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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-XX-XXXXXXX
                                                               30-JUN-2020
                                                               10:26 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

                           STATE OF HAWAIʻI,
                    Respondent/Plaintiff-Appellee,

                                     vs.

                           MAXWELL F. JONES,
                    Petitioner/Defendant-Appellant.


                             SCWC-XX-XXXXXXX

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-XX-XXXXXXX; CASE NO. 1DTA-15-03477)

                               JUNE 30, 2020

   McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
           CONCURRING IN PART AND DISSENTING IN PART,
                  WITH WHOM NAKAYAMA, J., JOINS

                 OPINION OF THE COURT BY McKENNA, J.

                             I.   Introduction

       This appeal arises from Maxwell Jones’s (“Jones”)

conviction by the District Court of the First Circuit (“district
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court”)1 for the offense of operating a vehicle under the

influence of an intoxicant (“OVUII”) in violation of

Hawaiʻi Revised Statutes (“HRS”) § 291E-61(a)(1) (Supp. 2014).2

Jones’s certiorari application raises four questions:

                      1.    Did the ICA gravely err as a matter of law in
                finding that “it was not error for the [d]istrict [c]ourt
                to allow Officer Wong to express an expert opinion that
                Jones ‘failed’ the HGN [horizontal gaze nystagmus] test,
                the walk-and-turn test, and the one-leg stand test[]”?

                      2.    Did the ICA gravely err as a matter of law in
                finding that “even if the [d]istrict [c]ourt erroneously
                allowed Officer Wong to opine that Jones failed the HGN
                test and other SFSTs, the error was harmless because there
                was other substantial evidence supporting Jones’s OVUII
                conviction[]”?

                      3.    Did the ICA gravely err as a matter of law in
                finding that “Officer Wong was properly allowed to express
                an expert opinion that Jones was intoxicated”?

                      4.    Did the ICA gravely err as a matter of law in
                determining that “Officer Wong’s observations of Jones’s
                operation of his car, the strong odor of alcohol coming
                from Jones’s breath, Jones’s red and bloodshot eyes,
                Jones’s fumbling with his driver’s license, and Jones’s
                dropping his license in his lap, was sufficient to support
                Jones’[s] conviction[]”?




1
          The Honorable James S. Kawashima presided.
2
      The August 7, 2015 written complaint, which also included an alleged
violation of HRS § 291E-61(a)(4) regarding blood alcohol content, was orally
amended before trial commenced on January 8, 2016, to charge Jones solely
with violating HRS § 291E-61(a)(1), which provides:

                §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[.]


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       We answer the first two questions “yes.”          The third

question has three components.         On certiorari, Jones reasserts

questions he raised to the Intermediate Court of Appeals (“ICA”)

regarding (a) whether Officer Joshua Wong’s (“Officer Wong”)

expert opinion testimony regarding Jones’s performance on the

standardized field sobriety tests (“SFSTs” or “FSTs”) was

admissible as substantive evidence of intoxication and not just

as to probable cause for arrest; (b) whether Officer Wong’s

expertise permitted him to draw a correlation between the test

results and sobriety to render an expert opinion that Jones was

intoxicated; and (c) whether Officer Wong’s expertise permitted

him to testify that Jones had a blood alcohol level of 0.08 or

above.    We answer question 3(a) “yes.”

       Based on State v. Toyomura, 80 Hawaiʻi 8, 26, 904 P.2d 893,

911 (1995) (setting out evidentiary foundation required for

admission of a police officer’s expert opinion testimony about

whether a defendant was intoxicated based on performance on

SFSTs), we answer question 3(b) “yes.”

       Based on State v. Vliet, 91 Hawaiʻi 288, 296–97, 983 P.2d

189, 197–98 (1999) (ruling in OVUII case that any error in the

officer’s legal conclusion testimony that defendant’s state of

sobriety “would have been over the legal limit” was harmless

beyond a reasonable doubt), we answer question 3(c) “no.”



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          Based on the reasons discussed herein, however, we also

prospectively hold that for trials occurring after the date of

this opinion, police officers may no longer testify, whether in

a lay or expert capacity, that a driver appeared “intoxicated.”

          Finally, because there was substantial evidence supporting

Jones’s OVUII conviction, we answer the fourth question “no.”

          Accordingly, we vacate the ICA’s July 15, 2019 judgment on

appeal and the district court’s March 22, 2016 judgment of

conviction, and we remand this matter to the district court for

further proceedings consistent with this opinion.

                                 II.   Background

A.        District court proceedings

          Jones was arrested on July 25, 2015, on suspicion of OVUII.

He was charged by complaint on August 7, 2015.3               Jones pleaded

not guilty, and the case proceeded to a bench trial, which began

on January 8, 2016, and ended on March 22, 2016.

          1.   Officer Wong’s testimony

          The State presented only one witness: Officer Wong of the

Honolulu Police Department (“HPD”), the arresting officer.

Jones did not testify nor did he present any other witnesses.

          Officer Wong testified that he attended the police academy

as a police recruit in 2010.           As of his January 8, 2016

testimony, Officer Wong had been an HPD officer for five years.
3
          See supra note 2.


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       On July 25, 2015, at around 3:15 a.m., Officer Wong was

waiting at a red light on Keʻeaumoku Street heading inland at the

intersection of Makaloa Street.            After his light turned green,

Officer Wong heard a loud sound, as from a roaring engine, to

his left and saw headlights heading eastbound on Makaloa Street;

the car, a four-door Toyota sedan, went through the intersection,

running the red light.       Officer Wong followed and pulled over

the car.

       When he approached the driver’s side window, Officer Wong

could “smell the strong odor of alcohol from [the driver’s]

breath.”    Officer Wong informed the driver, whom he identified

as Jones, why he had been pulled over, to which Jones responded,

“[O]h, I didn’t make the light?”           Jones spoke with “[s]trong

slurred speech.”      When Officer Wong viewed Jones and the

interior of the cabin with his flashlight, he also noticed that

Jones had red, bloodshot eyes.         When Officer Wong asked Jones

for his license, car registration, and insurance, Jones fumbled

with his wallet and driver’s license, and the license fell in

his lap.

       Officer Wong then asked Jones if he would participate in

SFSTs.    Jones stated he had not been drinking as he was the

designated driver for his friends, and that they had just come

from a nightclub, but that he would participate in the SFSTs.



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          As of July 25, 2015, Officer Wong had administered SFSTs

approximately 800 times.          He first received training in SFST

administration in May 2011.4          Officer Wong’s initial training had

consisted of more than twenty-four hours of training on three

days and two nights of SFST testing on live subjects, some of

whom had been drinking and some of whom had not.               As part of his

training, which included both classroom and practical components,

he was taught how to evaluate a subject’s performance on the

SFSTs.      Officer Wong had passed written and practical

examinations on administering SFSTs; the practical exam included

going over studies that described the findings and success rate

of each SFST.       As a result of his training, he had been

qualified to administer and evaluate the SFSTs.

          In 2012, Officer Wong attended the “ARIDE” program, which

he described as a refresher course on SFSTs and an introductory

course in the drug recognition expert program.5              Upon completion

of the ARIDE program in 2012, he was recognized as a drug

4
      According to Officer Wong, the SFST training was mandatory training
given to all police recruits at the police academy. His later testimony
suggested that this training may have occurred in 2010.
5
      California Highway Patrol describes the “ARIDE” program as an Advanced
Roadside Impaired Driving Enforcement course developed by the National
Highway Traffic Safety Administration and the International Association of
Chiefs of Police Technical Advisory Panel and the Virginia Association of
Chiefs of Police to “bridge the gap” in training between standard field
sobriety testing and drug evaluation and classification programs for states
that also have such drug programs. See California Highway Patrol, Advanced
Roadside Impaired Driving Enforcement (ARIDE) Course, available at
https://www.chp.ca.gov/programs-services/for-law-enforcement/drug-
recognition-evaluator-program/schedule-of-classes/aride
[https://perma.cc/QRW9-9M3K].


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recognition expert, and he also took a refresher course in drug

recognition in 2013.

          In 2015, Officer Wong became a SFST instructor for the HPD.

To become an instructor, he was again trained by senior

instructors, gave classes, and passed exams.              When asked whether

he was required to receive any certifications to become an

instructor, Officer Wong responded that the senior instructors

were qualified by the National Highway and Traffic Safety

Administration (“NHTSA”) and the International Association of

the Chiefs of Police (“IACP”).           The senior instructors then

trained the officers who trained him.            He described this as the

certification process.         Jones’s nonresponsive objection to this

testimony was overruled.          Officer Wong’s later testimony

regarding his instructors’ certifications by NHTSA was also

received over Jones’s lack of foundation and hearsay objections.

          According to Officer Wong, the NHTSA manual sets forth

standards for the administration of SFSTs, which consist of the

horizontal gaze nystagmus6 test (“HGN”), the walk-and-turn test,

and the one-leg stand test.          Officer Wong testified that a

subject’s performance on SFSTs “is indicative of whether or not

they can operate a vehicle in a safe and prudent manner.”



6
      Nystagmus has been defined as “[a] rapid, involuntary jerking or
twitching of the eyes, sometimes caused by ingesting drugs or alcohol.”
Nystagmus, Black’s Law Dictionary (11th ed. 2019).


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          Officer Wong was asked what correlation, if any, existed

between a subject’s ability to perform the SFSTs and the

subject’s ability to operate a motor vehicle.              Jones objected to

this question based on a lack of foundation for Officer Wong to

testify as an expert on a correlation, the lack of scientific

evidence of a correlation, and the lack of evidence that Officer

Wong had received training on making such a correlation.                The

deputy prosecuting attorney (“DPA”) responded that Officer Wong

had testified that he had been certified, that he was a trainer

on SFSTs, and that he was trained multiple times on the SFSTs.

