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NO. CAAP-12-0000858
IN THE INTERMEDIATE COURT OF APPEALS
STATE OF HAWAII
STATE OF HAWAII,
Plaintiff-Appellee,
vs.
YONG SHIK WON,
Defendant-Appellant.
_______________________________________
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ORIGINAL CASE NO. 1DTA-11-01903
APPEAL FROM THE JUDGEMENT and
SENTENCE ENTERED, on September 20,
2013
OPENING BRIEF OF APPELLANT AND
EXHIBIT “A”
DISTRICT COURT OF THE FIRST
CIRCUIT
HONORABLE JUDGE DAVID LO
OPENING BRIEF OF APPELLANT
JONATHAN BURGE #6692
Attorney at Law
412 Iolani Avenue
Honolulu, Hawaii 96813
Telephone: 521-4500
ATTORNEY FOR DEFENDANT-APPELLANT
YONG SHIK WON
Electronically FiledIntermediate Court of AppealsCAAP-12-000085805-FEB-201304:18 PM
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TABLE OF CONTENTS
I. STATEMENT OF THE CASE ........................................................................................... 1
II. STATEMENT OF POINTS OF ERROR ........................................................................... 5
A. THE COURT ERRED WHEN IT DENIED DEFENDANT’S MOTION TO
SUPPRESS.. ....................................................................................................................... 6
1. The defendant has been mislead and/or inadequately advised as to his rights surrounding
the chemical test, in violation of not only existing Hawai’I appellate precedent but also
his Due Process rights. ........................................................................................................ 6
2. The defendant’s 2nd
reason for suppression of the breath test was a violation of
defendant’s Miranda rights. ................................................................................................ 8
3. The Court erred in failing to suppress the breath test for violation of HRS 803-9. .......... 10
III. QUESTIONS PRESENTED ............................................................................................. 11
A. DID THE COURT ERR IN DENYING DEFENDANT’S MOTION TO SUPPRESS
WHEN DEFENDANT, WHO WAS IN CUSTODY, WAS ASKED WHETHER HE
WANTED TO INCRIMINATE HIMSELF IN THE PETTY MISDEMEANOR
OFFENSE OF REFUSING TO TAKE AN ALCOHOL TEST WITHOUT FIRST
BEING MIRANDIZED? .................................................................................................. 11
B. DID THE COURT ERR IN DENYING DEFENDANT’S MOTION TO SUPPRESS
WHEN THE POLICE ARRESTED DEFENDANT FOR DUI, TRANSPORTED HIM
TO THE POLICE STATION TO OBTAIN HIS CONSENT FOR AN ALCOHOL TEST,
AND THEN MISINFORMED HIM OF HIS STATUTORY RIGHT TO AN
ATTORNEY UNDER HRS 803-9? ................................................................................. 11
C. DID THE COURT ERR IN DENYING DEFENDAN’T MOTION TO SUPPRESS
WHEN THE POLICE MISINFORMED DEFENDANT OF THE SANCTIONS? ......... 11
IV. STANDARDS OF REVIEW ............................................................................................ 11
V. ARGUMENT .................................................................................................................... 11
A. THE POLICE MUST OBTAIN THE CONSENT OF A DEFENDANT IN A DUI CASE,
WHEN DEFENDANT WAS NOT INVOLVED IN AN ACCIDENT INVOLVING
INJURY, PRIOR TO OBTAINING THE DEFENDANT’S BLOOD OR BREATH TEST
TO DETERMINE BLOOD ALCOHOL. ......................................................................... 11
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B. THE POLICE VIOLATED ARTICLE 1, SECTION 10 OF THE HAWAII
CONSTITUTION WHEN THEY FIRST TOLD DEFENDANT, WHO WAS IN
CUSTODY AT THE TIME, THAT HE HAD THE RIGHT TO REFUSE TO TAKE A
BLOOD ALCOHOL TEST, AND THEN ASKED HIM WHETHER HE WANTED TO
INCRIMINATE HIMSELF IN A PETTY MISDEMEANOR OFFENSE BY REFUSING
TO BE TESTED FOR BLOOD ALCOHOL WITHOUT FIRST MIRANDIZING
HIM…. .............................................................................................................................. 14
C. THE POLICE VIOLATED DEFENDANT’S STATUTORY RIGHT TO AN
ATTORNEY, AND DUE PROCESS UNDER THE HAWAII CONSTITUTION WHEN
THEY MISINFORMED DEFENDANT OF HIS RIGHT TO AN ATTORNEY. .......... 18
D. THE COURT ERRED WHEN IT FAILED TO SUPPRESS THE BREATH RESULTS
AFTER THE POLICE MISINFORMED DEFENDANT OF THE SANCTIONS. ......... 20
VI. CONCLUSION ................................................................................................................. 21
VII. RELEVANT CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES ....... 21
VIII. STATEMENT OF RELEATED CASES.......................................................................... 22
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TABLE OF AUTHORITIES
Cases State v. Amorin, 61 Haw. 356, 604 P.2d 45 (1979) ...................................................................... 17
Doe v. United States, 487 U.S. 201, (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
State v. Eli, 126 Haw. 510, 273 P.3d 1196 (2012)………………………………………………16
State v. Fukusaku, 85 Haw. 462, 946 P.2d 32 (1997)............................................................. 13, 19
State v. Gustafson, 54 Haw. 519, 511 P.2d 161 (1973) ................................................................ 15
State v. Hoey, 77 Haw. 17, 881 P.2d 504 (1994) ......................................................................... 16
State v. Ikaika, 67 Haw. 564, 698 P.2d 281 (1985) ...................................................................... 16
State v. Jenkins, 93 Haw. 87, 997 P.2d 13 (2000)……………………………………………….11
State v. Joseph, 109 Haw. 482, 128 P.3d 795 (2006) ................................................................... 16
State v. Ketchum, 97 Haw. 107, 34 P.3d 1006 (2001) ................................................................. 16
Leslie v. Estate of Tavares ............................................................................................................ 11
State v. Medeiros, 4 Haw.App 248, 665 P.3d 181 (1983) ................................................ 14, 17, 19
Rossell v. City and County of Honolulu, 59 Haw. 173, 181, 579 P.2d 663, 669 (1978) ............. 13
State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971) .................................................................. 17
State v. Severino, 56 Haw. 378, 537 P.2d 1187 (1975) ............................................................ 15, 20
State v. Williams, 114 Haw. 406, 163 P.3d 1143 (2007) ............................................. 8, 13, 14, 20
State v. Wilson, 92 Haw. 45, 987 P.2d 268 (1999) ........................................... 2, 7, 8, 13, 19, 20, 21
Statutes Hawaii Revised Statutes Section 291E-11 ...................................................................... 6, 7, 11, 15
Hawaii Revised Statutes Section 291E-21 .......................................................................... 5, 12, 20
Hawaii Revised Statutes Section 291E-6l..................................................... 1, 2, 11, 12, 13, 14, 15
Hawaii Revised Statutes Section 291E-68 ……………………………………..………..15, 17, 18
Hawaii Revised Statutes Section 803-9 ............................................................ 2, 10, 11, 18, 19, 20
Rules Hawaii Rules of Penal Procedure Rule 47 ........................................................................................ 6
Constitutional Provisions 6
th Amendment of the United States Constitution ……………………………………………... 15
Article 1 Section 10 of the Hawaii Constitution ............................................................................. 14
Article 1 Section 11 of the Hawaii Constitution ……………………………………………… 15
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1
NO. CAAP-12-0000858
IN THE INTERMEDIATE COURT OF APPEALS
STATE OF HAWAII
STATE OF HAWAII,
Plaintiff-Appellee,
vs.
YONG SHIK WON,
Defendant-Appellant.
_______________________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ORIGINAL CASE NO. 1DTA-11-01903
APPEAL FROM THE JUDGEMENT and
SENTENCE ENTERED, on September 20,
2013
OPENING BRIEF OF APPELLANT AND
EXHIBIT “A”
DISTRICT COURT OF THE FIRST
CIRCUIT
HONORABLE JUDGE DAVID LO
OPENING BRIEF OF APPELLANT
I. STATEMENT OF THE CASE
In this case, Appellant YONG SHIK WON (hereinafter " WON ") was charged by
written complaint with violating Hawaii Revised Statutes (hereinafter HRS) Section 291E-
61(a)(1) and (a)(3). See filed document #1 of case 1DTA-11-01903, hereinafter “#1”.
