State v. Macaraeg

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-AUG-2025
07:57 AM
Dkt. 48 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

STATE OF HAWAI I, Plaintiff-Appellee, v.
DEMPSEY MACARAEG, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-22-00704)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.)
Defendant-Appellant Dempsey Macaraeg (Macaraeg) appeals

from the April 13, 2023 Notice of Entry of Judgment and/or Order

and Plea/Judgment (Judgment) entered by the Wai anae Division of

the District Court of the First Circuit (District Court).1

Macaraeg raises two points of error on appeal,

contending that: (1) the District Court erred in admitting into

evidence Plaintiff-Appellee State of Hawaii's (State's) Exhibits

1-4; and (2) insufficient evidence was adduced at trial to

support Macaraeg's conviction for a violation of Hawaii Revised

Statutes (HRS) § 291C-27 Emergency Vehicle Stopped for

1
The Honorable Thomas Haia presided.
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Emergencies; Duty of Approaching Vehicle (2020) (Duty of

Approaching Vehicle).2

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, we resolve

Macaraeg's points of error as follows:

(1) Macaraeg was charged with and convicted of two

counts: (1) Operating a Vehicle After License and Privilege Have

Been Suspended or Revoked For Operating a Vehicle Under The

Influence of an Intoxicant in violation of HRS § 291E-62 (a)(1)

2
HRS § 291C-27 provides, in relevant part:

§ 291C-27 Emergency vehicle stopped for emergencies;
duty of approaching vehicle. (a) A driver of a vehicle that
is approaching an emergency vehicle that is stopped for an
emergency, investigation of a possible traffic violation,
rendering assistance to a police officer, or other official
duties, as indicated by the flashing emergency lights of the
stopped emergency vehicle, shall:

(1) Slow down to a reasonable and prudent speed that
is safe under the circumstances of an emergency
road situation ahead. Reasonableness and
prudence shall take into account weather
conditions, road conditions, and vehicular and
pedestrian traffic in the immediate area. If
necessary, the driver shall come to a complete
stop before making a lane change under paragraph
(2); and

(2) Make a lane change into the adjacent lane if
necessary and if it is safe to do so, or if
possible, to two lanes over which leaves one
lane between the driver and the emergency
vehicle.

(b) As used in this section, "emergency vehicle"
means a police or fire department vehicle, ocean safety
vehicle, emergency medical services vehicle, freeway service
patrol vehicle, sheriff division vehicle, Hawaii emergency
management agency vehicle, county emergency management
vehicle, civil defense vehicle, department of transportation
harbors division vehicle, department of land and natural
resources division of conservation and resources enforcement
vehicle, or a tow truck.

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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

and/or (a)(2) (2020) (OVLSR-OVUII);3 and (2) Duty of Approaching

Vehicle.

Macaraeg argues that the State's Exhibits 1-4 are not

relevant.4

Exhibit 1 was a four-page Honolulu Police Department

(HPD) form entitled Notice of Administrative Revocation (Notice

Form). It was admitted into evidence through the testimony of

HPD Officer John Kim (Officer Kim), who had previously arrested

Macaraeg for Operating a Vehicle Under The Influence of an

Inoxicant (OVUII) on May 19, 2021, read Macaraeg the form

verbatim, and informed Macaraeg that if he refused to be tested

for OVUII, his driver's license would be automatically revoked

for two years. Officer Kim testified that Macaraeg refused to be

tested, that Officer Kim took Macaraeg's license and further

advised him, inter alia, that the Administrative Driver's Licence

Revocation Office (ADLRO) would conduct an administrative review

and advise Macaraeg of their decision. Macaraeg refused to sign

3
HRS § 291E-62 provides, in relevant part:

§ 291E-62 Operating a vehicle after license and
privilege have been suspended or revoked for operating a
vehicle under the influence of an intoxicant; penalties.
(a) No person whose license and privilege to operate a
vehicle have been revoked, suspended, or otherwise
restricted pursuant to this section, part III, section
291E-61 or 291E-61.5, or part VII or part XIV of chapter 286
or section 200-81, 291-4, 291-4.4, 291-4.5, or 291-7 as
those provisions were in effect on December 31, 2001, shall
operate or assume actual physical control of any vehicle:

(1) In violation of any restrictions placed on the
person's license;

(2) While the person's license or privilege to
operate a vehicle remains suspended or
revoked[.]
4
We note that Macaraeg does not contend that, and/or identify where
in the record, he objected to these exhibits on relevance grounds. However,
the State makes no argument that Macaraeg's relevance arguments should be
deemed waived.

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the Notice Form, but had no questions about it. Officer Kim

explained, and the form stated, that if Macaraeg's driver's

license was not administratively revoked, it would be returned to

him. At the time of the traffic stop at issue here, Macaraeg

told HPD Sergeant Steven A.Y. Chun (Sergeant Chun) that he did

not have a license.

