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Electronically Filed
Supreme Court
SCWC-13-0003478
15-JAN-2016
08:21 AM
SCWC-13-0003478
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I,
Respondent/Plaintiff-Appellee,
vs.
DAVID LEE GLADMAN,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0003478; CASE NO. 1DTA-13-01011)
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 David Lee Gladman
(Gladman) seeks review of the Intermediate Court of Appeals’s
(ICA) September 18, 2015 Judgment on Appeal filed pursuant to its
August 17, 2015 Summary Disposition Order (SDO). The ICA
affirmed the District Court of the First Circuit’s (district
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court) judgment.1 The district court adjudged Gladman 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 Gladman’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, Gladman was taken to
the police station, where he was read an implied consent form.3
1
The Honorable Lono Lee 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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Gladman then chose to take a breath test, which resulted in a
breath alcohol content reading of 0.119 grams of alcohol per 210
liters of breath. On certiorari, Gladman contends that he did
not constitutionally consent to the breath test because his
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 Gladman’s breath test is the product
of a warrantless search, and the ICA erred by concluding that the
district court properly denied Gladman’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, Gladman’s OVUII conviction
cannot stand.
IT IS HEREBY ORDERED that the ICA’s September 18, 2015
judgment on appeal affirming the district court’s August 22, 2013
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 his remaining points of error.
4