State v. Scalera
| Decision Date | 21 April 2017 |
| Docket Number | SCWC-14-0001060 |
| Citation | 393 P.3d 1005 |
| Parties | STATE of Hawai'i, Respondent/Plaintiff-Appellee, v. John G. SCALERA, Petitioner/Defendant-Appellant |
| Court | Hawaii Supreme Court |
William H. Jameson, Jr. for petitioner.
James M. Anderson, Honolulu, for respondent.
This case concerns the right of an arrested person under statutory law to communicate and consult with counsel. The defendant in this case, following his arrest for operating a vehicle under the influence of an intoxicant and prior to deciding whether to submit to alcohol concentration testing, was affirmatively advised that he was not entitled to an attorney before submitting to any tests to determine his breath or blood alcohol concentration. We hold that this advisory is inconsistent with Hawai'i's statutory right to access counsel, but we conclude under the facts of this case that the defendant's subsequent refusal to submit to testing is not subject to suppression.
On June 28, 2013, at about 11:00 p.m., John Scalera was stopped while driving westbound on Kailua Road by Honolulu Police Department (HPD) Officers Lordy Cullen and Michael Krekel for weaving back and forth over the roadway's solid and broken white lines. Officer Cullen informed Scalera why he had stopped him, and Scalera responded that he had consumed "a few drinks with his friends," was travelling home, and was "good to drive." Officer Cullen detected a strong odor of alcohol emitting from Scalera's breath and noticed that Scalera was "flushed red in his face." Officer Krekel administered the standardized field sobriety test to Scalera. Based on the test results, Scalera was arrested and transported to the Kailua Police Station.
After being booked by the desk sergeant at the station, Officer Krekel read to Scalera HPD Form 396K, titled "Use of Intoxicants While Operating a Vehicle Implied Consent for Testing" (implied consent form). The top half of the implied consent form stated as follows:
(Emphasis added). Scalera initialed each of the three paragraphs located in the top portion of the implied consent form.
The bottom half of the implied consent form set forth the following types of tests to which a defendant could consent:
After Officer Krekel read aloud the four testing options, Scalera stated that he "wasn't going to take anything," which Officer Krekel understood to "count [ ] as a refusal." On the form next to these options, Officer Krekel wrote "refused to initial." At this point, Officer Krekel repeated to Scalera that his options were to (1) take a breath test and refuse the blood test, (2) take a blood test and refuse the breath test, (3) take both the breath test and blood test, or (4) refuse both the breath test and the blood test. Upon asking Scalera if he understood, Scalera again verbally responded, "I'm not taking anything."
Officer Krekel then read to Scalera HPD Form 396B-1, titled "Sanctions for Use of Intoxicants While Operating a Vehicle & Im ." plied Consent for Testing" (sanctions form).1 After reading the sanctions form to Scalera, Officer Krekel initialed next to the various sections that Scalera "refused to initial and also sign." Officer Krekel asked Scalera if he understood what was read to him from the sanctions form, and Scalera did not respond. When Officer Krekel informed Scalera that his refusal to sign constituted a refusal to submit to testing, Scalera asked Officer Krekel to go over the sanctions form from the first to the last page.2 Officer Krekel handed Scalera the sanctions form, but according to Officer Krekel, Scalera "didn't want to take a test so that also constituted a refusal."
Officer Krekel did not hear Scalera ask for an attorney. Officer Krekel noted, however, that Scalera "could have" asked for an attorney, but that he did not "recall [Scalera] saying that." Officer Krekel stated that "[i]t wouldn't have mattered anyways because the forms state that you're not entitled to an attorney during the implied consent."
On July 1, 2013, the State of Hawai'i filed a written complaint in the District Court of the First Circuit, Kaneohe Division (district court), charging that on June 28, 2013, John Scalera committed the offense of operating a vehicle under the influence of an intoxicant (OVUII) in violation of Hawai'i Revised Statutes (HRS) § 291E-61(a)(1)3 (count 1) and the offense of refusal to submit to a breath, blood, and/or urine test in violation of HRS § 291E-684 (count 2). If convicted of the OVUII charge, Scalera was subject to sentencing as a first-time offender pursuant to HRS § 291E-61(b)(1) (Supp. 2012).
Prior to trial, Scalera filed a motion to suppress seeking to preclude the use of "all evidence indicating that, on or about June 28, 2013, [Scalera] was operating a vehicle under the influence of an intoxicant ... and refused to submit to testing." Scalera alleged that this evidence was obtained in violation of his rights, citing article I, section 7 of the Hawai'i Constitution, the Fourth and Fourteenth Amendments to the United States Constitution, and HRS §§ 291E-11(b) (2007), 291E-15 (2007), and 803-9 (1993).5
In a memorandum in support of his motion, Scalera argued that evidence in his case should be suppressed because he was "preemptively and illegally denied" the right to consult with counsel as provided by HRS § 803-9. Specifically, Scalera alleged that the implied consent form "provides an overbroad and incorrect statement of law that no right to counsel exists prior to making an informed consent decision, thereby ignoring the rights afforded to [Scalera] under HRS § 803-9." Scalera contended that because he was denied a reasonable opportunity to consult with an attorney, he did not make a knowing and intelligent decision with regard to his informed consent options. Scalera did not base the arguments in his memorandum on any provisions of the Hawai'i Constitution or the United States Constitution or contend that he had been unlawfully stopped or interrogated by police.
In its opposition memorandum, the State contended that Scalera had no statutory right to consult with counsel under HRS § 803-9 prior to making his decision to refuse or submit to testing, citing State v. Severino , 56 Haw. 378, 380, 537 P.2d 1187, 1189 (1975). The State submitted that reading the implied consent form and administering breath or blood tests are "in the nature of a booking procedure," and therefore, a defendant does not have any right to counsel during this time. The State also maintained that the implied consent form had already "adequately informed" Scalera of the consequences of his refusal.
An evidentiary hearing was held on Scalera's motion.6 At the conclusion of the hearing, the district court denied Scalera's motion to suppress.7 In its oral ruling, the court stated that it viewed the motion in large part based upon a "defendant's right to counsel" under HRS § 803-9. The court determined there was no violation of HRS § 803-9 because it was not an "interrogation situation." The court also concluded that Scalera understood his rights and the information on the implied consent form and the sanctions form, and thus the court found that Scalera understood the consequences of his decisions. The district court in its ruling did not address or make any findings of fact or conclusions of law regarding the traffic stop.
Following a trial at which Scalera and several HPD officers testified,8 the district court concluded that the State had proved beyond a reasonable doubt the OVUII offense charged in count 1 and the refusal offense charged in count 2. On July 22, 2014, the district court entered its Notice of Entry of Judgment and/or Order and Plea/Judgment (district court judgment).9
Scalera appealed the district court judgment to the Intermediate Court of Appeals (ICA), arguing that the court had erred in failing to determine in its motion to suppress ruling whether the traffic stop was unlawful. Scalera also contended that the court had erred in denying his motion to suppress. Specifically, Scalera maintained that his statutory right to counsel under HRS § 803-9 had been violated and that the district court had erred in concluding otherwise. He also contended that the district court had erroneously concluded that he was not subject to an interrogation implicating his Miranda rights.10 In an...
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