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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-14-0001302
                                                              31-MAY-2017
                                                              09:07 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                         LESTER S. TSUJIMURA,
                   Petitioner/Defendant-Appellant.


                            SCWC-14-0001302

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-14-0001302; CASE NO. 1DTA-14-00512)

                              MAY 31, 2017

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

                OPINION OF THE COURT BY POLLACK, J.

          It has been settled for decades that the right to

remain silent is a fundamental component of the right against

compelled self-incrimination guaranteed by article I, section 10

of the Hawaii Constitution.      What has been subject to

disagreement among several jurisdictions is the point in time at
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which the right to remain silent attaches.          In 2008, this court,

in State v. Mainaaupo, 117 Hawaii 235, 178 P.3d 1 (2008), held

that the right to remain silent attaches at least as of the time

that a person is arrested.       In this case, the primary question

that we resolve is the one that the Mainaaupo court left open:

whether the right to remain silent attaches prearrest and, if

so, in what manner and to what extent may prearrest silence be

utilized by the State in a criminal trial.1

                  I. FACTS AND PROCEDURAL BACKGROUND

                                A. Pretrial

           On February 7, 2014, Lester Tsujimura was charged by

complaint with Operating a Vehicle Under the Influence of an

Intoxicant (OVUII), in violation of Hawaii Revised Statutes

(HRS) § 291E-61(a)(1) and/or (a)(4) (2007 & Supp. 2012).2


     1
            The secondary issues that we also explore are the statutory
meaning of “alcohol” within HRS § 291E-1 and the sufficiency of the complaint
in light of that statutory meaning.
     2
           The complaint charged as follows:

           On or about the 15th day of January 2014, in the City and
           County of Honolulu, State of Hawaii, LESTER S. TSUJIMURA
           did intentionally, knowingly or recklessly operate or
           assume actual physical control of a vehicle upon a public
           way, street, road, or highway while 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; and/or did operate or assume actual physical
           control of a vehicle upon a public way, street, road, or
           highway with .08 or more grams of alcohol per one hundred
           milliliters or cubic centimeters of blood, thereby
           committing the offense of Operating a Vehicle Under the
           Influence of an Intoxicant, in violation of 291E-61(a)(1)
           and/or (a)(4) of the Hawaii Revised Statutes.




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Tsujimura moved to dismiss the complaint for failure to state an

offense, arguing that the complaint was insufficient for failing

to define the term “alcohol” and thus did not sufficiently

apprise him of what he must be prepared to meet at trial.3

            At the hearing on the motion,4 Tsujimura argued that

the statutory definition of alcohol includes only alcohol that

was produced through distillation, and, as such, the definition

must be included in the complaint.         The State maintained that

the motion to dismiss should be dismissed as untimely.             On the

merits, the State contended that the definition of “alcohol”

also includes ethyl alcohol regardless of origin and that a

person of common understanding would understand what “alcohol”

means within the OVUII statutory scheme.          In reply to the

State’s timeliness argument, Tsujimura argued that the motion to

dismiss for failure to state an offense is jurisdictional and

may be raised at any time.

            The District Court of the First Circuit (district

court) dismissed the motion to dismiss as untimely.

Alternatively, the court determined that the statutory


     3
            Tsujimura also filed a motion to suppress the results of any
device that measured his blood alcohol content, evidence gathered post-arrest
before he was given Miranda warnings, and all statements he made in violation
of his constitutional rights. At the hearing, the State indicated that it
was proceeding only on the HRS § 291E-61(a)(1) charge, in response to which
Tsujimura withdrew his motion to suppress.
     4
            The motion and trial proceedings in this case were presided over
by the Honorable Paul B.K. Wong.



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definition of alcohol is not restricted to alcohol derived from

distillation and that a person of common understanding would

understand what alcohol means even if the complaint does not set

forth its statutory meaning.      The district court reasoned that

even though the plain language of the statutory definition of

alcohol appears to include only alcohol produced by

distillation, the court would “ignore the plain reading . . . to

avoid an absurd result” in which only persons impaired by hard

liquor could be prosecuted for OVUII.

                                 B. Trial

          At trial, Officer Thomas Billins of the Honolulu

Police Department testified that, on January 15, 2014, at

approximately 12:05 a.m., he saw Tsujimura driving a white SUV

on the Moanalua Freeway just past the Ala Kapuna overpass.

According to Officer Billins, Tsujimura entered the shoulder

lane several times, “at times straddling the . . . right-most

lane and the right shoulder.”

          Officer Billins turned on his light and sirens to

notify Tsujimura that he was being stopped, but Tsujimura was

not responding, so Officer Billins used the loudspeaker system

in his police car to request Tsujimura to pull over.           After

Tsujimura stopped, Officer Billins approached to inform him of

the reason he was stopped and requested his driver’s license,

registration, and insurance information.         Tsujimura immediately


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produced his driver’s license, but he had difficulty producing

his registration and insurance information and had to fumble

through a stack of documents.

           Officer Billins testified that Tsujimura had a very

flush red face, his speech was slurred, and he had red and

watery eyes.    Officer Billins added that he smelled an odor of

alcoholic beverage emitting from Tsujimura’s breath or from

inside the vehicle cabin.       The officer related that he requested

that Tsujimura participate in standardized field sobriety tests

(FSTs), to which Tsujimura agreed.         When asked whether he

noticed Tsujimura having had any difficulty exiting his vehicle,

Officer Billins stated that he did not “see him limping or

anything like that,” that he got out of his vehicle normally,

and that he did not “fall down or anything.”           Before performing

the FSTs, Tsujimura told Officer Billins that he had an old

injury to his left knee, “[s]omething about his ACL and it was a

bad knee,” and that he was taking medication for his high blood

pressure and diabetes.5

           Officer Billins testified that, while he was

conducting the horizontal gaze nystagmus test, he observed that

Tsujimura’s face was flushed and red and that he had a slight

      5
            Prior to administering the FSTs, Officer Billins asked Tsujimura
six questions: “If [he is] diabetic or epileptic, if [he is] under the care
of a doctor or physician, if [he has] an artificial or glass eye, or if [he
has] any speech impediments.”




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sway from left to right.       Over the objection of the defense,

Officer Billins testified as to Tsujimura’s performance on the

walk-and-turn test.6      Officer Billins stated that Tsujimura broke

his heel-to-toe stance twice, stepped off the line five times,

failed to walk in a heel-to-toe fashion on all steps, failed to

keep his hands six inches or less from his side, stumbled while

turning, and had to raise his arm above shoulder level for

balance, all of which did not comply with Officer Billins’

instructions and demonstration of the walk-and-turn test.              When

asked about Tsujimura’s performance of the one-leg stand,

Officer Billins stated that Tsujimura was unable to keep his

foot six inches above the ground, put his foot down on several

occasions, did not raise his foot off the ground in the first

ten seconds of the test, was unable to count after several

prompts to begin counting, was unable to maintain his hands down

at his side, and did not follow instructions.7


     6
            The objection was based on the fact that even though the district
court initially determined that there was insufficient foundation to allow
Officer Billins to testify regarding the result of the FSTs, the State
essentially “back-doored” testimony as to whether Tsujimura passed or failed
the walk-and-turn test because Officer Billins was asked about the clues he
was looking for and the instructions he gave based on his training.
Tsujimura interjected a similar objection to Officer Billins’ testimony as to
the results of the one-leg stand. In light of our disposition in this case,
we do not address these foundation challenges that were raised on appeal and
certiorari.
      7
            Officer Billins testified that when he had been around persons
who had consumed alcohol, he had observed that they tend to have “bloodshot
eyes or they have difficulty walking or standing still in an upright manner,”
they “sometimes pass out,” “have emotional issues,” “go from being happy to
sad,” stumble around, or have “difficulty grabbing things or even walking.”
                                                             (continued . . .)


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             Officer Billins also testified that, having been

apprised of Tsujimura’s injury to his left knee, he suggested,

during the one-leg stand, that “if [Tsujimura] were to choose a

leg, it may be wise to lift his injured leg because he would

have to put weight on the leg that he’s standing on.”             Officer

Billins added that Tsujimura raised his left leg during the one-

leg stand.

             On cross-examination, Officer Billins stated that he

followed Tsujimura’s vehicle for about two miles before

Tsujimura finally pulled over.        The officer testified that

Tsujimura was not changing lanes, was not going over the speed

limit, was not slowing down or speeding up, did not follow

vehicles too closely, and did not make any inconsistent signals.

Officer Billins related that it took Tsujimura only eight

seconds to pull over from the time he turned on his sirens and

lights.   Officer Billins noted that out of the 24 National

Highway Traffic Safety Administration (NHTSA) visual detection

clues, Tsujimura exhibited only one--trouble maintaining lane

position.8    Officer Billins testified that Tsujimura did not



(continued . . . )
On cross-examination, Officer Billins indicated that he did not see Tsujimura
lose consciousness, exhibit emotional issues, go from being happy to being
sad, laugh or cry inappropriately, stumble, grab something to keep himself
upright, or walk into anything.

      8     Officer Billins testified on redirect examination that the
factors listed in the NHTSA manual are not dispositive of intoxication and
                                                             (continued . . .)


