State v. Hill

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-DEC-2020
07:50 AM
Dkt. 54 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
NIGEL MATTHEW HILL, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-17-00098)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

Defendant-Appellant Nigel Matthew Hill (Hill) appeals
from a Notice of Entry of Judgment and/or Order and Plea/Judgment
(Judgment), filed on July 18, 2018, in the District Court of the
First Circuit (district court).1
Following a bench trial, the district court convicted
Hill of (1) Operating a Vehicle Under the Influence of an
Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS)
§ 291E-61(a)(3) (2007 & Supp. 2016)2 (Count 1); and Excessive

1
The Honorable James C. McWhinnie presided.
2
HRS § 291E-61(a)(3) provides in relevant part:
(a) A person commits the offense of operating a vehicle
under the influence of an intoxicant if the person
operates or assumes actual physical control of a vehicle:

. . .
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Speeding, in violation of HRS § 291C-105(a) (2007) (Count 2).3
Hill's conviction for OVUII was based on evidence of a breath
test, and his conviction for Excessive Speeding was predicated on
evidence of a laser device reading that showed him driving at 93
miles per hour in a 45-mile-per-hour zone.
On appeal, Hill argues that: (1) the district court
erred in admitting the speed reading because Plaintiff-Appellee
State of Hawai#i (State) did not establish sufficient foundation
that (a) the citing officer's laser device was tested for
accuracy according to the manufacturer's recommendations, and (b)
the citing officer's training to operate the device met the
manufacturer's requirements; and (2) the district court erred in
admitting the breath test results because Hill did not knowingly
and intelligently consent to the test.
Upon careful review of the record and the briefs
submitted by the parties, having given due consideration to the
arguments advanced and the issues raised by the parties, as well
as the relevant legal authorities, we reverse in part and affirm
in part.
(1) With regard to Hill's first point of error, to lay
an adequate foundation for the speed reading from a laser gun,
the State must demonstrate that: (a) the accuracy of the laser
gun was tested according to the manufacturer's recommended
procedures; and (b) "the nature and extent of an officer's

2
(...continued)
(3) With .08 or more grams of alcohol per two
hundred ten liters of breath[.]
3
HRS § 291C-105(a) provides:

(a) No person shall drive a motor vehicle at a speed
exceeding:
(1) The applicable state or county speed limit
by thirty miles per hour or more; or
(2) Eighty miles per hour or more irrespective
of the applicable state or county speed
limit.

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

training in the operation of a laser gun [met] the requirements
indicated by the manufacturer." State v. Assaye, 121 Hawai#i
204, 213-15, 216 P.3d 1227, 1236-38 (2009). To meet the training
prong, "the prosecution must establish both (1) the requirements
indicated by the manufacturer, and (2) the training actually
received by the operator of the laser gun." State v. Gonzalez,
128 Hawai#i 314, 327, 288 P.3d 788, 801 (2012).
The State did not establish the training prong.
Officer Ty Ah Nee (Officer Ah Nee) testified that he took two
training courses for "LIDAR" devices manufactured by Laser
Technologies, Inc. (LTI): one to operate LTI's Ultralyte model,
and the other, conducted by Corporal Robert Steiner (Corporal
Steiner), to operate LTI's 20/20 TruSpeed model (TruSpeed), which
Officer Ah Nee used to measure Hill's speed on the date of the
subject incident. Officer Ah Nee testified that he received an
LTI manual for the device during his Ultralyte training, and that
LTI does not have any training requirements because the manual
did not specify "exactly how many hours or what [was] needed" to
be able to use the device.
The State did not adduce any evidence that the LTI
manual Officer Ah Nee received for the Ultralyte training also
applied to the TruSpeed, or elicit any testimony as to any manual
in relation to Officer Ah Nee's training for the TruSpeed. On
this record, the State did not carry its burden to establish what
the manufacturer's requirements actually are for training
officers to use the TruSpeed. See State v. King, No. CAAP-13-
0000908, 134 Hawai#i 540, 345 P.3d 206, 2015 WL 1400903, at *2
(App. Mar. 27, 2015).
Moreover, the record does not indicate that LTI trained
or certified Corporal Steiner to be a TruSpeed instructor, that
LTI approved the TruSpeed course attended by Officer Ah Nee, or
that Officer Ah Nee received any LTI certification to operate
that device. Based on the foregoing, the State failed to
establish the training prong. See State v. Amiral, 132 Hawai#i
170, 178-79, 319 P.3d 1178, 1186-87 (2014); State v. Torres, No.

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

CAAP-XX-XXXXXXX, 148 Hawai#i 26, 466 P.3d 885, 2020 WL 3542160,
at *2 (App. June 30, 2020). Thus, the State failed to lay a
sufficient foundation for the speed reading, and the district
court erred in admitting that evidence. There was no other
evidence to indicate that Hill's vehicle was traveling at a speed
exceeding the speed limit by 30 miles per hour or more, or that
his vehicle was traveling in excess of 80 miles per hour, in
violation of HRS § 291C-105(a)(1) or (a)(2), respectively.
Therefore, Hill's conviction for excessive speeding must be
reversed.4 See Assaye, 121 Hawai#i at 216, 216 P.3d at 1239.
(2) With respect to Hill's second point of error, the
district court did not err in admitting the results of Hill's
breath test. The crux of Hill's argument is that he did not
knowingly and intelligently consent to the test because the
police department's implied consent form, which advised him of
his right to refuse testing, was coercive. The implied consent
form was not coercive, and Hill fails to establish that the
evidence otherwise indicates that he was coerced. See State v.
Hosaka, 148 Hawai#i 252, __, 472 P.3d 19, 30 (2020).
Therefore, IT IS HEREBY ORDERED that the Judgment
entered by the District Court of the First Circuit is reversed in
part and affirmed in part. Hill's conviction for Excessive
Speeding is reversed, and his conviction for OVUII is affirmed.
DATED: Honolulu, Hawai#i, December 9, 2020

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Melanie R. Ragamat,
Deputy Public Defender, /s/ Katherine G. Leonard
for Defendant-Appellant. Associate Judge

Stephen K. Tsushima, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee.

4
In light of our holding, we do not address Hill's argument that the
State failed to demonstrate that the accuracy of Officer Ah Nee's device was
tested according to the manufacturer's recommended procedures.

4