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                                                     Electronically Filed
                                                     Intermediate Court of Appeals
                                                     CAAP-XX-XXXXXXX
                                                     29-JUN-2020
                                                     07:50 AM




                           NO. CAAP-XX-XXXXXXX

                 IN THE INTERMEDIATE COURT OF APPEALS

                         OF THE STATE OF HAWAI#I


               STATE OF HAWAI#I, Plaintiff-Appellee, v.
                VIOLET A.C. SEBAY, Defendant-Appellant


         APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                          (KÂNE#OHE DIVISION)
                       (CASE NO. 1DTA-16-04016)


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


            Defendant-Appellant Violet A.C. Sebay (Sebay) appeals

from an Amended Notice of Entry of Judgment and/or Order and

Plea/Judgment entered on January 16, 2018 (Judgment), by the

District Court of the First Circuit, Kâne#ohe Division (District

Court).1   The District Court convicted Sebay of one count of

Operating a Vehicle Under the Influence of an Intoxicant (OVUII),




     1
         The Honorable Trish K. Morikawa presided.
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in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1)

(Supp. 2018).2

            Sebay raises two points of error on appeal, contending

that:    (1) the District Court erred in denying her motion to

suppress and to exclude all evidence adduced after the

warrantless stop of her car, including all statements, responses

and actions, including but not limited to her performance of a

standardized field sobriety test (SFST); and (2) there was

insufficient evidence to support Sebay's conviction for OVUII.

            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 Sebay's points of error as follows:

            (1)    Primarily citing State v. Kim, 68 Haw. 286, 711

P.2d 1291 (1985), Sebay contends that the Honolulu Police

Department's (HPD) officer (Officer Wong) that initiated a

traffic stop of the vehicle that Sebay was driving did not have

at least a reasonable basis of specific articulable facts to

believe a crime had been committed before ordering Sebay out of

the vehicle.      Thus, Sebay argues, she was improperly detained and



     2
         HRS § 291E-61(a)(1) provides:

            (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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ordered out of the vehicle.          In addition, Sebay argues that she

was subjected to custodial interrogation without being advised of

her Miranda rights.3        For these reasons, Sebay argues that all

verbal statements and "non-verbal statements" made during the

SFST should have been suppressed.            These arguments are without

merit.

               Officer Wong's testimony included, inter alia, that on

October 22, 2016, at approximately 1:52 a.m., he was on duty, in

his vehicle, in the parking lot of Kalapawai Café, when he saw a

woman (later identified as Sebay) and another woman (Passenger)

laughing and talking loudly as they jaywalked from an area that

included Kailua Pub to a vehicle parked in the Kalapawai Café

lot.       Sebay got into the driver's seat and Passenger got into the

front passenger's seat of the vehicle.             Sebay started the car,

drove past two stop signs without stopping, and continued on.

               Officer Wong followed Sebay as she drove down Kailua

Road toward Castle Hospital (Castle).            Sebay's vehicle weaved in

a "snake-like manner," back and forth in the left lane, for about

two miles.       Then, her passenger-side tires crossed about a foot

over the white, skip-dash lane marking, into the right lane, for

about twenty-five feet, before she veered back into the left

lane.

               Officer Wong engaged his lights and siren to initiate a

traffic stop on the shoulder of the road, before the

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

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intersection.   Although Sebay had time to pull over onto the

shoulder or at a bus stop before crossing the intersection, she

drove through the intersection and parked halfway onto an island.

Officer Wong's vehicle was blocking a lane of the highway, so he

asked her to park on Auloa Road instead.       Officer Wong testified

that although Sebay took an appropriate amount of time to pull

over, she did so in an unsafe area.       As directed by the officer,

Sebay drove to Auloa Road and parked.

            Officer Wong and a second officer (Corporal Krekel) who

had been parked next to Officer Wong approached Sebay's vehicle.

When Officer Wong asked Sebay for her license, registration, and

insurance, Passenger stated that Sebay had been raped and they

were taking her to the hospital.       Officer Wong asked why they

bypassed Castle and, as they conversed, noticed the smell of

alcohol coming from Sebay, as well as her red, glassy and watery

eyes.    After what Officer Wong described as a short conversation,

Officer Wong asked Sebay if she would like to participate in the

SFST, and she agreed to do so.    Officer Wong testified that, at

that point, he did not have probable cause to arrest Sebay for

OVUII.

            Corporal Krekel also testified that, when Officer Wong

made the traffic stop, there was no probable cause to arrest her.

When Corporal Krekel spoke to Sebay, he also noticed that her

eyes were red and watery, and that her breath smelled of alcohol.

He asked her to step out of the vehicle.       Sebay complied, and


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Corporal Krekel observed her sway about one and one-half inches

in a circular motion.   Although he suspected that she may have

been impaired, he testified that he would not have arrested her

without first conducting the SFST.    After Corporal Krekel asked

Sebay certain medical rule-out questions, he administered the

SFST, and Sebay was then arrested for OVUII.

          This case is distinguishable from Kim because in Kim,

the officer asked Kim to step out of his vehicle based only on an

observation of a traffic infraction, i.e., failing to stop or

signal before turning right on a red light.     68 Haw. at 288, 711

P.2d at 1293.   Here, Sebay was not asked to exit the vehicle

until after the HPD officers smelled alcohol on her breath and

noticed her red, watery and glassy eyes.     At that point, there

was a reasonable suspicion that Sebay was operating a vehicle

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

glassy eyes; and the smell of alcohol on her breath.      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.    State v. Kaleohano, 99 Hawai#i 370,

377-78, 56 P.3d 138, 145-46 (2002).

