  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   17-JUN-2020
                                                   07:44 AM



                            NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I


             WESTON W. GARCIA, Petitioner-Appellant,
                                v.
     ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI#I,
                       Respondent-Appellee

          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                            HONOLULU DIVISION
                        (CASE NO. 1DAA-17-00009)


                       SUMMARY DISPOSITION ORDER
      (By:    Leonard, Presiding Judge, Chan and Hiraoka, JJ.)

             Petitioner-Appellant Weston W. Garcia (Garcia) appeals
from a Judgment on Appeal, entered on March 6, 2018, by the
District Court of the First Circuit, Honolulu Division (district
court)1    The Judgment affirms Garcia's driver's license
revocation by Respondent-Appellee Administrative Director of the
Courts, State of Hawai#i (Director).2


      1
             The Honorable James S. Kawashima presided.
      2
             Hawaii Revised Statutes (HRS) § 291E–1 (2007) provides:
"'Director' means the administrative director of the courts or any other
person within the judiciary appointed by the director to conduct
administrative reviews or hearings or carry out other functions relating to
administrative revocation under part III [entitled 'Administrative Revocation
Process']." By virtue of this provision, the hearing officer exercises the
powers of the administrative director of the courts in conducting
administrative review hearings. See Soderlund v. Admin. Dir. of the Courts,
96 Hawai#i 114, 115 n.1, 26 P.3d 1214, 1215 n.1 (2001). Hereinafter,
"Director" is used interchangeably to designate the Director and the hearing
officer.
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             Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Garcia's points of error as follows.
A.     Garcia's due process rights were not violated when the
       Director stated that Garcia was subject to a one-year
       license suspension for Operating a Vehicle While Under the
       Influence of an Intoxicant (OVUII).

             Garcia argues that the district court erred in
affirming the Director's decision to sustain his two-year
driver's license revocation.         Specifically, Garcia argues that
the Director deprived him of his due process rights by revoking
his license for two years despite telling Garcia "in no uncertain
terms" at the administrative revocation hearing that "he would
lose his license for one year, and then only as a suspension."
Related to this argument is Garcia's contention that, in the
district court's March 6, 2018 Decision and Order Affirming
Administrative Revocation and Dismissing Appeal (Decision and
Order), Finding of Fact (FOF) 7 is clearly erroneous, and
Conclusions of Law (COLs) 3-5 are wrong.
             At the administrative revocation hearing, Garcia's
counsel stated that Garcia did not contest his OVUII offense, but
contested his refusal to submit to a test for blood alcohol
concentration (BAC) on the basis that his refusal was not knowing
and intelligent.         The Director engaged Garcia in the following
colloquy, in relevant part:
                    Q. Okay. It means that you're not contesting the
             DUI.   Do you understand that?

                    A.   Yes.

                    . . . .

                   Q. Okay. And, you understand that A) Driving under
             the Influence here requires a one year's suspension?

                    A.   Okay.

                   Q. And, you understand that by waiving that, your
             license will be suspended for one year?



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                  A.     Yes.

                  . . . .

                  Q. And, the only thing you're contesting today then
            is the refusal of the -- the blood or breath test?

                  A.     Yes.

            It is undisputed that Garcia had no prior alcohol
enforcement contact and, thus, was subject to a one-year driver's
license revocation for the OVUII alone or a two-year license
revocation for having been arrested of OVUII and refusing to
submit to a BAC test.           See HRS § 291E-41(b)(1) and (c) (Supp.
2018).    The Director's colloquy addressed Garcia's waiver of any
challenge to his OVUII offense, for which Garcia was subject to a
one-year driver's license revocation.             The colloquy did not
concern the penalty for Garcia's refusal to submit to a BAC test.
Although the Director erred by referring to a license
"suspension" rather than a revocation, the error was harmless
where Garcia was notified by the Notice of Administrative
Revocation form and the HPD-396B1-3 form ("Sanctions for Use of
Intoxicants While Operating a Vehicle & Implied Consent for
Testing") that refusing a blood or breath test would subject him
to a two-year license revocation.3

      3
            The Notice of Administrative Revocation, which was served on
Garcia, provides, in relevant part:

 Offense Means Alcohol           You Took a Breath or    You Refused to be Tested
 Enforcement Contact              Blood Test And, If
                                Applicable, a Blood or
                                      Urine Test
 First Offense Within                  ONE YEAR                 TWO YEARS
 Five Years


            The HPD-396B1-3 form, which was read to Garcia, provides, in
relevant part:

            7. REFUSED     The administrative revocation of driver's
                           license consequences for taking or refusing to
                           take a test are as follows:

                  a. REFUSED      If you refuse to take any tests and your
                                  record shows no prior alcohol . . .

