State v. Yong Shik Won, CAAP–12–0000858.
| Citation | 134 Hawai'i 59,332 P.3d 661 |
| Decision Date | 28 March 2014 |
| Docket Number | No. CAAP–12–0000858.,CAAP–12–0000858. |
| Court | Court of Appeals of Hawai'i |
| Parties | STATE of Hawai‘i, Plaintiff–Appellee, v. YONG SHIK WON, Defendant–Appellant. |
Jonathan Burge, Honolulu, for Defendant–Appellant.
Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu for Plaintiff–Appellee.
Robert T. Nakatsuji, Deputy Solicitor General, Department of the Attorney General for Amicus Curiae.
Defendant–Appellant Yong Shik Won (Won) was convicted of operating a vehicle under the influence of an intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E–61(a)(3) (Supp. 2013).1 A police officer, who observed Won speeding, pulled Won over and subsequently arrested him for OVUII. At the police station, an officer read the "implied consent" form to Won, and Won agreed to take a breath test, which revealed an alcohol concentration above the legal limit. The police did not provide Won with Miranda warnings2 before reading the implied consent form and obtaining his agreement to take the breath test.
Prior to trial, Won moved to suppress the results of his breath test. The District Court of the First Circuit (District Court) denied Won's motion to suppress and found him guilty of violating HRS § 291E–61(a)(3).3
On appeal, Won argues that the District Court erred in denying his motion to suppress. Prior to 2011, it was settled law that a person arrested for OVUII was not entitled to Miranda warnings or to consult with an attorney before the police asked whether the arrestee would submit to testing. State v. Severino, 56 Haw. 378, 537 P.2d 1187 (1975). Won, however, contends that in light of the Legislature's recent enactment of HRS § 291E–68, which beginning in 2011 made the refusal to submit to a breath, blood, or urine test a crime, the police were required to advise him of his Miranda rights before reading him the implied consent form and obtaining his decision on testing. Won argues that because the police failed to give him Miranda warnings, any statement he made in response to the reading of the implied consent form was inadmissible, and his breath test results should have been suppressed as the fruit of the Miranda violation.
In addition, Won argues that the results of his breath test should have been suppressed because the police violated his statutory right to an attorney under HRS § 803–9 (1993);4 misinformed him of his statutory right to an attorney; and misinformed him of the sanctions for refusing to submit to testing under the provisions of the current statutory scheme. Won further argues that in light of the United States Supreme Court's recent decision in Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), HRS § 291E–68 is unconstitutional; that because HRS § 291E–68 is unconstitutional, he was misinformed of the sanctions for refusing to submit to testing since the implied consent form referred to sanctions under HRS § 291E–68 ; and that based on McNeely, the police were required to obtain a search warrant before conducting his breath test.
For the reasons set forth below, we hold that Won was not subjected to interrogation for purposes of Miranda and that the police did not violate Won's Miranda rights in obtaining his decision on testing; that Won has not met his burden of showing that McNeely rendered HRS § 291E–68 unconstitutional; that Won does not prevail on his other arguments; and that the District Court did not err in denying Won's motion to suppress. Accordingly, we affirm Won's conviction.
The following facts are based on police reports and related exhibits, which the parties stipulated into evidence. On April 20, 2011, at about 3:15 a.m., Honolulu Police Department (HPD) Officer Vincent Gonzales (Officer Gonzales) observed Won traveling faster than the posted speed limit. Officer Gonzales paced Won going at about 55 miles per hour (mph) in a 35 mph zone and subsequently stopped Won's vehicle.
While speaking with Won, Officer Gonzales observed that Won had "red, watery, eyes[,]" and that he "emitted a strong odor of an alcoholic type beverage [.]" Officer Gonzales told Won that he "believed [Won] to be intoxicated" and asked Won to perform the Standardized Field Sobriety Tests (SFSTs), which Won agreed to perform. Won performed poorly on the SFSTs. Won agreed to take a Preliminary Alcohol Screening (PAS) test, which revealed a breath alcohol content of 0.176.5
Based on these observations, HPD Sergeant Albert Lee arrested Won and Officer Gonzales transported Won to the police station. At the police station, Sergeant Lee presented Won with a copy of a form entitled, "Use of Intoxicants While Operating a Vehicle Implied Consent for Testing" (Implied Consent Form), and read the form to him. Specifically, the Implied Consent Form provided:
(Emphasis added; formatting altered.)
Won initialed the first and third enumerated paragraphs of the Implied Consent Form, but did not initial the second paragraph, stating that he "[did] not agree" with it and was "not going to initial" it. Won initialed the portion of the form that stated that he "[a]greed to take a breath test and refused the blood test[,]" and he signed and dated the form. Won's breath test showed a breath alcohol concentration of 0.170 grams of alcohol per 210 liters of breath.
Plaintiff–Appellee State of Hawai‘i (State) charged Won by complaint with OVUII, in violation of HRS § 291E–61(a)(1) and (a)(3).6 The District Court granted Won's motion to dismiss the HRS § 291E–61(a)(1) portion of the charge, and therefore the State only proceeded to trial on the alleged HRS § 291E–61(a)(3) violation. Prior to trial, Won filed a suppression motion to preclude the State from introducing evidence of the results of his breath test. Won argued, that the results of his breath test should be suppressed because: (1) he was mislead and/or inadequately advised as to his rights surrounding the breath test; (2) his Miranda rights were violated; (3) his statutory right to consult with an attorney pursuant to HRS § 803–9 was violated; and (4) his consent to take the breath test was coerced.
The parties agreed that Won's suppression motion and trial would be decided on stipulated evidence, which included Won's police reports and related exhibits. The District Court denied Won's motion to suppress and found Won guilty of OVUII in violation of HRS § 291E–61(a)(3).7 The District Court sentenced Won to a fine of $500, a one-year revocation of his driver's license, 14 hours of substance abuse rehabilitation as well as substance abuse assessment and possible treatment, and various fees and assessments. The District Court entered its Judgment on September 20, 2012.
After Won had filed his opening brief, the United States Supreme Court issued McNeely, a decision relating to nonconsensual blood draws in OVUII cases. In light of McNeely, Won filed a motion for supplemental briefing. The State did not oppose Won's motion, which this court granted. Won and the State submitted supplemental briefs on the effect of McNeely on the instant case, and the Attorney General filed an amicus brief defending the constitutionality of Hawaii's implied consent law, set forth in HRS Chapter 291E. Oral argument was held on September 26, 2013.
"No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). In 2012, 10,322 people were killed nationwide in alcohol-impaired driving crashes. See National Highway Traffic Safety Administration (NHTSA), Traffic Safety Facts, 2012 Motor Vehicle Crashes: Overview (No. 811856, Nov. 2013), http://www-nrd. nhtsa.dot.gov/Pubs/811856.pdf. In Hawai‘i, there were 51 drunk driving fatalities in 2012, representing 41 percent of all traffic deaths for that year. Id.
"[A]ll 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC [ (blood alcohol concentration) ] testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense." McNeely, 133 S.Ct. at 1566. The Hawai‘i Legislature enacted our implied consent statute in 1967 to reduce deaths, injuries, and damages arising out of highway traffic accidents. See 1967 Haw. Sess. Laws Act 214, at § 1. In declaring its purpose in 1967 for enacting the implied consent statute, the Legislature stated:
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