IN THE SUPREME COURT OF THE STATE OF HAWAI`I
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STATE OF HAWAI`I, Plaintiff-Appellant, vs. EDWARD BAILEY WILSON, JR., Defendant-Appellee
NO. 21707
APPEAL FROM DISTRICT COURT, SECOND CIRCUIT
(CASE NOS. TR70-71: 5/29/98)
October 28, 1999
MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, AND RAMIL, JJ.
OPINION OF THE COURT BY KLEIN, J.
This appeal arises from the criminal prosecution of defendant-appellee Edward Bailey Wilson, Jr. (Wilson) for, inter alia, driving under the influence of intoxicating liquor (DUI). Plaintiff-appellant State of Hawai`i (the prosecution) appeals from the June 25, 1998 order of the district court of the second circuit granting Wilson's motion to suppress the results of the blood alcohol test taken after his arrest on November 10, 1997. On appeal, the prosecution argues that the district court erred in suppressing the blood test results because: (1) sanctions under the administrative driver's license revocation law do not apply in criminal DUI proceedings; and (2) Wilson validly consented to a blood alcohol test insofar as the arresting officer's statement expressly warned Wilson of the possibility of criminal prosecution.
Because the information conveyed to Wilson regarding his rights under Hawai`i Revised Statutes (HRS) chapter 286 was inaccurate and misleading, we hold that Wilson was precluded from making a knowing and intelligent decision whether or not to submit to the evidentiary blood alcohol test, in violation of HRS chapter 286. Accordingly, we affirm the district court's order granting Wilson's motion to suppress the blood test results in his criminal DUI prosecution. I. BACKGROUND
On December 5, 1997, Wilson was charged by criminal complaint with one count of DUI, in violation of HRS § 291-4 (1993). (1) The complaint also charged Wilson with one count of disregarding longitudinal traffic markings, in violation of HRS § 291C-38 (1993).
On March 13, 1998, Wilson filed a motion to suppress the results of the blood test that he took after his arrest on November 10, 1997. On May 29, 1998, the district court heard the motion. Wilson, through his attorney, stated that "for the purposes of the facts of this case, [the prosecution] and I are going to stipulate that we believe the arresting officer in this case read the sanctions under [HRS] chapter 286 as stated in the form that they use." That "form," the "sworn statement of arresting officer," issued by the state Administrative Driver's License Revocation Office (ADLRO), reads in relevant part: (2)
Pursuant to the Administrative Driver License Revocation Law, I must inform you (arrestee) of the following:
a. That you may take either a blood test or breath test or both;
b. That if you refuse to take any tests the consequences are as follows: (1) if your driving record shows no prior alcohol enforcement contacts during the five years preceeding [sic] the date of arrest, your driving privileges will be revoked for one year instead of the three month revocation that would apply if you chose to take the test and failed it[; and]
c. That criminal charges under Sec. 291-4 HRS, may be filed[.]
(Emphasis added.)
In his motion, Wilson objected to the representation in the arresting officer's statement that a person who consented to the blood test and failed it would have his or her driving privileges revoked for only three months. Citing our decision in Gray v. Administrative Director of the Court, 84 Hawai`i 138, 931 P.2d 580 (1997), Wilson pointed out that, as someone who consented to the test and failed it, he in fact faced the possibility of revocation of his driving privileges under HRS § 286-261(b) (Supp. 1998) (3) anywhere from three months to one year. (4) Therefore, insofar as the arresting officer misstated the legal consequences of consent, Wilson argued that "[his] consent was not freely given and his constitutional rights to due process of law have been violated. The taking of his blood constitutes an unlawful search and the results of the test must be suppressed."
At the hearing, the district court granted Wilson's motion. The hearing transcript reads in relevant part:
THE COURT:. . . [W]hat we're talking about here is the matter of the possibility that he could take the test, fail it, and still get a year, which is a possibility under the law. Am I correct there, [defense counsel]?
[DEFENSE COUNSEL]:Yes, Your Honor. That's what Gray says.
THE COURT:All right. That being the case, I don't think he was properly advised. I'm going to grant the motion.
The court's order, filed on June 25, 1998, states in relevant part:
1.Defendant was erroneously advised of the sanctions under Part XIV (H.R.S., Chapter 286-251 et. seq.) by the arresting officer.