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repeat questions or comments, lean on the vehicle, or provide

incorrect information or change his answers.           Officer Billins

indicated that red, watery eyes could be caused by a number of

factors other than alcohol impairment, such as fatigue and long

days at work.     Officer Billins also expressed that, based on his

training and experience and the NHTSA, odor of alcohol is a poor

indicator of a person’s level of impairment and has no bearing

on the amount and nature of the alcohol that the person

consumed.

            Tsujimura’s counsel asked Officer Billins about his

testimony on direct examination regarding Tsujimura’s injury.

According to Officer Billins, Tsujimura stated that he had an

injury on the left leg or left knee and a torn ACL on an

unspecified leg.     Officer Billins said that, when he recommended

that Tsujimura raise his left leg for the one-leg stand, he was

not aware “whether raising a leg puts more physical strain on

your ACL than keeping it planted” and “whether [Tsujimura’s]

knee injury or ACL injury affected his ability to perform the”

one-leg stand and walk-and-turn.

            On redirect examination, the prosecutor asked Officer

Billins whether Tsujimura, while exiting his car, explained that

he could not get out of the car due to an ACL injury.             The

(continued . . . )
that it is necessary to evaluate their totality and the circumstances under
which they arose instead of relying on one single clue.



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relevant exchange between the prosecutor and Officer Billins was

as follows:

          [Prosecutor:] . . . You testified that when the defendant
          left the car he didn’t have any difficulty exiting the car.

          [Officer Billins:] Yes.

          [Prosecutor:] So did the defendant at that time explain to
          you he couldn’t get out of the car because of an ACL
          injury?

          [Defense Counsel:] Objection, Your Honor.     It comments on
          the defendant’s right to remain silent.

          [The Court:] It’s overruled.   Let’s see if the statement
          comes out.

          [Prosecutor:] Do you recall if the defendant indicated to
          you he would have difficulty exiting the car because of his
          previous leg injury?

          [Officer Billins:] No statements were made.

          [Defense Counsel:] And Your Honor, that’s exactly what I’m
          talking about. The Supreme Court -- there’s Supreme Court
          case law that says that the prosecutor cannot comment or
          elicit testimony that comments on the defendant’s right to
          remain silent. He’s under no obligation to speak or say
          anything to Officer Billins.

          [The Court:] That’s true here in court.

          [Defense Counsel:] Correct.

          [The Court:] There’s no motion to suppress his statements
          at the scene of the stop.

          [Defense Counsel:] No. I understand that. But during the
          course of the trial, [the prosecutor’s] trying to imply
          that he had some obligation to tell Officer Billins
          something . . .

          [The Court:] I understand what you’re saying.     Your
          objection’s overruled.

(Emphases added.)

          Tsujimura’s objection to the prosecutor’s line of

questioning was thus based on the ground that the question

sought and elicited a response that commented on Tsujimura’s


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right to remain silent.     The district court overruled the

objection on the grounds that the prosecutor’s question was not

implying that Tsujimura was under obligation to speak in court,

which the district court concluded was inappropriate; rather,

the prosecutor’s question was implying that Tsujimura had some

obligation to say something at the time of the stop, which the

district court intimated was permissible.

            Following Officer Billins’ testimony, the State rested

and Tsujimura moved for a judgment of acquittal, arguing that

the State failed to present evidence as to the kind of alcohol

that allegedly impaired his faculties.         The district court

denied the acquittal motion, and Tsujimura rested without

presenting any evidence.

            In ruling on the case, the district court found that

the car that Tsujimura was driving was straddling the line

separating two lanes on the Moanalua freeway; that the eight

seconds it took for Tsujimura to pull over was still a fair

amount of time given that the police lights were activated; that

Tsujimura’s speech was slurred, his face was flushed and red,

and his eyes were red and watery; and that when Tsujimura

“alighted from the car, he did not indicate any difficulty

walking.”   The district court also made findings consistent with

Officer Billins’ testimony as to Tsujimura’s performance on the

FSTs.


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             Based on the totality of the circumstances, including

the manner in which Tsujimura was driving and Tsujimura’s

physical condition that Officer Billins observed, the district

court concluded that the State proved beyond a reasonable doubt

all the elements of the OVUII offense charged under HRS § 291E-

61(a)(1).9

                           II. ICA PROCEEDINGS

             Tsujimura filed a notice of appeal to the Intermediate

Court of Appeals (ICA), challenging the following rulings of the

district court: (1) denial of his motion to dismiss the OVUII

charge for failure to define the term “alcohol” in the

complaint; (2) admission of Officer Billins’ testimony regarding

Tsujimura’s failure to state that his injury would prevent him

from getting out of his car; (3) denial of his motion for

judgment of acquittal on the grounds that there was insufficient

evidence that he had consumed “alcohol”; and (4) denial of his

motion for judgment of acquittal on the grounds that there was

insufficient evidence to establish that he was under the

influence of alcohol in an amount sufficient to impair his



     9
            The district court sentenced Tsujimura to a 14-hour minimum
substance abuse rehabilitation program, a substance abuse assessment, and
mandatory fees including “$100 DUI Drivers Education Fee, $7 Regular Drivers
Education Fee, $30 Crime Victim Compensation Fee, $25 Neurotrauma Fund
Surcharge, $250 Drug Demand Reduction Assessment, $150 of which will be
suspended on the condition that Mr. Tsujimura complete all the other
requirements of his sentence.” Tsujimura was also fined $300, and his
license was revoked for one year.



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normal mental faculties or ability to care for himself and guard

against casualty.

            The ICA in its published opinion determined that the

statutory definition of “alcohol” under HRS § 291E-1 (2007 &

Supp. 2012) is not limited to alcohol derived from distillation

but that, based on the statute’s plain meaning, it “specifically

includes ethyl alcohol, which is ‘the intoxicating agent in

beer, wine and other fermented and distilled liquors.’”              State

v. Tsujimura, 137 Hawaii 117, 120, 366 P.3d 173, 176 (App. 2016)

(quoting Ethyl Alcohol, Webster Dictionary, http://www.webster-

dictionary.net/definition/ethyl alcohol (last visited May 23,

2017)).10   The ICA stated that, if the meaning of “alcohol”

excludes beer and wine and other alcoholic products not derived

from distillation, the purpose of the legislature in enacting

the OVUII statutes would be undermined in that “drivers who

became drunk as the result of consuming beer or wine would not

be subject to prosecution.”       Id. at 120-21, 366 P.3d at 176-77.

The ICA noted that Tsujimura’s statutory construction would

frustrate “the entire administrative and criminal statutory

scheme set forth in HRS Chapter 291E.”          Id.   The ICA also

concluded that the statutory definition of “alcohol” is

consistent with its ordinarily understood meaning and that
     10
            In 2016, the legislature amended the definition of “alcohol” in
HRS § 291E-1 to mean “ethanol or any substance containing ethanol.” 2016
Haw. Sess. Laws Act 231, § 59.



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“there was no need for the State to define the term ‘alcohol’ in

the OVUII charge in order to give Tsujimura fair notice of the

charge against him.”      Id. at 121, 366 P.3d at 177.       Accordingly,

the ICA held that the complaint charging Tsujimura with OVUII

was not deficient for failing to set forth the statutory

definition of “alcohol.”      Id.

          As to Tsujimura’s argument that his right to remain

silent was violated, the ICA observed that Hawaii has not

resolved whether there exists a constitutional right to

prearrest silence.       Id. at 123, 366 P.3d at 179.      However, the

ICA determined that it was not necessary to reach this issue

because Officer Billins’ testimony did not constitute “an

impermissible comment on Tsujimura’s assertion of his right to

remain silent.”    Id.    In evaluating Tsujimura’s contention, the

ICA applied the test set forth in State v. Padilla, 57 Haw. 150,

158 P.2d 357 (1976), and considered whether the prosecutor’s

question and Officer Billins’ answer to it were manifestly

intended or of such character that the district court would

naturally and necessarily take it to be a comment on Tsujimura’s

exercise of his right to remain silent.         Tsujimura, 137 Hawaii

at 123, 366 P.3d at 179.      The ICA reasoned that the question--

“Do you recall if the defendant indicated to you he would have

difficulty exiting the car because of his previous leg injury?”-

-and Officer Billins’ answer that “[n]o statements were made”


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“were directed at whether there was any indication that

Tsujimura’s prior knee injury affected his ability to perform

the field sobriety tests.”      Id. at 124, 366 P.3d at 180.

According to the ICA, the prosecutor’s question and Officer

Billins’ answer were not an “attempt to imply that an innocent

person in Tsujimura’s position would have spoken.”           Id.

             Finally, the ICA determined that there was sufficient

evidence to establish that Tsujimura consumed “alcohol” because

Tsujimura was under the influence of ethyl alcohol, which is the

intoxicating agent in beer, wine, and other fermented and

distilled liquors and the active principle in intoxicating

drinks.     Id. at 122, 366 P.3d at 178.     Therefore, viewing the

evidence in the light most favorable to the State, the ICA

concluded that the evidence adduced by the State at trial

constituted sufficient evidence to support Tsujimura’s

conviction.     Id. at 124, 366 P.3d at 180.

