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Electronically Filed Supreme Court SCWC-13-0000410 23-FEB-2016 08:24 AM SCWC-13-0000410

IN THE SUPREME COURT OF THE STATE OF HAWAII

STATE OF HAWAII, Respondent/Plaintiff-Appellee,

vs.

ELIAS A.M. PARKER, Petitioner/Defendant-Appellant.

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0000410; CASE NO. 1DTA-11-04895)

SUMMARY DISPOSITION ORDER (By: McKenna, Pollack, and Wilson, JJ., with Wilson, J., concurring separately, and Nakayama, J., dissenting, with whom Recktenwald, C.J., joins)

Petitioner/Defendant-Appellant Elias A.M. Parker seeks

review of the Intermediate Court of Appeals’ (“ICA”) September

2, 2014 Judgment on Appeal, entered pursuant to its May 28, 2014

Summary Disposition Order, which affirmed the District Court of

the First Circuit’s (“district court”) March 19, 2013 Judgment

of Guilty Conviction and Sentence (“district court judgment”).1

The district court found Parker guilty of Operating a Vehicle

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Under the Influence of an Intoxicant (“OVUII”), in violation of

Hawaii Revised Statutes (“HRS”) § 291E-61(a)(3) (Supp. 2010).2

We accepted Parker’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, Parker was taken to

the police station, where he was read an implied consent form.3

Parker elected to take a breath test, which resulted in a breath

alcohol content reading of 0.162 grams of alcohol per 210 liters

2 HRS § 291E-61(a)(3) (Supp. 2010) provides in relevant part:

A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle: . . . [w]ith .08 or more grams of alcohol per two hundred ten liters of breath. . . . 3 The form read in relevant part:

1. ___ 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 persons [sic] breath, blood or urine as applicable.

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

3. ___ You may refuse to submit to a breath or blood 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, none shall be given [sic], except as provided in section 291E-21. However, if you refuse to submit 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.

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of breath. Parker filed a motion to suppress the breath test

results, arguing that he did not knowingly or voluntarily

consent to breath or blood testing. The district court denied

the motion. The ICA affirmed the district court’s denial of

this motion to suppress. On certiorari, Parker contends, inter

alia, that he did not constitutionally consent to the breath

test because “[t]elling someone that [he or she] must consent to

a 4th Amendment search or face 30 days in jail simply is not

consent under the 4th Amendment.”

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

Parker’s breath test was the product of a warrantless search,

and the ICA erred by concluding that the district court properly

denied Parker’s motion to suppress the breath test result.

Accordingly, Parker’s OVUII conviction cannot stand.

IT IS HEREBY ORDERED that the ICA’s September 2, 2014

Judgment on Appeal and the district court judgment are vacated,

and the case is remanded to the district court for further

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proceedings consistent with this court’s opinion in State v.

Won.

DATED: Honolulu, Hawaii, February 23, 2016.

Jonathan Burge /s/ Sabrina S. McKenna for petitioner /s/ Richard W. Pollack Brian R. Vincent for respondent /s/ Michael D. Wilson

Robert Nakatsuji for amicus curiae Attorney General of the State of Hawaii

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