FOR PUBLICATION IN WEST'S HAWAI`I REPORTS AND PACIFIC REPORTER
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
---o0o---
NO. 27774
February 14, 2007
BURNS, C.J., LIM AND NAKAMURA, JJ.
OPINION OF THE COURT BY LIM, J.
In this implied consent case, (1) the State appeals the January 11, 2006 findings of fact, conclusions of law and order of the District Court of the First Circuit (district court) (2) that granted Kirk Norihiko Okada's (Defendant) February 25, 2005 motion in limine to exclude evidence of his breath alcohol test result, which the district court denominated a motion to suppress evidence. We vacate and remand.
At the December 21, 2005 hearing on Defendant's motion, the parties entered into various stipulations of fact, and apparently also some stipulations to the admission of certain exhibits. No other evidence, only argument, was adduced at the hearing. The district court's January 11, 2006 findings of fact (FF), conclusions of law (CL or COL) and order granting the motion read, in relevant part, as follows:
Defendant filed a motion entitled Motion in Limine to Exclude Evidence. Notwithstanding the title, the motion is a motion to suppress evidence and is so treated by this court. . . . Having considered the stipulation of facts, submissions and arguments of counsel and the records and files herein, the Court hereby enters the following findings of fact, conclusions of law and order granting the motion to suppress.
2. After his arrest, a police officer read to Defendant HPD Form 396B which is attached as Exhibit A to the State's Memorandum in Opposition to Motion to Suppress and admitted into evidence for the hearing on the motion by stipulation. This form is sometimes referred to as the DUI Implied Consent Form and is used to inform a DUI arrestee of the sanctions under Section 291E-41, HRS. (4)
3. At approximately the same time, the officer read to Defendant HPD Form 396H which is attached as Exhibit B to the State's Memorandum in Opposition to Motion to Suppress and admitted into evidence for the hearing on the motion by stipulation. This form is sometimes referred to as the Zero Tolerance Implied Consent form and is used to inform a person allegedly under the age of 21 years of the sanctions under Section 291E-65, HRS. (5)
5. After the breath test, Defendant was charged with violating Section 291E-64, HRS (6) as a person under the [sic] 21 years old who operated a vehicle with a measurable amount of alcohol, meaning a test result equal to or greater than .02, but less than .08 grams of alcohol per two hundred ten liters of breath as defined by Section 291E-1, HRS. This is sometimes referred to as the Zero Tolerance law.
2. Defendant was informed of the sanctions under both Sections 291E-41 and 291E-65 prior to being able to choose to take an alcohol concentration test or refuse such a test.
4.
The relevant inquiry is whether the warnings given by the police
officer afforded Defendant
the opportunity to make a knowing and intelligent decision whether to
take an evidentiary blood
[sic] alcohol test. Id. at 50[, 987 P.2d at 273].
5. Exhibits A and B, independently, accurately informed Defendant as to his statutory right to consent or refuse a blood [sic] alcohol test and the consequences of such consent or refusal.
7.
When a person is arrested for DUI, whether under or over the age of 21,
he or she must be
informed as to the sanctions under Section 291E-41, HRS (administrative
revocation), prior to
making a decision to take a test or refuse a test. These sanctions are
the administrative
revocation periods that may apply to the individual in light of his or
her circumstances as to
prior alcohol enforcement contacts as well as the decision to take or
refuse a test.
8.
When a person is arrested for Zero Tolerance, he or she must be
informed of the sanctions
under Section 291E-65, HRS prior to deciding whether or not to take a
test. These sanctions are
similar, but different from the administrative revocation process.
Generally, they involve an
underage person who has refused a test and a civil hearing in this
court rather than an
administrative proceeding. The possible consequences of this hearing to
the person are also
similar, but different. They do not involve prior alcohol enforcement
contacts, but rather prior
suspensions under Section 291E-65, HRS. The result may involve a
suspension, not a revocation of
a license and the maximum suspension possible is five years as opposed
to a revocation for life
for DUI.
9.
Section 291E-11(b)(2), HRS requires that a law enforcement officer
inform a person of the
sanctions under Section 291E-41 or 291E-65 "as applicable to the
offense." The sanctions under
291E-41, HRS do not apply to Zero Tolerance and the sanctions under
291E-65, HRS do not apply to
DUI.
10. Even though Exhibits A and B accurately informed Defendant of the sanctions under Sections 291E-41 (Exhibit A) and 291E-65 (Exhibit B), by reading both Exhibits A and B at the same time prior to having Defendant make a choice, the police did not afford Defendant the opportunity to make a knowing and intelligent decision whether to take an evidentiary blood [sic] alcohol test.