                       III. STANDARDS OF REVIEW

             Statutory interpretation is reviewed de novo.         State

v. Wang, 91 Hawaii 140, 141, 981 P.2d 230, 231 (1999).            “At all

times, the question of whether a charge is sufficient is a

matter of constitutional law, and our review of such matters is

de novo.”     Schwartz v. State, 136 Hawaii 258, 286, 361 P.3d

1161, 1189 (2015).     As to evidentiary rulings, the standard of

review is “abuse of discretion, unless application of the rule


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admits only one correct result, in which case, review is under a

right/wrong standard.”     State v. Rabellizsa, 79 Hawaii 347, 349,

903 P.2d 43, 45 (1995).     Questions of constitutional law are

reviewed de novo, and this court exercises its independent

judgment in considering such questions.         State v. Mattson, 122

Hawaii 312, 321, 226 P.3d 482, 491 (2010).         Legal sufficiency of

the evidence to support a conviction is a question of law

reviewed by this court de novo, the specific test being

“whether, ‘viewing the evidence in the light most favorable to

the State, there is substantial evidence to support the

conclusion of the trier of fact.’”        State v. Hirayasu, 71 Haw.

587, 589, 801 P.2d 25, 26 (1990) (quoting State v. Hernandez, 61

Haw. 475, 477, 605 P.2d 75, 77 (1980)).

                             IV. DISCUSSION

     A. Meaning of Alcohol and Sufficiency of the Complaint

          Tsujimura contends that the statutory definition of

“alcohol” in HRS § 291E-1 (2007 & Supp. 2012) is limited to

alcohol derived from distillation.        Thus, argues Tsujimura, the

definition of “alcohol” should have been included in the

complaint.

                      1. The Meaning of Alcohol

          Statutory construction commences “with an examination

of the plain language in order to determine and give effect to

the legislative intent and purpose underlying the statute.”


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State v. Pacquing, 139 Hawaii 302, 310, 389 P.3d 897, 905

(2016).    “The legislature is presumed not to intend an absurd

result, and legislation will be construed to avoid, if possible,

inconsistency, contradiction[,] and illogicality.”            State v.

Arceo, 84 Hawaii 1, 19, 928 P. 2d 843, 861 (1996) (quoting

State v. Malufao, 80 Hawaii 126, 137, 906 P.2d 612, 623

(1995)).   Invariably, this court’s foremost obligation in

statutory interpretation is to effectuate the statute’s purpose.

State v. Ganal, 81 Hawaii 358, 371, 917 P.2d 370, 383 (1996).

           HRS § 291E-1 defines alcohol as

           the product of distillation of any fermented liquid,
           regardless of whether rectified, whatever may be the origin
           thereof, and includes ethyl alcohol, lower aliphatic
           alcohol, and phenol as well as synthetic ethyl alcohol, but
           not denatured or other alcohol that is considered not
           potable under the customs laws of the United States.

(Emphasis added.)    Contrary to Tsujimura’s contention, the

statutory meaning of “alcohol” is not circumscribed to alcohol

derived from distillation.      Tsujimura’s proffered interpretation

overlooks the conjunctive clause “and includes” in the statutory

definition.   Previous cases counsel that “‘including’ means

either ‘an enlargement and has the meaning of and or in addition

to, or merely specifies a particular thing already included

within the general words theretofore used.’”          State v. Guyton,

135 Hawaii 372, 379 n.14, 351 P.3d 1138, 1145 n.14 (2015)




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(quoting Hawaiian Ass’n of Seventh–Day Adventists v. Wong, 130

Hawaii 36, 46, 305 P.3d 452, 462 (2013)).

          In this case, because “and” precedes “includes,” the

phrase “and includes” means “in addition to” instead of merely

specifying particular examples of “product of distillation.”

Viewed another way, the second definitional clause following

“and includes” is separate and distinct from the first

definitional clause ending with the word “thereof.”

Accordingly, “alcohol” means “the product of distillation of any

fermented liquid, regardless of whether rectified, whatever may

be the origin thereof.”     And “alcohol” also “includes ethyl

alcohol, lower aliphatic alcohol, and phenol as well as

synthetic ethyl alcohol” regardless of whether they are products

of distillation.

          To be sure, in cases where a general definitional

clause is followed by a list prefaced by the word “including,”

this court has held that the list provides examples that

particularize or elaborate upon the general definitional clause.

Pacquing, 139 Hawaii at 319—20, 389 P.3d at 914—15.           In such

cases, the general definitional clause is treated as providing

the outer limits of the meaning of the defined term, and the

list that follows “including” is regarded as non-exhaustive

examples of the general definitional clause.          Lealaimatafao v.




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Woodward-Clyde Consultants, 75 Hawaii 544, 556, 867 P.2d 220,

226 (1994).

           But here, by using the phrase “and includes,” the

legislature clearly disassociated the first definitional clause

from the second definitional clause.         “[E]thyl alcohol, lower

aliphatic alcohol, and phenol as well as synthetic ethyl

alcohol” are not illustrative of or circumscribed by the phrase

“the product of distillation,” and instead, they qualify as

“alcohol” within HRS § 291E-1 even if they are not a product of

distillation.     Hence, the meaning of “alcohol” is inclusive of

ethyl alcohol, also commonly known as ethanol, which “is the

intoxicating agent in beer, wine, and other fermented and

distilled liquors.”11     Accordingly, the statutory definition of

“alcohol” includes beer, wine, and other fermented liquors

because these substances contain ethanol.12

           This interpretation is consistent with the purpose of

the legislature in enacting the OVUII statutes: to promote

public safety by making it a crime to operate a vehicle while

impaired by an intoxicant.       See, e.g., H. Stand. Comm. Rep. No.

788-82, in 1982 House Journal, at 1261 (noting that the 1982

amendments sought to balance and weigh “the need of protecting


     11
            Ethyl Alcohol, Webster Dictionary, http://www.webster-
dictionary.org/definition/ethyl%20alcohol (last visited May 23, 2017).
     12
           Id.



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our citizens against the danger of drunken drivers and, at the

same time, insuring that the measures adopted to curb drunken

driving do not discriminate against any class of our society”).

Tsujimura’s interpretation, which would exclude from OVUII

prosecution persons impaired by alcohol not derived from

distillation, would lead to a result that undermines the

legislative purpose.     This illogical result is avoided by

effectuating the plain language of the statutory definition of

“alcohol,” which includes ethyl alcohol regardless of origin or

derivation.   Pac. Ins. v. Or. Auto Ins., 53 Haw. 208, 211, 490

P.2d 899, 901 (1971).     Thus, the ICA reached the correct result

in holding that “alcohol” is not limited to alcohol produced

through distillation; however, this result is chiefly dictated

by the plain language of HRS § 291E-1.

                   2. Sufficiency of the Complaint

           Tsujimura argues that the complaint should be

dismissed as insufficient because the State failed to include

the statutory definition of “alcohol,” depriving him of his

state constitutional right to be apprised of what he must defend

against.   “Article 1, section 14 of the Hawaii Constitution

. . . require[s] that ‘[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be informed of the nature

and cause of the accusation[.]’”         State v. Wells, 78 Hawaii 373,

379, 894 P.2d 70, 76 (1995) (alterations in original).            It is


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settled law that an “accusation must sufficiently allege all of

the essential elements of the offense charged,” a requirement

that “obtains whether an accusation is in the nature of an oral

charge, information, indictment, or complaint.”          State v.

Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977).

          This court has noted that “[w]here the statute sets

forth with reasonable clarity all essential elements of the

crime intended to be punished, and fully defines the offense in

unmistakable terms readily comprehensible to persons of common

understanding, a charge drawn in the language of the statute is

sufficient.”   Id. at 282, 567 P.2d at 1245; accord State v.

Wheeler, 121 Hawaii 383, 393, 219 P.3d 1170, 1180 (2009).            But

“where the definition of an offense . . . includes generic

terms, it is not sufficient that the indictment shall charge the

offense in the same generic terms as in the definition; . . . it

must state the species . . . [and] descend to particulars.”

State v. Israel, 78 Hawaii 66, 73, 890 P.2d 303, 310 (1995)

(quoting Russell v. United States, 369 U.S. 749, 765 (1962));

accord Wheeler, 121 Hawaii at 393, 219 P.3d at 1180.

          In this case, Tsujimura was charged by complaint with

being “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.”        As discussed, the




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statutory meaning of alcohol is not limited to alcohol produced

by the process of distillation.        The commonly understood meaning

of “alcohol” is that it is “a clear liquid that has a strong

smell, that is used in some medicines and other products, and

that is the substance in liquors (such as beer, wine, or

whiskey) that can make a person drunk.”13         The statutory meaning

of “alcohol” includes ethyl alcohol, which is the intoxicating

agent in beer, wine, and other fermented and distilled liquors.

Thus, “alcohol,” as defined by statute, encompasses substances

and beverages commonly understood to constitute “alcohol” in lay

terms.    Accordingly, it was not necessary to include the

statutory definition of “alcohol” in the complaint against

Tsujimura because the statutory definition “comport[s] with

[the] commonly understood definition” of alcohol.            Wheeler, 121

Hawaii at 394, 219 P.3d at 1181.         Thus, even without the

statutory definition of “alcohol,” the complaint “fully defines

the offense in unmistakable terms,” is “readily comprehensible

to persons of common understanding,” and is, therefore,

sufficient.    Jendrusch, 58 Haw. at 282, 567 P.2d at 1245.


