CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000858; CASE NO. 1DTA-11-01903)
Jonathan Burge for petitioner
Brian R. Vincent for respondent
Robert T. Nakatsujifor Amicus Curiae Attorney General of the State of Hawai'i
Donald J. Ramsell for Amicus Curiae National College for DUI Defense
Kevin O’Gradyf or Amicus Curiae Hawaii Association of Criminal Defense Lawyers
McKENNA AND POLLACK, JJ., WITH WILSON, J., CONCURRING SEPARATELY, AND NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
Under our law, a person has a statutory and constitutional right to refuse to consent to a bodily search unless an exception to the search warrant requirement is present. In this case, the defendant was informed by the police of his right to refuse to consent to a search, but he was also told that if he exercised that right, his refusal to consent would be a crime for which he could be imprisoned for up to thirty days.
Yong Shik Won was stopped by police while driving his vehicle on April 20, 2011. After his arrest for operating his vehicle under the influence of an intoxicant, Won was given a choice. He could either submit to a test for the purpose of determining alcohol concentration, or if he did not submit, he would be arrested, prosecuted, and subject to thirty days of imprisonment for the crime of refusal to submit to a breath, blood, or urine test. After being given this choice, Won elected to undergo a breath test, the result of which provided the basis for Won's conviction for the offense of operating a vehicle under the influence of an intoxicant.
We consider whether Won's election to submit to the breath test was consensual under the circumstances presented. We hold that it was not.
The prohibition against operating a vehicle under the influence of an intoxicant (OVUII) provides that all drivers are deemed to have given consent to submit to a test of their breath, blood, or urine, for the purpose of determining alcohol concentration or drug content. Hawai'i Revised Statutes (HRS) § 291E-11(a) (Supp. 2006) . Before administering a test, the officer must inform the person that "the person may refuse to submit to testing." Id.
If a person arrested for OVUII refuses to submit to a test to determine blood alcohol concentration (BAC test), the law provides that "none shall be given, " HRS §§ 291E-15 (Supp. 2010) and 291E-65 (Supp. 2009),  except in circumstances involving a "collision resulting ...