State v. Hosaka.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
28-AUG-2020
08:02 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,

vs.

TROY HOSAKA,
Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 16-1-0057)

AUGUST 28, 2020

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ. 1

1 Associate Justice Richard Pollack, who was a member of the court
when the oral argument was held, retired from the bench on June 30, 2020.

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OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

In 2016, police arrested Troy Hosaka for Habitually

Operating a Vehicle Under the Influence of Intoxicants (Habitual

OVUII). After his arrest, a Honolulu Police Department (HPD)

officer read Hosaka the Department’s implied consent form (HPD-

396K) advising him of his right to refuse testing and explaining

that Hosaka “may [] be subject to the procedures and sanctions

under [Hawaiʻi Revised Statutes (HRS)] chapter 291E,” if he

refused. Hosaka signed and initialed the form, electing to take

a breath test. Now, Hosaka seeks to suppress the breath test

results, arguing that his consent was not knowing, intelligent

and voluntary because the form did not comply with the implied

consent statutory scheme governed by HRS Chapter 291E and is

inaccurate as a result. We disagree.

We conclude that HPD’s implied consent form complied

with HRS Chapter 291E and was accurate. Moreover, even if the

form had been inaccurate, non-compliance with the implied

consent statutory scheme does not automatically mandate

suppression — suppression is only warranted where an arrestee

did not validly consent to chemical testing. While an

inaccuracy in an implied consent form is a relevant factor to

consider, whether consent is knowing, intelligent and voluntary

must be determined by looking to the totality of the

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circumstances. Consent can be invalid if the inaccurate

information conveyed is reasonably likely to influence an

arrestee’s consent, in which case the consent is not knowing or

intelligent; or it can be invalid because it was coerced, in

which case the consent is not voluntary. In both situations,

the question is whether the consent was valid, not whether the

form complied with every technical requirement in the implied

consent statutory scheme. Here, because the totality of the

circumstances show that Hosaka validly consented to a breath

test, the breath test results are admissible.

II. BACKGROUND

By driving on a public road in the State of Hawaiʻi,

drivers are deemed to have consented to a blood, breath, or

urine test (“chemical test”) to determine the level of

intoxicants in their system if they are suspected of driving

under the influence. HRS § 291E-11(a) (2007). When requesting

a driver take a chemical test, a law enforcement officer must

inform the driver that they have the right to refuse testing.

HRS § 291E-11(b)(2). If the driver chooses to refuse, they must

be informed of the administrative sanctions that could be

imposed as a result — namely, suspension of their license and

privilege to drive — and given an opportunity to reconsider

their decision. HRS § 291E-15 (Supp. 2016). If, after that

second advisement, the driver persists in refusing, their

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driver’s license may be suspended after a hearing. HRS § 291E-

41 (Supp. 2012).

A. Factual Background

In January 2016, police pulled over and arrested

Hosaka for Habitual OVUII. Hosaka has not contested that police

had probable cause to arrest him on suspicion of driving under

the influence of intoxicants.

While Hosaka was in custody, HPD Officer Jared Spiker

read Hosaka, verbatim, HPD’s implied consent form (HPD-396K)

entitled “USE OF INTOXICANTS WHILE OPERATING A VEHICLE — IMPLIED

CONSENT FOR TESTING” (“implied consent form” or “form”). The

form stated in relevant part:

USE OF INTOXICANTS WHILE OPERATING A VEHICLE
IMPLIED CONSENT FOR TESTING[ 2]

DATE OF ARREST: 1-11-16 REPORT NO.: 16-015999

ARRESTEE’S[] NAME: Troy Hosaka

I, Jared Spiker , a police officer, swear that the
following statements were read to the arrestee[].
Pursuant to chapter 291E, Hawaiʻi Revised Statutes
(HRS), Use of Intoxicants While Operating a Vehicle,
you are being informed of the following:

1. TH 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 person[’]s breath, blood, or urine as applicable.

2. TH You are not entitled to an attorney before you
submit to any test[] or tests to determine your
alcohol and/or drug content.

