DISSENTING OPINION BY NAKAYAMA, J., WITH WHOM RAMIL, J., JOINS

The majority holds that the failure of the arresting officer to inform Wilson of the possibility of discretionary revocation from three months to a year if he consented to a blood-alcohol test and failed it precludes the admission of the test results in his criminal trial for driving under the influence (DUI), Hawai`i Revised Statutes (HRS) 291-4 (1993). I cannot agree that such an omission warrants the remedy of suppression. Accordingly, I dissent.

I. The Scope of the Exclusionary Rule

We have recognized the general rule that:

A defendant who seeks to benefit from the protections of the exclusionary rule has the burden of establishing not only that the evidence sought to be excluded was unlawfully secured, but also that his own constitutional rights were violated by the search and seizure challenged.



State v. Pattioay, 78 Hawai`i 455, 466, 896 P.2d 911, 922 (1995) (quoting State v. Scanlan, 65 Haw. 159, 160-61, 649 P.2d 737, 738 (1982)) (emphasis added). See also Rossell v. City and County of Honolulu, 59 Haw. 173, 187, 579 P.2d 663, 672 (1978) (maintaining that "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").

In rare cases, however, we have applied the exclusionary rule to evidence obtained in violation of statutes or rules. See Pattioay, supra (excluding evidence obtained in violation of the Posse Comiatus Act, a federal statute); State v. Kirn, 70 Haw. 206, 767 P.2d 1238 (1989) (holding that results of intoxilizer test lacked proper foundation for admission because the test was conducted contrary to procedure stated in the administrative rules). This exception does not apply to any and every violation of statute or rule. See Pattioay, 78 Hawai`i at 468-69 n.28, 896 P.2d at 924-25 n.28 (adopting a rule of "necessity" in determining whether a nonconstitutional violation warrants suppression). As emphasized by the concurring opinion in Pattioay,

when government agents obtain evidence of a crime without violating any constitutional rights, the exclusionary rule should only be applied in very limited situations. . . . [T]he violation of any law by a government agent simply does not provide a sufficiently narrow category for invoking an exception to the exclusionary rule. Rather, we must approach these situations on a case-by-case basis to determine whether the rationales underlying the exclusionary rule are served, and whether the law violated warrants its application.



Id. at 470-71, 896 P.2d at 926-27 (Ramil, J., and Moon, C.J., concurring) (some emphasis in original and some added).

In Pattioay, this court suppressed evidence obtained in violation of the Posse Comiatus Act, 18 United States Code (U.S.C.) § 1385 (1988), a federal statute prohibiting military involvement in civilian law enforcement. See 78 Hawai`i at 460-62, 896 P.2d at 916-18. Although the challenged action did not violate any constitutional rights, see id. at 466, 896 P.2d at 922, we recognized that courts have "inherent supervisory power to curb abuses and promote a fair process which extends to the preclusion of evidence." Id. at 468 n.28, 896 P.2d at 924 n.28 (citing Richardson v. Sport Shinko, 76 Hawai`i 494, 507, 880 P.2d 169, 182 (1994)) (emphasis added). Consequently, we held that the illegally obtained evidence "must be suppressed under the authority of this court's supervisory powers in the administration of criminal justice in the courts of our state." Id. at 469, 896 P.2d at 925. We noted, however, that "the critical question [wa]s whether the power to exclude evidence [wa]s reasonably necessary to vindicate the court's authority." Id. at 469 n.28, 896 P.2d at 925 n.28 (emphasis and brackets added). See also id. at 471-73, 896 P.2d at 927-29 (concurring opinion) (focusing on historical dangers and fears of military involvement in civilian affairs to justify suppression).

