FROM THE DISTRICT COURT OF THE SECOND CIRCUIT (CASE NO.
Manjiro Yuda James S. Tabe Deputy Public Defenders for
Richard K. Minatoya Deputy Prosecuting Attorney County of
Maui for Plaintiff-Appellee
NAKAMURA, C.J., and FUJISE and CHAN, JJ.
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), - 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)
After a bench trial, Wilson was found guilty as charged.
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.
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.
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.
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 .
. . ."
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.
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
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.
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.
considering the evidence presented, the District Court of the
Second Circuit (District Court) 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
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
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
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).
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
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 ...