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Ponce v. Administrative Director of Courts

Intermediate Court of Appeals of Hawaii

June 20, 2019

MELCHOR A. PONCE, Petitioner-Appellant,
v.
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI'I, Respondent-Appellee

          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (CASE NO. 1DAA-16-00005)

          Earle A. Partington, for Petitioner-Appellant.

          Delanie D. Prescott-Tate, for Respondent-Appellee.

          GINOZA, CHIEF JUDGE, LEONARD AND CHAN, JJ.

          OPINION OF THE COURT

          CHAN, J.

         In this secondary appeal, Petitioner-Appellant Melchor A. Ponce (Ponce) appeals from the December 27, 2016 Decision and Order Affirming Administrative Revocation (Order) and the January 31, 2017 Judgment on Appeal (Judgment), both entered by the District Court of the First Circuit (district court), [1] The district court affirmed the administrative revocation of Ponce's driver's license by Respondent-Appellee Administrative Director of the Courts, State of Hawai'i, acting through a hearing officer (Hearing Officer) of the Administrative Driver's License Revocation Office (ADLRO).

         On appeal, Ponce argues that the district court erred in affirming the Hearing Officer's conclusion that the implied consent form read to Ponce was not misleading.

         I.

         On August 25, 2016, Ponce was arrested for Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61 (Supp. 2016). After arriving at the police station, the arresting officer read to Ponce the provisions of the form titled "USE OF INTOXICANTS WHILE OPERATING A VEHICLE IMPLIED CONSENT FOR TESTING" (Implied Consent Form).[2] The Implied Consent Form provided:

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 applicable.
2. ___You are not entitled to an attorney before you submit to any test or test [sic] 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. 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 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.

         Ponce refused to submit to alcohol concentration testing and refused to initial or sign the form to indicate his acknowledgment. After Ponce refused to sign the Implied Consent Form, the arresting officer read to Ponce the provisions of an additional four-page form concerning the consequences of passing, failing, and refusing an alcohol concentration test (Sanctions Form).[3] Ponce again refused to initial or sign the Sanctions Form. After Ponce refused to sign the Sanctions Form, the arresting officer prepared the Notice of Administrative Revocation, which Ponce again refused to sign.

         On August 31, 2016, the ADLRO issued its Notice of Administrative Review Decision (Administrative Review Decision), sustaining the Notice of Administrative Revocation and revoking Ponce's license and privilege to operate a vehicle for a two-year period from September 25, 2016 through and including September 24, 2018.

         On September 28, 2016, Ponce requested an administrative hearing to review the Administrative Review Decision. The ADLRO held the hearing on October 25, 2016. At the hearing, Ponce raised the argument that the last two ...


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