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                                            Electronically Filed
                                            Intermediate Court of Appeals
                                            CAAP-XX-XXXXXXX
                                            04-JUN-2020
                                            07:46 AM


                        NO. CAAP-XX-XXXXXXX

               IN THE INTERMEDIATE COURT OF APPEALS

                      OF THE STATE OF HAWAI#I

            STATE OF HAWAI#I, Plaintiff-Appellant, v.
                LEAH SKAPINOK, Defendant-Appellee


       APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                        (HONOLULU DIVISION)
                     (CASE NO. 1DTA-19-01048)

                        MEMORANDUM OPINION
       (By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

          This case, like another case that was recently decided

by this court, involves the well-established constitutional

principle that the prosecution may not use statements, whether

exculpatory or inculpatory, stemming from the custodial

interrogation of a defendant unless the defendant has first been

advised of his or her Miranda rights.     See State v. Sagapolutele-

Silva, No. CAAP-XX-XXXXXXX, 2020 WL 1699907 (Haw. App. April 8,

2020); see also Miranda v. Arizona, 384 U.S. 436 (1966).       This

rule applies in all criminal matters, even when the alleged crime

is a misdemeanor traffic offense.    That said, whether the

questioning of a defendant constitutes a custodial interrogation

is dependent on the totality of the circumstances and, in many

instances, persons who are temporarily detained pursuant to a
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traffic stop are not in custody for the purposes of Miranda.       In

addition, the right against self-incrimination is not necessarily

implicated whenever a person suspected of criminal activity is

compelled in some way to cooperate in developing evidence which

may be used against him or her, such as when a defendant has

performed a field sobriety test and testimony regarding the

defendant's physical characteristics of coordination is offered

against the defendant.

           The defendant in this case was arrested for and charged
with Operating a Vehicle Under the Influence of an Intoxicant

(OVUII).   As the Plaintiff-Appellant State of Hawai#i (State)

conceded in the trial court, the defendant in this case was in

custody shortly after she was stopped by a police officer.      As

set forth in Sagapolutele-Silva, as applied in this case, the

defendant's physical performance on a field sobriety test was not

testimonial, and the defendant's responses to whether she would

participate in the test and whether she understood the

instructions were attendant to legitimate police procedures, and

should not have been suppressed.       We further hold, however, that

the medical rule-out questions posed by the officer were

reasonably likely to elicit an incriminating response, and that

the District Court did not err in suppressing those statements.

Finally, for the reasons stated below, we conclude that a

statement made by the defendant in response to being asked

whether she would participate in the test and being told that she

was not being asked whether she was drinking, was not the result

of custodial interrogation and should not have been suppressed.

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             The State appeals from the Notice of Entry of Judgment

and/or Order and Plea/Judgment, filed on June 3, 2019 (Judgment),

in the District Court of the First Circuit, Honolulu Division

(District Court),1/ which granted Defendant-Appellee Leah

Skapinok's (Skapinok's) Motion to Suppress Statements.             The State

also challenges Conclusions of Law (COLs) 7, 10, 13, and 15

through 19 of the District Court's July 8, 2019 Findings of Fact

and Conclusions of Law and Order Granting Defendant's Motion to

Suppress Statement, as refiled on February 26, 2020 (Suppression

Order).2/

I.      BACKGROUND

             On August 18, 2019, at about 11:02 p.m., Honolulu

Police Department (HPD) Officer William Meredith (Officer

Meredith) observed Skapinok's vehicle pass his location.3/

Officer Meredith observed Skapinok speeding eastbound on King

Street, then weaving through traffic after turning uphill on Ward

Avenue, crossing a solid white line as she turned onto the H-1

freeway on-ramp, and then crossing three lanes of the freeway to

the left without a turn signal and traveling significantly faster

than the posted speed limit.         When Officer Meredith turned on his




        1/
             The Honorable Summer Kupau-Odo presided.
      2/
            Two pages of the Suppression Order were missing from the copy
filed electronically on July 8, 2019, and were included when the Suppression
Order was refiled electronically on February 26, 2020.
        3/
            The background facts are taken primarily from the District Court's
Findings of Fact (FOFs), which are set forth in the Suppression Order, and
which are not challenged on appeal. Some HPD bodycam footage, as well as HPD
testimony, is included in the record on appeal.

