State v. Nakamitsu., 398 P.3d 746

Background

Nakamitsu was charged with one count of Operating a Vehicle Under the Influence (OVUII) under HRS § 291E-61(a)(1) (impairment) and (a)(3) (BAC ≥ .08) after a single-vehicle crash that crushed a streetlight and left his vehicle badly damaged.
Officers observed Nakamitsu walking from the vehicle, smelling of alcohol, having red/glassy eyes, slurred speech, trouble balancing, and emotional distress; one officer administered standardized field sobriety tests (SFSTs).
At trial Officer Desiderio’s memory of detailed SFST observations was repeatedly refreshed from his report; defense moved to strike those portions but the district court denied the motion.
The district court convicted on both statutory theories and sentenced Nakamitsu; during sentencing the judge criticized Nakamitsu and counsel for electing trial rather than admitting guilt.
The ICA vacated the conviction under (a)(1) because the district court’s ultimate colloquy regarding defendant’s right not to testify was constitutionally deficient and reversed the (a)(3) conviction because the BAC evidence was suppressed; the ICA nevertheless found the evidence sufficient to support an (a)(1) conviction.
The Hawai‘i Supreme Court affirmed the ICA’s disposition: (a)(3) reversed; (a)(1) vacated and remanded for a new trial, and it addressed several legal questions raised on certiorari.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the OVUII complaint was fatally defective for failing to define “alcohol”	State: common meaning of “alcohol” suffices; no need to recite statutory definition	Nakamitsu: HRS § 291E-1 limits “alcohol” to products of distillation (liquor), so charge was insufficient	Court: charge not defective; statutory definition includes ethanol and thus beer, wine, and distilled liquors (Tsujimura controlling)
Admissibility of Officer Desiderio’s SFST testimony after refreshing with his report	State: Desiderio had independent recollection; refreshing was proper and testimony admissible	Nakamitsu: officer could not testify to SFST details without relying solely on the report; testimony should be stricken	Court: did not decide; ICA and Supreme Court found it unnecessary to resolve because conviction under (a)(1) supported without relying on contested testimony
Sufficiency of the evidence for OVUII under HRS § 291E-61(a)(1)	State: combined officer observations (odor, red/glassy eyes, balance problems, statements, vehicle damage, no brake marks) and SFSTs support conviction	Nakamitsu: without SFST testimony and lacking direct proof of driving while impaired, evidence was insufficient	Court: substantial evidence supported (a)(1) conviction even omitting contested SFST testimony
Whether sentencing comments admonishing defendant for going to trial violated due process/self-incrimination	State: sentencing may consider remorse and plea history; no coercion here	Nakamitsu: judge’s remarks punished him for exercising right to trial and maintaining innocence	Court: judge’s admonishments could have improperly relied on defendant’s refusal to admit guilt, potentially violating due process and the privilege against self-incrimination; court warned such reliance is impermissible though it did not reverse on this ground here

Key Cases Cited

Tachibana v. State, 79 Hawai‘i 226, 900 P.2d 1293 (Haw. 1995) (standards for colloquy when defendant elects not to testify)
State v. Davis, 133 Hawai‘i 102, 324 P.3d 912 (Haw. 2014) (requirement to review sufficiency of the evidence before remanding for new trial)
State v. Richie, 88 Hawai‘i 19, 960 P.2d 1227 (Haw. 1998) (substantial-evidence standard on appeal)
State v. Kamana‘o, 103 Hawai‘i 315, 82 P.3d 401 (Haw. 2003) (three-factor test for improper sentence reliance on defendant’s refusal to admit guilt)
Bordenkircher v. Hayes, 434 U.S. 357 (U.S. 1978) (due process limits on punishing a defendant for exercising legal rights)