The following exchange occurred:

              THE COURT: Okay. Well, the -- the testimony was rather
              summary in nature, but as far as I’m concerned, it did
              [hit] the prime points initially set forth [] in State
              versus Mitchell[7] not in the order listed and not
              necessarily broken up in bullet point form. But I’m
              satisfied that the officer’s testimony does meet with the
              primary requirements set forth, the foundational
              requirements.
                    If the officer has been certified and retrained which
              is, by the way, something that’s often missing from this
              testimony, and in this case has himself been qualified to
              become a certified instructor, and has specifically
              testified that this is all in accordance with NHTSA, I’m
              satisfied the Mitchell standard has been met in this case.
              [DEFENSE COUNSEL]: Except that there was no testimony yet
              that he was so certified. He did say he -- he was
              initially trained in May of 2011 to do the field sobriety
              test and then he testified about drug recognition until
              2013 he became -- he said he became a field sobriety test
              instructor. But nothing about certification.
              THE COURT: Well, to be allowed to be -- I grant you the
              exact language hasn’t been adduced. But to become an
              instructor and then to be allowed to perform these tests

7
      In State v. Mitchell, 94 Hawaiʻi 388, 15 P.3d 314 (App. 2000), the ICA
held that before HGN test results can be admitted into evidence, “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.” 94 Hawaiʻi at 397, 15 P.3d at 323.


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              over the past few years, I find, for foundational purposes,
              it does meet the standard. At least he couldn’t have done
              that if he wasn’t certified.
                    So I’m granting you that specific testimony has not
              been adduced. That said, I’m satisfied that, at least via
              inference if not exact language, the standard has been met.
              So objection’s overruled.

          Officer Wong then testified as to the SFSTs performed by

Jones.      Jones responded in the negative to the medical rule-out

questions regarding whether he had any impediments that could

affect his performance on the SFSTs.            Officer Wong also

testified that the sidewalk area of Makaloa Street, where Jones

performed the SFSTs, was well-lit and level, that the weather

was clear, and that he did not notice any physical injuries to

Jones or any other circumstance that would interfere with

Jones’s ability to perform the SFSTs.

          Officer Wong was then asked about the HGN test.          Jones

immediately objected on the grounds that there is no scientific

evidence to establish a foundation that performance on the HGN

test is admissible to prove intoxication beyond a reasonable

doubt, and that State v. Ito, 90 Hawaiʻi 225, 978 P.2d 191 (App.

1999)8 had discussed the HGN test being admissible as to probable

cause only and had not reached the issue of whether the HGN test

is sufficiently scientifically reliable to prove guilt beyond a
8
      In Ito, the ICA held that HGN test results have been sufficiently
established to be reliable, and that as long as a HGN test was properly
administered, its results are relevant and admissible as evidence in an OVUII
(previously referred to as DUI) case that police officers had probable cause
to believe that a defendant was OVUII, but expressly not deciding whether HGN
test results are admissible as evidence of a defendant’s intoxication because
the issue had not been presented. 90 Hawaiʻi at 240-41, 978 P.2d at 206-07.


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reasonable doubt.        The district court overruled the objection

without prejudice.9

          Officer Wong then testified on how he had been trained to

administer the HGN test in accordance with the NHTSA manual,

which was to have a subject place their feet together with heels

and toes touching, hands to the sides, and to inform them he

would be holding a stimulus, a pen, twelve to fifteen inches

from the subject’s face, slightly above eye level, and that the

subject was to follow the tip of his pen with their eyes without

head movement.        He testified he was trained to look for the lack

of smooth pursuit, distinct and sustained nystagmus at maximum

deviation, and the onset of nystagmus before forty-five degrees,

and that if a subject exhibited any of those three things, it

would be a “clue” of nystagmus that was considered a “fail.”

          When asked by the DPA what that meant regarding a subject’s

sobriety, Jones again objected based a lack of foundation

regarding correlation.         The DPA again responded that Officer

Wong had testified he had been trained and certified according

to NHTSA standards to administer SFSTs, including attending a

recent refresher course, which should allow him to give an

opinion regarding nystagmus and a subject’s sobriety.                Jones


9
      The district court stated, “There’s a wealth of material, not just Ito,
Ferrer, K[ehdy], all those cases get into whether or not HGN is admissible
for the purpose of determining intoxication.” See supra note 8 and infra
notes 12 and 13.


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responded that the issue was not whether Officer Wong had

properly administered the test, but the lack of foundation

regarding Officer Wong’s expertise regarding whether the HGN

test is correlated to evidence of intoxication beyond a

reasonable doubt.              The district court then stated:

                      Here’s the issue. Ito,[10][ Mitchell,[11] Ferrer,[12]
                even K[ehdy],[13] none of them say what would constitute
                admissibility of HGN results for substantive intoxication.
                All they say is what wasn’t done in those cases.
                     I am finding, lacking any guiding authority otherwise,
                that the standard they say hasn’t been met in those cases
                has been met in this case. And without anything saying I
                can’t, I will, over objection, admit the testimony for the
                purpose of determining substantive evidence of intoxication
                beyond simple probable cause which isn’t even relevant at
                this point. So objection is overruled. Your objection is
                preserved for the record, [defense counsel].

           Officer Wong then testified over another overruled

objection that if there was no medical problem or medication

issue, the existence of nystagmus is indicative that alcohol is


10
           See supra note 8.
11
           See supra note 7.
12
      In State v. Ferrer, 95 Hawaiʻi 409, 23 P.3d 744 (App. 2001), the ICA
held that the State had failed to lay a proper Toyomura foundation, for the
admission of an officer’s expert opinion on whether the defendant had “passed”
or “failed” the psychomotor FSTs. 95 Hawaiʻi at 430, 23 P.3d at 765. Ferrer
also separately held that the foundation laid had been insufficient to
establish that the officer was duly qualified to conduct the HGN test and
grade the test results. 95 Hawaiʻi at 424, 23 P.3d at 759.
13
      In State v. Kehdy, No. 29146, 2009 WL 1805908 (App. June 25, 2009)
(SDO), the ICA ruled that the State failed to provide sufficient foundation
to admit an officer’s testimony regarding a driver’s performance on the HGN
test, where the officer stated he was provided with materials from the NHTSA
during his training and that his instructors went through the standards and
guidelines from the NHTSA, but did not state the training he received met
NHTSA standards as required by Ito, and merely stated he received materials
from NHTSA regarding standards and guidelines, and that, like in Ito, there
was no evidence the officer was supervised by certified instructors during
his training. 2009 WL 1805908, at *4.


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impairing a subject’s ability to perform the SFSTs and to

operate a motor vehicle.       Officer Wong then testified that on

July 25, 2015, he instructed Jones on the HGN test consistent

with the standard instructions indicated above, and that Jones

stated he understood them.       This concluded the testimony for

January 8, 2016, and Officer Wong’s testimony was continued

until March 22, 2016.

       Upon resumption of Officer Wong’s testimony on March 22,

2016, Jones renewed his objection to the relevance of SFSTs to

prove intoxication beyond a reasonable doubt.           The district

court overruled the objection, indicating that although it

believed Jones’s previous objections had been sufficient, Jones

would be granted a standing objection to the relevance of the

SFSTs to prove intoxication beyond a reasonable doubt.             The

district court also overruled Jones’s renewed objection to the

admission of the HGN test testimony in its entirety as evidence

of intoxication and granted a continuing objection to the

admission of the HGN test testimony.         The following exchange

occurred:

            [DEFENSE COUNSEL]: I would just for the record like to
            renew my objection to the relevance of the field sobriety
            test to prove intoxication beyond a reasonable doubt, and
            ask for a continuing objection in that regard.
            THE COURT: So noted. But I think your -- well, objection’s
            noted but overruled. And I think it’s -- it’s lodged
            sufficiently. If you’re just talking about the field
            sobriety test, case law makes it fairly clear what that
            consists of. So just saying that you object to the field
            sobriety test I think lays out sufficient parameters to
            cover what they are.

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                      So running objection is noted. I don’t think it’s
                necessary, but your initial objection is sufficient to make
                a record.
                [DEFENSE COUNSEL]: And I would also like to renew and ask
                for a continuing objection to the horizontal gaze nystagmus
                test as evidence of intoxication. Under State
                versus Ito,[14] it clearly states that it’s admissible for
                probable cause but does not reach the issue of whether it’s
                admissible for intoxication.
                THE COURT: So noted. And again overruled for the same
                reasons as before. Ito,[15] Mitchell,[16] Ferrer[17] and
                K[ehdy][18] make the requirements fairly stringent. But I
                do find or have found and, therefore, will stand on my
                finding that this is one of the rare cases because of the
                situation with Officer Wong’s having been -- let’s see, was
                this the one? Oh, yeah, okay, yeah, not just originally
                certified by recently recertified.
                      To the extent that K[ehdy] makes that requirement,
                periodic retraining amongst and including any other
                requirements, it’s satisfied in this case. So foundation
                has been laid. Objection is noted, though, and lodged for
                the record.
                [DEFENSE COUNSEL]: Well, I wasn’t -- I wasn’t clear that he
                actually testified that he was recertified for the purposes
                of HGN. I think he -- I thought he testified that he was
                recertified for -- as a -- as a drug recognition expert.
                THE COURT: Right, which includes HGN precisely because it
                is not, as I recall, an indicator of -- of intoxication due
                to THC.[19] But that would necessarily mean covering as
                well for alternative intoxication including without --
                including and especially alcohol. So, I mean, for the
                reasons stated before, your objection is noted and lodged.
                I believe it’s safe. And if it’s not, I’m sure that you’ve
                made it clear enough for appeal purposes.
                [DEFENSE COUNSEL]: Yes. And so just to confirm, I have a
                continuing objection, I don’t have to raise it every time
                that it’s discussed?
                THE COURT: Well, once you’ve -- yeah, you don’t.

           Officer Wong then testified that he administered and

evaluated the results of each SFST administered to Jones in

14
           See supra note 8.
15
           See supra note 8.
16
           See supra note 7.
17
           See supra note 12.
18
           See supra note 13.
19
      No such evidence was received in this case. It appears the district
court may have been relying on its knowledge of the contents of NHTSA manuals.


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accordance with his training and the NHSTA manual.            With respect

to the HGN test, Officer Wong checked for and found no resting

nystagmus, he observed that Jones’s pupils were of equal size,

and he confirmed that Jones could track the stimulus equally -

based on these observations, Officer Wong continued on with the

test.   Officer Wong testified that during Jones’s performance of

the HGN test, he observed six out of six clues of intoxication,

which were lack of smooth pursuit, distinct and sustained

nystagmus at maximum deviation, and onset of nystagmus prior to

forty-five degrees, in both eyes.