3. TH You may refuse to submit to a breath or blood

2 Italicized text indicates where the form was filled out by hand.

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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. If you do
refuse, then none shall be given, except as provided
in section 291E-21.[ 3] However, if you refuse to
submit to a breath, blood, or urine test, you may be
subject to up to the sanctions of 291E-65[ 4] if you
are under 21 years of age at the time of the offense.
In addition, you may also be subject to the
procedures and sanctions under chapter 291E, part
III.

ALCOHOL CONCENTRATION
TH AGREED TO TAKE A BREATH TEST AND REFUSED THE
BLOOD TEST

. . . .

I, THE ARRESTEE/RESPONDENT, ACKNOWLEDGE THAT I MADE
THE CHOICE(S) INDICATED ABOVE AND WAS INFORMED OF THE
INFORMATION IN THIS REPORT.

ARRESTEE’S[] SIGNATURE: Troy Hosaka [Date]: 1-12-16
SIGNED: Jared Spiker [ID]: 103267 [Date]: 1-12-16

(Emphasis added.)

Hosaka initialed each of the form’s three advisement

paragraphs, initialed that he “agreed to take a breath test and

refused the blood test,” and signed the form at the bottom to

“acknowledge that [he] made the choice[] indicated above and was

informed of the information in [the form].” After completing

the form, Hosaka took the breath test, which showed that his

blood alcohol content was .134 percent — well over the legal

3 HRS § 291E-21(a) (2007) permits a law enforcement officer to
obtain a breath, blood, or urine sample from any driver involved in a
collision causing injury or death to any person.

4 HRS § 291E-65 (Supp. 2016) governs administrative sanctions for a
refusal by a person under twenty-one arrested under HRS § 291E-64 (2007)
(operating a vehicle after consuming a measurable amount of alcohol).
Sanctioning under this section would not apply to Hosaka, since Hosaka was
forty-two at the time of his arrest.

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limit. The State of Hawaiʻi charged Hosaka with Habitual OVUII,

in violation of HRS § 291E-61.5 (2007 & Supp. 2015), 5 in the

Circuit Court of the First Circuit (circuit court). 6

B. Circuit Court’s Suppression of Hosaka’s Breath Test Results

Before trial, Hosaka filed a motion to suppress his

breath test results, arguing that the test constituted an

unreasonable search in violation of the United States and Hawaiʻi

Constitutions. He argued that his purported consent was

coerced, and thus invalid, because the implied consent form

advised him, “if you refuse to submit to a breath, blood, or

urine test . . . you may [] be subject to the procedures and

sanctions under chapter 291E, part III.” According to Hosaka,

by informing him that he may be subject to sanctions if he were

to refuse testing, the form failed to adequately inform him of

his right to withdraw his consent and did not follow statutorily

required procedures. Thus, the breath test violated his fourth

5 HRS § 291E-61.5 provides in relevant part:

(a) 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:
. . . .
(C) With .08 or more grams of alcohol
per two hundred ten liters of
breath[.]

6 The Honorable Glenn J. Kim presided.

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amendment right to be free from unreasonable searches and

seizures, and the results of the test needed to be suppressed.

The circuit court agreed with Hosaka, concluding that

HRS §§ 291E-11 and 291E-15, when read in pari materia, required

“an arrested person [] first [be] given a completely

unencumbered choice to refuse to submit” to testing.

Accordingly, police could not inform Hosaka that any sanctions

could result from a refusal until after he made the initial

choice to refuse. Because the implied consent form advised

Hosaka that sanctions “may” result, the circuit court found that

his consent was coerced and suppressed the breath test results.

C. ICA Proceedings

The State appealed the suppression of Hosaka’s breath

test results to the Intermediate Court of Appeals (ICA), arguing

that the form complied with HRS Chapter 291E and that the

chapter did not require an OVUII arrestee to have an

“unencumbered choice” to refuse a chemical test.

