State v. Ashbaugh

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-SEP-2024
07:56 AM
Dkt. 59 SO

CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
JOSHUA D. ASHBAUGH, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
(WAILUKU DIVISION)
(CASE NO. 2DTA-20-00904)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

Defendant-Appellant Joshua D. Ashbaugh (Ashbaugh)

appeals from the September 17, 2021 Judgment and Notice of Entry

of Judgment (Judgment) entered in the District Court of the

Second Circuit, Wailuku Division (District Court).1 Ashbaugh

conditionally pleaded no contest to a charge of Operating a

Vehicle Under the Influence of an Intoxicant (OVUII) in violation

of Hawaii Revised Statutes (HRS) § 291E-61(a)(1)(3) (2020)2 and

1
The Honorable Kirstin M. Hamman presided.
2
HRS § 291-61(a)(1)(3) provides:

§ 291-E-61 Operating a vehicle under the influence of
an intoxicant. (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...)
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an amended charge of Operating a Motor Vehicle Without Due Care

in violation of Section 10.52.010 of the Maui County Code (MCC).3
4

Ashbaugh raises three points of error on appeal,

contending that: (1) the District Court did not have

jurisdiction because the Complaint was fatally defective pursuant

to HRS § 805-1 (2014), Hawai#i Rules of Penal Procedure (HRPP)

Rule 47(d) and State v. Thompson, 150 Hawai#i 262, 500 P.3d 447

(2021); (2) because the Complaint was fatally defective,
Ashbaugh's arraignment did not comply with HRPP Rule 5(b); and

(3) the District Court erred in denying the Motion to Suppress.

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 by the parties, we

resolve Ashbaugh's points of error as follows:

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(...continued)
(1) While under the influence of alcohol in an amount
sufficient to impair the person's normal mental
faculties or ability to care for the person and guard
against casualty;

. . . .
(3) With .08 or more grams of alcohol per two hundred
ten liters of breath; or

. . . .

3
Section 10.52.010 of the Maui County Code provides:
Every operator of a motor vehicle shall exercise due care in
the operation of such vehicle upon any highway in order to
avoid colliding with any vehicle, pedestrian, other object,
or embankment on or off the roadway.
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The Honorable Michelle Drewyer presided over the hearing on
Ashbaugh's April 14, 2021 Motion to Suppress Evidence and Statements ( Motion
to Suppress) and denied the Motion to Suppress. The Honorable Kirstin M.
Hamman entered the Judgment.

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(1) Ashbaugh contends that the Complaint does not meet

the requirements of HRS § 805-1, HRPP Rule 47(d), and Thompson,

because it was not signed by either of the two Maui Police

Department (MPD) officers who conducted Ashbaugh's OVUII

investigation and arrest.

However, HRS § 805-1 does not apply to the Complaint

because it does not seek a penal summons or an arrest warrant.

See State v. Mortensen-Young, 152 Hawai#i 385, 395, 526 P.3d 362,

372 (2023) (limiting the applicability of HRS § 805-1 and its
holding in Thompson to complaints seeking a penal summons or

arrest warrant). In OVUII prosecutions, the prosecution of

complaints is analyzed under HRPP Rule 7. See, e.g., State v.

Primo, CAAP-XX-XXXXXXX, 2023 WL 3531691, *3 (Haw. App. May 18,

2023) (SDO) (citing Mortensen-Young, 152 Hawai#i at 399, 526 P.3d

at 376). Here, the deputy prosecuting attorney signed the

Complaint consistent with HRPP Rules 7(d) and 47(d).

Accordingly, we conclude that Ashbaugh's first point of

error is without merit.

(2) Ashbaugh argues that his arraignment was defective

pursuant to HRPP Rule 5(b) because he was arraigned on a fatally

defective Complaint. In light of our ruling that the Complaint

was not defective, this claim is meritless.

(3) Ashbaugh argues that the District Court erred in

denying the Motion to Suppress because the District Court ruled

that he was not in custody and therefore his Miranda rights were

not violated. As a result, Ashbaugh asserts that the field

sobriety test (FST) results, statements made during the FST, his

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responses to the medical rule-out questions (MROs), as well as

his earlier statements that he crashed his car and was the driver

of the subject vehicle were "fruits of the poisonous tree" and

should have been suppressed. We review de novo. State v.

Spillner, 116 Hawai#i 351, 357, 173 P.3d 498, 504 (2007); State

v. Kazanas, 138 Hawai#i 23, 33, 375 P.3d 1261, 1271 (2016).

Miranda warnings are required when a defendant is in

custody and under interrogation. State v. Loo, 94 Hawai#i 207,

210, 10 P.3d 728, 731 (2000). A person is in custody for Miranda
purposes
[i]f an objective assessment of the totality of the
circumstances reflects either (1) that the person has become
impliedly accused of committing a crime because the
questions of the police have become sustained and coercive,
such that they are no longer reasonably designed briefly to
confirm or dispel their reasonable suspicion or (2) that the
point of arrest has arrived because either (a) probable
cause to arrest has developed or (b) the police have
subjected the person to an unlawful "de facto" arrest
without probable cause to do so.

State v. Hewitt, 153 Hawai#i 33, 43, 526 P.3d 558, 568 (2023)

(citation omitted) (emphasis added).

In Hewitt, the Hawai#i Supreme Court re-established its

bright-line rule holding that when probable cause has developed,
Miranda warnings are required by article I, section 10 of the

Hawai#i Constitution. Id. at 36, 526 P.3d at 561.

