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State v. Wilson

Intermediate Court of Appeals of Hawaii

January 26, 2018

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
MARCIA D. WILSON, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT (CASE NO. 2DTA-14-00949)

          James Manjiro Yuda James S. Tabe Deputy Public Defenders for Defendant-Appellant

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

          NAKAMURA, C.J., and FUJISE and CHAN, JJ.

          OPINION

          NAKAMURA, C.J.

         Plaintiff-Appellee State of Hawai'i (State) charged Defendant-Appellant Marcia D. Wilson (Wilson) with: (1) Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) §§ 29lE-6l(a) (1) (2007) and 29lE-6l(b) (Supp. 2014), -[1] and (2) Refusal to Submit to a Breath, Blood, or Urine Test (Refusal to Submit to Testing), in violation of HRS § 291E-68 (Supp. 2014) .[2] After a bench trial, Wilson was found guilty as charged.

         Wilson's conviction for Refusal to Submit to Testing was based on her refusal to submit to a breath or blood test to determine alcohol concentration after being arrested for OVUII. This appeal presents the question of whether Wilson could be prosecuted for Refusal to Submit to Testing in light of the Hawai'i Supreme Court's decision in State v. Won, 137 Hawai'i 330, 372 P.3d 1065 (2015). In Won, the supreme court overturned Won's OVUII conviction, which was based on a breath test that showed his breath alcohol concentration exceeded the legal limit, holding that Won's consent to the breath test was coerced by the criminal sanctions that could be imposed if he refused to consent. Won, 137 Hawai'i at 348-49, 372 P.3d at 1083-84. As explained below, based on the supreme court's analysis in Won, we conclude that Wilson could not be prosecuted for Refusal to Submit to Testing. We therefore reverse that conviction.

         Wilson also challenges her OVUII conviction. Wilson contends that her OVUII conviction should be vacated because the trial court erred in accepting her stipulation that the arresting officer was qualified to administer field sobriety tests. Wilson contends that her stipulation was invalid because the trial court failed to engage in a colloquy with her to ensure that she personally approved of the stipulation. We conclude that Wilson's colloquy argument is without merit and affirm her OVUII conviction.

         BACKGROUND

         Wilson was driving a white Volkswagon convertible when Maui Police Department (MPD) Officer Jun Hattori signaled for her to pull over. Wilson's car moved to the shoulder of the road, then climbed the curb and came to a stop with both passenger tires on the curb. In speaking with Wilson, Officer Hattori observed that her eyes were red, her speech was slurred and mumbled, and there was an odor of liquor coming from her person and her car. Officer Hattori asked Wilson if she would be willing to participate in field sobriety tests, and Wilson agreed to participate. Wilson performed poorly on the tests, and she was arrested for OVUII.

         At the police station, Officer Hattori, using a standard MPD "implied consent" form (MPD Form 332), advised Wilson that pursuant to HRS Chapter 291E:

1. Any person who operates a vehicle upon a public way, street, road or highway . . . shall be deemed to have given consent to a test or tests for the purpose of determining alcohol concentration ... of the person's breath [or] blood . . . ."
2. You may refuse to submit to a breath or blood test, or both, for the purpose of determining alcohol concentration . . . ."

         Wilson told Officer Hattori that she was "not taking any tests[, ]" and she signed the MPD Form 332 after checking the box signifying that she "refuse[d] to take a breath and/or blood test" for alcohol concentration.

         Officer Hattori then used the standard MPD "refusal to take test(s)" form (MPD Form 332a), to advise Wilson, among other things, of the administrative and criminal sanctions she may be subject to if she persisted in refusing to submit to testing. With respect to criminal sanctions, Wilson was informed that:

If you refuse to submit to a breath [or] blood . . . test, as requested, you may be subject to up to thirty days imprisonment and/or a fine of up to $1, 000, and/or the sanctions of HRS 291E-65, if applicable.

         Although Wilson initially indicated she would take a breath test using a breathalyzer machine, she changed her mind and refused to submit to testing. Wilson checked and initialed the box on the MPD Form 332a that signified that she refused to take a breath or blood test for alcohol concentration, and she signed the form. At trial, the State introduced both MPD Form 332 and MPD Form 332a.

         After considering the evidence presented, the District Court of the Second Circuit (District Court)[3] found Wilson guilty as charged of OVUII and Refusal to Submit to Testing. The District Court entered its Judgment on August 27, 2015, and this appeal followed.

         DISCUSSION

         I.

         The Hawai'i Supreme Court's decision in Won was issued after the trial in this case. Wilson argues that in light of Won, evidence of her refusal to submit to testing was obtained in violation of her right to be free from unreasonable searches, and the District Court erred in admitting such evidence. She thus argues that her conviction for Refusal to Submit to Testing must be reversed.[4]

         As explained below, we conclude that the supreme court's analysis in Won requires the reversal of Wilson's Refusal to Submit to Testing conviction. To understand the application of Won to this case and the development of the law, it is helpful to review the history of legislative enactments and judicial decisions in this area.

         A.

         In 1967, the Hawai'i Legislature enacted an implied consent statute to reduce deaths, injuries, and damages arising out of highway traffic accidents. See 1967 Haw. Sess. Laws Act 214, at § 1. While the statutory scheme has evolved over time, its underlying premise has remained the same, that a person who operates a motor vehicle on the State's public roads "shall be deemed" to have given consent to testing for evidence of impairment. See HRS § 286-151 (1968); HRS § 29lE-ll(a) (2007). The original statute authorized testing of a driver's breath or blood to determine the alcoholic content of the driver's blood. HRS § 286-151 (1986). Subsequent amendments to the statutory scheme expanded the scope of testing to breath, blood, or urine to determine the alcohol concentration or drug content of the driver's breath, blood, or urine, as applicable. HRS § 29lE-ll(a) (2007). A driver whose alcohol concentration in breath or blood exceeds the legal limit is subject to criminal liability for OVUII without the State having to prove at trial that the driver was actually impaired. See HRS § 29lE-6l(a) (3) (2007).[5]

         Prior to 2011, a person who refused to submit to testing, as required by the implied consent statutory scheme, was subject only to civil administrative sanctions, including the revocation of his or her driver's license and referral for substance abuse assessment and treatment. See HRS §§ 291E-41, 291E-65 (2007). However, effective January 1, 2011, the Legislature enacted HRS § 291E-68, which imposed criminal sanctions for the refusal to submit to a breath, blood, or urine test. 2010 Haw. Sess. Laws Act 166, §§ 2, 26, at 398, 415. The version of HRS § 291E-68 applicable to Wilson's case stated: "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."[6]

         B.

         In Won, the supreme court considered the impact that the criminal sanctions under HRS § 291E-68 for refusal to submit to testing had on the validity of a defendant's consent to submit to a breath test under the statutory scheme. Won was arrested for OVUII. Won, 137 Hawai'i at 334, 372 P.3d at 1069. At the police station, an officer read an "implied consent" form to Won. Id. The form advised Won that he could refuse to submit to a breath or blood test to determine his alcohol concentration, but that if he refused, he "shall be subject to up to thirty days imprisonment and/or fine up to $1, 000 or the sanctions of 291E-65, if applicable." Id. at 335, 372 P.3d at 1070. Won indicated his agreement to take a breath test by initialing the form next to the statement "AGREED TO TAKE A BREATH TEST AND REFUSED THE BLOOD TEST, " and he signed the form. Id. Won took a breath test, and the test results showed that he had a breath alcohol content of ...


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