II. The Exclusionary Rule Does Not Apply In This Case

It is long-settled that a blood-alcohol test performed as an incident to a lawful arrest for DUI, based on clear indication of intoxication, and in a reasonable, medically approved manner, does not violate any constitutional rights. See Schmerber v. California, 384 U.S. 757 (1966); Rossell, 59 Haw. at 187, 579 P.2d at 672 (recognizing the "constitutional propriety" of blood alcohol tests under Schmerber).(1) The arresting officer in this case, however, failed to fully comply with the notice requirements of the "implied consent" statute, HRS chapter 286, part VII (1993 and Supp. 1998). The question is whether the omission in dispute, the difference between three months and a year of discretionary revocation for consenting to a blood-alcohol test and failing it, falls within the narrow exception to the rule limiting the suppression remedy to constitutional violations. I do not believe it does. First, neither the letter nor intent of the implied consent statute provides for the exclusion of constitutionally obtained evidence in criminal DUI prosecutions. Second, the principles underlying the exclusionary rule do not warrant the suppression of evidence in this case.

A. The "Implied Consent" Statute Does Not Provide For The

Exclusion Of Evidence In Criminal DUI Prosecutions



As suggested by its name, the "implied consent" statute begins with the premise that all persons driving on the public highways of this state have consented to a blood, breath, or urine test pursuant to the statutorily prescribed procedure. See HRS § 286-151(a) (Supp. 1998). The statute also mandates that the arresting officer inform the arrestee of the sanctions under the administrative revocation statute. See HRS § 286-151(b); HRS § 286-255(a) (Supp. 1998). Preoccupied solely with the latter provisions, the majority examines the effect of the officer's alleged noncompliance with the statutory notice requirements on the "voluntariness" of Wilson's consent. This inquiry of whether consent was "voluntary and intelligent," usually conducted in the constitutional context, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (voluntariness of consent to search); State v. Ganal, 81 Hawai`i 358, 917 P.2d 370 (1996) (same), makes little sense in the present situation, where the statute expressly preordains "consent." See State v. Newton, 636 P.2d 393, 398 (Or. 1981) ("Thus[,] refusal as contemplated by the statute is something other than withholding of consent because consent is legally implied. It is a refusal to comply with the consent which has already been given as a condition of a license to drive."). The majority ignores, for example, that the implied consent law allows police officer to administer a blood-alcohol test on drivers "dead, unconscious, or in any other state which renders the person incapable of consenting" to the test. See HRS § 286-154 (1993) (emphasis added).

At minimum, the apparent contradiction in analyzing the voluntariness of consent previously established by law compels further inquiry into the purpose of the implied consent statute. See HRS § 1-15(2) (1993). As this court previously explained in Rossell v. City and County of Honolulu, 59 Haw. 173, 579 P.2d 663 (1978):

Our Legislature enacted the implied consent statute as one means of decreasing fatalities, injuries, damages and losses resulting from highway traffic accidents. § 1, c. 214, S.L.H.1967. The implied consent statute represents "an additional or alternative method of compelling a person arrested for drunken driving to submit to a 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." People v. Superior Court, 6 Cal.3d 757, 765, 100 Cal.Rptr. 281, 286, 493 P.2d 1145, 1150 (1972) (en banc).

Although Schmerber holds that there is no Constitutional impediment to the forcible removal by the state of a blood sample from an arrestee who refuses to consent, provided that the taking is done in a reasonable, medically approved manner, "such an episode remains an unpleasant, undignified and undesirable one." People v. Superior Court, 6 Cal.3d at 764, 100 Cal.Rptr. at 286, 493 P.2d at 1150. Thus, a state is free to seek alternative means to avoid violent police-citizen confrontations, and can "decide to use the threat of revocation (of a driver's license) to encourage submission to the search as an alternative to the use of force." Comment, The Theory and Practice of Implied Consent in Colorado, 47 Colo. L. Rev. 723, 762 (1976). It cannot be overstated that the effect of implied consent legislation "is to equip peace officers with an instrument of enforcement not involving physical compulsion." People v. Superior Court, 6 Cal.3d at 765, 100 Cal.Rptr. at 286, 493 P.2d at 1150 (emphasis added).

HRS § 286-155 (1976 Repl.) constitutes a valid element of Hawaii's statutory scheme of encouraging submission to chemical sobriety testing without resort to physical force on the part of the police. In order to fulfill this statutory scheme, it is essential that the police refrain from imposing the chemical tests when the arrested driver refuses to submit to such tests.