Defendant, through counsel, pled not guilty. See page 2 of record on appeal. On
December 1, 2011 the defendant filed a motion to dismiss the complaint because it lacked mens
rea pleading. See document #14 in case 1DTA-11-01903 (hereinafter “#14”). On May 17, 2012
the defendant filed a motion to suppress statements and evidence. See document #25 in case
1DTA-11-01903 (hereinafter “#25”). On May 17, 2012, in anticipation to the State filing a
motion to amend complaint, defendant filed a memo in opposition to amend the complaint. See
document #26 in case 1DTA-11-01903 (hereinafter “#26”). The prosecution filed a motion to
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amend complaint on May 24, 2012. See document #28 in case 1DTA-11-01903 (hereinafter
“#28”). On May 24, 2012 the State also filed its opposition to defendant’s motion to suppress. See
document #27 in case 1DTA-11-01903 (hereinafter “#27”).
On May 24, 2012 the State’s motion to amend complaint was heard before the Honorable
Judge Lono Lee. Judge Lee granted the State’s Motion to Amend over defendant’s objection and
denied defense’s motion to dismiss. See record on appeal at page 4. The Amended Complaint was
filed on May 24, 2012. See document #31 in case 1DTA-11-1903 (hereinafter “#31”).
On September 20, 2012 the defendant’s motion to suppress and trial came before the
Honorable Judge David Lo. Prior to the beginning of trial the court granted the defendant’s oral
motion to dismiss the 291E-61(a)(1) portion of the complaint. See September 20, 2012 transcript of
proceedings (hereinafter “TR”) at pages 2-3. The parties then proceeded by stipulated facts on both
the Motion to Suppress and the remaining 291E-61(a)(3) charge. See TR at 3-7.
For the purposes of this appeal defendant argued that defendant’s breath test should be
suppressed because:
1. The police misinformed defendant of the Sanctions in violation of State v. Wilson, 92
Haw. 45, 987 P.2d 268 (1999);
2. The police violated the Hawaii Constitution’s Miranda requirements when they obtained
defendant’s consent to be tested; and
3. The police violated HRS 803-9 when they informed the defendant that he was not
entitled to an attorney.
See #25.
The court then addressed the Motion to Suppress. Evidence was consolidated on the Motion
to Suppress and trial. Police reports and other exhibits were stipulated into evidence. TR at 3-7.
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According to Honolulu Police Officer Vincent Gonzales in document #37 in case 1DTA-
11-01903 (hereinafter “#37”).
ASSIGNMENT/ ARRIVAL
On 4-20-11/ 0315 Hrs while assigned as 1B179 I stopped a vehicle for traffic
violations and found the driver to be OVUII.
TRAFFIC VIOLATION
On 4-20-11/0315 Hrs I was traveling west on Kapiolani Blvd .in lane #2 just prior
to Sheridan St when I observed a white Chevy S-10 traveling in the lane in front
of me at a high rate of speed. I quickly got behind the vehicle and began to pace
it at 55 MPH in a 35M PH zone. We passed (2) 35 MPH speed limit signs prior to
traffic stop, I continued to pace the vehicle at 55 MPH until it began to slow just
prior to Kamakee St. The vehicle then made an abrupt lane change still at about
45 MPH into lane #1 and made a left tum onto Kamakee St.
TRAFFIC STOP
Observing the traffic violation and fearing for the safety of the Public I activated
my emergency lights and siren and attempted to stop the vehicle. I continued to
follow the vehicle until came to a stop just makai of the intersection of Kamakee/
Waimanu. I approached the vehicle from the rear- and observed a lone Asian
male in the vehicle. I greeted the driver who was later identified via valid Hawaii
Drivers license -as Yong Shik WON. I explained to WON why he was being
stopped and asked him for his license and vehicle document's. As I was speaking
with WON I observed that he had red, watery, eyes and he emitted a strong odor
of an alcoholic type beverage as he was speaking to me. I was about 2 feet from
WON When I first detected the odor. 1 told WON that I believed him to be
intoxicated and asked if he would participate in the SFST's. He agreed and exited
his vehicle. OFFICER C. CLITES administered the test.
CONFERRAL
I conferred with SGT. A. LEE and apprised him of the facts and circumstances of
this traffic· stop and he continued the investigation.
TRANSPORT/ INJURIES
After Yong Shik WON was arrested for OVUIII was instructed to transport WON
to the Central Receiving Desk for booking. On 4-20-11/0345 Hrs I transported
WON to the Central Receiving Desk for booking without incident. WON had no
visible injuries nor did he complain of any when asked. We arrived at 0348 Hrs.
ADDITIONAL INFO
HPD 1295 had a valid Speed Check at the time of this Incident expiring on 11-23-
11. Also the distance from Sheridan St. to Kamakee is approximately 3/10 of a
mile.
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#37 at 7.
Sgt. Albert Lee’s report states in relevant part:
A/A: On 04-20-11 , at about 0330 hours, I arrived at Kamakee Street and
Waimanu Street to cover off Ofc. V. GONZALES on a traffic stop.
CONFERRAL: Upon arrival, I conferred with Ofc. V GONZALES about stop
and the driver.
DRIVER: Driver, Yong Shik WON was very talkative. He had a strong odor of
an alcohol type beverage coming from him. His face was very red, and his eyes
were red as well. SFST: Ofc. C. CLITES administered the SFST to WON which
he failed.
PAS: Ofc. C. CLITES also administered the PAS to WON, which he also failed.
ARREST: At about 0340 hours, I placed WON under arrest for OVUII. He was
not sick or injured.
TRANSPORT: Transport done by Ofc. V. GONZALES. 'Refer to his followup.
DESK COMMANDER: Lt. M. CRICCHIO was apprised of the arrest by me.
ADLRO: I read to WON the ADLRO form. He elected the breath test.
UTTERANCES: While at CRD, WON kept talking and talking. He stated he
admitted to speeding, but he was ten yards from his house. He then said he was
speeding; but only going ten over. He also said he was out having a good time,
but that he was not that drunk. He then said he was drunk and had to read the
form slower.
BREATH TEST: Breath test performed on WON by Ofc. C. TOSHI results of
which were .170 BrAC.
NOTICE: I issued and explained the Notice of Admin Revoc. to WON. He
signed the last page of the form and I Issued it to him. He said he understood the
form.
#37 at 4.
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The implied consent form that was read to WON was submitted under case number
1DTA-11-01903 as document number 36 (hereinafter “#36”). The relevant portion of the implied
consent form reads:
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 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 291 E-65, if applicable. In addition, you shall also be
subject to the procedures and sanctions under chapter 291 E, part III.
See #36.
It should be noted that WON refused to initial 2 on #36 because, according to written
comments on the form “said he does not agree with this one, and was not going to initial.”
Addition items submitted into the case was the intoxilyzer operator report (see #35 in case
1DTA-11-01903) and the intoxilyzer supervisor’s report (see #38 and #39 in case 1DTA-11-01903).
Based on document #35 in case 1DTA-11-01903, WON’S blood alcohol level was .170.
After reviewing exhibits and listening to arguments of the parties the court denied
defendant’s motion to suppress. TR at 11. Then WON was found guilty of the stipulated facts
trial. TR at 11. The court sentenced defendant to fines, fees and classes pursuant to statute, and
stayed sentence pending appeal. TR at 12.
II. STATEMENT OF POINTS OF ERROR
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A. THE COURT ERRED WHEN IT DENIED DEFENDANT’S MOTION TO
SUPPRESS
On August 29, 2012 defendant filed a Motion to Suppress Statements and Evidence. See
#25. There the defendant argued:
“This Motion is brought pursuant to HRPP rule 47 …, Article 1 Section 5, 8, 10 and 14 to
the Hawaii Constitution…” #25 at 1.” For purpose of this appeal defendant argues three points of
error as to why the court should have suppressed the breath test in this case, which are pointed out
below.
