State v. Lee

***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Electronically Filed Supreme Court SCWC-13-0005454 21-JAN-2016 08:27 AM

SCWC-13-0005454

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI ________________________________________________________________

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee, vs.

WAYNE LEE, SR.,

Petitioner/Defendant-Appellant.

________________________________________________________________

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-13-0005454; CR. NO. 12-1-0161) 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 Wayne Lee, Sr. seeks review of the Intermediate Court of Appeals’ (ICA) June 5, 2015 Judgment on Appeal, entered pursuant to its May 5, 2015 Summary Disposition Order, which affirmed the Circuit Court of the Third Circuit’s (circuit court) November 6, 2013 Judgment (circuit court judgment). 1 Lee entered a conditional plea to the charges of Habitually Operating a Vehicle Under the Influence of an Intoxicant (HOVUII), in violation of Hawaiʻi Revised Statutes (HRS) § 291E-61.5 (2007), 2 and of Driving While License Suspended or Revoked, in violation of HRS § 286-132 (2007). 3 We accepted Lee’s Application for Writ of Certiorari, and we now vacate the ICA’s Judgment on Appeal and the circuit court judgment as to both charges and remand the case to the circuit court for further proceedings.

After being arrested for HOVUII and Driving While License Suspended or Revoked, Lee was taken to the police station, where he was read an implied consent form. 4 Lee elected to take a breath test, which resulted in a breath alcohol content reading of 0.091 grams of alcohol per 210 liters of breath. Lee filed a motion to suppress evidence of the breath test based on, inter alia, a violation of the Fourth Amendment of the United States Constitution, which the circuit court denied. Lee subsequently entered a conditional guilty plea as to both charges that allowed him to appeal the denial of his motion to suppress the breath alcohol test. The ICA affirmed the circuit court’s denial of the motion to suppress.

On certiorari, Lee contends, inter alia, that he did not constitutionally consent to the breath test under the Fourth Amendment of the United States Constitution or Article I, Section 7 of the Hawaiʻi Constitution 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).

In State v. Won, 136 Hawaiʻi 292, 312, 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 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 Lee’s breath test was the product of a warrantless search, and the ICA erred by concluding that the circuit court properly denied Lee’s motion to suppress the breath test result. Accordingly, Lee’s conviction as to both charges cannot be upheld.

IT IS HEREBY ORDERED that the ICA’s June 5, 2015 Judgment on Appeal and the circuit court judgment are vacated, and the case is remanded to the circuit court with instructions to enter an order granting Lee’s motion to suppress and to allow Lee to withdraw his conditional guilty plea as to both charges. See State v. Williams, 114 Hawaiʻi 406, 407, 163 P.3d 1143, 1144 (2007).

DATED: Honolulu, Hawaiʻi, January 21, 2016. Taryn R. Tomasa /s/ Sabrina S. McKenna for petitioner

/s/ Richard W. Pollack Kevin S. Hashizaki /s/ Michael D. Wilson for respondent