*1 T. HAWAII, iff-Appellee, Plaint ROBERT STATE OF GUSTAFSON, Defendant-Appellant
NO. 5397 7, 1973 NOVEMBER C.J., RICHARDSON, MARUMOTO, ABE, KOBAYASHI, AND LEVINSON JJ.
Per Defendant-appellant utility pole Curiam. struck while driving automobile on Kinau Street Honolulu. The officer, investigating police believing appellant to be under alcohol, placed influence of him under arrest requested that he take a “breath or blood” test under the implied statute, consent ch. Upon HRS 286. refusal test, submit to a the officer executed and filed an affidavit magistrate of the district court of Honolulu A required by was held 286-155.1 before pursuant district to HRS At judge 286-156. found the statements contained in
to be and revoked appellant’s operate true motor period vehicle of six months the authority of HRS § 286-155. 188, 39, 1Magistrate Judge now entitled under Act District January Hawaii 1972.
Session Laws of effective appellant appealed circuit court of first circuit. After a the circuit court ruling affirmed the district court appellant appealed to this court.
ISSUES following by appeal The contentions raised on by appellant merit this court: consideration (1) was denied he provided copy arresting because was not with a hearing; officer’s affidavit to the (2) that appellant was a arrested without warrant unlawfully and that said arrest was not made accordance probable the constitutional standard of cause.
APPLICABLE STATUTES privilege HRS 286-155 Revocation drive motor testing. person vehicle to submit to a upon If refusal blood, arrest to submit a refuses test of his breath or shall given, arresting shall, none but the officer as soon practicable, as submit an magistrate affidavit to a made, stating: arrest was
(1) arrest, That the time of the had he grounds person reasonable to believe the arrested had driving either in actual physical been control of public a highways motor vehicle while under liquor; of intoxicating influence (2) That the person arrested had been informed of section; the sanctions of this (3) a person That the had refused to submit to test of his or blood. breath receipt Upon affidavit, magistrate shall hold provided and shall determine whether statements contained magistrate affidavit are true and correct. If the finds true, in the affidavit shall statements contained are license, permit, any person’s revoke the arrested period six operating privilege nonresident of months. If the is a person arrested resident without license or permit operate State, in the motor vehicle magistrate shall send notice of the results of the examiners all chauffeurs counties. The deny examiners shall person chauffeurs permit of a period issuance for a of six months. penalties The provided this section are additional penalties penalties not substitutes other provided law. magistrate. A 286-156Hearing before of an determine the truth correctness
submitted to within matistrate shall be held ten days after the has magistrate received the affidavit. magistrate shall hear and determine: had Whether officer reasonable
grounds to believe that had person been either *3 driving or in physical actual control motor vehicle public highways while under the influence of intoxicating liquor.
(2) person lawfully arrested; Whether (3) the arresting Whether officer had informed the person of 286-155; the sanctions of section and person Whether the to submit refused to a test of his breath or blood.
PROCEDURAL DUE PROCESS Appellant’s appeal first this is that contention raised he process prosecutor was denied due when provide appellant copy failed with of the officer’s affidavit within reasonable time hearing prepare so that appellant adequately could Appellant’s defense. brief states that was allowed glimpse of the affidavit and did not sufficient time to it thoroughly. read requirements
The
process,
as to notice
and hearing,
are so well established
additional
merely
opinion
repetitious.
dissertation
would
See
Co.,
v.
Mullane
Central Hanover Bank & Trust
Silver
(1972),
v.
Kim Poo Kum
in the affidavit thus notice forewarns as affidavit. HRS 286-156 then to the contents to determine and correctness provides for the truth specifically the affidavit and delineates the statements and determine. that the district shall hear the issues of the though copy served with a appellant And provisions days prior hearing, since the to the date of what the it clear to the of HRS 286-155 make is further necessarily state and the affidavit must scope protected against surprise that the relevant under HRS we are necessary clear, provide unambiguous statutes are safeguards. procedural due LAWFUL ARREST *4 that his arrest was unlawful Appellant’s final contention is probable arresting in that was for the officer to there no cause made arrest a warrant. He further contends the without that, after a lawful applicable since HRS 286-155 is arrest, to submit required he should not have been “breath or blood” test. facts. following When
The record indicates that site, at arrest he observed arresting officer arrived appellant’s very car was that was damaged; appellant unsteady lip. his feet on and that he had small cut on his The officer then asked been appellant whether he had appellant in an to which involved automobile accident affirmatively. appellant was then advised of answered The lawyer responded his that rights he engaged that he knew them. While this conversation smelled on the officer alcohol breath. The arresting appellant any officer then asked if taken he had intoxicating liquor appellant responded and the that he was required not question. appellant answer this then arresting described to the officer the circumstances by stating way accident on he was rate of home approximately per Appellant fifteen miles hour. stated that and that tired he had an telephone struck unidentified pole. point At placed officer arrest. Texeira, 138, 142, 593,
In State v.