     13
            Alcohol, Merriam-Webster, http://www.merriam-
webster.com/dictionary/alcohol (emphasis added) (last visited May 23, 2017).
Similarly, Oxford Dictionary defines “alcohol” as “[a] colorless volatile
flammable liquid that is produced by the natural fermentation of sugars and
is the intoxicating constituent of wine, beer, spirits, and other drinks, and
is also used as an industrial solvent and as fuel.” Alcohol, English Oxford
Living Dictionaries, http://www.oxforddictionaries.com/us/definition/
american_english/alcohol (last visited May 23, 2017).



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                 B. Prearrest Right to Remain Silent

          During the State’s case-in-chief in the trial in this

case, the prosecutor asked Officer Billins on redirect

examination, “Do you recall if the defendant indicated to you he

would have difficulty exiting the car because of his previous

leg injury?”    Over defense counsel’s repeated objection, the

district court permitted Officer Billins to answer the

prosecutor’s question.     The officer responded, “No statements

were made.”    Tsujimura argues that the information elicited by

the prosecutor--that he failed to tell Officer Billins that he

would have difficulty exiting the car because of his previous

leg injury--improperly commented on his right to remain silent.

          In reviewing Tsujimura’s contention, it is important

to identify the timeframe that the prosecutor’s question focused

on when he asked Officer Billins about what Tsujimura failed to

say: it was before Tsujimura was formally arrested or given

Miranda warnings.    This court has not yet spoken on whether the

right to remain silent, which is an integral part of the

privilege against compelled self-incrimination, attaches

prearrest and, if so, whether and within what bounds such

silence may be used against a criminal defendant at trial.             See

State v. Mainaaupo, 117 Hawaii 235, 252 n.9, 178 P.3d 1, 18 n.9

(2008) (reasoning that “the [deputy prosecuting attorney]’s

comments could also be interpreted to refer to [defendant]’s


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pre-arrest silence” but not addressing that issue because it was

not raised, and also noting that “courts are divided on whether

the government may comment on a defendant’s pre-arrest

silence”).

 1. Prearrest Right to Remain Silent Under Article I, Section 10
                   of the Hawaii Constitution

             The United States Supreme Court has not definitively

resolved under the federal constitution the issue of whether the

privilege against compelled self-incrimination attaches before

arrest.   Jenkins v. Anderson, 447 U.S. 231, 236 n.2 (1980) (“Our

decision today does not consider whether or under what

circumstances prearrest silence may be protected by the Fifth

Amendment.”)     The Supreme Court was not required to resolve this

issue because its precedents “clearly permit[] impeachment even

if the prearrest silence were held to be an invocation of the

Fifth Amendment right to remain silent.”14          Id.; Portuondo v.


      14
             The propriety of utilizing a defendant’s silence in criminal
trials has been explored by the Supreme Court in several cases. In Doyle v.
Ohio, 426 U.S. 610 (1976), the Court held that the prosecution may not
impeach a defendant by using his post-arrest, post-Miranda silence, reasoning
that a defendant, after being apprised of his or her Miranda right to remain
silent, cannot thereafter be penalized for exercising that right. Id. at
611. In Jenkins, the Supreme Court “conclude[d] that the Fifth Amendment is
not violated by the use of prearrest silence to impeach a criminal
defendant’s credibility” because, by testifying at his or her own trial, the
defendant “cast[s] aside his cloak of silence” and impeachment is a necessary
concomitant of that decision. 447 U.S. at 238. Two years later, the Supreme
Court decided Fletcher v. Weir, 455 U.S. 603 (1982), a case in which the
defendant, post-arrest, was not given Miranda warnings. “In the absence of
the sort of affirmative assurances embodied in the Miranda warnings,” the
Court held that it is not a violation of “due process of law for a State to
permit cross-examination as to postarrest silence when a defendant chooses to
take the stand” for the purpose of impeaching the defendant. Id. at 607. In
                                                             (continued . . .)


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Agard, 529 U.S. 61, 70 (2000) (noting that, under Jenkins, “it

was not clear whether the Fifth Amendment protects prearrest

silence”).    But because this court is “the ultimate judicial

tribunal with final, unreviewable authority to interpret and

enforce the Hawaii Constitution, [it is] free to give broader

protection under the Hawaii Constitution than that given by the

federal constitution.”      State v. Arceo, 84 Hawaii 1, 28, 928

P.2d 843, 870 (1996) (quoting State v. Wallace, 80 Hawaii 382,

397 n.14, 910 P.2d 695, 710 n.14 (1996)); see, e.g., State v.

Hoey, 77 Hawaii 17, 36, 881 P.2d 504, 523 (1994) (affording

broader protection to suspects during custodial interrogation

under the Hawaii Constitution than that provided by the federal

constitution).     Thus, this court may interpret the Hawaii

Constitution to provide broader rights against self-

incrimination than its federal counterpart.

           In determining whether the right to remain silent

attaches before arrest, the governing provision of the Hawaii

Constitution is article I, section 10, which provides, “[N]or

shall any person be compelled in any criminal case to be a


(continued . . . )
Salinas v. Texas, 133 S. Ct. 2174 (2013) (plurality), prosecutors used the
defendant’s silence during a pre-custodial interview as substantive evidence
of guilt. Id. at 2178—79. A plurality of the Court concluded that, where
the defendant does not invoke the right to remain silent in a non-coercive,
pre-custodial interview situation, prosecutors could use the defendant’s
prearrest silence as substantive proof of guilt. Id. at 2184.



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witness against oneself.”      Haw. Const. art. I, § 10.       In

Mainaaupo, this court held that “the right against self-

incrimination attache[s] at least as of the time of [an]

arrest,” regardless of whether Miranda warnings have been given.

117 Hawaii at 252, 178 P.3d at 18.       The Mainaaupo court left

open the question of whether the right against self-

incrimination attaches before arrest.        See id. at 252 n.9, 178

P.3d at 18 n.9 (noting that whether the right against self-

incrimination applies to prearrest silence was not an issue and

was therefore not addressed).

          This court construes the provisions of the Hawaii

Constitution using canons similar to those used in statutory

construction.   “[T]he settled rule is that in the construction

of a constitutional provision the words are presumed to be used

in their natural sense unless the context furnishes some ground

to control, qualify, or enlarge them.”         Haw. State AFL–CIO v.

Yoshina, 84 Hawaii 374, 376, 935 P.2d 89, 91 (1997) (quoting

Pray v. Judicial Selection Comm’n, 75 Hawaii 333, 342, 861 P.2d

723, 727 (1993)).    The plain language of article I, section 10

provides, “[N]or shall any person be compelled to be a witness

against oneself.”    Haw. Const. art. I, § 10.        Unlike those

provisions of the Hawaii Constitution that explicitly apply only




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to specified categories of individuals,15 article I, section 10

is clear that its guarantees are meant to attach to “any

person.”    Cf. United States ex. rel. Savory v. Lane, 832 F.2d

1011, 1017 (7th Cir. 1987) (comparing the language of the Sixth

Amendment, which gives the right to counsel to an “accused,”

with the language of the Fifth Amendment, which states that

“[n]o person shall . . . be compelled in any criminal case to be

a witness against himself”).

            Thus, the privilege against compelled self-

incrimination functions to protect “any person” regardless of

whether that person has been arrested or accused.            It is

therefore evident from the language of article I, section 10

that the right to remain silent attaches even before arrest is

made.16    Cf. id. (holding that the right to remain silent

attaches even before arrest and reasoning that, based on the


      15
            See, e.g., Haw. Const. art. I, § 14 (enumerating rights that only
accrue to individuals that have already been “accused” of a crime). We voice
no opinion regarding the timeframe and manner in which the various rights
enumerated in article I, section 14 apply. We simply note the plain-language
difference between article I, section 14 and article I, section 10.
     16
            See also Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995)
(holding that under Wyoming’s constitution, there is “no rational reason to
limit the protection embracing the citizen’s right to silence to the post-
arrest or post-Miranda situation. The constitutional right to silence exists
at all times--before arrest, at arrest, and after arrest; before a Miranda
warning and after it. The right is self-executing.”); State v. Fencl, 325
N.W.2d 703, 711 (Wis. 1982) (“The Fifth Amendment protects a person from
compelled self-incrimination at all times, not just upon arrest or during a
custodial interrogation.”); see also Coppola v. Powell, 878 F.2d 1562, 1565
(1st Cir. 1989) (holding that the privilege against self-incrimination may be
asserted prearrest); United States v. Burson, 952 F.2d 1196, 1200 (10th Cir.
1991) (accord).



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language of the U.S. Constitution, “unlike the right to

counsel,” the right to remain silent “attaches before the

institution of formal adversary proceedings”).

          In confirming the plain-language interpretation of a

constitutional provision, the intent underlying its ratification

is a relevant consideration.      See State v. Rodrigues, 63 Haw.

412, 416, 629 P.2d 1111, 1114 (1981).        The purpose of the

privilege against self-incrimination is twofold: to protect an

individual “from having to reveal, directly or indirectly, his

knowledge of facts relating him to the offense or from having to

share his thoughts and beliefs with the Government,” Doe v.

United States, 487 U.S. 201, 213 (1988), and to “demand[] that

the government seeking to punish an individual produce the

evidence against him by its own independent labors, rather than

by the cruel, simple expedient of compelling it from his own

mouth,” Miranda v. Arizona, 384 U.S. 436, 460 (1966).            Accord

State v. Grahovac, 52 Haw. 527, 532–33, 480 P.2d 148, 152

(1971).

