State v. Boyer

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-JUN-2023
07:59 AM
Dkt. 44 SO

NO. CAAP-XX-XXXXXXX

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

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
PAULA BOYER, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
KONA DIVISION
(CASE NO. 3DTA-20-01091)

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

Defendant-Appellant Paula Boyer (Boyer) appeals from
the May 11, 2021 Judgment and Notice of Entry of Judgment entered
in the District Court of the Third Circuit1 (District Court),
convicting her of Operating a Vehicle Under the Influence of an
Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS)
§ 291E-61(a)(1).
On appeal, Boyer raises three points of error,2

1
The Honorable Joseph P. Florendo presided.
2
Boyer's points of error do not comply Hawai#i Rules of Appellate
Procedure (HRAP) Rule 28(b)(4)(ii) and (iii) (requiring each point to state
"where in the record the alleged error occurred" and "where in the record the
alleged error was objected to or the manner in which the alleged error was
brought to the attention of the court[.]"). While HRAP Rule 28(b) further
provides that "[p]oints not presented in accordance with this section will be
disregarded," we will nevertheless address the points of error for which the
necessary information from the record appears in the statement of the case.
See Marvin v. Pflueger, 127 Hawai#i 490, 496, 280 P.3d 88, 94 (2012) (internal
citations, quotation marks, brackets, and ellipses omitted) (addressing cases
on their merits despite noncompliance with HRAP Rule 28, "where the remaining
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

contending that the District Court erred by: (1) "not
suppressing Boyers['s] un-Mirandized statements made in response
to custodial interrogation and evidence that is 'fruit' of those
statements"; (2) "granting, over the defense's objections, the
[Plaintiff-Appellee State of Hawai#i (State)]'s oral motion to
continue trial after the testimony of its first witness"; and
(3) "considering [the] Horizontal Gaze Nystagmus test
[(HGN)]'clues' as substantive evidence of impairment."
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 Boyer's
points of error as follows, and affirm.
Suppression hearing
On October 15, 2020, Boyer filed a Motion to Suppress
Evidence and Statements (Motion to Suppress), requesting to
suppress any "[e]vidence discovered by Hawaii County police
officers during [the] warrantless stop of [the] vehicle operated
by [Boyer]" in violation of Boyer's Miranda3 rights, and "[a]ny
additional fruits of the poisonous tree."
At a January 12, 2021 hearing on the Motion to
Suppress, Hawai#i County Police Department Officer Patrick
Robinson (Officer Robinson) testified that on April 10, 2020, he
received a report of a "reckless driver," a description of the
vehicle which was "driving in an erratic matter [sic]," and that
the "reporting party and the responsible party were parked in the
Kona Reef Hotel parking lot." Upon arrival, Officer Robinson saw
two vehicles parked in the parking lot with a sole operator in
each, and one of the vehicles matched the description in the
report. The officer made contact with the reporting party and
took a statement, and the reporting party directed the officer to
the location of the suspect's vehicle. Officer Robinson
identified the driver of the suspected vehicle as Boyer, and

2
(...continued)
sections of the brief provide the necessary information to identify the
party's argument.").
3
Miranda v. Arizona, 384 U.S. 436 (1966).