12. Defendant was arrested for DUI. He should have been given the opportunity to take or refuse a test based upon the information contained in Exhibit A, alone.
14.
By compelling Defendant to make one decision for both rather than two
separate decisions, the
law enforcement officer rendered the information given to Defendant
inaccurate and misleading.
(Footnotes supplied.) The State obtained an extension of time to file its notice of this appeal and did so on February 16, 2006.
Defendant correctly characterizes this appeal as a matter of law: "The facts in this case are not in dispute. In fact, the parties stipulated to the facts for purposes of what the trial court considered to be Defendant's motion to suppress." Answering Brief at 1. Defendant defends the district court's ruling of law, (7) thus:
The
trial court was clearly correct in its decision to suppress the breath
test result in this
case. It is firmly established law in Hawai`i that "[a] person under
arrest for [DUI] must be
properly informed so that he or she has the opportunity to make an
informed and intelligent
decision as to whether to take an alcohol concentration test or refuse
such a test. State v.
Wilson, 92 Haw[ai`i] 45[, 987 P.2d 268] (1999)" (FF/CL, COL 1).
The trial court goes on in its
FF/CL to explain accurately the problem - the Implied Consent Form is
intended to inform a
defendant of rights with respect to the impaired driving statute, HRS
291E-61, while the Zero
Tolerance Implied Consent Form is intended to inform a defendant of
rights with respect [sic]
underage drinking and driving whether or not the underage person is
impaired, HRS 291E-64. COL 6. When both forms are read at the same time
before giving an underage defendant the chance to take a
breath test or not, the different sanctions applicable to the different
laws which are designed to
address different (although related) problems are confused and combined
thereby giving an underage
defendant "inaccurate and misleading" information (FF/CL, COL 14) and
denying the defendant "the
opportunity to make a knowing and intelligent decision whether to take
an evidentiary blood
alcohol test" (FF/CL, COL 10).
In this case, Defendant was faced with the dilemma, after having both forms read to him before being asked whether he wanted to take a breath test or not, of wanting to take a breath test as to HRS 291E-61 because he was fairly certain he was under the .08 BAC [(breath alcohol concentration)] limit and not wanting to take a breath test as to HRS 291E-64 because he might be over the .02 BAC zero tolerance minimum. If Defendant tested over the .02 BAC minimum as to the Zero Tolerance law, he could be charged with a crime, (8) whereas if he refused to take a zero tolerance breath test, he could not be charged with a crime and would only be subject to a license suspension, not even a license revocation. Defendant had a right to have the different laws and sanctions applicable thereto read separately so he could made [sic] an informed and intelligent decision as to each law separately. (9)
Answering Brief at 2-3 (some original brackets replaced; footnotes supplied).
We disagree with Defendant. From the due process perspective, the implied consent regime rests upon the requirement of accurate warnings that enable the arrested person to knowingly and intelligently consent to or refuse an alcohol concentration test:
Among other things, our implied consent statute is intended to provide an efficient means of gathering evidence of intoxication. 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.
Wilson, 92 Hawai`i at 49, 987 P.2d at 272 (footnote and citations omitted; emphasis in the original). In other words,
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.
Id.
In this case, there was no dispute that Defendant was lawfully arrested and then "accurately informed of his or her statutory right to consent or refuse, as well as the consequences of such consent or refusal[,]" id., and the circuit court so found: "Exhibits A and B, independently, accurately informed Defendant as to his statutory right to consent or refuse a blood [sic] alcohol test and the consequences of such consent or refusal." COL 5. This is all the implied consent law required to validate the resulting breath alcohol test result. HRS § 291E-11(b) (Supp. 2005); Wilson, 92 Hawai`i at 49, 987 P.2d at 272.
Yet the district court went on to conclude:
Even though Exhibits A and B accurately informed Defendant of the sanctions under Sections 291E-41 (Exhibit A) and 291E-65 (Exhibit B), by reading both Exhibits A and B at the same time prior to having Defendant make a choice, the police did not afford Defendant the opportunity to make a knowing and intelligent decision whether to take an evidentiary blood [sic] alcohol test.
COL 10. COL 10
simply cannot follow from COL 5. Accurate warnings remain
accurate, even when read in combination, no matter how detailed and
comprehensive
each warning may be. COL 10 makes some kind of sense only by reference
to the
bifurcated warning procedure advocated by Defendant in his answering
brief. But
that process contemplates more than the knowing and intelligent
decision required
by law. It posits moreover an all-knowing and manipulative one, which
is
definitely not mandated by law. Nothing in the applicable statutes or
their
respective legislative histories requires, or even suggests, the
bifurcated
warning procedure urged upon us by Defendant.