       According to Officer Wong, this meant that Jones had

“failed” the HGN test.      Officer Jones also testified the “fail”

meant Jones had a blood alcohol content of 0.08 or above.                The

DPA then asked Officer Wong if there were any studies about the

HGN test that would point toward that conclusion.            Officer Wong

began testifying about a San Diego field test study, indicating

that it was the most recent study, in which police officers

conducted the test in the field and in the laboratory.             At this

point, Jones objected on hearsay grounds, that Officer Wong was

testifying about a study he had not seen.          The DPA responded

that the testimony was being offered for foundation.            The

district court sustained the objection on the grounds that

“there are certain hoops that still have to be jumped through

for even an expert to testify about external treatises, articles,

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that sort of thing that have not been met yet as far as I’m

concerned.”20        Thus, Officer Wong did not testify as to studies

apparently supporting his testimony that Jones’s “failure” on

the HGN test mean he had a blood alcohol content of 0.08 or

above.

           Next, Officer Wong testified regarding his administration

of the walk-and-turn test.           Once more, he gave Jones

instructions on how to perform the test, including verbal

instructions and a demonstration of the correct position.                    Jones

confirmed he understood the test and had no questions.                 Officer

Wong looked for two clues during the instructional phase, in

which he asked Jones to stay in position and not begin until

cued: whether Jones could keep his balance while standing still

and whether he started too soon or without being told to start.

He then looked for six clues during the walking portion of the

test: whether Jones turned around improperly, stopped, failed to




20
      It appears the district court was referring to Hawaiʻi Rules of Evidence
(“HRE”) Rule 803(b)(18) (2002), which provides a hearsay exception for
“learned treatises”:

               (18) Learned treatises. To the extent called to the
               attention of an expert witness upon cross-examination or
               relied upon by the witness in direct examination,
               statements contained in published treatises, periodicals,
               or pamphlets on a subject of history, medicine, or other
               science or art, established as a reliable authority by the
               testimony or admission of the witness or by other expert
               testimony or by judicial notice. If admitted, the
               statements may be read into evidence but may not be
               received as exhibits.


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step heel-toe, stepped off-line, raised his hands, or took an

improper number of steps.

       According to Officer Wong, a subject “fails” the test if he

exhibits two clues.      Officer Wong testified Jones exhibited

seven clues: he was unable to keep his balance during the

instructional phase, stopped walking while on the turn, turned

improperly, did not step heel-to-toe five times (missing by

about a half-inch), stepped off-line three times, raised his

arms six to eight inches, and took ten steps instead of nine.

Officer Wong also testified that at the end of the first nine

steps, Jones stopped and asked him if he should take nine steps

or ten; Officer Wong responded that he should “take the test as

how he had remembered” from the instructions.           Jones ended up

taking ten steps.

       Officer Wong then testified that Jones “failed” the walk-

and-turn test and that his blood alcohol content was at or above

0.08.

       Officer Wong then testified that he instructed Jones and

demonstrated how to complete the one-leg stand test, after which

Jones affirmed that he understood.         During the test, Officer

Wong looked for four clues while Jones stood on one leg and

counted for thirty seconds: whether Jones swayed to keep balance,

raised his arms six inches or more, hopped on one leg, and put

his foot down at any point.       Officer Wong testified he observed

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Jones three times sway from side-to-side about two inches and

twice raise his arms about eight inches; according to Officer

Wong, these motions were of a sufficiently significant degree to

constitute clues for purposes of the test.

       Officer Wong then testified that Jones also “failed” the

one-leg stand test.      He also testified this meant Jones was “not

able to drive a car safely.”

       Officer Wong then testified regarding Jones’s performance

on the SFSTs as a whole, stating, “My evaluation is that based

on all three of the standardized field sobriety tests that the

defendant was not sober and that he was not able to operate a

vehicle safely and that he did not pass[.]”           Over objection, he

testified that Jones was intoxicated.         After completion of the

SFSTs, Officer Wong arrested Jones for OVUII.

       On cross-examination, with respect to the alleged heel-toe

“miss” on the walk-and-turn test, Officer Wong testified that he

“didn’t have a measuring stick” and that he just “look[ed] and

determine[d] if it’s a half an inch.”         Officer Wong conceded he

was “approximating” the distance.         With respect to the HGN test,

Officer Wong stated that the last time he had measured exactly,

rather than merely estimated, forty-five degrees of eye

displacement had probably been in 2010 at the police academy.

       Officer Wong also testified, over the State’s objection,

that SFSTs provide the probable cause basis for an OVUII arrest

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and that he was trained to “take the arrestee to the police

station for further testing to determine intoxication[.]”                 In

response to a cross-examination question as to whether “the

conclusion of intoxication is not based on the field sobriety

test, the conclusion of intoxication is based upon what further

testing is done at the police station, blood or breath or

whatever,” however, Officer Wong responded, “No, because if the

person refuses to take a test, then how would we come to the

conclusion that they’re intoxicated?”

       2.    The district court’s ruling

       The district court adjudicated Jones guilty of OVUII.

Although the district court acknowledged Jones’s argument that

the individual clues were insufficient and that Jones’s slurred

speech may have been attributable to his natural speaking

pattern, the district court nevertheless found “the accumulation

sufficient” and described the evidence supporting conviction as

“ample.”     The district court then sentenced Jones to 240 hours

of community service, a two-year license suspension, and a $700

fine.

B.     ICA proceedings

       In his opening brief, Jones argued that the district court

erred in admitting, without proper foundation, Officer Wong’s

testimony that Jones failed each SFST and failed the SFSTs as a

whole.      Jones maintained Officer Wong lacked the qualifications

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to testify as an expert because he “never testified that he was

certified to administer the test, only that he had received

training from an individual who himself was also not certified.”

According to Jones, the district court committed “clear and

obvious error” when it determined that Officer Wong’s

qualifications “met the standard” for being “certified.”              Jones

argued that, thus, Officer Wong’s testimony regarding the

results of the SFSTs was erroneously considered by the district

court on the substantive issue of guilt beyond a reasonable

doubt.

       In addition, Jones claimed that the district court erred by

admitting the SFSTs as evidence of intoxication rather than as

merely evidence of probable cause.          Jones contended that this

court’s decision in Toyomura, while permitting an officer to

provide a lay opinion that a defendant was intoxicated based on

a lack of coordination, forbids reliance on the results of the

SFSTs as the basis of that opinion.          Jones maintained that “the

trial court failed to apply and enforce this prohibition” when

Officer Wong offered an opinion on Jones’s intoxication based

solely on the SFSTs.

       Jones also analogized his case to State v. Bebb, 99 Hawaiʻi

213, 53 P.3d 1198 (App. 2001), overruled on other grounds by

State v. Maldonado, 108 Hawaiʻi 436, 121 P.3d 901 (2005), in

which the officer based his lay opinion about an arrestee’s

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intoxication on his assessment of the SFSTs, but the State

failed to lay sufficient foundation as required by Toyomura.              99

Hawaiʻi at 217–218, 53 P.3d at 1202–03.         Jones claimed the same

error occurred here.

       Jones also asserted that “there was not substantial

evidence to support a finding of guilt beyond a reasonable

doubt.”   According to Jones, besides the results of the SFSTs

that should not have been considered, the evidence supporting

the conviction was scant: that he had run a red light, that

Officer Wong smelled alcohol, and that his eyes were red and

bloodshot.    Jones argued that he “contested” whether the light

had been red when he passed through the intersection, that “[i]t

is common knowledge that can be judicially noted that . . .

every police officer reports” red, bloodshot eyes after an OVUII

arrest, and that the smell of alcohol could have been coming

from the passengers in the car, who had been drinking.

       The State responded that Officer Wong was properly

qualified as an expert.      The State argued that Officer Wong’s

testimony was relevant and reliable under Hawaiʻi Rules of

Evidence (“HRE”) Rule 702 (1992), and that it had laid

sufficient foundation for him to opine as an expert on the SFSTs

and Jones’s performance.       Likewise, it argued that “any

testimony by Officer Wong opining as to Jones being under the



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influence of alcohol was admissible pursuant to HRE Rule 704,”

which permits an expert to opine even on an ultimate issue.

       The State also argued that sufficient evidence existed to

convict Jones.     The State, emphasizing that an appellate court

must review the evidence “in the strongest light for the

prosecution,” cited the “strong odor of alcohol coming from

[Jones’s] breath,” that Jones fumbled with his documents, that

Jones exhibited clues on each SFST, and that his eyes were red

and bloodshot.

       In his reply, Jones argued that Officer Wong lacked

certification to perform the SFSTs and that even Officer Wong’s

own instructor was not certified.         Jones also contended that no

evidence was presented tending to establish Officer Wong’s

expertise to permit him to draw a correlation between the SFST

results and sobriety.      Jones argued Officer Wong’s expert

testimony was therefore improper.         He also reiterated that a

police officer testifying as a lay witness cannot base an

opinion about a defendant’s sobriety on the results of the SFSTs.

       In its June 19, 2019 summary disposition order (“SDO”)

affirming Jones’s conviction, the ICA reasoned that “Officer

Wong was certified by NHTSA and IACP to instruct HPD officers to

perform and evaluate the SFST[s,]” that he was qualified to

“conduct and grade” each component test, and that it was not

error for the district court “to allow Officer Wong to express

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an expert opinion that Jones ‘failed’ the HGN test, the walk-

and-turn test, and the one-leg stand test.”           State v. Jones, No.

CAAP-XX-XXXXXXX, at 5, 2019 WL 2521149 (App. June 19, 2019)

(SDO) (footnote omitted).

       The ICA also ruled that even if admission of this expert

opinion testimony was erroneous, “the error was harmless because

there was other substantial evidence supporting Jones’s OVUII

conviction.”    Jones, SDO at 4-5 n.5.

       The ICA also held it was not error for the district court

to rely on Officer Wong’s expert opinions on Jones’s SFST

performance as substantive evidence of intoxication.            Jones, SDO

at 6.    The ICA cited to Toyomura for the proposition that

“foundational evidence of a police officer’s knowledge of HPD’s

SFST procedure was necessary before the officer could be allowed

to express an expert opinion about whether a defendant was

intoxicated based upon an SFST.”          Id.   The ICA concluded the

State’s foundation was sufficient for “Officer Wong, an NHTSA-

and IACP-certified SFST instructor for HPD, to opine that Jones

was intoxicated based upon the results of Jones’s SFST.”             Id.

