CourtListener 10764131

Full text

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-DEC-2025
07:57 AM
Dkt. 42 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

STATE OF HAWAI I, Plaintiff-Appellee, v.
TIHANI ARBOGAST, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DTA-23-00334)

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

from the November 17, 2023 Judgment and Notice of Entry of

Judgment (Judgment), entered by the Wailuku Division of the

District Court of the Second Circuit (District Court).1 Arbogast

also challenges the District Court's November 17, 2023 Findings

of Fact; Conclusions of Law; Decision and Order Denying Defendant

[Arbogast's] Motion to Suppress Evidence [(Motion to Suppress)]

Filed October 20, 2023 (FOFs/COLs), entered in favor of

Plaintiff-Appellee State of Hawai i (State).

Arbogast raises a single point of error on appeal,

contending that the District Court's COLs 18, 19, 21, and

1
The Honorable Christopher M. Dunn entered the Judgment; the
Honorable Blaine J. Kobayashi presided over the hearing on the Motion to
Suppress and entered the FOFs/COLs.
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

footnote 2 are plainly erroneous as a matter of law, and that

field sobriety tests (FSTs) constitute warrantless searches and

seizures under Haw. Const. art. I, § 7 and are presumed

unreasonable unless they fall within a well-defined exception to

the warrant requirement. Arbogast also argues that the Motion to

Suppress sufficiently raised and adequately provided notice to

both the prosecution and the District Court that one of the

grounds for her motion was that the prosecution failed to

establish probable cause to arrest Arbogast.

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

Arbogast's point of error as follows:

On May 18, 2023, the State filed its Complaint and

charged Arbogast with the offense of Operating a Vehicle Under

the Influence of an Intoxicant (OVUII) in violation of Hawaii

Revised Statutes § 291E-61 (a)(1) and/or 291E-61 (a)(3) (2021).

It is undisputed that on May 7, 2023, at around 1:30 a.m., Maui

Police Department Officer Rahul Mehra (Officer Mehra) observed a

certain SUV (SUV) traveling in front of him, that Officer Mehra

observed the SUV travel over the white fog line for

"approximately one second," then later observed the SUV drift to

the left and over the double solid yellow line, then finally

observed the SUV drift right again with the passenger tires

traveling over the white fog line again. Officer Mehra then

effectuated a traffic stop. Arbogast was the operator of the

2
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

SUV; a female passenger was in the front seat. As Officer Mehra

informed Arbogast of the reason for the stop, he detected the

odor of liquor coming from within the subject vehicle and the

female passenger admitted that she had been drinking; Officer

Mehra, after obtaining Arbogast's driver's license, registration,

and insurance, detected an odor of liquor on Arbogast and that

she had red, watery eyes. Arbogast denied having anything to

drink. Officer Mehra then directed Arbogast to step out of the

subject vehicle to participate in the FST.

Arbogast originally pleaded not guilty, and filed the

Motion to Suppress. The thrust of Arbogast's Motion to Suppress

was that FSTs constitute both a warrantless search and/or seizure

within the meaning of Haw. Const. art. I, §§ 6 and 7, and thus

that for such warrantless searches and/or seizures to be valid, a

defendant would need to consent to such FSTs; thus, consent by

the defendant in the context of an FST constitutes a voluntary

waiver whereas the absence of consent does not. In the

introductory paragraph of the motion, Arbogast included that

"[t]his motion is made on the grounds that [Arbogast's] seizure

and subsequent arrest were unlawful, having lacked reasonable

suspicion, probable cause or lawful consent[.]"

On October 27, 2023, the District Court held a hearing

on the Motion to Suppress. Officer Mehra was the only testifying

witness. No testimony was elicited by either party regarding

probable cause for Arbogast's arrest.

On November 17, 2023, the District Court issued its

FOFs/COLs in favor of the State, and in a footnote stated that:

3
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

At the conclusion of the hearing on the Motion,
counsel for Defendant also argued that the State failed to
set forth sufficient facts to establish probable cause for
the OVUII arrest. This argument is unavailing. Aside from
simply stating so in a single sentence in the introductory
paragraph of the Motion, it is clear from the body of the
Motion that lack of probable cause was not a ground for the
Motion. Accordingly, the Court respectfully declines to
address this issue.

On the same day, Arbogast entered a conditional guilty plea

reserving the right to appeal from the judgment to seek review of

the Motion to Suppress.

The challenged COLs are as follows:
18. Standardized field sobriety tests do not infringe upon
a defendant's constitutional right, under the Fourth
Amendment to the United States Constitution and Article I,
Section 7 of the Hawai i State Constitution, to be secure
from unreasonable searches, seizures, and invasions of
privacy. These tests involve nothing more than an
exhibition of physical characteristics of coordination. The
tests seek neither communications nor testimony from a
defendant. The tests, even if compelled, do not run afoul
of the constitutional prohibition against compulsory self-
incrimination. State v. Wyatt, 67 Haw. 293, 301-03 (1984)
(emphasis added).

19. Defendant's consent to the SFSTs was not required.

. . . .

21. Even assuming, arguendo, consent was required, based
on the court's review of the totality of the circumstances,
Defendant freely and voluntarily consented to participate in
the SFSTs, and there was also no evidence of any force or
compulsion on the part of Officer Mehra for Defendant to
consent to participate in the SFSTs.

"A trial court's conclusions of law are reviewed de

novo under the right/wrong standard." State v. Kalua, 144

Hawai i 7, 10, 434 P.3d 1202, 1205 (2019) (quoting State v.

Adler, 108 Hawai i 169, 174, 118 P.3d 652, 657 (2005)).

It is well settled that an FST does not infringe upon a

defendant's constitutional rights, under the Fourth Amendment to

the United States Constitution and article I, section 7 of the

Hawai i State Constitution, to be secure from unreasonable

4
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

searches, seizures and invasions of privacy, even if compelled.

State v. Wyatt, 67 Haw. 293, 303-06, 687 P.2d 544, 551-53 (1984);

see also State v. Uchima, 147 Hawai i 64, 84–85, 464 P.3d 852

872–73 (2020). COLs 18, 19, and 21 correctly reflect the well-

settled law on this issue. Thus, Arbogast's arguments to the

contrary are without merit.

Arbogast further argues that the Motion to Suppress

should have been granted because the State did not establish

probable cause for her arrest during the hearing on the Motion to

Suppress. The District Court correctly noted that Arbogast had

not argued that the State failed to set forth sufficient facts to

establish probable cause for the OVUII arrest in the Motion to

Suppress, except for a passing reference in the introductory

paragraph of the motion, and that Arbogast merely repeated this

bare assertion at the conclusion of the hearing on the motion.

Hawai i Rules of Penal Procedure Rule 47 requires that a motion

made in writing or orally shall state the grounds upon which it

is made. Arbogast did not state, in her Motion to Suppress, the

grounds on which the State allegedly failed to establish probable

cause and instead argued at length about the FST issues discussed

supra. Moreover, Arbogast offers no support for the proposition

that evidence of Arbogast's performance on an FST must be

suppressed because probable cause to arrest Arbogast for OVUII

had not been established prior to the administration of the FST.

Accordingly, we conclude that this argument is without merit.

5
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

For these reasons, the District Court's November 17,

2023 Judgment is affirmed.

DATED: Honolulu, Hawai i, December 23, 2025.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Hayden Aluli,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
County of Maui, Associate Judge
for Plaintiff-Appellee.