1. The defendant has been mislead and/or inadequately advised as to his
rights surrounding the chemical test, in violation of not only existing
Hawai’I appellate precedent but also his Due Process rights.
As to this point defendant argued in #25:
Here, Defendants are routinely misadvised regarding their rights, negating
any ability to make a knowing and voluntary decision. #25 at 3-4.
In fact, our existing statutes negate any argument that decisions, based on
the current form, are voluntary. Section 291E-11 states:
a. 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, subject to this part, to a test or tests approved
by the director of health of the person's breath, blood, or urine for
the purpose of determining alcohol concentration or drug content
of the person's breath, blood, or urine, as applicable.
b. The test or tests shall be administered at the request of a law
enforcement officer having probable cause to believe the person
operating a vehicle upon a public way, street, road, or highway or
on or in the waters of the State is under the influence of an
intoxicant or is under the age of twenty-one and has consumed a
measurable amount of alcohol, only after:
1. A lawful arrest; and
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2. The person has been informed by a law enforcement officer
that the person may refuse to submit to testing under this
chapter….
Haw. Rev. Stat. § 291E-11 (emphasis added). Thus, Section 291E-11
presupposes adequate information will be provided before a refusal will be
charged and further suggests that a person under arrest for suspicion of operating
a vehicle under the influence of intoxication has a right to refuse a test. See #25
at 4-5.
Our case law agrees that Defendants must be properly apprised of their rights
to an extent that they may make a knowing and voluntary decision. State v. Wilson,
92 Haw. 45, 987 P.2d 268 (1999). See #25 at 6.
The advice routinely given in Honolulu is inapposite with Wilson. Here,
Officers: 1) advise Defendants that they was not entitled to an attorney; and 2) If they
refused to submit to a breath, blood or urine test, (or merely remain silent), he or she
shall be subject to up to thirty days imprisonment and/or a fine of up to $1000.
Wilson requires, at a minimum, either an attorney consultation to explain the
consequences or, alternatively, that a Defendant be told he may face those sanctions.
There is no mention that Defendant would have to be adjudged guilty of a knowing
and voluntary refusal before the sanctions. And, because Defendants are specifically
advised that they may not consult an attorney, they cannot be held to understand the
consequence of refusing and, therefore, should not be held to have knowingly or
voluntarily submitted to the testing. The Officers’ warnings and advisements are
coercive, since the defendant only and, precluding Defendants from making a
knowing and intelligent decision regarding whether to take or refuse a test.
Accordingly, the test result may not be used. See #25 at 6-7.
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On September 11, 2012 the State filed a written opposition to defendant’s Motion to
Suppress. They did not address the Wilson argument in their memorandum. They also did not
make any arguments against this issue at the hearing on this matter. See #27.
The Court did not make specific findings on this issue when it denied defendant’s
motion. TR passim.
2. The defendant’s 2nd
reason for suppression of the breath test was a
violation of defendant’s Miranda rights.
Defendant filed a written motion to suppress. See #25.
MR. BURGE: I did want to add just one thing. Since this is an older motion,
Judge, I wanted to add basically the crux of it is whether or not it's
testimonial. The Hawaii Supreme Court in State v. Williams at 111 Haw. 406
basically says that our implied consent statute is a voluntary one unless the person
is in an accident involving injury, which clearly the facts do not indicate here.
Once that occurs, they must speak to my client before they can get into
this breath evidence. And that means that it's actual facts that they need. In Doe v.
United States, they held that questioning between the officers is testimonial if it
explicitly or implicitly relates to a factual assertion or discloses information.
So basically they're either making a factual assertion that they want to take
a test or not or they're disclosing information. For instance, if they don't, clearly
from the U.S. Supreme Court's definition, it's testimonial in light of the Hawaii
Supreme Court saying that it's a voluntary test. Once you go there, we know
the law on Miranda. He was in custody. He was asked a question that may
incriminate him and indeed told that one of his choices was to refuse. What do
you want to do?
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I think if it's testimonial, there's no doubt that Miranda violation occurred.
And if it occurred, fruit of the poisonous tree is the breath test. And that's why
we're asking that it be suppressed.
See TR 8-9.
In the States memo in opposition to the defendant’s Motion to Suppress, #27, they
argued:
There is no case law within the state supporting defendant's position .. The Hawaii
State Legislature mandated by enacting 291E that statutory authority as outlined
in HRS § 29JE-11 specifying that an individual operating a vehicle upon a public
way, street, or highway or on ·or in the waters of the State shall be deemed to
have given consent to a test or tests approved by the director of health of the
person's breath, blood," or urine for the purpose, of determining alcohol
concentration. Consequently, Defendant had already given her prior consent
testing through her actions in operating a vehicle on a public way, street, or
highway, and the HPD -396-K form merely reaffirmed that consent. The form
initialed and signed by Defendant, clearly outlines and correctly informed
Defendant of the four choices provided her by statute. Defendant initialed the
relevant lines and signed that she was informed regarding the information in the
report.
#27 at 2.
The State’s essential argument was that the conversation between the
police and defendant when the police attempted to obtain defendant’s consent to
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take a test in this case was not “testimonial.” Therefore, Miranda did not apply.
See #27 at 2-5.
The court did not make any specific findings on this issue in denying defendant’s
motion. TR passim.
3. The Court erred in failing to suppress the breath test for violation of
HRS 803-9.
In his Motion to Suppress defendant argued:
The advice routinely given informs the detainee that "You are not entitled to an
attorney before you submit to any test or test to determine your alcohol and/or
drug content." This is clearly inapposite of Section§ 803-9, which specifically
states that such action would be unlawful. The unlawful act Strips a right without
due process. Also, since the moment Defendant walked into the Honolulu Police
Department and the submission to the chemical test, a substantial amount of time
passed. There is no reason the Officer could not have given Defendant a phone
call nor would any burden result from allowing Defendant to attempt to contact an
attorney. Moreover, the conflicts in the statutes create great confusion for the
detainee- particularly one presented with the existing form.
See #25 at 15.
Once again the State argued that HRS 803-9 was inapplicable because the implied
consent was “non testimonial”. See #27 at 6-7.
The court did not make specific findings on this issue. The court ruled after reviewing
exhibits, and listening to arguments of the parties: “All right. Based on that, defendant’s motion
to suppress will be denied.” See TR at 11.
Page 15
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The court then found guilty of the remaining charge of HRS 291E-61(a)(3). See TR at
11.
III. QUESTIONS PRESENTED
A. DID THE COURT ERR IN DENYING DEFENDANT’S MOTION TO SUPPRESS
WHEN DEFENDANT, WHO WAS IN CUSTODY, WAS ASKED WHETHER HE
WANTED TO INCRIMINATE HIMSELF IN THE PETTY MISDEMEANOR
OFFENSE OF REFUSING TO TAKE AN ALCOHOL TEST WITHOUT FIRST
BEING MIRANDIZED?
B. DID THE COURT ERR IN DENYING DEFENDANT’S MOTION TO SUPPRESS
WHEN THE POLICE ARRESTED DEFENDANT FOR DUI, TRANSPORTED
HIM TO THE POLICE STATION TO OBTAIN HIS CONSENT FOR AN
ALCOHOL TEST, AND THEN MISINFORMED HIM OF HIS STATUTORY
RIGHT TO AN ATTORNEY UNDER HRS 803-9?
C. DID THE COURT ERR IN DENYING DEFENDAN’T MOTION TO SUPPRESS
WHEN THE POLICE MISINFORMED DEFENDANT OF THE SANCTIONS?
IV. STANDARDS OF REVIEW
Questions of constitutional law are reviewed de novo, under the “right/wrong”
standard, so the court if free to “exercise our own independent constitutional judgment[,]
based on the facts of the case[,]” to answer questions of constitutional law. State v.
Jenkins, 93 Haw 87, 100, 997 P.2d 13, 26 (2000) (citations omitted).
Review of a court’s conclusions of law is also reviewed de novo, under the
right/wrong standard of review. Leslie v. Estate of Tavares, 91 Haw. 394, 399, 984 P.2d
1220, 1225 (1999).