The ICA distinguished this case from Bebb, stating, “[B]ecause

we hold that Officer Wong was properly allowed to express an

expert opinion that Jones was intoxicated, Bebb does not apply.”

Id.



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           Finally, the ICA rejected the contention that Jones’s

conviction was not supported by substantial evidence.                   Jones,

SDO at 8-9.         Even without the contested expert opinion testimony,

the ICA concluded Officer Wong’s lay observations supported the

conviction.        Id.   Again citing Toyomura, the ICA ruled that an

officer may describe the results of the SFSTs and offer a lay

opinion about the defendant’s sobriety from those results.

Jones, SDO at 9 (citing Toyomura, 80 Hawaiʻi at 26, 904 P.2d at

911).        Thus, even if Officer Wong should not have been qualified

as an expert, the ICA ruled his testimony regarding how Jones

performed the tasks on the SFSTs were admissible:

                Officer Wong’s testimony about his observations of
                Jones’s performance on the walk-and-turn and one-leg
                stand tests, along with Officer Wong’s observations
                of Jones’s operation of his car, the strong odor of
                alcohol coming from Jones’s breath, Jones’s red and
                bloodshot eyes, Jones’s fumbling with his driver’s
                license, and Jones’s dropping his license in his lap,
                was sufficient to support Jones’s conviction.

Id.21

C.         Certiorari application

           On certiorari, Jones presents the four questions presented

in Section I.         In Section IV below, we address each question on

certiorari in turn.




21
      But see discussion in Section IV.D. infra, explaining a police
officer’s lay opinion testimony regarding a driver’s state of sobriety, if
the testimony is based on the results of the driver’s performance on the
SFSTs, is inadmissible under existing law.


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                       III.    Standards of Review

A.     Admission of expert testimony

       “Generally, the decision whether to admit expert testimony

rests in the discretion of the trial court.           To the extent that

the trial court’s decision is dependent upon interpretation of

court rules, such interpretation is a question of law, which

[the appellate] court reviews de novo.”          State v. Metcalfe, 129

Hawaiʻi 206, 222, 297 P.3d 1062, 1078 (2013) (alteration in

original).

B.     Whether error is harmless beyond a reasonable doubt

       In a criminal case, if there is a reasonable possibility

that error might have contributed to a conviction, then the

error is not harmless beyond a reasonable doubt, and the

judgment of conviction on which the error may have been based

must be set aside.     State v. Cabrera, 90 Hawaiʻi 359, 365, 978

P.2d 797, 803 (1999).

C.     Sufficiency of the evidence

       We review the sufficiency of evidence in a criminal case

“in the strongest light for the prosecution.”           State v. Kalaola,

124 Hawaiʻi 43, 49, 237 P.3d 1109, 1115 (2010).           “The test on

appeal is not whether guilt is established beyond a reasonable

doubt, but whether there was substantial evidence to support the

conclusion of the trier of fact.”         Id.   Substantial evidence

means “credible evidence which is of sufficient quality and

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probative value to enable a person of reasonable caution to

support a conclusion.”      Id.

                           IV.    Discussion

A.     The district court erred by permitting Officer Wong to
       express an expert opinion that Jones “failed” the SFSTs

       1.   Requisite evidentiary foundation

       In his first question on certiorari, Jones asks this court

to hold that the district court erred by permitting Officer Wong

to “express an expert opinion that Jones ‘failed’” the elements

of the SFSTs.     Jones maintains the district court erred in

admitting, without proper foundation, Officer Wong’s testimony

that Jones “failed” the HGN test, the walk-and-turn test, and

the one-leg stand test.

        The ICA reasoned that because “Officer Wong was certified

by NHTSA and IACP to instruct HPD officers to perform and

evaluate the SFST[s,]” he was qualified to “conduct and grade”

each component test, and it was not error for the district court

“to allow Officer Wong to express an expert opinion that Jones

‘failed’ the HGN test, the walk-and-turn test, and the one-leg

stand test.”    Jones, SDO at 5 (footnote omitted).

       HRE Rule 702 governs the admission of expert testimony and

provides:

            If scientific, technical, or other specialized knowledge
            will assist the trier of fact to understand the evidence or
            to determine a fact in issue, a witness qualified as an
            expert by knowledge, skill, experience, training, or
            education may testify thereto in the form of an opinion or

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            otherwise. In determining the issue of assistance to the
            trier of fact, the court may consider the trustworthiness
            and validity of the scientific technique or mode of
            analysis employed by the proffered expert.

       Qualifying a witness as an expert requires that the

proponent lay foundation establishing that “(1) the witness [is]

qualified by knowledge, skill, training, or education; (2) the

testimony [has] the capacity to assist the trier of fact to

understand the evidence or to determine a fact in issue; and (3)

the expert’s analysis [meets] a threshold level of reliability

and trustworthiness.”      Metcalfe, 129 Hawaiʻi at 227, 297 P.3d at

1083.    “[T]he determination of whether or not a witness is

qualified as an expert in a particular field is largely within

the discretion of the trial judge, and, as such, will not be

upset absent a clear abuse of discretion.”          State v. Torres, 60

Haw. 271, 277, 589 P.2d 83, 87 (1978).          HRE Rule 702 thus allows

those qualified by “knowledge, skill, training, or education” to

express expert opinions if the testimony has the capacity to

assist the trier of fact to understand the evidence or to

determine a fact in issue and the expert’s analysis meets a

threshold level of reliability and trustworthiness.            Metcalfe,

129 Hawaiʻi at 227, 297 P.3d at 1083.

       However, an expert’s opinion testimony is not limitless.

The HRE contemplates that “experts will have a specific field of

expertise, and limit their opinion testimony to matters within

that field.”    129 Hawaiʻi at 244, 297 P.3d at 1100.          Furthermore,
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HRE Rule 704 (1980) provides that “[t]estimony in the form of an

opinion or inference otherwise admissible is not objectionable

because it embraces an ultimate issue to be decided by the trier

of fact.”         “However, it is well settled that ‘questions which

would merely allow the witness to tell the [fact-finder] what

result to reach are not permitted.              Nor is the rule intended to

allow a witness to give legal conclusions.’”                Vliet, 91 Hawaiʻi

at 296–97, 983 P.2d at 197–98 (alteration in original) (ruling

in OVUII case that any error in the officer’s legal conclusion

testimony that defendant’s state of sobriety “would have been

over the legal limit” was harmless beyond a reasonable doubt).

           It appears no published Hawaiʻi appellate cases have

actually upheld a ruling admitting expert opinion testimony that

a driver “failed” a SFST.            State v. Nishi, 9 Haw. App. 516, 852

P.2d 476 (1993) addressed an officer’s opinion testimony that

the defendant had failed the “heel-to-toe, “leg raised,” and

“arch back” tests.           9 Haw. App. at 523, 852 P.2d at 480.         The

ICA ruled this testimony inadmissible as HRE Rule 70122 lay

opinion testimony.           Id.   The ICA indicated lay opinion testimony



22
           HRE Rule 701 (1984) provides:

                 If the witness is not testifying as an expert, the witness’
                 testimony in the form of opinions or inferences is limited
                 to those opinions or inferences which are (1) rationally
                 based on the perception of the witness, and (2) helpful to
                 a clear understanding of the witness’ testimony or the
                 determination of a fact in issue.


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rationally based on an officer’s perception regarding a driver’s

lack of coordination while performing SFSTs is admissible.               Id.

The ICA noted, however, that a normal person would not be able

to form opinions that a driver had “failed” the tests without

knowledge of the HPD’s field sobriety testing procedures, and

that the record disclosed no such foundational evidence.             Id.

Noting that the officer had not been qualified as an expert

witness, the ICA ruled the district court abused its discretion

in admitting the officer’s testimony.         9 Haw. App. at 521 n.6,

523-24, 852 P.2d at 479 n.6, 480.

       In Toyomura, we cited Nishi in holding that “foundational

evidence as to the arresting officer’s knowledge of HPD’s field

sobriety testing procedures[,]” which the record in that case

did not disclose, was “necessary” for the admission of an

“arresting officer’s opinion testimony” that a driver had

“failed to pass the FSTs[.]”       80 Hawaiʻi at 25-26, 904 P.2d at

910—11 (brackets omitted).       As noted in Bebb, the case heavily

relied on by Jones, Toyomura actually stated:

           Toyomura is also correct in observing that insufficient
           foundation was laid to permit Officer Fujihara, based on
           Toyomura’s performance of the FSTs, to render a lay opinion
           as to whether he was intoxicated, inasmuch as the
           prosecution elicited no testimony establishing that (1) the
           horizontal gaze nystagmus, “one-leg stand,” and “walk-and-
           turn” procedures were elements of the HPD’s official FST
           protocol, (2) there was any authoritatively established
           relationship between the manner of performance of these
           procedures and a person’s degree of intoxication, and (3)
           Officer Fujihara had received any specific training in the
           administration of the procedures and the “grading” of their
           results. Therefore, Toyomura is correct that Officer


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           Fujihara was improperly permitted to render an opinion that
           he (i.e. Toyomura) was intoxicated based in part on Officer
           Fujihara’s assessment of the results of the FSTs. . . .
                 Toyomura is simply wrong, however, in concluding that
           the “rule in Nishi was violated in this case” in such a
           manner as to require that his DUI conviction be vacated.
           As the trial court correctly noted, “any . . . lay person,”
           including a police officer, “can have an opinion regarding
           sobriety.” As set forth above, Officer Fujihara expressly
           testified that, over the course of his approximately
           nineteen years as a police officer, he “had an opportunity
           to observe people who had been drinking and at different
           levels[.]” And, as noted, the record reflects that the
           trial court both assured Toyomura that he was considering
           Officer Fujihara’s testimony “only from a lay point of view”
           and that the trial court applied its independent assessment
           of the evidence in finding Toyomura guilty of DUI. . . .

                 . . . .

                 Examined in the light of the entire proceedings and
           given the effect the whole record shows it to be entitled,
           we are convinced that there is no reasonable possibility
           that any improper lay opinion testimony on the part of
           Officer Fujihara contributed to Toyomura’s DUI conviction.
           Accordingly, we hold that any error in the admission of
           that testimony was harmless.