"Probable cause exists when the arresting officer has

reasonable grounds to believe, from facts and circumstances

personally known to the officer, or of which the officer has

trustworthy information, that the person arrested has committed

or is committing an offense." State v. Won, 137 Hawai#i 330,

347, 372 P.3d 1065, 1082 (2015) (citing State v. Lloyd, 61 Haw.

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505, 509, 606 P.2d 913, 916 (1980)). Probable cause requires

more than a mere suspicion but less than a certainty. State v.

Maganis, 109 Hawai#i 84, 86, 123 P.3d 679, 681 (2005). A

probable cause determination is based on the totality of the

circumstances. Hewitt, 153 Hawai#i at 43, 526 P.3d at 568; see

also State v. Ferrer, 95 Hawai#i 409, 431, 23 P.3d 744, 766 (App.

2001).

Here, Ashbaugh first argues that MPD Officer Asbel

Polanco (Officer Polanco) had probable cause to arrest Ashbaugh

for Inattention to Driving pursuant to HRS § 291-12 (2020)5 when

Officer Polanco arrived at the scene of the accident, because

Ashbaugh's car had heavy front-end damage, appeared to have

rolled over a tree and sign on the side of the road, and Ashbaugh

was the only person in the vehicle. Officer Polanco testified

that Ashbaugh asked him, "what happened?" When Officer Polanco

responded, "you crashed your car;" Ashbaugh said, "yeah, I

crashed my car."

Without knowing any more information about how or why

the car crashed, the accident could have been the result of

numerous scenarios that did not involve inattention to driving.

Thus, contrary to Ashbaugh's argument, probable cause did not

develop the moment Officer Polanco learned that Ashbaugh was the

5
HRS § 291-12 states:

§ 291-12 Inattention to Driving. Whoever operates
any vehicle negligently as to cause a collision with, or
injury or damage to, as the case may be, any person, vehicle
or other property shall be fined not more than $500 or
imprisoned not more than thirty days, or both, and may be
subject to a surcharge of up to $100, which shall be
deposited into the trauma system special fund.

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driver of the crashed sedan. Therefore, we conclude that the

District Court did not err in declining to suppress Ashbaugh's

initial un-Mirandized responses to Officer Polanco, who asked

Ashbaugh if he was okay, and then asked him for "his information"

– whether he was the driver, his name, the last four numbers of

his social, DOB, address, and where he worked.

Ashbaugh further argues that Officer Polanco "could

have arrested" him, i.e., had probable cause to arrest him, for

OVUII based on the accident and that Officer Polanco could smell
liquor on his breath as he spoke to the officer. Officer Polanco

also testified that he had seen Ashbaugh's vehicle earlier at

"the Triangle," a group of bars. Officer Polanco described

Ashbaugh's demeanor as argumentative. Officer Polanco testified

that he did not note anything else about Ashbaugh's condition, in

part because he could not see Ashbaugh's eyes and MPD Officer

Murphy Aquino (Officer Aquino) began taking over the OVUII

investigation.

Officer Aquino testified that when he arrived on the

scene he observed Ashbaugh talking to Officer Polanco, who had

informed him that he observed signs of Ashbaugh being

intoxicated, specifically that he smelled liquor. As Officer

Aquino observed Ashbaugh speaking with Officer Polanco, and that

as Ashbaugh "stood still he would . . . -– he would sway a little

from left to right." Officer Aquino noticed that Ashbaugh had

red, watery eyes, and his face seemed to be flushed.

While the mere fact of the crash, the smell of alcohol

initially detected by Officer Polanco, and the earlier sighting

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of the vehicle near a cluster of bars may have only raised a

reasonable suspicion of OVUII, we conclude that at the point of

Officer Aquino's further observations, based on the totality of

the circumstances within the officers' knowledge, and of which

they had reasonably trustworthy information, probable cause had

developed. The totality of circumstances here, i.e., this

combination of Ashbaugh's involvement in a one-car crash, the

presence of the smell of liquor of the breath, the physical

manifestations of impairment observed at the scene of the crash
and the other supporting facts testified to by the officers,

meets the objective standard for establishment of probable cause

to arrest for OVUII. The MPD officers had probable cause to

arrest Ashbaugh for OVUII and should have provided him with

Miranda warnings.

Therefore, Officer Aquino's subsequent asking Ashbaugh,

inter alia, MROs without Miranda warnings contravened article I,

section 10 of the Hawai#i Constitution. Ashbaugh's responses to

those questions, and any other subsequent statements, must be

suppressed as fruit of the poisonous tree. See State v. Manion,

151 Hawai#i 267, 272, 511 P.3d 766, 771 (2022). However,

Ashbaugh's purely physical performance on the FST is

nontestimonial evidence that did not stem from the exploitation

of the prior illegality here. See id. at 272-73, 511 P.3d at

771-72. "Purely physical evidence can provide incriminating

information about a person's mental faculties yet nonetheless be

nontestimonial." Id. at 274, 511 P.3d at 773 (citation omitted).

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Accordingly, although the District Court did not err in

declining to suppress Ashbaugh's initial statements to Officer

Polanco, the District Court erred in declining to suppress

Ashbaugh's oral statements made after the MPD officers had

probable cause to arrest Ashbaugh for OVUII and failed to provide

him with Miranda warnings, as set forth above.

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

2021 Judgment is vacated, and this case is remanded to the

District Court for further proceedings consistent with this
Summary Disposition Order.

DATED: Honolulu, Hawai#i, September 12, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Alen M. Kaneshiro,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Joanne S.C. Hicks,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
County of Maui, Associate Judge
for Plaintiff-Appellee.

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