APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT, HONOLULU DIVISION. CASE NO. 1DTA-11-01903.
Jonathan Burge, for Defendant-Appellant.
Brian R. Vincent, Deputy Frosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
Robert T. Nakatsuji, Deputy Solicitor General, Department of the Attorney General, for Amicus Curiae.
NAKAMURA, C.J., and FUJISE and GINOZA, JJ.
[134 Hawai'i 61] NAKAMURA, C.J.
Defendant-Appellant Yong Shik Won (Won) was convicted of operating a vehicle under the influence of an intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(3) (Supp. 2013). A police officer, who observed Won speeding, pulled Won over and subsequently arrested him for OVUII. At the police station, an officer read the " implied consent" form to Won, and Won agreed to take a breath test, which revealed an alcohol concentration above the legal limit. The police did not provide Won with Miranda warnings  before reading the implied consent form and obtaining his agreement to take the breath test.
Prior to trial, Won moved to suppress the results of his breath test. The District Court of the First Circuit (District Court) denied Won's motion to suppress and found him guilty of violating HRS § 291E-61(a)(3).
On appeal, Won argues that the District Court erred in denying his motion to suppress. Prior to 2011, it was settled law that a person arrested for OVUII was not entitled to Miranda warnings or to consult with an attorney before the police asked whether the arrestee would submit to testing.
State v. Severino, 56 Haw. 378, 537 P.2d 1187 (1975). Won, however, contends that in light of the Legislature's recent enactment of HRS § 291E-68, which beginning in 2011 made the refusal to submit to a breath, blood, or urine test a crime, the police were required to advise him of his Miranda rights before reading him the implied consent form and obtaining his decision on testing. Won argues that because the police failed to give him Miranda warnings, any statement he made in response to the reading of the implied consent form was inadmissible, and his breath test results should have been suppressed as the fruit of the Miranda violation.
In addition, Won argues that the results of his breath test should have been suppressed because the police violated his statutory right to an attorney under HRS § 803-9 (1993);  misinformed him of his statutory right to an attorney, and misinformed him of the sanctions for refusing to submit to testing under the provisions of the current statutory scheme. Won further argues that in light of the United States Supreme Court's recent decision in
Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), HRS § 291E-68 is unconstitutional; that because HRS § 291E-68 is unconstitutional, he [134 Hawai'i 62] was misinformed of the sanctions for refusing to submit to testing since the implied consent form referred to sanctions under HRS § 291E-68; and that based on McNeely, the police were required to obtain a search warrant before conducting his breath test.
For the reasons set forth below, we hold that Won was not subjected to interrogation for purposes of Miranda and that the police did not violate Won's Miranda rights in obtaining his decision on testing; that Won has not met his burden of showing that McNeely rendered HRS § 291E-68 unconstitutional; that Won does not prevail on his other arguments; and that the District Court did not err in denying Won's motion to suppress. Accordingly, we affirm Won's conviction.
The following facts are based on police reports and related exhibits, which the parties stipulated into evidence. On April 20, 2011, at about 3:15 a.m., Honolulu Police Department (HPD) Officer Vincent Gonzales (Officer Gonzales) observed Won traveling faster than the posted speed limit. Officer Gonzales paced Won going at about 55 miles per hour (mph) in a 35 mph zone and subsequently stopped Won's vehicle.
While speaking with Won, Officer Gonzales observed that Won had " red, watery, eyes[,]" and that he " emitted a strong odor of an alcoholic type beverage[.]" Officer Gonzales told Won that he " believed [Won] to be intoxicated" and asked Won to perform the Standardized Field Sobriety Tests (SFSTs), which Won agreed to perform. Won performed poorly on the SFSTs. Won agreed to take a Preliminary Alcohol Screening (PAS) test, which revealed a breath alcohol content of 0.176.
Based on these observations, HPD Sergeant Albert Lee arrested Won and Officer Gonzales transported Won to the police station. At the police station, Sergeant Lee presented Won with a copy of a form entitled, " Use of Intoxicants While Operating a Vehicle Implied Consent for Testing" (Implied Consent Form), and read the form to him. Specifically, the Implied Consent Form provided:
Pursuant to chapter 291E, Hawaii Revised Statutes (HRS), Use of Intoxicants While Operating a Vehicle, you are being informed of the following:
1. Any person who operates a vehicle upon a public way, street, road, or highway or on or in the waters of the State shall be deemed to have given consent to a test or tests for the purpose of determining alcohol concentration or drug content of the persons [sic] breath, blood, or urine as applicable.
2. You are not entitled to an attorney before you submit to any test or tests to determine your alcohol and/or drug content.