The ICA agreed with the State that suppression was not

warranted, vacating the circuit court’s order and remanding the

case for further proceedings. However, the ICA agreed with the

circuit court that HPD’s implied consent form did not comply

with HRS Chapter 291E’s mandated procedures because the chapter

required that an OVUII arrestee have an initial opportunity to

refuse to submit to testing prior to being informed of possible

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sanctions.

Nevertheless, the ICA concluded that suppression of

Hosaka’s breath test was not the proper remedy for non-

compliance with HRS Chapter 291E procedures because HRS § 291E-

15 barred the imposition of sanctions only where the arrestee

was never informed of potential sanctions at any point during

the advisal. Here, because the form informed Hosaka of the

possible sanctions for refusing and Hosaka was given the

opportunity to refuse testing with those sanctions in mind, the

ICA concluded that the form’s statement that Hosaka “may” have

been subject to sanctions was accurate and therefore that the

results need not be suppressed. Further, the ICA held that that

the circuit court “erred in concluding that burdening an

arrestee’s election to refuse to submit to testing with any

significant sanctions renders the arrestee’s consent invalid.”

Hosaka timely filed an application for writ of

certiorari.

III. STANDARDS OF REVIEW

A. Statutory Interpretation

The interpretation of a statute is a question of law

that this court reviews de novo. State v. Arceo, 84 Hawaiʻi 1,

10, 928 P.2d 843, 852 (1996).

When construing a statute, our foremost obligation is
to ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from
the language contained in the statute itself. And we

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must read statutory language in the context of the
entire statute and construe it in a manner consistent
with its purpose.

State v. Ruggiero, 114 Hawaiʻi 227, 231, 160 P.3d 703, 707 (2007)

(quoting Gray v. Admin. Dir. of the Court, 84 Hawaiʻi 138, 144,

931 P.2d 580, 586 (1997)).

B. Motion to Suppress

We review a circuit court’s findings of fact on a

motion to suppress under the clearly erroneous standard. State

v. Alvarez, 138 Hawaiʻi 173, 181, 378 P.3d 889, 897 (2016).

However, we review the court’s conclusions of law de novo: “The

question of whether the facts as found amount to legally

adequate ‘consent’ is a question of constitutional law that a

court answers by exercising its ‘own independent constitutional

judgment based on the facts of the case.’” State v. Won, 137

Hawaiʻi 330, 341, 372 P.3d 1065, 1076 (2015) (quoting State v.

Trainor, 83 Hawaiʻi 250, 255, 925 P.2d 818, 823 (1996)).

IV. DISCUSSION

The fourth amendment to the United States Constitution

and its counterpart, article I, section 7 of the Hawaiʻi

Constitution, guarantee the right of persons to be free from

unreasonable searches. An intoxilyzer test is a search under

these provisions; however, consent is a well-established

exception to the requirement that a warrant be obtained before a

search takes place. Won, 137 Hawaiʻi at 340, 372 P.3d at 1075.

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As discussed above, the State contends that Hosaka consented to

a breath test when advised of his rights under the implied

consent statute.

“This court has stated unambiguously that for consent

to be ‘in fact, freely and voluntarily given,’ the consent ‘must

be uncoerced,’” a determination that requires looking to the

totality of the circumstances. Id. at 341, 372 P.3d at 1076

(quoting Nakamoto v. Fasi, 64 Haw. 17, 21, 635 P.2d 946, 951

(1981)).

Thus, to decide whether to suppress the results of a

chemical test administered on the basis of an arrestee’s

consent, the court must evaluate the circumstances under which

consent was given. While the accuracy of the implied consent

form and its compliance with HRS Chapter 291E are relevant

considerations, the central inquiry is not simply whether the

form complies with the relevant statutes, but whether the

circumstances indicate the arrestee’s consent was knowing,

intelligent, and voluntary. See Won, 137 Hawaiʻi at 345, 372

P.3d at 1080 (“[I]n order to legitimize submission to a

warrantless BAC test under the consent exception, . . . it must

be concluded that, under the totality of the circumstances,

consent was in fact freely and voluntarily given.”).

