Nguyen 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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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
28-FEB-2023
08:04 AM
Dkt. 37 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

TRONG T. NGUYEN, Petitioner-Appellant,
v.
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI#I,
Respondent-Appellee

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DAA-21-00003)

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

Petitioner-Appellant Trong T. Nguyen (Nguyen) appeals
from the Judgment on Appeal (Judgment), filed on November 26,
2021, and the Decision and Order Sustaining Administrative
Revocation (Decision and Order), filed on November 24, 2021, in
the District Court of the First Circuit (District Court).1 In
the Judgment and the Decision and Order, the District Court
affirmed a Notice of Administrative Hearing Decision
(Administrative Decision) issued on August 23, 2021, by
Petitioner-Appellee Administrative Driver's License Revocation
Office (ADLRO), which administratively revoked Nguyen's driver's
license.
Nguyen raises two points of error on appeal, asserting
the District Court: (1) erred in concluding there was sufficient

1
The Honorable Thomas A.K. Haia presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

evidence to establish probable cause that Nguyen operated a
vehicle under the influence of an intoxicant; and thus (2) erred
in affirming the revocation of his license.2
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 Nguyen's point of error as follows and affirm.
"Review of a decision made by a court upon its review
of an administrative decision is a secondary appeal. The standard
of review is one in which [the appellate] court must determine
whether the court under review was right or wrong in its
decision." Wolcott v. Admin. Dir. of the Courts, 148 Hawai#i
407, 413, 477 P.3d 847, 853 (2020) (quoting Freitas v. Admin.
Dir. of the Courts, 108 Hawai#i 31, 43, 116 P.3d 673, 685
(2005)). HRS § 291E-40 "governs judicial review by the district
court of an administrative revocation of a driver's license by
the Director." Id. (citation omitted). Pursuant to HRS § 291E-
40(c) (2020), review by the district court is limited to whether
the Director: (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.
Nguyen argues that Hawai#i case law supports his
contention that imperfect driving, red and glassy eyes, and the

2
Hawaii Revised Statutes (HRS) § 291E-38(e) (2020) provides in
pertinent part:
(e) The director shall affirm the administrative revocation
only if the director determines that:
(1) There existed reasonable suspicion to stop the
vehicle . . .;
(2) There existed probable cause to believe that the
respondent operated the vehicle while under the influence of
an intoxicant; and
(3) The evidence proves by a preponderance that:
(A) The respondent operated the vehicle while
under the influence of an intoxicant;
. . . .
(Emphasis added.)

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odor of alcohol may amount to "reasonable suspicion" that an
individual is driving impaired, but do not amount to "probable
cause" for an arrest. He cites, inter alia, State v. Kaleohano,
99 Hawai#i 370, 377-78, 56 P.3d 138, 145-46 (2002) (concluding
that "red and glassy eyes, a criminal record, and imperfect
driving, standing alone, are insufficient to establish probable
cause to arrest a person for driving under the influence of
drugs");3 and State v. Sagapolutele-Silva, 147 Hawai#i 92, 100,
464 P.3d 880, 888 (App. 2020) (noting, where defendant was
stopped for excessive speeding, officer "did not initially have
probable cause to arrest [defendant] for OVUII based upon
noticing she had red, watery, and glassy eyes, and an odor of
alcohol about her"), aff'd in part and vacated in part, 151
Hawai#i 283, 511 P.3d 782 (2022).
Nguyen further contends that failing a standard field
sobriety test (SFST) is what provides police with probable cause
for an arrest for operating a vehicle under the influence of an
intoxicant (OVUII), but an SFST was not done in this case.4
Further, Nguyen contends that under HRS § 291E-11(f) (2020), a
preliminary alcohol screening (PAS) could have established
probable cause, but a PAS was not done in this case. Thus,
Nguyen claims there was insufficient basis to establish probable
cause that he operated his vehicle under the influence of an
intoxicant.
Given the record in this case, Nguyen's contentions
lack merit.
Probable cause exists when the facts and circumstances
within one's knowledge and of which one has reasonably
trustworthy information are sufficient in themselves to
warrant a person of reasonable caution to believe that an
offense has been committed. This requires more than a mere
suspicion but less than a certainty.

3
In Kaleohano, a police officer observed the defendant's vehicle
"swerve within its lane of travel and cross the solid double center line
twice" when he decided to stop the vehicle. 99 Hawai#i at 372, 56 P.3d at
140.
4
Honolulu Police Department (HPD) Officer Ross Borges (Officer Borges)
attested that he did not conduct an SFST because Nguyen's first language was
not English and there was a communication barrier.