99 Hawaiʻi at 216-17, 53 P.3d at 1201-02 (alterations and

ellipses in original) (citations omitted) (second emphasis

added) (quoting Toyomura, 80 Hawaiʻi at 26-27, 904 P.2d at 911-

12).

       As indicated by Chief Judge Burns in Bebb, the inclusion of

the word “lay” before “opinion” in the third line of the excerpt

above was erroneous: as stated in Bebb, “[i]n context, it

appears that this word should have been ‘expert’ rather than

‘lay’ because ‘testimony establishing’ the three facts that

follow would qualify Officer Fujihara as an expert.”            99 Hawaiʻi

at 216 n.4, 53 P.3d at 1201 n.4.          Thus, Toyomura indicated that




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if the three foundational requirements stated therein were met,

an officer could testify that a driver had “failed” an SFST.

           After Toyomura, the ICA held in Ferrer that the State had

failed to lay a proper Toyomura foundation for the admission of

an officer’s expert opinion on whether the defendant had “passed”

or “failed” the psychomotor field sobriety tests.23               95 Hawaiʻi at

430, 23 P.3d at 765.          Ferrer also separately held that the

foundation laid had been insufficient to establish that the

officer was duly qualified to conduct the HGN test and grade the

test results.        95 Hawaiʻi at 424, 23 P.3d at 759.

           Thus, although our appellate cases set out an evidentiary

foundation framework for admission of expert opinion testimony

that a driver “failed” a SFST, there are no reported cases

upholding the admission of such expert opinion testimony.24

           2.   Lack of “certification”

           Jones contends insufficient foundation exists to qualify

Officer Wong as an expert because Officer Wong never testified


23
      The psychomotor FSTs are the walk-and-turn test and the one-leg stand
test. Ferrer held that psychomotor FSTs are nonscientific in nature and that,
therefore, an arresting officer may be permitted to testify as to a driver’s
performance on such tests and to give a lay opinion based on observations
whether the driver was intoxicated when arrested. 95 Hawaiʻi at 427, 23 P.3d
at 762. Ferrer also held, however, that absent foundation testimony
establishing conformity to NHTSA training standards, it was an abuse of
discretion to allow an officer to testify about a driver’s performance on the
HGN test. 95 Hawaiʻi at 425, 23 P.3d at 760.
24
      Vliet reaffirmed Nishi’s holding that “a lay witness may express an
opinion regarding another person’s sobriety, provided the witness has had an
opportunity observe the other person. 91 Hawaiʻi at 298, 983 P.2d at 199.


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that he was certified to administer the SFSTs, only that he had

received training from someone who himself was not certified.

Jones therefore argues that it was error for the district court

to qualify Officer Wong as an expert; he argued that just

because an officer was “allowed” to perform the SFST, it did not

mean “that he was therefore certified and qualified to do so.”

           This objection appears to arise from the ICA’s opinion in

Ito, in which the ICA stated:

                      In this case, no evidence was adduced that [the
                officer] was duly qualified to conduct the HGN test and
                grade the test results. Over Defendant’s objection, the
                district court “assum[ed] that the standard training from
                HPD is, I’ve always assumed it to be sufficient so I’ll
                assume he has in fact been qualified to give the test.”
                However, it is not clear what HPD’s “standard training”
                consists of and whether HPD’s standard training program
                meets the requirements of the NHTSA. Therefore, we have no
                way of knowing the extent and nature of [the officer’s] HGN
                training, whether [the officer’s] training was supervised
                by certified instructors, whether [the officer] was
                certified to administer the test . . . .

90 Hawaiʻi at 244, 978 P.2d at 210.25

           With respect to Jones’s contention regarding

“certifications,” the Hawaiʻi appellate cases setting forth

foundational requirements for admission of expert opinion

testimony regarding a driver’s performance on SFSTs, see Section

IV.A.1. above, do not contain any “certification” requirement.

Officer Wong repeatedly testified he had been qualified to

administer and evaluate SFSTs pursuant to NHTSA standards and

the NHTSA manual.          When asked whether he had been required to
25
           See also supra note 8.


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receive any certifications to become an SFST instructor for HPD,

Officer Wong actually described the “certification” process as

NHTSA and IACP qualifying senior instructors, who trained

officers who then trained him.            The district court permitted

Officer Wong to express various opinions regarding Jones’s

performance on the SFSTs constituting expert opinion testimony,

describing Officer Wong at various times as “certified” and

“qualified.”        For example, the district court stated, “[I]n this

case[, the officer] has himself been qualified to become a

certified instructor, and has specifically testified that this

is all in accordance with the NHTSA, I’m satisfied[.]”

           According to NHTSA manuals, although NHTSA provides

certificates of completion of SFST training, neither NHTSA nor

IACP are certifying agencies for impaired driving courses, i.e.,

SFST and ARIDE, “includ[ing] both practitioners and instructors.”

See NHTSA, DWI Detection and Standardized Field Sobriety Testing

(SFST) Instructor Guide, 40, 44, available at

https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/sfst_i

g_full_manual.pdf [https://perma.cc/53W5-MSNV] (“NHTSA 2015

Instructor Guide”).26


26
      “[O]ur appellate courts have ‘not hesitated in the past to take
judicial notice [on appeal] of the validity of underlying scientific
principles and the reliability of scientific techniques.’” Vliet, 95 Hawaiʻi
at 112, 19 P.3d at 60 (second alteration in original). The trial and
appellate record are replete with references to NHTSA and its manuals. The
district court referred to information from NHTSA manuals not received in
                                                              (continued. . .)

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           It therefore appears that although “certificates of

completion” are provided, NHTSA does not actually “certify” SFST

instructors or officers.27          In any event, existence or non-

existence of “certification” is not dispositive, because

pursuant to HRE Rule 702, a witness can render expert opinion

testimony based on “knowledge, skill, experience, training, or

education.”        The ICA expressed concern in Ito that “it [was] not

clear what HPD’s ‘standard training’ consists of and whether

HPD’s standard training program meets the requirements of the

NHTSA.”       90 Hawaiʻi at 244, 978 P.2d at 210.         In Jones’s case,

Officer Wong testified regarding the training and testing he had

undergone pursuant to NHTSA standards to administer and evaluate

SFSTs.       In general, sufficient foundation was laid under

Toyomura to qualify Officer Wong to render expert opinion

(continued. . .)
evidence, when it stated that Officer Wong’s recertification as a drug
recognition expert included retraining that the presence of HGN “is not . . .
an indicator of [] intoxication due to THC.” The district court in Ferrer
had taken judicial notice of various NHTSA manuals, and the ICA opinion
contains various excerpts from them. 95 Hawaiʻi at 420, 424, 23 P.3d at 755,
759. Ito also contains various excerpts from NHTSA manuals. 90 Hawaiʻi 225,
978 P.2d 191, passim. See also Webster v. State, 26 S.W.3d 717, 721 n.4 (Ct.
App. Tex. 2000) (“Although the parties have not provided a copy of the
1992 NHTSA Manual, we take judicial notice of its contents.”). We therefore
take judicial notice of the NHTSA 2015 Instructor Guide and the NHTSA 2015
Participant Manual.

27
      Our appellate cases, however, contain references to NHTSA
“certifications.” See, e.g., State v. Wilson, 144 Hawaiʻi 454, 458, 445 P.3d
35, 39 (2019) (“NHTSA Certified Instructor”); Mitchell, 94 Hawaiʻi at 398, 15
P.3d at 324 (“certified DUI instructor”); Ito, 90 Hawaiʻi at 244, 978 P.2d at
210 (discussing lack of evidence of whether the officer was certified to
administer HGN test and whether his training had been supervised by certified
instructors). Based on the NHTSA manuals, it is unclear whether such
“certifications” exist for Hawaiʻi officers.


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testimony regarding Jones’s performance on the SFSTs and clues

of intoxication based on NHTSA standards.

       3.   Expert opinion testimony that Jones “failed” the SFSTs

       Jones more specifically asserts in his first question on

certiorari, however, that the district court erred in allowing

Officer Wong to express an expert opinion that Jones “failed”

the HGN test, the walk-and-turn test, and the one-leg stand test.

Jones argues the district erred in admitting Officer Wong’s

testimony that he had failed each test and failed the SFSTs as a

whole.

       As noted, Officer Wong’s qualifications to testify as an

expert as to his administration and evaluation of SFSTs were

based entirely on NHTSA standards.          As he testified, SFSTs are

conducted pursuant to NHTSA standards contained in the NHTSA

manual.

       NHTSA itself dictates, however, that the SFSTs are not

scored “pass” or “fail,” and are merely tools to assist an

officer in seeing visible signs of impairment.            In other words,

NHTSA itself does not recognize “pass” or “fail” scores on

SFSTS:

            Remember, you should not testify that the defendant passed
            or failed the SFSTs. The tests are not scored “pass” or
            “fail.” You should testify if the defendant completed the
            tests as instructed. These tests simply identify
            impairment.




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NHTSA, DWI Detection and Standardized Field Sobriety Testing

(SFST) Participant Manual, 349, available at

https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/sfst_p

m_full_manual.pdf [https://perma.cc/X22R-3XXT] (“NHTSA 2015

Participant Manual”); NHTSA 2015 Instructor Manual, at 409; see

also NHTSA 2015 Participant Manual, at 257 (“Remember that the

SFSTs are a tool to assist you in seeing visible signs of

impairment and are not a pass/fail test.”).

           Thus, the very standards upon which Officer Wong based his

expertise explicitly state that SFSTs are not “pass” or “fail”

tests.28       Hence, although our appellate cases set out an

evidentiary foundation framework for admission of expert opinion

testimony that a driver “failed” a SFST, no reported cases had

previously upheld the admission of such expert opinion testimony.

NHTSA standards do not allow such testimony.               Therefore, the

district court erred in allowing Officer Wong to render such

expert opinion testimony.

B.         The erroneous admission of expert opinion testimony that
           Jones “failed” the SFSTs was not harmless beyond a
           reasonable doubt

           Jones next challenges the ICA’s holding that even if it was

error to permit Officer Wong to opine that Jones failed the SFST,

28
      Based on our holding that it was error to allow Officer Wong to testify
that Jones “failed” the SFSTs, we do not go through the thorough analysis
conducted by the ICA in Ferrer regarding whether the officer met specific
NHTSA requirements as to each test. See 95 Hawaiʻi at 422-27, 23 P.3d at 757-
62.