50 Haw.
433 P.2d
(1967),
States,
this court cited Carroll v. United
Officers cause to make arrest when the facts and within knowledge circumstances their they reasonably trustworthy which had information were sufficient themselves to warrant a man of reasonable caution in being the belief crime was [a committed]. 226, 231, Chong, v. State 52 Haw. 473 P.2d
(1970), Scott, People we App. cited 259 Cal. 2d 66 Cal. (1968), Rptr. 257 with approval: is generally cause based
[P]robable [to arrest] factors, combination of together form a sort of mosaic, piece by one might itself often enough cause, which, probable to constitute but when whole, probable viewed as does constitute cause. Based on the facts and put circumstances forth record, we are of had officer probable cause to arrest charges involved
herein and that subsequent request that he submit to the “breath or blood” test was lawful.2
The other issues appellant raised are without merit. judgment of the circuit court is affirmed. Robert T. Gustafson, defendant-appellant, pro se. Sepaniak, Adrienne Deputy Prosecuting Attorney (Barry Chung, brief) Prosecuting Attorney, with her on the plaintiff-appellee.
LEVINSON, J., IN PART CONCURRING
AND DISSENTING IN PART agreement I am in portion majority opinion with that that a prerequisite applicability holds to the 286-155, § statute, or revocation HRS presence premised arrest on facts which meet standard, probable rigorous cause not the less constitutionally questionable standard of “reasonable suspicion” set out the Hawaii authorizing statute further, warrantless in general, arrests agree, 708-5. I that on the ample record of this case there exists evidence from which the district could have concluded that appellant’s warrantless arrest was pursuant executed probable concept cause as that defined Carroll v. States, United
However, I majority dissent from the conclusion of the provide the failure of the district court copy officer’s affidavit on relying 2The appellant officer, further contends that the on HRS reads: justice, §708-5, Policemen, without warrant. or By policeman other officers town, seaport even cases where it is not that an certain offense has committed, been may, without warrant, arrest and detain for examination such justify as be found persons may under such circumstances reasonable suspicion they have committed intend to an offense, commit arrested on reasonable and thus the arrest was unlawful. suspicion also maintains that said Appellant HRS 708-5 is unconstitutional because allows arrest without warrant it is based “reasonable Since suspicion”. necessary case, construe HRS 708-5 for the resolution of the instant we dispose appellant’s stating contention that arrest without warrant on must be premised probable canse. suspended been whether license should have *6 It not constitute a denial of his rights. revoked did my statutory is opinion that the district court was under copy by to of of mandate afford virtue affidavit Act, section 91-9 of the Hawaii Administrative Procedure special HRS ch. 91. of light nature of case, my hearing at issue in this it is that view the district court provided should copy with a as part of responsibility its to conform procedures process its to due of law. I structure this separately along two major analysis. these lines of
I. THE OF THE APPLICABILITY HAWAII
ADMINISTRATIVE PROCEDURE ACT 519, 520, In State v. Gustafson, 54 Haw. 511 P.2d 162 now, (1973), the same case which is before us this court held “proceedings to revoke a driver’s license for drunken test’ refuses to take ‘breath blood driving where driver implied under is consent statute treated as a added). (Emphasis an administrative That before officer.” necessary holding jurisdiction to support appellate our 286-157, § provides appeals under HRS for pursuant suspension orders entered to or revocation 286-155, § provided in HRS “in the manner §] [HRS 286-129, turn, appeals 286-129.” HRS allows by applicants by circuit court are licenses who denied chauffeurs, of examiner that the declares decision of the except circuit court on review “shall be final as otherwise ” provided in Finally, 91. of 91-15 ch. section HRS [HRS ch.] Act) (the 91 Hawaii provides Administrative Procedure part aggrieved party may secure review of “[a]n final by judgment chapter circuit court under appeal supreme tracing court.” In the our appellate jurisdiction through directly expressly providing review revocation 286-157, orders, HRS legislative we concluded that §§ in enacting intent HRS 286-155 to “treat” hearings pursuant held as administrative those sections officers, course, judges judicial nature. Of district are and as may constitutionally statutorily such sit as authority administrative officers created and under the However, legislative or executive it is branches.1 within province legislature provide for the formulation proceedings rules judicial before a sitting officer are to regulated. such Sibbach v. See Co., Wilson & The first proposition case stands for the Gustafson court under HRS procedures
reviewahle established for the review proceedings. my administrative opinion, reasoning that case also extends applicable at the itself, district court and therefore 1 would hold that which sets out the rules conducting *7 administrative adjudications, likewise establishes the §8 norms by hearings which under HRS 286-155 156 are to be held. First,
I am
drawn to this conclusion
several
reasons.
contours
the
of the
in
outlined
HRS
286-156 are
substantive,
wholly
is
and that
silent
as to
section
the
procedures
employed by
judge.2
to be
district
it is
Since
doubtful
the Hawaii District
Rules of
Court
Civil
apply
suspension
Procedure
to license
or
hearings
revocation
286-156,3
under
procedures
section
out in
set
HRS
91-9
appear
be a
from
natural source
legislature
could
(“The judiciary
§
Const. art.