          Establishing that the privilege against compelled

self-incrimination attaches to a person even without formal

arrest or the institution of criminal proceedings effectuates

the purpose underlying the privilege, for it places on the

government the onus of producing evidence against individuals

that the government intends to punish and correspondingly frees


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individuals from any obligation to speak.          It is also consistent

with the fact that “the right to remain silent derives from the

Constitution and not from the Miranda warnings themselves,”

Mainaaupo, 117 Hawaii at 252, 178 P.3d at 18 (quoting United

States v. Velarde–Gomez, 269 F.3d 1023, 1029 (9th Cir. 2001) (en

banc)); accord Roberts v. United States, 445 U.S. 552, 560

(1980), and that, therefore, the privilege against self-

incrimination exists even without the articulation of Miranda

warnings.17

           Given that the right to remain silent attaches

prearrest pursuant to article I, section 10, we hold that the

right clearly attached in this case at least at the point when

Tsujimura was detained as a result of the investigatory stop.18

See State v. Eleneki, 106 Hawaii 177, 180, 102 P.3d 1075, 1078

(2004) (“It is axiomatic that ‘stopping an automobile and

detaining its occupants constitutes a “seizure” within the


     17
            See State v. Easter, 922 P.2d 1285, 1290—91 (Wash. 1996) (“An
accused’s right to silence derives, not from Miranda, but from the Fifth
Amendment itself. The Fifth Amendment applies before the defendant is in
custody or is the subject of suspicion or investigation.”); Fencl, 325 N.W.2d
at 711 n.10 (“Nor is the Fifth Amendment right against self-incrimination
dependent upon a person’s receipt of the Miranda warning. Miranda did not
create new rights but, rather, held that the constitutional guarantees
already accorded a defendant by the Fifth and Sixth Amendments should be
explained to the defendant during a critical stage of the criminal
proceeding.”).
      18
            Because this case involves a seizure situation, we express no
opinion as to other prearrest situations in which the right to remain silent
would be triggered. We do not reach that issue because it is not implicated
in this case.



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meaning of the Fourth Amendment to the United States

Constitution and Article I, Section 7 of the Hawaii

Constitution, even though the purpose of the stop is limited and

the resulting detention quite brief.’” (quoting State v. Powell,

61 Haw. 316, 320, 603 P.2d 143, 147 (1979))).          Thus, upon

Tsujimura’s seizure, his right to remain silent was invoked, and

this right continued during his detention.

            The question then arises as to whether prearrest

silence may be used by the State against a defendant and, if so,

within what bounds.     As stated, the Supreme Court has held that

prearrest silence may be used to impeach a defendant.            See

Jenkins, 447 U.S. 231; supra note 14.        But the Supreme Court has

not yet spoken on whether prearrest silence may be used as

substantive proof of guilt, and circuit courts of appeals are

split over this issue.     Several circuits have held that

prearrest silence may not be used as substantive proof of guilt.

See Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir. 1989) (by

using defendant’s prearrest silence in the prosecution’s case-

in-chief, defendant’s Fifth Amendment rights were violated);

United States v. Caro, 637 F.2d 869, 876 (2d Cir. 1981) (holding

that prearrest silence cannot be used as substantive proof of

guilt in the prosecution’s case-in-chief); Combs v. Coyle, 205

F.3d 269, 283 (6th Cir. 2000) (concluding that the “use of a

defendant’s prearrest silence as substantive evidence of guilt


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violates the Fifth Amendment’s privilege against self-

incrimination”); Lane, 832 F.2d at 1017—18 (holding that the use

of defendant’s prearrest silence as proof of guilt was

unconstitutional); United States v. Burson, 952 F.2d 1196, 1201

(10th Cir. 1991) (admitting prearrest silence as substantive

evidence of guilt is impermissible under the Fifth Amendment).

Other circuits have reached the opposite result, holding that

the use of prearrest silence as substantive proof of guilt is

constitutionally permissible.       See United States v. Zanabria, 74

F.3d 590, 593 (5th Cir. 1996) (use of defendant’s prearrest

silence as proof of guilt, under the circumstances, did not

violate the Fifth Amendment); United States v. Oplinger, 150

F.3d 1061, 1066-67 (9th Cir. 1998) (prearrest silence may be

used as evidence of guilt without violating the Fifth

Amendment), overruled on other grounds by United States v.

Contreras, 593 F.3d 1135 (9th Cir. 2010); United States v.

Rivera, 944 F.2d 1563, 1567-68 (11th Cir. 1991) (holding that

the government may comment on defendant’s prearrest silence

because the right against self-incrimination does not attach

until after arrest and Miranda warnings have been given).             The

Supreme Court, in Salinas v. Texas, 133 S. Ct. 2174 (2013)

(plurality), left unresolved this split of authority among the

federal circuits and held that, even assuming that prearrest

silence may not be used as substantive evidence of guilt, the


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defendant in that case could not take advantage of that

protection because he failed to expressly invoke the right.19

            Numerous state appellate courts have also taken the

position that prearrest silence can be used only to impeach a

defendant and not as proof of guilt in the prosecution’s case-

in-chief.    See State v. Reid, 20 A.3d 298, 304 (N.H. 2011) (“A

defendant’s pre-arrest silence may be used to impeach his

credibility, but the use of pre-arrest silence in the State’s

case-in-chief is unconstitutional.”); State v. Brown, 919 A.2d

107, 116—17 (N.J. 2007) (testimony regarding defendant’s

prearrest silence “would have been appropriate as impeachment

evidence if it had been offered in rebuttal” and not in the

prosecution’s case-in-chief); Tortolito v. State, 901 P.2d 387,

390 (Wyo. 1995) (use of prearrest silence to infer guilt is

constitutionally prohibited); State v. Parker, 334 P.3d 806, 821

(Idaho 2014) (same); State v. Easter, 922 P.2d 1285, 1290—92

(Wash. 1996) (same); State v. Rowland, 452 N.W.2d 758, 763 (Neb.

1990) (same); State v. Fencl, 325 N.W.2d 703, 711 (Wis. 1982)

(same); State v. Taylor, 780 S.E.2d 222, 224 (N.C. Ct. App.

      19
            Salinas, 133 S.Ct. at 2179 (“We granted certiorari to resolve a
division of authority in the lower courts over whether the prosecution may
use a defendant’s assertion of the privilege against self-incrimination
during a noncustodial police interview as part of its case in chief. But
because petitioner did not invoke the privilege during his interview, we find
it unnecessary to reach that question.” (citations omitted)); Rinat Kitai-
Sangero & Yuval Merin, Probing into Salinas’s Silence: Back to the “Accused
Speaks” Model?, 15 Nev. L.J. 77, 77—78 (2014) (stating that the plurality
opinion in Salinas avoided ruling on whether prearrest silence may be used as
substantive proof of guilt “and instead decided the case on a technicality”).



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2015) (same); State v. Palmer, 860 P.2d 339, 349—50 (Utah Ct.

App. 1993) (same).

            We agree with the federal circuit courts of appeals

and the several States that have held as unconstitutional the

use of prearrest silence as substantive evidence of guilt.20                To

hold otherwise would “create an incentive for arresting officers

to delay interrogation in order to create an intervening

‘silence’ that would then be used against the defendant.”

Mainaaupo, 117 Hawaii at 252, 178 P.3d at 18 (quoting United

States v. Moore, 104 F.3d 377, 386 (D.C. Cir. 1997)); accord

Easter, 922 P.2d at 1290—91; Tortolito, 901 P.2d at 390

(permitting the use of prearrest silence as proof of guilt leads

to a system where the government “can time the citizen’s arrest

to occur after the citizen stands mute in the face of the

accusation”).     Indeed, allowing prearrest silence to be used as

proof of guilt “would also encourage the authorities to refrain

from issuing Miranda warnings as long as possible in an attempt

to generate either inferential evidence of guilt from silence or


      20
            This court need not reach the issue of whether, under the Hawaii
Constitution, a defendant’s prearrest silence can be used for impeachment
purposes in cases where the defendant chooses to testify because, in this
case, Tsujimura’s prearrest silence was used as substantive evidence of
guilt. Further, Tsujimura did not testify, so there was never any basis to
impeach his credibility by using his prearrest silence. See Brown, 919 A.2d
at 116—17 (because defendant did not testify, the prosecutor’s use of
defendant’s silence could not have been for impeachment); State v. Harrison,
721 S.E.2d 371, 379 (N.C. Ct. App. 2012) (police officer’s statement as to
defendant’s prearrest silence could not have been used for impeachment where
the defendant testified after the police officer).



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an admission prior to custodial interrogation.”          Palmer, 860

P.2d at 349—50; accord Easter, 922 P.2d at 1290.

          Proscribing the use of prearrest silence that occurs

at least as of the time that a person has been detained is also

consistent with the well-established tenet that a person being

questioned by a law enforcement officer during an investigatory

stop “is not obliged to respond.”        Berkemer v. McCarty, 468 U.S.

420, 439 (1984).    If the State were authorized to use a person’s

silence during an investigatory stop as substantive evidence of

guilt, it would effectively punish a person for exercising a

legal right, a result that is constitutionally unacceptable.

