State v. Shigemura

***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Electronically Filed Supreme Court SCWC-12-0000902 04-MAR-2016 08:17 AM

SCWC-12-0000902

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

STATE OF HAWAI#I,

Respondent/Plaintiff-Appellee, vs.

DERRICK Y. SHIGEMURA,

Petitioner/Defendant-Appellant.

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-12-0000902; CASE NO. 1DTA-11-05369)

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 Derrick Y. Shigemura seeks review of the Intermediate Court of Appeals’ (ICA) July 16, 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) October 2, 2012 Notice of Entry of Judgment and/or Order and Plea/Judgment (district court judgment).1 The district court found Shigemura 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 Shigemura’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, Shigemura was taken to the police station, where he was read an implied consent form.3 Shigemura elected to take a breath test, which resulted in a breath alcohol content reading of 0.105 grams of alcohol per 210 liters of breath. In his motion to suppress the breath test results before the district court and on certiorari, Shigemura 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 Shigemura of the sanctions.4 Shigemura also noted in his Application that this court had accepted certiorari in State v. Won, SCWC-12-858, and he contended that the court’s ruling in Won would “ultimately decide what happens in the present case.”

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 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. 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 Shigemura’s breath test was the product of a warrantless search, and the ICA erred by concluding that the district court properly denied Shigemura’s motion to suppress the breath test result. Accordingly, Shigemura’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, Hawai#i, March 4, 2016. Jonathan Burge /s/ Sabrina S. McKenna for petitioner

/s/ Richard W. Pollack Brian R. Vincent /s/ Michael D. Wilson for respondent