3. You may refuse to submit to a breath or blood test, or both for the purpose of determining alcohol concentration and/or blood or urine test, or both for determining drug content, none shall be given, except as provided in section 291E-21. However, if you refuse to submit to a breath, blood, or urine test, you shall be subject to up to thirty days imprisonment and/or fine up to $1,000 or the sanctions of 291E-65, if applicable. In addition, you shall also be subject to the procedures and sanctions under chapter 291E, part III.
(Emphasis added; formatting altered.)
Won initialed the first and third enumerated paragraphs of the Implied Consent Form, but did not initial the second paragraph, stating that he " [did] not agree" with it and was " not going to initial" it. Won initialed the portion of the form that stated that he " [a]greed to take a breath test and refused the blood test[,]" and he signed and dated the form. Won's breath test showed a breath alcohol concentration of 0.170 grams of alcohol per 210 liters of breath.
Plaintiff-Appellee State of Hawai'i (State) charged Won by complaint with OVUII, in violation of HRS § 291E-61(a)(1) and (a)(3).  The District Court granted Won's motion to [134 Hawai'i 63] dismiss the HRS § 291E-61(a)(1) portion of the charge, and therefore the State only proceeded to trial on the alleged HRS § 291E-61(a)(3) violation. Prior to trial, Won filed a suppression motion to preclude the State from introducing evidence of the results of his breath test. Won argued, that the results of his breath test should be suppressed because: (1) he was mislead and/or inadequately advised as to his rights surrounding the breath test; (2) his Miranda rights were violated; (3) his statutory right to consult with an attorney pursuant to HRS § 803-9 was violated; and (4) his consent to take the breath test was coerced.
The parties agreed that Won's suppression motion and trial would be decided on stipulated evidence, which included Won's police reports and related exhibits. The District Court denied Won's motion to suppress and found Won guilty of OVUII in violation of HRS § 291E-61(a)(3). The District Court sentenced Won to a fine of $500, a one-year revocation of his driver's license, 14 hours of substance abuse rehabilitation as well as substance abuse assessment and possible treatment, and various fees and assessments. The District Court entered its Judgment on September 20, 2012.
After Won had filed his opening brief, the United States Supreme Court issued McNeely, a decision relating to nonconsensual blood draws in OVUII cases. In light of McNeely, Won filed a motion for supplemental briefing. The State did not oppose Won's motion, which this court granted. Won and the State submitted supplemental briefs on the effect of McNeely on the instant case, and the Attorney General filed an amicus brief defending the constitutionality of Hawaii's implied consent law, set forth in HRS Chapter 291E. Oral argument was held on September 26, 2013.
" No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it."
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). In 2012, 10,322 people were killed nationwide in alcohol-impaired driving crashes. See National Highway Traffic Safety Administration (NHTSA), Traffic Safety Facts, 2012 Motor Vehicle Crashes: Overview (No. 811856, Nov. 2013), http://www.nrd.nhtsa.dot.gov/Pubs/811856.pdf. In Hawai'i, there were 51 drunk driving fatalities in 2012, representing 41 percent of all traffic deaths for that year. Id.
" [A]ll 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC [(blood alcohol concentration)] testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense."
McNeely, 133 S.Ct. at 1566. The Hawai'i Legislature enacted our implied consent statute in 1967 to reduce deaths, injuries, and damages arising out of highway traffic accidents. See 1967 Haw. Sess. Laws Act 214, at § 1. In declaring its purpose in 1967 for enacting the implied consent statute, the Legislature stated:
Deaths of persons and injuries to them and damages to property with the other losses suffered on account of highway traffic accidents are of grave concern to the State and its citizens as well as to the federal government. The legislature finds and declares that it is in the public interest that the State initiate, coordinate and accelerate every available means to decrease the fatalities, injuries, damages and losses resulting from highway traffic accidents.
The implied consent and testing provisions of Hawai'i's statutory scheme are currently set forth in HRS Chapter 291E, Part II. Under Hawai'i's statutory scheme, a person who drives on a public road is deemed to have consented to undergo chemical testing for alcohol or drugs, as prescribed by HRS Chapter 291E, Part II. HRS § 291E-11 (2007), provides in relevant part:
[134 Hawai'i 64] (a) Any person who operates a vehicle upon a public way,
street, road, or highway or on or in the waters of the State shall be deemed
to have given consent, subject to this part, to a test or tests approved by
the director of health of the person's breath, blood, or urine for the purpose
of determining alcohol concentration or drug content of the person's breath,
blood, or urine, as applicable.
