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                                                    Electronically Filed
                                                    Intermediate Court of Appeals
                                                    CAAP-XX-XXXXXXX
                                                    30-JUN-2020
                                                    08:04 AM



                             NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                           OF THE STATE OF HAWAI#I


                  STATE OF HAWAI#I, Plaintiff-Appellee,
                                    v.
                 RYAN M. GIUGLIANO, Defendant-Appellant


          APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
                        (CASE NO. 3DTA-17-00652)


                       SUMMARY DISPOSITION ORDER
           (By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)

             Defendant-Appellant Ryan M. Giugliano (Giugliano)
appeals from the Judgment and Notice of Entry of Judgment, filed
on February 28, 2018, in the District Court of the Third Circuit
(District Court).1
             Giugliano was convicted of Operating a Vehicle Under
the Influence of an Intoxicant (OVUII), in violation of Hawaii
Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2017).2



      1
             The Honorable Margaret K. Masunaga presided.
      2
             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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            On appeal, Giugliano contends that the District Court
erred by: (1) denying his Motion to Suppress and (2) admitting
the results of the Horizontal Gaze Nystagmus (HGN) test.
            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 Giugliano's points of error as follows:
            (1) Giugliano contends that the District Court erred in
denying the suppression of his post-seizure verbal statements and
non-verbal communicative responses because he was neither advised
of his prearrest right to remain silent when Hawai#i County
Police Officer Bradley Llanes (Officer Llanes) detained Giugliano
during an investigatory traffic stop, nor was he advised of his
Miranda3 rights prior to being subjected to custodial
interrogation by Officer Llanes.
            Giugliano relies on State v. Tsujimura, 140 Hawai#i
299, 400 P.3d 500 (2017), in arguing that he should have been
advised of his prearrest right to remain silent once he was
stopped and that a failure to do so required suppression of his
verbal statements and non-verbal communications.              In Tsujimura,
the supreme court recognized that the right against
self-incrimination attaches before arrest under article I,
section 10 of the Hawai#i Constitution.           Id. at 310-11, 400 P.3d
at 511-12.     The court further held that "the State may not use as
substantive proof of guilt a defendant's prearrest silence that
occurs at least as of the time of detention, for doing so would


      3
            Miranda v. Arizona, 384 U.S. 436 (1966).

            A critical safeguard [of the privilege against
            self-incrimination] is the Miranda warning: an accused must be
            "warned that he or she had a right to remain silent, that
            anything said could be used against him or her, that he or she
            had a right to the presence of an attorney, and that if he or
            she could not afford an attorney one would be appointed for
            him or her."

State v. Kazanas, 138 Hawai#i 23, 34, 375 P.3d 1261, 1272 (2016) (quoting State
v. Ketchum, 97 Hawai#i 107, 116, 34 P.3d 1006, 1015 (2001)).

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violate the right against compelled self-incrimination under
article I, section 10 of the Hawai#i Constitution."            Id. at 314,
400 P.3d at 515.
            Tsujimura does not stand for the proposition that a
defendant must be informed of his right to remain silent at the
initiation of a traffic stop.        Tsujimura involved the use of a
defendant's prearrest silence as substantive proof of guilt,
rather than using a defendant's prearrest statements and acts as
substantive proof of guilt.       Thus, Tsujimura is distinguishable
and Giugliano's reliance on that case is misplaced.
            Giugliano next contends that his verbal statements,
including his responses to medical rule-out questions, and
non-verbal communicative acts during his participation in the
standardized field sobriety tests (SFSTs) should have been
suppressed because they resulted from custodial interrogation and
he was not first advised of his Miranda rights.
            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. See State
            v. Wilson, 92 Hawai#i 45, 48, 987 P.2d 268, 271 (1999)
            (citations omitted).

