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Electronically Filed
Supreme Court
SCWC-13-0000002
26-FEB-2016
10:36 AM
SCWC-13-0000002
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
REED W. SAILOLA,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000002; CASE NO. 1DTA-11-03671)
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 Reed W. Sailola seeks
review of the July 2, 2015 Judgment on Appeal of the Intermediate
Court of Appeals (ICA), entered pursuant to its May 29, 2015
Summary Disposition Order, which affirmed the December 6, 2012
Judgment of the District Court of the First Circuit (district
court).1 The district court found Sailola guilty of Operating a
Vehicle Under the Influence of an Intoxicant (OVUII), in
1
The Honorable David Lo presided.
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violation of Hawai#i Revised Statutes (HRS) § 291E-61(a)(3)
(Supp. 2010).2 This court accepted Sailola’s application for
writ of certiorari, and we now vacate the ICA’s Judgment on
Appeal and the district court’s Judgment and remand the case to
the district court for further proceedings.
After being arrested for OVUII, Sailola was taken to
the police station, where he was read an implied consent form.3
Sailola elected to take a breath test, which resulted in a breath
alcohol content reading of 0.117 grams of alcohol per 210 liters
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 . . . .
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. In his motion to suppress the breath test results
before the district court and on certiorari, Sailola contends
that (1) his Miranda rights under Article I, Section 10 of the
Hawai#i Constitution were violated when, while in custody, he was
asked by the police, without Miranda warnings, if he wanted to
refuse to take a blood alcohol test, which was likely to
incriminate himself; (2) his statutory right to an attorney was
violated; and (3) the wording of the implied consent form
misinformed Sailola of the sanctions.4
In State v. Won, 136 Hawai#i 292, 312, 361 P.3d 1195,
1215 (2015), we held that the “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 Won, the result of Sailola’s breath test was the
product of a warrantless search, and the ICA erred by concluding
that the district court properly denied Sailola’s motion to
suppress the breath test result. Accordingly, Sailola’s OVUII
4
Included in this third argument raised before the district court and the ICA, Sailola contended that
the police officers’ warnings and advisements based on the implied consent form were coercive and that he did not
knowingly and voluntarily submit to the breath alcohol testing. The district court denied his motion to suppress, and
the ICA affirmed the district court’s ruling.
3
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conviction cannot stand.
IT IS HEREBY ORDERED that the ICA’s July 2, 2015
Judgment on Appeal and the district court’s December 6, 2012
Judgment are vacated, and the case remanded to the district court
for further proceedings consistent with this court’s opinion in
Won.
DATED: Honolulu, Hawai#i, .February 26, 2016.
Jonathan Burge /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Brian R. Vincent
for respondent /s/ Michael D. Wilson
Robert T. Nakatsuji
for amicus curiae
Attorney General of the
State of Hawai#i
4