V;
and the several
1Hawaii
HRS 601-5
department
judicial
of lmth
judges
thereof shall he
the executive
and other
officers
independent
Co.,
legislative
Transfer
departments”); cf.
Ins.
v. Tidewater
National Mut.
Co.
and
(1949) (Vinson,
dissenting,
expressing
C.J.,
but
582, 626,
opinion
at 640
concurred)
("[A] long
majority
of
. .
line
eases .
on this
in which a
Court
issue
or
or
duties
combination
personnel, powers,
the intermixture
prohibits]
system).
legislative courts”
federal
in the
majority
§
in
at
2-3.
is
pp.
2The text
HRS
286-156
quoted
11A WAII
nature”,
a
to "suits of civil
3The District Court Rules are applicable only
DtS. Ct. R. Civ. P. 1. While
a license
or revocation
is not a
he a civil action. Under Hawaii Dis. Ct. R.
action, neither does it
criminal
appear
3(a),
filing
Civ. P.
court,”
is
a
civil action
commenced
"[a]
by
complaint
proceedings
"[u|pon
§
initialed
whereas
under HRS
286-155 are
receipt
§
[arresting officer’s)
affidavit”
court.
HRS 286-155 uses
referring
judge
the district
under
the term
in
the sanctions
"penalties”
imposed by
or
section,
that,
best,
an indication
at
license suspension
proceedings.
§
revocation is a
of civil and criminal
.Sec also HRS
286-159.
hybrid
its
court draw
intended
the district
highly
guidelines, especially in view of the
“administrative”
performs
nature of
task which the district
under
Second,
§§
of a
proof
HRS
286-155 to 156.4
defendant’s
to submit to
test is admissible
refusal
“breath
blood”
“only
appeal
under section 286-156
thereof
any
action or proceeding,
.. . not.
..
other
whether civil
§
(emphasis added), indicating
or criminal”
HRS 286-159
legislative
intention to draw distinction between
section
“hearing”
proceeding[s].”
286-156
and all other
“action[s]
finally,
Third,
by providing
appeals
286-155
section
clearly
“in the manner”
from the
appeals
orders
chauffeurs,
administrative determination of the examiner of
286-157,
§
legislature intentionally
parity
HRS
created a
processes
between
decision-making
logic
the two
beyond
solely
extends
the correlation
for their
Gustafson,
review. See State v.
supra
Turning
requirements
provision
is the
of
section
prerequisite
The term “reasonable
parties.
notice” to the
“reasonable
(b)
include, among
in
defined
section
other
notice” is
plain language
in
oftheissues
explicit statement
things,
“[a^n.
alleged
agency in
support
the
and the
involved
facts
thereof;
if
unable to state such
agency
is
provided,
the
in
served,
detail
at
time
notice is
the
and facts
the
the
issues
to a statement of the issues
may be limited
initial notice
involved,
upon application
particulars
bill of
and thereafter
”
added).
provides
This
(Emphasis
section
shall
furnished.
adjudicated
in an
legal
rights
are
whose
individuals
as
proceeding
complete
forewarning
as
administrative
they
alleged
facts
must meet
possible of
issues
so,
agency is unable
do
notice
them. Unless the
against
particulars
i.e., it must
a bill of
constitute
must
function
—
heart of
facts and
circumstances
reveal
provide for basic
clearly
Its
is
proceeding.
objective
fairness,
concept
expounded by this
as that
475, 497
Hospital,
Silver Castle Memorial
53 Haw.
court
denied,
reh.
cert.
(1972),
(1972),
U.S.