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flashing blue lights, Skapinok stopped on the freeway with the

majority of her vehicle in the far left lane of travel.4/

            Once Skapinok's vehicle was stopped off of the freeway,

Officer Meredith again approached the driver's side of Skapinok's

vehicle and informed Skapinok he was pulling her over for

speeding.    The officer noticed a strong odor of alcohol coming

from Skapinok and asked her if she would be willing to

participate in a Standardized Field Sobriety Test (SFST).

Skapinok repeatedly denied drinking any alcoholic beverages.
Officer Meredith repeatedly told Skapinok that if she refused to

participate in the SFST, he would put her under arrest for

suspicion of Operating a Vehicle Under the Influence of an

Intoxicant, and she eventually agreed to participate.             Skapinok

was not free to leave while she waited for a second officer, HPD

Corporal Ernest Chang (Corporal Chang) to arrive.

            When Corporal Chang arrived on the scene, Officer

Meredith informed him that he observed Skapinok driving at a high

rate of speed.     Corporal Chang suggested to Officer Meredith that

Skapinok was driving recklessly.          Corporal Chang then informed

Skapinok that he was there to offer her the SFST and asked her if

she wanted to take it.      He then told her, "there's already enough

to arrest you just for the reckless driving alone."            When

Skapinok questioned that her speeding was cause to arrest her for

reckless driving, Corporal Chang again told her, inter alia, that




      4/
            Officer Meredith told Skapinok he was pulling her over for
speeding and then directed her to pull off the freeway for safety purposes
while he blocked traffic with his police vehicle.

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based on what Officer Meredith observed, she may be arrested for

reckless driving, too.

            Skapinok exited her vehicle and Corporal Chang then

administered the SFST.      Prior to administering the SFST, Corporal

Chang asked Skapinok seven preliminary questions, which are known

as medical rule-out questions:        Do you have any physical defects

or speech impediments; are you taking any medications; are you

under the care of a doctor or dentist for anything; are you under

the care of an eye doctor; are you epileptic or diabetic; do you
have an artificial or glass eye; and are you blind in either eye.

Skapinok answered no to most of the questions, but informed the

officers that she was taking Wellbutrin and seeing a doctor for

depression.5/   Corporal Chang later testified that medical rule-

out questions are intended to see if the results of the SFST are

likely caused by an intoxicant, as opposed to a medical or

physical condition.

            The SFST consists of three tests, and prior to

administering them, Corporal Chang gave Skapinok instructions,

asked her if she understood the instructions, and asked her if

she had any questions.      Skapinok was not advised of her Miranda

rights at any point.      After the SFST was performed, Skapinok was

arrested for OVUII and Reckless Driving.6/



      5/
            At the suppression hearing, Corporal Chang testified that he is
aware that ingesting Wellbutrin with alcohol can cause side effects similar to
intoxication.
      6/
            When asked if Skapinok was arrested for both the "DUI" and
reckless driving, Officer Meredith responded in the affirmative. The
Complaint filed in the District Court did not include a reckless driving
charge.

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          Skapinok filed, inter alia, a motion to suppress

statements.   At the hearing on the motion to suppress, Officer

Meredith and Corporal Chang testified.      In conjunction with their

testimony, portions of each officer's bodycam footage was played

and entered into evidence.    After the evidentiary portion of the

hearing, defense counsel argued that from the time Skapinok was

stopped, Officer Meredith had probable cause to arrest her for

Reckless Driving, Officer Meredith told Skapinok three times that

if she did not participate in an SFST he would place her under
arrest for OVUII, and Skapinok was in custody before Corporal

Chang even arrived on the scene.       Counsel then argued that asking

Skapinok whether she would participate in an SFST, whether she

understood the SFST instructions, and the medical rule-out

questions were all reasonably likely to elicit incriminating

responses and constituted a custodial interrogation.