The obvious reasons for acquiescence in the refusal of such a test by a person who as a matter of law is "deemed to have given his consent" is to avoid the violence which would often attend forcible tests upon recalcitrant inebriates.

Bush v. Bright, 264 Cal.App.2d 788, 790, 71 Cal.Rptr. 123, 124 (1968).



Id. at 181-82, 579 P.2d at 669 (emphasis added). In short, we recognized the implied consent statute's underlying purpose of securing blood-alcohol evidence through an additional or alternative means, replacing the potential for violent confrontation and the danger, though not the legitimate option, of physical coercion under Schmerber(2) with the legal threat of mandatory license revocation.

Several observations follow from this understanding. First, to the extent that the implied consent statute offers arrestees mandatory revocation for refusal, or possible production of incriminating evidence and revocation nevertheless for compliance -- a Hobson's choice at best -- it does not reconstruct the right of "voluntary and intelligent" choice already denied in Schmerber and in the statute itself. Rather, as a concession to the arrestee's physical ability to resist, the statute merely aims to "persuade" arrestees to peaceably submit to blood-alcohol tests. Indeed, as noted previously, in the case of dead, unconscious, or incapacitated defendants, the statute does not require "consent" at all. See HRS § 286-154. By focusing on the "voluntariness" of Wilson's consent, therefore, the majority fundamentally misconstrues the meaning and purpose of "implied consent." See Bush, 71 Cal.Rptr. at 125 ("It is firmly established that a drunken driver has no right to resist or refuse such a test. It is simply because such a person has the physical power to make the test impractical, and dangerous to himself and those charged with administering it, that it is excused upon indication of his unwillingness." (Emphasis in original.)); Newton, 636 P.2d at 398 ("The purpose of a warning of license suspension . . . . is not to reinstate a right to choice, but rather to nonforcibly enforce the driver's previously implied consent."); State v. Spencer, 750 P.2d 147, 153 (Or. 1988) ("Consent being implied by law, a driver may not legally refuse. A driver, however, can physically refuse to submit, and the implied consent law, recognizing that practical reality, forbids the use of physical force to compel submission." (Emphasis in original.)); State v. Woolery, 775 P.2d 1210, 1214 (Idaho 1989) ("The [legislature] has acknowledged a driver's physical ability to refuse to submit to an evidentiary test, but it did not create a statutory right for a driver to withdraw his previously given consent[.]" (Emphasis in oringinal.)); State v. Sisler, 683 N.E.2d 106, 109 (Ohio Ct. App. 1995) ("[The implied consent statute] does not create a right of refusal or expand on the constitutional guarantees afforded a criminal accused.").

Furthermore, just as the statutory alternatives do not resurrect a right of choice, the statutory notice requirements do not impose limitations on criminal DUI prosecutions not otherwise secured by the constitution. The majority's rote emphasis on the terms of the statutory notice provisions fails with the realization that the suppression remedy sought by Wilson and granted by the majority appears nowhere in the statute. The majority thus inquires, as it must, into the statute's purpose, but offers nothing more than the assertion that, insofar as "the administrative revocation statute and its criminal DUI counterpart are part and parcel of the same statutory scheme to prevent and address drunk driving," violation of the former's notice requirements precludes use of the evidence in the latter. See Majority at 17. Neither the letter nor the purpose of the statute supports this ipse dixit. This court, to the contrary, has consistently recognized the functional distinctions between administrative revocation and criminal DUI prosecution. In State v. Uehara, 68 Haw. 512, 515, 721 P.2d 705, 706-07 (1986), we explained:

Although the implied consent statute is intended to facilitate the enforcement of the DUI statute, Rossell, 59 Haw. at 181, 579 P.2d at 669, they are separate and distinct and should be enforced separately. A DUI violation is a criminal offense, see State v. O'Brien, 5 Haw.App. 491, __, 704 P.2d 905, 911, aff'd, 68 Haw. __, 704 P.2d 833 (1985), whereas an implied consent violation is "civil in nature, and hearings before a district judge, pursuant to statute, are in the nature of administrative proceedings." (Emphasis in original). State v. Severino, 56 Haw. 378, 380, 537 P.2d 1187, 1189 (1975); see also State v. Gustafson, 54 Haw. 519, 520, 511 P.2d 161, 162 (1973). Furthermore, the penalties for refusing to submit to testing are "additional penalties and not substitutes for other penalties provided by law." HRS § 286-155 (Supp. 1984).