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

asked for her "license, registration, and proof of insurance."
Boyer began looking for her license and had a difficult time
locating it. Officer Robinson "witnessed [Boyer] pass[] her
Hawaii State driver's license" and offered assistance in locating
her license. Boyer declined any assistance and Officer Robinson
asked Boyer to "exit the vehicle" twice, which Boyer
"disregarded." Officer Robinson then "opened the door and
assisted her out of the vehicle." Officer Robinson observed that
Boyer's eyes were "glassy" and that she had a "slight smell of
[an] intoxicant on her breath."
Officer Robinson testified that he then administered a
Standardized Field Sobriety Test (SFST) on Boyer. Prior to the
SFST, Officer Robinson asked medical rule-out (MRO) questions,
including whether Boyer was "under the care of a doctor or
dentist"; had "physical defects or speech impediments"; was
"epileptic or diabetic"; taking "any type of medication"; or was
"blind" or had an "artificial eye." In response to whether she
was under the care of a doctor or dentist, diabetic or epileptic,
and taking any medication, Boyer responded that she was under the
care of a doctor, was epileptic, and was on diazepam4 for her
related symptoms.
Upon completion of the SFST, Officer Robinson
determined that he had probable cause to place Boyer under arrest
for OVUII. During the encounter, Officer Robinson never advised
Boyer of her Miranda rights.
The District Court denied the Motion to Suppress,
ruling as follows:
The Court will find that the Officer had
specific articulable facts, taken together with
rational inferences from those facts to create a
reasonable suspicion [that Boyer] had been or was
about to be involved in criminal conduct. Officer
Robinson received a report from police dispatch of a
reckless driver northbound on Alii Drive, public road,
street or highway. That the reporting driver or

4
"Diazepam" is a "tranquilizer . . . used . . . to relieve anxiety
and tension and as a muscle relaxant." Diazepam, Merriam-Webster,
https://www.merriam-webster.com/dictionary/diazepam (last visited Apr. 27,
2023).

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

reporting party observed erratic driving and described
the vehicle. . . .
The Officer drove to the reported area and
observed
two vehicles, observed [Boyer] in one vehicle with the
engine on and the motor running. From contacting the
reporting party he then contacted [Boyer] and asked
for driver's license, insurance, and registration. He
observed [that Boyer was] unable to locate those
documents, specifically a driver's license even though
he saw the driver's license in . . . [Boyer]'s wallet
and she fail [sic] to -- she was unable to retrieve it
for him.
He asked her to exit the vehicle. Upon seeing
that she had glassy eyes and had a slight smell of
intoxicating liquors on her breath, conducted the
field sobriety tests and observed clues which
indicated a suspicion of intoxication on all of the
NHTSA [(National Highway and Traffic Safety
Administration)] tests. . . .

Upon arresting . . . [Boyer] he had facts and
circumstances within his knowledge and which were
reasonably trustworthy and were sufficient to warrant
a person of -- person of reasonable caution to believe
that the offense was committed.

So the Court will deny the Motion to Suppress
the arrest and evidence emanating from the arrest.

Bench trial
At the February 9, 2021 bench trial, when the District
Court asked if the State was ready to proceed, the State
indicated that it was prepared to proceed with Officer Robinson's
testimony and would be asking for a "continuance in part for the
testimony of Petra Reinhardt [(Reinhardt)]," who initially
observed Boyer's operation of the vehicle. The defense did not
object. The District Court commenced trial with Officer
Robinson's testimony.
Officer Robinson testified that on April 10, 2020, he
received a report of a "reckless driver." Upon arriving to the
location of the reported reckless driver, Officer Robinson spoke
to the reporting party, Reinhardt, who pointed out the alleged
reckless driver in the vehicle to the officer. Officer Robinson
observed the vehicle in a "parking space [,] parked and running"
with Boyer as the driver. Officer Robinson approached the
vehicle and asked for Boyer's driver's license, proof of