A. The Implied Consent Form Complied with HRS Chapter 291E

Hosaka argues that his consent was coerced because of

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defects in HPD’s implied consent form. Accordingly, we first

consider whether the form was accurate and in compliance with

the implied consent statutory scheme (HRS Chapter 291E). We

conclude that it was.

1. HRS Chapter 291E establishes a two-step procedure for
advising OVUII arrestees of their right to refuse
chemical testing

First, we agree with the circuit court and the ICA

that HRS Chapter 291E’s provisions, when read in pari materia,

establish a two-step procedure for advising arrestees of their

right to refuse chemical testing. See State v. Kamana‘o, 118

Hawaiʻi 210, 218, 188 P.3d 724, 732 (2008) (“[L]aws in pari

materia, or upon the same subject matter, shall be construed

with reference to each other. What is clear in one statute may

be called upon in aid to explain what is doubtful in another.”

(quoting Barnett v. State, 91 Hawaiʻi 20, 31, 979 P.2d 1046, 1057

(1999))).

HRS § 291E-11 provides in relevant part:

(a) Any person who operates a vehicle upon a public
way, street, road, or highway . . . of the State
shall be deemed to have given consent, subject to
this part, to a test or tests approved by the
director of health of the person’s breath, blood, or
urine for the purpose of determining alcohol
concentration . . . of the person’s breath, blood, or
urine, as applicable.

(b) The test or tests shall be administered at the
request of a law enforcement officer having probable
cause to believe the person operating a vehicle upon
a public way, street, road, or highway . . . of the
State is under the influence of an intoxicant or is
under the age of twenty-one and has consumed a
measurable amount of alcohol, only after:

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(1) A lawful arrest; and

(2) The person has been informed by a law
enforcement officer that the person may refuse
to submit to testing under this chapter.

(Emphases added.)

While HRS § 291E-11, on its own, suggests that OVUII

arrestees need only be provided with one opportunity to refuse,

it is clear from other statutes within HRS Chapter 291E that an

additional advisement must be afforded to OVUII arrestees who

refuse to submit to testing.

At the time of Hosaka’s offense, for instance, HRS

§ 291E-15 (Supp. 2011), 7 which governs the imposition of

sanctions, required law enforcement officers to give arrestees a

second opportunity to refuse after advising them of possible

sanctions:

If a person under arrest refuses to submit to a
breath, blood, or urine test, none shall be given,
except as provided in section 291E-21. Upon the law
enforcement officer’s determination that the person
under arrest has refused to submit to a breath,
blood, or urine test, if applicable, then a law
enforcement officer shall:

7 At the time Hosaka was arrested, HRS § 291E-15 also required law
enforcement to advise an arrestee of the possible criminal sanctions under
HRS § 291E-68. However, in 2016, HRS § 291E-68 was repealed by the
legislature in response to this court’s decision in Won, 137 Hawaiʻi 330, 372
P.3d 1065 (holding that burdening a defendant’s right to refuse to submit to
BAC testing under the threat of criminal sanctions was inherently coercive).
See 2016 Haw. Sess. Laws Act 17, § 2 at 21. At that time, the legislature
also amended HRS § 291E-15 to remove its reference to HRS § 291E-68. See id.
§ 1 at 21. Because of these legislative amendments and because Hosaka was
never advised of any possible criminal sanctions, it is not necessary to
address HRS § 291E-68 as a requirement in the instant case. Therefore, our
analysis applies to the current version of HRS § 291E-15 as well as the
version in place at the time of Hosaka’s arrest.

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(1) Inform the person under arrest of the
sanctions under section 291E-41 [or] 291E-65 . . .
and

(2) Ask the person if the person still
refuses to submit to a breath, blood, or urine test,
thereby subjecting the person to the procedures and
sanctions under part III or section 291E-65, as
applicable[.]

(Emphasis added.)