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“the error was harmless because there was substantial other

evidence supporting Jones’s OVUII conviction.”

       “Erroneously admitted evidence is evaluated under

the harmless beyond a reasonable doubt standard.”            State v.

Matsumoto, 145 Hawaiʻi 313, 327, 452 P.3d 310, 324 (2019) (citing

State v. McCrory, 104 Hawaiʻi 203, 210, 87 P.3d 275, 282 (2004)).

“Under this standard, ‘[t]he relevant question . . . is whether

there is a reasonable possibility that error might

have contributed to [the] conviction.’”          Id. (alteration and

ellipsis in original) (emphasis omitted) (quoting State v. Han,

130 Hawaiʻi 83, 93, 306 P.3d 128, 138 (2013) (citing State v. Kim,

140 Hawaiʻi 421, 434 n.15, 402 P.3d 497, 510 n.15 (2017)).

       “In applying the harmless beyond a reasonable doubt

standard, the court is required to examine the record and

determine whether there is a reasonable possibility that the

error complained of might have contributed to the

conviction.”    State v. Souza, 142 Hawaiʻi 390, 402, 420 P.3d 321,

333 (2018) (brackets omitted) (quoting State v. Mundon, 121

Hawaiʻi 339, 368, 219 P.3d 1126, 1155 (2009)).

       Thus, the ICA applied an erroneous standard in ruling that

“the error was harmless because there was other substantial

evidence supporting Jones’s OVUII conviction.”           The existence of

“other substantial evidence” supporting a conviction is not

determinative of whether error is harmless beyond a reasonable
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doubt.    Rather, as our cases have repeatedly held, the issue is

whether there is a reasonable possibility that the error

contributed to a conviction.        Cabrera, 90 Hawaiʻi at 365, 978

P.2d at 803.     If so, the error is not harmless beyond a

reasonable doubt.

       Granted, in a bench trial, “[i]t is well established that a

judge is presumed not to be influenced by incompetent evidence.”

Vliet, 91 Hawaiʻi at 298, 983 P.2d at 199 (alteration in

original).     In Vliet, this court found harmless an officer’s

improper opinion testimony regarding the defendant’s sobriety

and whether the officer believed the defendant was able to

operate his vehicle safely that night.           91 Hawaiʻi at 290, 983

P.2d at 191.

       In Jones’s trial, however, the district court repeatedly

overruled Jones’s objections and admitted Officer Wong’s expert

testimony that Jones had “failed” each SFST individually, and

then that Jones “failed” the SFSTs as a whole.            In adjudicating

Jones guilty of OVUII at the conclusion of trial, the district

court stated that although the individual clues regarding

Jones’s performance on the SFSTs were insufficient, and that

Jones’s slurred speech may have been attributable to his natural

speaking pattern, the “accumulation” of evidence was “sufficient”

and the evidence supporting conviction was “ample.”             On this

record, there is a reasonable possibility that the erroneous

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admission of expert opinion testimony that Jones had failed the

SFSTs individually and as a whole contributed to Jones’s

conviction.    Therefore, the error was not harmless beyond a

reasonable doubt.

C.     The district court (a) did not err by admitting expert
       opinion testimony regarding Jones’s performance on the
       SFSTs as substantive evidence of intoxication and not just
       as to probable cause for arrest, and (b) based on Toyomura,
       did not err in permitting expert opinion testimony that
       Jones was intoxicated, but (c) based on Vliet, did err in
       permitting expert opinion testimony that Jones had a blood
       alcohol content of 0.08 or above

       We have already concluded that Jones’s conviction must be

vacated.   We address the third question on certiorari, however,

to provide guidance on remand.

       As noted, the third question has three parts.          On

certiorari, Jones reasserts the questions he raised to the ICA,

which are: (a) whether the district court erred in admitting

Officer Wong’s expert opinion testimony regarding Jones’s

performance on the SFSTs as substantive evidence of intoxication

and not just as to probable cause for arrest; (b) whether

evidence was presented to establish Officer Wong’s expertise to

permit him to draw a correlation between the test results and

sobriety to render an expert opinion that Jones was intoxicated;

and (c) whether Officer Wong’s expertise permitted him to

testify that Jones had a blood alcohol level of 0.08 or above.

The ICA found no error.


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           1.   Expert opinion testimony regarding Jones’s
                performance on the SFSTs as substantive evidence
                of intoxication and not just as to probable cause
                for arrest

           We first address Jones’s assertion that the ICA erred in

holding the HGN test and SFSTs were admissible for the purpose

of establishing substantive evidence of intoxication beyond

probable cause.

           In Ito, the ICA stated:

                [W]e conclude that HGN test results have been sufficiently
                established to be reliable and are therefore admissible as
                evidence that police had probable cause to believe that a
                defendant was [OVUII]. Since the issue was not presented,
                we do not decide whether HGN test results are admissible at
                trial as evidence of a defendant’s intoxication.

90 Hawaiʻi at 241, 978 P.2d at 207.

           As contended by Jones, NHTSA states that the SFSTs are to

determine whether probable cause exists to arrest a driver for

OVUII: “The third phase in the DWI detection process.[29]                    In


29
      According to the NHTSA 2015 Participant Manual, the phases are as
follows:

                In Phase One: Your first task is to observe the vehicle in
                operation. Based on this observation, you must decide
                whether there is sufficient cause to command the driver to
                stop. Your second task is to observe the stopping sequence.
                You may want to take a picture of the vehicle or scene,
                especially if the vehicle was involved in a crash.

                In Phase Two: Your first task is to observe and interview
                the driver face to face. Based on this observation, you
                must decide whether there is sufficient cause to instruct
                the driver to step from the vehicle for further
                investigation. Your second task is to observe the driver’s
                exit and walk from the vehicle. You may want to take a
                photo of the defendant.

                In Phase Three: Your first task is to administer structured,
                formal psychophysical tests. Based on these tests, you
                                                                 (continued. . .)

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this phase the officer administers field sobriety tests to

determine whether there is probable cause to arrest the driver

for DWI.”     NHTSA 2015 Participant Manual, at 23.          NHTSA further

defines “probable cause” as “more than mere suspicion; facts and

circumstances within the officer’s knowledge, and of which [they

have] reasonably trustworthy information, are sufficient to

warrant a person of reasonable caution to believe that an

offense has been or is being committed.”           Id.

        NHTSA does not, however, limit a driver’s performance on

the SFSTs to an establishment of probable cause.             NHTSA

instructs on the importance of officers taking field notes of a

driver’s performance on the SFSTs to “determine whether there is

probable cause to arrest[,]” but points out that “to secure a

conviction, more descriptive evidence is needed.             The officer

must be able to describe how the subject performed on the tests,

and what the subject did.”        Id. at 268.     Thus, NHTSA recognizes

that an officer’s observation and description of the manner in

which a driver performs a field sobriety test is admissible at

trial on the issue of impairment.




(continued. . .)
            must decide whether there is sufficient probable cause to
            arrest the driver for DWI. Your second task is then to
            arrange for (or administer) a Preliminary Breath Test.

Id. at 95.


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       Hawaiʻi appellate cases have also allowed for consideration

of the manner in which a driver performs SFSTs as substantive

evidence of intoxication, regardless of whether the officer was

qualified as an expert.      See, e.g., Toyomura, 80 Hawaiʻi at 26,

904 P.2d at 911 (specifying foundation necessary for expert

opinion testimony regarding SFST performance); Nishi, 9 Haw. App.

at 524, 852 P.2d at 480 (allowing police officer to give lay

witness testimony regarding observations of a driver’s

coordination problems while performing SFSTs).

       Therefore, evidence of a driver’s conduct and physical

actions while performing a SFST is not only relevant to probable

cause for an arrest, but is also admissible as indicia of

whether a driver was OVUII beyond a reasonable doubt.

       2.   Expert opinion testimony that Jones was
            intoxicated

       With respect to the second part of this question on

certiorari, the ICA stated that pursuant to Toyomura,

“foundational evidence of a police officer’s knowledge of HPD’s

SFST procedure was necessary before the officer could be allowed

to express an expert opinion about whether a defendant was

intoxicated based upon an SFST.”          The ICA concluded the State’s

foundation was sufficient for “Officer Wong, an NHTSA- and IACP-

certified SFST instructor for HPD, to opine that Jones was

intoxicated based upon the results of Jones’s SFST.”


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       In Toyomura, we cited Nishi and stated that “foundational

evidence as to the arresting officer’s knowledge of HPD’s field

sobriety testing procedures[,]” which the record in that case

did not disclose, was “necessary” for the admission of an

“arresting officer’s opinion testimony” that a driver had

“failed to pass the FSTs[.]”       80 Hawaiʻi at 25-26, 904 P.2d at

910—11 (brackets omitted).       The issue Jones directly presents in

this case, whether such opinion testimony should be excluded

even when the requisite foundation has been laid, was not

presented in Toyomura.      In addition, Vliet, discussed in more

detail below, was decided after Toyomura and pertains to whether

such testimony would be admissible.         And as further discussed

below, there are significant issues with allowing such testimony.

We recognize, however, that Toyomura indicated that an officer

could express an expert opinion that a driver was intoxicated as

long as sufficient foundation was laid.

       Here, Officer Wong testified he had been trained and re-

trained and had passed written and practical examinations

regarding the administration and evaluation of SFSTs in

accordance with NHTSA standards, and he had performed hundreds

of SFSTs.    Therefore, an adequate foundation was laid, and the

district court did not err in allowing Officer Wong to testify

as an expert in the administration and evaluation of SFSTs and

to express his opinions regarding the NHTSA-recognized “clues of

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intoxication” in Jones’s performance of the SFSTs.            Thus, under

Toyomura, in this case, Officer Wong was properly allowed to

render expert opinion testimony regarding his evaluation of

Jones’s performance on the SFSTs and to render expert opinion

testimony that Jones was “intoxicated.”

       3.   Expert opinion testimony that Jones had a blood
            alcohol level of 0.08 or above

       Officer Wong’s expert opinion testimony, however, exceeded

the scope of allowable testimony as an expert under existing law.