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

insurance, and vehicle registration, during which Boyer "[h]ad to
be reminded several times of what she was looking for." Officer
Robinson noticed that as Boyer looked through her purse for her
driver's license, she "pass[ed] it several times." Officer
Robinson noticed that Boyer had a "slight smell of an intoxicant
emitting from her breath and body," and her eyes appeared to be
"glassy." Officer Robinson requested that Boyer exit the
vehicle, but after Boyer did not respond, Officer Robinson
"opened her vehicle door and gently assisted her out and informed
her that [he would] like to perform SFSTs on her," to which she
agreed. Officer Robinson asked Boyer the MRO questions, to which
Boyer responded that she was "epileptic and that she was
currently prescribed diazepine [sic]." Officer Robinson then
"continued on with the SFSTs," which consisted of the HGN, Walk
and Turn, and One Leg Stand tests. Officer Robinson testified
about the procedure of the tests, what he looked for, and that he
observed "clues" for intoxication from each test. Boyer related
she understood the instructions for the HGN, Walk and Turn, and
One Leg Stand, when each test was explained. After the SFST,
Officer Robinson arrested Boyer for OVUII.
Following Officer Robinson's testimony, the State
orally moved for a continuance of trial and represented that the
State had subpoenaed Reinhardt to appear at trial that day, but
excused her after it was notified by Reinhardt the day before
that she was a health care worker who was receiving a second dose
of the Covid-19 vaccination the morning of trial. While Boyer
had not initially objected to the District Court commencing trial
without Reinhardt, Boyer objected at this point, arguing that a
continuance would violate "the spirit" of Hawai#i Rules of Penal
Procedure (HRPP) Rule 48. The District Court found that there
was a "meaningful commencement" of trial and granted a
continuance to May 11, 2021.
At the continued trial on May 11, 2021, Reinhardt
testified that on April 10, 2020, she was driving behind Boyer's
vehicle; she observed the vehicle swerve into the oncoming lane,

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

run through two stop signs, and stop in the middle of an
intersection. She called 911, followed Boyer's car until it
parked, and waited until Officer Robinson arrived.
At the end of trial, the District Court found Boyer
guilty of OVUII, citing Boyer's driving, the smell of an
intoxicant from Boyer's breath, "glassy eyes," "difficulty"
producing her driver's license, and performance on the SFST.5

5
The District Court explained its verdict of guilty as follows:
THE COURT: Okay. All right. Taking the, um,
evidence presented at the trial the Court will find
that the State has proven beyond a reasonable doubt
that [Boyer] did operate, uh, or control a –- pardon
me, operate or assume actual physical control of a
vehicle while under influence of alcohol in an amount
sufficient to impair [Boyer]'s normal mental faculties
or ability to care for her person and guard against
casualty.
And the Court relies first of all upon the
testimony of, um, Petra Reinhardt who observed the
driving behavior, reported it and followed [Boyer] to
the Kona Reef. Um, there's no indication that the
person who she -- pardon, the driver of the vehicle
that she followed was not in the vehicle when Officer
Robinson appeared.

Officer Robinson, uh, reported that [Boyer] was
the driver in the motor vehicle. Um, had indicated
that he smelled a slight smell of intoxicant on her
breath. He was trained and certified to perform
standardized field sobriety tests and he did so.

He also testified that Miss, um, Boyer had a
difficult time, um, responding to his initial inquiry
for her driver's license and -- and/or ID, um, and
observed her to have glassy eyes and the smell of
intoxicant.
He testified that he performed the field
sobriety tests according to his training and that he
observed clues to indicate or suggest a level of
impairment including the horizontal gaze nystagmus
test, the walk-and-turn test and the one-leg stand,
and he saw, um, clues in each of those tests.
Um, he observed, um, unequal tracking when he
performed the HGN test upon the defendant, um, and he
found two clues of impairment in the walk-and-turn
test and that, uh, she began the test before he
completed his instructions twice.
She moved her foot to the left to regain
balance, and she missed all heel-to-toe tests -- I
mean, uh, steps. She was not -- she did not perform
(continued...)

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

This appeal followed.
(1) Boyer argues that because she was never advised of
her Miranda rights when Officer Robinson approached her, her
"statements," including her responses to the MRO questions and
whether she understood the instructions to the SFST,6 were the
product of a custodial interrogation and should have been
suppressed. Boyer argues that when Officer Robinson approached
her vehicle, she was in "custody" when Officer Robinson removed
her from her vehicle, as she "could not get back in her vehicle
and leave[,]" and "had no choice but to answer Officer Robinson's
questions." Boyer claims the MRO questions constituted
"interrogation." Boyer also argues that because Boyer's
responses to the MRO questions were obtained in violation of her
Miranda rights, "evidence of Boyer's actions during the SFST
tests should also have been suppressed as the 'fruit of the
poisonous tree' of the prior unlawfully obtained statements."
The State argues that Boyer was subjected to a
"temporary detainment," and viewed under the "totality of
circumstances," Boyer was "not in custody at the time of the
medical rule-out questions for purposes of Miranda." The State
asserts that the information provided by Reinhardt "provided

5
(...continued)
the test on the line, miscounted her steps, made an
improper turn and continually raised her arm from side
to side. So he saw eight clues in the walk-and-turn
test.

