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Electronically Filed
Supreme Court
SCWC-14-0000606
21-JAN-2016
08:40 AM
SCWC-14-0000606
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
ALAN S. TERASAKO,
Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0000606; CASE NO. 1DTA-13-03174)
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 Alan S. Terasako seeks
review of the Intermediate Court of Appeals’ (ICA) July 7, 2015
Judgment on Appeal, entered pursuant to its May 29, 2015 Summary
Disposition Order, which affirmed the District Court of the
First Circuit’s (district court) February 25, 2014 Notice of
Entry of Judgment and/or Order and Plea/Judgment (district court
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judgment).1 The district court found Terasako guilty of
Operating a Vehicle Under the Influence of an Intoxicant
(OVUII), in violation of Hawaiʻi Revised Statutes (HRS) § 291E-
61(a)(4) (Supp. 2010).2 We accepted Terasako’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, Terasako was taken to
the police station, where he was read an implied consent form.3
1
The Honorable Paul B.K. Wong presided.
2
HRS § 291E-61(a)(4) (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:
. . .
(4) With .08 or more grams of alcohol per one hundred
milliliters or cubic centimeters of blood.
The district court also concluded that there was insufficient evidence to
establish a violation of HRS § 291E-61(a)(1) and that Terasako was “not
guilty of violating 291E-61(a)(1).” Consequently, Terasako may not be re-
prosecuted under HRS § 291E-61(a)(1). See State v. Spearman, 129 Hawaiʻi 146,
151, 296 P.3d 359, 364 (2013).
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.
(continued . . .)
2
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Terasako elected to take a breath test, but it was later
discovered that he was unable to provide a sufficient amount of
breath sample. He was read again the implied consent form and
subsequently chose to give a blood sample. The result of
Terasako’s blood test yielded 0.12 grams ethanol per 100 cubic
centimeters of whole blood. At trial, Terasako objected to the
admission of the blood test results, contending, inter alia,
that the portion of the implied consent form that apprised him
of the criminal refusal penalties was contrary to his Fourth
Amendment right to withdraw his consent to a warrantless search.
On certiorari, Terasako contends that the district court erred
in admitting his blood alcohol test results into evidence in
violation of his Fourth and Fifth Amendment rights.
In State v. Won, 136 Hawaiʻi 292, 312, 361 P.3d 1195,
1215 (2015), we held that “coercion engendered by the Implied
(. . . continued)
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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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
Terasako’s blood test was the product of a warrantless search,
and the ICA erred by concluding that the district court properly
denied Terasako’s motion to suppress the blood test result.
Accordingly, Terasako’s OVUII conviction may not be upheld.
IT IS HEREBY ORDERED that the ICA’s July 7, 2015
Judgment on Appeal and the district court judgment are vacated,
and the case is remanded to the district court for proceedings
consistent with this court’s opinion in State v. Won.
DATED: Honolulu, Hawaiʻi, January 21, 2016.
Daniel Kawamoto /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
James M. Anderson /s/ Michael D. Wilson
for respondent
4
State v. Terasako
Combined Opinion