Rossell v. City and County of Honolulu, 6160

• Decision Date: 10 May 1978
• Docket Number: No. 6160,6160
• Parties: Michael C. ROSSELL, Plaintiff-Appellee, v. CITY AND COUNTY OF HONOLULU, Defendant-Appellant. Michael C. ROSSELL, Plaintiff-Appellee, v. Officer Gregory L. CHURCH, Officer William Perreira, and Dr. Edwin Adams, Defendants-Appellants.
• Court: Hawaii Supreme Court

Page 663

579 P.2d 663

59 Haw. 173

Michael C. ROSSELL, Plaintiff-Appellee, v. CITY AND COUNTY OF HONOLULU, Defendant-Appellant.

Michael C. ROSSELL, Plaintiff-Appellee, v. Officer Gregory L. CHURCH, Officer William Perreira, and Dr.

Edwin Adams, Defendants-Appellants.

No. 6160.

Supreme Court of Hawai'i.

May 10, 1978.

Syllabus by the Court

1. The implied consent statute represents an additional or alternative method of compelling a person arrested for driving while under the influence of intoxicating liquor to submit to a chemical test for intoxication, by providing that such person will lose his automobile driver's license for a period of six months if he refuses to submit to a test for intoxication.

2. Although Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), holds that there is no Constitutional impediment to the forcible removal by the state of a blood sample from a person arrested for driving while intoxicated, despite the person's refusal to consent to the blood test, the state is free to use the threat of revocation of the driver's license to encourage submission to the blood test as an alternative to the use of force to secure evidence of intoxication.

3. In order to promote the statutory purpose of encouraging submission to chemical sobriety testing without resort to physical force on the part of the police, it is essential that the police refrain from imposing the tests when the arrested driver refuses to submit to such tests.

4. Jury instruction which was likely to mislead or confuse the jury was properly refused by the trial court.

5. In view of the requirement expressed in HRS § 286-155 (1976 Repl.) that if an arrested driver refuses to submit to a chemical sobriety test, no such test shall be given, the securing of a blood sample from such an arrestee who refuses to submit cannot be upheld as merely incident to a lawful arrest.

6. When, in violation of HRS § 286-155 (1976 Repl.), blood was taken by the police from a person arrested for driving while under the influence of intoxicating liquor despite the arrested person's refusal to submit to such a blood test, a battery was committed for which the arrested driver was entitled to recover damages in a civil suit.

7. HRS § 286-154 (1976 Repl.), which provides that the consent implied on the part of a driver to submit to a chemical test for intoxication "shall not be withdrawn by reason of his being dead, unconscious, or in any other state which renders him incapable of consenting to examination," applies only where the arrestee is absolutely incapable of manifesting, through words, acts, overall conduct or any other means, his willingness or unwillingness to submit to a test for intoxication.

8. To support a proper instruction, there must be sufficient evidence presented on that issue.

9. Generally, where evidence has been obtained in violation of a statute, that evidence is not inadmissible per se in a criminal proceeding unless the statutory violation has Constitutional dimensions.

10. A decision in a criminal proceeding regarding the Constitutional propriety of admission of evidence obtained in violation of a statute ordinarily involves issues which are separate and distinct from those involved in a determination of civil liability for failure to comply with the requirements of that statute.

Richard D. Wurdeman, Deputy Corp. Counsel, Honolulu, for defendants-appellants.

Francis O'Brien and David C. Schutter, Honolulu (Schutter, Levinson & O'Brien, Honolulu of counsel), for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

OGATA, Justice.

This appeal raises questions concerning Hawaii's "implied consent" statute, HRS Chapter 286, Part VII (1976 Repl.). On November 28, 1975, judgment was entered in favor of plaintiff-appellee Michael C. Rossell (hereinafter appellee) for damages stemming from, inter alia, the failure of defendants-appellants (hereinafter appellants) to comply with a provision of the implied consent statute.

Appellants primarily contest the trial court's determinations regarding certain jury instructions relating to the administration of blood alcohol tests upon a suspected drunken driver. We are of the opinion that the trial court's decisions were not erroneous, and we consequently affirm the judgment entered by the court below.

