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State v. Niceloti-Velazquez

Intermediate Court of Appeals of Hawaii

December 5, 2016

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
BERNARD NICELOTI-VELAZQUEZ, Defendant-Appellant

         APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT (CASE NO. 2DTA-13-00563)

         On the briefs:

          David A. Sereno for Defendant-Appellant.

          Richard K. Minatoya Deputy Prosecuting Attorney County of Maui for Plaintiff-Appellee.

          FOLEY, PRESIDING J., FUJISE AND REIFURTH, JJ.

          OPINION

          FOLEY, J.

         Defendant-Appellant Bernard Niceloti-Velazquez (Velazquez} appeals from the "Findings of Facts and Conclusions of Law" (FOFs), entered on August 29, 2014 and the "Amended Judgment and Notice of Entry of Amended Judgment, " entered on March 6, 2015 in the District Court of the Second Circuit[1](district court). Velazquez was convicted of operating a vehicle under the influence of an intoxicant in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1), (4) (Supp. 2015).[2]

         On appeal, Velazquez argues that the district court erred in denying his motion to suppress evidence of his blood alcohol content, which was obtained through a warrantless blood draw pursuant to HRS § 291E-21 (2007 Repl.).

         HRS § 291E-21 is the mandatory testing provision contained within Hawaii's implied consent statute. The implied consent statute governs the administration of breath, blood, and urine tests of vehicle operators suspected of driving under the influence of drugs or alcohol. See HRS § 291E-11 et seq. HRS § 291E-21 provides, in relevant part:

§291E-21 Applicable scope of part; mandatory testing in the event of a collision resulting in injury or death.
(c) In the event of a collision resulting in injury or death and if a law enforcement officer has probable cause to believe that a person involved in the collision has committed a violation of section . . . 291E-61 . . . the law enforcement officer shall request that a sample of blood or urine be recovered from the vehicle operator or any other person suspected of committing a violation of section . . . 291E-61[.]

         The Hawai'i Supreme Court in State v. Entrekin, 98 Hawai'i 221, 47 P.3d 336 (2002) articulated the following standard for applying Hawaii's mandatory testing provision:

[A]nonconsensual, warrantless blood extraction does not violate the fourth amendment to the United States Constitution, whether the person has been arrested or not, so long as (1) the police have probable cause to believe that the person is [driving under the influence] and that the blood sample will evidence that offense, (2) exigent circumstances are present, and (3) the sample is obtained in a reasonable manner.

Id. at 232, 47 P.3d at 347 (emphasis added) (interpreting HRS ยง 286-163 (repealed Jan. 1, 2002), the predecessor of ...


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