And in the one-leg stand test he observed four
clues, um, in that she, uh, moved her hands to
maintain her balance during his instructions, swayed,
uh, slightly, placed her hands in her pockets,
initially lifted her left foot and started counting
and raised her hands in trying to maintain her
balance. Uh, based upon the evidence the Court will
find [Boyer] guilty of the offense.

6
The alleged error regarding admission of Boyer's understanding of
the instruction for each type of SFST is waived, because this evidence was
never introduced at the suppression hearing or objected to at trial. See
State v. Hoglund, 71 Haw. 147, 150, 785 P.2d 1311, 1313 (1990) (citation
omitted) ("Generally, the failure to properly raise an issue at the trial
level precludes a party from raising that issue on appeal.").

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

reasonable suspicion to justify the investigative stop of
[Boyer][.]"
Questions of constitutional law, such as the District
Court's ruling on the motion to suppress, are reviewed "de novo
to determine whether the ruling was 'right' or 'wrong.'" State
v. Manion, 151 Hawai#i 267, 271-72, 511 P.3d 766, 770-71 (2022)
(quoting State v. Lee, 149 Hawai#i 45, 49, 481 P.3d 52, 56
(2021)).
Miranda warnings are required when a defendant is (1)
in "custody" and (2) under "interrogation[.]" State v. Ah Loo,
94 Hawai#i 207, 210, 10 P.3d 728, 731 (2000) (citation omitted).
"'[C]ustodial interrogation' . . . consists of 'questioning
initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of their freedom of
action in any significant way.'" State v. Hewitt, 153 Hawai#i
33, 43, 526 P.3d 558, 568 (2023) (internal brackets omitted)
(quoting State v. Wallace, 105 Hawai#i 131, 137, 94 P.3d 1275,
1281 (2004)). The Hewitt court reaffirmed the State v. Ketchum
test to determine whether a person is in custody:

[A] person is "in custody" for purposes of article I,
section 10 of the Hawai#i Constitution if 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.

Id. at 36, 526 P.3d at 551 (emphasis omitted) (quoting Ketchum,
97 Hawai#i 107, 126, 34 P.3d 1006, 1025 (2001)). Short of
probable cause, the Hewitt court explained that the "objectively
appraised" "totality of the circumstances" includes: "the place
and time of the interrogation, the length of the interrogation,
the nature of the questions asked, the conduct of the police, and
all other relevant circumstances." 153 Hawai#i at 37, 526 P.3d
at 562 (citation and internal quotation marks omitted). In

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Ketchum, the supreme court explained that:

Moreover, while no single factor, in itself, is
dispositive as to when a temporary investigative
detention has morphed into an arrest, the potential
attributes of "arrest" clearly include such
circumstances as handcuffing, leading the detainee to
a different location, subjecting him or her to booking
procedures, ordering his or her compliance with an
officer's directives, using force, or displaying a
show of authority beyond that inherent in the mere
presence of a police officer, as well as any other
event or condition that betokens a significant
deprivation of freedom, "such that [an] innocent
person could reasonably have believed that he [or she]
was not free to go and that he [or she] was being
taken into custody indefinitely," . . . .