V. ARGUMENT
A. THE POLICE MUST OBTAIN THE CONSENT OF A DEFENDANT IN A DUI
CASE, WHEN DEFENDANT WAS NOT INVOLVED IN AN ACCIDENT
INVOLVING INJURY, PRIOR TO OBTAINING THE DEFENDANT’S
BLOOD OR BREATH TEST TO DETERMINE BLOOD ALCOHOL.
Hawaii Revised Statutes (hereinafter HRS) section 291E-11 reads, in relevant part:
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(a) 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,
subject to this part, to a test or tests approved by the director of health of the
person's breath, blood, or urine for the purpose of determining alcohol
concentration or drug content of the person's breath, blood, or urine, as applicable.
(b) The test or tests shall be administered at the request of a law enforcement
officer having probable cause to believe the person operating a vehicle upon a
public way, street, road, or highway or on or in the waters of the State is under the
influence of an intoxicant or is under the age of twenty-one and has consumed a
measurable amount of alcohol, only after:
(1) A lawful arrest; and
(2) The person has been informed by a law enforcement officer that
the person may refuse to submit to testing under this chapter.
[emphasis added].
***
(f) The use of a preliminary alcohol screening device by a law enforcement
officer shall not replace a breath, blood, or urine test required under this section.
The analysis from the use of a preliminary alcohol screening device shall only be
used in determining probable cause for the arrest.
***
HRS section 291E-21(c) sets forth when the police can involuntarily obtain a persons
blood alcohol level:
(c) In the event of a collision resulting in injury or death and if a law enforcement
officer has probable cause to believe that a person involved in the collision has
committed a violation of section 707-702.5, 707-703, 707-704, 707-705, 707-
706, 291E-61, 291E-61.5, or 291E-64, the law enforcement officer shall request
that a sample of blood or urine be recovered from the vehicle operator or any
other person suspected of committing a violation of section 707-702.5,707-
703, 707-704, 707-705, 707-706, 291E-61, 291E-61.5, or 291E-64. If the person
involved in the collision is not injured or refuses to be treated for any injury, the
law enforcement officer may offer the person a breath test in lieu of a blood or
urine test. If the person declines to perform a breath test, the law enforcement
officer shall request a blood or urine sample pursuant to subsection (d). The act of
declining to perform a breath test under this section shall not be treated as a
refusal under chapter 291E and shall not relieve the declining person from the
requirement of providing a blood or urine sample under this section.
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In State v. Wilson, 92 Haw. 45, 987 P.2d 268 (1999), the Hawaii Supreme Court
reasoned under the old dui law under HRS Chapter 291 that:
Among other things, our implied consent statute is intended to provide an
efficient means of gathering evidence of intoxication. See Rossell v. City and
County of Honolulu, 59 Haw. 173, 181, 579 P.2d 663, 669 (1978). The statutory
scheme, however, also protects the rights of the driver in that he or she may
withdraw his or her consent before a test is administered. To this end, Hawai‘i's
implied consent scheme mandates accurate warnings to enable the driver to
knowingly and intelligently consent to or refuse a chemical alcohol test.
Wilson, at 49. Emphasis in original.
The Hawaii Supreme Court has also interpreted the meaning of our current statutory
scheme under Chapter 291E-61, and how the courts are to handle a non-consensual blood
alcohol test in DUI cases where there is not an accident involving injury in State v. Williams,
114 Haw. 406, 163 P.3d 1143 (2007).
In Williams, the police came across a bloodied person standing on the roadway. There
was also an overturned motorcycle on the roadway. The police officer, believing that the
bloodied person had been injured in a motorcycle accident, forced a blood draw from the person
to determine the blood alcohol content without the person’s consent. At trial, the bloodied
person filed a motion to suppress evidence based on the nonconsensual blood draw, which lead
to blood alcohol evidence that was used to convict that person for DUI. The trial court denied
the motion. The Hawaii Supreme Court reversed, and after finding that there was no evidence of
an accident, they ruled:
Therefore, a police officer can lawfully obtain a blood draw without consent if (1)
there has been “a collision resulting in injury or death” and (2) the officer “has
probable cause to believe that a person involved in the collision has committed”
one of the enumerated offenses. HRS § 291E–21. The results of nonconsensual
blood draws that do not comply with the statutory requirements are unlawful and
may be excluded from evidence (or suppressed by appropriate motion) under the
“fruit of the poisonous tree” doctrine. See State v. Fukusaku, 85 Hawai‘i 462,
475, 946 P.2d 32, 45 (1997) (“[T]he ‘fruit of the poisonous tree’ doctrine
Page 18
14
prohibits the use of evidence at trial which comes to light as a result of the
exploitation of a previous illegal act of the police.” (Quoting State v. Medeiros, 4
Haw.App. 248, 251 n. 4, 665 P.2d 181, 184 n. 4 (1983).)).
State v. Williams, 114 Haw. 406, 410, 163 P.3d 1143, 1147 (2007).
Therefore, based on Hawaii Supreme Court precedent in Williams, a person who is
arrested for violating HRS 291E-61 (hereinafter DUI) must consent to testing for their blood
alcohol level, unless they were in an accident involving injury.
The United States Supreme Court has held that an accused's communication is
testimonial where it, explicitly or implicitly, relates a factual assertion or discloses information.
Doe v. United States, 487 U.S. 201, 210, 108 S.Ct. 2341, 2347, 101 L.Ed.2d 184 (1988)).
In this case, where the defendant was not involved in an accident involving injury, the
police were required by statute and Williams to obtain defendant’s consent for blood alcohol
testing. Therefore, that conversation between defendant and the police related to the factual
assertion and/or disclosed information regarding defendant’s consenting to take a blood alcohol
test. That made the conversation “testimonial” in nature.
B. THE POLICE VIOLATED ARTICLE 1, SECTION 10 OF THE HAWAII
CONSTITUTION WHEN THEY FIRST TOLD DEFENDANT, WHO WAS IN
CUSTODY AT THE TIME, THAT HE HAD THE RIGHT TO REFUSE TO
TAKE A BLOOD ALCOHOL TEST, AND THEN ASKED HIM WHETHER
HE WANTED TO INCRIMINATE HIMSELF IN A PETTY MISDEMEANOR
OFFENSE BY REFUSING TO BE TESTED FOR BLOOD ALCOHOL
WITHOUT FIRST MIRANDIZING HIM.
Article 1, Section 10 of the Hawaii Constitution says:
No person shall be held to answer for a capital or otherwise infamous crime,
unless on a presentment or indictment of a grand jury or upon a finding of
probable cause after a preliminary hearing held as provided by law or upon
information in writing signed by a legal prosecuting officer under conditions and
in accordance with procedures that the legislature may provide, except in cases
arising in the armed forces when in actual service in time of war or public danger;
nor shall any person be subject for the same offense to be twice put in jeopardy;
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15
nor shall any person be compelled in any criminal case to be a witness against
oneself.
In State v. Severino, 56 Haw. 378, 537 p.2d 1187 (1975), the Hawaii Supreme Court ruled
that the police did not have to read Miranda rights to persons arrested for drunk driving under HRS
291-4 when they read the defendant the implied consent law. However, Severino is easily
distinguishable.
First, Severino, which was decided over 37 years ago, was interpreting the drunk driving
statutes under a different statutory scheme in HRS Chapter 291. HRS Chapter 291 has been since
repealed and the drunk driving statutes are now under 291E-61.
Second, the basis for the Severino ruling at the time was that the implied consent law only
carried civil penalties.
Under both the Hawaii State and Federal Constitutions, an accused has the right to
assistance of counsel ‘in all criminal prosecutions.’ U.S.Const. amend. VI; Hawaii
Const. Art. 1, s 11. Actions taken under the implied consent law, however, are
civil in nature, and hearings before a district judge, pursuant to statute, are in the
nature of administrative proceedings. State v. Gustafson, 54 Haw. 519, 511 P.2d
161 (1973). Accordingly, a motorist is not entitled to consult with counsel before
deciding to submit to the chemical test prescribed by the implied consent statute.
Severino, 56 Haw. at 380-381, 537 P.2d at 1189.
On January 1, 2011 a new statute went into effect that dramatically changed the landscape
of Hawaii’s Implied Consent Law. The new law, HRS 291E-68, says:
Refusal to submit to a breath, blood, or urine test as required by part II is a petty
misdemeanor.