          In response, the State began by stating that it did not

dispute and would concede that there was probable cause to arrest

Skapinok for Reckless Driving at the time she was stopped.      The

prosecutor then argued, inter alia, that "no interrogation

occurred and so therefore there was no custodial interrogation

although the defendant was in custody."      The prosecutor expanded

on the argument that there was no interrogation, but at no point

argued that Skapinok was not in custody.

          After the hearing concluded, the District Court found

(and concluded) that Officer Meredith had probable cause to

arrest or cite Skapinok for OVUII and/or Reckless Driving while

she was still sitting in her vehicle, that the officers did not

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need the result of the SFST to arrest her for OVUII and/or

Reckless Driving, Skapinok was not free to leave, and legal

custody had attached.    The District Court's COLs that are

challenged on appeal state as follows:
          7.    At the time that Defendant was sitting in her vehicle,
                prior to the administration of the SFST, she was not
                free to leave, she was the focus of an OVUII
                investigation and officers had probable cause to
                arrest her for OVUII and/or Reckless Driving. Officer
                Meredith and Corporal Chang did not need the results
                of the SFST to arrest Defendant for OVUII and/or
                Reckless Driving. Legal custody had attached.
          . . . .

          10.   Asking Defendant if she was willing to participate in
                the SFST constituted custodial interrogation because
                she was not free to leave, she was the focus of an
                OVUII investigation and officers had probable cause to
                arrest her. Asking a person if they would be willing
                to participate in a SFST is reasonably likely to
                elicit an incriminating response. For example,
                refusing to participate in the SFST can be used at
                trial to show consciousness of guilt pursuant to State
                v. Ferm, 94 Haw. 17 (2000).

          . . . .

          13.   The MRO questions in this case constituted custodial
                interrogation and were reasonably likely to elicit
                incriminating responses. In this particular case, the
                MRO questions did elicit incriminating responses.
                Defendant stated that she was taking the medication
                Wellbutrin.   Alcohol ingested in conjunction with
                medication which causes intoxication is a basis for
                OVUII. State v. Vliet, 91 Haw. 288 (1999), as alcohol
                only has to be a contributing factor in impairment.

          . . . .
          15.   Corporal Chang's questioning during the SFST as to
                whether Defendant understood the instructions was
                reasonably likely to elicit an incriminating response.
                If Defendant answered "no," it would be a commentary
                on her mental faculties and ability to understand the
                instructions. If a [sic] Defendant answered "yes,"
                and did not perform the test as instructed, her "yes"
                response could be used against her at trial to show
                her mental faculties were impaired.
          16.   Defendant's consent to the SFST is suppressed and all
                evidence obtained after the consent i[s] fruit of the
                poisonous tree.

          17.   The MRO questions are suppressed and all evidence
                obtained by HPD after the MRO questions are suppressed
                as fruit of the poisonous tree.



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           18.    Defendant's answer that she understood the
                  instructions during the SFST is suppressed and the
                  SFST is suppressed as fruit of the poisonous tree.
           19.    Defendant's statements while she was still in the
                  vehicle in response to Officer Meredith's statement
                  that he was not asking her whether she was drinking is
                  suppressed.

II.   POINT OF ERROR ON APPEAL

           The State raises a single point of error on appeal,

contending that the District Court erred in the challenged COLs

and the Suppression Order because Skapinok was not in custody or

seized until after she took an SFST and was arrested for OVUII,
in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1)

(Supp. 2018).7/

           Tacitly acknowledging that it previously conceded that

Skapinok was in custody before she exited her vehicle, the State

points to its argument to the District Court that "no

interrogation occurred and so therefore there was no custodial

interrogation."

III. APPLICABLE STANDARDS OF REVIEW
           The proponent of the motion to suppress has the burden of
           establishing, by a preponderance of the evidence, that the
           statements or items sought to be excluded were unlawfully
           secured and that his or her right to be free from
           unreasonable searches or seizures was violated under the
           fourth amendment to the United States Constitution and
           article I, section 7 of the Hawai#i Constitution.




