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State v. Scalera

Supreme Court of Hawaii

April 21, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
JOHN G. SCALERA, Petitioner/Defendant-Appellant,

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0001060; CASE NO. 1DTA-13-02681)

          William H. Jameson, Jr. for petitioner

          James M. Anderson for respondent

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          POLLACK, J.

         This case concerns the right of an arrested person under statutory law to communicate and consult with counsel. The defendant in this case, following his arrest for operating a vehicle under the influence of an intoxicant and prior to deciding whether to submit to alcohol concentration testing, was affirmatively advised that he was not entitled to an attorney before submitting to any tests to determine his breath or blood alcohol concentration. We hold that this advisory is inconsistent with Hawaii's statutory right to access counsel, but we conclude under the facts of this case that the defendant's subsequent refusal to submit to testing is not subject to suppression.

         I. BACKGROUND

         A. June 28, 2013 Arrest

         On June 28, 2013, at about 11:00 p.m., John Scalera was stopped while driving westbound on Kailua Road by Honolulu Police Department (HPD) Officers Lordy Cullen and Michael Krekel for weaving back and forth over the roadway's solid and broken white lines. Officer Cullen informed Scalera why he had stopped him, and Scalera responded that he had consumed "a few drinks with his friends, " was travelling home, and was "good to drive." Officer Cullen detected a strong odor of alcohol emitting from Scalera's breath and noticed that Scalera was "flushed red in his face." Officer Krekel administered the standardized field sobriety test to Scalera. Based on the test results, Scalera was arrested and transported to the Kailua Police Station.

         After being booked by the desk sergeant at the station, Officer Krekel read to Scalera HPD Form 396K, titled "Use of Intoxicants While Operating a Vehicle Implied Consent for Testing" (implied consent form). The top half of the implied consent form stated as follows:

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, 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). Scalera initialed each of the three paragraphs located in the top portion of the implied consent form.

         The bottom half of the implied consent form set forth the following types of tests to which a defendant could consent:

ALCOHOL CONCENTRATION
___ AGREED TO TAKE A BREATH TEST AND REFUSED THE URINE TEST
___ AGREED TO TAKE A BLOOD TEST AND REFUSED THE BREATH TEST
___ AGREED TO TAKE BOTH A BREATH TEST AND A BLOOD TEST
___ REFUSED TO TAKE EITHER A BREATH TEST OR A BLOOD TEST
. . . .
I, THE ARRESTEE/RESPONDENT, ACKNOWLEDGE THAT I MADE THE CHOICE(S) INDICATED ABOVE AND WAS INFORMED OF THE INFORMATION IN THIS REPORT.

         After Officer Krekel read aloud the four testing options, Scalera stated that he "wasn't going to take anything, " which Officer Krekel understood to "count[] as a refusal." On the form next to these options, Officer Krekel wrote "refused to initial." At this point, Officer Krekel repeated to Scalera that his options were to (1) take a breath test and refuse the blood test, (2) take a blood test and refuse the breath test, (3) take both the breath test and blood test, or (4) refuse both the breath test and the blood test. Upon asking Scalera if he understood, Scalera again verbally responded, "I'm not taking anything."

         Officer Krekel then read to Scalera HPD Form 396B-1, titled "Sanctions for Use of Intoxicants While Operating a Vehicle & Implied Consent for Testing" (sanctions form).[1] After reading the sanctions form to Scalera, Officer Krekel initialed next to the various sections that Scalera "refused to initial and also sign." Officer Krekel asked Scalera if he understood what was read to him from the sanctions form, and Scalera did not respond. When Officer Krekel informed Scalera that his refusal to sign constituted a refusal to submit to testing, Scalera asked Officer Krekel to go over the sanctions form from the first to the last page.[2] Officer Krekel handed Scalera the sanctions form, but according to Officer Krekel, Scalera "didn't want to take a test so that also constituted a refusal."