Cf. State v. Wakisaka, 102 Hawaii 504, 514–15, 78 P.3d 317, 327–

28 (2003) (“[N]o ‘penalty’ may ever be imposed on someone who

exercises his core Fifth Amendment right not to be a ‘witness’

against himself in a ‘criminal case.’” (quoting Chavez v.

Martinez, 538 U.S. 760, 768—760 (2003))); Griffin v. California,

380 U.S. 609, 613–14 (1965) (denouncing the practice of

commenting on a defendant’s silence as “a penalty imposed by

courts for exercising a constitutional privilege” in that “[i]t

“cuts down on the privilege by making its assertion costly”).

          Finally, we emphasize that the silence used against

Tsujimura was not made in response to a question posed by

Officer Billins.    The prosecutor’s question was whether

Tsujimura told Officer Billins that his injuries would give him


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a difficult time exiting his car; that is, the prosecutor was

asking what Tsujimura failed to say even if the information was

not prompted or sought from him by Officer Billins.21

            In light of these circumstances, permitting silence to

serve as an implication of guilt would mean that the State would

always be able to use as substantive proof of guilt prearrest

silence not made in response to a question by a police officer.

The prosecutor need only identify a point in time during the

defendant’s interaction with the police officer when no question

was posed and no verbal exchange was had (and, therefore, the

defendant was expectedly silent) and use that silence as

evidence to infer the defendant’s guilt.          This would engender a

result where, in any encounter between a law enforcement officer

and a citizen, the State would be able to adduce evidence of

      21
            Under the facts of this case, where there was no verbal exchange
between the police officer and the defendant, there is no requirement that
the defendant invoke the right to remain silent because, at that particular
juncture, there was no opportunity to do so.

             We further reaffirm that, where the prearrest silence occurs in
the context of a person’s refusal to answer questions, there is no “express
invocation” requirement in order to trigger the right to remain silent under
the Hawaii Constitution; we thus reject the holding of the plurality opinion
in Salinas, which requires the defendant to expressly invoke the right to
silence by “say[ing] that [he or she] was not answering the officer’s
question on Fifth Amendment grounds” or something similarly phrased.
Salinas, 133 S. Ct. at 2180. Hawaii case law is clear that the
constitutional right against self-incrimination under the Hawaii Constitution
is invoked when a person “either remains silent or expresses ‘his desire to
deal with police interrogators only through his counsel.’” State v. Luton,
83 Hawaii. 443, 453, 927 P.2d 844, 854 (1996) (emphasis added) (quoting State
v. Mailo, 69 Haw. 51, 731 P.2d 1264 (1987)). Thus, under the Hawaii
Constitution, the mere fact that a person remained silent in the face of
police questioning is enough to invoke the right to remain silent, and
“express invocation” is not necessary.



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prearrest silence in myriad ways (e.g., When she was handing you

her driver’s license and registration, did she say anything

about her injuries?, While she was opening the glove box, did

she say anything about her injuries?, While she was outside the

car, did she say anything?, etc.).

          This acutely prejudicial effect is magnified for non-

native English language speakers, youth, and other individuals

detained at a traffic stop who may be reluctant to speak in the

presence of law enforcement officers due to age, gender, or

linguistic, cultural, or other reasons.         The burden to explain

at trial their prearrest silence would fall upon these

defendants whenever the State uses their silence to imply their

guilt, compromising their constitutional right to choose not to

testify and raising questions of fundamental fairness.

          Accordingly, for the reasons stated, 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 violate the right against compelled self-

incrimination under article I, section 10 of the Hawaii

Constitution.

  2. The Constitutional Prohibition on Prosecutorial Comment on
           One’s Exercise of the Right to Remain Silent

          In this case, the information about Tsujimura’s

prearrest silence was introduced at trial through the



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prosecutor’s redirect examination of Officer Billins, who

testified that Tsujimura did not say that his injury would give

him difficulty exiting his car.       A concomitant of the right to

remain silent is the prohibition on the prosecution from

commenting on a person’s exercise of that right.           State v.

Rodrigues, 113 Hawaii 41, 49, 147 P.3d 825, 833 (2006) (“As a

rule, the prosecution may not comment on a defendant’s failure

to testify.” (quoting State v. Wakisaka, 102 Hawaii 504, 514–15,

78 P.3d 317, 327–28 (2003))).       A prosecutor may not imply guilt

from a defendant’s exercise of the right to remain silent, for

doing so would dilute the right, undermine the values that the

right protects, and penalize the defendant for exercising a

constitutional right.     See State v. Melear, 63 Haw. 488, 496,

630 P.2d 619, 626 (1981) (noting that a prosecutor may not

comment on a defendant’s silence in a manner that suggests such

silence as evidence of guilt).

          In evaluating the propriety of a prosecutor’s comment

in certain trial situations, the test that this court has

“applied is whether the language used was ‘manifestly intended

or was of such character that the jury would naturally and

necessarily take it to be a comment on the failure of the

accused to testify.’”     State v. Padilla, 57 Haw. 150, 158, 552

P.2d 357, 362 (1976) (quoting United States v. Wright, 309 F.2d

735, 738 (7th Cir. 1962)), overruled on other grounds by State


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v. Cabagbag, 127 Hawaii 302, 277 P.3d 1027 (2012).             The Padilla

test was designed and has been most often used in cases where

the prosecutor makes comments, after the close of evidence, on

the defendant’s failure to testify.         See, e.g., Melear, 63 Haw.

at 496, 630 P.2d at 626 (closing argument); Wakisaka, 102 Hawaii

at 515, 78 P.3d at 328 (rebuttal argument); State v. Valdivia,

95 Hawaii 465, 481, 24 P.3d 661, 677 (2001) (closing and

rebuttal arguments).22     Approximately ten years ago, this court

avowed application of the Padilla test in a case involving a

question-and-answer exchange between a prosecutor and a

detective during the State’s case-in-chief.           In Rodrigues, the

prosecutor asked the detective what the defendant’s response was

to the detective’s request to tape-record their conversation.

113 Hawaii at 46, 147 P.3d at 830.        The detective answered, “As

I recall, he did not wish to be tape-recorded.”           Id.    The

defendant later challenged the information elicited, contending

that his refusal to be tape-recorded was used as a negative
     22
            The origin of the Padilla test is illuminating in this regard.
It was originally adopted by this court from United States v. Wright, a
Seventh Circuit case involving a challenge to a portion of the prosecutor’s
closing argument. 309 F.2d at 738—739. Wright borrowed the Padilla
formulation from Knowles v. United States, which also involved a challenge to
the prosecutor’s closing argument. 224 F.2d 168, 170 (10th Cir. 1955).
Knowles, in turn, adopted the Padilla test from Morrison v. United States, an
Eighth Circuit case that dealt with the propriety of the court’s jury
instructions. 6 F.2d 809, 811 (8th Cir. 1925). It is thus apparent that the
Padilla test was originally fashioned to cover situations in which the
defendant seeks to challenge the conduct of the prosecutor or the court that
occurs after the close of evidence, not instances in which the challenge
relates to information elicited by a prosecutor from a witness during the
testimony phase of the trial.



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inference of his credibility and, thus, improperly commented on

his right to remain silent.         Id. at 49, 147 P.3d at 833.

             In rejecting the defendant’s challenge, this court

focused on the purpose of the prosecution in adducing

information about the defendant’s refusal to be tape-recorded

and the fact that the information did not suggest any inference

of guilt.      The court explained “that the question . . . posed,

and the information elicited, [w]as part of the prosecution’s

effort to maximize the reliability of [the detective’s]

recollections and to explain why the detective could only rely

on his notes and not an audiotape of the interview.”              Id.

Further, the court reasoned that the prosecutor’s question was

“part of a line of inquiry designed to establish the detective’s

custom and practice regarding accurately transcribing . . .

statements” and “was unaccompanied by any implication of guilt

with respect to [the defendant]’s unwillingness to be

audiotaped.”      Id. at 49–50, 147 P.3d at 833–34.         Accordingly,

the court held that the information elicited from the detective

during the State’s case-in-chief was not an improper comment on

the defendant’s right to remain silent.            Id. at 50, 147 P.3d at

834.

             We note that the plain language of Padilla--“comment

on failure to testify”--is not readily applicable to cases

involving a question-and-answer exchange between a prosecutor


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and a witness that leads to evidence concerning the defendant’s

pretrial silence.     Padilla’s focus is on a defendant’s “failure

to testify” and not on a defendant’s pretrial exercise of the

right to remain silent.23      In addition, although Rodrigues

appears to have made the Padilla framework applicable to cases

with facts generally similar to this case, Rodrigues actually

adjusted and particularized the Padilla framework to make it

more suitable for application in situations where the challenged

“comment” is made during a question-and-answer exchange between

a prosecutor and a witness.       It is evident from the court’s line

of reasoning in Rodrigues that the core of the analysis is

predicated upon the prosecution’s purpose in eliciting the

contested evidence or on the character of the evidence.             See id.

at 49–50, 147 P.3d at 833–34 (reasoning that the purpose of the

prosecution’s question was not to imply guilt and that the

information elicited “was unaccompanied by any implication of

guilt”).

