NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JAN-2021
07:48 AM
Dkt. 101 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
TIMOTHY J. DOWNS, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
(WAILUKU DIVISION)
(CASE NO. 2DTA-17-01337)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Defendant-Appellant Timothy J. Downs (Downs) appeals
from the Judgment and Notice of Entry of Judgment, filed on July
13, 2018 (Judgment), in the District Court of the Second Circuit
(District Court).1/ Downs was convicted of Operating a Vehicle
Under the Influence of an Intoxicant (OVUII), in violation of
Hawaii Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2019).2/
1/
The Honorable Kirstin M. Hamman presided.
2/
HRS § 291E-61(a) states 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[.]
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Downs raises a single point of error on appeal,
contending that there was insufficient evidence to convict him.3/
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 Downs's point of error as follows:
We conclude that, when the evidence adduced at trial is
considered in the strongest light for the prosecution, there was
sufficient evidence to convict Downs of OVUII. See State v.
Matavale, 115 Hawai‘i 149, 157-58, 166 P.3d 322, 330-31 (2007).
On October 4, 2017, Officer Aaron Williams (Officer Williams) was
traveling on High Street toward Kuhikahi, which is a public
roadway in the County of Maui, State of Hawai‘i, when he first
observed Downs driving his vehicle. Officer Williams observed
Downs drive his vehicle on the double solid yellow lines in the
center of the road and make a correction back into his lane of
travel, but still weave back and forth within his lane. Downs
then drove his vehicle over the white line on the right side of
the road, made a correction, and then crossed the double yellow
line in the center of the road. After stopping Downs, Officer
Williams noticed Downs had flushed features, slurred speech, and
an odor of an alcoholic beverage about him. Downs admitted he
drank three vodka Red Bull beverages. Downs dropped some
3/
In a footnote, Downs also submits that the lack of a clear
definition for normal mental faculties and ability to care for the person and
guard against casualty violates his due process rights, acknowledging that the
issue was not raised below. Downs makes no further argument and submits no
authority in support of this proposition, and we decline to engage in a plain
error review here.
2
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paperwork into his lap as he attempted to retrieve it, which
Officer Williams described as fumbling due to diminished
dexterity. Officer Williams stated that Downs showed six clues
on the horizontal gaze nystagmus test and four clues indicates
impairment. During the instructions of the walk and turn test,
Downs could not keep his balance. During the walk and turn test,
Downs showed five indicia of impairment. He missed heel-to-toe
contact during the first nine steps, and he raised his arms,
contrary to instructions. Downs stopped after a turn, stepped
off the line, missed heel-to-toe contact on the second nine steps
and raised his arms, which indicated he was impaired. During a
one-leg-stand test, Downs swayed, raised his arms, and put his
foot down; thus, there were three out of four clues indicating he
was impaired. Based on his training and experience, Officer
Williams opined that Downs was not able to drive a vehicle safely
due to alcohol. Based on our review of all of the evidence
presented at trial, we conclude that there was substantial
evidence to support Downs's conviction for OVUII.
For these reasons, the District Court's July 13, 2018
Judgment is affirmed.
DATED: Honolulu, Hawai#i, January 28, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Kevin O'Grady, Chief Judge
for Defendant-Appellant.
/s/ Katherine G. Leonard
Gerald K. Enriques, Associate Judge
Deputy Prosecuting Attorney,
County of Maui, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge
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