Id. at 515, 721 P.2d at 706-07 (1986). See also Woolery, 775 P.2d at 1215 ("[The revocation statute] is devoted entirely to the administrative, or civil, suspension of the license of a driver. This section does not in any way discuss criminal offenses related to driving under the influence of alcohol.").

In enacting its comprehensive "highway safety program," codified in HRS chapter 286, the legislature stated as its "declaration of purpose:"

Deaths of persons and injuries to them and damage to property with the other losses suffered on account of highway traffic accidents are of grave concern to the State and its citizens . . . . The legislature finds and declares that it is in the public interest that the State initiate, coordinate and accelerate every available means to decrease the fatalities, injuries, damages and losses resulting from highway traffic accidents.



1967 Haw. Sess. L. Act 214, § 1 at 257. See also State v. Bostrom, 902 P.2d 157, 160-61 (Wash. 1995) (en banc) (identifying the "three objectives" of the implied consent statute as: 1) discouraging individuals from driving while intoxicated; 2) removing driving privileges from those disposed to drunk driving; and 3) providing an efficient means of gathering reliable evidence of intoxication or nonintoxication). Nothing in the legislative history contemplates the use of the notice requirements of the implied consent subsection of this law as a restriction on criminal DUI prosecutions. By sanctioning such a use in this case, the majority stands the entire "statutory scheme to prevent and address drunk driving" on its head. The majority negates the purpose of both laws as a result. See State v. Zielke, 403 N.W.2d 427, 434, reconsideration denied, 434 N.W.2d 786 (Wis. 1987) ("[T]he implied consent law is an important weapon in the battle against drunk driving in this state. Neither the law, its history nor common sense allows this court to countenance its use as a shield by the defense to prevent constitutionally obtained evidence from being admitted at trial."); State v. McGuire, 493 So.2d 559, 563 (La. 1986) ("The sanction of inadmissibility is neither statutorily nor constitutionally compelled [in criminal DUI prosecutions]."); State v. Baker, 502 A.2d 489, 495 (Me. 1985) ("[W]e cannot find any implicit legislative intention that reliable blood test results must be excluded because the test was administered after defendant's refusal, although in conformity with constitutional requirements."); Woolery, 775 P.2d at 1215 ("Rather than condone a physical conflict, the legislature provided for the administrative revocation of the license of an individual who refuses to comply with his previously given consent. Such legislative acknowledgment was not meant to hamstring the ability of law enforcement to properly investigate and obtain evidence of serious crimes committed by those individuals who have chosen to drink and then drive.").(3)

In sum, the suppression remedy granted by the majority finds no basis in statute. The arresting officer's warning in this case fulfilled the statute's purpose by enabling the officer to obtain important and accurate evidence(4) through nonviolent means. Cf. State v. Abramson, 329 N.W.2d 213, 215 (N.D. 1982) ("[The implied consent statute] does not apply when a person voluntarily submits to the extraction of a blood specimen."). The implied consent law neither creates a right of voluntary choice, nor does it condition the admissibility of test evidence in criminal DUI prosecutions on compliance with the statutory notice requirements. The suppression of Wilson's test results in this case, in fact, contravenes the statute's purpose of enhancing, rather than limiting, the State's powers to prevent drunk driving.