HRS § 291E-65, which governs sanctions for persons

under 21 arrested for operating a vehicle after consuming a

measurable amount of alcohol, likewise requires an officer to

ask if an arrestee “still” refuses after informing them of

sanctions. 8 Similarly, HRS § 291E-41, which establishes the

8 HRS § 291E-65 provides in relevant part:

(a) If a person under arrest for operating a
vehicle after consuming a measurable amount of
alcohol, pursuant to section 291E-64, refuses to
submit to a breath or blood test, none shall be
given, except as provided in section 291E-21, but the
arresting law enforcement officer, as soon as
practicable, shall submit an affidavit to a district
judge of the circuit in which the arrest was made,
stating:

(1) That at the time of the arrest, the
arresting officer had probable cause to believe the
arrested person was under the age of twenty-one and
had been operating a vehicle upon a public way,
street, road, or highway or on or in the waters of
the State with a measurable amount of alcohol;

(2) That the arrested person was informed
that the person may refuse to submit to a breath or
blood test, in compliance with section 291E-11;

(3) That the person had refused to submit to
a breath or blood test;

(4) That the arrested person was:

(A) Informed of the sanctions of this
(continued . . .)

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duration of an administrative revocation of a driver’s license

for a refusal, requires that the arrestee refused, was advised

of sanctions, and then asked if they “still refuse[d]”:

(c) If a respondent has refused to be tested after
being informed:

(1) That the person may refuse to submit to
testing in compliance with section 291E-11; and

(2) Of the sanctions of this part and then
asked if the person still refuses to submit to a
breath, blood, or urine test, in compliance with the
requirements of section 291E-15,

the revocation imposed . . . shall be for a period of
two years, three years, four years, or ten years,
respectively [depending on the number of prior
alcohol-related law enforcement contacts].

(Emphasis added.)

These statutes, when read together, demonstrate that

before sanctions for refusal can be imposed, law enforcement

must follow a two-step procedure: first, an OVUII arrestee must

be given an opportunity to refuse to submit to testing; second,

if the arrestee refuses, the arrestee must then be informed of

the specific sanctions that could result and asked whether they

still refuse testing.

The legislative history of HRS § 291E-15 also supports

section; and then

(B) Asked if the person still refuses
to submit to a breath or blood test, in compliance
with the requirements of section 291E-15; and

(5) That the arrested person continued to
refuse to submit to a breath or blood test.

(Emphasis added.)

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this interpretation of the implied consent statutory scheme.

See H.B. 3257, H.D. 1, S.D. 2, 23rd Leg., Reg. Sess. (2006). 9

For example, the House Committee on Transportation explained

that the purpose of amending the implied consent statutory

scheme was to streamline the implied consent process by only

requiring officers to advise arrestees of the sanctions that

could be imposed if the arrestee had already refused testing:

[P]olice officers are [] required to read an
inordinate amount of information to a suspect of
DUII. This measure is an attempt to simplify [the
implied consent] process while protecting the rights
of the accused by clarifying that information on the
consequences of refusing to submit to a blood,
breath, or urine test only need to be read to an
individual if the individual refuses to submit to
such a test. Your Committee believes that this bill
will support law enforcement and increase traffic
safety.

H. Stand. Comm. Rep. No. 310-06, in 2006 House Journal, at 1218.

The Senate Committee on Judiciary and Hawaiian Affairs

similarly explained that the purpose of the bill was to

“considerably reduce the amount of time spent by the police in

processing persons arrested for [OVUII]” by requiring that

police “inform a person arrested . . . of the sanctions for

refusal to submit to [a] breath, blood, or urine test only if

[a] person withdraws [their implied] consent to testing[.]” S.

Stand. Comm. Rep. No. 3303, in 2006 Senate Journal, at 1587

(emphasis added).

9 H.B. 3257 was introduced by the legislature in 2006 and
eventually was enacted into law as Act 64. See 2006 Haw. Sess. Laws Act 64,
at 96-101.

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Accordingly, we hold that under HRS Chapter 291E, an

OVUII arrestee who initially refuses to submit to chemical

testing must be given a second opportunity to refuse after being

advised of the possible sanctions.