2.Defendant's consent for a test of his blood was therefore not obtained.
3.The blood test result of Defendant's blood is hereby suppressed for use as evidence in this case.
The prosecution timely appealed.
II. STANDARD OF REVIEW
We review a circuit court's findings of fact in a pretrial ruling according to the following standard:
Appellate review of factual determinations made by the trial court deciding pretrial motions in a criminal case is governed by the clearly erroneous standard. A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made.
State v. Okumura, 78 Hawai`i 383, 392, 894 P.2d 80, 89 (1995) (citations and internal quotation marks omitted). "The circuit court's conclusions of law are reviewed under the right/wrong standard." State v. Pattioay, 78 Hawai`i 455, 459, 896 P.2d 911, 915 (1995) (citation omitted). Furthermore,
in a case such as the one at bar, the proponent of a motion to suppress has the burden of establishing not only that the evidence sought to be excluded was unlawfully secured, but also, that his [or her] own Fourth Amendment rights were violated by the search and seizure sought to be challenged.
State v. Abordo, 61 Haw. 117, 120-21, 596 P.2d 773, 775 (1979) (citation and footnote omitted). The proponent of the motion to suppress must satisfy this "burden of proof by a preponderance of the evidence [.]" Pattioay, 78 Hawa`i at 466, 896 P.2d at 922 (citation omitted).
State v. Anderson, 84 Hawai`i 462, 466-67, 935 P.2d 1007, 1011-1012 (1997) (emphases omitted).
III. DISCUSSION
A. Because The Arresting Officer Inadequately Advised Wilson of the Applicable Administrative Penalties Under HRS chapter 286, Wilson Did Not Knowingly and Intelligently Consent to a Blood Test, in Violation of HRS chapter 286.
The prosecution argues that the district court erred in suppressing Wilson's blood alcohol test results because (1) sanctions under ADLRO do not apply in criminal DUI proceedings; and (2) Wilson voluntarily and intelligently consented to the blood test insofar as the arresting officer's statement warned Wilson of the possibility of criminal prosecution. With respect to both contentions, we disagree.
Under HRS § 286-151(a) (Supp. 1998), (5)
[a]ny person who operates a motor vehicle . . . on the public highways of the State shall be deemed to have given consent, subject to this part, to a test or tests . . . of the person's breath, blood, or urine for the purpose of determining alcohol concentration or drug content of the person's breath, blood, or urine[.]"
(Citation omitted.) Under this "implied consent" scheme, when a person is arrested for violation of HRS § 291-4, the arresting officer must, inter alia, "take possession of any license held by the person and request the arrestee to take a test for concentration of alcohol in the blood." HRS § 286-255(a) (Supp. 1998). (6) Upon informing the arrestee of his or her choice of taking a breath test, blood test, or both, "[t]he arresting officer shall also inform the person of the sanctions under this part, including the sanction for refusing to take a breath or a blood test." See id. (emphasis added). HRS § 286-151 likewise requires that "the test or tests shall be administered . . . only after . . . [t]he person has been informed by a police officer of the sanctions under part XIV and sections 286-151.5 and 286-157.3." (Emphasis added.) Thus, as the statutory language makes clear, a driver's "implied consent" to an evidentiary chemical alcohol test is qualified by his or her implied right to refuse such a test after being accurately informed of his or her statutory right to consent or refuse, as well as the consequences of such consent or refusal.
HRS § 286-261(b) specifies the applicable periods of time an arrestee's license may be administratively revoked upon the arrestee's consent to a blood alcohol test. See supra note 4. In Gray, supra, we held that HRS § 286-261(b) grants the ADLRO the discretion to increase the minimum periods of administrative revocation for "non-refusing" arrestees. Id. at 160, 931 P.2d at 602. This discretionary authority under HRS § 286-262(b) is "capped" by the mandatory periods of revocation for "refusing" arrestees under HRS § 286-261(c). Id. at 160-61, 931 P.2d at 602-03. Thus, if an arrestee with no prior alcohol enforcement contacts during the five years predating the date of arrest consents to a blood test and fails, he or she may face revocation of his or her driving privileges from three months up to one year. See HRS §§ 286-261(b)(1) and (c).