B. The Principles Underlying The Exclusionary Rule Do Not

Warrant The Suppression Of Evidence In This Case



Even apart from the issue of the purpose and operation of the implied consent statute's notice requirements, the officer's omission in this case simply does not amount to the sort of violation requiring the remedy of suppression. As discussed in Part I, supra, the court applies the exclusionary rule to nonconstitutional violations only when "reasonably necessary" to uphold the court's authority to promote a fair process. See Pattioay, 78 Hawai`i at 469 n.28, 896 P.2d at 925 n.28. The proper approach, therefore, is not the inflexible rule adopted by the majority, demanding "clear, accurate warnings as required by statute," see Majority at 22, but a case-by-case analysis guided by fundamental notions of fairness and due process.(5)

Along these lines, the United States Supreme Court's decision in South Dakota v. Neville, 459 U.S. 553 (1983), is particularly instructive. In Neville, the defendant alleged, inter alia, a due process violation based on the failure of the arresting officer to inform him that evidence of his refusal of a blood-alcohol test could be used against him at trial. See id. at 564. The Court rejected his argument, emphasizing that the officer made no "misleading implicit assurances as to the relative consequences of his choice." Id. at 565 (emphasis added). The Court reasoned:

[T]he officers specifically warned respondent that failure to take the test could lead to loss of driving privileges for one year. It is true the officers did not inform respondent of the further consequence that evidence of refusal could be used against him in court, but we think it unrealistic to say that the warnings given here implicitly assure a suspect that no consequences other than those mentioned will occur. Importantly, the warning that he could lose his driver's license made it clear that refusing the test was not a "safe harbor," free of adverse consequences.

While the State did not actually warn respondent that the test results could be used against him, we hold that such a failure to warn was not the sort of implicit promise to forego use of evidence that would unfairly "trick" respondent if the evidence were later offered against him at trial.



Id. at 566 (emphasis added) (footnote omitted).

Similarly, in Bostrom, supra, the Washington supreme court held that the State's failure to give any warning of the possibility of administrative revocation as a consequence of consenting to a blood-alcohol test and failing it did not violate the due process rights of those who subsequently consented to the test. See 902 P.2d at 161-62. Relying on Neville, the Bostrom court explained:

The warnings offered no implicit assurances which could mislead either the Respondents who refused the test or those who took the test. . . . [M]ost, if not all, drivers are well aware that if they agreed to the test and the results reveal a breath alcohol concentration higher than the legal limit, there would be adverse consequences both criminal and administrative.



Id. at 162 (emphasis added.)

In the instant case, the arresting officer correctly stated the mandatory administrative penalties for refusing to take the test. The officer also warned Wilson of the possibility of administrative revocation if he consented to the test and failed it. The officer even apprised Wilson that "criminal charges under [HRS § 291-4] may be filed." Nevertheless, because the officer neglected to explain that, pursuant to Gray v. Administrative Director of the Court, 84 Hawai`i 138, 931 P.2d 580 (1997), Wilson faced the possibility of revocation for a period between three months and a year if he consented to the test and failed it, the majority holds that the notice was fatally defective.

I do not believe that the principles underlying the exclusionary rule are concerned with such an omission. Unlike the Bostrom case, where the officer made no mention of the possibility of administrative revocation as a consequence of consent, the officer here did inform Wilson of that prospect. Indeed, insofar as the officer's statement -- "one year instead of three months [if you consent and fail]" -- did not explain that the administrative penalty for consenting to the test and failing was discretionary, i.e., that the director could revoke a non-refusing arrestee's license for less than three months, or not at all, the statement could have weighted Wilson's choice against consent and towards refusal. Wilson has never asserted that he would have refused the test had he received a full explanation of the penalties under Gray. See Abramson, 328 N.W.2d at 217 (noting that defendant "did not testify that he would have refused but for the officer's statement"). Moreover, in my view, he could not credibly do so, given the sufficiently undesirable and obvious consequences of taking and failing a blood-alcohol test. See Bostrom, 902 P.2d at 162 ("Amidst this climate of public intolerance for drunk driving, we cannot accept the contention that the implied consent warnings somehow misled the [arrestees] into believing that there could be no immediate administrative consequence for a breath test over the legal limit.").(6) Where the legislature enacts the statute in order to avoid violent confrontation and physical coercion between officers and refusing arrestees, I have difficulty accepting that the difference between three months and a year materially altered the balance of options faced by Wilson and somehow "tricked" or "coerced" him to consent. See id. ("There is no requirement that each and every specific consequence of [the choice] be enunciated."); Frank v. Department of Licensing, 859 P.2d 1248, 1250 (Wash. Ct. App. 1993) (inquiring, beyond the mere fact of inaccurate notice, whether "prejudice" resulted therefrom -- "whether the inaccurate information may have encouraged [the arrestee] not to take the Breathalyzer test"); State v. Helm, 633 P.2d 1071, 1076-77 (Colo. 1981) (holding that failure to inform arrestee of his right to refuse blood-alcohol test did not render his consent involuntary: "[T]here is no evidence that the police officer made promises or used tactics which overbore the will of the defendant . . . or attempted to deceive the defendant.").