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State v. Maganis, 109 Hawai#i 84, 86, 123 P.3d 679, 681 (2005)
(emphasis and citation omitted). There is no requirement that an
SFST must be conducted to establish probable cause that a driver
operated a vehicle under the influence of an intoxicant. See
State v. Ferrer, 95 Hawai#i 409, 427, 23 P.3d 744, 762 (App.
2001) ("The police officer's observations of the field sobriety
exercises, other than the [horizontal gaze nystagmus] test,
should be placed in the same category as other commonly
understood signs of impairment, such as glassy or bloodshot eyes,
slurred speech, staggering, flushed face, labile emotions, odor
of alcohol or driving patterns" (citation omitted)); State v.
Watanabe, No. CAAP-XX-XXXXXXX, 2021 WL 2624643 at *6-7 (Haw. App.
June 25, 2021) (SDO) (rejecting claim there was insufficient
evidence to convict defendant of OVUII based on officer's
observations, where there was no evidence of traffic violations
or aberrant driving, blood or alcohol test results, or a field
sobriety test); State v. Eaton, No. CAAP-XX-XXXXXXX, 2020 WL
3077931 at *1 (Haw. App. June 10, 2020) (SDO) ("Sufficient
evidence for an OVUII conviction may be found without a field
sobriety test when based on other signs of impairment" (emphasis
added)).
In this case, there was sufficient evidence to
establish probable cause that Nguyen was operating his vehicle
while under the influence of an intoxicant. HPD Officer Arthur
Gazelle (Officer Gazelle) observed a white Camry in lane 2 of the
H-1 freeway rapidly catching up to and dangerously passing
vehicles in the adjacent right lanes. Using his Stalker LIDAR
device, Officer Gazelle captured the Camry's speed at 103 miles-
per-hour (mph), which was 58 mph over the posted speed limit.
The Camry proceeded to "tail gate" another vehicle instead of
moving to the open left lane and drifted about two feet over the
lane marking on the left and one foot over the lane marking on
the right. When the other vehicle moved over to the right lane,
the Camry sped past it and then drifted to the left completely
into lane 1 and about one foot over the solid yellow lane

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marking, coming about one foot from scraping the concrete wall
with the driver's mirror. The Camry then slowed and moved all
the way back to the far right lane and tailgated a white van.
While drifting side to side, the Camry exited onto Bingham Street
at 46 mph in a 25 mph posted zone. When Officer Gazelle
initiated a stop, the Camry "was slow to respond, then pulled to
the right corner at Griffiths St[reet] and struck the curb with
its front tire" before coming to a stop. The Camry then pulled
forward again and made a right turn, but climbed up and then off
the curb with both the front and rear right side tires. The
Camry then came to an abrupt stop and was placed in reverse.
Nguyen produced his driver's license and insurance but had to be
reminded to provide his registration. When speaking with Nguyen,
Officer Gazelle observed Nguyen had a strong odor of an alcoholic
type beverage on his breath, his gaze was fixed, his eyes were
red and watery, his neck and face were flush red, and his speech
was garbled and slurred. While Nguyen stood next to Officer
Gazelle, Nguyen "reek[ed]" of consumed alcohol and swayed side-
to-side.
Officer Borges observed Nguyen had blood shot eyes and
"detected an overwhelming odor" of consumed alcohol. After
noticing that Nguyen's vehicle was in reverse, he asked Nguyen to
put the vehicle in park but Nguyen had difficulty manipulating
the automatic transmission shifter. Officer Borges also reported
that after asking Nguyen to step out of his vehicle, Nguyen
"exited his vehicle by pulling on [the] door frame and assisting
himself out of his vehicle." Nguyen was "unsteady on his feet
and swaying while standing still." Officer Borges also noticed a
"strong odor of alcohol coming from [Nguyen's] breath from 6-8
feet away."
Given the record, the District Court did not err in
concluding there was probable cause that Nguyen operated a
vehicle while under the influence of an intoxicant, without a
SFST or PAS being administered. The District Court correctly
determined that Nguyen's license revocation should be affirmed.

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Therefore, IT IS HEREBY ORDERED that the Judgment on
Appeal, filed on November 26, 2021, in the District Court of the
First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, February 28, 2023.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Alen M. Kaneshiro,
Christopher M. Phillips, /s/ Katherine G. Leonard
for Petitioner-Appellant Associate Judge

Christopher J.I. Leong, /s/ Karen T. Nakasone
Deputy Attorney General, Associate Judge
for Respondent-Appellee

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