      7/
           HRS § 291E-61(a) states, in relevant part:
                 § 291E-61 Operating a vehicle under the influence of
           an intoxicant. (a) A person commits the offense of
           operating a vehicle under the influence of an intoxicant if
           the person operates or assumes actual physical control of a
           vehicle:
                  (1)   While under the influence of alcohol in an
                        amount sufficient to impair the person's normal
                        mental faculties or ability to care for the
                        person and guard against casualty[.]

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State v. Estabillio, 121 Hawai#i 261, 269, 218 P.3d 749, 757

(2009) (citations omitted).

           A ruling on a motion to suppress is reviewed de novo,

and the appellate court must look at the entire record on appeal

to determine whether the ruling was right or wrong.      State v.

Joseph, 109 Hawai#i 482, 493, 128 P.3d 795, 806 (2006).      The

District Court's COLs are also reviewed de novo.      See id.

IV.   DISCUSSION

           As it did in Sagapolutele-Silva, in this appeal, the
State contends that the District Court erred in suppressing

Skapinok's responses to, inter alia, the medical rule-out

questions because she was not in custody or interrogated before

the SFST had been administered and she was arrested.

           In Sagapolutele-Silva, we examined the Hawai#i Supreme

Court's decisions in State v. Wyatt, 67 Haw. 293, 687 P.2d 544

(1984), and State v. Kaleohano, 99 Hawai#i 370, 56 P.3d 138

(2002), before turning to the question of whether Sagapolutele-

Silva's suppressed statements stemmed from custodial

interrogation.     Sagapolutele-Silva, No. CAAP-XX-XXXXXXX, 2020 WL

1699907, slip op. at 10-12 (Haw. App. April 8, 2020).      In Wyatt,

where the defendant was briefly detained and therefore seized,

but not in custody or coercively questioned, the supreme court

held that Miranda warnings were not required before she was asked

if she had been drinking.    Wyatt, 67 Haw. at 297-301, 687 P.2d at

548-50.   The supreme court further concluded that the SFST that

the defendant performed was not constitutionally infirm because

the test sought only an exhibition of her physical

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characteristics of coordination, rather than communications or

testimony, even though its purpose was to gather evidence of

criminal conduct.   Id. at 302-03, 687 P.2d at 551.     In Kaleohano,

the supreme court noted that if probable cause to arrest or

sustained and coercive questioning were present, then questions

posed by the police could amount to custodial interrogation.

Kaleohano, 99 Hawai#i at 377, 56 P.3d at 145.     The court

concluded that because there was no probable cause to arrest the

defendant, and in light of the fact that the officer did not
subject the defendant to sustained and coercive questioning, the

officer was not required to give the defendant a Miranda warning

prior to asking her if she had been drinking.     Id. at 377-78, 56

P.3d at 145-46.

           Here, however, the State conceded in the District Court

that Skapinok was in custody prior to the suppressed statements.

Thus, this issue is waived on appeal, and we cannot conclude that

the District Court's determination that Skapinok was not free to

leave and legal custody had attached, as set forth in COL 7, is

wrong.   See, e.g., State v. Moses, 102 Hawai#i 449, 456, 77 P.3d

940, 947 (2003) (stating the general rule that if a party fails

to raise an argument at trial, that argument will be deemed to be

waived on appeal); State v. Harada, 98 Hawai#i 18, 30, 41 P.3d

174, 186 (2002) (concluding that the prosecution failed to

properly preserve its exigent circumstances claim and thus waived

it); State v. Anger, 105 Hawai#i 423, 432–33, 98 P.3d 630, 639–40

(2004) (applying the doctrine of judicial estoppel in declining

to address an argument by the prosecution-appellee that was

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inconsistent with the position the prosecution had taken in the

trial court); State v. Adler, 108 Hawai#i 169, 175, 118 P.3d 652,

658 (2005) (defendant judicially estopped from claiming on appeal

he possessed marijuana by prescription when he conceded in motion

to dismiss it cannot be prescribed).    Accordingly, the only issue

that is properly before us is whether the questions resulting in

the suppressed statements constituted interrogation.

