supplemental brief - university of hawaiʻi
TRANSCRIPT
NO. CAAP-12-0000858
IN THE INTERMEDIATE COURT OF APPEALS
STATE OF HAWAII
STATE OF HAWAII,
Plaintiff-Appellee,
vs.
YONG SHIK WON,
Defendant-Appellant.
_______________________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ORIGINAL CASE NO. 1DTA-11-01903
APPEAL FROM THE JUDGEMENT and
SENTENCE ENTERED, on September 20,
2013
SUPPLEMENTAL MCNEELY BRIEF;
EXHIBITS A-C
DISTRICT COURT OF THE FIRST
CIRCUIT
HONORABLE JUDGE DAVID LO
SUPPLEMENTAL MCNEELY BRIEF
AND EXHBITS A-C
JONATHAN BURGE #6692
Attorney at Law
412 Iolani Avenue
Honolulu, Hawaii 96813
Telephone: 521-4500
ATTORNEY FOR DEFENDANT-APPELLANT
YONG SHIK WON
Electronically FiledIntermediate Court of AppealsCAAP-12-000085814-AUG-201305:07 PM
i
TABLE OF CONTENTS
I. INTRODUCTION .............................................................................................................. 1
II. ARGUMENT ...................................................................................................................... 2
1. THE CURRENT IMPLIED CONSENT LAW VIOLATES THE 4TH AMENDMENT ... 2
A. Blood Test, Breath Test, and/or Urine Test Are All Considered a Search Subject to
the Fourth Amendment. ...................................................................................................... 7
B. A Person has a Statutory Right to Withdraw Consent to be Tested for Alcohol
Concentration of His/Her Blood of Breath ......................................................................... 9
C. A Person Has A Constitutional Right To Withdraw Consent To Be Tested for Blood
Or Breath Alcohol Concentration ..................................................................................... 10
D. Defendant's Consent To A Blood Alcohol Test Was Not Freely and Voluntarily
Given.. ............................................................................................................................... 11
2. THERE ARE NO OTHER WARRANT EXCEPTIONS TO ALLOW THE BREATH
TEST EVIDENCE IN THIS CASE. ................................................................................. 16
A. Search Incident To Arrest Is Not Applicable To This Case. ....................................... 16
B. There Are No Exigent Circumstances On The Facts Of This Case. ........................... 19
C. The Special Law Enforcement Exception Does Not Apply In A Petty Offense Drunk
Driving Case. .................................................................................................................... 20
3. THE STATE CAN HAVE IMPLIED CONSENT LAWS, BUT THEY CAN’T
CRIMINALIZE THE CONSTITUTIONAL RIGHT TO WITHDRAW CONSENT. .... 22
III. CONCLUSION ............................................................................................................... 23
ii
TABLE OF AUTHORITIES
Cases
Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct 1788 (1968)…………………........................12
Burnett v. Anchorage, 806 F. 2d 1447 (CA9 1986)…………………………………. 8, 16, 17, 18
California v. Trombetta, 467 U.S. 479, 104 S.Ct 2528 (1984)……………………………….8, 18
Camera v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727 (1967)…………….............................15
Chapman v. United States, 365 U.S. 610, 81 S.Ct 776 (1961)……………………......................15
Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034 (1969)………………………………………16
Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000 (1973)…………………………………………..20
Douglass v. Pflueger Hawai’i, Inc., 110 Haw. 520, 135 P.3d 129 (2006)………………………..7
Johnson v. United States, 333 U. S. 10, 68 S. Ct. 367, (1948)……………………………………5
Katz v. United States, 389 U.S. 347, 88 S.Ct. 694 (1967)……………………….........................10
Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.1684 (1961)…………………………………………….2, 3
Maryland v. King, 133 S.Ct 1958 (2013)…………………………………………....................20, 21
Mason v. Pulliam, 557 F.2d 426 (5th Cir. 1977)………………………………...........................10
McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191 (1948)…………………………….15, 19
Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408 (1978)………………………………………...16
Missouri v. McNeely, 569 U.S. __, 133 S.Ct. 1552 (2013).1, 2, 3, 4, 5, 6, 7, 11, 16, 18, 19, 20, 22
National Treasury Employees Union v. Von Raab, 816 F. 2d 170 (5th Cir. 1987)………………..9
Preston v. United States, 376 U. S. 364, 367, 84 S. Ct. 881 (1964)………………………………6
Schmerber v. California, 384 U.S. 757, 84 S.Ct. 881 (1966)…………3, 5, 6, 8, 16, 17, 18, 19, 20
Shoemaker v. Handel, 795 F. 2d 1136, 1141 (CA3), cert. denied, 479 U.S. 986 (1986)……..8, 18
Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 109 S. Ct. 1402 (1989)…..5, 8, 9, 19
South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916 (1983)…………………………………..22
State v. Barnett, 68 Haw. 32, 703 P.2d 680 (1985)……………………………………………...13
State v. Dixon, 83 Hawai'i 13, 924 P.2d 181 (1996)…………………………………………...…3
State v. Fukusaku, 85 Haw. 462, 946 P.2d 32 (1997)…………………………………………….3
State v. Medeiros, 4 Haw. App. 248, 665 P.2d 181 (1983)……………………………………….3
Nakamoto v. Fasi, 64 Haw. 17, 635 P.2d 946 (1981)……………………………………………13
State v. Nakata, 76 Haw. 360, 878 P.2d 699 (1994)……………………………………………….21
State v. Patterson, 58 Haw. 462, 571 P.2d 745 (1977)…………………………………………..13
State v. Tanaka, 67 Haw. 658, 701 P.2d 1274 (1985)…………………………………………….3
State v. Taua, 98 Hawai`I 426, 49 P.3d 1227 (2002)……………………………………………..2
State v. Williams, 114 Haw. 406, 163 P.3d 1143 (2007) ......................................................... 2, 10
State v. Wilson, 92 Haw. 45, 987 P.2d 268 (1999) ................................................................. 1, 2, 23
State v. Wyatt, 67 Haw. 293, 687 P.2d 544 (1984)……………………………………………….3
Stoner v. California, 376 U.S. 483, 84 S.Ct. 889 (1964)………………………………………...15
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968)……………………………………………...8, 18
United States v. Bradley, 234 F.3d 363 (8th Cir. 2000)…………………………………………13
United States v. Chaidez, 906 F.2d 377 (8th Cir. 1990)…………………………………………12
United States v. Castillo, 866 F.2d 1071 (9th Cir. 1988)………………………………………..12
United States v. Jones, 254 F.3d 692 (8th Cir. 2001)……………………………………………13
United States v. McWeeney, 454 F.3d 1030 (9th Cir. 2006)…………………………………….10
United States v. Miller, 230 F.2d 486, 490 (5th Cir. 1956)……………………………………...15
United States v. Russell, 664 F.3d 1279 (9th Cir. 2012)…………………………………….10, 12
iii
United States v. Robinson, 414 U. S. 218, 94 S. Ct. 467 (1973)…………………………………4
United States v. Sanders, 424 F.3d 768 (8th Cir. 2005)…………………………..............4, 12, 13
United States v. Smith, 260 F.3d 922 (8th Cir. 2001)…………………………….......................13
United States v. Ward, 576 F.2d 243 (9th Cir. 1978)…………………………............................10
Winston v. Lee, 470 U. S. 753, 105 S. Ct. 1611 (1985)……………………………………5, 8, 18
Statutes
Hawaii Revised Statutes Section 291E-11 .................................................................... 9, 10, 11, 13
Hawaii Revised Statutes Section 291E-15……………………………………………………….14
Hawaii Revised Statutes Section 291E-21…………………………………………………...13, 13
Hawaii Revised Statutes Section 291E-41……………………………………………………….14
Hawaii Revised Statutes Section 291E-6l..................................................................................... 21
Hawaii Revised Statutes Section 291E-65……………………………………………….13, 14, 15
Hawaii Revised Statutes Section 291E-68 …………………………………1, 2, 14, 15, 20, 22, 23
Hawaii Revised Statutes Section 803-9 ................................................................................ 1, 2, 23
Hawaii Revised Statutes Section 806-60………………………………………………………...21
Rules
Hawaii Rules of Appellate Procedure Rule 35……………………………………………………7
Federal Rules of Appellate Procedure Rule 32.1………………………………………………….7
Minnesota Court of Appeals Rule 4……………………………………………………………….4
Constitutional Provisions
4th Amendment of the United States Constitution ……………………………2, 16, 18, 19, 21, 23
Article 1 Section 7 of the Hawaii Constitution ....................................................................... 2, 3, 11
1
NO. CAAP-12-0000858
IN THE INTERMEDIATE COURT OF APPEALS
STATE OF HAWAII
STATE OF HAWAII,
Plaintiff-Appellee,
vs.