97 Hawai#i at 125, 34 P.3d at 1024 (alterations in original)
(citations omitted).
Here, the parties disagree as to what point, if any,
Officer Robinson's investigative detention of Boyer became
custodial in nature, requiring Miranda warnings. The District
Court made no specific determination or findings regarding
whether and when Boyer was interrogated or was in custody for
Miranda purposes, and ruled that probable cause was established
after the officer conducted the SFST. Our review of the record
of the suppression hearing reflects, inter alia, that after Boyer
"disregarded" two requests to exit her vehicle, on the third
time, Officer Robinson "opened the door and assisted her out of
the vehicle." Thus, an objective assessment of the totality of
the circumstances elicited at the suppression hearing indicates
that Officer Robinson showed "authority beyond that inherent in
the mere presence of a police officer," when he opened the door
and removed Boyer from her vehicle after she failed to comply
with his requests to exit the vehicle. See Ketchum, 97 Hawai#i
at 125, 34 P.3d at 1024. At this point, Boyer was deprived of
her "freedom of action in a[] significant way." Hewitt, 153
Hawai#i at 43, 526 P.3d at 568 (brackets added) (citation
omitted). We conclude that Boyer was in custody for Miranda
purposes, and the MRO questions that followed constituted
interrogation, and thus were inadmissible at trial. See State v.

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Skapinok, 151 Hawai#i 170, 185, 510 P.3d 599, 614 (2022)
(citation omitted) (holding that "all of the medical rule-out
questions are interrogation" because "[a]lthough the
'incriminating inference' may be indirect, the questions
nevertheless adduce evidence to establish that intoxication
caused any poor performance on the SFST.").7
Although the MRO responses were inadmissible, we
conclude that Boyer's SFST performance was nevertheless
admissible at trial and not subject to suppression, because
performance on the SFST is not "the fruit of the poisonous tree."

Although they immediately preceded the SFST in time,
the medical rule-out questions did not give the
officers information that led them to search for
evidence of intoxication, nor did the medical rule-out
questions pique their suspicions such that their
investigation was directed towards discovering
evidence of intoxication.

Id. at 186-87, 510 P.3d at 615-16 (internal quotation marks and
brackets omitted) (quoting Manion, 151 Hawai#i at 273, 511 P.3d
at 772).
Here, as in Skapinok, the officer had already set out
to administer the SFST before he asked Boyer the MRO questions.
Officer Robinson did not "'exploit the illegality by continuing
to gather evidence that [he] had already set out to gather.'"
Id. (citation omitted). We conclude that the District Court did

7
In Skapinok, the officer asked the following MRO questions:

i. Do you have any physical defects or speech impediments?
ii. Are you taking any medications?
iii. Are you under the care of a doctor or dentist for
anything?
iv. Are you under the care of an eye doctor?
iv. Do you have an artificial or glass eye?

v. Are you epileptic or diabetic?
vi. Are you blind in either eye?

151 Hawai#i at 173-74, 510 P.3d at 602-03. According to the record of the
suppression hearing, the questions that Officer Robinson asked Boyer are
identical to the MRO questions in Skapinok.

10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

not err in denying the suppression of Boyer's performance on the
SFST, and this evidence was admissible at trial. See id. at 186-
87, 510 P.3d at 615-16; Manion, 151 Hawai#i at 273, 511 P.3d at
772.
"The admission of illegally obtained evidence in a
criminal trial following the erroneous denial of a motion to
suppress is subject to the harmless error rule." State v. Apo,
82 Hawai#i 394, 403, 922 P.2d 1007, 1016 (App. 1996) (citation
omitted). "The erroneous admission of evidence is not harmless
when there is a reasonable possibility that the error might have
contributed to the conviction." State v. Baker, 147 Hawai#i 413,
435, 465 P.3d 860, 882 (2020) (citing State v. McCrory, 104
Hawai#i 203, 210, 87 P.3d 275, 282 (2004)). Boyer presented no
argument whether the admission of evidence she contends was
inadmissible at trial, was not harmless.
Here, the trial record reflects that minimal evidence
of Boyer's MRO responses was presented.8 In finding Boyer

8
The trial transcript reflects the following:

Q. [(BY STATE)] Did you ask her the six medical rule
out questions?

A. [(BY OFFICER ROBINSON)] Yes, ma'am.

Q. Is that -- is that something you do prior to
administering the field sobriety tests every time
you're about to perform them?

