Gendreau v. Administrative Director of the Courts

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-MAY-2021
07:54 AM
Dkt. 50 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JONATHAN H. GENDREAU, Respondent-Petitioner-Appellant,
v.
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI#I,
Respondent-Appellee

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
NORTH AND SOUTH KONA DIVISION
(CASE NO. 3RC19100111K)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)

Respondent-Petitioner-Appellant Jonathan H. Gendreau
appeals from the "Order Affirming Administrative Revocation"
entered by the District Court of the Third Circuit, North and
South Kona Division on July 10, 2019.1 For the reasons explained
below, we affirm the Order Affirming Administrative Revocation.
On December 8, 2018, at about 10:25 p.m., Gendreau
flipped his Dodge Ram pickup truck on Highway 190 on Hawai#i
Island. Gendreau was the only occupant. Hawai#i County Police
Department officer Johnathan Rapoza arrived at the scene.
Officer Rapoza saw that Gendreau had red, watery, glassy eyes;
smelled the odor of alcohol coming from Gendreau; and heard that
Gendreau "kind of had a slow slurred speech."

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The Honorable Wendy M. DeWeese presided.
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Officer Rapoza began to perform the Standardized Field
Sobriety Tests. Gendreau displayed six of six clues during the
horizontal gaze nystagmus test. Gendreau told Officer Rapoza he
had surgery on his foot and would not be able to perform the
walk-and-turn or one-leg stand tests. Officer Rapoza arrested
Gendreau for operating a vehicle under the influence of an
intoxicant (OVUII) in violation of Hawaii Revised Statutes (HRS)
§ 291E-61.2
Gendreau agreed to take a breath test. Officer Rapoza
signed the Sworn Statement of Intoxilyzer Operator reporting
Gendreau's alcohol concentration was 0.109 grams of alcohol per
210 liters of breath. Officer Rapoza issued Gendreau a Notice of
Administrative Revocation (NOAR) of his driver's license.
The Administrative Driver's License Revocation Office
(ADLRO) sustained the NOAR on December 14, 2018. Gendreau
requested an administrative hearing. The hearing was held on
January 25, 2019. A Notice of Administrative Hearing Decision
was issued on January 30, 2019. The ADLRO hearings officer
sustained the administrative revocation.
Gendreau filed a Petition for Judicial Review on
February 28, 2019. The petition was heard on May 14, 2019. The
district court entered the Order Affirming Administrative

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HRS § 291E-61 (2007) provides, in relevant part:
§ 291E-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:
(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; [or]
. . . .
(3) With .08 or more grams of alcohol per two
hundred ten liters of breath[.]

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Revocation on July 10, 2019. Gendreau's driver's license was
revoked until January 8, 2020. This appeal followed.3
Our review of a decision by a district court on appeal
from an ADLRO administrative hearing decision is a secondary
appeal; we must determine whether the district court was right or
wrong to affirm the ADLRO hearings officer's administrative
revocation of Gendreau's driver's license. Wolcott v. Admin.
Dir. of the Courts, 148 Hawai#i 407, 413, 477 P.3d 847, 853
(2020). In an appeal from the administrative revocation of a
driver's license, the issues before the reviewing court are
whether the ADLRO hearings officer: (1) exceeded constitutional
or statutory authority; (2) erroneously interpreted the law;
(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. HRS § 291E-40 (2007).
Gendreau raises three points of error: (1) the ADLRO
case file did not contain the printout of the Intoxilyzer test
result; (2) there was no sworn statement from the police officer
who assisted with the Intoxilyzer test; and (3) Officer Rapoza's
sworn statement was false.4

1. The ADLRO case file need not contain the
Intoxilyzer printout.

HRS § 291E-36 (2007) applies to "Documents required to
be submitted for administrative review; sworn statements." The
statute provides, in relevant part:

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Although the revocation period has expired, the "capable of
repetition, yet evading review" exception to the mootness doctrine applies to
this appeal. Slupecki v. Admin. Dir. of the Courts, 110 Hawai#i 407, 409 n.4,
133 P.3d 1199, 1201 n.4 (2006).
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Gendreau also argues that the Intoxilyzer printout is Brady
material, citing Brady v. Maryland, 373 U.S. 83 (1963). That argument, made
for the first time in the reply brief, is waived. In re Hawaiian Flour Mills,
Inc., 76 Hawai#i 1, 14 n.5, 868 P.2d 419, 432 n.5 (1994) (holding that point
of error first presented in reply brief is deemed waived because no response
could be made by appellee); see Hawai#i Rules of Appellate Procedure, Rule
28(d) ("The reply brief shall be confined to matters presented in the
answering brief."). We note, however, that "ADLRO proceedings are civil in
nature." Gray v. Admin. Dir. of the Court, 84 Hawai#i 138, 141 n.5, 931 P.2d
580, 583 n.5 (1997) (citations omitted).

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(a) Whenever a respondent has been arrested for a
violation of section 291E-61 . . . and submits to a test
that establishes: the respondent's alcohol concentration was
.08 or more . . . the following shall be forwarded
immediately to the director:
(1) A copy of the arrest report . . . and the sworn
statement of the arresting law enforcement
officer or the officer who issued the notice of
administrative revocation . . . [;]
. . . .

