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Electronically Filed
Supreme Court
SCWC-14-0000695
04-MAR-2016
07:58 AM
SCWC-14-0000695
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
FRED Y. MIKAWA,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0000695; CASE NO. 1DTA-13-05574)
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 Fred Y. Mikawa seeks
review of the Intermediate Court of Appeals’ (ICA) October 9,
2015 Judgment on Appeal, entered pursuant to its August 27, 2015
Summary Disposition Order, which affirmed the District Court of
the First Circuit’s (district court) February 27, 2014 Notice of
Entry of Judgment and/or Order and Plea/Judgment (district court
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judgment).1 The district court found Mikawa guilty of Operating
a Vehicle Under the Influence of an Intoxicant (OVUII), in
violation of Hawai#i Revised Statutes (HRS) § 291E-61(a)(3)
(Supp. 2010).2 We accepted Mikawa’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, Mikawa was taken to
the police station, where he was read an implied consent form.3
1
The Honorable Faye M. Koyanagi presided.
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. . . .
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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 urine test, you shall be subject to up
to thirty days imprisonment and/or fine up to $1,000 or the
2
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Mikawa elected to take a breath test, which resulted in a breath
alcohol content reading of 0.130 grams of alcohol per 210 liters
of breath. Mikawa filed several motions to suppress statements
and evidence of his breath test for alcohol concentration,
arguing, inter alia, that the test was based on his involuntary
consent in violation of the Fourth Amendment of the United
States Constitution and Article I, Section 7 of the Hawaiʻi
Constitution. The district court denied all of Mikawa’s motions
to suppress, and the ICA affirmed the district court’s denial of
these motions. On certiorari, Mikawa contends that he did not
constitutionally consent to the breath test because his consent
was coerced by the implied consent form, which conveyed a threat
of imprisonment and significant punishment for refusal to submit
to a breath, blood, or urine test, under HRS § 291E-69 (Supp.
2010). He further contends that without the evidence from the
breath test, there was not sufficient facts to sustain his
conviction under HRS § 291E-61(a)(3).
In State v. Won, 136 Hawaiʻi 292, 3122, 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
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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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
Mikawa’s breath test was the product of a warrantless search,
and the ICA erred by concluding that the district court properly
denied Mikawa’s motion to suppress the breath test result.
Accordingly, Mikawa’s OVUII conviction cannot be upheld.
IT IS HEREBY ORDERED that the ICA’s October 9, 2015
Judgment on Appeal and the district court judgment are vacated,
and the case is remanded to the district court for further
proceedings consistent with this court’s opinion in State v.
Won.
DATED: Honolulu, Hawai#i, March 4, 2016.
Jonathan Burge /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Brian R. Vincent
for respondent /s/ Michael D. Wilson
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