, a
reasonable inference can be made that HIGHWAY 190/HINA LANI
DRIVE is a public roadway. The undersigned Hearing Officer
is unfamiliar with any "highways" that are NOT public.
Moreover, Counsel did not submit any evidence that would
suggest otherwise.
Officer Fontes did not testify at the ADLRO hearing. His Sworn
Statement established that Salley's truck rear-ended another
vehicle. But the Sworn Statement did not describe the location
of the accident. The Sworn Statement indicates that Salley was
arrested "at Highway 190/Hina Lani Drive" but there is no
evidence establishing that location as the scene of the accident.
The post-collision location of the vehicle that Salley's truck
hit is not identified in the Sworn Statement. No other evidence
considered by the hearings officer supported a finding that
Salley's truck hit the other vehicle or was driven on "a public
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
way, street, road, or highway."3 We conclude that the hearings
officer "made a determination that was unsupported by the
evidence in the record." HRS § 291E-40(c)(5). We need not
address Salley's other arguments about whether various other
documents (or portions thereof) in the ADLRO case file constitute
sworn statements.
For the foregoing reasons, the "Order Affirming
Administrative Revocation" entered by the district court on
August 2, 2018, is reversed.
DATED: Honolulu, Hawai#i, May 18, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Alen M. Kaneshiro, Chief Judge
for Respondent-
Petitioner-Appellant. /s/ Katherine G. Leonard
Associate Judge
Christopher J.I. Leong,
Deputy Attorney General, /s/ Keith K. Hiraoka
for Respondent-Appellee. Associate Judge
3
Officer Fontes's OBTS/CCH Arrest Report identified the "Place of
Offense" as "Highway 190/Hina Lani Drive." The ADLRO hearings officer granted
Salley's motion to strike the OBTS/CCH Arrest Report despite the Hawai#i
Supreme Court's holding, under former HRS §§ 286–257, –258, –259, that "the
Hearing Officer must exclude from the record . . . all unsworn statements
(except the arrest report) of law enforcement officials who do not appear to
testify[.]" Desmond v. Admin. Dir. of the Courts, 90 Hawai#i 301, 301-02, 978
P.2d 739, 739-40 (1998) (emphasis added). The Director did not cross-appeal
from that ruling. Accordingly, we cannot consider the OBTS/CCH Arrest Report
in our review of the district court's order.
4