(2) In a case involving an alcohol related offense,
the sworn statement of the person responsible
for maintenance of the testing equipment
. . . [;]
. . . .

(3) In a case involving an alcohol related offense,
the sworn statement of the person who conducted
the test, stating facts that establish that,
pursuant to section 321-161 and rules adopted
thereunder:

(A) The person was trained and at the time the
test was conducted was certified and
capable of operating the testing
equipment;

(B) The person followed the procedures
established for conducting the test;

(C) The equipment used to conduct the test
functioned in accordance with operating
procedures and indicated that the
respondent's alcohol concentration was at,
or above, the prohibited level; and

(D) The person whose breath or blood was
tested is the respondent[.]

For OVUII cases involving alcohol where the respondent
has taken a breath test, the required documents include the
arrest report, a sworn statement of the arresting officer or the
officer who issued the NOAR, a sworn statement of the person
responsible for maintenance of the testing equipment, and the
sworn statement of the person who conducted the test. Nothing in
HRS § 291E-36 requires that the Intoxilyzer printout be submitted
to the ADLRO. Gendreau cites no other applicable statute or
rule.
In this case the Sworn Statement of Arresting Officer
and the Sworn Statement of Intoxilyzer Operator both reported

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Gendreau's test result as 0.109 grams of alcohol per 210 liters
of breath. The district court was not wrong to affirm the
administrative revocation despite the absence of the Intoxilyzer
printout from the ADLRO file.
Even if the Intoxilyzer printout was required for the
ADLRO administrative review (which it was not), there was
substantial evidence in the record to support a finding that
Gendreau flipped his pickup truck "[w]hile under the influence of
alcohol in an amount sufficient to impair [his] normal mental
faculties or ability to care for [himself] and guard against
casualty" in violation of § 291E-61(a)(1), regardless of the
alcohol concentration in his breath (which is only relevant to
establish a violation of § 291E-61(a)(3)). The district court
was not wrong to affirm the administrative revocation.

2. Officer Rapoza's Sworn Statement of
Intoxilyzer Operator was legally sufficient.

Officer Rapoza testified he was the person who
conducted the Intoxilyzer test. Officer Rapoza signed the Sworn
Statement of Intoxilyzer Operator. The sworn statement contained
all of the statutorily required information.
Gendreau argues that another police officer was
involved in his Intoxilyzer test. He testified that the other
officer "was getting the breathalyzer machine ready for me to
take and then I asked him some questions and he was explaining to
me how to blow and everything." He stated the other officer told
him the test result.
Officer Rapoza testified that there was another officer
present when Gendreau took his breath test, but that he (Officer
Rapoza) was "the intox operator." Officer Rapoza explained that
he is typically the only officer present during the Intoxilyzer
test. In Gendreau's case, the other officer was present for
safety reasons because Gendreau was uncooperative, and in the
location where the breath test was given there is no partition
between the Intoxilyzer operator and the person who was arrested.

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The hearings officer found that Officer Rapoza was the
Intoxilyzer operator. Substantial evidence supports the finding.
In agency appeals:

courts decline to consider the weight of the evidence to
ascertain whether it weighs in favor of the administrative
findings, or to review the agency's findings of fact by
passing upon the credibility of witnesses or conflicts in
testimony, especially the findings of an expert agency
dealing with a specialized field.

In re Application of Hawaiian Elec. Co., 81 Hawai#i 459, 465, 918
P.2d 561, 567 (1996) (citation omitted).
Officer Rapoza's Sworn Statement of Intoxilyzer
Operator contained all of the information required under HRS
§ 291E-36(a)(3). The district court was not wrong to affirm the
administrative revocation.

3. The pre-printed title of Officer Rapoza's
sworn statement did not affect the hearings
officer's credibility assessment.

Officer Rapoza signed a pre-printed form titled "Sworn
Statement of Initial Contact Officer." Gendreau argues that
statement was false because Officer Rapoza was not the first
police officer at the accident scene, and therefore all of
Officer Rapoza's testimony should be disregarded.
Officer Rapoza testified in the ADLRO hearing that
there was at least one other police officer at the scene before
he got there. But this is not a case in which Gendreau was
stopped by police; Gendreau stopped himself when he flipped his
pickup truck. Officer Rapoza explained that when he arrived at
the scene, Gendreau was with the paramedics (not with the other
police officer). The hearings officer found that Officer Rapoza
did not try to mislead anyone. We do not make credibility
determinations in a secondary appeal. Application of Hawaiian
Elec. Co., 81 Hawai#i at 465, 918 P.2d at 567. The district
court was not wrong to affirm the administrative revocation.

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For the foregoing reasons, the "Order Affirming
Administrative Revocation" entered by the district court on
July 10, 2019, is affirmed.
DATED: Honolulu, Hawai#i, May 25, 2021.

On the briefs:
/s/ Lisa M. Ginoza
Brian J. De Lima, Chief Judge
Jeremy J. K. Butterfield,
for Respondent-Petitioner- /s/ Keith K. Hiraoka
Appellant. Associate Judge

Dawn E. Takeuchi-Apuna, /s/ Karen T. Nakasone
Deputy Attorney General, Associate Judge
State of Hawai#i,
for Respondent-Appellee.

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