State v. Severino

• Decision Date: 30 June 1975
• Docket Number: No. 5716,5716
• Citation: 537 P.2d 1187,56 Haw. 378
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. William SEVERINO, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1187

537 P.2d 1187

56 Haw. 378

STATE of Hawaii, Plaintiff-Appellee, v. William SEVERINO, Defendant-Appellant.

No. 5716.

Supreme Court of Hawai'i.

June 30, 1975.

Syllabus by the Court

1. A motorist is not entitled to consult with counsel before deciding to submit to the chemical tests prescribed by Hawaii's implied consent statute (HRS § 286-151).

2. A licensee is not entitled to Miranda warnings prior to being required to submit to the chemical tests prescribed by the implied consent statute.

3. Where the Miranda warnings are in fact given to a motorist, care must be taken to ensure he is not thereby misled as to his rights, or the absence thereof, under the implied consent law.

4. Where a motorist is advised contemporaneously of his Miranda rights and of the requirements and sanctions of the implied consent law, and is thereby misled into believing that the Miranda rights apply to implied consent proceedings, he has not 'refused to submit to a test of his breath or blood,' as that phrase is used in HRS §§ 286-155 and 286-156.

Philip H. Lowenthal, Deputy Public Defender, Wailuku, Maui, for defendant-appellant; Donald Tsukiyama, Public Defender, of counsel.

Steven R. Scott, Deputy County Atty., County of Maui, Wailuku, Maui, for plaintiff-appellee; Arthur T. Ueoka, County Atty., of counsel.

Before KOBAYASHI, Acting C. J., OGATA and MENOR, JJ., KAWAKAMI, Circuit Judge, in place of RICHARDSON, C. J., absent, and KATO, Circuit Judge, assigned by reason of vacancy.

MENOR, Justice.

This is an appeal from the judgment of the District Court, Second Circuit, revoking defendant-appellant's driving license for six months, pursuant to HRS §§ 286-155 and 286-156. ¹

The defendant was driving with his lights off in the early morning hours of July 6, 1974. He was stopped by police officers on patrol and arrested for the offenses of harassment, driving without lights, and operating a motor vehicle while under the influence of intoxicating liquor. He admittedly had been drinking prior to the incident.

Following his arrest, the defendant was taken to the police station where he was advised contemporaneously of his Miranda rights and of the requirements and the sanctions of the implied consent law. He thereafter refused to answer any questions or to take any test to determine the amount of alcohol present in his body, until he had been afforded an opportunity to talk to his lawyer. At no time was he explicitly informed that the Miranda rights had no application to the implied consent proceedings. The defendant was allowed to call his attorney about an hour after he arrived at the station house. But the police, deeming his earlier refusals sufficient for the invocation of the sanctions of the statute, made no further demands upon him to submit to examination.

The two issues presented on appeal are; 1) whether an operator of a motor vehicle arrested upon a charge of driving while under the influence of intoxicating liquor is entitled to consult with counsel before deciding to submit to the alcoholic content test mandated by the implied consent statute, and 2) whether the district judge properly found that the defendant refused to submit to a test of his breath or blood.

The constitutionality of Hawaii's implied consent law is not in dispute. The validity of such statutes has long been established. See Robertson v. State ex rel. Lester, 501 P.2d 1099 (Sup.Ct.Okl.1972) and cases cited therein.

Under both the Hawaii State and Federal Constitutions, an accused has the right to assistance of counsel 'in all criminal prosecutions.' U.S.Const. amend. VI; Hawaii Const. Art. 1, § 11. Actions taken under the implied consent law, however, are civil in nature, and hearings before a district judge, pursuant to statute, are in the nature of administrative proceedings. State v. Gustafson, 54 Haw. 519, 511 P.2d 161 (1973). Accordingly, a motorist is not entitled to consult with counsel before deciding to submit to the chemical test prescribed by the implied consent statute. Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971); Westmoreland v. Chapman, 268 Cal.App.2d 1, 74 Cal.Rptr. 363 (1968); Gottschalk v. Sueppel, 258 Iowa 1173, 140 N.W.2d 866 (1966); State v. Palmer, 291 Minn. 302, 191 N.W.2d 188 (1971); Rusho v. Johns, 186 Neb. 131, 181 N.W.2d 448 (1970); State v. Pandoli, 109 N.J.Super. 1, 262 A.2d 41 (1970); Robertson v. State ex rel. Lester, supra; Stratikos v. Dept. of Motor Vehicles, 4 Or.App. 313, 477 P.2d 237 (1970); Commonwealth v. Morris,218 Pa.Super. 347, 280 A.2d 658 (1971).

Neither is a licensee entitled to the Miranda warnings prior to being required to submit to the chemical tests prescribed by statute, inasmuch as the Miranda rights are not applicable to implied consent proceedings. Swenumson v. Iowa Dept. of Public Safety, 210 N.W.2d 660 (Sup.Ct.Iowa 1973). He is deemed by law to have given his prior consent. HRS § 286-151. Where the warnings, however, are in fact given to the motorist, care must be taken to ensure that he is not thereby misled as to his rights, or the absence thereof, under the implied consent statute. Swenumson v. Iowa Dept. of Public Safety, supra; State Dept. of Highways v. Beckey, 291 Minn. 483, 192 N.W.2d 441 (1971). A license to drive once having been issued, the motorist's right to it is not to be jeopardized by his failure to comprehend the nature of the proceedings against him. See generally, Bell v. Burson, 402 U.S. 735, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). In Beckey, the Minnesota court stated:

Where the interrogating officer undertakes to repeat Miranda warnings given by the arresting officer at the time of the arrest as well as to inform the person arrested of his rights and obligations under the implied-consent statute without at the same time making clear that his constitutional rights to counsel and to remain silent do not apply to the implied-consent statute, it is not unlikely that confusion will occur, resulting in the arrested person's being misled into believing that he may remain silent and that he is being offered the option to postpone his decision and the chemical test until he can consult an attorney. Where the responses of the arrested person upon being requested to submit to a chemical test indicate that he is asserting a...