A. Yes, ma'am.
Q. Why is that?
A. In order to rule out certain issues that may
be present.
Q. And what type of issues could those possibly
be?
A. Head injury, or medical issues that may
affect the results of the testing.

Q. Okay. Is it also a way to ascertain whether
or not it would be safe to perform the test?
A. Yes, ma'am.

Q. What are the six questions that you asked
(continued...)

11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

guilty, the District Court did not mention the MRO responses, and
stated that it relied on Reinhardt's testimony describing Boyer's
driving;9 Officer Robinson's testimony of the physical indicia of
intoxication Boyer displayed, such as "a slight smell of [an]
intoxicant on [Boyer's] breath" and "glassy" eyes; Boyer's
difficulty in retrieving her license and responding to his
requests; and Boyer's poor performance on each of the three types
of SFST. The record does not reflect that the District Court
relied on the inadmissible evidence of the MRO responses in
finding Boyer guilty. We conclude that the admission of the MRO
responses was harmless beyond a reasonable doubt because there
was no reasonable possibility that this evidence might have
contributed to Boyer's conviction. See Baker, 147 Hawai#i at
435, 465 P.3d at 882.
(2) Boyer argues that while "the State asked that
Boyer's trial begin before the end of February 2021 in order to
avoid violating HRPP Rule 48[,]" and the trial did commence
February 9, 2021, "the commencement was not 'meaningful,'" citing

8
(...continued)
Miss Boyer?

A. Do you have any physical defects or speech
impediments. Are you currently under the care of a
doctor or dentist. Are you epileptic or diabetic.
Are you taking any medication. Are you under the care
of an eye doctor. Or are you blind in either eye or
have an artificial eye.
Q. Did she answer any affirmative to any of
those questions?

A. She did.
Q. What did she say?

A. She related that she as epileptic and that
she was currently prescribed diazepine [sic].

Q. And that was for the -- for epilepsy?
A. Yes.
9
While driving behind Boyer's vehicle, Reinhardt testified to
observing Boyer swerve into the oncoming lane, run through two stop signs and
stop in the middle of the intersection.

12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

State v. Alkire, 148 Hawai#i 73, 468 P.3d 87 (2020).10 This
contention is without merit.
"A motion for continuance is addressed to the sound
discretion of the trial court, and the court's ruling will not be
disturbed on appeal absent a showing of abuse of that
discretion." State v. Williander, 142 Hawai#i 155, 162, 415 P.3d
897, 904 (2018) (internal quotation marks and citations omitted).
HRPP Rule 48 requires that the "the court shall, on motion of the
defendant, dismiss the charge, with or without prejudice in its
discretion, if trial is not commenced within 6 months[.]"
Here, the District Court held that the State made a
"meaningful commencement" of trial, as "Officer Robinson gave
direct testimony and was adequately cross-examined[.]" While the
parties and the District Court applied an HRPP Rule 48 analysis
below and on appeal, there was no motion to dismiss made pursuant
to HRPP Rule 48. The record reflects that at the outset of the
February 9, 2021 trial, the State informed the District Court
that it was prepared to proceed with Officer Robinson's
testimony, and that it would "be asking for a continuance in part
for the testimony of" Reinhardt.11 Boyer did not object, and
trial commenced with Officer Robinson's testimony. After the
officer's testimony was completed, the State moved to continue
trial for Reinhardt's testimony, to which Boyer objected. The
State responded that this was the State's first request for a
continuance, and that the defense had also had a previous
continuance for the Motion to Suppress, as follows:

[THE COURT]: So is the State asking for a
continuance now?

10
In Alkire, the Hawai#i Supreme Court explained that HRPP Rule 48
"requires a 'meaningful' commencement," and that commencement of trial is
"meaningful" when a "trial court has 'reasonably' committed its resources to
the trial, which also requires that the parties be ready to proceed[.]" 148
Hawai#i at 87, 468 P.3d at 101 (citation omitted).
11
The State informed the District Court that it would be asking for
a continuance as follows: "State is prepared to proceed, Your Honor, with
Officer Patrick Robinson's testimony. We will be asking for a continuance in
part for the testimony of Petra Reinhardt who observed the initial operation
of the vehicle." There was no objection by Boyer at this point.