Among other things, our implied consent statute is intended to provide an efficient means of gathering evidence of intoxication. See Rossell v. City and County of Honolulu, 59 Haw. 173, 181, 579 P.2d 663, 669 (1978). The statutory scheme, however, also protects the rights of the driver in that he or she may withdraw his or her consent before a test is administered. To this end, Hawai`i's implied consent scheme mandates accurate warnings to enable the driver to knowingly and intelligently consent to or refuse a chemical alcohol test. (7) See Miller v. Tanaka, 80 Hawai`i 358, 368, 910 P.2d 129, 139 (App. 1995) ("The ADLRO has a duty to provide clear information regarding both the administrative and criminal proceedings faced by a defendant.") (Quoting State v. Feldhacker, 76 Hawai`i 354, 357, 878 P.2d 169, 172 (1994) (citing HRS § 286-254(a)(2)-(3)).). See also Keefe v. Dept. of Licensing, 731 P.2d 1161, 1164 (Wash. App. 1987) ("The underlying purpose of the implied consent statute [is to provide] the automobile operator the opportunity of exercising an intelligent judgment concerning whether to exercise the statutory right of refusal.") (Quoting State v. Whitman County Dist. Court, 714 P.2d 1183, 1185 (Wash. 1986)); Gonzales v. State, 774 P.2d 1187, 1191 (Wash. 1989) (accurate warnings mandated by the implied consent statute "must be given in order to afford the driver the opportunity to make a knowing and intelligent decision."); State v. Terry, 511 S.E.2d 608, 611 (Ga. App. 1999) ("if the defendant is misled or misinformed as to his rights, his ability to make an informed decision would be impaired"); State v. Bartels, 774 P.2d 1183, 1184 (Wash. 1989) ("the statutory requirement demonstrates an important protection of the subject's right to fundamental fairness which is built into our implied consent procedure") (citation omitted). The relevant inquiry in this case, therefore, is whether the warnings given by the arresting officer afforded Wilson the opportunity to make a knowing and intelligent decision whether to take an evidentiary blood alcohol test.
Other jurisdictions faced with this issue have established, in varying forms, the basic principle that, where a change in wording of the implied consent warnings operates to convey a different meaning than that specified in the statute, the driver cannot be held to have made a knowing and intelligent decision whether to submit to an evidentiary alcohol test. See Cooper v. Dept. of Licensing, 810 P.2d 1385, 1386 (Wash. App. 1991) (Arresting officer's statement that Cooper's driver's license would be revoked "probably for at least a year, depending upon his driving record, maybe two" deprived Cooper the opportunity to make a knowing and intelligent decision whether to take the test. The officer's statement implied that his license might be revoked for less than a year where the state's implied consent statute required the revocation of a refusing arrestee's driver's license for a minimum of one year.); Welch v. Department of Motor Vehicles, 536 P.2d 172, 173 (Wash. App. 1975) (warning that, upon refusal of alcohol test, driver could lose his license, rather than that driver would lose his license, failed to provide driver the opportunity of exercising an intelligent judgment under the implied consent statute); State v. O'Donnell, 484 S.E.2d 313 (Ga. App. 1997) (because the arresting officer did not inform arrestee that he had the right to have another test done by a qualified person of his own choosing, the warning did not comply with the implied statute and, therefore, the results of driver's breath test were properly excluded from evidence in his DUI prosecution); Whitman County Dist. Court, 714 P.2d at 1187 (warning that results of breathalyzer test "shall be used against you in a subsequent criminal trial" rather than "may be used," as mandated by statute, deprived arrestees of the opportunity of exercising an intelligent judgment concerning whether to exercise the statutory right of refusal, requiring suppression of the test results); Terry, 511 S.E.2d at 611 (police officer's statement that obtaining a bond was a precondition to taking an independent test in contravention of the implied consent statute "in its totality contained substantial misleading, inaccurate, and extraneous information . . . and [the driver] was confused thereby as to [her] existing implied consent statutory privileges") (some brackets in original); Smith v. State of Nebraska, Department of Motor Vehicles, 535 N.W.2d 694, 698 (Neb. 1995) (because driver was not informed of both the consequences of consenting to and refusing a chemical alcohol test before consenting to a breath test, he "never had the opportunity to