2. The HPD’s implied consent form complied with HRS
Chapter 291E

However, the fact that officers must follow a two-step

procedure before sanctions can be imposed does not mean that the

form in this case violated HRS Chapter 291E: Hosaka did not

initially refuse chemical testing, and so HRS § 291E-15, which

establishes the two-step procedure discussed above, does not

apply to Hosaka’s case. See HRS § 291E-15 (“Upon the law

enforcement officer’s determination that the person under arrest

has refused to submit to a breath, blood, or urine

test . . . .”). The requirements of HRS § 291E-15 are only

triggered if the arrestee initially refuses; they do not apply

to arrestees who, like Hosaka, choose not to withdraw their

consent to chemical testing when first asked.

Most importantly, however, the two-step procedure does

not require that an arrestee’s initial refusal be “completely

unencumbered,” as the circuit court believed. HRS Chapter 291E

permits law enforcement to tell arrestees that they “may” be

subject to sanctions when giving the first implied consent

advisal. The plain language of HRS § 291E-11 provides that a

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test can be administered only after (1) a lawful arrest, and (2)

an advisement that the arrestee has the right to refuse. HRS

§ 291E-11(b). It does not prohibit a law enforcement officer

from telling an arrestee, as part of that first advisement, that

sanctions “may” be imposed for a refusal. Similarly, even if

HRS § 291E-15 applied to Hosaka, the statute does not prohibit

officers from advising arrestees of possible sanctions when they

first ask an arrestee to submit to a chemical test and then

later providing a more specific explanation of the potential

sanctions if an arrestee refuses. 10 Accordingly, we conclude

that the implied consent form complied with HRS Chapter 291E.

B. Hosaka Voluntarily Consented to a Breath Test Under the
Totality of the Circumstances

Having determined that the implied consent form did

not violate statutory mandates, we turn to Hosaka’s remaining

arguments that his consent was not knowing, intelligent, and

voluntary because the form contained inaccurate and misleading

information under Wilson and was inherently coercive under Won.

10 We disagree with the ICA that sanctions could have been imposed
under HRS § 291E-15 based solely on the implied consent form used to advise
Hosaka initially. As discussed above, HRS Chapter 291E requires that an
arrestee be given two opportunities to consent to chemical testing, and HRS
§ 291E-15 only applies if an arrestee initially refuses testing. After that
first refusal, HRS § 291E-15(1) requires that a law enforcement officer
“[i]nform the person under arrest of the sanctions under section 291E-41 [or]
291E-65[.]” Thus, HRS § 291E-15 requires an arrestee be informed of the
sanctions which could apply — not simply that unspecified sanctions may
exist. As Form HPD-396K informed an arrestee only that sanctions “may”
result and did not explain what the potential sanctions were, law enforcement
would have to conduct a more detailed advisement in compliance with HRS
§ 291E-15(2) before sanctions could be imposed.

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1. Wilson does not support suppression of chemical test
results solely due to an inaccurate or incomplete
implied consent form

The circuit court concluded that the implied consent

form was inaccurate and therefore that this court’s decision in

Wilson, 92 Hawaiʻi 45, 987 P.2d 268, required the suppression of

Hosaka’s breath test results. According to the circuit court,

because the form in this case did not follow the required two-

step procedure set forth in HRS § 291E-15, sanctions could never

have been imposed, so it was inaccurate for the form to advise

Hosaka that they “may” have been. We disagree.

First, we conclude that the implied consent form was

accurate. It advised Hosaka that if he refused chemical

testing, he “may [] be subject to the procedures and sanctions

under chapter 291E, part III.” That was a true statement: At

the time Hosaka was advised, sanctions could have been imposed

if he refused and continued to refuse after being advised of the

possible sanctions, as required by HRS § 291E-15. Although the

imposition of sanctions required additional steps, the

possibility of sanctions for a refusal existed even at the

beginning of Hosaka’s implied consent advisal. HPD’s form

accurately explains this possibility by telling arrestees that

if they refused, they “may” be subject to the procedures and

sanctions in the implied consent statute.

