NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
02-NOV-2021
10:05 AM
Dkt. 48 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant, v.
CHRISTOPHER J. HIGHEAGLE, Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX(3))
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Nakasone and McCullen, JJ.)
Plaintiff-Appellant State of Hawai#i (State) appeals
from the Findings of Fact and Conclusions of Law; Order Granting
Motion to Suppress Evidence, filed on October 27, 2020, in the
Circuit Court of the Second Circuit (Circuit Court).1 In that
order, the Circuit Court suppressed Defendant-Appellee
Christopher J. Higheagle's (Higheagle) blood alcohol
concentration (BAC) test results from a blood draw performed
pursuant to a judicial search warrant obtained after Higheagle
refused to be tested as provided in Hawaii Revised Statutes (HRS)
§ 291E-15 (2020).2
1
The Honorable Kelsey T. Kawano presided.
2
HRS § 291E-15 provides:
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:
(continued...)
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On appeal, the State challenges the Circuit Court's
Conclusions of Law (COL) numbers 19, 28, and 29,3 and argues that
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(...continued)
(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;
provided that if the law enforcement officer fails to comply
with paragraphs (1) and (2), the person shall not be subject
to the refusal sanctions under part III or IV.
(Emphasis added.)
In 2021, the legislature amended this section to include, as an
exception, "a search warrant issued by a judge upon a finding of probable
cause supported by oath or affirmation, or pursuant to any other basis
permissible under the Constitution of the State of [Hawai #i] and laws of this
State." S.B. 412, 31st Leg., Reg. Sess. (2021), available at
https://www.capitol.hawaii.gov/session2021/bills/SB412_CD1_.htm (accessed
October 22, 2021). The legislature also specified that "[t]his Act does not
affect rights and duties that matured, penalties that were incurred, and
proceedings that were begun before its effective date." Id. The effective
date was June 23, 2021. Governor's Message 1161 (2021), available at
https://www.capitol.hawaii.gov/session2021/bills/GM1161_.PDF (accessed
October 22, 2021).
Because these proceedings commenced prior to June 23, 2021, and "[n]o
law has any retrospective operation, unless otherwise expressed or obviously
intended[,]" this amendment does not apply to Higheagle. HRS § 1-3 (2009);
State v. Dudoit, 90 Hawai#i 262, 268 n.3, 978 P.2d 700, 706 n.3 (1999)
(explaining that the "legislature cannot change the intent behind a statute
through subsequent amendments that do not have retroactive effect").
3
COLs 19, 28, and 29 states:
19. The core provision to the effect that no tests
shall be given if a driver refuses to submit to testing, if
read as permissive, would render such provision superfluous,
contrary to basic tenants of statutory construction.
Obtainment of a search warrant by an officer after a
driver's exercise of the right of refusal would violate HRS
§ 291E-15 and render such "right" an illusory nullity.
Permitting an officer to offer a driver the "right" of
refusal, only to repudiate such refusal with a superceding
search warrant is akin to offering no meaningful choice at
all, contrary to the principles set out in Wilson and Won.
Such procedure carries with it the possibility of other
negative effects such as giving an air of credence to
feigned advisements by police, and the potential for
arbitrary enforcement.
. . . .
28. Based on statutory construction and caselaw, the
[Hawai#i] implied consent law is not the exclusive means by
which police may obtain chemical testing in Chapter 291E OUI
(continued...)
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"[Hawaii's] Implied Consent framework does not preempt the
application of traditional search and seizure principles to
[operating a vehicle under the influence of intoxicants (OVUII)]
criminal prosecutions."
Upon careful review of the record and the briefs
submitted by the parties and due consideration of the arguments
advanced and the issues raised, we resolve the State's point of
error as follows:
The Fourth Amendment to the United States Constitution
and article I, section 7 of the Hawai#i Constitution "guarantee
the right of persons to be free from unreasonable searches," and
a blood draw is a search under these principles. See State v.
Hosaka, 148 Hawai#i 252, 258, 472 P.3d 19, 25 (2020). A search
that is "[a]n invasion of bodily integrity implicates an
individual's most personal and deep-rooted expectations of
privacy." State v. Won, 137 Hawai#i 330, 338, 372 P.3d 1065,
1073 (2015) (citation and internal quotation marks omitted). On
the other hand, the legislature continually grapples with the
dangers of OVUII, finding that it "is a serious offense that
contributed to over fifty percent of traffic fatalities in 2015
and 2016." S. Stand. Comm. Rep. No. 1963, in 2019 Senate
Journal, at 1740.