YONG SHIK WON,
Defendant-Appellant.
_______________________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ORIGINAL CASE NO. 1DTA-11-01903
APPEAL FROM THE JUDGEMENT and
SENTENCE ENTERED, on September 20,
2013
SUPPLEMENTAL MCNEELY BRIEF
DISTRICT COURT OF THE FIRST
CIRCUIT
HONORABLE JUDGE DAVID LO
SUPPLEMENTAL MCNEELY BRIEF
I. INTRODUCTION
Appellant, by hereby submits the following supplemental arguments regarding the
affect that a recent case by the United States Supreme Court, Missouri v. McNeely, 569
U.S. , , 133 S.Ct. 1552, 1558 (2013) has on this case. In appellant’s opening brief three
points were raised: (1) because of a new statute HRS 291E-68, which criminalizes refusing
to take a test, the police violated appellant’s Miranda rights when they asked for Appellant’s
choice under the implied consent law; (2) that the police violated State v. Wilson, 92 Haw.
45, 987 P.2d 268 (1999) when they misinformed Appellant of the sanctions telling him that
he “shall” be subject to 30 days in jail if he refused; and (3) that they violated HRS 803-9 by
telling him that he was not entitled to an attorney.
2
As explained below McNeely affects Appellant in this case by: (1) rendering the
Miranda argument as moot since HRS 291E-68 is unconstitutional, which removes the
reason for the Miranda violation; (2) there is a still a Wilson violation since the police
misinformed appellant that he “shall” be subject to 30 days in jail, for the previously argued
reasons in the opening brief, and because HRS 291E-68 is unconstitutional; (3) McNeely
has no effect on the HRS 803-9 argument, since State v. Williams, 144 Haw. 406, 163 P.3d
1143 (2007) requires the police to examine an arrestee as to their choices under the implied
consent; and (4) the court may notice plain error and suppress the breath test as the result of
the 4th Amendment to the US Constitution and/or Article 1, Section 7 of the Hawaii
Constitution.
II. ARGUMENT
1. THE CURRENT IMPLIED CONSENT LAW VIOLATES THE 4TH
AMENDMENT
In Mapp v. Ohio, the United States Supreme Court held that the Fourth Amendment
to the United States Constitution was made applicable to the States through the Due Process
Clause of the Fourteenth Amendment. 367 U.S. 643 (1961). Article I, Section 7 of the
Hawai’i Constitution also provides similar protections, as follows:
The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches, seizures and invasions of privacy
shall not be violated; and no warrants shall issue but upon probable
cause, supported by oath or affirmation, and particularly describing the
place to be searched and the persons or things to be seized or the
communications sought to be intercepted.
The Hawai`i Supreme Court has also made clear that "[a]rticle I, section 7 of the
Hawai`i Constitution affords the people of this State greater protection than the Fourth
Amendment [to] the United Stated Constitution." State v. Taua, 98 Hawai`I 426, 449,
3
49 P.3d 1227, 1250 (2002) (emphasis added) (citing State v. Tanaka, 67 Haw. 658, 661-62,
701 P.2d 1274, 1276 (1985)). "The overriding function of the Fourth Amendment [and
article I, section 7 of the Hawai`i Constitution] is to protect personal privacy and dignity
against unwarranted intrusion by the State." State v. Wyatt, 67 Haw. 293, 303, 687 P.2d
544, 551-52 (1984) (quoting Schmerber v. California, 384 U.S. 757, 767 (1966)) (brackets
in original). As such, the exclusionary rule is applicable in that "all evidence obtained by
searches and seizures in violation of the Constitution is, by that same authority, inadmissible
in a state court." Mapp v. Ohio, 367 U.S. at 655; see also State v. Fukusaku, 85 Haw. 462,
475, 946 P.2d 32, 45 (1997) ("[T]he 'fruit of the poisonous tree' doctrine prohibits the use of
evidence at trial which comes to light as a result of the exploitation of a previous illegal act
of the police." (Quoting State v. Medeiros, 4 Haw. App. 248, 251 n. 4, 665 P.2d 181, 184 n.
4 (1983))). The protections afforded by Article I, Section 7 of the Hawaii Constitution are
much broader than the Fourth Amendment. See e.g., State v. Dixon, 83 Hawai'i 13, 23, 924
P.2d 181, 191 (1996) (stating that "article I, section 7 of the Hawai'i Constitution provides
broader protection than the [F]ourth [A]mendment to the United States Constitution because
it also protects against unreasonable invasions of privacy"). Thus, if Appellant’s submission
to a blood test or breath test for alcohol concentration is considered a search in the
constitutional sense, and no warrant was obtained, absent an exception to the warrant
requirement, all evidence stemming therefrom must be suppressed as fruits of the poisonous
tree.
In Missouri v. McNeely, 569 U.S. , , 133 S.Ct. 1552, 1558 (2013), the United
States Supreme Court "granted certiorari to resolve a split of authority on the question
whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency
4
that suffices on its own to justify an exception to the warrant requirement for nonconsensual
blood testing in drunk-driving investigations." The pertinent facts in McNeely, are as
follows:
While on highway patrol at approximately 2:08 a.m., a Missouri
police officer stopped McNeely's truck after observing it exceed the
posted speed limit and repeatedly cross the centerline. The officer
noticed several signs that McNeely was intoxicated, including
McNeely's bloodshot eyes, his slurred speech, and the smell of
alcohol on his breath. McNeely acknowledged to the officer that he
had consumed "a couple of beers" at a bar, and he appeared
unsteady on his feet when he exited the truck. After McNeely
performed poorly on a battery of field-sobriety tests and declined to
use a portable breath-test device to measure his blood alcohol
concentration (BAC), the officer placed him under arrest.
