Background
Thomas G. Dullam was convicted after a bench trial of operating a vehicle under the influence of an intoxicant, specifically marijuana, in violation of HRS § 291E-61(a)(2). The District Court of the Third Circuit, Kona Division, entered judgment on April 24, 2024.
A Hawaiʻi County police detective saw Dullam in the driver’s seat of a running vehicle at Old Airport Park while occupants passed around and smoked a bong. The detective smelled burned marijuana, asked Dullam to exit, and asked medical rule-out questions without first giving Miranda warnings. After field sobriety tests, Dullam was arrested. A drug-recognition expert later concluded Dullam was impaired by marijuana; Dullam admitted smoking four or five bong hits.
The Court’s Holding
The Intermediate Court of Appeals affirmed. It held that Dullam had not shown he was in custody for Miranda purposes when the detective asked the medical rule-out questions. His argument depended on supposed probable cause for a marijuana-possession crime, but the record contained no evidence of the amount of marijuana in the bong. Under the applicable statute, possession of three grams or less is a violation rather than a crime.
The court held that Dullam waived his challenges to the officers’ field-sobriety-test and drug-recognition-expert testimony because his trial objections did not specifically identify the alleged foundational defects. It likewise treated as waived his unpreserved challenge to the officer’s opinion that Dullam was impaired by cannabis. Even assuming certain challenged evidence were excluded, substantial evidence supported the conviction, including Dullam’s operation of a running vehicle, bong smoking, field-test indicators of impairment, and his admission.
Key Takeaways
- A Miranda custody argument based on probable cause for marijuana possession requires evidence supporting possession of a criminal amount, not merely marijuana in a bong.
- General foundation objections ordinarily do not preserve specific evidentiary challenges for appeal.
- The remaining evidence supported the OVUII conviction even under the court’s assumed-exclusion analysis.
Why It Matters
The decision underscores the need for precise trial objections in OVUII cases involving field sobriety and drug-recognition evidence. It also distinguishes between marijuana possession that is a statutory violation and possession that constitutes a crime when assessing whether probable cause had arisen for Miranda-custody purposes.