         Officer Krekel did not hear Scalera ask for an attorney. Officer Krekel noted, however, that Scalera "could have" asked for an attorney, but that he did not "recall [Scalera] saying that." Officer Krekel stated that "[i]t wouldn't have mattered anyways because the forms state that you're not entitled to an attorney during the implied consent."

         B. District Court and Appellate Proceedings

         On July 1, 2013, the State of Hawai'i filed a written complaint in the District Court of the First Circuit, Kaneohe Division (district court), charging that on June 28, 2013, John Scalera committed the offense of operating a vehicle under the influence of an intoxicant (OVUII) in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1)[3] (count 1) and the offense of refusal to submit to a breath, blood, and/or urine test in violation of HRS § 291E-68[4] (count 2). If convicted of the OVUII charge, Scalera was subject to sentencing as a first-time offender pursuant to HRS § 291E-61(b)(1) (Supp. 2012).

         Prior to trial, Scalera filed a motion to suppress seeking to preclude the use of "all evidence indicating that, on or about June 28, 2013, [Scalera] was operating a vehicle under the influence of an intoxicant . . . and refused to submit to testing." Scalera alleged that this evidence was obtained in violation of his rights, citing article I, section 7 of the Hawai'i Constitution, the Fourth and Fourteenth Amendments to the United States Constitution, and HRS §§ 291E-11(b) (2007), 291E-15 (2007), and 803-9 (1993).[5]

         In a memorandum in support of his motion, Scalera argued that evidence in his case should be suppressed because he was "preemptively and illegally denied" the right to consult with counsel as provided by HRS § 803-9. Specifically, Scalera alleged that the implied consent form "provides an overbroad and incorrect statement of law that no right to counsel exists prior to making an informed consent decision, thereby ignoring the rights afforded to [Scalera] under HRS § 803-9." Scalera contended that because he was denied a reasonable opportunity to consult with an attorney, he did not make a knowing and intelligent decision with regard to his informed consent options. Scalera did not base the arguments in his memorandum on any provisions of the Hawai'i Constitution or the United States Constitution or contend that he had been unlawfully stopped or interrogated by police.

         In its opposition memorandum, the State contended that Scalera had no statutory right to consult with counsel under HRS § 803-9 prior to making his decision to refuse or submit to testing, citing State v. Severino, 56 Haw. 378, 380, 537 P.2d 1187, 1189 (1975). The State submitted that reading the implied consent form and administering breath or blood tests are "in the nature of a booking procedure, " and therefore, a defendant does not have any right to counsel during this time. The State also maintained that the implied consent form had already "adequately informed" Scalera of the consequences of his refusal.

         An evidentiary hearing was held on Scalera's motion.[6]At the conclusion of the hearing, the district court denied Scalera's motion to suppress.[7] In its oral ruling, the court stated that it viewed the motion in large part based upon a "defendant's right to counsel" under HRS § 803-9. The court determined there was no violation of HRS § 803-9 because it was not an "interrogation situation." The court also concluded that Scalera understood his rights and the information on the implied consent form and the sanctions form, and thus the court found that Scalera understood the consequences of his decisions. The district court in its ruling did not address or make any findings of fact or conclusions of law regarding the traffic stop.

         Following a trial at which Scalera and several HPD officers testified, [8] the district court concluded that the State had proved beyond a reasonable doubt the OVUII offense charged in count 1 and the refusal offense charged in count 2. On July 22, 2014, the district court entered its Notice of Entry of Judgment and/or Order and Plea/Judgment (district court judgment).[9]

         Scalera appealed the district court judgment to the Intermediate Court of Appeals (ICA), arguing that the court had erred in failing to determine in its motion to suppress ruling whether the traffic stop was unlawful. Scalera also contended that the court had erred in denying his motion to suppress. Specifically, Scalera maintained that his statutory right to counsel under HRS § 803-9 had been violated and that the district court had erred in concluding otherwise. He also contended that the district court had erroneously concluded that he was not subject to an interrogation implicating his Miranda rights.[10] In an April 29, 2016 Summary Disposition Order, the ICA affirmed the district court judgment. The ICA rejected Scalera's argument that the district court had failed to rule on the lawfulness of the traffic stop, stating that Scalera failed to raise an argument regarding the constitutional validity of the stop before the district court. Further, the ICA concluded that Scalera failed to establish that the stop was in fact unlawful and thus it was not plain error for the district court to deny his motion to suppress.[11]