The officer began to transport McNeely to the station house. But
when McNeely indicated that he would again refuse to provide a
breath sample, the officer changed course and took McNeely to a
nearby hospital for blood testing. The officer did not attempt to
secure a warrant. Upon arrival at the hospital, the officer asked
McNeely whether he would consent to a blood test. Reading from a
standard implied consent form, the officer explained to McNeely that
under state law refusal to submit voluntarily to the test would lead to
the immediate revocation of his driver's license for one year and
could be used against him in a future prosecution. See Mo. Ann. Stat.
§§577.020.1, 577.041 (West 2011). McNeely nonetheless refused.
The officer then directed a hospital lab technician to take a blood
sample, and the sample was secured at approximately 2:35 a.m.
Subsequent laboratory testing measured McNeely's BAC at 0.154
percent, which was well above the legal limit of 0.08 percent. See
§577.012.1.
Id. at , 133 S.Ct. at 1556-57 (emphasis added). The Supreme Court conducted a Fourth
Amendment analysis, considered its previous precedent, and stated in part, as follows:
Our cases have held that a warrantless search of the person is
reasonable only if it falls within a recognized exception. See, e.g.,
United States v. Robinson, 414 U. S. 218, 224, 94 S. Ct. 467, 38 L.
Ed. 2d 427 (1973). That principle applies to the type of search at
issue in this case, which involved a compelled physical intrusion
beneath McNeely's skin and into his veins to obtain a sample of his
blood for use as evidence in a criminal investigation. Such an
5
invasion of bodily integrity implicates an individual's "most personal
and deep-rooted expectations of privacy." Winston v. Lee, 470 U. S.
753, 760, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985); see also Skinner
v. Railway Labor Executives' Assn., 489 U. S. 602, 616, 109 S. Ct.
1402, 103 L. Ed. 2d 639 (1989).
We first considered the Fourth Amendment restrictions on such searches in Schmerber, where, as in this case, a blood sample was
drawn from a defendant suspected of driving while under the influence of alcohol. 384 U. S., at 758, 86 S. Ct. 1826, 16 L. Ed. 2d
908. Noting that "[s]earch warrants are ordinarily required for searches of dwellings," we reasoned that "absent an emergency, no
less could be required where intrusions into the human body are concerned," even when the search was conducted following a lawful
arrest. Id., at 770, 86 S. Ct. 1826, 16 L. Ed. 2d 908. We explained that the importance of requiring authorization by a "'neutral and
detached magistrate'" before allowing a law enforcement officer to
"invade another's body in search of evidence of guilt is indisputable and great." Ibid. (quoting Johnson v. United States, 333 U. S. 10, 13-
14, 68 S. Ct. 367, 92 L. Ed. 436 (1948)).
Id. at , 133 S.Ct. at 1558 (emphases added, italics in original). The Court ultimately held
"that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream
does not constitute an exigency in every case sufficient to justify conducting a blood test
without a warrant." Id. at , 133 S.Ct. at 1568. The United States Supreme Court has
clearly held that absent an exception to the warrant requirement, the government may not
compel a blood draw without a warrant. See Id. Therefore, Defendant maintains that
McNeely stands for the proposition that in spite of the implied consent law, nonconsensual
blood or breath alcohol tests violate the Fourth Amendment, absent exigent circumstances,
based on individualized facts, in OVUII cases.
In deciding McNeely, the Supreme Court further clarified its holding in Schmerber v.
California, 384 U.S. 757 (1966), as follows:
Our decision in Schmerber applied this totality of the circumstances
approach. In that case, the petitioner had suffered injuries in an
automobile accident and was taken to the hospital. 384 U. S., at 758,
86 S. Ct. 1826, 16 L. Ed. 2d 908. While he was there receiving
6
treatment, a police officer arrested the petitioner for driving while
under the influence of alcohol and ordered a blood test over his
objection. Id., at 758-759, 86 S. Ct. 1826, 16 L. Ed. 2d 908. After
explaining that the warrant requirement applied generally to
searches that intrude into the human body, we concluded that the
warrantless blood test “in the present case” was nonetheless
permissible because the officer “might reasonably have believed
that he was confronted with an emergency, in which the delay
necessary to obtain a warrant, under the circumstances, threatened
‘the destruction of evidence.’” Id., at 770, 86 S. Ct. 1826, 16 L. Ed.
2d 908 (quoting Preston v. United States, 376 U. S. 364, 367, 84 S.
Ct. 881, 11 L. Ed. 2d 777 (1964)).
In support of that conclusion, we observed that evidence could have
been lost because “the percentage of alcohol in the blood begins to
diminish shortly after drinking stops, as the body functions to
eliminate it from the system.” 384 U. S., at 770, 86 S. Ct. 1826, 16
L. Ed. 2d 908. We added that “[p]articularly in a case such as this,
where time had to be taken to bring the accused to a hospital and to
investigate the scene of the accident, there was no time to seek out a
magistrate and secure a warrant.” Id., at 770-771, 86 S. Ct. 1826, 16
L. Ed. 2d 908. “Given these special facts,” we found that it was
appropriate for the police to act without a warrant. Id., at 771, 86 S.
Ct. 1826, 16 L. Ed. 2d 908. We further held that the blood test at
issue was a reasonable way to recover the evidence because it was
highly effective, “involve[d] virtually no risk, trauma, or pain,” and
was conducted in a reasonable fashion “by a physician in a hospital
environment according to accepted medical practices.” Ibid. And in
conclusion, we noted that our judgment that there had been no
Fourth Amendment violation was strictly based “on the facts of the
present record.” Id., at 772, 86 S. Ct. 1826, 16 L. Ed. 2d 908.
Thus, our analysis in Schmerber fits comfortably within our case law
applying the exigent circumstances exception. In finding the warrantless blood test reasonable in Schmerber, we considered all of
the facts and circumstances of the particular case and carefully based our holding on those specific facts.
McNeely, 569 U.S. at , 133 S. Ct. at 1559-60 (emphases added). Thus, the Supreme
Court made clear in McNeely, that pursuant to Schmerber, a court must apply the totality of
the circumstances approach in every case by considering the facts and circumstances of that
particular case, to decide whether the exigent circumstances exception to the Fourth
Amendment is applicable, instead of a categorical per se approach. See Id. In so doing, the
7
Supreme Court clearly dispensed with the proposition that the natural dissipation of alcohol
in the bloodstream in and of itself, constitutes an exigency to justify a warrantless blood test
search. See Id.
A. Blood Test, Breath Test, and/or Urine Test Are All Considered a Search
Subject to the Fourth Amendment.
The prosecution may attempt to argue that McNeely only dealt with a blood test and, as
such, a Fourth Amendment analysis has no applicability to a breath test or urine test. While it is
true that the facts of McNeely only dealt with a blood draw, days after it was decided, the United
States Supreme Court granted certiorari in a urine test case by way of a Summary Disposition,
and stated "[j]udgments vacated, and cases remanded to the Court of Appeals of Minnesota for
further consideration in light of Missouri v. McNeely[.] Brooks v. Minnesota, No. 12-478, 185
L. Ed. 2d 863, 863-64, (United States Supreme Court April 22, 2013) (Summary Disposition),
attached Exhibit "A"; see also, Minnesota v. Brooks, No. A11-1042, 2012 Minn. App. Unpub.