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             The district court did not wrongly conclude that when
the Director referred to a one-year suspension of Garcia's
driver's license, the Director did not exceed constitutional or
statutory authority, erroneously interpret the law, act in an
arbitrary or capricious manner, commit an abuse of discretion, or
make a determination unsupported by the evidence in the record.
See HRS § 291E-40(c) (2007).
             FOF 7 is not clearly erroneous and COLs 3-5 are not
wrong.
B.     Garcia fails to show that he preserved for appeal the issue
       of whether the Director erroneously concluded that Officer
       McKee was not required to ensure Garcia understood the
       implied consent law.

             After Garcia was arrested, Officer McKee read Garcia
the HPD-396K and HPD-396B1-4 forms (collectively, implied consent
form) informing Garcia of the implied consent law, including the
sanctions for refusing a BAC test.        At the administrative
revocation hearing, Garcia testified that when Officer McKee read
the implied consent form, Garcia did not understand the
consequence for refusing a BAC test because, among other things,
the officer failed to answer his questions about language in the
implied consent form and the BAC testing procedure.           The Director
concluded that Garcia refused a BAC test after being lawfully
informed of the consequences.
             Garcia argues the district court erred in affirming the
Director's decision because the Director "refused to consider if
Garcia actually understood the implied consent law read to him."
Garcia asserts that the Director apparently concluded that there


                             enforcement contact during the five years
                             preceding the date the notice of
                             administrative revocation was issued, your
                             license and privilege to operate a vehicle
                             will be revoked for a period of two years.

                             However, if you choose to take a test and
                             fail it, your license and privilege to
                             operate a vehicle will be revoked for one
                             year.

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was no requirement that a driver understand the implied consent
law, and all that was required was that a police officer read the
driver the implied consent form.       The Director argues that Garcia
waived this issue by not arguing it before the district court.
          In his December 21, 2017 Petition for Judicial Review
(Petition), Garcia asserted that "[t]he [Director] committed an
abuse of discretion by assuming [Garcia] made a knowing and
intentional 'Refusal' after testimony clearly demonstrated that
[Garcia] made multiple requests for further explanation of what
was being read because he did not understand."      However, Garcia
did not argue this point in his Memorandum in Support of Petition
for Judicial Review (Memo in Support of Petition), separately
filed on January 24, 2018.    There, for the first time, he raised
his argument regarding the district court's "one-year suspension"
remark, as we discussed in part A.      In its Decision and Order,
the district court addressed only the argument in the Memo in
Support of Petition and not any of the points raised in the
Petition itself.
          Garcia has the burden to provide a record adequate to
address the issues on appeal.    See Hawai#i Rules of Appellate
Procedure Rule 11(a); Bettencourt v. Bettencourt, 80 Hawai#i 225,
230, 909 P.2d 553, 558 (1995).    The district court did not make
any finding or conclusion regarding this issue in its Decision
and Order, nor is there a transcript of the hearing on the
Petition included in the record on appeal.      There is before us no
evidence showing whether Garcia preserved this issue by actually
raising it to the district court during his appeal hearing.
Hence, there is an insufficient basis in the record before us to
address this contention.




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          Therefore, IT IS HEREBY ORDERED that the Judgment on
Appeal, entered on March 6, 2018, by the District Court of the
First Circuit, Honolulu Division, is affirmed.
          DATED:   Honolulu, Hawai#i, June 17, 2020.


On the briefs:
                                      /s/ Katherine G. Leonard
Earle A. Partington,                  Presiding Judge
and R. Patrick McPherson,
for Petitioner-Appellant.
                                      /s/ Derrick H. M. Chan
Dawn E. Takeuchi-Apuna,               Associate Judge
Deputy Attorney General,
for Respondent-Appellee.
                                      /s/ Keith K. Hiraoka
                                      Associate Judge




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