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Electronically Filed
Supreme Court
SCWC-13-0003064
23-FEB-2016
08:47 AM
SCWC-13-0003064
IN THE SUPREME COURT OF THE STATE OF HAWAII
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
KENNETH A. MONIZ, Petitioner/Defendant-Appellant.
_______________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0003064; CR. NO. 12-1-0176)
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 Kenneth A. Moniz seeks
review of the Intermediate Court of Appeals’ (“ICA”) May 15,
2015 Judgment on Appeal, entered pursuant to its April 17, 2015
Summary Disposition Order, which affirmed the Circuit Court of
the Third Circuit’s (“circuit court”) August 5, 2013 Judgment of
Conviction and Probation Sentence (“circuit court judgment”).1
After entering into a conditional guilty plea, Moniz was
1
The Honorable Glenn S. Hara presided.
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convicted of Habitually Operating a Vehicle Under the Influence
of an Intoxicant (“HOVUII”), in violation of Hawaii Revised
Statutes (“HRS”) § 291E-61.5 (2007).2 We accepted Moniz’s
Application for Writ of Certiorari, and we now vacate the ICA’s
Judgment on Appeal and the circuit court judgment and remand the
case to the circuit court for further proceedings.
After being arrested for suspicion of operating a vehicle
under the influence of an intoxicant, Moniz was taken to the
police station, where he was read an implied consent form.3
2
HRS § 291E-61.5 provides in relevant part:
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: (A) While
under the influence of alcohol in an amount sufficient to
impair the person’s normal mental faculties or ability to
care for the person and guard against casualty; . . . [or]
(C) 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.
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
(continued...)
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Moniz elected to take a breath test, which resulted in a breath
alcohol content reading of 0.165 grams of alcohol per 210 liters
of breath. Moniz filed a motion to suppress the breath test
results, on the basis that his Fourth Amendment rights (among
other constitutional rights) were violated. The circuit court
denied the motion. The ICA affirmed the circuit court’s denial
of this motion to suppress, relying on its opinion in State v.
Won, 134 Hawaii 59, 332 P.3d 661 (App. 2014). On certiorari,
Moniz contends that (1) the police improperly advised him that
he was not entitled to an attorney in violation of HRS § 803-9;
and (2) the ICA erred when it ruled that a Miranda warning was
not required to be given to him before he decided whether to
submit to a breath, blood, or urine test. Moniz noted in his
Application that this court had accepted certiorari in State v.
Won, SCWC-12-0000858.
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
(continued. . .)
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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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 Won, the result of Moniz’s breath test was the
product of a warrantless search, and the ICA erred by concluding
that the circuit court properly denied Moniz’s motion to
suppress the breath test result. Accordingly, Moniz’s HOVUII
conviction cannot stand.
IT IS HEREBY ORDERED that the ICA’s May 15, 2015 Judgment
on Appeal and the circuit court judgment are vacated, and the
case is remanded to the circuit court for further proceedings
consistent with this court’s opinion in Won.
DATED: Honolulu, Hawaii, February 23, 2016.
M. Kanani Laubach /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Kevin S. Hashizaki
for respondent /s/ Michael D. Wilson
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