State v. Gladman

*** NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER ***

Electronically Filed Supreme Court SCWC-13-0003478 15-JAN-2016 08:21 AM

SCWC-13-0003478

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee, vs. DAVID LEE GLADMAN,

Petitioner/Defendant-Appellant.

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-13-0003478; CASE NO. 1DTA-13-01011) 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 David Lee Gladman

(Gladman) seeks review of the Intermediate Court of Appeals’s (ICA) September 18, 2015 Judgment on Appeal filed pursuant to its August 17, 2015 Summary Disposition Order (SDO). The ICA affirmed the District Court of the First Circuit’s (district court) judgment.1 The district court adjudged Gladman 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 Gladman’s application for writ of certiorari and now vacate the ICA’s Judgment on Appeal and the district court’s judgment, and remand the case to the district court.

After being arrested for OVUII, Gladman was taken to the police station, where he was read an implied consent form.3 Gladman then chose to take a breath test, which resulted in a breath alcohol content reading of 0.119 grams of alcohol per 210 liters of breath. On certiorari, Gladman 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-68 (Supp. 2010).

In State v. Won, 136 Hawai'i 292, 361 P.3d 1195 (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.” Following this decision, the result of Gladman’s breath test is the product of a warrantless search, and the ICA erred by concluding that the district court properly denied Gladman’s motion to suppress the breath test result.4 Accordingly, Gladman’s OVUII conviction cannot stand.

IT IS HEREBY ORDERED that the ICA’s September 18, 2015 judgment on appeal affirming the district court’s August 22, 2013 judgment is vacated, and the case remanded to the district court for further proceedings consistent with our opinion in State v. Won.

DATED: Honolulu, Hawai'i, January 15, 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