State v. Kaleohano, 99 Hawai#i 370, 375, 56 P.3d 138, 143 (2002).
            Where an individual is being subjected to custodial
            interrogation, he may not be asked any questions without his
            first being advised of his right to remain silent, that
            anything he says can and will be used against him, that he
            has the right to have his attorney present, and that if he
            cannot afford counsel, one will be appointed for him prior
            to any interrogation. Miranda v. Arizona, 384 U.S. 436,
            467-474 (1966); State v. Santiago, 53 Haw. 254, 492 P.2d 657
            (1971). "Custodial interrogation" means "questioning
            initiated by law enforcement officers after a person has
            been taken into custody or otherwise deprived of his freedom
            of action in any significant way." [Miranda], 384 U.S. at
            444.

State v. Kalai, 56 Haw. 366, 368, 537 P.2d 8, 11 (1975) (emphasis
omitted).
            "To determine whether 'interrogation' is 'custodial,'
we look to the totality of the circumstances, focusing on 'the

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place and time of the interrogation, the length of the
interrogation, the nature of the questions asked, the conduct of
the police, and any other relevant circumstances.'"              State v. Ah
Loo, 94 Hawai#i 207, 210, 10 P.3d 728, 731 (2000) (brackets
omitted) (quoting State v. Melemai, 64 Haw. 479, 481, 643 P.2d
541, 544 (1982)).      "In this regard, we have acknowledged that 'no
precise line can be drawn' between 'custodial interrogation,' on
the one hand, and 'permissible general on-the-scene questioning,'
on the other."     Id. (quoting State v. Patterson, 59 Haw. 357,
362, 581 P.2d 752, 755-56 (1978)).
            On this appeal of the lower court's denial of a motion
to suppress, we look at both the record of the hearing on the
motion to suppress and the record of the trial.             State v. Vinuya,
96 Hawai#i 472, 481, 32 P.3d 116, 125 (App. 2001).             At the
hearing on the Motion to Suppress, Officer Llanes testified that
he initiated a traffic stop of Giugliano on suspicion of not
wearing a seat belt while operating his vehicle4 in the vicinity
of the Old Airport Beach Park in the County of Hawai#i.               Upon
stopping Giugliano, Officer Llanes informed Giugliano of the
reason he was stopped and then observed Giugliano to have red,
watery, glassy eyes and a strong odor of intoxicants emanating
from him.    Based on those observations, Officer Llanes asked
Giugliano to exit the vehicle and to participate in the SFSTs.
At trial, Officer Llanes additionally stated that, prior to
administering the SFSTs,5 he asked Giugliano medical rule-out




      4
            HRS § 291-11.6, entitled "Mandatory use of seat belts, when,
penalty" provides in relevant part:

            (a) Except as otherwise provided by law, no person shall
            operate a motor vehicle upon any public highway unless the
            person is restrained by a seat belt assembly and all
            passengers in the front or back seat of the motor vehicle are
            restrained by a seat belt assembly or are restrained pursuant
            to section 291-11.5 if under eight years of age.
      5
            Officer Llanes testified at trial that the SFSTs consist of the HGN
test, Walk-and-Turn test, and the One-leg Stand test.

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questions.6    Giugliano responded "no" to all of the questions,
but noted that he normally stutters.           Officer Llanes then
instructed Giugliano on how to do the SFSTs and asked if he
understood the instructions, which Giguliano indicated he did.
Giugliano then exited his vehicle and participated in the SFSTs,
after which he was placed under arrest for OVUII.              The record
indicates that Giugliano was also cited for operating his vehicle
without being restrained by a seat belt assembly, which proceeded
as a separate case.
            Giugliano claims that he was in custody because,
"[c]learly, at the point where Officer Llanes requested that
Giugliano get out of his car, Giguliano was the focus of an OVUII
investigation and he was not free to leave."
            In Ah Loo, the court stated:
            [W]e affirm the principle that, when an officer lawfully
            "seizes" a person in order to conduct an investigative stop,
            the officer is not required to inform that person of his or
            her Miranda rights before posing questions that are
            reasonably designed to confirm or dispel -- as briefly as
            possible and without any coercive connotation by either word
            or conduct -- the officer's reasonable suspicion that
            criminal activity is afoot.

