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Electronically Filed
Supreme Court
SCWC-12-0000814
26-FEB-2016
10:46 AM
SCWC-12-0000814
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
BRADFORD LING,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000814; CASE NO. 3DTA-12-00083)
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 Bradford Ling seeks
review of the July 16, 2014 Judgment on Appeal of the
Intermediate Court of Appeals (ICA), entered pursuant to its May
23, 2014 Summary Disposition Order, which affirmed the August 27,
2012 Judgment of the District Court of the Third Circuit
(district court).1 The district court found Ling guilty of
Operating a Vehicle Under the Influence of an Intoxicant (OVUII),
1
The Honorable Andrew P. Wilson presided.
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in violation of Hawai#i Revised Statutes (HRS) § 291E-61(a)(3)
(Supp. 2010).2 This court accepted Ling’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, Ling was taken to the
police station, where he was read an implied consent form.3 Ling
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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elected to take a breath test, which resulted in a
breath alcohol content reading of 0.138 grams of alcohol per 210
liters of breath. In his motion to suppress the breath test
results before the district court and on certiorari, Ling
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,4 and (2) his statutory right to an
attorney was violated.
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 Ling’s breath test was the
product of a warrantless search, and the ICA erred by concluding
that the district court properly denied Ling’s motion to suppress
4
Included in this first argument raised before the ICA, Ling
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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the breath test result. Accordingly, Ling’s OVUII conviction
cannot stand.
IT IS HEREBY ORDERED that the ICA’s July 16, 2014
Judgment on Appeal and the district court’s August 27, 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
Kelden B.A. Waltjen
for respondent /s/ Michael D. Wilson
Robert T. Nakatsuji
for amicus curiae
Attorney General of the
State of Hawai#i
4