(May 7, 2012) (Unpublished Opinion), attached as Exhibit "B".1
While it is true that the specific alcohol concentration test at issue in McNeely was a
blood test, the prosecution's reliance upon such a position would be both misplaced, and
clearly contrary to previous precedent of the United States Supreme Court. A blood test,
1 The United States Supreme Court Summary Disposition, and the Minnesota Court of
Appeals Unpublished Opinion that was vacated and remanded by the United States Supreme
Court are cited merely for persuasive value – a urine test is subject to Fourth Amendment
analysis. See generally, Douglass v. Pflueger Hawai’i, Inc., 110 Haw. 520, 539 n.5, 135
P.3d 129, 148 n.5 (2006) ("A]lthough Hawai'i Rules of Appellate Procedure (HRAP) Rule
35(c) seemingly precludes citation to unpublished opinions, it neither directly applies nor
expressly proscribes citations to unpublished dispositions from other jurisdictions.").
Additionally, the Federal Rules of Appellate Procedure, Rule 32.1, and Minnesota Court of
Appeals, Rule 4 allow for citation to unpublished opinions provided a copy is appended.
8
breath test, and urine test that are conducted for alcohol concentration or drug content are all
considered a search pursuant to the Fourth Amendment.
In Skinner v. Railway Labor Executives' Assoc., 489 U.S. 602 (1989), the Court
concluded that a blood test, breath test, and urine test are searches subject to the Fourth
Amendment to the United States Constitution. See 489 U.S. at 616-17. The Court's analysis
was as follows:
We have long recognized that "compelled intrusio[n] into the body for
blood to be analyzed for alcohol content" must be deemed a Fourth
Amendment search. See Schmerber v. California, 384 U.S.
757, 767-768 (1966). See also Winston v. Lee, 470 U.S. 753, 760
(1985). In light of our society's concern for the security of one's
person, see, e. g., Terry v. Ohio, 392 U.S. 1, 9 (1968), it is obvious
that this physical intrusion, penetrating beneath the skin, infringes an
expectation of privacy that society is prepared to recognize as
reasonable. The ensuing chemical analysis of the sample to obtain
physiological data is a further invasion of the tested employee's
privacy interests. Cf. Arizona v. Hicks, 480 U.S. 321, 324-325
(1987). Much the same is true of the breath-testing procedures
required under Subpart D of the regulations. Subjecting a person to a
breathalyzer test, which generally requires the production of alveolar
or "deep lung" breath for chemical analysis, see, e. g., California v.
Trombetta, 467 U.S. 479, 481 (1984), implicates similar concerns
about bodily integrity and, like the blood-alcohol test we considered
in Schmerber, should also be deemed a search, see 1 W. LaFave,
Search and Seizure § 2.6(a), p. 463 (1987). See also Burnett v.
Anchorage, 806 F. 2d 1447, 1449 (CA9 1986); Shoemaker v.
Handel, 795 F. 2d 1136, 1141 (CA3), cert. denied, 479 U.S. 986
(1986).
Unlike the blood-testing procedure at issue in Schmerber, the procedures
prescribed by the FRA regulations for collecting and testing urine
samples do not entail a surgical intrusion into the body. It is not disputed,
however, that chemical analysis of urine, like that of blood, can reveal a
host of private medical facts about an employee, including whether he or
she is epileptic, pregnant, or diabetic. Nor can it be disputed that the
process of collecting the sample to be tested, which may in some cases
involve visual or aural monitoring of the act of urination, itself
implicates privacy interests. As the Court of Appeals for the Fifth Circuit
has stated:
9
"There are few activities in our society more personal or
private than the passing of urine. Most people describe it
by euphemisms if they talk about it at all. It is a function
traditionally performed without public observation;
indeed, its performance in public is generally prohibited
by law as well as social custom." National Treasury
Employees Union v. Von Raab, 816 F. 2d 170, 175
(1987).
Because it is clear that the collection and testing of urine intrudes
upon expectations of privacy that society has long recognized as
reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed
searches under the Fourth Amendment.
Skinner, 489 U.S. at 616-17 (emphases added). Thus, as a blood test, breath test, and urine
test are all considered searches under the Fourth Amendment, and in the event the
prosecution takes a position an argument to the contrary, it is simply without merit. No
warrant was obtained in the present case and, as such, the prosecution must attempt to rely
upon an exception to the warrant requirement such as exigent circumstances or consent.
There is no evidence which would support exigent circumstances, or any other
exception in this case, therefore the prosecution must show that there was consent.
B. A Person has a Statutory Right to Withdraw Consent to be
Tested for Alcohol Concentration of His/Her Blood of Breath
It is clear that Hawaii has an implied consent law. In part, the implied consent law is
codified in HRS 291E-11, which provides in pertinent part as follows:
(a) Any person who operates a vehicle upon a public way, street,
road, or highway or on or in the waters of the State shall be deemed
to have given consent, subject to this part, to a test or tests approved
by the director of health 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, as applicable.
(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:
10
(1) A lawful arrest; and
(2) The person has been informed by a law enforcement officer that
the person may refuse to submit to testing under this chapter.
(Emphasis added). Pursuant to statute, any person that drives a motor vehicle in Hawaii has been
deemed to have given implied consent to blood alcohol testing. However, that previous consent
is qualified in that the person also has the statutory right as contained in HRS § 291E-11(b)(2) to
refuse to submit to testing. See e.g. State v. Williams, 114 Hawaii 406, 410 (2007) ("The results
of nonconsensual blood draws that do not comply with the statutory requirements are unlawful
and may be excluded from evidence (or suppressed by appropriate motion) under the fruit of the
poisonous tree doctrine." (Internal quotation marks and citation omitted)).
C. A Person Has A Constitutional Right To Withdraw Consent To Be
Tested for Blood Or Breath Alcohol Concentration
"It is well-established that consent is a recognized exception to the Fourth Amendment's
protection against unreasonable searches and seizures." United States v. Russell, 664 F.3d 1279,
1281 (9th Cir. 2012) (citing Katz v. United States, 389 U.S. 347, 358 n.22 (1967) ("A search to
which an individual consents meets Fourth Amendment requirements.")). Once consent is given,
it does not mean that a person cannot withdraw consent or limit its scope. It is clear that pursuant
to the United States Constitution, "[a] [person] is free, however, after initially giving consent, to
delimit or withdraw his or her consent at anytime." United States v. McWeeney, 454 F.3d 1030,
1034 (2006) (emphasis added) (citing Florida v. Jimeno, 500 U.S. 248, 252 (1991) ("A suspect
may of course delimit as he chooses the scope of the search to which he consents."); United
States v. Ward, 576 F.2d 243, 244 (9th Cir. 1978) ("[S]ince [appellee's] action was unilateral and
contained no agreement as to duration it was implicitly limited by [appellee's] right to withdraw
his consent." (Quoting Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir. 1977)))). As applicable to
11
the instant case, Defendant may have given consent by operating his/her vehicle on a roadway
within the State, but that consent may be withdrawn or limited as Defendant has the
constitutional right to withdraw that consent.
In McNeely, discussed supra, the defendant withdrew his consent under Missouri's
implied consent law, and the United States Supreme Court held:
The question presented here is whether the natural metabolization of
alcohol in the bloodstream presents a per se exigency that justifies
an exception to the Fourth Amendment's warrant requirement for
nonconsensual blood testing in all drunk-driving cases. We
conclude that it does not, and we hold, consistent with general
Fourth Amendment principles, that exigency in this context
must be determined case by case based on the totality of the
circumstances.
