State v. Richardson

*** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Electronically Filed Supreme Court SCWC-12-0000775 02-MAR-2016 08:29 AM

SCWC-12-0000775

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Respondent/Plaintiff-Appellee, vs. MARK L. RICHARDSON, JR.,

Petitioner/Defendant-Appellant.

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-12-0000775; CASE NO. 1DTA-11-03535)

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 Mark L. Richardson, Jr. (Richardson) seeks review of the Intermediate Court of Appeals’s (ICA) June 8, 2015 Judgment on Appeal filed pursuant to its April 30, 2015 Summary Disposition Order (SDO). The ICA vacated the District Court of the First Circuit’s (district court) judgment due to a violation of Tachibana v. State and Hawai#i Rules of Penal Procedure (HRPP) Rule 48. The district court adjudged Richardson 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).1 We accepted Richardson’s application for writ of certiorari and now affirm the ICA’s Judgment on Appeal vacating the district court’s judgment, and the case is remanded to the district court.

After being arrested for OVUII, Richardson was taken to the police station, where he was read an implied consent form.2 Richardson then chose to take a breath test, which resulted in a breath alcohol content reading of 0.161 grams of alcohol per 210 of breath. On certiorari, Richardson 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, 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.” Following this decision, the result of Richardson’s breath test is the product of a warrantless search, and the ICA erred by concluding that the district court properly denied Richardson’s motion to suppress the breath test result.3

IT IS HEREBY ORDERED that: (1) the ICA’s judgment vacating the district court’s judgment is affirmed; and (2) the case is remanded to the district court for further proceedings consistent with our opinion in State v. Won.

DATED: Honolulu, Hawai#i, March 2, 2016. Richard L. Holcomb /s/ Sabrina S. McKenna for petitioner

/s/ Richard W. Pollack Stephen K. Tsushima for respondent /s/ Michael D. Wilson