P.2d
denied,
hearings §§ requirements 286-155 to under HRS importance. inquiry particular 91-9 are exclusively hearings judge such channeled “truth and determination correctness towards [the in this case affidavit.” The district officer’s] veracity solely involving the issue of treated affidavit, so to admit evidence doing refused .cause for supporting probable the existence of In view of the beyond went the affidavit. arrest which point hearing, importance this document as the focal *9 I agree cannot unspoken with the conclusion of majority that HRS in providing for pre-hearing divulgence ” alleged “facts a against party, require does not a copy that itof should have been served on the appellant sufficiently anterior time to the him properly enable prepare Compare defense. Davis, K. Administrative 8.05 Law Treatise the facts of this case do bear out reasoning majority provisions that “the of HRS it clear to what 286-155 make the affidavit must state,” necessarily and therefore he need not have been hearing. against served with The affidavit reads follows: I,Gary S.Au, T. officer, being duly sworn on first police oath, depose say: do arrested Robert T. at 1. I That Gustafson P.M. 1972 on KINAU STREET
o’clock on June approx. mile AVE. 1110th Ewa WARD 2. grounds I had reasonable Robert believe T. driving had either been or was actual Gustafson physical control public of motor vehicle on a Datsun, sedan, wit: dr. highway; green in color, license No. 8CJ3112. being operated by Vehicle the above named T. person, Gustafson, Robert while intoxicating beverage. influence Gustafson, while headed in the kokohead direction on Street, right Kinau veered side the road off and struck a object, telephone No. 6. pole fixed T. 3. At I Gustafson, the time I arrestedi?o6erí had grounds reasonable to believe he was under him, alcohol; confronting to wit: upon influence of intoxicating liquor there was smell his breath, slurred, his speech very and he was unsteady on feet. T. informed Robert 4. I had a Gustafson choice of chemical tests take to determine amount of alcohol in his contained blood. He could test, either take a if blood breath he refused to test, any operator’s take blood or breath *10 license, permit
chauffeur’s instruction driving privilege possessed non-resident which he may by be a magistrate revoked six months after a hearing. I T. his 5. After Robert informed Gustafson a possible
choice to take blood or test and of breath take of his driving privileges, revocation he refused any chemical tests. mimeographed
Although prepared on a was form, spaces, that into which form leaves numerous blank individually by typed portions quoted above were italicized an of these is evident from examination Au. As officer affidavit, significant/acis are revealed portions impossible and which appellant’s case are unique are facts These language of section 286-155. glean the bare necessary with the leads provided appellant well have could his chief defense greater establish with forcefulness that he drawing the conclusion Au was unwarranted officer only a few saw the affidavit appellant intoxicated.5 Since was It trial, to him. opportunity was lost minutes before by suspended his license that the follows if proper procedures well might have had different outcome detailed been followed. 91-9 had Accordingly, suspending I would the order reverse license, non-compliance on ground contained court with as a matter of course to failing statute aforementioned affidavit, officer’s arresting with the provide appellant hearing. would the case a new remand PROCESS II. PROCEDURAL DUE with the basic quarrel apparently does majority . . . issued licenses are “[ojnce proposition that [drivers’] 5Indeed, significant might regard, name in this officer Au’s alone was since appellant opportunity have afforded Au and thus to interview inquire deeply perception more into the latter’s incident at It issue. cannot already officer, assumed that according aware of the name of since incapable the accident left him dazed and hence of rational responses. in the may become essential possession their continued thus pursuit of issued licenses Suspension livelihood. adjudicates important interests involves state action to be taken licenses are not the licensees. In such cases the required away procedural process due without ” Burson, Fourteenth Bell v. U.S. Amendment.
(1971);
Mahoney,
(1971) (per
Jennings v.
It is
V. Castle Memorial
Silver
disposition
the
of
Haw.
The should have been at which minimum rights physician would include following: hearing
The doctor should be on that a available notice is sufficiently him. given timely to He should be notification prior him adequately prepare to the for to notice, conjunction In whose defense. with such a doctor denied being being is privileges are revoked or who provided should statement reappointment be a written be against should charges him. Such statement specific to him sufficiently adequate apprise being A initial charges against him. who is denied doctor be provided appointment hospital to staff should application his specifying written statement the reasons being denied. 485, 497 added). at (emphasis reviewing Id. at In P.2d surgical hospital denying fact followed Silver, to court found privileges them following for constitutionally deficient reasons: case, prior appellant’s this to the termination [I]n privileges, appellant provided specific never charges performance his why written as to merely acceptable. He was indictment of deemed read hearing. In general at the order allegations must have been to a right effective against specific particulars claims apprised had no hearing. case him investigate performance basis his opportunity being questioned. right present such defense As nugatory. was rendered added). (emphasis P.2d at
Id.
clear.
of this case is
applicability
Silver
facts
The
pursuant
dealt
286-155 to 156
held
accuracy
officer’s
exclusively with the
previously
opinion,
in this
affidavit. As noted
unique
facts and circumstances
were
contained
sufficiently
which,
if
him
revealed to
appellant’s case
*12
him
hearing,
time
well have enabled
to
might
countervailing
there is
defense.
no
strengthen his
against pre-hearing
which cuts
service
government
interest
—
is a
the affidavit
affidavit as matter
course
just
easily
easily copied and
which is
document
one-page
process
on those whose
initial service
includable with the
§§
subject
scrutiny to
to drive is
Dickison,
52,