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Electronically Filed
Supreme Court
SCWC-12-0000980
15-JAN-2016
08:35 AM
SCWC-12-0000980
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
TESSA LYNN MURPHY,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000980; CASE NO. 1DTA-12-01350)
SUMMARY DISPOSITION ORDER
(By: McKenna, Pollack, and Wilson, JJ.,
with Wilson, J. concurring separately,
and Nakayama, J., dissenting separately,
with whom Recktenwald, C.J., joins)
Petitioner/Defendant-Appellant Tessa Lynn Murphy
(Murphy) seeks review of the Intermediate Court of Appeals’s
(ICA) July 2, 2014 Judgment on Appeal filed pursuant to its
May 30, 2014 Summary Disposition Order (SDO). The ICA affirmed
the District Court of the First Circuit’s (district court)
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judgment.1 The district court adjudged Murphy guilty of
Operating a Vehicle Under the Influence of an Intoxicant (OVUII),
in violation of Hawai#i Revised Statutes (HRS) § 291E-61(a)(3)
(Supp. 2010).2 We accepted Murphy’s application for writ of
certiorari and now vacate the ICA’s Judgment on Appeal and the
district court’s judgment, and remand the case to the district
court.
After being arrested for OVUII, Murphy was taken to the
police station, where she was read an implied consent form.3
1
The Honorable David Lo presided.
2
HRS § 291E-61(a)(3) (Supp. 2010) provides:
(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:
. . .
(3) With .08 or more grams of alcohol per two hundred
ten liters of breath . . . .
3
The form read in relevant part:
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 persons [sic]
breath, blood or urine as applicable.
2.__ You are not entitled to an attorney before you
submit to any tests [sic] 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
(continued...)
2
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Murphy then chose to take a breath test, which resulted in a
breath alcohol content reading of 0.132 grams of alcohol per 210
of breath. On certiorari, Murphy contends that she did not
constitutionally consent to the breath test because her consent
was coerced by the implied consent form, which conveyed a threat
of imprisonment and significant punishment for refusal to submit
to a breath, blood, or urine test under HRS § 291E-68 (Supp.
2010).
In State v. Won, 136 Hawai#i 292, 361 P.3d 1195 (2015),
we held that the “coercion engendered by the Implied Consent Form
runs afoul of the constitutional mandate that waiver of a
constitutional right may only be the result of a free and
unconstrained choice,” and, thus, a defendant’s decision to
submit to testing after being read the implied consent form “is
invalid as a waiver of his right not to be searched.” Following
this decision, the result of Murphy’s breath test is the product
of a warrantless search, and the ICA erred by concluding that the
district court properly denied Murphy’s motion to suppress the
3
(...continued)
given [sic], 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 291E-65, if applicable. In addition, you
shall also be subject to the procedures and sanctions
under chapter 291E, part III.
3
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breath test result.4 Accordingly, Murphy’s OVUII conviction
cannot stand.
IT IS HEREBY ORDERED that the ICA’s July 2, 2014
judgment on appeal affirming the district court’s October 11,
2012 judgment is vacated, and the case remanded to the district
court for further proceedings consistent with our opinion in
State v. Won.
DATED: Honolulu, Hawai#i, January 15, 2016.
Jonathan Burge /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Brian R. Vincent
for respondent /s/ Michael D. Wilson
Robert T. Nakatsuji
for amicus curiae
Attorney General of
the State of Hawai#i
4
Because we vacate the ICA’s judgment based on lack of consent, we
do not reach her remaining points of error.
4