           In State v. Kazanas, 138 Hawai#i 23, 38, 375 P.3d 1261,

1276 (2016), the supreme court reaffirmed that "the touchstone in
analyzing whether 'interrogation' has taken place is whether the

police officer 'should have known that his or her words and

actions were reasonably likely to elicit an incriminating

response from the defendant.'"    (Citations and brackets omitted.)

           Similar to the situation in Sagapolutele-Silva, the

investigation for OVUII in this case constituted a separate and

distinct investigation, albeit related to the initial traffic

stop, and it required an independent reasonable suspicion.      See

generally Estabillio, 121 Hawai#i at 273, 218 P.3d at 761.      There

was reasonable suspicion that Skapinok was operating a vehicle

while intoxicated based upon her driving; her red, watery, and

glassy eyes; and the smell of alcohol.     State v. Barrickman, 95

Hawai#i 270, 274-77, 21 P.3d 475, 479-82 (App. 2001) (there was

reasonable suspicion to investigate driving while intoxicated

based on defendant's glassy eyes and smell of alcohol on breath).

However, red and glassy eyes alone and imperfect driving are

insufficient to establish probable cause to arrest a person for

OVUII.   Kaleohano, 99 Hawai#i at 377-78, 56 P.3d at 145-46.

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Thus, the District Court erred to the extent that it concluded

otherwise in COL 7.

           As noted by the supreme court in Kernan v. Tanaka, 75

Haw. 1, 38 n.23, 856 P.2d 1207, 1226 n.23 (1993):
                 Usually, the police administer a field sobriety test
           consisting of specific procedures when a driver has been
           stopped as a DUI suspect. If a driver does not exit
           voluntarily, the police must order him or her out of the
           vehicle even though probable cause to arrest may not have
           been established. Should the suspect fail the test, an
           arrest will ensue. Thus, it is the test failure that
           provides the police with probable cause to arrest. We do
           not require the police to have probable cause to arrest
           prior to the administration of the field sobriety test
           because such a requirement unduly burdens law enforcement.

           "Field sobriety tests are designed and administered to

avoid the shortcomings of casual observation."          Wyatt, 67 Haw. at

302, 687 P.2d at 551 (citation and brackets omitted).            Here,

Officer Meredith did not initially have probable cause to arrest

Skapinok for OVUII based upon noticing she had red, watery, and

glassy eyes, and an odor of alcohol about her.          And, the right

against self-incrimination is not necessarily implicated whenever

a person suspected of criminal activity is compelled in some way

to cooperate in developing evidence which may be used against
her, such as when a driver is asked to participate in a SFST.

Id.   As noted above, the Wyatt court held that since performance

on an SFST was neither communication nor testimony, the trial

court did not err by refusing to suppress the officer's SFST

observations.    Id. at 301-03, 687 P.2d at 550-51.

           In addition, in Pennsylvania v. Muniz, 496 U.S. 582,

603-04 (1990), the United States Supreme Court rejected the

contention that Miranda warnings are required prior to an inquiry

as to whether a defendant understood SFST instructions, because

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the "focused inquires were necessarily 'attendant to' the police

procedure held by the court to be legitimate."     Accordingly,

asking Skapinok whether she understood the instructions to the

SFST did not implicate her right against self-incrimination.

Thus, we conclude that the District Court erred by suppressing

Skapinok's response to whether she would participate in the SFST,

whether she understood the instructions to the SFST, and the

officer's observations of her performance on the SFST.

Therefore, COLs 10, 15, 16, and 18 are wrong.
            However, due to Skapinok being in custody, the medical

rule-out questions, which were asked in relation to the OVUII

investigation here, constituted interrogation warranting Miranda

warnings.   As other courts have observed, the failure to provide

a Miranda warning when an individual is in custody for one crime

will taint an interrogation even if the interrogation relates to

a different crime.   See Mathis v. United States, 391 U.S. 1, 2,

4-5 (1968) (noting that there is "nothing in the Miranda opinion

which calls for a curtailment of the warnings to be given persons

under interrogation by officers based on the reason why the

person is in custody"); see also, e.g., People v. Bejasa, 140

Cal. Rptr. 3d 80, 91 (Cal. Ct. App. 2012); State v. Lawler, No.