McNeely, 569 U.S. at , 133 S.Ct. at 1556 (emphasis added). Thus, McNeely stands for
the proposition that in spite of the implied consent law, a nonconsensual blood draw violates
the Fourth Amendment absent exigent circumstances. Furthermore, it is clear that under the
Fourth Amendment to the Unites States Constitution, or Article I, Section 7 of the Hawaii
Constitution, a person can withdraw their consent to take a blood or breath test to determine
alcohol concentration. This is also consistent with HRS § 291E-11. See supra, section B.
D. Defendant's Consent To A Blood Alcohol Test Was Not Freely and
Voluntarily Given
The prosecution will likely argue that Defendant consented to the blood or breath alcohol
test at issue in the present case. As previously discussed, if a defendant validly consents to a
blood and/or breath alcohol test, utilizing the results in a subsequent criminal prosecution would
not run afoul of the Fourth Amendment to the United States Constitution or Article I, Section 7
of the Hawaii Constitution, as consent is a well established exception to the warrant requirement.
At first blush, it may appear that the Defendant consented to the alcohol concentration test, but
12
"it is the government's burden to show the consent was given freely and voluntarily." United
States v. Russell, 664 F.3d 1279, 1281 (9th Cir. 2012) (emphasis added) (citations and internal
quotation marks omitted). Furthermore, in establishing consent, it is not enough to "show[] mere
acquiescence to a claim of lawful authority." United States v. Sanders, 424 F.3d 768 (8th Cir.
2005) (citing Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). The prosecution "must
show that a reasonable person would have believed that the subject of a search gave consent that
was the product of an essentially free and unconstrained choice, and that the subject
comprehended the choice that he or she was making." Id. (quotation marks and citation
omitted).
The United States Court of Appeals for the Ninth Circuit has identified the
following five factors when considering voluntariness of consent to search:
(1) whether defendant was in custody; (2) whether the arresting
officers have their guns drawn; (3) whether Miranda warnings have
been given; (4) whether the defendant was told he has a right not to
consent; and (5) whether defendant was told a search warrant could
be obtained. The fact that some of these factors are not established
does not automatically mean that consent was not voluntary.
Russell, 664 F.3d at 1281 (quoting United States v. Morning, 64 F.3d 531, 533 (9th Cir.
1995) (quoting United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988))). The United
States Court of Appeals for the Eight Circuit has even more expanded factors to be considered
when determining voluntariness of consent, as follows:
Factors we consider when determining if consent was freely and voluntarily given, as set forth in United States v. Chaidez, 906 F.2d
377, 381 (8th Cir. 1990), include 1) age, 2) general intelligence and education, 3) whether the individual was under the influence of
drugs or alcohol, 4) whether he was informed of his Miranda rights, and 5) whether he had experienced prior arrests and was thus aware
of the protections the legal system affords suspected criminals.
Additionally, the environment in which the alleged consent was
secured is also relevant. Accordingly, we consider 1) the length of
13
time one was detained, 2) whether the police threatened, physically
intimidated, or punished the suspect, 3) whether the police made promises or misrepresentations, 4) whether the suspect was in
custody or under arrest when the consent was given, 5) whether the consent occurred in a public or a secluded place, and 6) whether the
suspect stood by silently as the search occurred. United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001). We also consider "whether
the defendant's contemporaneous reaction to the search was consistent with consent." United States v. Jones, 254 F.3d 692, 696
(8th Cir. 2001). "The factors should not be applied mechanically, and
no single factor is dispositive or controlling." United States v. Bradley, 234 F.3d 363, 366 (8th Cir. 2000) (internal citation
omitted).
Sanders, 424 F.3d at 773 (emphases added, footnote omitted). In Hawaii, "[t]he burden is on the
State to show consent which is free and voluntary." State v. Barnett, 68 Haw. 32, 34, 703 P.2d
680, 682 (1985). Furthermore, "[t]he test is one of the totality of the circumstances and the
State's showing must be by a preponderance of the evidence." Id. (citing State v. Patterson, 58
Haw. 462, 571 P.2d 745 (1977)).
Regardless what standard is utilized, for "[c]onsent to be valid [it] must be uncoerced[.]"
Nakamoto v. Fasi, 64 Haw. 17, 21, 635 P.2d 946, 951 (1981).
In this case, Defendant was read the implied consent form by officers, which
stated in pertinent part, as follows:
You may refuse to submit to a breath or blood test, or both for the
purpose of determining alcohol concentration and/or blood or urine test, or both for purpose of determining drug content, none shall be
given, except as provided in section 291E-21. However, if you refuse to submit to a breath, blood, or urine test, you shall be subject
to up to thirty days imprisonment and/or fine up to $1,000 or the
sanctions of 291E-65, if applicable. In addition, you shall also be subject to the procedures and sanctions under chapter 291E, part III.
See item 36 in case 1DTA-11-01903 (Emphasis added). The underlined language in the implied
consent form is not required by HRS § 291E-11, which only requires that an officer inform a
person that "the person may refuse to submit to testing under this chapter." HRS 291-11(b)(2).
14
Basically, all an officer must inform a person of is that there is an implied consent law in
Hawaii, and that the person may refuse to submit to testing. If that were the case here, the proper
procedure would have been followed, and Appellant’s consent would have been valid. However,
by informing Defendant that he/she "shall be subject to up to thirty days imprisonment and/or
fine up to $1000" served no purpose, and is nothing more than a blatant attempt to coerce
Appellant into giving his consent to be tested. In fact, the implied consent form does not even
inform a person that he is subject to the criminal penalties ONLY IF he she is convicted of the
crime of refusal. A lay person may interpret this language to mean that they may have to sit in
jail until 30 days have elapsed and/or they have to pay a fine up to $1000 prior to being released.
This language is not necessary, and it is plainly coercive as it relates to the voluntariness of
Appellant’s consent.
Officer's are not required to inform a person of the potential penalties and sanctions
contained in chapter 291E, unless the person initially refuses to be tested. HRS 291E-15
provides in pertinent part as follows:
If a person under arrest refuses to submit to a breath, blood, or urine test, none shall be given, except as provided in section 291E-21.
Upon the law enforcement officer's determination that the person under arrest has refused to submit to a breath, blood, or urine test, if
applicable, then a law enforcement officer shall: (1) Inform the person under arrest of the sanctions under section 291E-41, 291E-
65, or 291E-68; and
(2) Ask the person if the person still refuses to submit to a breath,
blood, or urine test, thereby subjecting the person to the procedures
and sanctions under part III or section 291E-65, as applicable[.]
(Emphases added). Pursuant to the statute, a person only need be informed of the sanctions if the
person initially refuses a blood, breath or urine test, which did not occur in this case. As such, if
15
the unnecessary language was removed from the implied consent form, and the Appellant had
consented, the consent would have been valid.
"The claim and exercise of a constitutional right cannot thus be converted into a crime."
United States v. Miller, 230 F.2d 486, 490 (5th Cir. 1956). Under Hawaii's current implied
consent laws, a person must consent to an alcohol concentration test or face criminal prosecution
under HRS 291E-68, which criminalized refusal. See HRS § 291E-68 ("Except as provided in
section 291E-65, refusal to submit to a breath, blood, or urine test as required by part II is a petty
misdemeanor."). Respectfully, HRS § 291E-68 is unconstitutional on its face and as applied.
In Camera v. Municipal Court, 387 U.S. 523 (1967), the United States Supreme
Court dealt with the situation wherein an individual was criminally charged for his refusal to
allow a housing inspector to enter his property without a warrant, and the Court summarized as
follows:
In this case, appellant has been charged with a crime for his refusal
to permit housing inspectors to enter his leasehold without a warrant.