94 Hawai#i at 212, 10 P.3d at 733.          Ah Loo makes clear that a
defendant is not in custody for purposes of Miranda merely
because he or she has been pulled over pursuant to a valid
traffic stop.     Kaleohano, 99 Hawai#i at 376, 56 P.3d at 144.             The
court in Ah Loo stated:
            [A]n individual may very well be "seized," within the
            meaning of article I, section 7 of the Hawai #i Constitution
            (inasmuch as, "given the totality of the circumstances, a
            reasonable person would have believed that he or she was not
            free to leave") and yet not be "in custody," such that
            Miranda warnings are required as a precondition to any
            questioning.

94 Hawai#i at 211, 10 P.3d at 732 (citation omitted).

      6
            Officer Llanes testified at trial that the medical rule-out
questions consisted of asking Giugliano: (1) whether he had any physical defects
or speech impediments; (2) whether he was under the care of a doctor or dentist;
(3) whether he was blind in either eye or had an artificial eye; (4) whether he
was under the care of an eye doctor; (5) whether he was currently taking any
medication; and (6) whether he was epileptic or diabetic.


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           If probable cause to arrest or sustained and coercive
questioning are present, then questions posed by the police could
amount to custodial interrogation.    Kaleohano, 99 Hawai#i at 377,
56 P.3d at 145.
           Unlike cases in which we have held that a defendant was
in custody almost immediately after being stopped because the
police officer had probable cause to arrest the defendant for a
criminal offense, see State v. Sagapolutele-Silva, No.
CAAP-XX-XXXXXXX, 2020 WL 1699907, at *6 (Haw. App. Apr. 8, 2020),
as corrected (June 1, 2020), as amended (June 8, 2020), Giugliano
was stopped by the officer for failing to wear a seat belt, in
violation of HRS § 291–11.6, which is a civil traffic infraction
and not a criminal offense.    See State v. Ribbel, 111 Hawai#i
426, 428, 142 P.3d 290, 292 (2006).    Giugliano was therefore not
in custody at the moment he was pulled over for the traffic stop.
See State v. Kuba, 68 Hawai#i 184, 188, 706 P.2d 1305, 1309
(1985) ("Where . . . the seizure of the defendant is reasonable
to investigate a traffic violation and the investigating police
officer engages in legitimate, straightforward, and noncoercive
questioning necessary to obtain information to issue a traffic
citation, there is no custodial interrogation; no Miranda
warnings are required before the police officer begins asking
questions.").
           Contrary to his assertion, Giugliano was also not in
custody for OVUII at the point where Officer Llanes observed
Giuglano to have red, watery, glassy eyes and an odor of
intoxicants about him, and requested that Giugliano exit the
vehicle.   Giugliano's red, watery, glassy eyes and the strong
odor of intoxicants emanating from him were sufficient to justify
Officer Llanes asking Giugliano to exit the vehicle.      See
Vallesteros, 84 Hawai#i at 302, 933 P.2d at 639 ("[A] police
officer must have at least a reasonable basis of specific
articulable facts to believe a crime has been committed to order
a driver out of a car after a traffic stop" (quoting State v.

