State v. Guard

*** NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Electronically Filed Supreme Court SCWC-12-0001072 01-APR-2016 10:12 AM

SCWC-12-0001072

IN THE SUPREME COURT OF THE STATE OF HAWAII

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

KEVIN K.T. GUARD, Petitioner/Defendant-Appellant.

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CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-12-0001072; CASE NO. 1DTA-11-05472)

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 Kevin K.T. Guard seeks review of the Intermediate Court of Appeals’ (ICA) July 2, 2015 Judgment on Appeal, entered pursuant to its May 29, 2015 Summary Disposition Order, which affirmed the District Court of the First Circuit’s (district court) Notice of Entry of Judgment and/or Order and Plea/Judgment entered on November 15, 2012.1 The district court found Guard guilty of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaiʻi Revised Statutes (HRS) § 291E-61(a)(3) (Supp. 2012).2 We accepted Guard’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, Guard was taken to the police station, where he was read an implied consent form.3 Guard elected to take a breath test, which resulted in a breath alcohol content reading of 0.184 grams of alcohol per 210 liters of breath. In his motion to suppress the breath test results before the district court and on certiorari, Guard contends that (1) he was subject to custodial interrogation and should have been informed of his Miranda rights guaranteed by Article I, Section 10 of the Hawaiʻi Constitution; (2) his statutory right to an attorney was violated; and (3) the wording of the implied consent form misinformed Guard of the sanctions.4

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 Guard’s breath test was the product of a warrantless search, and the ICA erred 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. by concluding that the district court properly denied Guard’s motion to suppress the breath test result. Accordingly, Guard’s OVUII conviction cannot be upheld.

IT IS HEREBY ORDERED that the ICA’s July 2, 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, April 1, 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 Hawaiʻi