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Electronically Filed
Supreme Court
SCWC-13-0005454
21-JAN-2016
08:27 AM
SCWC-13-0005454
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
WAYNE LEE, SR.,
Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0005454; CR. NO. 12-1-0161)
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 Wayne Lee, Sr. seeks
review of the Intermediate Court of Appeals’ (ICA) June 5, 2015
Judgment on Appeal, entered pursuant to its May 5, 2015 Summary
Disposition Order, which affirmed the Circuit Court of the Third
Circuit’s (circuit court) November 6, 2013 Judgment (circuit
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court judgment). 1 Lee entered a conditional plea to the charges
of Habitually Operating a Vehicle Under the Influence of an
Intoxicant (HOVUII), in violation of Hawaiʻi Revised Statutes
(HRS) § 291E-61.5 (2007), 2 and of Driving While License Suspended
or Revoked, in violation of HRS § 286-132 (2007). 3 We accepted
Lee’s Application for Writ of Certiorari, and we now vacate the
ICA’s Judgment on Appeal and the circuit court judgment as to
both charges and remand the case to the circuit court for
further proceedings.
1
The Honorable Glenn S. Hara presided.
2
HRS § 291E-61.5 (2007) provides in relevant part:
(a) A person commits the offense of habitually operating
a vehicle under the influence of an intoxicant if:
(1) The person is a habitual operator of a vehicle
while under the influence of an intoxicant; and
(2) The person operates or assumes actual physical
control of a vehicle:
. . . .
(C) With .08 or more grams of alcohol per two
hundred ten liters of breath. . . .
3
HRS § 286-132 (2007) states in pertinent part:
Except as provided in section 291E-62, no resident or
nonresident whose driver’s license, right, or privilege to
operate a motor vehicle in this State has been canceled,
suspended, or revoked may drive any motor vehicle upon the
highways of this State while the license, right, or
privilege remains canceled, suspended, or revoked.
Although no specific issue concerning HRS § 286-132 was raised in the
Application for Writ of Certiorari, the record indicates that Lee entered a
conditional plea to both charges.
2
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After being arrested for HOVUII and Driving While
License Suspended or Revoked, Lee was taken to the police
station, where he was read an implied consent form. 4 Lee elected
to take a breath test, which resulted in a breath alcohol
content reading of 0.091 grams of alcohol per 210 liters of
breath. Lee filed a motion to suppress evidence of the breath
test based on, inter alia, a violation of the Fourth Amendment
of the United States Constitution, which the circuit court
denied. Lee subsequently entered a conditional guilty plea as
to both charges that allowed him to appeal the denial of his
motion to suppress the breath alcohol test. The ICA affirmed
the circuit court’s denial of the motion to suppress.
4
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 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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On certiorari, Lee contends, inter alia, that he did
not constitutionally consent to the breath test under the Fourth
Amendment of the United States Constitution or Article I,
Section 7 of the Hawaiʻi Constitution 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-69 (Supp.
2010).
In State v. Won, 136 Hawaiʻi 292, 312, 361 P.3d 1195,
1215 (2015), we held that “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.” In accordance with State v. Won, the result of Lee’s
breath test was the product of a warrantless search, and the ICA
erred by concluding that the circuit court properly denied Lee’s
motion to suppress the breath test result. Accordingly, Lee’s
conviction as to both charges cannot be upheld.
IT IS HEREBY ORDERED that the ICA’s June 5, 2015
Judgment on Appeal and the circuit court judgment are vacated,
and the case is remanded to the circuit court with instructions
to enter an order granting Lee’s motion to suppress and to allow
4
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Lee to withdraw his conditional guilty plea as to both charges.
See State v. Williams, 114 Hawaiʻi 406, 407, 163 P.3d 1143, 1144
(2007).
DATED: Honolulu, Hawaiʻi, January 21, 2016.
Taryn R. Tomasa /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Kevin S. Hashizaki /s/ Michael D. Wilson
for respondent
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