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Electronically Filed
Supreme Court
SCWC-13-0000410
23-FEB-2016
08:24 AM
SCWC-13-0000410
IN THE SUPREME COURT OF THE STATE OF HAWAII
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
ELIAS A.M. PARKER,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000410; CASE NO. 1DTA-11-04895)
SUMMARY DISPOSITION ORDER
(By: McKenna, Pollack, and Wilson, JJ.,
with Wilson, J., concurring separately,
and Nakayama, J., dissenting, with whom Recktenwald, C.J., joins)
Petitioner/Defendant-Appellant Elias A.M. Parker seeks
review of the Intermediate Court of Appeals’ (“ICA”) September
2, 2014 Judgment on Appeal, entered pursuant to its May 28, 2014
Summary Disposition Order, which affirmed the District Court of
the First Circuit’s (“district court”) March 19, 2013 Judgment
of Guilty Conviction and Sentence (“district court judgment”).1
The district court found Parker guilty of Operating a Vehicle
1
The Honorable Michael A. Marr presided.
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Under the Influence of an Intoxicant (“OVUII”), in violation of
Hawaii Revised Statutes (“HRS”) § 291E-61(a)(3) (Supp. 2010).2
We accepted Parker’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, Parker was taken to
the police station, where he was read an implied consent form.3
Parker elected to take a breath test, which resulted in a breath
alcohol content reading of 0.162 grams of alcohol per 210 liters
2
HRS § 291E-61(a)(3) (Supp. 2010) provides in relevant part:
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: . . . [w]ith .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 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.
2
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of breath. Parker filed a motion to suppress the breath test
results, arguing that he did not knowingly or voluntarily
consent to breath or blood testing. The district court denied
the motion. The ICA affirmed the district court’s denial of
this motion to suppress. On certiorari, Parker 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
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
Parker’s breath test was the product of a warrantless search,
and the ICA erred by concluding that the district court properly
denied Parker’s motion to suppress the breath test result.
Accordingly, Parker’s OVUII conviction cannot stand.
IT IS HEREBY ORDERED that the ICA’s September 2, 2014
Judgment on Appeal and the district court judgment are vacated,
and the case is remanded to the district court for further
3
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proceedings consistent with this court’s opinion in State v.
Won.
DATED: Honolulu, Hawaii, February 23, 2016.
Jonathan Burge /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Brian R. Vincent
for respondent /s/ Michael D. Wilson
Robert Nakatsuji
for amicus curiae
Attorney General of
the State of Hawaii
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