We conclude the circuit court was wrong to grant Defendant's motion to suppress. Wilson, 92 Hawai`i at 48, 987 P.2d at 271. Accordingly, the January 11, 2006 findings of fact, conclusions of law and order of the district court are vacated and the cause remanded for entry of an order denying Defendant's motion to suppress, and for trial.
1. At the time of Defendant's arrest, Hawaii Revised Statutes (HRS) §§ 291E-11(a) and -11(b) (Supp. 2005) provided:
(b)
The test or tests shall be administered at the request of a law
enforcement officer having
probable cause to believe the person operating a vehicle upon a public
way, street, road, or
highway or on or in the waters of the State is under the influence of
an intoxicant or is under
the age of twenty-one and has consumed a measurable amount of alcohol,
only after:
(1)
A lawful arrest; and
(2)
The person has been informed by a law enforcement
officer of the sanctions under section
291E-41
or 291E-65, as
applicable to the offense.
HRS § 291E-1 (Supp. 2006) defines "measurable amount of alcohol" as a test result equal to or greater than .02 but less than .08 grams of alcohol per one hundred milliliters or cubic centimeters of blood or equal to or greater than .02 but less than .08 grams of alcohol per two hundred ten liters of breath."
The 2006 legislature extensively amended the implied consent scheme. See HRS ch. 291E (Supp. 2006), passim.2. The Honorable William A. Cardwell presided.
3. HRS § 291E-61(a) (Supp. 2006) provides:
(1)
While under the influence of alcohol in an amount
sufficient to impair the person's normal
mental faculties or
ability to care for
the person and guard against casualty;
(3) With .08 or more grams of alcohol per two hundred ten liters of breath; or
4. At the time of Defendant's arrest, HRS § 291E-41 (Supp. 2003) provided, in pertinent part:
(1)
A minimum of three months up to a maximum of one
year revocation of license and privilege to
operate a
vehicle, if the
respondent's record shows no prior alcohol enforcement contact or drug
enforcement contact
during the five years
preceding the date the notice of administrative
revocation was issued;
(3)
A minimum of two years up to a maximum of four years
revocation of license and privilege to
operate a
vehicle and of the
registration of any motor vehicle registered to the respondent, if
the respondent's record
shows two prior
alcohol enforcement contacts or drug enforcement contacts
during the seven years
preceding the date
the notice of administrative revocation was issued;
(5)
For respondents under the age of eighteen years who
were arrested for a violation of section
291E-61,
revocation of license
and privilege to operate a vehicle either for the period remaining
until the respondent's
eighteenth birthday
or, if applicable, for the appropriate revocation
period provided in paragraphs (1) to (4)
or in subsection (d),
whichever is longer and such
respondents shall not qualify for a conditional permit;
. . . .
5. At the time of Defendant's arrest, HRS §§ 291E-65(a), -65(b) and -65(c) (Supp. 2005) provided:
(1)
That at the time of the arrest, the arresting
officer had probable cause to believe the
arrested person was
under the age of
twenty-one and had been operating a vehicle upon a public
way, street, road, or highway
or on or in the waters of
the State with a measurable amount of
alcohol;
(3) That the person had refused to submit to a breath or blood test.
(1)
Whether the arresting law enforcement officer had
probable cause to believe that the person
was under the
age of twenty-one and
had been operating a vehicle upon a public way, street, road,
or highway or on or in
the waters of the
State with a measurable amount of alcohol;
(3) Whether the arresting officer had informed the person of the sanctions of this section; and
(c) If the district judge finds the statements contained in the affidavit are true, the judge shall suspend the arrested person's license and privilege to operate a vehicle as follows:
6. HRS § 291E-64(a) (Supp. 2006) provides:
7. "The circuit court's conclusions of law are reviewed under the right/wrong standard." State v. Wilson, 92 Hawai`i 45, 48, 987 P.2d 268, 271 (1999) (citation and internal quotation marks omitted).
8. As is evident from its punishment, HRS § 291E-64(b), a violation of the soi-disant "zero tolerance law" is not a crime. HRS § 291E-64(i) (Supp. 2006) ("Any person who violates this section shall be guilty of a violation.").
9. Defendant attached to his February 25, 2005 motion in limine a copy of a decision and order on judicial review of an administrative revocation, authored by the same presiding judge, which included similar exemplification:
Because the procedure of using both forms at the same time made it impossible for Petitioner to make an informed and intelligent decision to take or refuse a test for DUI based solely upon the sanctions contained in the form, the Hearing Officer should not have considered the refusal.
Hay v. Administrative Director of the Courts, JR No. 04-0030 (Haw. Dist. Ct. filed December 7, 2004), at 4-5.