FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO.
R. Vincent, Deputy Prosecuting Attorney, City and County of
Honolulu, for Plaintiff-Appellant.
K.K. Luke, for Defendant-Appellee.
LEONARD, PRESIDING JUDGE, REIFURTH AND CHAN, JJ.
State of Hawai'i (State) appeals from the Findings of
Fact; Conclusions of Law and Order Granting Defendant's
Motion to Suppress Breath Test (Order Granting Motion to
Suppress), filed on September 26, 2016, in the Circuit Court
of the First Circuit (circuit court), 
January 11, 2016, Defendant-Appellee Troy Hosaka (Hosaka) was
arrested by a Honolulu Police Department (HPD) officer for
the offenses of Habitually Operating a Vehicle Under the
Influence of an Intoxicant (Habitual OVUII), in violation of
Hawaii Revised Statutes (HRS) § 291E-61.5 (Supp. 2016),
and Operating a Vehicle After License and Privilege Have Been
Suspended or Revoked for Operating a Vehicle Under the
Influence of an Intoxicant (Operating Vehicle After License
Suspended/Revoked), in violation of HRS § 29lE-62(a)(2)
Hosaka's arrest, the arresting officer read to Hosaka the
provisions of the form titled "USE OF INTOXICANTS WHILE
OPERATING A VEHICLE IMPLIED CONSENT FOR TESTING"
(Implied Consent Form). The Implied Consent Form informed
arrested individuals of the following information:
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 person[']s breath, blood, or urine as
2. You are not entitled to an attorney before you submit to
any tests [sic] or tests to determine your alcohol and/or
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. If you do refuse, then 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
may be subject to up to the sanctions of 291E-65 if you are
under 21 years of age at the time of the offense. In
addition, you may also be subject to the procedures and
sanctions under chapter 291E, part III.
initialed next to each section to indicate his acknowledgment
of the information provided therein. Hosaka also initialed
next to "AGREED TO TAKE A BREATH TEST AND REFUSED THE
BLOOD TEST" and signed his name at the bottom of the
form. Upon Hosaka's signing of the Implied Consent Form,
an HPD officer administered a breath test to Hosaka and the
results of the breath test were incorporated into the police
reports generated for this case.
State charged Hosaka with: one count of Habitual OVUII, in
violation of HRS §§ 29lE-6l.5(a)(1) and (a)(2)(A)
(Supp. 2016) and/or 291E-61.5(a)(1) and (a)(2)(c) (Supp.
2016); and one count of Operating Vehicle After License
Suspended/Revoked, in violation of HRS § 29lE-62(a)(2)
August 10, 2016, Hosaka filed a Motion to Suppress Breath
Test (Motion to Suppress) to preclude the use of any evidence
derived from the breath test at trial. Hosaka contended that
the Implied Consent Form did not follow the procedure
required by HRS §§ 291E-11 (2007) and 291E-15
(Supp. 2015), rendering his purported consent to be
involuntary, and therefore the breath test constituted a
warrantless search in violation of his due process rights.
September 7, 2016, at the hearing on the Motion to Suppress,
the circuit court orally granted the Motion to Suppress. The
circuit court subsequently issued its Order Granting Motion
to Suppress on September 26, 2016.
POINTS OF ERROR
appeal, the State contends that the circuit court erred in
making the following conclusions of law in granting
Hosaka's Motion to Suppress:
that the standard HPD Implied Consent Form "does not
comply with the requirements and mandate of HRS Sections
291E-11, 291E-15, and 291E-65, read in pari materia,
" because it does not give an OVUII suspect an
"unencumbered choice to refuse to submit to a test for
alcohol concentration" and that therefore any purported
consent given by an OVUII suspect pursuant to that form is
"null and void";
that "burdening an arrestee's election to refuse
with any significant sanctions cannot help but
render any subsequent purported consent legally insufficient
and therefore null and void"; and
that because "[t]here is categorically no possibility
for an arrestee to know that the sanctions are solely
administrative rather than criminal, much less exactly
what those sanctions specifically are, or even what
they may be," it is "simply not
possible" for an arrestee to give
"'knowing' or 'intelligent'"
STANDARDS OF REVIEW
court's ruling on a motion to suppress evidence is
reviewed 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). "[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
interpretation is "a question of law reviewable de
novo." State v. Levi, 102 Hawai'i 282, 285,
75 P.3d 1173, 1176 (2003) (citation omitted). Statutory
construction is guided by established rules:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself. Second,
where the statutory language is plain and unambiguous, our
sole duty is to give effect to its plain and obvious meaning.
Third, implicit in the task of statutory construction is our
foremost obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute itself.
Fourth, when there is ...