         With respect to Scalera's argument that he was denied his right to counsel under HRS § 803-9, the ICA appears to have concluded that this statute is only implicated following an interrogation. The ICA relied on its opinion in State v. Won, 134 Hawai'i 59, 332 P.3d 661 (App. 2014), vacated on other grounds, 137 Hawai'i 330, 372 P.3d 1065 (2015), for the proposition that police inquiry into whether an OVUII suspect will submit to testing does not constitute "interrogation, " and, consequently, there was no violation of HRS § 803-9. The ICA posited that even assuming there was a violation of the statute, Scalera was not entitled to suppression of any evidence because he did not (1) claim that the statutory violation had constitutional dimensions or (2) demonstrate by a preponderance of the evidence that any failure to permit him to consult with counsel led to his refusal to submit to testing.

         II. STANDARDS OF REVIEW

         We review a "ruling on a motion to suppress de novo to determine whether the ruling was 'right' or 'wrong.'" State v. Edwards, 96 Hawai'i 224, 231, 30 P.3d 238, 245 (2001) (quoting State v. Jenkins, 93 Hawai'i 87, 100, 997 P.2d 13, 26 (2000)). "[F]actual determinations made by the trial court deciding pretrial motions in a criminal case [are] governed by the clearly erroneous standard, " and "conclusions of law are reviewed under the right/wrong standard." Id. (quoting State v. Eleneki, 92 Hawai'i 562, 564, 993 P.2d 1191, 1193 (2000)).

         III. DISCUSSION

         Scalera argues that the district court failed to rule on his motion to suppress with respect to the lawfulness of the traffic stop. He further maintains that the district court erred in denying his motion to suppress on the grounds that the police violated his statutory right to counsel under HRS § 803-9.[12]

         A. Violation of Article I, Section 7 of the Hawai'i Constitution and Fourth and Fourteenth Amendments to the United States Constitution

         Scalera initially argues that the district court erred in failing to rule on the portion of his motion to suppress related to article I, section 7 of the Hawai'i Constitution and the Fourth and Fourteenth Amendments to the United States Constitution. The ICA concluded that Scalera had failed to properly raise the constitutional validity of the traffic stop before the district court and that it was not plain error for the court to deny the motion.

         Assuming, without deciding, that Scalera raised the propriety of the traffic stop to the district court, Officer Cullen testified that he stopped Scalera because Scalera crossed over a solid traffic line twice and over a broken traffic line once. While Scalera argues that Officer Cullen's testimony contained some "troubling discrepancies, " these "discrepancies" did not negate Officer Cullen's testimony that he observed Scalera cut across at least one of the traffic lane markings. Additionally, the district court in its ruling did not in any way indicate that it viewed Officer Cullen's testimony as not credible, and appellate courts are required to "give full play to the right of the fact finder to determine credibility." State v. Valdivia, 95 Hawai'i 465, 471, 24 P.3d 661, 667 (2001) (quoting State v. Jenkins, 93 Hawai'i 87, 99, 997 P.2d 13, 25 (2000)). Thus, Scalera failed to prove by a preponderance of the evidence that Officer Cullen's stop of his vehicle was unlawful. See State v. Perez, 111 Hawai'i 392, 395, 141 P.3d 1039, 1042 (2006). Accordingly, the ICA did not err in determining that Scalera failed to establish that his rights were violated under article I, section 7 of the Hawai'i Constitution or the Fourth and Fourteenth Amendments to the United States Constitution.

         B. Violation of ...


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