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Kim, 68 Haw. 286, 290, 711 P.2d 1291, 1294) (1985)); State v.
Barrickman, 95 Hawai#i 270, 274-77, 21 P.3d 475, 479-82 (App.
2001) (holding that there was reasonable suspicion to investigate
driving while intoxicated based on defendant's glassy eyes and
smell of alcohol on breath).    However, these observations did not
initially amount to probable cause to arrest Giugliano for OVUII.
See Sagapolutele-Silva, No. CAAP-XX-XXXXXXX, 2020 WL 1699907, at
*6 (determining that police did not initially have probable cause
to arrest a defendant for OVUII based upon noticing she had red,
watery, and glassy eyes and an odor of alcohol about her).       As a
result, Giugliano was not in custody at the time Officer Llanes
requested that Giugliano exit his vehicle and proceeded to ask
Giugliano the medical rule-out questions.     Therefore, Miranda
warnings were not required at that point and the District Court
did not err in admitting Giugliano's responses to the medical
rule-out questions.   See Ah Loo, 94 Hawai#i at 211, 10 P.3d at
732; Kuba, 68 Haw. at 184, 706 P.2d at 1306 (holding that Miranda
warnings were not required before investigative questioning
regarding suspicion of alcohol or drug impairment during a valid
traffic stop); State v. Wyatt, 67 Haw. 293, 300-01, 687 P.2d 544,
550 (1984) (holding that, during a valid traffic stop, police
officer was not required to issue Miranda warnings prior to
asking motorist if she had been drinking).
          The District Court also did not err in admitting the
observations of Giugliano's performance on the SFSTs or
Giugliano's responses to being asked to participate in the SFSTs
and to the instructions.   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.      Wyatt, 67
Haw. at 302, 687 P.2d at 551.    In Wyatt, the court stated that
observations of a defendant's performance on the SFSTs was an
exhibition of physical characteristics of coordination.      Id. at
303, 687 P.2d at 551.   Thus, the Wyatt court held that since

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performance on the SFSTs was neither communication nor testimony,
the trial court did not err by refusing to suppress the SFST
observations.    Id. at 301-03, 687 P.2d at 550-51.    Similarly,
except as discussed infra, the District Court did not err in
admitting Officer Llanes's observation of Giugliano's performance
on the SFSTs.    The District Court also did not err in admitting
Giugliano's responses to being asked to participate in the SFSTs
and to the instructions because these questions are necessarily
attendant to a legitimate police procedure and did not amount to
"interrogation."    See Pennsylvania v. Muniz, 496 U.S. 582, 605
(1990) (determining that a police officer's questioning of a
defendant regarding whether the defendant understood the field
sobriety test instructions and wished to submit to the test did
not amount to an "interrogation" because they were "limited and
focused inquiries [that] were necessarily 'attendant to' the
legitimate police procedure, and were not likely to be perceived
as calling for any incriminating response." (citation omitted)).
            (2) Giugliano claims that the District Court abused its
discretion by admitting the result of the HGN test because it
lacked proper foundation and could not be used as substantive
evidence of impairment.    Giugliano further asserts that the error
was not harmless.
            In State v. Ito, this court held: "Before HGN test
results can be admitted into evidence in a particular case, . . .
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."          90
Hawai#i 225, 244, 978 P.2d 191, 210 (App. 1999) (citations
omitted).    We further concluded that the evidence presented at
the trial in that case failed to demonstrate that the officer was
duly qualified to conduct the HGN test and grade the test results
because, inter alia, it was not clear whether a standard training
program that the officer received met the requirements of the
National Highway Traffic Safety Administration and whether the

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officer received periodic retraining to refresh himself on his
HGN test administration skills.    Id.
          In this case, Officer Keith Nacis (Officer Nacis)
testified that the National Highway Transportation Safety
Administration, and not the National Highway Traffic Safety
Administration, provided him with a manual which he used to train
Officer Llanes.   Even if Officer Nacis's misidentification of the
entity is excused, there was no evidence that the training
Officer Llanes received met the National Highway Traffic Safety
Administration (NHTSA) requirements.       There was no evidence as to
what the manual stated regarding training requirements and
whether Officer Llanes met those requirements.       Officer Llanes
stated that he was provided a manual during training but could
not recall if it was from the NHTSA.       Officer Nacis also stated
that he did not instruct officers during training to check
themselves on a monthly basis to make sure they can estimate a 45
degree angle on the HGN test.    Officer Llanes's testimony did not
indicate that he engaged in periodic retraining to refresh
himself on his HGN test administration skills.       Thus, there was
insufficient evidence to demonstrate that Officer Llanes was duly
qualified to administer the HGN test and grade the results.
Because there was insufficient foundational evidence that Officer
Llanes was qualified to administer and grade the test results, we
need not address whether he properly performed the HGN test in
the instant case.   Therefore, the District Court erred by
admitting the results of the HGN test.       Based on our
determination that the District Court erred in the admission of
this evidence, it is unnecessary to address Giugliano's
contention that the results were inadmissible outside of the
context of probable cause determinations.
          Nonetheless, the erroneous admission of the HGN test
results was harmless because there was a wealth of overwhelming
and compelling evidence tending to show Giugliano was guilty of
OVUII beyond a reasonable doubt.       See State v. Mitchell, 94