We conclude that Exhibit 1 was relevant because, inter

alia, it tended to show that Macaraeg knew his driver's license

was revoked, and that he recklessly operated or assumed actual

physical control of a vehicle while his license was revoked as he

consciously disregarded a substantial and unjustifiable risk that

such circumstances – that his license was revoked – existed. See

HRS § 702-204 (2014) & HRS § 702-206 (2014). 5

Officer Kim also testified that on May 19, 2021, he

went over Exhibit 2 – a Sanctions for Use of Intoxicants While

Operating a Vehicle and Implied Consent For Testing form

(Sanctions Form) – with Macaraeg and that Macaraeg initialed and

signed that form. The Sanctions Form includes that "[i]f you

5
HRS § 702-204 provides:

§ 702-204 State of mind required. Except as provided
in section 702-212, a person is not guilty of an offense
unless the person acted intentionally, knowingly,
recklessly, or negligently, as the law specifies, with
respect to each element of the offense. When the state of
mind required to establish an element of an offense is not
specified by the law, that element is established if, with
respect thereto, a person acts intentionally, knowingly, or
recklessly.

HRS § 702-206 states, inter alia, that a person acts "recklessly"
when either (a) "he consciously disregards a substantial and unjustifiable
risk that the person's conduct is of the specified nature," or (b) "[a] person
acts recklessly with respect to attendant circumstances when he consciously
disregards a substantial and unjustifiable risk that such circumstances
exist." Because HRS § 291E-62 does not specify a state of mind for a finding
of its violation, the State was required to prove that Macaraeg acted
intentionally, knowingly, or recklessly as to each element of the crime. See
State v. Vliet, 95 Hawai i 94, 95, 19 P.3d 42, 43 (2001).

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refuse to take any tests and your record shows no prior alcohol

or drug enforcement contact during the five years preceding the

date the notice of administrative revocation was issued, your

license and privilege to operate a vehicle will be revoked for a

period of two years." Similar to Exhibit 1, the Sanctions Form

makes it more probable than not that Macaraeg understood that his

decision not to get tested meant his license had been revoked for

two years, and that he consciously disregarded the substantial

and unjustifiable risk that he was operating his vehicle despite

having his license revoked due to the prior OVUII. Macaraeg's

relevance argument is without merit.

The State's Exhibit 3 was a certified copy of a Notice

of Administrative Review Decision dated June 10, 2021. As

Macaraeg acknowledges, Exhibit 3 tended to show that Macaraeg's

license was in fact revoked at the time of his alleged violation

of OVLSR-OVUII. It was relevant to establish that element of the

offense.

State's Exhibit 4 was a certified traffic abstract,

which also shows that Macaraeg's driver's license was revoked.

Macaraeg's argument that it was not relevant is without merit.

Accordingly, we conclude that Macaraeg is not entitled

to relief based on his first point of error.

(2) Macaraeg argues that there was insufficient

evidence to support his conviction for Duty of Approaching

Vehicle because HPD Sergeant Chun testified that he was "driving

a subsidized motor vehicle," but no evidence was adduced that

Macarael failed to heed the presence of an "emergency vehicle"

within the meaning of HRS § 291C-27.

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However, in addition to testifying that on May 7, 2022,

at the time he initiated a traffic stop on Macaraeg, he was

driving his "subsidized motor vehicle," Sergeant Chun testified

that he was on duty and assigned as the acting lieutenant of the

traffic division's first watch where he was in charge of

supervising the night enforcement unit. Sergeant Chun further

testified that he was "on a separate traffic stop" when Macaraeg

sped past him, and that at the time, he had his "lights on

pursuant to the traffic stop [he] was already on."

"It is well-settled that an appellate court will not

pass upon issues dependent upon the credibility of witnesses and

the weight of the evidence; this is the province of the trier of

fact." State v. Mattiello, 90 Hawai i 255, 259, 978 P.2d 693,

697 (1999) (cleaned up). Additionally, "as trier of fact, the

trial judge is free to make all reasonable and rational

inferences under the facts in evidence, including circumstantial

evidence." State v. Batson, 73 Haw. 236, 248-49, 831 P.2d 924,

931 (1992). Here, there is substantial evidence that Sergeant

Chun's vehicle was a police emergency vehicle, given the

reasonable inference drawn from Sergeant Chun's testimony,

including that he had effectuated a traffic stop, with the

emergency lights on his vehicle turned on. Sergeant Chun further

testified that Macaraeg did not reduce his speed to a safe and

prudent speed, or move over to the next lane, which he had "ample

room" to do, when he passed Sergeant Chun. We conclude that

there was sufficient evidence to support the District Court's

conclusion that Macaraeg was guilty of violating Duty of

Approaching Vehicle.

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For these reasons, the District Court's April 13, 2023

Judgment is affirmed.

DATED: Honolulu, Hawai i, August 13, 2025.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Walter J. Rodby,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
City & County of Honolulu, Associate Judge
for Plaintiff-Appellee.

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