There was no emergency demanding immediate access; in fact, the
inspectors made three trips to the building in an attempt to obtain
appellant's consent to search. Yet no warrant was obtained and thus
appellant was unable to verify either the need for or the appropriate
limits of the inspection. No doubt, the inspectors entered the public
portion of the building with the consent of the landlord, through the
building's manager, but appellee does not contend that such consent
was sufficient to authorize inspection of appellant's premises. Cf.
Stoner v. California, 376 U.S. 483; Chapman v. United States, 365
U.S. 610; McDonald v. United States, 335 U.S. 451. Assuming the
facts to be as the parties have alleged, we therefore conclude that
appellant had a constitutional right to insist that the inspectors obtain
a warrant to search and that appellant may not constitutionally be
convicted for refusing to consent to the inspection.
Camera, 387 U.S. at 540 (emphases added). The Camera case stands for the proposition that
a person may not be criminally prosecuted for exercise of his or her constitutional right to
refuse a warrantless inspection/search of their property. By extension, in Hawaii, a person
16
cannot prosecuted for exercising his or her right to refuse to submit to a blood or breath test
for alcohol concentration. It also follows, that when consent to submit to a blood alcohol
test is based upon threat of a separate criminal charge involving incarceration and/or fines,
such consent is not valid because it is not given freely and voluntarily.
2. THERE ARE NO OTHER WARRANT EXCEPTIONS TO ALLOW THE
BREATH TEST EVIDENCE IN THIS CASE.
Three main arguments have been put forth as other possible 4th Amendment exceptions to
breath tests in drunk driving cases are: (1) search incident to lawful arrest; (2) exigent
circumstances; and (3) special law enforcement needs. Each argument is easily dispelled.
A. Search Incident To Arrest Is Not Applicable To This Case.
A case that is often cited by the prosecution to stand for the proposition that criminalizing
refusing to take a test in a drunk driving case is constitutional is Burnett v. Anchorage, 806 F.2d
1447 (9th Circuit 1986). With respect, Burnett is no longer valid in light of McNeely.
Burnett dealt with Habeas relief of State court convictions for refusal to submit to
chemical breath tests after being stopped for driving while intoxicated. See Burnett at 1448. The
court based its ruling on Schmerber v. California, 384 U.S. 757, 86 S.Ct 1826 (1966).
It is not disputed that the administration of a breath test is a search within the
meaning of the Fourth Amendment and therefore subject to the requirements of that
amendment. See Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833,
16 L.Ed.2d 908 (1966). One requirement is that of reasonableness. Id. at 771, 86
S.Ct. at 1836. Another requirement is the warrant requirement, which is subject to
a few specific and well-delineated exceptions. Mincey v. Arizona, 437 U.S. 385,
390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978). One such exception is a search
incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct.
2034, 2039-40, 23 L.Ed.2d 685 (1969); Schmerber, 384 U.S. at 770-71, 86 S.Ct. at
1835-36.
In Schmerber, the Court held that compelling the defendant to provide blood
samples for proving his blood alcohol percentage did not violate his constitutional
right against unreasonable searches and seizures where there was probable cause to
arrest him for driving under the influence of intoxicating liquor. The Schmerber
17
Court rejected the claim that the seizure of blood was an unreasonable search and
seizure, and identified three requirements deemed critical to the reasonableness of
the intrusion in question. First, there must be a “clear indication” that in fact the
desired evidence will be found. Second, the test chosen to measure defendant's
blood alcohol level must be a reasonable one. Third, the test must be performed in
a reasonable manner. 384 U.S. at 770-71, 86 S.Ct. at 1835-36.
Furthermore, the Schmerber Court rejected defendant's contention that a warrant
must be obtained before blood samples can be taken. According to the court:
The officer in the present case ... might reasonably have believed that he was
confronted with an emergency, in which the delay necessary to obtain a warrant,
under the circumstances, threatened “the destruction of evidence[.]” We are told
that the percentage of alcohol in the blood begins to diminish shortly after
drinking stops, as the body functions to eliminate it from the system ... Given
these special facts, we conclude that the attempt to secure evidence of blood-
alcohol content in this case was an appropriate incident to petitioner's arrest.
(citations omitted). Id.
In the present case, the taking of breath samples by the police meets the
“reasonableness” requirements of Schmerber. As in Schmerber, the Alaska law
enforcement officials had probable cause to believe petitioners were under the
influence of alcohol; therefore, there existed a clear indication that a breath test
would show petitioners had consumed significant quantities of alcohol. Likewise,
the method of blood alcohol testing used is a reasonable one. In addition, the breath
test sought by the Alaska law enforcement officials is clearly a less objectionable
intrusion than the compulsory blood samples allowed under Schmerber. It is clear
then that the breathalyzer examination in question is an appropriate and reasonable
search incident to arrest which appellants have no constitutional right to refuse.
Burnett v. Anchorage, 806 F.2d 1447 at 1449-1450. [emphasis added]
The Court went on to say:
Appellants' argument regarding consent and cooperation is misplaced. The
argument confuses a legal concept, “consent,” with a factual concept,
“cooperation.” The two are substantially different. Consent in the constitutional
sense is only required where the defendant has a legal right to refuse. As per
Schmerber, a legally arrested defendant has no constitutional right to refuse a
breathalyzer examination. True, he may fail to cooperate, but failure to cooperate
does not create a legal right where it would otherwise not exist. See McCracken v.
State, 685 P.2d 1275, 1278 (Alaska Ct.App.1984) (Singleton, J., concurring).
Burnett v. Anchorage, 806 F.2d 1447 at 1450. [emphasis added]
In other words, because it was believed at the time that Schmerber stood for the
18
proposition that alcohol dissipation in DUI cases created a per se exigency, there was an alternate
warrant exception to the 4th amendment search in every case. Therefore a defendant could not
claim that criminalization of refusals violated the constitution.
Although McNeely narrowed Schmerber so that there is no per se exigency for alcohol
dissipation, Schmerber was not overruled. Clearly Schmerber still stands for the position that
because of “human dignity and privacy” interest, searches beyond the body’s surface cannot be
upheld merely as incident to lawful arrest. Schmerber v. California, 284 U.S. 757, 769-770.
[emphasis added].
The United States Supreme Court has already ruled that a breath test, blood test, or urine
test are all searches beyond the body’s surface.
We have long recognized that a “compelled intrusio[n] into the body for blood to
be analyzed for alcohol content” must be deemed a Fourth Amendment search.
See Schmerber v. California, 109 S.Ct. 1402 Page 21 489 U.S. 602, 109 S.Ct.
1402, 130 L.R.R.M. (BNA) 2857, 49 Empl. Prac. Dec. P 38,791, 103 L.Ed.2d
639, 111 Lab.Cas. P 11,001, 4 IER Cases 224, 13 O.S.H. Cas. (BNA) 2065, 1989.
384 U.S. 757, 767-768, 86 S.Ct. 1826, 1833-1834, 16 L.Ed.2d 908 (1966). See
also Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662
(1985). In light of our society's concern for the security of one's person, see, e.g.,
Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968), it is
obvious that this physical intrusion, penetrating beneath the skin, infringes an
expectation of privacy that society is prepared to recognize as reasonable. The
ensuing chemical analysis of the sample to obtain physiological data is a further
invasion of the tested employee's privacy interests. Cf. Arizona v. Hicks, 480 U.S.