(b) The test or tests shall be administered at the request of a law enforcement officer having probable cause to believe the person operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State is under the influence of an intoxicant or is under the age of twenty-one and has consumed a measurable amount of alcohol, only after:
(1) A lawful arrest; and
(2) The person has been informed by a law enforcement officer that the person may refuse to submit to testing under this chapter.
(c) If there is probable cause to believe that a person is in violation of . . . section 291E-61 or 291E-61.5, as a result of having consumed alcohol, then the person shall elect to take a breath or blood test, or both, for the purpose of determining the alcohol concentration.
If a person under arrest for OVUII refuses to submit to breath, blood, or urine testing, " none shall be given," HRS § 291E-15 (Supp. 2013), except that in the event there is a collision resulting in injury or death, a law enforcement officer is not required to accept the person's refusal to undergo testing. Id.; HRS § 291E-21 (2007).
Prior to 2011, if a person failed to honor his or her implied consent and refused to submit to chemical sobriety testing as prescribed by HRS Chapter 291E, the person was subject to administrative sanctions in the form of revocation of his or her driver's license and referral for substance abuse assessment and treatment. See HRS § § 291E-41 (2007), 291E-65 (2007). The administrative sanctions remain in effect. However, effective January 1, 2011, the Legislature enacted HRS § 291E-68, which imposed additional criminal sanctions for the refusal to submit to a breath, blood, or urine test. See 2010 Haw. Sess. Laws Act 166, § § 2, 26, at 398, 415. In its current form, HRS § 291E-68 (Supp. 2013) provides: " Except as provided in section 291E-65, refusal to submit to a breath, blood, or urine test as required by part II is a petty misdemeanor." Under the Hawai'i Penal Code, a person convicted of a petty misdemeanor may be sentenced to imprisonment for a term not to exceed thirty days, and may be sentenced to pay a fine not exceeding $1,000. See HRS § § 706-663 (1993), 706-640 (Supp. 2013).
Accordingly, under the statutory scheme, except for cases involving collisions resulting [134 Hawai'i 65] in death or injury, the Hawai'i Legislature has chosen to avoid violent police-citizen confrontations as a means of securing chemical sobriety test results. Instead of authorizing the police to force persons arrested in the typical OVUII case to undergo chemical testing based on their implied consent, the Hawai'i Legislature has chosen to use the threat of administrative and criminal sanctions to encourage arrestees to submit to testing. " [T]he effect of implied consent legislation 'is to equip [law enforcement] officers with an instrument of enforcement not involving physical compulsion.'"
Rossell v. City and County of Honolulu, 59 Haw. 173, 182, 579 P.2d 663, 669 (1978) (citation omitted). The Legislature's " obvious reason" for permitting persons, deemed to have given consent as a matter of law, to refuse testing " is to avoid the violence which would often attend forcible tests upon recalcitrant inebriates." Id.
Won argues that in light of the recent enactment of HRS § 291E-68, which makes refusing to submit to a breath, blood, or urine test a crime, the police were required to give him Miranda warnings before reading the Implied Consent Form to him and obtaining his decision regarding testing. Won contends that because the police failed to advise him of his Miranda rights, any statement he made in response to the Implied Consent Form was inadmissible and the results of his breath test should have been suppressed as the " Fruit of the Poisonous Tree." We disagree.
At least fourteen other states, like Hawai'i, have enacted implied consent laws that impose criminal sanctions on a driver for refusing to submit to chemical testing, either as a separate offense or as an element authorizing the imposition of an increased sentence for a driver found to have operated a vehicle under the influence of an intoxicant. It appears that all the courts from other jurisdictions that have considered implied consent laws imposing such criminal sanctions in the context of challenges, like that raised by Won, alleging Miranda violations or violations of the protection against self-incrimination, have rejected those challenges. These courts have held that a driver's refusal to submit to testing is not a " testimonial communication" and that the conduct of the police in determining whether the driver refuses to submit to testing does not constitute " interrogation" for Miranda purposes. Accordingly, they have held the actions of the-police in determining whether the driver refuses to submit to testing does not implicate the driver's Miranda rights or the protection against self-incrimination.
[134 Hawai'i 66] As explained below, we join what appears to be the uniform view of every other court that has considered the issue raised by Won, under laws similar to Hawai'i's that impose criminal sanctions on a driver's refusal to submit to testing, and hold that the conduct of the police in this case did not violate Won's Miranda rights. The police were not required to give Miranda warnings to Won before reading the Implied Consent Form to him or obtaining his decision regarding testing. Accordingly, the results of Won's breath test was not subject to suppression as the fruit of a Miranda violation.