understand all of the statutory consequences of failing the breath test" and did not make a "rational and informed decision" whether to consent to the test); Graves v. Commmonwealth, 535 A.2d 707, 708-09 (Pa. 1988) (warning that individual's license "could," rather than "would," be suspended upon failure to submit to a breath test "lack[ed] the specificity required to convey the mandatory nature of the suspension" and thus required reinstatement of driver's license); Department of Licensing v. Mairs, 854 P.2d 665, 668-69 (Wash. App. 1993) (Because the advice given to an arrestee by a state trooper under the state's implied consent statute was "confusing and misstated the law[,] . . . [the arrestee] did not make a knowing and intelligent decision on whether to take or refuse a test of the alcohol content of her blood." Accordingly, because "the information conveyed confuse[d] the driver about his rights under the statute, [he] may claim that he had no reasonable opportunity to refuse."); Beem v. State, 805 P.2d 495, 498 (Idaho App. 1991) (because driver had "the right to be correctly advised by the officer of the true consequences of refusing to take the blood-alcohol test," warning that stated that license would be suspended for 120 days, rather than 180 days, failed to correctly advise driver of his rights under implied consent statute); Buchanan v. Registrar, Ohio Bureau of Motor Vehicles, 619 N.E.2d 523, 526 (Ohio App. 1993) (omission of the fact that "a person whose license was suspended must show proof of financial responsibility and must pay a $125 reinstatement fee" on the implied consent form rendered the form an inaccurate statement of the law, thereby necessitating driver's license suspension to be set aside); Biddlecome v. Conrad, 543 N.W.2d 170, 172 (Neb. 1996) (because warnings omitted various consequences of both consenting to and refusing chemical alcohol test, and because motorist cannot "understand information that [was] never conveyed," motorist was unable to make a "rational and informed decision" whether or not to consent to a chemical alcohol test); Bennett v. Director of Revenue, 889 S.W.2d 166, 171 (Mo. 1994) (officer's failure to give driver mandatory warning that her license "shall be immediately revoked upon her refusal" rendered her decision on whether to refuse uninformed); State v. Krieg, 497 P.2d 621, 625 (Wash. App. 1972) (failure to give warnings contained in implied consent statute did not adequately apprise driver of his right to withdraw his consent, necessitating the suppression of the results of the breathalyzer test in his negligent homicide prosecution); State v. Sells, 798 S.W.2d 865, 867 (Tex. App. 1990) (officer's warning that driver "would automatically be charged and incarcerated" upon refusal to take a chemical test was a misstatement of the law and required suppression of driver's test results); Perrine v. State of Nebraska, Department of Motor Vehicles, 544 N.W.2d 364, 376 (Neb. 1996) (Warnings were "inadequate and misleading" where they failed to advise driver of mandatory consequences of consenting to or refusing chemical alcohol test. It was therefore plain error for the director of the department of motor vehicles to revoke driver's license.).
For purposes of this opinion, we assume that Wilson had no "prior alcohol enforcement contacts during the five years preceding the date of arrest," (8) and, thus, pursuant to our interpretation of HRS § 286-261(b) in Gray, Wilson was subject to revocation of his driving privileges for three months to a year by consenting to and failing a blood test. See supra note 4. However, the "form" read to Wilson by the arresting officer stated only that a "three month revocation . . . would apply if you chose to take the test and failed it." It did not inform Wilson that his license may be revoked for up to one year. Therefore, insofar as the arresting officer's statement stated that the revocation period for someone with a "clean" record who consents and fails was only three months, it was inaccurate and misleading and did not fully inform Wilson of the legal consequences of submitting to a blood test. Not only was the information given to Wilson misleading, it was relevant to his decision whether to agree to or refuse the blood alcohol test. (9) Thus, although Wilson elected to take the test, he did not make a knowing and intelligent decision whether to exercise his statutory right of consent or refusal. See Whitman County Dist. Court, 714 P.2d at 1187 (where a warning "contains a more coercive impact than that required by statute[,]" such a warning could mislead a driver into taking the Breathalyzer test, depriving the driver of knowing and intelligent consent).
