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Electronically Filed
Supreme Court
SCWC-13-0005232
21-JAN-2016
08:28 AM
SCWC-13-0005232
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
BYRON D. CHEEK-ENRIQUES,
Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0005232; CASE NO. 1DTA-11-05193)
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 Byron D. Cheek-Enriques
seeks review of the Intermediate Court of Appeals’ (ICA) June 3,
2015 Judgment on Appeal, entered pursuant to its April 28, 2015
Summary Disposition Order, which affirmed the District Court of
the First Circuit’s (district court) October 16, 2013 Notice of
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Entry of Judgment and/or Order and Plea/Judgment (district court
judgment).1 The district court found Cheek-Enriques guilty of
Operating a Vehicle Under the Influence of an Intoxicant
(OVUII), in violation of Hawaiʻi Revised Statutes (HRS) § 291E-
61(a)(3) (Supp. 2010).2 We accepted Cheek-Enriques’s Application
for Writ of Certiorari, and we now vacate the ICA’s Judgment on
Appeal and the district court judgment and remand the case to
the district court for further proceedings.
After being arrested for OVUII, Cheek-Enriques was
taken to the police station, where he was read an implied
consent form.3 Cheek-Enriques elected to take a breath test,
1
The Honorable David Lo presided.
2
HRS § 291E-61(a)(3) (Supp. 2010) provides in relevant part:
(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. . . .
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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.
(continued . . .)
2
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which resulted in a breath alcohol content reading of 0.155
grams of alcohol per 210 liters of breath. Cheek-Enriques filed
a motion to suppress the breath test results based on a
violation of the Fourth Amendment of the United States
Constitution and Article I, Section 7 of the Hawaiʻi
Constitution, which the district court denied. The ICA affirmed
the district court’s denial of this motion to suppress. On
certiorari, Cheek-Enriques contends, inter alia, that he did not
constitutionally consent to the breath test because “[t]elling
someone that [he or she] must consent to a 4th Amendment search
or face 30 days in jail simply is not consent under the 4th
Amendment.”
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
(. . . continued)
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.
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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
Cheek-Enriques’s breath test was the product of a warrantless
search, and the ICA erred by concluding that the district court
properly denied Cheek-Enriques’s motion to suppress the breath
test result. Accordingly, Cheek-Enriques’s OVUII conviction may
not be upheld.
IT IS HEREBY ORDERED that the ICA’s June 3, 2015
Judgment on Appeal and the district court judgment are vacated,
and the case is remanded to the district court for further
proceedings consistent with this court’s opinion in State v.
Won.
DATED: Honolulu, Hawaiʻi, January 21, 2016.
Jonathan Burge /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Brian R. Vincent /s/ Michael D. Wilson
for respondent
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