L-96-223, 1997 WL 77511, **1-2 (Ohio Ct. App. Feb. 21, 1997);

State v. Lien, No. 32443-5-III, 2016 WL 4267689 (Wash. Ct. App.

Aug. 11, 2016).   Here, Officer Meredith testified that Skapinok

was not free to leave during his encounter with her in connection

with his investigation into OVUII.     In fact, the bodycam footage

confirms that Officer Meredith told Skapinok that she would be

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arrested for OVUII if she did not participate in the SFST.

Skapinok was already in custody at the time that the medical

rule-out questions were posed.

           As stated above, "the touchstone in analyzing whether

interrogation has taken place is whether the police officer

should have known that his [or her] words and actions were

reasonably likely to elicit an incriminating response from the

defendant."     Kazanas, 138 Hawai#i at 38, 375 P.3d at 1276

(citation and internal quotation marks omitted).            Relying upon
Rhode Island v. Innis, 446 U.S. 291 (1980), Kazanas reiterated

that "interrogation consists of any express question - or, absent

an express question, any words or conduct - that the officer

knows or reasonably should know is likely to elicit an

incriminating response."       Id. (citation and internal quotation

marks omitted).     An incriminating response is any response,

either inculpatory or exculpatory.         Innis, 446 U.S. at 301 n.5.

In contrast, a physical inability to articulate words in a clear

manner due to lack of muscular coordination of the tongue and

mouth is not testimonial evidence for purposes of self-

incrimination.     Muniz, 496 U.S. at 590-91.

           In this case, the District Court's FOFs 17 and 18

identified the medical rule-out questions posed to Skapinok as

follows:
           i.     Do you have any physical defects or speech
                  impediments?
           ii.    Are you taking any medications?
           iii.   Are you under the care of a doctor or dentist
                  for anything?
           iv.    Are you under the care of an eye doctor?
           v.     Do you have an artificial or glass eye?
           vi.    Are you epileptic or diabetic?
           vii.   Are you blind in either eye?

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          Based on, inter alia, our analysis in Sagapolutele-

Silva, we conclude that the medical rule-out questions posed to

Skapinok were reasonably likely to elicit an incriminating

response and, therefore, constituted interrogation.             See

Sagapolutele-Silva, No. CAAP-XX-XXXXXXX, 2020 WL 1699907, slip

op. at 17-20 (Haw. App. April 8, 2020).

          Skapinok was in custody.         She had not been given

Miranda warnings.   The medical rule-out questions constituted

interrogation.   Thus, we conclude that her responses to those

questions should have been suppressed and the District Court did

not err in so concluding in COLs 13 and 17.

          Finally, we turn to whether the District Court erred in

COL 19, in which the District Court suppressed Skapinok's

statements while she was still in her vehicle in response to

Officer Meredith's statement that he was not asking her whether

she was drinking.   The subject exchange, as recorded on the

bodycam footage, began as follows:
          OFFICER MEREDITH: So besides speeding I can smell a
          lot of alcohol coming from you.
          THE DEFENDANT:   Me?

          OFFICER MEREDITH:   And you got red, glassy eyes.

          THE DEFENDANT: I --
          OFFICER MEREDITH: Would you like to do a field
          sobriety test?

          THE DEFENDANT: No. I'm -- I just got off work.      I'm
          in my work uniform.
          OFFICER MEREDITH:   Okay.
          THE DEFENDANT:   I swear I haven't been drinking.