Here, in deciding if Higheagle's BAC test result was
properly suppressed, we must determine whether a law enforcement
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(...continued)
criminal investigations. The [Hawai#i] implied consent law
does not supercede the authority of the police to resort to
a search warrant as an alternative means of obtaining
criminal evidence against intoxicated drivers. Police may
apply for a search warrant in lieu of the [Hawai #i] implied
consent law which does not mandatorily apply to every arrest
for OUI. However, the police after having opted to proceed
under the [Hawai#i] implied consent law, thereby subjecting
an individual to the procedures under HRS § 291E-11 may not
thereafter circumvent the statutory right of refusal under
HRS § 291E-11(b)(2) and HRS § 291E-15 by obtaining a search
warrant in the event the individual refuses consent to the
search, as was done in the instant case.
29. Suppression of the evidence is an appropriate
remedy because the police violated defendant's statutory
right of refusal which led directly to the obtaining of the
evidence to be suppressed. HRS § 291E-11(b)(2); HRS § 291E-
15; State v. Scalera, 139 [Hawai#i] 453, 466 (2017); State
v. Wilson, 92 [Hawai#i] 45, 53 (1999).
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officer may obtain a search warrant ordering a person to submit
to alcohol concentration or drug content testing for purposes of
HRS chapter 291E when that person withdraws consent for (or
refuses) such testing as specifically provided for in HRS § 291E-
15. We review the granting of the motion to suppress evidence
"de novo to determine whether the ruling was 'right' or 'wrong.'"
State v. Spillner, 116 Hawai#i 351, 357, 173 P.3d 498, 504
(2007).
"[C]onsent is a well-established exception to the
requirement that a warrant be obtained before a search takes
place." Hosaka, 148 Hawai#i at 258, 472 P.3d at 25 (citing Won,
137 Hawai#i at 340, 372 P.3d at 1075). In applying the consent
exception to the framework for OVUII, HRS chapter 291E provides
that a person driving on a public road is deemed to have
consented to a breath, blood, or urine test to determine alcohol
concentration or drug content:
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, 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 or drug content of the
person's breath, blood, or urine . . . .
HRS § 291E-11(a) (2020).
These tests are 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 .
. . is under the influence of an intoxicant . . . ." HRS § 291E-
11(b) (2020). This may occur "only after: (1) [a] lawful arrest;
and (2) [t]he person has been informed by a law enforcement
officer that the person may refuse to submit to testing under
this chapter." HRS § 291E-11(b).
Germane to this appeal, "[i]f 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." HRS § 291E-15
(emphasis added). When a person refuses to submit to a breath,
blood, or urine test, the law enforcement officer shall also
inform the person under arrest of the sanctions under HRS
§§ 291E-41 and 291E-65, and part III of HRS chapter 291E. HRS
§ 291E-15; see supra note 2. Should a person still refuse, HRS
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chapter 291E instructs that the law enforcement officer "shall
complete and issue to the person a notice of administrative
revocation and shall indicate thereon whether the notice shall
serve as a temporary permit." HRS § 291E-33(c) (2020).
"Based on the statutory provisions of the implied
consent law, see HRS §§ 291E-11(b), 291E-15, 291E-65(a), and the
protections of the Hawai#i Constitution as interpreted by the
decisions of this court, a person may refuse consent to submit to
a BAC test, and the State must honor that refusal." Won, 137
Hawai#i at 345, 372 P.3d at 1080 (emphasis added). Thus, when a
person under arrest for OVUII exercises his or her right to
refuse to submit to a breath, blood, or urine test, the language
of HRS § 291E-15 is plain—"none shall be given." See State v.
Young, 107 Hawai#i 36, 39, 109 P.3d 677, 680 (2005) (providing
that "[w]hen 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").
The plain language of HRS § 291E-15 also makes clear
that the only exception to "none shall be given" is if there was
a "collision resulting in injury to or the death of any person"
pursuant to HRS § 291E-21 (2020). By designating HRS § 291E-21
as the only exception to the mandate that "none shall be given,"
the legislature did so to the exclusion of other alternatives.
Fagaragan v. State, 132 Hawai#i 224, 242, 320 P.3d 889, 907
(2014) (explaining that "the canon of construction expressio
unius est exclusio alterius[] holds that 'to express or include
one thing implies the exclusion of the other, or of the
alternative'"). Notably, a search warrant was not an alternative
exception.
In addition to providing a specific exception to "none
shall be given," HRS chapter 291E sets forth the subsequent steps
a law enforcement officer must take should there be a refusal to
submit to a breath, blood, or urine test. After a refusal, "the
law enforcement officer shall complete and issue to the person a
notice of administrative revocation and shall indicate thereon
whether the notice shall serve as a temporary permit." HRS
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§ 291E-33(c). Thus, the legislature intentionally laid out
specific steps a law enforcement officer must follow regarding
OVUII testing, again, to the exclusion of alternatives.
Obtaining a search warrant was not one of these steps.