321, 324-325, 107 S.Ct. 1149, 1152-1153, 94 L.Ed.2d 347 (1987). Much the same
is true of the breath-testing procedures required under Subpart D of the
regulations. Subjecting a person to a breathalyzer test, which generally
requires the production of alveolar or “deep lung” breath for chemical
analysis, see, e.g., California v. 617 Trombetta, 467 U.S. 479, 481, 104 S.Ct.
2528, 2530, 81 L.Ed.2d 413 (1984), implicates similar concerns about bodily
integrity and, like the blood-alcohol test we considered in Schmerber, should
also be deemed a search, see W. LaFave, Search and Seizure § 2.6(a), p. 463
(1987). See also Burnett v. Anchorage, 806 F.2d 1447, 1449 (CA9 1986); Shoe-
maker v. Handel, 795 F.2d 1136, 1141 (CA3), cert. denied, 479 U.S. 986, 107
S.Ct. 577, 93 L.Ed.2d 580 (1986).
19
Skinner v. Railway Labor, 489 U.S. 602 at 616-617, 109 S.Ct. 1402 at 1412-1413 (1989). [emphasis
added]. Therefore search incident to arrest is clearly inapplicable in this case.
B. There Are No Exigent Circumstances On The Facts Of This Case.
As previously argued, McNeely now says that there is no per se exception to the
warrant requirement in DUI cases. Therefore, traditional 4th amendment analysis applies.
Appellant argues that there was not exceptional circumstances in this case after McNeely.
This was a typical drunk driving arrest, developed from an initial stop for a traffic violation.
That is not to say that there would not be a case where exceptional circumstances would
apply, just not here.
It is also true that a consensual breath test would be admissible, just as a consensual
blood test would. However, in this case the breath test was not consensual. Here the police
threatened appellant with 30 days in jail unless he took the test. That does not meet a
knowing and voluntary consent under 4th amendment analysis any more than would if the
police threatening someone with 30 days in jail to search their backpack.
The Court in McNeely has clearly stated that the dissipation of alcohol does not create
per se exigent circumstances in drunk driving cases. Skinner says that breath tests implicate
similar concerns to the body integrity as the blood test in Schmerber. Furthermore, the State
can’t just say it is too hard to get a warrant.
Though a person's blood alcohol level declines until the alcohol is eliminated, it
does not follow that the Court should depart from careful case-by-case assessment
of exigency. When officers in drunk-driving investigations can reasonably
obtain a warrant before having a blood sample drawn without significantly
undermining the efficacy of the search, the Fourth Amendment mandates that
they do so. See McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93
L.Ed. 153. Circumstances may make obtaining a warrant impractical such that the
alcohol's dissipation will support an exigency, but that is a reason to decide each
case on its facts, as in Schmerber, not to accept the “considerable
overgeneralization” that a per se rule would reflect, Richards v. Wisconsin, 520 U.S.
20
385, 393, 117 S.Ct. 1416, 137 L.Ed.2d 615. Blood testing is different in critical
respects from other destruction-of-evidence cases. Unlike a situation where, e.g., a
suspect has control over easily disposable evidence, see Cupp v. Murphy, 412 U.S.
291, 296, 93 S.Ct. 2000, 36 L.Ed.2d 900, BAC evidence naturally dissipates in a
gradual and relatively predictable manner. Moreover, because an officer must
typically take a DWI suspect to a medical facility and obtain a trained medical
professional's assistance before having a blood test conducted, some delay between
the time of the arrest or accident and time of the test is inevitable regardless of
whether a warrant is obtained. The State's rule also fails to account for advances in
the 47 years since Schmerber was decided that allow for the more expeditious
processing of warrant applications, particularly in contexts like drunk-driving
investigations where the evidence supporting probable cause is simple. The natural
dissipation of alcohol in the blood may support an exigency finding in a specific
case, as it did in Schmerber, but it does not do so categorically. Pp. 1560 – 1563.
McNeely at 1554-1555. [emphasis added].
Therefore it stands to reason that the State can’t argue that the circumstances can be
categorically exigent in a breath test but not a blood test. Exigent circumstances either exists or
it does not, no matter what test is taken. In this case, a typical DUI where the police developed
probable cause to arrest from traffic violations exigent circumstances simply did not exists.
Furthermore, the State can’t argue for per se exigency in breath cases to justify the viability of
HRS 291E-68.
C. The Special Law Enforcement Exception Does Not Apply In A Petty
Offense Drunk Driving Case.
In a recent case Maryland v. King, 133 S.Ct 1958 (2013) the United States Supreme Court
approved the police to take buccal swabs of persons arrested for “serious” offenses for DNA
identification. The defendant there had been arrested for a felony. The court looked into the type
of search, a buccal swab, in its consideration when allowing the search. However, the court
concentrated most importantly in the type of offense the person was arrested for in approving the
search.
The government interest must outweigh the degree to which the search invades an
individual's legitimate expectations of privacy. In considering those expectations
21
in this case, however, the necessary predicate of a valid arrest for a serious offense
is fundamental.
Maryland v. King,133 S.Ct. 1958, 1977-1978. (emphasis added).
The Hawaii Supreme Court has already ruled that the offense presented here, a violation
of HRS 291E-61(a)(3) [see document 1 in case 1DTA-12-00236], is a “petty” not serious offense.
Here, the maximum authorized term of imprisonment for a first-offense DUI under
HRS § 291-4, as amended, is five days-well below the six-month threshold
enunciated in Blanton. A first-offense DUI is, therefore, presumptively “petty” for
purposes of federal constitutional analysis.
State v. Nakata, 76 Haw. 360, 366, 878 P.2d 699, 705 (1994). Here the defendant faced a
maximum five days in jail as the defendant in Nakata did. Therefore, just as in Nakata the offense
here is petty. Furthermore, the instant crime does not meet the definition of “serious” under the
penal code. HRS 806-60 says:
Any defendant charged with a serious crime shall have the right to trial by a jury
of twelve members. Serious crime means any crime for which the defendant
may be imprisoned for six months or more. [emphasis added].
Therefore, the instant case, where appellant faced only up to a maximum five days in jail, is not
“serious”. If the police performed warrantless buccal swab of a defendant at the police station after
the defendant was arrested for violating HRS 291E-61, that evidence would be suppressible under
the 4th Amendment.
If this case was serious enough for a 4th Amendment exception, it would also be serious
enough for a constitutional right to jury trial. Here, the breath test is inadmissible in this case
because the necessary predicate of a serious offense is not present. Therefore, the special needs
exception to the warrant requirement is inapplicable here.
22
3. THE STATE CAN HAVE IMPLIED CONSENT LAWS, BUT THEY CAN’T
CRIMINALIZE THE CONSTITUTIONAL RIGHT TO WITHDRAW
CONSENT.
There is no case suggesting that “implied consent” is Fourth Amendment consent. In
order for consent to be deemed freely given, a motorist must be free to withdraw that
consent. By telling a motorist that he or she is required to do something, a motorist logically
and reasonably believes that consent cannot be withdrawn. Even though criminalizing a
person’s constitutional right to withdraw consent, as HRS 291E-68 does, is unconstitutional,
that does not mean that the state can no longer have implied consent laws.