However, even if we determined that HPD’s implied

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consent form was potentially misleading, that fact alone does

not warrant suppression. We take this opportunity to reiterate

that the constitution requires knowing, intelligent, and

voluntary consent — not compliance with every technical

requirement in the implied consent statutory scheme. See Won,

137 Hawaiʻi at 354, 372 P.3d at 1089 (“[T]he question of whether

the implied consent statute is adhered to is separate and

distinct from the constitutional inquiry into whether there is

actual consent to BAC testing under HRS § 291E-11(b).”). Thus,

the operative question is whether any defects in the form were

likely to influence an arrestee’s decision whether to consent.

In Wilson, the implied consent advisement informed

arrestees, “[I]f you refuse to take any tests . . . your driving

privileges will be revoked for one year instead of the three

month revocation that would apply if you chose to take the test

and failed it[.]” 92 Hawaiʻi at 47, 987 P.2d at 270. That

advisement was wholly incorrect — if a driver failed to take a

test, their driving privileges could be revoked for “anywhere

from three months to one year.” Id. We found that the nature

of the misrepresentation — that Wilson’s driver’s license would

be suspended for less time if he took a test and failed, than if

he refused a test — “was relevant to [the defendant’s] decision

whether to agree to or refuse the blood alcohol test.” Id. at

51, 987 P.2d at 274. As a result of the form’s

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misrepresentation, we held that suppression was necessary.

Wilson stands for the fundamental principle that

police officers may not induce an arrestee into not withdrawing

their implied consent by giving an inaccurate or misleading

implied consent advisement. Thus, we held that “where a change

in wording of the implied consent warnings operates to convey a

different meaning than that specified in the statute, the driver

cannot be held to have made a knowing and intelligent decision

whether to submit to an evidentiary alcohol test.” Wilson, 92

Hawaiʻi at 50, 987 P.2d at 273.

We recognize that in Wilson we stated, “the arresting

officer’s violation of [the implied consent statute’s] consent

requirement precludes admissibility of Wilson’s blood test

results in his related criminal DUI proceeding.” Id. at 53–54,

987 P.2d at 276–77. However, this does not mean that any

imperfection in the implied consent form mandates suppression of

the chemical test results. The implied consent form in Wilson

omitted the maximum possible administrative sanction to create

the misleading and inaccurate impression that the penalty for

refusing of a chemical test would be worse than submitting to a

test and failing. This misrepresentation was of the type

reasonably likely to influence an arrestee into consenting to a

chemical test; therefore, the arrestee’s consent was not

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knowing, intelligent, and voluntary. 11 Id. at 47, 987 P.2d at

270; cf. State v. Matsumoto, 145 Hawaiʻi 313, 324, 452 P.3d 310,

321 (2019) (“[D]eliberate falsehoods extrinsic to the facts of

the alleged offense, which are of a type reasonably likely

to . . . influence an accused to make a confession regardless of

guilt, [] will be regarded as coercive per se.” (quoting State

v. Kelekolio, 74 Haw. 479, 512–13, 849 P.2d 58, 73–74 (1993))

(emphases added)). Wilson involved an inaccurate advisement

informing an arrestee that the length of a driver’s license

suspension would be three months instead of one year, an

inaccuracy we characterized as “substantive” and “substantial,”

and which was reasonably likely to influence an arrestee’s

decision. 92 Hawai‘i at 53 n.11, 987 P.2d at 276 n.11.

Accordingly, Wilson should not be read to invalidate consent due

solely to minor defects in the implied consent advisory that are

unlikely to do so.

In this case, the implied consent form accurately

informed Hosaka of the possible sanctions and did not omit any

important information that could have influenced his decision

whether to withdraw his implied consent. Even if the statement

that sanctions “may” be imposed is considered misleading because

intervening steps would have to take place before that could

11 We emphasize that the constitutional infirmity in Wilson was not
the incomplete advisement per se, but the nature of the incompleteness — the
implied consent form omitted a substantive fact that rendered it misleading.