Similar to HRS § 291E-15, HRS § 291E-65 provides that
if a person under the age of twenty-one years who is "under
arrest for operating a vehicle after consuming a measurable
amount of alcohol, . . . refuses to submit to a breath or blood
test, none shall be given, except as provided in section 291E-
21[.]" HRS § 291E-65(a) (2020) (emphasis added); See HRS § 1-16
(2009) (providing that "[l]aws in pari materia or upon the same
subject matter, shall be construed with reference to each
other"). After a refusal to submit to testing, HRS § 291E-65
instructs that "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[,]" and that the district
judge shall hold a hearing within twenty days of receiving the
affidavit. HRS §§ 291E-65(a) and (b) (2020). Like HRS § 291E-
15, the language of HRS § 291E-65 provides that if there is a
refusal to submit to breath and blood testing, "none shall be
given" with only one exception, and provides specific steps for a
law enforcement officer to take following the refusal. This
section contemplates an affidavit for a judicial hearing, but
makes no mention of an affidavit for a judicial search warrant.
In sum, the legislature plainly provided for a right to
refuse to submit to testing, with notice to the person arrested
and specific procedures for the law enforcement officer to
follow. The legislature did not, however, provide for obtaining
a search warrant following an HRS § 291E-15 refusal.
To support its argument, the State relies on HRS
§§ 803-31 (Supp. 2019)4 and 803-32(5) (2014).5 However, a
4
HRS § 803-31 provides as follows:
A search warrant is an order in writing or issued
otherwise pursuant to section 803-33.5 made by a judge or
other magistrate, directed to an officer of justice,
commanding the officer to search for certain articles
supposed to be in the possession of, or anticipated to be in
the possession of, one who is charged with having obtained
(continued...)
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"search warrant can be granted in no case but on an affidavit
setting forth sufficient facts in the opinion of the magistrate
to justify the issuing of the warrant." HRS § 803-33 (2014). If
an affidavit seeks BAC testing for the purposes of HRS chapter
291E, but sets forth facts that a person refused testing under
HRS § 291E-15, a magistrate cannot justify issuing a warrant for
testing because under those facts HRS §§ 291E-15 and 65 mandate
that "none shall be given." And permitting a law enforcement
officer to apply for a search warrant following an HRS § 291E-15
refusal renders "none shall be given" a nullity and the notice
procedures an empty exercise. We cannot interpret statutes as
such because "repeal by implication is disfavored." State v.
Delima, 78 Hawai#i 343, 347, 893 P.2d 194, 198 (1995) (citation
and internal quotation marks omitted).
The State also relies on the Circuit Court's
interpretation of HRS § 291E-17 (2020) for the proposition that
it "implicitly approves use of a search warrant to obtain a blood
sample[.]" HRS § 291E-17 provides that Part II, entitled Testing
and Implied Consent, "shall not limit the introduction of any
other competent evidence bearing on the question of whether the
person was under the influence of an intoxicant or was operating
a vehicle while under the age of twenty-one and after consuming a
measurable amount of alcohol." (Emphasis added.) This section
speaks to the admission, not acquisition, of evidence. For
example, even if a person refuses testing, HRS § 291E-17
nonetheless permits the introduction of evidence such as the
testimony of a law enforcement officer as to his or her relevant
4
(...continued)
them illegally, or who keeps them illegally, or with the
intent of using them as the means of committing a certain
offense.
5
HRS § 803-32(5) provides as follows:
The power of granting this writ is one in the exercise
of which much is necessarily left to the discretion of the
magistrate, but, except in cases where this power is
elsewhere specially granted by statute, search warrants can
be granted only for the following purposes: . . . (5) To
discover articles necessary to be produced as evidence or
otherwise on the trial of any one accused of a criminal
offense.
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observations. No language in HRS § 291E-17, however, authorizes
a law enforcement officer to acquire a person's breath, blood, or
urine following a refusal.
Based on the foregoing, we hold that the Circuit Court
did not err in suppressing, for the purposes of HRS chapter 291E,
Higheagle's BAC test results from a blood draw performed pursuant
to a judicial search warrant obtained after Higheagle refused to
be tested under HRS § 291E-15. This holding is consistent with
the Hawai#i Supreme Court's determination that "a person may
refuse consent to submit to a BAC test, and the State must honor
that refusal." Won, 137 Hawai#i at 345, 372 P.3d at 1080; See
Won, 137 Hawai#i at 367-368, 372 P.3d at 1102-1103 (Nakayama, J.,
dissenting) (explaining that "[a]lthough the state may
undoubtedly compel an arrestee against his or her will to submit
to a blood draw if it obtains a warrant, Hawaii's implied consent
regime removes that possibility by requiring officers to honor
refusal").
Therefore, IT IS HEREBY ORDERED that the Circuit
Court's Findings of Fact and Conclusions of Law; Order Granting
Motion to Suppress Evidence, filed on October 27, 2020 is
affirmed.
DATED: Honolulu, Hawai#i, November 2, 2021.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Brandon M. Segal,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
County of Maui, Associate Judge
for Plaintiff-Appellant.
/s/ Sonja M.P. McCullen
Benjamin E. Lowenthal, Associate Judge
Deputy Public Defender,
for Defendant-Appellee.
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