The prosecution contends, however, that the sanctions under ADLRO are inapplicable in criminal proceedings for DUI. On the contrary, while the proceedings are conducted separately, the administrative driver's license revocation process under HRS chapter 286 is materially and inextricably related to a criminal prosecution for DUI under HRS § 291-4. Indeed, under our drunk driving statutory scheme, "[i]f criminal charges are filed currently with the administrative charges, the State will share all its evidence with the county prosecutor." Sen. Conf. Comm. Rep. No. 137, in 1990 Senate Journal, at 826. Moreover, while this court has held that an administrative license revocation proceeding based on DUI is not a bar to a subsequent criminal prosecution, see State v. Toyomura, 80 Hawai`i 8, 17, 904 P.2d 893, 902 (1995), and that the possible penalties imposed by the two proceedings differ, see Gray, 84 Hawai`i at 146 n.14, 931 P.2d at 604 n.14, the administrative revocation statute and its criminal DUI counterpart are part and parcel of the same statutory scheme to prevent and address drunk driving. See State v. Feldhacker, 76 Hawai`i 354, 357, 878 P.2d 169, 172 (1994) ("the Administrative Revocation Program was designed to co-exist with criminal DUI prosecution."); Toyomura, 80 Hawai`i at 17, 904 P.2d at 902 ("the main benefit of administrative revocation is that it allows the State to remove a drunk driver's license before the culmination of a lengthy prosecution under the criminal statute") (citing Hse. Conf. Comm. Rep. No. 137, in 1990 House Journal, at 824; Sen. Conf. Comm. Rep. No. 137, in 1990 Senate Journal, at 825); Kernan v. Tanaka, 75 Haw. 1, 17, 856 P.2d 1207, 1216 (1993) ("Administrative revocation begins when a police officer stops a motorist suspected of DUI, arrests him or her, and takes possession of the arrestee's driver's license, giving the arrestee notice of the revocation action.").
The only method for the police to obtain samples of a driver's blood alcohol level in a criminal DUI prosecution is through an evidentiary blood, breath, or urine test taken in accordance with the statutory requirements. It cannot be the intent of the implied consent statute to allow a blood sample to be taken in violation of its terms, to suppress it in the driver's administrative revocation proceeding as being violative of the law, and then to allow its admission in the driver's corresponding criminal DUI prosecution because there was no infirmity in its acquisition. Thus, contrary to the dissent's characterization, the arresting officer's failure to inform Wilson of the applicable statutory penalties upon arrest is unquestionably relevant to Wilson's criminal DUI prosecution. See State v. Moylett, 836 P.2d 1329, 1333 (Or. 1992) (blood test evidence obtained from an arrestee in violation of Oregon's implied consent statute is inadmissible in the arrestee's DUI prosecution); Bartels, 774 P.2d at 1186 (en banc) ("when the State has interfered with a driver's opportunity to make an intelligent judgment whether to submit to a blood alcohol test, we have suppressed test results" in corresponding criminal prosecutions) (citations omitted); State v. Berry, 428 A.2d 1250, 1252 (N.H. 1981) (provisions of New Hampshire's implied consent law apply to "any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor") (citation omitted); Krieg, supra (where the prosecution cannot establish that adequate warnings were given to the accused prior to administering an evidentiary breath test, the remedy is the suppression of the breath test results); Whitman County Dist. Court, 714 P.2d at 1185 (where the driver submits to an evidentiary breath test, the issue in both criminal and administrative contexts is the same). (10)
Our implied consent statute is worded in the mandatory; therefore, police officers have an affirmative duty to clearly and accurately inform drivers of their implied right to consent or refuse, together with the consequences of each. See generally Gray, 84 Hawai`i at 151, 931 P.2d at 593 (defining "shall" in the words of a statute to mean "has a duty to"). Although the dissent apparently agrees that "the officer did not fully educate Wilson on the consequences of consent," dissent at 15, it nevertheless deems unnecessary "rote compliance with the statutory requirements." Dissent at 12 n.5. In this manner, the dissent minimizes the importance of accurate statutorily-mandated warnings and the effects of the police officer's failure to properly provide those warnings. (11) Under the dissent's analysis, whether or not the warnings given by police are accurate -- and correspondingly, whether or not the driver made a knowing and intelligent decision -- the police can nonetheless compel the test results in the driver's DUI prosecution. If we were to adopt the dissent's position, a police officer could give a driver arbitrary, false, or misleading information regarding a driver's rights under the implied consent law and still compel the admission of the results in the criminal context. Clearly, that cannot be the intended result of our implied consent statute. (12)
It would be anomalous, moreover, to order Wilson's illegally obtained blood sample suppressed in his driver's license revocation hearing and simultaneously admit it in his related criminal prosecution for DUI, a proceeding requiring higher procedural requirements and safeguards and carrying with it penal consequences and constitutional ramifications. See, e.g., State v. Lau, 78 Hawai`i 54, 61, 890 P.2d 291, 298 (1995) (in DUI prosecution under HRS § 291-4, an arrestee faces the possibility of imprisonment under the statute's penalty provisions).