Officer Wong not only testified as to the clues of intoxication

he observed during Jones’s performance of the SFSTs, he also

opined that Jones had a blood alcohol content of 0.08 based on

his performance on the SFSTs.        First, as Jones argues, Officer

Wong’s testimony did not provide adequate foundation to allow

him to draw such a correlation based on Jones’s performance on

each of the SFSTs.     Officer Wong did testify that the NHTSA

practical exam included going over studies that described the

findings and “success rate” of each SFST.          He never testified,

however, as to what “success rate” meant.          Then, when Officer

Wong testified that a “fail” meant Jones had a blood alcohol

content of 0.08 or above and the DPA asked Officer Wong whether

there were any studies about the HGN test that would point

toward that conclusion, the district court sustained Jones’s

objection.    Therefore, no foundation was laid that clues of


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intoxication correlated to a blood alcohol level of 0.08 or

above.

       In addition, it is well-settled that opinion testimony

should not merely tell the fact-finder what result to reach, and

witnesses are not permitted to give legal conclusions.              See

State v. Batangan, 71 Haw. 552, 559, 799 P.2d 48, 52 (1990)

(stating that HRE Rule 704 does not permit opinion testimony

that merely tells the jury what result to reach); Vliet, 91

Hawaiʻi at 296-97, 983 P.2d at 197-98 (noting that HRE Rule 704

does not allow a witness to give legal conclusions).             Although

Toyomura indicated that if sufficient foundation existed of a

police officer’s knowledge of SFST procedures the officer could

be allowed to express an expert opinion about whether a

defendant was intoxicated based upon SFST performance, our

ruling in Vliet, which came after Toyomura, directly addressed

the issue.     In Vliet, an OVUII case, we noted that although HRE

Rule 704 provides that “[t]estimony in the form of an opinion or

inference otherwise admissible is not objectionable because it

embraces an ultimate issue to be decided by the trier of fact[,]”

“questions which would merely allow the witness to tell the

[fact-finder] what result to reach are not permitted.”              91

Hawai’i at 296, 983 P.2d at 197.           We further noted that

HRE Rule 704 is not “intended to allow a witness to give legal

conclusions.”     91 Hawaiʻi at 296–97, 983 P.2d at 197–98.

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           Vliet specifically addressed an officer’s testimony that a

defendant’s state of sobriety “would have been over the legal

limit.”       91 Hawaiʻi at 296–97, 983 P.2d at 197–98.30          This court

held that the officer’s testimony amounted to a legal conclusion

and was therefore impermissible.              91 Hawaiʻi at 298, 983 P.2d at

199 (“Clearly, Officer Uehara was attempting to offer a legal

conclusion as to whether [the defendant] was DUI.”).                Although

in Vliet we ruled the admission of this testimony harmless

beyond a reasonable doubt, we identified its problematic nature.

           The officer’s testimony in Vliet is comparable to Officer

Wong’s testimony that Jones had a blood alcohol level of 0.08 or

above.       Jones was charged with OVUII in violation of

HRS § 291E-61(a)(1).          This subsection proscribes operating a

vehicle “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.”

Officer Wong’s testimony that Jones had a blood alcohol level of

0.08 or above based on his performance on the SFSTs was

tantamount to telling the fact-finder what result to reach and

constituted legal conclusion testimony in violation of Vliet.

Therefore, on this basis also, the district court erred by

30
      As recognized by the concurrence and dissent, Vliet also found
impermissible the officer’s testimony that the defendant “did poorly, he
would be driving poorly too[.]” 91 Hawaiʻi at 298, 983 P.2d at 199. Vliet
indicated that the officer’s testimony that he believed the defendant was not
able to operate his vehicle safely that night was improper. Id.


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permitting Officer Wong to testify as an expert that Jones had a

blood alcohol level above 0.08.

D.     Prospectively, police officers may no longer testify,
       whether in a lay or expert capacity, that a driver
       appeared “intoxicated”

       In this case, Officer Wong testified as an expert witness,

and the issues raised by Jones on certiorari relate to Officer

Wong’s expert testimony.       The ICA ruled, however, that Officer

Wong’s testimony was in any event admissible as lay opinion

testimony as an officer may describe the results of the SFSTs

and offer a lay opinion about the defendant’s sobriety from

those results.     Jones, SDO at 9 (citing Toyomura, 80 Hawaiʻi at

26, 904 P.2d at 911).

       To the extent the ICA stated that an officer’s lay opinion

testimony can be based on SFST results, this conclusion was

erroneous under existing law.        As Chief Judge Burns stated in

Bebb,

            In Toyomura, the Hawaiʻi Supreme Court concluded that a
            police officer, based on [their] “lay” observations, can
            have a “lay” opinion that an arrestee is not sober. It also
            says, however, that a police officer cannot base [their]
            “lay” opinion that an arrestee is not sober on [their]
            “assessment of the results of the FSTs.”

99 Hawaiʻi at 217, 53 P.3d at 1202 (citing Toyomura, 80 Hawaiʻi

at 26, 904 P.2d at 911).

       Under HRE Rule 701, a lay opinion must be “rationally based

on the perception of the witness[.]”         As recognized in Nishi,

which we adopted in Toyomura, an officer’s opinion that a driver

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was intoxicated based upon SFST performance would necessarily

rely on that officer’s knowledge of SFSTs and would not be based

solely on the officer’s perception.              See 9 Haw. App. at 523, 852

P.2d at 480 (“A normal person may not necessarily form such an

opinion if [they] had not been taught to grade the performance

of the three field sobriety tests[, and thus] this was a

situation where foundational evidence as to [the arresting

officer’s] knowledge of HPD's field sobriety testing procedures

was necessary.”).          Thus, as recognized in Bebb, Toyomura, which

adopted Nishi, ruled that although an officer performing a SFST

may be able to testify as to what would constitute lay

observations, such as the general physical condition or

coordination of a driver, an officer’s opinion regarding a

driver’s level of intoxication cannot be based on the driver’s

SFST results.

           Thus, under existing law, a police officer cannot provide a

lay opinion that a driver was “intoxicated” or with respect to

the driver’s state of sobriety if the testimony is based on the

results of the driver’s SFST performance.31               Our existing law


31
           Thus, the dissent misstates that law when it states that:

                       Toyomura also recognized that a lay witness,
                 including an officer testifying as such, can form an
                 opinion as to whether someone they observed is intoxicated
                 based on information besides the SFSTs, and Hawaiʻi courts
                 have long followed this rule. Toyomura, 80 Hawaiʻi at 25-27,
                 904 P.2d at 910-12 (“[A]ny lay person, including a police
                 officer, can have an opinion regarding sobriety.” (ellipsis,
                                                                    (continued. . .)

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states that an officer can, however, offer expert opinion

testimony that a driver was “intoxicated” assuming sufficient

foundation, and an officer can offer lay opinion testimony that

a driver was “intoxicated” if that testimony is based on general

observations regarding a driver’s coordination.               Toyomura, 80

Hawaiʻi at 25-26, 904 P.2d at 910—11.

           We now prospectively hold that police officers may no

longer testify, whether in a lay or expert capacity, that a

driver appeared “intoxicated.”32



(continued. . .)
            citation, and internal quotation marks omitted)); see also
            State v. Bebb, 99 Hawaiʻi 213, 217, 53 P.3d 1198, 1202 (App.
            2001) (recognizing that “a police officer, based on his or
            her ‘lay’ observations, can have a ‘lay’ opinion that an
            arrestee is not sober” (citation omitted)).

(Alteration in original.) (Footnote omitted.)
32
      As we explain, our prospective holding is based on HRE Rule 704.
Although not necessary to our holding, we also note that lay opinion
testimony from an officer conducting a SFST from whom expert testimony is
sought raises additional concerns recognized in State v. Torres, 122 Hawaiʻi 2,
222 P.3d 409 (App. 2009):

                     When enacted in 1980, HRE Rules 701 and 702 were
               modeled upon and were virtually identical to the
               corresponding Federal Rules of Evidence (FRE) Rules 701 and
               702. See Commentary to HRE Rule 701 and HRE Rule 702. In
               2000, FRE Rule 701 was amended to specifically provide that
               lay opinions could “not [be] based on scientific, technical,
               or other specialized knowledge within the scope of
               [FRE] Rule 702.” The Advisory Committee Notes to the 2000
               amendment to FRE Rule 701 explain that the purpose of the
               amendment was to “eliminate the risk that the reliability
               requirements set forth in Rule 702 will be evaded through
               the simple expedient of proffering an expert in lay witness
               clothing.” FRE Rule 701 advisory committee’s note. The
               2000 amendment to FRE Rule 701 also ensures that a party
               will not evade rules requiring pre-trial disclosure of
               expert witnesses by “simply calling an expert witness in
               the guise of a layperson.” Id. The 2000 amendment to
                                                                  (continued. . .)

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(continued. . .)
            FRE 701 incorporates the distinction set forth in State v.
            Brown, 836 S.W.2d 530, 549 (Tenn. 1992), that “lay
            testimony ‘results from a process of reasoning familiar in
            everyday life,’ while expert testimony ‘results from a
            process of reasoning which can be mastered only by
            specialists in the field.’” FRE Rule 701 advisory
            committee’s note.
                  Although Hawaiʻi has not amended HRE Rule 701 to
            incorporate the 2000 amendment to FRE Rule 701, the Hawaiʻi
            Supreme Court has implicitly recognized the limitation on
            lay opinion testimony set forth in the 2000 amendment to
            FRE Rule 701. In cases upholding the admission of opinion
            testimony as lay opinion, the supreme court justified its
            decisions by noting that the challenged testimony did not
            require “scientific, technical, or other specialized
            knowledge” within the scope of HRE Rule 702. Jenkins, 93
            Hawaiʻi at 105, 997 P.2d at 31 (“Jenkins does not suggest,
            nor does the record reflect, that testimony regarding
            whether the pouches qualified as rigidly constructed
            containers or commercial gun cases required ‘scientific,
            technical, or other specialized knowledge,’ such that
            expert testimony would have been required pursuant to
            HRE Rule 702 (1993).”); Yoneda v. Tom, 110 Hawaiʻi 367, 385,
            133 P.3d 796, 814 (2006) (“Yoneda’s testimony as to the
            events leading up to the accident and his observations
            regarding the location of the restroom building and the
            route of the cart path did not require ‘scientific,
            technical, or other specialized knowledge’ such that expert
            testimony would have been required pursuant to
            HRE Rule 702[.]”).