During the late evening hours of March 25, 1972, appellee was stopped and placed under arrest by appellant Police Officer Gregory L. Church for driving while under the influence of alcohol. Appellee was advised of his Miranda rights and was transported to the Honolulu Police Station (Pawaa Annex). At the station, the various provisions of the implied consent statute were explained to appellee. Pursuant to HRS § 286-151 (1976 Repl.), appellee was informed of the possibility of revocation of his driver's license if he refused to submit to either a breath or blood test for purposes of determining the alcoholic content of his blood. Appellee was then asked to sign a sobriety test consent form.

The remainder of the events which transpired at the police station are in considerable dispute. Appellant Church testified that although appellee refused to sign the sobriety test consent form, he finally elected to take the blood test. Appellee was then taken to the emergency medical facility in the police station, where appellant Dr. Edwin Adams was stationed. Upon arriving at the medical facility, appellee immediately questioned appellant Adams' identity and qualifications as a medical doctor. Adams testified that he showed appellee a wallet-sized card which identified him as a physician licensed to practice medicine in this State.

Appellee, on the other hand, testified that he never agreed to submit to any breath or blood test but had only asked for more information regarding what those tests involved. He stated that as he was being escorted to the medical facility, he was under the impression that he was being taken there for purposes of consulting with someone who could provide him with more information about the tests. Appellee further testified that he was unable to clearly view the information on the identification card presented by Dr. Adams and was unconvinced as to Adams' medical qualifications.

Appellant Church testified that after viewing Adams' identification card, appellee began to yell and scream and would not remain seated in his chair. Appellant Police Officer William Perreira, who was present with appellee and appellant Church in the medical facility, also testified that appellee became unruly and "was very loud." According to Perreira, appellee continued to be "loud" and disorderly and eventually knocked over a tray containing some medical instruments. Appellee then allegedly pushed Perreira, at which time Perreira applied a "choke hold" on appellee and rendered him unconscious.

According to appellee, however, the overall attitude and demeanor of Adams and the two officers led him to believe that he was being rushed into submitting to a blood test. He thus began to talk in an excited manner while moving his hands about in order to indicate that he did not want to take any test at all. He denied having yelled or having acted in any other manner to "cause a commotion". He stated that one of the policemen simply put his arms around his neck and choked him into unconsciousness. When he regained consciousness, he was laying on his back on the floor and there was a Band-Aid on his arm near the right elbow.

According to appellants Adams, Church and Perreira, shortly after Perreira applied the choke hold on appellee, Dr. Adams withdrew a blood sample from appellee's arm for purposes of conducting a blood-alcohol test. However, appellants stated that appellee had in fact regained consciousness and was seated passively at the time that the blood sample was taken by Dr. Adams.

Appellee also complained of a subsequent incident in which he was choked unconscious at the receiving desk area of the police station by an unknown police officer. When he regained consciousness after this incident, he was allegedly stripped of all his clothing by the police officers and was dragged by his feet to a nearby holding cell. ¹ He was later released and was treated by private physicians for head and neck pains.

On June 27, 1972, appellee was convicted in district court of the offense of driving under the influence of intoxicating liquor. ² At that trial, the district court denied appellee's motion to suppress the results of the blood test which had been administered at the police station. ³

Appellee filed the instant civil complaints, which were consolidated in 1974, against appellants for injuries sustained as a result of the incidents which took place on March 25, 1972, at the police station. ⁴ After a three-day trial held in November, 1975, the jury returned a verdict of $15,000 in general damages and $123.76 in special damages (the stipulated amount of appellee's medical expenses) against appellant City and County of Honolulu, $10,000 in punitive damages against appellant Adams, $3,000 in punitive damages against appellant Perreira, and $2,000 in punitive damages against appellant Church. Judgment was duly entered pursuant to this verdict.

I.

Appellants allege several grounds of error. Their underlying contention is that they were lawfully entitled under the circumstances of this case to administer the blood test to appellee for purposes of determining the alcoholic content of his blood. Appellants thus maintain that the trial court's refusal to give instructions to that effect to the jury constituted reversible error.

Appellants first argue that the trial court erred in refusing to give Defendants' Instructions No. 5 and No. 6 to the jury. Defendants' Instruction No. 5 would have told the jury that the withdrawal of a blood sample from an individual at the direction of a police officer, despite the individual's...