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Hawai#i 388, 400, 15 P.3d 314, 326 (App. 2000).
          At trial, Officer Llanes testified as a witness with
specialized training to administer the other SFSTs and from
personal experience.   Giugliano does not contend that there was a
lack of foundation regarding Officer Llanes's testimony
pertaining to his observations of the other SFSTs.      See Hawai#i
Rules of Appellate Procedure (HRAP) Rule 28(b)(4) (2016) ("Points
[of error] not presented [in the opening brief] in accordance
with this section will be disregarded, except that the appellate
court, at its option, may notice a plain error not presented.");
HRAP Rule 28(b)(7) (2016) ("Points not argued [in the opening
brief] may be deemed waived.").    Therefore, Officer Llanes could
testify about his observations of Giugliano's performance on the
SFSTs, other than the HGN test, and give an opinion, based on
such observations, whether Giugliano was intoxicated.      See State
v. Ferrer, 95 Hawai#i 409, 429, 23 P.3d 744, 764 (App. 2001)
("[I]t is permissible for a police officer to testify as a lay
witness about his or her observations of a defendant's
performance on various [S]FSTs and to give an opinion, based on
such observations, that the defendant was intoxicated.      However,
unless proper foundation is laid, it is improper for a police
officer to testify that in his or her opinion, a defendant
'failed' or 'passed' a [S]FST." (citing State v. Nishi, 9 Haw.
App. 516, 852 P.2d 476 (1993) and State v. Toyomura, 80 Hawai#i
8, 904 P.2d 893 (1995)).
          At trial, Officer Llanes testified that Giugliano's
behavior was erratic, switching from compliant and calm to
argumentative and angry, and that he was repeating himself.
Officer Llanes also observed Giugliano to have red, watery,
glassy eyes, and a strong odor of an intoxicating beverage
emanating from his breath and person.     During the Walk-and-Turn
test, Giugliano stepped out of the instructional position, failed
to keep his balance, missed several heel-to-toe steps during the
initial nine steps, took ten steps instead of nine steps, did not

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turn as instructed, raised both arms almost parallel to the
ground, and stopped walking, all contrary to the instructions.
During the One-leg Stand test, Giugliano raised his arms
approximately two feet from his waist, put his foot down and
asked if the test was done after counting to ten, and put his
foot back up and began counting from one when he was informed the
test was not done, all contrary to the instructions.        Officer
Llanes testified that based on his training and personal
experience, these were indicia or clues of intoxication and that
Giugliano was unable to operate his vehicle in a safe manner.          On
this record, there was substantial evidence for a trier of fact
to conclude that Giugliano was guilty beyond a reasonable doubt
of OVUII.    State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d
322, 330-31 (2007).
            Therefore, IT IS HEREBY ORDERED that the Judgment and
Notice of Entry of Judgment, filed on February 28, 2018, in the
District Court of the Third Circuit is affirmed.
            DATED:   Honolulu, Hawai#i, June 30, 2020.


On the briefs:
                                       /s/ Lisa M. Ginoza
Kori A. Weinberger,                    Chief Judge
Deputy Prosecuting Attorney,
County of Hawai#i,
for Plaintiff-Appellee.                /s/ Derrick H. M. Chan
                                       Associate Judge
Saisamoa F. Grey Price,
Deputy Public Defender,
for Defendant-Appellant.               /s/ Keith K. Hiraoka
                                       Associate Judge




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