Therefore, Hawaii’s implied consent law now criminalizes refusing to take an alcohol test,
even though HRS 291E-11 remains in effect, giving persons a right to refuse, and even still
requiring the police to inform persons arrested for DUI of their right to refuse prior to obtaining
their consent to be tested.
Page 20
16
Under the current statutory scheme, a person is now subjected to custodial interrogation for
Miranda purposes when the police go over a person’s implied consent rights after being arrested for
DUI.
The Hawaii Supreme Court has a simple two part test to whether or not Miranda
warnings are applicable under Article I, Section 10 of the Hawaii Constitution (1) is the
defendant in custody; and (2) was the defendant under interrogation. State v. Eli, 273 P.3d 1196
at 1207 (April 13, 2012).
The Eli court went on to define custody as:
As to custody, it has been established that this element is satisfied if the defendant
has been “taken into custody or otherwise deprived of his freedom ... in any
significant way.” State v. Hoey, 77 Hawai‘i 17, 33, 881 P.2d 504, 520 (1994)
(internal quotation marks omitted).
State v. Eli, 273 P.3d 1196 at 1207-1208.
Clearly in this case defendant was in custody. Defendant has been stopped by the police,
talked to, given field tests, handcuffed and transported to the police receiving desk prior to
implied consent warnings. Without question defendant was in custody for State Miranda
purposes.
The Eli court also defined what interrogation meant under the Hawaii
Constitution:
As to interrogation, this court has held that it “involves any practice reasonably
likely to invoke an incriminating response without regard to objective evidence of
the intent of the police[.]” Joseph, 109 Hawai‘i at 495, 128 P.3d at 808. The
interrogation element depends on “ ‘whether the police officer should have known
that his or her words or actions were reasonably likely to elicit an incriminating
response’ from the person in custody.” Ketchum, 97 Hawai‘i at 119, 34 P.3d at
1018 (quoting State v. Ikaika, 67 Haw. 563, 698 P.2d 281 (1985)). As stated
before, an “incriminating response” “refers to both inculpatory and exculpatory
responses.” Joseph, 109 Hawai‘i at 495, 128 P.3d at 808.
State v. Eli, 273 P.3d 1196 at 1208.
Page 21
17
Here the police first told defendant that he had a choice of taking a test or refusing. If the
defendant took the officer up on exercising his choice to refuse, the defendant’s response would
undoubtedly be used against him in a refusal to take a test case. This practice was “reasonably
likely to invoke an incriminating response” of “I want to refuse,” thus causing defendant to
commit a petty misdemeanor offense of 291E-68. Therefore, defendant was clearly subjected to
custodial interrogation when being read the implied consent law. Under Article I, Section 10 of
the Hawaii Constitution his Miranda Rights were required to be read to him prior to the police
questioning defendant about which test, or refusing to take a test.
Since defendant was subjected to custodial interrogation, as defined by the Hawaii
Supreme Court in interpreting Article I, Section 10 of the Hawaii Constitution, Miranda
warnings should have been given prior to asking defendant to respond to implied consent
warnings. If these warnings are not given, any statements uttered by the defendant in response to
the custodial interrogation are inadmissible and cannot be used at trial by the State for
substantive or impeachment purposes. State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971).
This restriction applies even if the statements were "voluntarily" made. State v. Amorin, 61
Haw. 356, 359, 604 P.2d 45, 47 (1979). The rationale for this prohibition is that the defendant
must be first made aware of constitutional rights. Only then can a waiver of those rights be
possible.
Thus, if a defendant was subject to custodial interrogation and made statements without
the required Miranda warnings, or even if such warnings were given but the statements were not
voluntary, the statements should not be admitted. Furthermore, the doctrine of the "Fruit of the
Poisonous Tree" is applicable to confessions. State v. Medeiros, 4 Haw.App. 248, 665 P.2d 181
(1983). " Therefore, the subsequent breath test must also be suppressed.
Page 22
18
Based on all of the foregoing the court clearly erred in failing to suppress the defendant’s
blood test in this case.
C. THE POLICE VIOLATED DEFENDANT’S STATUTORY RIGHT TO AN
ATTORNEY, AND DUE PROCESS UNDER THE HAWAII CONSTITUTION
WHEN THEY MISINFORMED DEFENDANT OF HIS RIGHT TO AN
ATTORNEY.
As previously discussed, in this case the defendant was arrested for DUI after he was
involved in a traffic accident that did not involve injuries and displayed indicia of intoxication.
Therefore, the defendant was arrested so that he could be transported to the police station so he
could either consent to an alcohol test, or refuse any test. Therefore, at the time of his arrest the
police were investigating both the potential DUI case and the potential refusal to take a test case
under HRS 291E-68. The police needed to talk to him at the police station pursuant to investigating
both the DUI or refusal to take a test cases.
HRS Section 803-9 reads:
It shall be unlawful in any case of arrest for examination:
(1) To deny to the person so arrested the right of seeing, at reasonable
intervals and for a reasonable time at the place of the person's
detention, counsel or a member of the arrested person's family;
(2) To unreasonably refuse or fail to make a reasonable effort, where
the arrested person so requests and prepays the cost of the
message, to send a telephone, cable, or wireless message through a
police officer or another than the arrested person to the counsel or
member of the arrested person's family;
(3) To deny to counsel (whether retained by the arrested person or a
member of the arrested person's family) or to a member of the
arrested person's family the right to see or otherwise communicate
with the arrested person at the place of the arrested person's
detention (A) at any time for a reasonable period for the first time
after the arrest, and (B) thereafter at reasonable intervals and for a
reasonable time;
(4) In case the person arrested has requested that the person see an
attorney or member of the person's family, to examine the person
Page 23
19
before the person has had a fair opportunity to see and consult with
the attorney or member of the person's family;
(5) To fail within forty-eight hours of the arrest of a person on
suspicion of having committed a crime either to release or to
charge the arrested person with a crime and take the arrested
person before a qualified magistrate for examination.
Haw. Rev. Stat. Ann. § 803-9 (LexisNexis).
After arresting him the police had to “examine” or question defendant as to whether or not
he would consent for testing. Therefore, HRS 803-9 was obviously applicable. However, the
police explicitly informed him that he was not entitled to an attorney prior to their questioning him.
See #36.
Case law says that Defendants must be properly apprised of their rights to an extent that they
may make a knowing and voluntary decision. State v. Wilson, 92 Haw. 45, 987 P.2d 268 (1999).
In Wilson, the court stated:
Thus, as the statutory language makes clear, a driver's “implied consent” to an
evidentiary chemical alcohol test is qualified by his or her implied right to refuse
such a test after being accurately informed of his or her statutory right to consent
or refuse, as well as the consequences of such consent or refusal.
Id at 49.
The court stated that the driver cannot knowingly and intelligently refuse a test without
warnings regarding both the right of consent and refusal, and the consequences of each. Id. at 49.
It stands to reason that misinforming the defendant of his statutory right to an attorney under
HRS 803-9 would negate any knowing and intelligent choice to either take a test or refuse.
The results of nonconsensual blood draws that do not comply with the statutory
requirements are unlawful and may be excluded from evidence (or suppressed by
appropriate motion) under the “fruit of the poisonous tree” doctrine. See State v.
Fukusaku, 85 Hawai‘i 462, 475, 946 P.2d 32, 45 (1997) (“[T]he ‘fruit of the
poisonous tree’ doctrine prohibits the use of evidence at trial which comes to light
as a result of the exploitation of a previous illegal act of the police.” (Quoting
State v. Medeiros, 4 Haw.App. 248, 251 n. 4, 665 P.2d 181, 184 n. 4 (1983).)).
Page 24
20
State v. Williams, 114 Haw. 406, 410, 163 P.3d 1143, 1147 (2007). Under the same reasoning,
by misinforming defendant of his right to an attorney under HRS 803-9, evidence obtained
subsequent to the violation of HRS 803-9 should be suppressed as a fruit of and poisonous tree.
Therefore, the court should have suppressed defendant’s blood alcohol evidence in this case
based on the police violation of defendant’s statutory right to an attorney prior to their obtaining
his consent for testing.