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happen, any inaccuracy was slight and unlikely to affect an

arrestee’s decision whether to consent to a chemical test.

Accordingly, suppression is not warranted under Wilson.

2. HPD’s implied consent form was not coercive under Won

Hosaka further argues that under this court’s decision

in Won, 137 Hawaiʻi 330, 372 P.3d 1065, the mere mention of

sanctions in the implied consent form was coercive and therefore

mandates suppression of the breath test results. The circuit

court agreed, concluding that even though Won involved criminal

sanctions for a refusal, “under the reasoning of Won, burdening

an arrestee’s election to refuse with any significant sanctions

cannot help but render any subsequent purported consent legally

insufficient and therefore null and void.” We disagree with the

circuit court’s interpretation of Won.

In Won, the defendant consented to a chemical test

after being advised that if he refused chemical testing he would

“be subject to up to thirty days imprisonment and/or fine up to

$1,000 or the sanctions of 291E-65, if applicable.” Id. at 335,

372 P.3d at 1070 (emphasis omitted). We held that “[w]here

arrest, conviction, and imprisonment are threatened if consent

to search is not given, the threat infringes upon and oppresses

the unfettered will and free choice of the person to whom it is

made, whether by calculation or effect.” Id. at 346, 372 P.3d

at 1081. Notably, we concluded that in addition to the sheer

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threat of criminal punishment, the advisement was especially

coercive because “the choice presented by the Implied Consent

Form forces a defendant to elect between fundamental rights

guaranteed by the Hawaiʻi Constitution,” and the duration of

possible imprisonment for a refusal was significantly higher

than the possible imprisonment for a first OVUII offense. Id.

at 347-48, 372 P.3d at 1082-83 (emphasis omitted).

However, we also explicitly distinguished

administrative sanctions from the threat of criminal prosecution

and imprisonment: “It bears repeating here that this opinion

does not concern the civil administrative penalties attendant to

a driver’s refusal of BAC testing. See HRS § 291E–41(d) (Supp.

[2012]); see generally HRS Chapter 291E, Part III. Those types

of sanctions are not affected in any way by our decision.” Id.

at 349 n.34, 372 P.3d at 1084 n.34. Given Won’s repeated

references to the coercive nature of the criminal sanctions at

issue, the circuit court erred in concluding that Won prohibited

“any significant sanction burdening a defendant’s choice to

refuse.”

Here, the implied consent form that Hosaka signed can

be distinguished from the form in Won: it did not threaten

Hosaka with arrest or imprisonment for refusing a chemical test;

it did not require him to choose between constitutional rights;

and it did not advise him, as the forms in both Won and Wilson

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did, that the punishment for refusal would be worse than the

punishment for failing a chemical test. Even if a threat of

administrative sanctions could be coercive under some

circumstances, the circumstances here do not rise to that level.

Moreover, there are no other factors (and certainly no other

factual findings regarding such factors) that could have been

coercive or that suggest Hosaka was, in fact, coerced. Thus, as

the totality of the circumstances demonstrates that Hosaka

voluntarily consented to the breath test, the results of that

test are admissible.

V. CONCLUSION

We hold that the implied consent form in this case

complied with HRS Chapter 291E and was not inaccurate or

misleading. Further, we clarify that not all inaccuracies in

implied consent forms require suppression of chemical testing

results: only inaccuracies that are reasonably likely to

influence an arrestee to consent will require suppression.

Similarly, informing an arrestee of possible civil sanctions

does not make an advisement automatically coercive. As the

implied consent form here was not inaccurate or coercive, and

the circuit court did not find that any of the other

circumstances of Hosaka’s advisal were coercive, Hosaka

knowingly, intelligently, and voluntarily consented to the

breath test, and the results of the breath test are admissible.

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Accordingly, the ICA’s judgment on appeal filed June 18, 2019,

is affirmed, and this case is remanded to the circuit court for

further proceedings consistent with this opinion.

Howard K. K. Luke /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian R. Vincent
for respondent /s/ Sabrina S. McKenna

/s/ Michael D. Wilson

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