State v. Werblun

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-JUN-2022
08:21 AM
Dkt. 59 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MAXWELL BENJAMIN WERBLUN, Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DTC-20-694722)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Nakasone and McCullen, JJ.)
Defendant-Appellant Maxwell Benjamin Werblun (Werblun)
appeals from the District Court of the Second Circuit, Wailuku
Division's (district court) August 12, 2020 Judgment and Notice
of Entry of Judgment,1 convicting him of Excessive Speeding, in
violation of Hawaii Revised Statutes (HRS) § 291C-105(a)(1), (2)
(2020).2
Werblun contends Plaintiff-Appellee State of Hawai#i
(State) did not lay sufficient foundation to introduce the speed-
reading because the record is silent as to the manufacturer's
training requirements to operate the LTI 2020 TruSpeed speed-
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The Honorable Michelle L. Drewyer presided.
2
HRS § 291C-105(a)(1), (2) provides: "(a) No person shall drive a
motor vehicle at a speed exceeding: (1) The applicable state or county speed
limit by thirty miles per hour or more; or (2) Eighty miles per hour or more
irrespective of the applicable state or county speed limit."
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
reading device (Device), and the State failed to demonstrate the
citing officer, Ryan Elers (Officer Elers) met the manufacturer's
training requirements; therefore, the district court abused its
discretion by admitting the "testimony as to the radar speed-
reading," and without the speed-reading, no substantial evidence
supports the conviction.
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 the
parties' arguments as follows, and affirm.
As to whether the State laid a proper foundation, we
review the district court's determination for an abuse of
discretion, State v. Assaye, 121 Hawai#i 204, 210, 216 P.3d 1227,
1233 (2009), and we will not disturb it unless the district court
clearly exceeded the bounds of reason or disregarded rules or
principles of law or practice to the substantial detriment of a
party litigant. State v. Crisostomo, 94 Hawai#i 282, 287, 12
P.3d 873, 878 (2000). To lay foundation for a speed-reading, the
State must demonstrate that (1) the accuracy of the device was
tested according to procedures recommended by the manufacturer,
and (2) "the nature and extent of an officer's training in the
operation" of the device met "the requirements indicated by the
manufacturer" (Training Prong). Assaye, 121 Hawai#i at 213, 215,
216 P.3d at 1236, 1238. To satisfy the Training Prong, the State
"must establish both (1) the [training] requirements indicated by
the manufacturer, and (2) the training actually received by the
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
operator." State v. Gonzalez, 128 Hawai#i 314, 327, 288 P.3d
788, 801 (2012).
Here, Officer Elers testified: he was trained to use
the Device several times, most recently in 2019 by Roosevelt
Rogers (Rogers), an employee of the manufacturer, LTI; the
training was 32 hours and consisted of classroom instruction,
testing, field instruction, and learning to operate the Device;
Rogers provided LTI's user manual for the Device, which Officer
Elers used during the training; the training met LTI's
requirements to test and operate the Device, and it conformed to
the manual; upon completion of training, Rogers certified Officer
Elers as proficient in testing and operating the Device; his
certification was valid the day he cited Werblun; and the
training also consisted of learning the four procedures to test
the Device to determine whether it is working properly, as well
as LTI's recommendations for how often to test the Device and how
to operate it to ascertain a vehicle's speed, all of which
Officer Elers described.
Officer Elers's testimony establishes that "the
training course itself was approved by the manufacturer [and] was
consistent with the manufacturer's requirements," and Officer
Elers's description of the course, including the testing and
operating procedures he learned, was sufficient to establish "the
type of training the manufacturer recommended." Cf. State v.
Amiral, 132 Hawai#i 170, 178-79, 319 P.3d 1178, 1186-87 (2014).
Moreover, the record indicated he was instructed by the
manufacturer itself, which certified him to operate and test the
device upon completion of training. See, e.g., State v.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Portillo, 146 Hawai#i 238, 461 P.3d 29, No. CAAP-XX-XXXXXXX, 2020
WL 1879621, at *1 (App. Apr. 15, 2020) (SDO); State v. Rezentes,
139 Hawai#i 263, 388 P.3d 51, No. CAAP-XX-XXXXXXX, 2016 WL
6330390, at *1 (App. Oct. 28, 2016) (SDO).
Accordingly, the district court did not abuse its
discretion in determining that the State laid proper foundation
for the speed-reading. THEREFORE, we affirm the district court's
August 12, 2020 Judgment and Notice of Entry of Judgment.
DATED: Honolulu, Hawai#i, June 17, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Ashlyn L. Whitbeck,
Deputy Public Defender, /s/ Karen T. Nakasone
for Defendant-Appellant. Associate Judge
Richard B. Rost, /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.
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