           We now clarify the Rodrigues test: In cases where the

prosecution elicits from a witness information regarding the

defendant’s prearrest silence, the test is whether the
     23
             The exchange between the prosecutor and the witness commonly
transpires during the State’s case-in-chief; thus, the prosecutor under such
circumstances would not have the opportunity to comment on the defendant’s
“failure to testify” because the defendant’s presentation of his or her case
is yet to commence such that it is still uncertain whether the defendant
would choose to testify. See Hawaii Rules of Penal Procedure Rule 24.1(a)
(2000) (providing that the defendant’s case typically commences at the close
of the State’s case-in-chief unless the court orders otherwise).



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prosecutor intended for the information elicited to imply the

defendant’s guilt or whether the character of the information

suggests to the factfinder that the defendant’s prearrest

silence may be considered as inferential evidence of the

defendant’s guilt.    See also Ouska v. Cahill-Masching, 246 F.3d

1036, 1049 (7th Cir. 2001) (concluding that the prosecutor’s

questions regarding the defendant’s prearrest, pre-Miranda

silence were improper because they were used to infer the

defendant’s guilt); Tortolito v. State, 901 P.2d 387, 391 (Wyo.

1995) (determining that the prosecutor’s questions to the

officer regarding the defendant’s prearrest silence was

impermissible and that “[a] comment upon an accused’s silence

occurs when used to the state’s advantage either as substantive

evidence of guilt or to suggest to the jury that the silence was

an admission of guilt”); State v. Easter, 922 P.2d 1285, 1289

(Wash. 1996) (noting that “the State may not elicit comments

from witnesses or make closing arguments relating to a

defendant’s silence to infer guilt from such silence”); State v.

Leach, 807 N.E.2d 335, 339 (Ohio 2004) (testimony regarding the

defendant’s prearrest silence was improperly admitted because it

“was clearly meant to allow the jury to infer [the defendant]’s

guilt”); Commonwealth v. Collett, 455 N.E.2d 1006, 1008 (Mass.

App. Ct. 1983) (in evaluating whether testimony regarding the

defendant’s prearrest silence was properly admitted, the court


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reasoned that the prosecutor “did not ask the jury to infer an

admission or consciousness of guilt from the defendant’s

silence”); State v. Terry, 328 P.3d 932, 938 (Wash. Ct. App.

2014) (explaining that an indirect comment on the defendant’s

prearrest silence, adduced by a question at trial, is improper

if it implies the defendant’s guilt).

     3. The Information Elicited by the Prosecutor Violated
               Tsujimura’s Right to Remain Silent

          As stated, the information elicited by the prosecutor

from Officer Billins during the State’s case-in-chief is the

fact that Tsujimura did not say anything about his injury as he

was exiting his car.     The ICA concluded that the information

elicited by the prosecutor was not a comment on the right to

remain silent because the prosecutor’s question and “Officer

Billins’ answer were directed at whether there was any

indication that Tsujimura’s prior knee injury affected his

ability to perform the field sobriety tests.”          State v.

Tsujimura, 137 Hawaii 117, 124, 366 P.3d 173, 180 (App. 2016).

However, the fact that Tsujimura’s prearrest silence was used to

prove that his performance of the FSTs was not affected by his

injury is exactly the reason why the information elicited was an

impermissible comment.     By eliciting the fact that Tsujimura did

not say anything about his injury while he exited his car, it

was clear that the State’s purpose was to imply that Tsujimura’s



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injuries did not physically inhibit him from performing the FSTs

and to inferentially establish that Tsujimura’s diminished

faculties during the FSTs were a product of intoxication and not

influenced by his injuries.

          This purpose was essentially conceded by the State

when it indicated in its answering brief that one of the

purposes of the prosecutor’s question was to “show that there

was no indication that Tsujimura’s leg injury affected the FST

test.”   The State therefore intended for the exchange between

the prosecutor and Officer Billins to adduce information about

Tsujimura’s prearrest silence as substantive proof of his guilt,

which as discussed supra, the State may not do.          See also Ouska

v. Cahill-Masching, 246 F.3d 1036, 1049 (7th Cir. 2001); State

v. Leach, 807 N.E.2d 335, 339 (Ohio 2004); Tortolito v. State,

901 P.2d 387, 391 (Wyo. 1995).

          In addition, even if we were to assume that the

State’s purpose in offering evidence of Tsujimura’s prearrest

silence was proper, the character of the evidence would still

lead to the conclusion that its admission at trial was improper.

The evidence suggested to the district court judge that

Tsujimura’s silence implied that his physical condition while

performing the FSTs was due to alcohol impairment and that,

therefore, he was guilty as charged.        That is, the character of

the information about Tsujimura’s prearrest silence was such


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that it suggested to the factfinder that Tsujimura’s prearrest

silence may be considered as inferential evidence of Tsujimura’s

guilt.   And the district court accepted this suggestion.            In

finding Tsujimura guilty, the district court expressly relied on

Officer Billins’ testimony that when Tsujimura “alighted from

the car, he did not indicate any difficulty walking.”             Thus, the

court used Tsujimura’s prearrest silence at least in part to

find him guilty of OVUII.24

           Accordingly, the information regarding Tsujimura’s

prearrest silence was erroneously admitted because the State’s

purpose in adducing it was to imply Tsujimura’s guilt and

because the character of the information suggested to the

district court judge that it may be considered as inferential

evidence of Tsujimura’s guilt.        Each of these reasons is

independently sufficient to support the conclusion that the

information elicited by the prosecutor violated Tsujimura’s

right against compelled self-incrimination guaranteed by article

I, section 10 of the Hawaii Constitution.25


      24
            Although the district court judge in this case relied on evidence
of prearrest silence in rendering his verdict, it is the State’s purpose for
proffering the evidence (whether the State intended for the evidence to imply
the defendant’s guilt) or the character of the evidence (whether it suggests
to the factfinder that guilt may be inferred from prearrest silence) that is
the pivotal consideration.
      25
            It is noted that State v. Alo, 57 Haw. 418, 558 P.2d 1012 (1976),
does not apply in this case. There, the defendant offered self-serving
testimony as to statements he allegedly made to police after he was arrested
and given Miranda warnings. Id. at 423, 558 P.2d at 1015. On cross-
                                                             (continued . . .)


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           The concurring and dissenting opinion (dissent)

proposes that “the Rodrigues analysis requires courts to discern

whether the State sought to imply a defendant’s guilt by virtue

of the very fact that the defendant was silent.”            Dissent at 4.

According to the dissent, “the Rodrigues test requires courts to

evaluate whether the State elicited evidence of the defendant’s

silence as direct evidence of the defendant’s culpability, or

whether the State sought to legitimately illustrate other

relevant facts by virtue of the defendant’s lack of verbal

communication.”     Dissent at 6.     Thus, the dissent posits that

Rodrigues does not preclude the State from using a defendant’s

silence in order to imply other facts that “identify[] the gaps

in the defendant’s theory of the case or other exculpatory

evidence that the defendant has adduced at trial.”            Dissent at

4.

           We respectfully disagree with the dissent because its

approach would allow the State to use a defendant’s silence to

indirectly imply or obtain evidence that bears upon the

defendant’s guilt.     Under the dissent’s view, a prosecutor’s

comment would be improper only if it directly suggested to the

(continued . . . )
examination, the State asked questions intended to establish that the
defendant was silent post-arrest and post-Miranda. Id. at 421—32, 558 P.2d
at 1014—15. This court held that the questions about defendant’s silence
after his arrest were proper. Id. at 425—26, 558 P.2d at 1017. Thus, in
Alo, this court allowed the State to use post-arrest, post-Miranda silence in
order to refute the defendant’s testimony regarding what he allegedly said to
the police at the time of his arrest.



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factfinder that the defendant is guilty because he or she

remained silent in a situation wherein an innocent person would

have spoken.    In cases such as this one, the dissent’s approach

would permit the State to indirectly use the defendant’s

prearrest silence to gain substantive evidence that bears upon

the defendant’s guilt.     So long as the prosecutor’s comment only

utilizes silence in order to obtain other evidence or establish

inferences that can substantively prove the defendant’s guilt,

the dissent’s interpretation of Rodrigues would permit the

comment.

            This could not be the case because direct and indirect

use of a defendant’s silence has the same ultimate effect: it

serves as a mechanism for the State to imply the defendant’s

guilt.   The only difference between the two is the level of

blatancy.    With indirect use, the State utilizes silence as the

means to garner evidence or inferences that bear upon the

defendant’s guilt.    With direct use, the State employs silence

as proof that the defendant is guilty for failing to speak.                In

short, the dissent’s framework would allow the State to do

indirectly what the dissent concedes the State may not do

directly.    In this case, for example, the dissent’s framework

deems the comment on Tsujimura’s prearrest silence as

constitutional because it illustrates “other relevant facts.”

Dissent at 6.    Those relevant facts, however, relate to the


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determination of Tsujimura’s guilt.         Thus, the dissent’s

framework runs counter to the rationale underlying the

prohibition on the use of prearrest silence as substantive proof

of guilt.26   See supra.     Whether silence is used directly or

indirectly, the person against whom the silence is used would be

punished for exercising a constitutional right in the same

manner and to the same extent: under either instance, the

person’s silence would ultimately bear upon the determination of

his or her guilt.     This result is in direct contravention of

this court’s precedents.       See, e.g., State v. Wakisaka, 102

Hawaii 504, 514–15, 78 P.3d 317, 327–28 (2003).

