Oyadomari v. Administrative Director of Courts

LAW LIBRARY

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

NO. 29918 oy

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

02 8 Wy 92 Tr olaz

Vv

ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI'I,
Respondent-Appellee

ROBERT M. OYADOMARI, JR., Petitioner-Appellant,

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT,

HONOLULU DIVISION
1DAA-09-0005)

(CASE NO.
MEMORANDUM OPINION
Nakamura, C.J., Foley and Fujise, JJ.)

(By:

Petitioner-Appellant Robert M. Oyadomari,
appeals from the Decision and Order Affirming
2009 in the District

Jr.

(Oyadomari)
(district court) .?

Administrative Revocation filed on May 11,
Honolulu Division

Court of the First Circuit,
On appeal, Oyadomari contends the district court erred
(1) the denial of the subpoena duces tecum

in concluding that
(SDT) by the Administrative Driver's License Revocation Office
(2) there was substantial evidence

(ADLRO) was harmless error and
to support the determination of the ADLRO Hearing Officer
(Hearing Officer) that there was reasonable suspicion of a
traffic violation to warrant the police officer's stop of
Oyadomari.

I. BACKGROUND

Oyadomari was arrested on November 26, 2008 by Officer
The administrative hearing was originally scheduled

Moszkowicz.

+ The Honorable William A. Cardwell presided.
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for December 19, 2008. On either December 18 or 19, 2008,
Oyadomari requested a continuance to allow counsel to investigate
and "to determine proper subpoena request." ADLRO granted the
continuance. On December 23, 2008, Oyadomari submitted to ADLRO
a "Request for Subpoenas To Be Issued," requesting that subpoenas
be issued to Officers Kau and Moszkowicz, and an SDT for "[a]ny
and all audio and video recording of the stop and/or arrest of
Oyadomari." On December 26, 2008, ADLRO granted the issuance of
subpoenas to the officers, but denied the issuance of the SDT...

At the ADLRO hearing, Officer Moszkowicz testified that
on November 26, 2008 at approximately 9:30 p.m., he was on North
King Street between Winant Street and Haka Drive setting up
flares for a roadblock. At that location, there are three
westbound lanes on North King Street. He first saw Oyadomari
when Oyadomari was on King Street at the intersection where
Houghtailing becomes Waiakamilo (Waiakamilo intersection). His
attention was drawn to Oyadomari because Oyadomari's vehicle was
the first one to approach as Officer Moszkowicz was setting out
the flares. Officer Moszkowicz observed Oyadomari make a U-turn
just past the intersection of North King Street and Winant
Street. Oyadomari was unable to complete the U-turn and had to
stop, reverse, and then proceed forward. Oyadomari came toa
stop at the stop light at the Waiakamilo intersection.

Officer Moszkowicz radioed Officer Kau and said that he
had observed Oyadomari execute a U-turn. Officer Kau
acknowledged that he had also seen the U-turn. Officer Kau
effected the stop of Oyadomari. Officer Moszkowicz testified
that he believed the U-turn executed by Oyadomari violated an
ordinance prohibiting U-turns on highways that have three or more

lanes unless expressly permitted by a sign.
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Oyadomari failed the Standardized Field Sobriety Test.
Officer Kau told Officer Moszkowicz that Oyadomari also failed
the Preliminary Alcohol Screening Test. Oyadomari refused to
take a breath or blood test.

Officer Kau testified that he presently has, and did
have at the time of the stop, a camera in his car that would have
recorded a video of his conversation with Oyadomari (the
Recording). However, he does not keep a video if there are no
complaints and he records over it. He testified that "three
weeks is pretty much the maximum that it will hold."

Oyadomari asked to subpoena the Recording and for a
continuance to allow him an opportunity to view the Recording.
Officer Kau testified that the camera is his personal camera and
the Recording of the Oyadomari incident had already been lost.
The hearing was stopped to allow Officer Kau to go out to his car
and check the camera. Officer Kau reported that the incident was
not on the camera.

. Oyadomari testified that he did not make a U-turn, but
turned left into a parking lot to avoid the roadblock.

In the February 23, 2009 Findings of Fact, Conclusions
of Law and Decision, the Hearing Officer found that after the
arrest of Oyadomari, Oyadomari refused to submit to a breath or
blood test. The Hearing Officer concluded that Oyadomari had had
three alcohol enforcement contacts within the prior five years
and revoked his driver's license for life.

