State v. Tsujimura., 400 P.3d 500

Defendant Lester Tsujimura was charged with OVUII for driving on Jan 15, 2014; officer observed lane-straddling, slurred speech, flushed face, odor, red/watery eyes, and administered field sobriety tests (FSTs).
At trial officer testified about FST performance; on redirect the prosecutor asked whether Tsujimura told the officer his knee/ACL would make exiting the car difficult; officer answered “No statements were made.”
Defense objected that eliciting that omission commented on Tsujimura’s right to remain silent; the district court overruled; the court convicted Tsujimura.
On appeal the ICA affirmed as to statutory interpretation of “alcohol,” and held the officer’s testimony was permissible; this Court granted certiorari.
The Supreme Court (majority) held: (1) HRS §291E‑1’s definition of “alcohol” includes ethyl alcohol (beer/wine/fermented beverages); (2) under the Hawai‘i Constitution (art. I, §10) the privilege against self-incrimination attaches at least upon seizure/detention (prearrest); and (3) the State may not use prearrest silence as substantive evidence of guilt or elicit it to imply guilt — Tsujimura’s conviction vacated and remanded for new trial.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Tsujimura)	Held
Meaning of “alcohol” in HRS §291E‑1	Ordinary meaning suffices; no need to plead statutory definition	Statutory text limits “alcohol” to products of distillation, so complaint was deficient	Court: definition includes ethyl alcohol (not limited to distillation); complaint sufficient
Use of prearrest silence as substantive evidence	Prosecutor: asking whether defendant mentioned injury went to whether injury affected FSTs, not to imply guilt	Silence about injury was used to suggest intoxication caused poor FST performance; violates privilege	Court: prearrest silence upon seizure is protected by art. I, §10; State may not use it as substantive proof or elicit it to imply guilt; admission was unconstitutional
Temporal scope of privilege against self-incrimination	(Implicit) privilege tied to arrest/Miranda regime	Privilege protects “any person” and attaches prearrest upon seizure/detention	Court: art. I, §10 protects prearrest silence at least from seizure/detention onward; no express invocation required
Harmless-error as to admission of silence	Any comment was harmless because other evidence (FSTs, observations) supported conviction	Admission of silence affected court’s reasoning; error not harmless	Court: admission was not harmless beyond a reasonable doubt; conviction vacated and remanded

State v. Mainaaupo, [citation="117 Hawai'i 235"] (Haw. 2008) (right to remain silent attaches at least at arrest; discussed prearrest silence question)
State v. Rodrigues, [citation="113 Hawai'i 41"] (Haw. 2006) (approved analysis for whether elicited evidence of silence implies guilt based on prosecutor’s purpose and evidence character)
Berkemer v. McCarty, 468 U.S. 420 (U.S. 1984) (person stopped in traffic is not obliged to respond; investigatory stops are seizures)
Jenkins v. Anderson, 447 U.S. 231 (U.S. 1980) (prearrest silence may be used to impeach; did not resolve full prearrest protection)
Salinas v. Texas, 570 U.S. 178 (U.S. 2013) (plurality left open whether prearrest silence can be used substantively; held defendant’s failure to expressly invoke privilege foreclosed claim)
Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (Miranda warnings protect Fifth Amendment interests; rights derive from Constitution rather than warnings)
State v. Padilla, 57 Haw. 150 (Haw. 1976) (test whether prosecutor’s language was manifestly intended or naturally and necessarily a comment on failure to testify)