D. THE COURT ERRED WHEN IT FAILED TO SUPPRESS THE BREATH
RESULTS AFTER THE POLICE MISINFORMED DEFENDANT OF THE
SANCTIONS.
In State v. Wilson, 92 Haw. 45, 987 P.2d 268 (1999), the Hawaii Supreme Court
examined a case where Wilson was faced with a license revocation of up to one year. However
the officer told defendant that his license would only be revoked for 3 months if he took a test.
In its ruling, the Hawaii Supreme Court said:
This court recognizes and embraces the important purpose of our implied consent
laws to prevent fatalities and injuries resulting from highway traffic accidents.
This purpose, however, can be realized while at the same time ensuring that the
police provide clear, accurate warnings as mandated by statute. We hold,
therefore, that the arresting officer's violation of HRS chapter 286's consent
requirement precludes admissibility of Wilson's blood test results in his related
criminal DUI proceeding.
Wilson at 53-54.
In this case, the relevant portion of the implied consent for that is in contention
reads:
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 291 E-65, if applicable. In addition, you shall also be
subject to the procedures and sanctions under chapter 291 E, part III.
Page 25
21
See #36.
Defendant was informed that he “shall” be subject to 30 days in jail if he refused.
In reality he “may” be subject to the 30 days if convicted. Therefore the defendant was
misinformed of the sanctions. As such, the court should have suppressed the breath test
results pursuant to State v. Wilson, 92 Haw. 45, 987 P.2d 268 (1999).
VI. CONCLUSION
Based on the foregoing arguments, defendant's conviction should be reversed and
defendant’s case dismissed with prejudice
VII. RELEVANT CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES
See Exhibit "A".
DATED: Honolulu, Hawaii, February 5, 2013.
/s/ Jonathan Burge
JONATHAN BURGE
Attorney for Defendant-Appellant
YONG SHIK WON
Page 26
NO. CAAP-12-0000858
IN THE INTERMEDIATE COURT OF APPEALS
STATE OF HAWAII
STATE OF HAWAII,
Plaintiff-Appellee,
vs.
YONG SHIK WON,
Defendant-Appellant.
_______________________________________
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ORIGINAL CASE NO. 1DTA-11-01903
APPEAL FROM THE JUDGEMENT and
SENTENCE ENTERED, on September 20,
2013
EXHIBIT “A” – RELEVANT
CONSTITUTIONAL PROVISIONS,
STATUTES AND RULES
DISTRICT COURT OF THE FIRST
CIRCUIT
HONORABLE JUDGE DAVID LO
EXHIBIT “A”
RELEVANT CONSTITUTIONAL PROVISIONS, STATUTES AND RULES
Page 27
EXHIBIT “A”
291E-11. Implied consent of operator of vehicle to submit to testing to determine alcohol
concentration and drug content.
(a) 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, subject to this part, to a test or
tests approved by the director of health of the persons breath, blood, or urine for the purpose of
determining alcohol concentration or drug content of the persons breath, blood, or urine, as
applicable.
(b) The test or tests shall be administered at the request of a law enforcement officer having
probable cause to believe the person operating a vehicle upon a public way, street, road, or
highway or on or in the waters of the State is under the influence of an intoxicant or is under the
age of twenty-one and has consumed a measurable amount of alcohol, only after:
(1) A lawful arrest; and
(2) The person has been informed by a law enforcement officer that the person may refuse
to submit to testing under this chapter.
(c) If there is probable cause to believe that a person is in violation of section 291E-64, as a
result of being under the age of twenty-one and having consumed a measurable amount of
alcohol, or section 291E-61 or 291E-61.5, as a result of having consumed alcohol, then the
person shall elect to take a breath or blood test, or both, for the purpose of determining the
alcohol concentration.
(d) If there is probable cause to believe that a person is in violation of section 291E-61 or
291E-61.5, as a result of having consumed any drug, then the person shall elect to take a blood or
urine test, or both, for the purpose of determining the drug content. Drug content shall be
measured by the presence of any drug or its metabolic products, or both.
(e) A person who chooses to submit to a breath test under subsection (c) also may be
requested to submit to a blood or urine test, if the law enforcement officer has probable cause to
believe that the person was operating a vehicle while under the influence of any drug under
section 291E-61 or 291E-61.5 and the officer has probable cause to believe that a blood or urine
test will reveal evidence of the person being under the influence of any drug. The law
enforcement officer shall state in the officer's report the facts upon which that belief is based.
The person shall elect to take a blood or urine test, or both, for the purpose of determining the
person's drug content. Results of a blood or urine test conducted to determine drug content also
shall be admissible for the purpose of determining the person's alcohol concentration.
Submission to testing for drugs under subsection (d) or this subsection shall not be a substitute
for alcohol tests requested under subsection (c).
(f) The use of a preliminary alcohol screening device by a law enforcement officer shall not
replace a breath, blood, or urine test required under this section. The analysis from the use of a
preliminary alcohol screening device shall only be used in determining probable cause for the
arrest.
Page 28
EXHIBIT “A”
(g) Any person tested pursuant to this section who is convicted or has the persons license or
privilege suspended or revoked pursuant to this chapter may be ordered to reimburse the county
for the cost of any blood or urine tests, or both, conducted pursuant to this section. If
reimbursement is so ordered, the court or the director, as applicable, shall order the person to
make restitution in a lump sum, or in a series of prorated installments, to the police department
or other agency incurring the expense of the blood or urine test, or both.
History. L 2000, c 189, 23; L 2001, c 157, 11; am L 2002, c 113, 1; am L 2004, c 90, 5; am L
2006, c 64, 1
Page 29
EXHIBIT “A”
291E-21. Applicable scope of part; mandatory testing in the event of a collision resulting
in injury or death.
(a) Nothing in this part shall be construed to prevent a law enforcement officer from
obtaining a sample of breath, blood, or urine, from the operator of any vehicle involved in a
collision resulting in injury to or the death of any person, as evidence that the operator was under
the influence of an intoxicant.
(b) If a health care provider who is providing medical care, in a health care facility, to any
person involved in a vehicle collision:
(1) Becomes aware, as a result of any blood or urine test performed in the course of
medical treatment, that:
(A) The alcohol concentration in the person's blood meets or exceeds the amount
specified in section 291E-61(a)(4) or 291E-61.5(a)(2)(D); or
(B) The person's blood or urine contains one or more drugs that are capable of impairing
a person's ability to operate a vehicle in a careful and prudent manner; and
(2) Has a reasonable belief that the person was the operator of a vehicle involved in the
collision,
the health care provider shall notify, as soon as reasonably possible, any law enforcement
officer present at the health care facility to investigate the collision. If no law enforcement officer
is present, the health care provider shall notify the county police department in the county where
the collision occurred. If the health care provider is aware of any blood or urine test result, as
provided in paragraph (1), but lacks information to form a reasonable belief as to the identity of
the operator involved in a vehicle collision, as provided in paragraph (2), then the health care
provider shall give notice to a law enforcement officer present or to the county police
department, as applicable, for each person involved in a vehicle collision whose alcohol
concentration in the person's blood meets or exceeds the amount specified in section 291E-
61(a)(4) or 291E-61.5(a)(2)(D) or whose blood or urine contains one or more drugs. The notice
by the health care provider shall consist of the name of the person being treated, the blood
alcohol concentration or drug content disclosed by the test, and the date and time of the
administration of the test. This notice shall be deemed to satisfy the intoxication element
necessary to establish the probable cause requirement set forth in subsection (c).
(c) In the event of a collision resulting in injury or death and if a law enforcement officer has
probable cause to believe that a person involved in the collision has committed a violation of
section 707-702.5, 707-703, 707-704, 707-705, 707-706, 291E-61, 291E-61.5, or 291E-64, the
law enforcement officer shall request that a sample of blood or urine be recovered from the
vehicle operator or any other person suspected of committing a violation of section 707-702.5,
707-703, 707-704, 707-705, 707-706, 291E-61, 291E-61.5, or 291E-64. If the person involved in
the collision is not injured or refuses to be treated for any injury, the law enforcement officer
may offer the person a breath test in lieu of a blood or urine test. If the person declines to
perform a breath test, the law enforcement officer shall request a blood or urine sample pursuant
to subsection (d). The act of declining to perform a breath test under this section shall not be
Page 30
EXHIBIT “A”
treated as a refusal under chapter 291E and shall not relieve the declining person from the
requirement of providing a blood or urine sample under this section.
