State v. Sailola

***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed Supreme Court SCWC-13-0000002 26-FEB-2016 10:36 AM

SCWC-13-0000002

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Respondent/Plaintiff-Appellee, vs. REED W. SAILOLA,

Petitioner/Defendant-Appellant.

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-13-0000002; CASE NO. 1DTA-11-03671)

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 Reed W. Sailola seeks review of the July 2, 2015 Judgment on Appeal of the Intermediate Court of Appeals (ICA), entered pursuant to its May 29, 2015 Summary Disposition Order, which affirmed the December 6, 2012 Judgment of the District Court of the First Circuit (district court).1 The district court found Sailola 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 This court accepted Sailola’s application for writ of certiorari, and we now vacate the ICA’s Judgment on Appeal and the district court’s Judgment and remand the case to the district court for further proceedings.

After being arrested for OVUII, Sailola was taken to the police station, where he was read an implied consent form.3 Sailola elected to take a breath test, which resulted in a breath alcohol content reading of 0.117 grams of alcohol per 210 liters of breath. In his motion to suppress the breath test results before the district court and on certiorari, Sailola contends that (1) his Miranda rights under Article I, Section 10 of the Hawai#i 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 Sailola of the sanctions.4

In State v. Won, 136 Hawai#i 292, 312, 361 P.3d 1195, 1215 (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.” In accordance with Won, the result of Sailola’s breath test was the product of a warrantless search, and the ICA erred by concluding that the district court properly denied Sailola’s motion to suppress the breath test result. Accordingly, Sailola’s OVUII conviction cannot stand.

IT IS HEREBY ORDERED that the ICA’s July 2, 2015 Judgment on Appeal and the district court’s December 6, 2012 Judgment are vacated, and the case remanded to the district court for further proceedings consistent with this court’s opinion in Won.

DATED: Honolulu, Hawai#i, .February 26, 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