122 Hawaiʻi at 29–30, 222 P.3d at 436–37, aff’d and corrected on other grounds
by State v. Torres, 125 Hawaiʻi 382, 262 P.3d 1006 (2011) (alterations in
original). Thus, pursuant to Torres, for opinion testimony from officers
regarding their evaluation of a driver’s performance on SFSTs to be
admissible, they must be properly identified as expert witnesses. Federal
courts also recognize an additional concern with “proffering an expert in lay
witness clothing.” As stated by the Tenth Circuit Court of Appeals:

                  We recognize that witnesses who testify in both a lay
            capacity and an expert capacity may present special risks
            at trial. The “aura of special reliability and
            trustworthiness surrounding expert testimony,” may give the
            witness “unmerited credibility” and “create[] a risk of
            prejudice ‘because the jury may infer that the agent’s
            opinion about the criminal nature of the defendant’s
            activity is based on knowledge of the defendant beyond the
            evidence at trial.’” United States v. Dukagjini, 326 F.3d
            45, 53–54 (2d Cir. 2003) (citations omitted). In light of
            this concern, some circuits have encouraged district courts
            to take precautionary measures, including warning the jury
            about the witness’s dual roles or bifurcating the
            questioning to clearly demarcate lay and expert testimony
                                                              (continued. . .)

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        As discussed in Section IV.C. above, an officer cannot

express an opinion, whether in a lay or expert capacity, that

simply tells a factfinder what result to reach or that provides

a legal conclusion.       As discussed, Vliet held that although

HRE Rule 704 provides that “[t]estimony in the form of an

opinion or inference otherwise admissible is not objectionable

because it embraces an ultimate issue to be decided by the trier

of fact[,]” “questions which would merely allow the witness to

tell the [fact-finder] what result to reach are not permitted.”

91 Hawai’i at 296, 983 P.2d at 197.         Vliet also held that

[HRE Rule 704] is not intended “to allow a witness to give legal

conclusions.”     91 Hawaiʻi at 296–97, 983 P.2d at 197–98; see also

State v. Pinero, 70 Haw. 509, 520-21, 778 P.2d 704, 712 (1980)

(holding conclusory questions with answers that told jury what

result to reach improper under HRE Rule 704).

        On these bases, Vliet thus found impermissible an officer's

testimony that a defendant’s state of sobriety “would have been

(continued. . .)
            offered by the same witness, to protect against these
            dangers. See, e.g., United States v. Rios, 830 F.3d 403,
            414–15 (6th Cir. 2016), cert. petition filed, No. 16-7314
            (Dec. 27, 2016); United States v. Moralez, 808 F.3d 362,
            365–67 (8th Cir. 2015); United States v. Haines, 803 F.3d
            713, 730–32 (5th Cir. 2015); United States v. Vera, 770
            F.3d 1232, 1242–43 (9th Cir. 2014); United States v. Garcia,
            752 F.3d 382, 392 (4th Cir. 2014); United States v. Tucker,
            714 F.3d 1006, 1016 (7th Cir. 2013); United States v.
            Flores-De-Jesus, 569 F.3d 8, 21 (1st Cir. 2009); Dukagjini,
            326 F.3d at 53–56.

United States v. Sandoval, 680 F. App’x 713, 718–19 (10th Cir. 2017).     As
noted, however, our prospective holding is based on HRE Rule 704.


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over the legal limit.”      91 Hawaiʻi at 296–97, 983 P.2d at 197–98.

Vliet also found impermissible the officer’s testimony that the

defendant “did poorly, he would be driving poorly too” and that

he believed the defendant was not able to operate his vehicle

safely that night.     91 Hawaiʻi at 298, 983 P.2d at 199.          The

dissent concedes that, pursuant to Vliet, testimony that the

driver “would be driving poorly” and was “over the legal limit”

reflect improper legal conclusions.         The dissent disagrees,

however, that an officer’s testimony that a driver was

“intoxicated,” whether given in a lay or expert capacity, tells

the factfinder what result to reach, and invades the province of

the factfinder.

       There is no real qualitative distinction between the

testimony found improper in Vliet and our other caselaw, however,

with testimony that a driver was “intoxicated.”           As recently

reaffirmed in State v. Ikimaka, No. SCWC-XX-XXXXXXX, 2020 WL

3056494 (Haw. June 9, 2020):

           Officer Hsu’s testimony on Ikimaka’s intent and knowledge
           was [] impermissible because it expressed a legal
           conclusion as to Ikimaka’s state of mind. See State v.
           Vliet, 91 Hawaiʻi 288, 296-97, 983 P.2d 189, 197-98 (1999).
           While HRE Rule 704 (1980) permits testimony “embrac[ing] an
           ultimate issue to be decided by the trier of fact,” it
           “does not allow ‘the admission of opinions which would
           merely tell the jury what result to reach[.]’” State v.
           Batangan, 71 Haw. 552, 559, 799 P.2d 48, 52 (1990) (quoting
           HRE Rule 704 cmt.); see also State v. Ryan, 112 Hawaiʻi 136,
           141, 144 P.3d 584, 589 (App. 2006) (holding an officer’s
           opinion testimony that the complaining witness was truthful
           impermissibly invaded the province of the jury to determine
           the facts). “Nor is [HRE Rule 704] intended to allow a



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               witness to give legal conclusions.”   Vliet, 91 Hawaiʻi at
               296-97, 983 P.2d at 197-98.

No. SCWC-XX-XXXXXXX, at 33 (alterations in original).

           Allowing an officer to testify that a driver was

“intoxicated” likewise expresses a legal conclusion and invades

the province of the factfinder.            Webster’s Third International

Dictionary defines “intoxicated” as “being under the marked

influence of an intoxicant: DRUNK, INEBRIATED.”                An officer’s

testimony that a driver was “intoxicated,” whether given in a

lay or expert capacity, invades the province of the factfinder

to determine whether a person drove “[w]hile 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[,]” HRS § 293E-61(a)(1), and is tantamount to a

legal conclusion that they did.            Accordingly, testimony that a

driver was “intoxicated” violates HRE Rule 704.33


33
      We also observe that the definition of the term “intoxicated” appears
to be evolving, and that the term can mean different things to different
people. As noted, the 1966 Webster’s Third International Dictionary defines
“intoxicated” as “being under the marked influence of an intoxicant: DRUNK,
INEBRIATED.” The 1988 Webster’s Ninth Collegiate Dictionary defines the term
as “affected by [] alcohol[.]” The 2019 Black’s Law Dictionary defines the
term as “[h]aving the brain affected by the presence in the body of a drug or
alcohol. —Also termed inebriated.” Intoxicated, Black’s Law Dictionary
(11th ed. 2019). In addition, we have cited other legal definitions of
“intoxication” above.
      Jones was charged with driving “[w]hile under the influence of alcohol
in an amount sufficient to impair [his] normal mental faculties or ability to
care for [himself] and guard against casualty” under HRS § 291E-61(a)(1). He
was not charged with driving under the influence of other intoxicants. Yet,
a person can appear “intoxicated” even if under the influence of other
substances. Thus, admission of testimony from a police officer, whether in a
lay or expert capacity, that a person was “intoxicated,” raises significant
HRE Rule 403 concerns based on “unfair prejudice, confusion of the issues, or
                                                              (continued. . .)

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           We therefore prospectively hold that for trials occurring

after the date of this opinion, police officers may no longer

testify, whether in a lay or expert capacity, that a driver

appeared “intoxicated.”34

E.         Jones’s conviction was supported by substantial evidence

           Finally, Jones alleges there was not substantial evidence

to support his conviction.           Citing Bebb, Jones asserts the

evidence was insufficient to support his conviction because

besides the results of the SFSTs - which he challenges - the

other evidence supporting guilt was “subjective.”                Moreover, he

claims that “[n]o evidence was proffered as to the correlation

between red, watery eyes and intoxication, or whether such

indicia rise to the level of substantial evidence of alcohol

consumption in an amount sufficient to impair a person’s normal

mental faculties[.]”

           We review the sufficiency of the evidence supporting a

criminal conviction in the light most favorable to the State.


(continued. . .)
misleading the jury [or factfinder judge]” as to what “intoxicated” means.
See HRE Rule 403 (“Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative
evidence.”). In addition, such opinion testimony, whether offered in a lay
or expert capacity, also may be needless and cumulative when, for example,
the officer is able to testify as to the driver’s physical actions, conduct,
and appearance or when a video of the SFSTs exists.
34
      This is a “new rule” that changes standards upon which courts and law
enforcement have relied. Therefore, we give it purely prospective effect.
See Lewi v. State, 145 Hawaiʻi 333, 349 n.21, 452 P.3d 330, 346 n.21 (2019).


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Kalaola, 124 Hawaiʻi at 49, 237 P.3d at 1115.           “‘Substantial

evidence’ as to every material element of the offense charged is

credible evidence which is of sufficient quality and probative

value to enable a person of reasonable caution to support a

conclusion.”    Id.

       Jones argues that substantial evidence was lacking that he

was “under the influence of alcohol in an amount sufficient to

impair [his] normal mental faculties.”          HRS § 291E-61(a)(1).

       As indicated by the ICA, Jones’s conviction was supported

by “Officer Wong’s observations of Jones’s operation of his car,

the strong odor of alcohol coming from Jones’s breath, Jones’s

red and bloodshot eyes, Jones’s fumbling with his driver’s

license, and Jones’s dropping his license in his lap[.]”             In

addition, we have held that Officer Wong’s expert opinion

testimony as to clues of intoxication based on Jones’s

performance on the SFSTs was properly admitted.           Thus,

substantial evidence supported Jones’s conviction.

                              V.   Conclusion

       Based on these reasons, we vacate the ICA’s July 15, 2019

judgment on appeal and the district court’s March 22, 2016

judgment of conviction, and we remand this matter to the




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district court for further proceedings consistent with this

opinion.

Michael S. Zola,                  /s/ Sabrina S. McKenna
for petitioner
                                  /s/ Richard W. Pollack
Sonja P. McCullen,
for respondent                    /s/ Michael D. Wilson




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