13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

[THE STATE]: Yes, Your Honor. We -- at this
time we'd be making an oral motion to continue for the
testimony of Petra Reinhardt. Just by way of
explanation, she was subpoenaed for today. I spoke to
her yesterday. She is a health care worker at West
Hawaii Community Health Center and had her second dose
of the covid vaccination scheduled for this morning.
So based on that I excused her from her subpoena just
based on that explanation. So I would ask for a
continuance for her testimony.
[THE COURT]: Any objection?

[DEFENSE COUNSEL]: Yes, Your Honor. We'd be
objecting to the State's motion to continue trial.
Miss Boyer's been present all of her court dates.
She's present for the Motion to Suppress. She's been
present and ready to proceed with trial this morning
as evidenced by us proceeding to trial. Although
there may be a reason given for the witness being
unavailable, the trial's been started. Allowing us to
continue with just one witness while -- or to start
with one witness while continuing for the others we
believe would violate one of the more recent cases
that came down about the court committing substantial
resources to trial, starting with one witness and
continuing them along would violate the spirit of both
Rule 48 and then her Constitutional right to a speedy
trial under the U.S. and Hawaii Constitutions, which
she maintains at this time.

[THE STATE]: Your Honor, I would just note for
the record that this is the State's first request for
a continuance. I believe Defense had a previous
continuance on their Motion to Suppress.

THE COURT: Okay. So upon review of the Alkire
case I believe we had made a meaningful commencement
of the trial. Officer Robinson gave direct testimony
and was adequately cross-examined by Defense Counsel.
So I think we afforded [Boyer] her right to a speedy
trial and that a continuance to allow the testimony of
percipient witness would not offend the [Boyer]'s
speedy trial right.

So we'll continue in the normal course.

(Emphases added.)
The record reflects that Boyer did not make a motion to
dismiss under HRPP Rule 48 or based on a constitutional right to
a speedy trial. The record contains no timeline of pertinent
dates, calculations, exclusions, or findings pertinent to an
application of Rule 48 or speedy trial analysis. Rather, Boyer
objected to the State's first request for a continuance due to
unavailability of a material witness, based on the "spirit of

14
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

both Rule 48" and "constitutional right to a speedy trial[.]"
The unavailability of Reinhardt, a health care worker, due to a
second Covid-19 vaccination scheduled for the day of trial,
constitutes good cause to grant a "first request" to continue
trial. The District Court did not abuse its discretion in
granting the State's continuance of trial on this record.
See Williander, 142 Hawai#i at 162, 415 P.3d at 904.
(3) Boyer argues that because the State "did not offer
Officer Robinson as an expert or present evidence to establish
the relationship of 'clues' of the HGN test and Boyer's degree of
intoxication or impairment," the District Court erred in
considering the HGN test "clues" as "substantive evidence of
impairment." Relying on a study and Arizona cases from a legal
journal presented for the first time on appeal, Boyer argues,
inter alia, that "[c]oncerns with the accuracy of HGN results
include false positives."
Boyer did not object to,12 or raise any of the
arguments she raises on appeal, during Officer Robinson's
testimony regarding the HGN test, or during the District Court's
finding of guilt. This contention of error is waived. See
Hoglund, 71 Haw. at 150, 785 P.2d at 1313.
For the foregoing reasons, the May 11, 2021 Judgment
and Notice of Entry of Judgment, entered in the District Court of
the Third Circuit, is affirmed.
DATED: Honolulu, Hawai#i, June 9, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Henry P. Ting, Chief Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Stephen L. Frye,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
County of Hawai#i, Associate Judge
for Plaintiff-Appellee.

12
The record reflects that Boyer never lodged any objections during
Officer Robinson's trial testimony regarding the HGN test.

15