This court recognizes and embraces the important purpose of our implied consent laws to prevent fatalities and injuries resulting from highway traffic accidents. (13) This purpose, however, can be realized while at the same time ensuring that the police provide clear, accurate warnings as mandated by statute. We hold, therefore, that the arresting officer's violation of HRS chapter 286's consent requirement precludes admissibility of Wilson's blood test results in his related criminal DUI proceeding. (14)
IV. CONCLUSION
For the foregoing reasons, we therefore hold that, because the information conveyed to Wilson regarding his rights under HRS chapter 286 was inaccurate and misleading, Wilson was precluded from knowingly and intelligently consenting to the
blood alcohol test in violation of HRS chapter 286. Accordingly, we affirm the district court's order granting Wilson's motion to suppress the blood test results in his criminal DUI prosecution.
On the briefs:
Georgia McMillen, Deputy
Prosecuting Attorney,
for plaintiff-appellant
Richard L. Rost (James W.
Geiger with him on the
brief)for defendant-appellee
1. HRS § 291-4 provides in pertinent part:
Driving under the influence of intoxicating liquor. (a) A person commits the offense of driving under the influence of intoxicating liquor if:
(1) The person operates or assumes actual physical control of the operation of any vehicle while under the influence of intoxicating liquor, meaning that the person concerned is under the influence of intoxicating liquor in an amount sufficient to impair the person's normal mental faculties or ability to care for oneself and guard against casualty; or
(2) The person operates or assumes actual physical
control of the operation of any vehicle with .08
or more grams of alcohol per one hundred
milliliters or cubic centimeters of blood or .08
or more grams of alcohol per two hundred ten
liters of breath.
2. Although the prosecution, in its memorandum in opposition to
Wilson's motion to suppress, stated that the sworn statement is
"herewith attached as Exhibit "A," the form in fact appears
nowhere in the record. At the hearing, however, the parties
stipulated that the arresting officer read her statement from the
standard "sworn statement of arresting officer" form, and the
district court apparently accepted the form into evidence and
discussed its contents at length with the parties. Therefore,
although Hawai`i Rules of Appellate Procedure (HRAP) Rule
28(b)(9) states that "[a]nything that is not part of the record
shall not be appended to the brief," we deem the form submitted
by the prosecution as "appendix A" in its opening brief on
appeal, to which Wilson does not object, as representative of the
form that the district court considered at the hearing on
Wilson's motion to suppress.
3. HRS § 286-261(b) states in relevant part:
The periods of administrative revocation which may be imposed under this part are as follows:
(1) Three months, if the arrestee's driving record shows no prior alcohol enforcement contacts during the five years preceding the date of arrest;
(2) One year if the arrestee's driving record shows one prior alcohol enforcement contact during the five years preceding the date of arrest;
(3) Two years if the arrestee's driving record shows two prior alcohol enforcement contacts during the seven years preceding the date of arrest; [or]
(4) For life if the arrestee's driving record shows three or more prior alcohol enforcement contacts during the ten years preceding the date of arrest[.]
HRS § 286-261(c) (Supp. 1998) states:
The license of an arrestee who refuses to be
tested after being informed of the sanctions of
this part shall be revoked under subsection
(b)(1),(2), and (3) for a period of one year, two
years, and four years, respectively.
4. In Gray, we interpreted HRS § 286-261(b) as granting the ADLRO
the discretion to increase the stated minimum periods of
revocation for "non-refusing" arrestees, but "capping" this
discretionary revocation by the mandatory periods of revocation
for "refusing" arrestees enumerated in HRS § 286-261(c). See
Gray, 84 Hawai`i at 160-61, 931 P.2d at 602-03. According to
this rubric, the minimum period of revocation for an arrestee
without a prior enforcement record who consents to the test and
fails is three months and the maximum period is one year.
