State v. Shimkus

***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Electronically Filed Supreme Court SCWC-12-0000840 28-JAN-2016 01:59 PM

SCWC-12-0000840

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI ________________________________________________________________

STATE OF HAWAIʻI,

Respondent/Plaintiff-Appellee, vs.

ANDREW E. SHIMKUS, Petitioner/Defendant-Appellant.

________________________________________________________________

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-12-0000840; CASE NO. 1DTA-12-00225)

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 Andrew E. Shimkus seeks review of the Intermediate Court of Appeals’ (ICA) July 16, 2014 Judgment on Appeal, entered pursuant to its May 23, 2014 Summary Disposition Order, which affirmed the District Court of the First Circuit’s (district court) September 13, 2012 Notice of Entry of Judgment and/or Order and Plea/Judgment (district court judgment).1 The district court found Shimkus guilty of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaiʻi Revised Statutes (HRS) § 291E-61(a)(3) (Supp. 2010).2 This court accepted Shimkus’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, Shimkus was taken to the police station, where he was read an implied consent form.3 Shimkus elected to take a breath test, which resulted in a breath alcohol content reading of 0.178 grams of alcohol per 210 liters of breath. In his motion to suppress the breath test results before the district court and on certiorari, Shimkus contends that (1) his Miranda rights under Article I, Section 10 of the Hawaiʻi Constitution were violated when, while in custody, he was asked by the police, without Miranda warnings, if he wanted to refuse to take a blood alcohol test, which was likely to incriminate himself; (2) his statutory right to an attorney was violated; and (3) the wording of the implied consent form misinformed Shimkus of the sanctions.4

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 (. . . continued) 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 sanctions of 291E-65, if applicable. In addition, you shall also be subject to the procedures and sanctions under chapter 291E, part III. 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 Shimkus’s breath test was the product of a warrantless search, and the ICA erred by concluding that the district court properly denied Shimkus’s motion to suppress the breath test result. Accordingly, Shimkus’s OVUII conviction cannot be upheld.

IT IS HEREBY ORDERED that the ICA’s July 16, 2014 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, Hawaiʻi, January 28, 2016. Jonathan Burge /s/ Sabrina S. McKenna for petitioner

/s/ Richard W. Pollack Brian R. Vincent /s/ Michael D. Wilson for respondent Robert T. Nakatsuji for amicus curiae Attorney General of the State of Hawaiʻi