          Sebay argues that she was subjected to a custodial

interrogation, without being administered a Miranda warning,


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because at least two police officers interacted with her in a

sustained and coercive manner, inquisitively asking about her

destination, late at night in an isolated area with little

lighting.

            Thus, we must examine whether, under the totality of

the circumstances, Sebay's statements stemmed from custodial

interrogation.    Sebay was not in custody merely because she was

seized in connection with a traffic stop.     State v. Ah Loo, 94

Hawai#i 207, 211, 10 P.3d 728, 732 (2000).     To determine whether

an interrogation is custodial, the totality of the circumstances

analysis focuses on "the 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[.]"    Id. at 210, 10 P.3d at 731 (citing State v.

Melemai, 64 Haw. 479, 481, 643 P.2d 541, 544 (1982)); see also

State v. Kazanas, 138 Hawai#i 23, 35, 375 P.3d 1261, 1273 (2016)

(reiterating same).    In this regard, the supreme court has

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.      Ah Loo, 94

Hawai#i at 210, 10 P.3d at 731 (citing State v. Patterson, 59

Haw. 357, 362, 581 P.2d 752, 755-56 (1978)) (brackets omitted).

Custodial interrogation is comprised of two components,

"interrogation" and "custody."    Kazanas, 138 Hawai#i at 35, 375

P.3d at 1273.    The totality of the circumstances test applies to


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custodial interrogation, "in the sense that the defendant is

deprived of his or her freedom of action in any significant way."

Id.   In contrast, "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.'"    Id. at 38, 375 P.3d at 1276 (brackets and citation

omitted).

            In State v. Wyatt, 67 Haw. 293, 687 P.2d 544 (1984),

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

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


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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.

           In this case, prior to the administration of the SFST,

there was no probable cause to arrest Sebay for OVUII.      In

addition, the record in this case does not support Sebay's

assertion that she was subjected to sustained and coercive

questioning and therefore, the District Court erred in concluding

that she was not in custody prior to the SFST.     Under the

totality of circumstances, we cannot conclude that Sebay was in

custody when she was asked whether she would agree to participate

in an SFST.   See id. at 377, 56 P.3d at 145.

           "Field sobriety tests are designed and administered to

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

302, 687 P.2d at 551 (brackets and citations omitted).      As

discussed above, Officer Wong did not initially have probable

cause to arrest Sebay for OVUII based upon noticing that she had

red, glassy eyes, and an odor of alcohol on her breath.      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 an

SFST.   Id.   As we discussed in State v. Sagapolutele-Silva, CAAP-

XX-XXXXXXX, 2020 WL 1699907 (Haw. App. Apr. 8, 2020), the Wyatt


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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.

Sagapolutele-Silva, 2020 WL 1699907 at *7 (citing Wyatt, 67 Haw.

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

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

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

asking Sebay whether she understood the instructions to the SFST

did not implicate her right against self-incrimination.      In

Sagapolutele-Silva, we held that the defendant was already in

custody, and thus the medical rule-out questions constituted a

custodial interrogation because they were likely to elicit an

incriminating response.   Sagapolutele-Silva, 2020 WL 1699907 at

*7-8.   Here, however, Sebay was not in custody when she was asked

medical rule-out questions and therefore was not thereby

subjected to custodial interrogation.     Sebay's performance on an

SFST was neither communication nor testimony, and the trial court

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

observations.   See id. at *7 (citing Wyatt, 67 Haw. at 301-03,

687 P.2d at 550-51).   Accordingly, we conclude that the District

Court did not err in denying Sebay's motion to suppress.


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          (2)    Sebay's argument that the District Court lacked

sufficient evidence to support her conviction for OVUII is based

on her argument that the SFST results should have been

suppressed.    In other words, Sebay argues that if the SFST

results had been properly suppressed, the District Court would

have lacked substantial evidence to convict her.      As we have

concluded that the District Court did not err in denying Sebay's

motion to suppress, we conclude that this argument is without

merit.

          Sebay further argues that even if the evidence was

properly admitted it would not constitute substantial evidence to

support the OVUII conviction in this case.     The evidence adduced

at trial must be considered in the strongest light for the

prosecution.    See State v. Matavale, 115 Hawai#i 149, 157-58, 166

P.3d 322, 330-31 (2007).    Based on the testimony of the HPD

officers in this case, specifically including her deviations in

performance from the HPD officer's instructions on the SFST, we

conclude that there was substantial evidence supporting the

District Court's conclusion that Sebay operated a vehicle

"[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 § 291E-61(a)(1).




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          For these reasons, the District Court's January 16,

2018 Judgment is affirmed.

          DATED: Honolulu, Hawai#i, June 29, 2020.

On the briefs:
                                       /s/ Katherine G. Leonard
Joanne B. Badua,                       Presiding Judge
Deputy Public Defender,
for Defendant-Appellant.               /s/ Keith K. Hiraoka
                                       Associate Judge
Brian R. Vincent,
Deputy Prosecuting Attorney,           /s/ Clyde J. Wadsworth
City and County of Honolulu,           Associate Judge
for Plaintiff-Appellee.




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