The Hearing Officer also found that ADLRO had properly
denied the pre-hearing request for an SDT for any and all
Recordings of the stop and/or arrest of Oyadomari because (1)
there was no evidence at that stage of the proceedings of the

existence of any recordings and therefore the request was based
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upon mere speculation; (2) the Recording was only of Officer
Kau's initial contact with Oyadomari and did not include the
alleged traffic violation, stop, or arrest and therefore was not
relevant; and (3) the Recording had been erased by the time the
request was made.

On appeal to the district court, the court affirmed the
administrative revocation. In its May 11, 2009 Decision and
Order Affirming Administrative Revocation (D&O), the district
court held that "ADLRO abused it [sic] discretion in denying the
request for [an SDT] directed only to officers who submitted
sworn statements. The Hearing Officer erred in ruling that the
denial was proper." However, the district court also found that
the police officer testified and the Hearing Officer found that
the Recording no longer existed after a maximum of three weeks.
‘The district court found that the Recording had been erased by
the time Oyadomari submitted the request for an SDT and therefore
the error in denying the request for the SDT was harmless. The
district court also determined that there was sufficient evidence
to support the Hearing Officer's determination of reasonable
suspicion to justify the stop of Oyadomari based upon an observed
traffic violation.

Oyadomari timely appealed.

II. STANDARD OF REVIEW

This is a secondary appeal from the district court's
review of the administrative revocation of a driver's license.
We review the district court's decision under the right/wrong

standard. Brune v. Administrative Director of Courts, State of

Hawaii, 110 Hawai'i 172, 176-177, 130 P.3d 1037, 1041-42 (2006).
The district court's review of the administrative director's

decision is limited to whether the director:

(1) Exceeded constitutional or statutory authority;

(2) Erroneously interpreted the law;
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(3) Acted in an arbitrary or capricious manner;
(4) Committed an abuse of discretion; or
(5) Made a determination that was unsupported by the

evidence in the record.

Hawaii Revised Statutes (HRS) § 291E-40(c) (2007 Repl.).
IIl. DISCUSSION

A. ADLRO'S DENIAL OF THE SDT WAS HARMLESS ERROR.

The Hearing Officer determined that ADLRO had not erred
by not issuing an SDT for the Recording because, inter alia, the
Recording did not exist at the time of the initial request for
it. The district court found that although ADLRO should have
approved the December 23, 2008 request for the SDT, the non-
existence of the Recording at -the time of the request made the
error harmless.

The "Request for Subpoenas To Be Issued" sought an SDT
for " La] ny and all audio and video recording of the stop and

arrest of Oyadomari." In Biscoe v. Tanaka, 76 Hawai'i 380, 878

P.2d 719 (1994), the Hawai‘i Supreme Court affirmed the denial of
a request for an SDT where "[t]he request merely named the
Custodian of Records and provided an address." Id. at 385, 878

P.2d at 724. The Hawai'i Supreme Court held:

In order to ensure that an arrestee's rights are adequately
protected, the director should issue all requested subpoenas
unless the witness does not possess any relevant evidence or
the subpoena request is otherwise deficient. If a proper
request is made for a subpoena for a relevant witness, the
refusal to issue the subpoena would constitute an abuse of
discretion.

Id. By stating the subject matter of the recordings sought and
the relevancy to the purpose of the hearing being apparent,
Oyadomari's request appears to have been explicit as to its
object and not otherwise deficient so that the request should

have been granted.
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However, even if the request had been granted, the
evidence supported the Hearing Officer's determination that at
the time the SDT was requested, Officer Kau no longer possessed a
relevant Recording. Officer Kau testified that he retained video
recordings no more than three weeks (21 days) after the event.
The incident took place on November 26, 2008. The request for
the SDT was made on December 23, 2008. The period of time that
had elapsed between the date of the incident and the request for
the SDT was 27 days or 6 days longer than the maximum period that
Officer Kau retained his video recordings. There was substantial
evidence that no Recording existed at the time the request was
made, and, therefore, the issuance of the SDT would have been
futile and the error in denying the SDT, harmless. The district
court was therefore right in not reversing the determination of
the Hearing Officer based upon the harmless error.

B. THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THE

HEARING OFFICER'S DETERMINATION THAT THERE WAS
REASONABLE SUSPICION OF A TRAFFIC. VIOLATION TO
WARRANT THE POLICE OFFICER'S STOP OF OYADOMARI.

The district court was correct in concluding there was
reasonable suspicion of a traffic violation to justify a traffic
stop of Oyadomari. Officer Kau had reasonable suspicion of a
traffic violation to justify a stop of Oyadomari based upon
Officer Kau's observation of Oyadomari executing a U-turn ona
highway with three or more lanes.

Officer Moszkowicz testified that he observed Oyadomari
execute a U-turn and he radioed Officer Kau to inform him of his
observations. Officer Kau acknowledged that he also saw
Oyadomari execute the U-turn. Officer Moszkowicz testified that

Oyadomari was on a three-lane highway.
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Revised Ordinances of Honolulu (ROH) § 15-8.4 provides:

Sec. 15-8.4 Limitations on U-turns.

The driver of any vehicle shall not turn such vehicle so
as to proceed in the opposite direction upon any street ina
business district, upon any highway”! with three or more
lanes, or at any intersection where traffic is controlled by
traffic signal lights, except as otherwise permitted by
official signs and markings.

(Footnote not in original.)

Based on ROH § 15-8.4, it was reasonable for Officers
Moszkowicz and Kau to believe that Oyadomari had committed a
traffic violation.

Oyadomari argues that the U-turn was not illegal
because HRS § 291C-82(c) (2007 Repl.) requires the posting of a
sign stating that U-turns are prohibited and there was no

evidence of such a sign. HRS § 291C-82 provides:

§291C-82 Turning so as to proceed in the opposite
direction. (a) No vehicle shall be turned so as to proceed
in the opposite direction upon any curve, or upon the
approach to or near the crest of a grade, where such vehicle
cannot be seen by the driver of any other vehicle
approaching from either direction within five hundred feet.

(b) In addition to the prohibition in subsection (a),
the director of transportation is authorized to and the
counties may by ordinance with respect to highways under
their respective jurisdictions prohibit the turning of any
vehicle so as to proceed in the opposite direction on the
highway at any location where such turning would be
dangerous to those using the highway or would unduly
interfere with the free movement of traffic.

(c) The director of transportation and the counties
by ordinance with respect to the highways under their
respective jurisdictions shall place signs which are clearly
visible to an ordinarily observant person prohibiting the
turning of a vehicle to proceed in the opposite direction.

2 ROH Sec. 15-2.23 defines "highway":

Sec. 15-2.23 Streets and related terms,

"Street or highway” means the entire width between the
property lines of every way publicly owned and maintained when any
part thereof is open to the use of the public for purposes of
vehicular travel
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The signs shall be official signs and no person shall turn
any vehicle in violation of the restrictions stated on such
signs.

Reasonable suspicion does not require definitive proof
or even probable cause to believe that a violation has occurred.
Because the mere possibility that Oyadomari might not have been
guilty based upon HRS § 291C-82(c) would not divest the police
officers of a reasonable suspicion of a traffic violation, we
express no opinion on Oyadomari's interpretation of HRS § 291C-
82(c). "“[R]}easonable suspicion could still warrant effecting a
traffic stop of the driver, despite the possibility of innocence

." State v. Spillner, 116 Hawai‘i 351, 361, 173 P.3d 498,

508 (2007) (emphasis in original). Officers Moszkowicz and Kau
had sufficient information to support a reasonable suspicion of a
violation of the plain language of ROH § 15-8.4, and therefore
the traffic stop of Oyadomari was proper.

. IV. CONCLUSION

The Decision and Order Affirming Administrative

Revocation filed on May 11, 2009 in the District Court of the
First Circuit, Honolulu Division, is affirmed.

DATED: Honolulu, Hawai'i, July 26, 2010.

On the briefs:

Kenneth J. Shimozono fo af. Pik

(Takemoto & Shimozono)

for Petitioner-Appellant. Chief Judge
Dorothy Sellers,

Solicitor General, .

Rebecca A. Copeland, lk

Deputy Solicitor General,

‘for Respondent-Appellee. Associate fe. Fe

Associate Judge