Although the officer did not fully educate Wilson on the consequences of consent, the officer's omissions by no means amounted to "misleading implicit assurances as to the relative consequences of [Wilson's] choice," inducing Wilson to believe that consent to the test offered a "'safe harbor,' free of adverse consequences." Neville, 495 U.S. at 565. This case does not present the scenario in which an officer unfairly misleads or "tricks" an arrestee. Consequently, the principles of fairness and due process underlying the exclusionary rule do not require the suppression of Wilson's test results.

III. Conclusion

For the reasons stated above, I respectfully dissent. I would reverse the district court's suppression order on grounds that neither the implied consent statute nor the principles underlying the exclusionary rule warrant the suppression of the blood-alcohol test results in this case.

1. In Schmerber, a physician withdrew a blood sample from a DUI arrestee at the request of the arresting officer, despite the arrestee's refusal to consent based on advice of counsel. See 384 U.S. at 758-59. The United States Supreme Court, through the late Mr. Justice Brennan, held that the usual requirement of a search warrant did not apply given the "emergency" presented by the fleeting nature of the evidence and the reasonableness of the test as an indicator of blood-alcohol content, and where the test was performed in a reasonable manner, i.e., "taken by a physician in a hospital environment according to accepted medical practices." Id. at 770-71. The Court further conditioned such tests on the arresting officer having, in addition to the probable cause necessary for the arrest, "a clear indication that in fact [the] evidence [sought after] will be found." Id. at 769-70.

In this case, Wilson does not allege, and the record does not indicate, an absence of probable cause for the arrest or clear indication of intoxication. Additionally, Wilson does not dispute, nor does the record call into question, the reasonableness of the blood test or the manner in which it was administered.

2. The Schmerber Court carefully limited its holding to the facts of the case. See 384 U.S. at 771 ("That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions."). Schmerber does not allow officers to forcibly restrain an unwilling arrestee and extract his or her blood. See id. at 760 n.4 ("It would be a different case if the police initiated the violence, refused to respect a reasonable request to undergo a different form of testing, or responded to resistance with inappropriate force."). Cf. Rochin v. California, 342 U.S. 165 (1951) (holding that the forcible extraction of suspect's stomach contents through induced vomiting violated the Due Process Clause); Winston v. Lee, 470 U.S. 753 (1985) (holding that surgery without the suspect's consent, for the purpose of extracting a bullet from the suspect's body, violated the fourth amendment).

3. Most of the decisions cited in voluble succession by the majority, see Majority at 11-15, address only the admissibility of evidence in civil revocation proceedings.

4. Defendants in criminal DUI cases, I note, have an equal interest in reliable evidence of intoxication.

5. The following discussion answers the majority's accusation that "[i]f 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[.]" Majority at 20. The point is not that no protections against arbitrary police action exist, but that the protections that do exist arise from basic due process considerations rather than from rote compliance with the statutory notice requirements. Nowhere in its opinion does the majority address the analysis of the Pattioay decision, or explain why the supposed statutory violation in this case falls within the exception to the general rule limiting the suppression remedy to constitutional violations. See Majority at 19, n.10 (deciding, without discussion, that "[s]uch exclusion is appropriate here").

6. Although the majority cites extensively from case law from the State of Washington to support its position, the Washington implied consent statute has never required police officers to inform arrestees of the consequences of consent. See id. at 160-61.