As Corrected December 9, 2015.
[Copyrighted Material Omitted]
This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.
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. Nakatsuji for Amicus Curiae, Attorney General of the State of Hawai'i.
Donald J. Ramsell for Amicus Curiae, National College for DUI Defense.
Kevin O'Grady for Amicus Curiae, Hawaii Association of Criminal Defense Lawyers.
McKENNA, POLLACK, and WILSON, JJ., WITH WILSON, J., CONCURRING SEPARATELY, AND NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS.
[136 Hawai'i 295] Richard W. Pollack,
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.
[136 Hawai'i 296] 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 in injury to or the death of any person." HRS § 291E-21(a) (2007).
Hawai'i law provides two categories of penalties for drivers that refuse to submit to a BAC test. The first is an extended revocation period of the person's driver's license in an administrative process applicable to all
[136 Hawai'i 297] persons arrested for OVUII. HRS § 291E-41(d) (Supp. 2010); see generally HRS Chapter 291E, Part III. The administrative license revocation process is " civil in nature." State v. Severino, 56 Haw. 378, 380, 537 P.2d 1187, 1189 (1975). This court has upheld civil license revocation on several occasions. See, e.g., Dunaway v. Admin. Dir. of Courts, 108 Hawai'i 78, 87, 117 P.3d 109, 118 (2005); Kernan v. Tanaka, 75 Haw. 1, 22, 856 P.2d 1207, 1218 (1993); Severino, 56 Haw. at 380-81, 537 P.2d at 1189. The civil revocation of driver's licenses under HRS Chapter 291E, Part III, is not an issue in this case.
In contrast, the second category of penalties for refusing to submit to a BAC test is a criminal sanction. " 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."  HRS § 291E-68 (Supp. 2010). A petty misdemeanor is punishable by up to thirty days in jail, a fine not exceeding $1,000, and imposition of community service and payment of other assessments and fees.
II. Arrest and proceedings through trial
During the early morning hours of April 20, 2011, Won was observed driving at a high rate of speed by an officer of the Honolulu Police Department (HPD). After pulling Won over, the officer detected the odor of alcohol on Won's breath and observed that Won's eyes were " red" and " watery." Based on this information, the officer concluded that Won was likely intoxicated. A standard field sobriety test and preliminary alcohol screen test were administered, both of which Won failed. Won was arrested for OVUII in violation of HRS § 291E-61(a)(3) and transported by police to the local police station.
At the police station, an officer read to Won a form entitled " Use of Intoxicants While Operating a Vehicle Implied Consent for Testing" (Implied Consent Form). Of foremost relevance to this case, the Implied Consent Form informs arrested persons of certain information, in three sections.
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 breath, blood or urine as applicable.
2. You are not entitled to an attorney before you submit to any tests [sic] 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 the purpose of determining drug content, none shall be given [sic], 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
[136 Hawai'i 298] applicable. In addition, you shall also be subject to the procedures and sanctions under chapter 291E, part III.
(Emphasis added). Thus, the Implied Consent Form has three principal provisions: an informational section, a denial of the right to counsel section, and a refusal to submit section.
The Implied Consent Form includes space so that the person can initial each section to indicate acknowledgement. Won initialed both the refusal to submit section, which informed him that refusing to submit to the BAC test is punishable by up to thirty days of imprisonment and a fine of up to $1000, and the informational section. He did not initial the denial of the right to counsel section. The Implied Consent Form separately has space for the person to indicate which BAC test--breath, blood, or urine--the person has agreed or refused to submit and also contains space for both the person and the officer administering the Implied Consent Form to sign. Won initialed next to " AGREED TO TAKE A BREATH TEST AND REFUSED THE BLOOD TEST" and signed the form with his name at the bottom.
A breath test was performed on Won using an Intoxilyzer 8000. Won's BAC was 0.17 grams of alcohol per two hundred ten liters of breath, which is above the limit of 0.08 grams of alcohol per 210 liters of breath under which a person may legally operate a vehicle. See HRS § 291E-61(a)(3). Won was charged in the District Court of the First Circuit (district court) in an amended complaint with OVUII, in violation of HRS § 291E-61(a)(3) and HRS § 291E-61(b)(1), as a first offense.
Won filed a " Motion to suppress statements and evidence of [Won's] breath or blood test" (Motion). The following grounds were asserted for suppression of the BAC test: (1) Won was misled and inadequately advised as to his rights " surrounding the chemical test, in violation of not only existing Hawai'i appellate precedent but also his Due Process rights" ; (2) Won's constitutional right to be adequately apprised of his rights was violated; (3) Won was deprived of an attorney in violation of HRS § 803-9;  and (4) Won " was presented with a Hobson's Choice, either remain silent or commit a crime."
The State disputed each of Won's arguments, stating in response that (1) Won was adequately advised in regard to his rights prior to the breath test, (2) the breath test did not implicate a right to be advised of one's constitutional rights, (3) the breath test did not implicate a Sixth Amendment right to counsel, and (4) ...