(d) The law enforcement officer shall make the request under subsection (c) to the hospital or
medical facility treating the person from whom the blood or urine is to be recovered. If the
person is not injured or refuses to be treated for any injury, the law enforcement officer shall
make the request of a blood or urine sample under subsection (c) to a person authorized under
section 291E-12; provided that a law enforcement officer may transport that person to another
police facility or a hospital or medical facility that is capable of conducting a breath, blood, or
urine test. Upon the request of the law enforcement officer that blood or urine be recovered
pursuant to this section, and except where the person to perform the withdrawal of a blood
sample or to obtain a urine sample or the responsible attending personnel at the hospital or
medical facility determines in good faith that recovering or attempting to recover blood or urine
from the person presents an imminent threat to the health of the medical personnel or others, the
person authorized under section 291E-12 shall:
(1) Recover the sample in compliance with section 321-161; and
(2) Provide the law enforcement officer with the blood or urine sample requested.
(e) Any person complying with this section shall be exempt from liability pursuant to section
663-1.9 as a result of compliance.
(f) As used in this section, unless the context otherwise requires:
Health care facility includes any program, institution, place, building, or agency, or portion
thereof, private or public, whether organized for profit or not, that is used, operated, or designed
to provide medical diagnosis, treatment, or rehabilitative or preventive care to any person. The
term includes health care facilities that are commonly referred to as hospitals, outpatient clinics,
organized ambulatory health care facilities, emergency care facilities and centers, health
maintenance organizations, and others providing similarly organized services regardless of
nomenclature.
Health care provider means a person who is licensed, certified, or otherwise authorized or
permitted by law to administer health care in the ordinary course of business or practice of a
profession.
History. L 2000, c 189, 23; am L 2001, c 157, 12; am L 2003, c 72, 1; am L 2004, c 90, 6
Page 31
EXHIBIT “A”
291E-61. Operating a vehicle under the influence of an intoxicant.
(a) A person commits the offense of operating a vehicle under the influence of an intoxicant
if the person operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount sufficient to impair the person's
normal mental faculties or ability to care for the person and guard against casualty;
(2) While under the influence of any drug that impairs the person's ability to operate the
vehicle in a careful and prudent manner;
(3) With .08 or more grams of alcohol per two hundred ten liters of breath; or
(4) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of
blood.
(b) A person committing the offense of operating a vehicle under the influence of an
intoxicant shall be sentenced without possibility of probation or suspension of sentence as
follows:
(1) For the first offense, or any offense not preceded within a five-year period by a
conviction for an offense under this section or section 291E-4(a):
(A) A fourteen-hour minimum substance abuse rehabilitation program, including
education and counseling, or other comparable program deemed appropriate by the court;
(B) One-year revocation of license and privilege to operate a vehicle during the
revocation period and installation during the revocation period of an ignition interlock device on
any vehicle operated by the person;
(C) Any one or more of the following:
(i) Seventy-two hours of community service work;
(ii) Not less than forty-eight hours and not more than five days of imprisonment; or
(iii) A fine of not less than $ 150 but not more than $ 1,000;
(D) A surcharge of $ 25 to be deposited into the neurotrauma special fund; and
(E) A surcharge, if the court so orders, of up to $ 25 to be deposited into the trauma
system special fund;
(2) For an offense that occurs within five years of a prior conviction for an offense under
this section or section 291E-4(a):
(A) Revocation for not less than eighteen months nor more than two years of license and
privilege to operate a vehicle during the revocation period and installation during the revocation
period of an ignition interlock device on any vehicle operated by the person;
(B) Either one of the following:
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EXHIBIT “A”
(i) Not less than two hundred forty hours of community service work; or
(ii) Not less than five days but not more than thirty days of imprisonment, of which at
least forty-eight hours shall be served consecutively;
(C) A fine of not less than $ 500 but not more than $ 1,500;
(D) A surcharge of $ 25 to be deposited into the neurotrauma special fund; and
(E) A surcharge of up to $ 50 if the court so orders, to be deposited into the trauma
system special fund;
(3) For an offense that occurs within five years of two prior convictions for offenses under
this section or section 291E-4(a):
(A) A fine of not less than $ 500 but not more than $ 2,500;
(B) Revocation for two years of license and privilege to operate a vehicle during the
revocation period and installation during the revocation period of an ignition interlock device on
any vehicle operated by the person;
(C) Not less than ten days but not more than thirty days imprisonment, of which at least
forty-eight hours shall be served consecutively;
(D) A surcharge of $ 25 to be deposited into the neurotrauma special fund; and
(E) A surcharge of up to $ 50 if the court so orders, to be deposited into the trauma
system special fund;
(4) In addition to a sentence imposed under paragraphs (1) through (3), any person eighteen
years of age or older who is convicted under this section and who operated a vehicle with a
passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to
an additional mandatory fine of $ 500 and an additional mandatory term of imprisonment of
forty-eight hours; provided that the total term of imprisonment for a person convicted under this
paragraph shall not exceed the maximum term of imprisonment provided in paragraph (1), (2), or
(3), as applicable. Notwithstanding paragraphs (1) and (2), the revocation period for a person
sentenced under this paragraph shall be not less than two years; and
(5) If the person demonstrates to the court that the person:
(A) Does not own or have the use of a vehicle in which the person can install an ignition
interlock device during the revocation period; or
(B) Is otherwise unable to drive during the revocation period,
the person shall be absolutely prohibited from driving during the period of applicable
revocation provided in paragraphs (1) to (4); provided that the court shall not issue an ignition
interlock permit pursuant to subsection (i) and the person shall be subject to the penalties
provided by section 291E-62 if the person drives during the applicable revocation period.
(c) Notwithstanding any other law to the contrary, the court shall not issue an ignition
interlock permit to:
Page 33
EXHIBIT “A”
(1) A defendant whose license is expired, suspended, or revoked as a result of action other
than the instant offense;
(2) A defendant who does not hold a valid license at the time of the instant offense; or
(3) A defendant who holds either a category 4 license under section 286-102(b) or a
commercial driver's license under section 286-239(b), unless the ignition interlock permit is
restricted to a category 1, 2, or 3 license under section 286-102(b).
(d) Except as provided in subsection (c), the court may issue a separate permit authorizing a
defendant to operate a vehicle owned by the defendant's employer during the period of
revocation without installation of an ignition interlock device if the defendant is gainfully
employed in a position that requires driving and the defendant will be discharged if prohibited
from driving a vehicle not equipped with an ignition interlock device.
(e) A request made pursuant to subsection (d) shall be accompanied by:
(1) A sworn statement from the defendant containing facts establishing that the defendant
currently is employed in a position that requires driving and that the defendant will be discharged
if prohibited from driving a vehicle not equipped with an ignition interlock device; and
(2) A sworn statement from the defendant's employer establishing that the employer will, in
fact, discharge the defendant if the defendant is prohibited from driving a vehicle not equipped
with an ignition interlock device and identifying the specific vehicle and hours of the day, not to
exceed twelve hours per day, the defendant will drive for purposes of employment.
(f) A permit issued pursuant to subsection (d) shall include restrictions allowing the
defendant to drive:
(1) Only during specified hours of employment, not to exceed twelve hours per day, and
only for activities solely within the scope of the employment;
(2) Only the vehicle specified; and
(3) Only if the permit is kept in the defendant's possession while operating the employer's
vehicle.