          OFFICER MEREDITH: So it is voluntary. Like I just
          explained to you, I'm not gonna force you to do a
          field sobriety test. It's up to you. But if you do
          refuse, I just gotta inform you that you will be

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            placed under arrest under suspicion of Operating a
            Vehicle Under the Influence of an Intoxicant. Okay?
            THE DEFENDANT:   I haven't been drinking.
            OFFICER MEREDITH: Okay. I'm not asking you if you've
            been drinking. I'm telling you what I'm observing.
            I'm asking you if you want to do a test. I did not
            ask you once if you've been drinking. Okay. Do you
            understand?
            THE DEFENDANT:   (No audible response.)
            OFFICER MEREDITH: So do you understand what I'm
            saying? If you refuse my request to do a field –
            standardized field sobriety test, you will be placed
            under arrest.
            THE DEFENDANT:   (Indiscernible.)
            OFFICER MEREDITH: Okay. So again now I gotta offer
            it to you. It's up to you. If you refuse, like I
            said, you will get arrested.

(Emphasis added).

            Generally, informing a defendant of the reason for

being stopped or arrested does not constitute custodial

interrogation likely to elicit an incriminating response.             See,

e.g., United States v. Benton, 996 F.2d 642, 643-44 (3d Cir.

1993); see also, e.g., State v. Ikaika, 67 Haw. 563, 565, 698

P.2d 281, 283 (1985) (spontaneous admissions, made in the absence

of any police questioning, were admissible); cf. Kazanas, 138

Hawai#i at 38, 375 P.3d at 1276 (asking the defendant how his

night was going, under the circumstances of his detainment, was

reasonably likely to elicit his incriminating response and

therefore constituted interrogation).8/          Without more, simply

      8/
            Interrogation does not include "words or actions on the part of
the police [that are] normally attendant to arrest and custody." Innis, 446
U.S. at 301. "[W]hen an officer informs [a suspect] of [the] circumstances"
of his arrest "or explain[s] . . . evidence against him," "this information
may be considered normally attendant to arrest and custody." United States v.
Moreno-Flores, 33 F.3d 1164, 1169 (9th Cir. 1994) (quoting United States v.
Crisco, 725 F.2d 1228, 1232 (9th Cir. 1984)); see also id. ("[I]nterrogation
is not so broad as to capture within Miranda's reach all declaratory
statements by police officers concerning the nature of the charges against the
suspect and the evidence relating to those charges." (alteration in original)
                                                                (continued...)

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informing a person of the reason for his or her arrest does not

constitute interrogation.

            Here, Officer Meredith informed Skapinok that he

stopped her for speeding and that he smelled alcohol and observed

that she had red, glassy eyes.        He asked Skapinok if she would

like to participate in an SFST, and she twice denied she had been

drinking.    Then, Officer Meredith stated, inter alia, that he was

not asking if she had been drinking, but wanted to know if she

would participate in an SFST.       Here, Officer Meredith's subject
statement was an attempt to redirect Skapinok to solely answering

whether or not she would take the SFST, which we conclude

constituted words or actions normally attendant to a permissible

OVUII investigation and, as discussed above, simply inquiring as

to whether a defendant is willing to participate in an SFST is

not interrogation.     We cannot conclude that Officer Meredith

informing Skapinok that he was not asking her if she was drinking

was reasonably likely to elicit an incriminating response and

therefore, it did not constitute interrogation.           Accordingly, we

conclude that the District Court erred in COL 19.




     8/
       (...continued)
(quoting United States v. Payne, 954 F.2d 199, 202 (4th Cir. 1992))." United
States v. Berckmann, 2018 WL 1527824, *14 (D. Haw. Mar. 28, 2018) (Order).


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V.      CONCLUSION

             For these reasons, the June 3, 2019 Judgment is

affirmed in part and vacated in part.        This case is remanded to

the District Court for further proceedings.

             DATED: Honolulu, Hawai'i, June 4, 2020.

On the briefs:
                                          /s/ Lisa M. Ginoza
Brian R. Vincent,                         Chief Judge
Deputy Prosecuting Attorney,
City and County of Honolulu,              /s/ Katherine G. Leonard
for Plaintiff-Appellant.                  Associate Judge
Allen M. Kaneshiro,                       /s/ Keith K. Hiraoka
for Defendant-Appellee.                   Associate Judge




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