HONOLULU (HawaiiNewsNow) - Christopher Deedy admits drinking some beer before his stop at McDonald's in Waikiki and the fatal fight with Kollin Elderts. But he insists he wasn't drunk on Nov. 5, 2011, when he and Elderts scuffled, and a single shot from his gun hit Elderts in the chest.
"He didn't need any help walking?" defense attorney Karl Blanke asked Thursday.
"No," retired Honolulu police Sgt. Kenneth Schreiner said.
But Schreiner, other officers and witnesses insist Deedy looked intoxicated. If that's the case why didn't cops test his sobriety? Attorney Victor Bakke said it would have violated his Fifth Amendment privilege against self-incrimination.
"The police couldn't done have anything to force him to take a test," Bakke said. "If they had tried, it would have been thrown out because they would have needed a warrant."
State public defender Jack Tonaki said police could have and maybe should have gotten that warrant.
"It's not a real complicated process. They just have to apprise the judge of the circumstances and why they feel they have probable cause to seek out the warrant," he said.
Through testimony, deputy prosecutor Janice Futa explained to jurors HPD's decision not to test Deedy.
"Was the defendant under arrest for driving under the influence of alcohol?" she asked Schreiner.
"No he wasn't," Schreiner answered.
"What was he under arrest for?" she asked.
"For murder," he said.
Hawaii law states that in DUI cases implied consent kicks in. A driver can refuse a breathalyzer test but not a blood test. But Deedy wasn't driving.
"In DUI cases the level of intoxication is an element of the offense. It is the crime itself," Bakke said.
Police who arrested Deedy and the evidence specialist who photographed him have testified that he smelled of alcohol, had glassy eyes and slurred his words.
"The natural question is, 'Well, how do we know if he was truly intoxicated?' And if he was drinking, at what level was he at?" Tonaki said.
"Just by smelling somebody's breath you can't tell if they had one drink or ten drinks," Bakke said.
Deedy's intoxication question is a big argument in the murder case, but the point will have to be made with no test results to back it up.