5. HRS § 286-151 further provides in relevant part:
. . . .
(b) The test or tests shall be administered at the request of a police officer having probable cause to believe the person driving or in actual physical control of a motor vehicle or moped upon the public highways is under the influence of intoxicating liquor or drugs, . . . only after:
(1) A lawful arrest; and
(2) The person has been informed by a police officer of the sanctions under part XIV and sections 286-151.5 and 286-157.3.
(Emphasis added.)
6. HRS § 286-255 further provides in pertinent part:
Arrest; procedures. (a) Whenever a person is arrested for a violation of section 291-4, on a determination by the arresting officer that:
. . . .
(2) There was probable cause to believe that the arrestee was driving, operating, or in actual physical control of the motor vehicle while under the influence of intoxicating liquor;
the arresting officer shall immediately take possession of any license held by the person and request the arrestee to take a test for concentration of alcohol in the blood. The arresting officer shall inform the person that the person has the option to take a breath test, a blood test, or both. The arresting officer shall also inform the person of the sanctions under this part, including the sanction for refusing to take a breath or a blood test. . . .
(Emphasis added.)
7. The dissent contends that the implied consent statute
"expressly preordains 'consent[,]'" thereby characterizing the
implied consent statute as eliminating a driver's implied right
to refuse. Dissent at 5, 7-8. The dissent fails to acknowledge
that a driver's implied consent is qualified by his or her
implied right to withdraw consent based on accurate disclosure of
the consequences of both consent and refusal. See HRS § 286-255.
It is clear that a driver cannot knowingly and intelligently
refuse, as the dissent would have it, without warnings regarding
both the right of consent and refusal, and the consequences of
each. See State v. Whitman County Dist. Court, 714 P.2d 1183,
1187 (Wash. 1986) ("If an individual is informed that it is more
likely that negative consequences will follow a certain decision,
it seems obvious that more pressure is being brought to bear on
the accused to make that decision which would avoid the negative
consequences.").
8. The record contains no evidence supporting or refuting
Wilson's representation of himself as a first-time offender, but
we accept this self-portrayal as accurate for purposes of this
opinion.
9. The dissent disingenuously claims that, given the "the
obvious consequences of taking and failing a blood-alcohol test,"
Wilson cannot now plead ignorance of the immediate administrative
consequences of an alcohol test over the legal limit. See
dissent at 14 (citation omitted). The dissent misses the point.
In no way do we imply that Wilson was ignorant of any
consequences of taking and failing an evidentiary blood alcohol
test. The point is that the lack of accurate warnings of the
difference in penalties affected Wilson's ability to make a
knowing and intelligent decision whether to consent to or refuse
a blood test.
11. The dissent characterizes the difference between
Wilson's refusal or consent as a "Hobson's choice at best."
Indeed, for the dissent, the "difference between three months and
a year [did not] materially alter[] the balance of options faced
by Wilson[.]" Dissent at 15. To the contrary, the difference
between revocation for three months and one mandatory year is a
substantive one. This variance in penalty thus constituted a
substantial difference in the implied consent warning, affecting
Wilson's decision. See Cooper, 810 P.2d at 1386 (warning that
driver's license would be revoked "probably for at least a year,
depending upon his driving record, maybe two" versus a mandatory
minimum of one year violated implied consent statute); Welch, 536
P.2d at 173 (warning that driver "could" lose his license rather
than "would" lose his license violated implied consent law);
12. Similarly, the dissent excuses the police from the
statutory obligation to state accurately the statutorily-mandated
warnings. Using the dissent's analysis, there is no incentive
for the police to impart accurate information, thereby rendering
our implied consent statute virtually meaningless. 14. We note that there is nothing to prevent the
prosecution from relying on other relevant evidence of
intoxication in order to prosecute Wilson for the criminal
offense of DUI, e.g., the manner in which Wilson was observed to
have driven his vehicle, his conduct in performing the requisite
alcohol tests, his appearance, demeanor, and other valid police
observations of signs of intoxication.