(g) Notwithstanding any other law to the contrary, any:
(1) Conviction under this section, section 291E-4(a), or section 291E-61.5;
(2) Conviction in any other state or federal jurisdiction for an offense that is comparable to
operating or being in physical control of a vehicle while having either an unlawful alcohol
concentration or an unlawful drug content in the blood or urine or while under the influence of
an intoxicant or habitually operating a vehicle under the influence of an intoxicant; or
(3) Adjudication of a minor for a law violation that, if committed by an adult, would
constitute a violation of this section or an offense under section 291E-4(a), or section 291E-61.5,
shall be considered a prior conviction for the purposes of imposing sentence under this
section. Any judgment on a verdict or a finding of guilty, a plea of guilty or nolo contendere, or
an adjudication, in the case of a minor, that at the time of the offense has not been expunged by
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EXHIBIT “A”
pardon, reversed, or set aside shall be deemed a prior conviction under this section. No license
and privilege revocation shall be imposed pursuant to this section if the person's license and
privilege to operate a vehicle has previously been administratively revoked pursuant to part III
for the same act; provided that, if the administrative revocation is subsequently reversed, the
person's license and privilege to operate a vehicle shall be revoked as provided in this section.
There shall be no requirement for the installation of an ignition interlock device pursuant to this
section if the requirement has previously been imposed pursuant to part III for the same act;
provided that, if the requirement is subsequently reversed, a requirement for the installation of an
ignition interlock device shall be imposed as provided in this section.
(h) Whenever a court sentences a person pursuant to subsection (b), it also shall require that
the offender be referred to the driver's education program for an assessment, by a certified
substance abuse counselor, of the offender's substance abuse or dependence and the need for
appropriate treatment. The counselor shall submit a report with recommendations to the court.
The court shall require the offender to obtain appropriate treatment if the counselor's assessment
establishes the offender's substance abuse or dependence. All costs for assessment and treatment
shall be borne by the offender.
(i) Upon proof that the defendant has:
(1) Installed an ignition interlock device in any vehicle the defendant operates pursuant to
subsection (b); and
(2) Obtained motor vehicle insurance or self-insurance that complies with the requirements
under either section 431:10C-104 or section 431:10C-105,
the court shall issue an ignition interlock permit that will allow the defendant to drive a
vehicle equipped with an ignition interlock device during the revocation period.
(j) Notwithstanding any other law to the contrary, whenever a court revokes a person's
driver's license pursuant to this section, the examiner of drivers shall not grant to the person a
new driver's license until the expiration of the period of revocation determined by the court.
After the period of revocation is completed, the person may apply for and the examiner of
drivers may grant to the person a new driver's license.
(k) Any person sentenced under this section may be ordered to reimburse the county for the
cost of any blood or urine tests conducted pursuant to section 291E-11. The court shall order the
person to make restitution in a lump sum, or in a series of prorated installments, to the police
department or other agency incurring the expense of the blood or urine test. Except as provided
in section 291E-5, installation and maintenance of the ignition interlock device required by
subsection (b) shall be at the defendant's own expense.
(l) As used in this section, the term examiner of drivers has the same meaning as provided in
section 286-2.
History. L 2000, c 189, 23; am L 2001, c 157, 25; am L 2002, c 160, 11; am L 2003, c 71, 3; am
L 2004, c 90, 12; am L 2005, c 33, 1 and c 194, 1; am L 2006, c 201, 7; am L 2007, c 198, 4; am
L 2008, c 171, 8, effective January 1, 2011; am L 2008, c 231, 17, effective July 1, 2008; am L
2009, c 88, 6, effective January 1, 2011; am L 2010, c 166, 19, effective January 1, 2011.
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EXHIBIT “A”
291E-68. Refusal to submit to a breath, blood, or urine test; penalty.
Refusal to submit to a breath, blood, or urine test as required by part II is a petty
misdemeanor.
History. L 2010, c 166, 2, effective January 1, 2011.
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EXHIBIT “A”
803-9. Examination after arrest; rights of arrested person.
It shall be unlawful in any case of arrest for examination:
(1) To deny to the person so arrested the right of seeing, at reasonable intervals and for a
reasonable time at the place of the persons detention, counsel or a member of the arrested
persons family;
(2) To unreasonably refuse or fail to make a reasonable effort, where the arrested person so
requests and prepays the cost of the message, to send a telephone, cable, or wireless message
through a police officer or another than the arrested person to the counsel or member of the
arrested persons family;
(3) To deny to counsel (whether retained by the arrested person or a member of the arrested
persons family) or to a member of the arrested persons family the right to see or otherwise
communicate with the arrested person at the place of the arrested persons detention (A) at any
time for a reasonable period for the first time after the arrest, and (B) thereafter at reasonable
intervals and for a reasonable time;
(4) In case the person arrested has requested that the person see an attorney or member of
the persons family, to examine the person before the person has had a fair opportunity to see and
consult with the attorney or member of the persons family;
(5) To fail within forty-eight hours of the arrest of a person on suspicion of having
committed a crime either to release or to charge the arrested person with a crime and take the
arrested person before a qualified magistrate for examination.
History. PC 1869, c 49, 9; am L 1915, c 25, 1; RL 1925, 3975; am L 1927, c 261, 1; RL 1935,
5408; am L 1941, c 168, 1; RL 1945, 10709; am L 1953, c 185, 1; RL 1955, 255-9; HRS 708-9;
ren L 1972, c 9, pt of 1; am imp L 1984, c 90, 1
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EXHIBIT “A”
Rule 47. MOTIONS, AFFIDAVIT OR DECLARATION, AND RESPONSES.
(a) Form. An application to the court for an order shall be by motion. A motion other than one made
during a trial or hearing shall be in writing unless the court permits it to be made orally. It shall state the
grounds upon which it is made and shall set forth the relief or order sought. A motion involving a
question of law shall be accompanied by a memorandum in support of the motion. If a motion requires the
consideration of facts not appearing of record, it shall be supported by affidavit or declaration. Written
motions, other than ex parte motions, shall be noticed as provided by Rule 2.2(d)(3)(iii) of these rules.
(b) Required notice of no opposition. A party who does not oppose or who intends to support a motion
shall promptly give written notification to the court and opposing counsel.
(c) Filings in opposition. An opposing party may serve and file counter affidavits, declarations or
memoranda in opposition to the motion, which shall be served and filed in accordance to Rules 45 and 49
of these rules, except as otherwise ordered by the court.
(d) Declaration in lieu of affidavit. In lieu of an affidavit, an unsworn declaration may be made by a
person, in writing, subscribed as true under penalty of law, and dated, in substantially the following form:
"I, ____________, declare under penalty of law that the foregoing is true and correct to the best of
my knowledge and belief.
Dated:
__________________
(Signature)"
(Amended February 4, 2000, effective July 1, 2000.)
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EXHIBIT “A”
6TH
AMENDMENT OF US CONSTITUTION
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
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EXHIBIT “A”
Article 1, Section 10 of the Hawaii Constitution
No person shall be held to answer for a capital or otherwise infamous crime, unless on a
presentment or indictment of a grand jury or upon a finding of probable cause after a preliminary
hearing held as provided by law or upon information in writing signed by a legal prosecuting
officer under conditions and in accordance with procedures that the legislature may provide,
except in cases arising in the armed forces when in actual service in time of war or public
danger; nor shall any person be subject for the same offense to be twice put in jeopardy; nor shall
any person be compelled in any criminal case to be a witness against oneself.
[History.Ren and am Const Con 1978 and election Nov 7, 1978; am HB 150 (1981) and election
Nov 2, 1982; am SB 2851 (2004) and election Nov 2, 2004]
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EXHIBIT “A”
Article 1, Section 11 of the Hawaii Constitution
Whenever a grand jury is impaneled, there shall be an independent counsel appointed as
provided by law to advise the members of the grand jury regarding matters brought before it.
Independent counsel shall be selected from among those persons licensed to practice law by the
supreme court of the State and shall not be a public employee. The term and compensation for
independent counsel shall be as provided by law.
[History.Add Const Con 1978 and election Nov 7, 1978]
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22
VIII. STATEMENT OF RELEATED CASES
1. State v. Kiyuna, CAAP-12-0000682
2. State v. Tuia, CAAP-12-0000685
3. State v. Fisher, CAAP-12-0000684
4. State v. Hastings, CAAP-12-0000776
5. State v. Ling, CAAP-12-0000814
6. State v. Shigemura, CAAP-12-0000902
7. State v. Tuisamatatele, CAAP-12-0000903
8. State v. Shimkus, CAAP-12-0000840
Similar legal issues are in these cases. All of them involved a Motion to Suppress in a
DUI case raising State v. Wilson, Miranda, and HRS 803-9 violations.
