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Electronically Filed Supreme Court SCWC-13-0003479 04-MAR-2016 11:51 AM

SCWC-13-0003479

IN THE SUPREME COURT OF THE STATE OF HAWAII ________________________________________________________________

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

vs.

RICHARD C. REILLY, Petitioner/Defendant-Appellant. ________________________________________________________________

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0003479; CASE NO. 1DTA-13-00739)

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 Richard C. Reilly seeks

review of the Intermediate Court of Appeals’ (ICA) June 4, 2015

Judgment on Appeal, entered pursuant to its May 4, 2015 Summary

Disposition Order, which affirmed the District Court of the

First Circuit’s (district court) Notice of Entry of Judgment *** NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

and/or Order and Plea/Judgment entered on August 20, 2013.1 The

district court found Reilly guilty of Operating a Vehicle Under

the Influence of an Intoxicant (OVUII), in violation of Hawaiʻi

Revised Statutes (HRS) § 291E-61(a)(4) (Supp. 2012).2 We

accepted Reilly’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, Reilly was read an

implied consent form.3 Reilly elected to take a blood test,

1 The Honorable David W. Lo presided. 2 HRS § 291E-61(a)(4) provides in relevant part:

(a) 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:

. . .

(4) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood. . . . 3 The form, titled “Use of Intoxicants While Operating a Vehicle Implied Consent for Testing,” stated 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 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,

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which resulted in a blood alcohol content reading of 0.10 grams

of alcohol per 100 milliliters or cubic centimeters of blood.

In his motion to suppress the blood test results before the

district court and on certiorari, Reilly contends, inter alia,

that the blood test results were obtained based on his

involuntary consent in violation of the Fourth Amendment of the

United States Constitution and Article I, Section 7 of the

Hawaiʻi Constitution.

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 Won, the result of Reilly’s blood

test was the product of a warrantless search, and the ICA erred

in concluding that Reilly’s Fourth Amendment rights were not

violated. Accordingly, Reilly’s OVUII conviction cannot be

upheld.

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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IT IS HEREBY ORDERED that the ICA’s June 4, 2015

Judgment on Appeal and the district court’s Judgment are

vacated, and the case is remanded to the district court for

further proceedings consistent with this court’s opinion in

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

Robert T. Nakatsuji For amicus curiae Attorney General of the State of Hawaiʻi

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