           Finally, the dissent’s framework is not supported by

Rodrigues.    Rodrigues did not hold that indirect use of silence

as substantive proof of guilt, a course of action authorized


     26
            The dissent elaborates on its approach by indicating that it
allows silence to be used to “support a collateral fact other than the
defendant’s guilt itself.” Dissent at 11. The dissent then characterizes a
defendant’s physical state and state of mind as “collateral” facts that may
be proved by relying at least in part on the defendant’s silence. Dissent at
10. However, state of mind is an essential component of the State’s burden
of proof in criminal cases. HRS § 702–204 (1993). And a defendant’s
physical state is critical in offenses such as OVUII, see HRS § 291E-61(a)(1)
(Supp. 2014), whose proof most often relies on the manner in which certain
physical acts are performed and on the physical manifestations of
intoxication and impairment. To this extent, state of mind and physical
state are hardly “collateral” or “ancillary.” Dissent at 9, 11.

            Even accepting the dissent’s framework--that silence may be used
to establish collateral facts--Tsujimura’s silence cannot be said to have
been used in this manner. Tsujimura’s silence was used to prove that his
performance of the FSTs was not influenced by his injury but by an
intoxicant, thereby supporting a finding of guilt. Thus, the use of his
silence was not simply geared toward establishing a collateral “fact that is
separate and distinct” from evidence of Tsujimura’s guilt. Dissent at 10.



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under the dissent’s framework, is permissible.          The information

about the defendant’s silence in Rodrigues was not intended or

used to establish, directly or indirectly, the defendant’s guilt

or innocence.   See State v. Rodrigues, 113 Hawaii 41, 49—50, 147

P.3d 825, 833–34 (2006) (explaining that the challenged line of

inquiry “was unaccompanied by any implication of guilt”

(emphasis added)).    Thus, the dissent’s framework, which would

allow the indirect use of silence as a tool to elicit evidence

or inferences that bear upon the defendant’s guilt (as the State

did in this case), is not consistent with Rodrigues.

     4. The Error Was Not Harmless Beyond a Reasonable Doubt

          When an error amounts to a violation of the privilege

against compelled self-incrimination under article I, section

10, the analysis proceeds to whether the error was harmless

beyond a reasonable doubt.      See State v. Mainaaupo, 117 Hawaii

235, 247—48, 178 P.3d 1, 13—14 (2008).         “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. Balisbisana, 83 Hawaii

109, 114, 924 P.2d 1215, 1220 (1996) (quoting State v. Holbron,

80 Hawaii 27, 32, 904 P.2d 912, 917 (1995)).         As discussed, the

district court rendered its verdict in partial reliance upon



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Officer Billins’ testimony that Tsujimura did not say anything

about his injury when he exited his car.          The district court

also incorrectly assumed that it was proper for the State to use

Tsujimura’s prearrest silence in order to imply that he was

under an obligation to say something at the time of the stop and

that Tsujimura’s prearrest silence could be used as substantive

proof of guilt.     In addition, looking at the evidentiary record

at trial--including evidence countervailing a finding of

intoxication--it cannot be said that the error in admitting

Officer Billins’ testimony regarding Tsujimura’s prearrest

silence was harmless beyond a reasonable doubt.27           Id.

Accordingly, Tsujimura’s conviction must be vacated and the case

remanded to the district court for a new trial.28           See Tachibana


     27
            For purposes of the harmless error analysis, it is assumed that
the evidence regarding Tsujimura’s performance of the FSTs was properly
admitted, see supra note 6.
     28
            Tsujimura also asserts that there was insufficient evidence to
establish that he was impaired by “alcohol” because the State did not
introduce evidence that he consumed alcohol derived from distillation. The
statutory definition of “alcohol,” as discussed supra Part IV.A, is not
limited to alcohol produced by distillation. Thus, the State was not
required to introduce evidence as to the nature, origin, or the specific type
of alcohol that Tsujimura consumed, and Tsujimura’s contention that there was
insufficient evidence to establish his consumption of alcohol produced by
distillation is without merit.

            Tsujimura additionally challenges the sufficiency of the evidence
in support of his conviction. Officer Billins testified regarding
Tsujimura’s driving before he was stopped, delayed reaction after he was
asked to pull over, his physical condition, and his actions while performing
the FSTs. Even assuming that the district court improperly admitted
testimony regarding whether Tsujimura passed or failed the FSTs, see supra
note 6, the adduced evidence, viewed “in the light most favorable to the
State,” constitutes “substantial evidence to support the conclusion” that
Tsujimura’s mental faculties or ability to care for himself and guard against
                                                             (continued . . .)


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v. State, 79 Hawaii 226, 240, 900 P.2d 1293, 1307 (1995) (“Once

a violation of the constitutional right to testify is

established, the conviction must be vacated unless the State can

prove that the violation was harmless beyond a reasonable

doubt.”); State v. Tabigne, 88 Hawaii 296, 306-07, 966 P.2d 608,

618-19 (1998) (remanding the case for retrial after finding not

harmless the constitutional error involved).

           The dissent contends that, “even assuming that the

comment was an improper comment on Tsujimura’s silence, the

comment was harmless beyond a reasonable doubt.”            Dissent at 2.

The dissent reasons that “the district court did not necessarily

rely on Tsujimura’s silence in finding that ‘[w]hen he alighted

from the car, he did not indicate any difficulty walking.’”

Dissent at 14.     According to the dissent, the district court’s

statement--that Tsujimura did not indicate any difficulty

walking when he alighted from the car--could have been based on

Officer Billins’ observations, as gleaned from the officer’s

testimony and the district court’s direct questions to the

officer.   Dissent at 14.

           We respectfully disagree with the dissent because the

district court’s statement, naturally read, was a description of

(continued . . . )
casualty were impaired. State v. Hirayasu, 71 Haw. 587, 589, 801 P.2d 25, 26
(1990) (quoting State v. Hernandez, 61 Haw. 475, 477, 605 P.2d 75, 77
(1980)). Thus, Tsujimura’s conviction was supported by legally sufficient
evidence.



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Tsujimura’s failure to speak about any difficulty walking as he

was exiting his car and during his interaction with Officer

Billins.    The sentence immediately prior to the district court’s

statement was, “When Mr. Tsujimura was asked to participate [by

Officer Billins] in a field sobriety test, Mr. Tsujimura did

indicate . . . there was an injury to his left leg.”             Thus, the

court’s use of “indicate” in all likelihood pertained to

Tsujimura’s oral responses or lack of responses to Officer

Billins during their interaction.          In any event, the alternative

explanation that the dissent posits for the district court’s

statement does not eliminate the reasonable possibility that the

district court relied on Officer Billins’ reference to

Tsujimura’s prearrest silence and, as such, the reasonable

possibility that this error might have contributed to

Tsujimura’s conviction.       Balisbisana, 83 Hawaii at 114, 924 P.2d

at 1220.

            In asserting that the admission of Tsujimura’s

prearrest silence into evidence was harmless, the dissent points

to evidence other than Tsujimura’s prearrest silence that

supports the district court’s finding of guilt.            Dissent at 16—

17.   However, according to Officer Billins’ testimony,

Tsujimura’s vehicle was not changing lanes, was not going over

the speed limit, was not slowing down or speeding up, did not

follow other vehicles too closely, and did not make any


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inconsistent signals; it took Tsujimura only eight seconds to

pull over from the time Officer Billins turned on his sirens and

lights; and out of the 24 NHTSA visual detection clues,

Tsujimura exhibited only one--trouble maintaining lane position.

Officer Billins’ testimony also indicated that Tsujimura did not

repeat questions or comments, lean on his vehicle, or provide

incorrect information or change his answers while being

questioned; red, watery eyes could be caused by a number of

factors other than alcohol impairment; and odor of alcohol is a

poor indicator of a person’s level of impairment and has no

bearing on the amount and nature of the alcohol that the person

consumed.   Accordingly, the totality of the evidence against

Tsujimura was far from compelling or overwhelming as to render

harmless any error in admitting the State’s comment on

Tsujimura’s prearrest silence.       See Mainaaupo, 117 Hawaii at

255, 178 P.3d at 21 (concluding that “the evidence . . . is not

so overwhelming that we are convinced that the [deputy

prosecuting attorney’]s intrusion into [the defendant’]s right

to remain silent may not have contributed to his conviction”).

                              V. CONCLUSION

            Accordingly, we hold that the right to remain silent

under article I, section 10 of the Hawaii Constitution attaches

at least at the point at which a person has been seized.            Such

evidence regarding a person’s exercise of the right to remain


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silent may not be used as substantive evidence of guilt.

Relatedly, the State may not elicit evidence of prearrest

silence to imply the defendant’s guilt or introduce evidence

whose character suggests to the factfinder that the defendant’s

prearrest silence is inferential evidence of the defendant’s

guilt.   In this case, Tsujimura’s prearrest silence while

detained during an investigatory stop was introduced into

evidence as substantive proof of Tsujimura’s guilt.           The

admission of this evidence was not harmless.          Hence, the ICA

Judgment on Appeal and the district court’s judgment are

vacated, and the case is remanded to the district court for a

new trial.

Alen M. Kaneshiro                        /s/ Sabrina S. McKenna
for petitioner
                                         /s/ Richard W. Pollack
Sonja McCullen
for respondent                           /s/ Michael D. Wilson




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