In McNeely, the court gave specific examples of the types of actions the States could take
if people refused to be tested.
As an initial matter, States have a broad range of legal tools to enforce their drunk-
driving laws and to secure BAC evidence without undertaking warrantless
nonconsensual blood draws. For example, all 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 testing if they are arrested or otherwise detained
on suspicion of a drunk-driving offense. See NHTSA Review 173; supra, at 1556
(describing Missouri's implied consent law). Such laws impose significant
consequences when a motorist withdraws consent; typically the motorist's driver's
license is immediately suspended or revoked, and most States allow the motorist's
refusal to take a BAC test to be used as evidence against him in a subsequent
criminal prosecution. See NHTSA Review 173–175; see also South Dakota v.
Neville, 459 U.S. 553, 554, 563–564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983)
(holding that the use of such an adverse inference does not violate the Fifth
Amendment right against self-incrimination).
Missouri v. McNeely, 133 S.Ct. 1552 at 1566. All references made by the court were
with respect to either evidentiary use of a refusal or to administrative penalties attendant to a
refusal. The Court did not endorse refusal to test as a separate crime. In the post-McNeely
environment, absent a warrant, appellant could refuse the breath test, although the current form
tells appellant that doing so would subject appellant to 30 days in jail.
23
III. CONCLUSION
As previously argued, the implied consent misinformed appellant of the sanctions when it
told appellant that appellant “shall” be subject to 30 days in jail for refusing. The form should
have read “may” not “shall”. In addition, if HRS 291E-68 is unconstitutional then appellant was
misinformed regarding any possibility of going to jail for refusing. At most, the state could have
taken appellant’s privilege to drive for refusing, but not subjected appellant to criminal charges if
appellant chose to exercise appellant’s constitutional right to withdraw appellant’s consent to be
tested.
Whether the government violated the 4th Amendment, the 5th Amendment, Wilson, or
HRS 803-9 appellant’s substantial rights were violated and the breath test in this case should
have been suppressed. As such appellant asks this court to reverse the trial court, suppress the
breath test evidence and dismiss this case with prejudice.
DATED: Honolulu, Hawaii, August 14, 2013.
/s/ Jonathan Burge
JONATHAN BURGE
Attorney for Defendant-Appellant
YONG SHIK WON
NO. CAAP-12-0000858
IN THE INTERMEDIATE COURT OF APPEALS
STATE OF HAWAII
STATE OF HAWAII,
Plaintiff-Appellee,
vs.
YONG SHIK WON,
Defendant-Appellant.
_______________________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ORIGINAL CASE NO. 1DTA-11-01903
APPEAL FROM THE JUDGEMENT and
SENTENCE ENTERED, on September 20,
2013
EXHIBIT “A”
DISTRICT COURT OF THE FIRST
CIRCUIT
HONORABLE JUDGE DAVID LO
EXHIBIT “A”
Brooks v. Minnesota,
No. 12-478, 185 L. Ed. 2d 863, 863-64, (United States Supreme Court April 22, 2013)
(Summary Disposition)
(ORDER LIST: 569 U.S.)
MONDAY, APRIL 22, 2013
CERTIORARI -- SUMMARY DISPOSITIONS
11-649 RIO TINTO PLC, ET AL. V. SAREI, ALEXIS H., ET AL.
The motion of Government of Australia, et al. for leave
to file a brief as amici curiae is granted. The motion of
Professors of International Law, Foreign Relations Law and
Federal Jurisdiction for leave to file a brief as amici
curiae is granted. The motion of Washington Legal Foundation,
et al. for leave to file a brief as amici curiae is granted.
The motion of Chamber of Commerce of the United States of
America for leave to file a brief as amicus curiae is granted.
The motion of National Foreign Trade Council, et al. for leave
to file a brief as amici curiae is granted. The petition for a
writ of certiorari is granted. The judgment is vacated, and the
case is remanded to the United States Court of Appeals for the
Ninth Circuit for further consideration in light of Kiobel v.
Royal Dutch Petroleum Co., 569 U.S. ___ (2013). Justice Kagan
took no part in the consideration or decision of these motions
and this petition.
12-240 CGI TECHNOLOGIES AND SOLUTIONS V. ROSE, RHONDA, ET AL.
The petition for a writ of certiorari is granted. The
judgment is vacated, and the case is remanded to the United
States Court of Appeals for the Ninth Circuit for further
consideration in light of US Airways, Inc. v. McCutchen, 569
U.S. ___ (2013).
1 EXHIBIT "A"
12-478 BROOKS, WESLEY E. V. MINNESOTA
The petition for a writ of certiorari is granted. The
judgments are vacated, and the cases are remanded to the Court
of Appeals of Minnesota for further consideration in light of
Missouri v. McNeely, 569 U.S. ___ (2013).
ORDERS IN PENDING CASES
12A886 GUTIERREZ, JESSE J. V. UNITED STATES
The application for stay addressed to Justice Breyer and
referred to the Court is denied.
12M109 HAMILTON, JAN B. V. COLORADO MEDICAL BOARD
12M110 JETT, YVONNE V. USPS, ET AL.
The motions to direct the Clerk to file petitions for writs
of certiorari out of time are denied.
12M111 HILL, ALBERT G. V. SCHILLING, WILLIAM, ET AL.
The motion for leave to file a petition for a writ of
certiorari with the supplemental appendix under seal is granted.
12-8513 RICH, ROBERT V. TAMEZ, WARDEN
12-8724 IN RE JON M. COX
The motions of petitioners for reconsideration of orders
denying leave to proceed in forma pauperis are denied.
12-8783 ISAACSON, EUGENE E. V. BERRIGAN, SHAWN, ET AL.
12-8902 SPRIGGS, CATHY M. V. SENIOR SERVICES OF SOUTHEASTERN
12-8945 CASEY, MONIQUE V. CASEY, SEAN
The motions of petitioners for leave to proceed in forma
pauperis are denied. Petitioners are allowed until May 13, 2013,
within which to pay the docketing fees required by Rule 38(a) and
to submit petitions in compliance with Rule 33.1 of the Rules of
this Court.
2 EXHIBIT "A"
CERTIORARI GRANTED
11-965 DAIMLERCHRYSLER AG V. BAUMAN, BARBARA, ET AL.
The petition for a writ of certiorari is granted.
CERTIORARI DENIED
12-385 OCCIDENTAL PETROLEUM CORP. V. CARIJANO, TOMAS M., ET AL.
12-521 AMERICAN SNUFF COMPANY, ET AL. V. UNITED STATES, ET AL.
12-558 BUNCH, CHAZ V. BOBBY, WARDEN
12-801 UNITED STATES V. BEER, PETER H., ET AL.
12-869 CAVIEZEL, MARTINA, ET VIR V. GREAT NECK PUBLIC SCHOOLS, ET AL.
12-871 UNIVERSITY OF OREGON V. EMELDI, MONICA
12-919 SIMON, CHARLES V. KEYSPAN CORP., ET AL.
12-972 ESCOBAL, MILTON V. CELEBRATION CRUISE, ET AL.
12-1004 SMITH, WILLIAM V. FRIEDMAN, ALVIN, ET AL.
12-1011 RUPERT, WILLIAM, ET AL. V. JONES, BARBARA, ET AL.
12-1012 SSC ODIN OPERATING CO. V. CARTER, SUE
12-1015 HEARTS BLUFF GAME RANCH V. TEXAS, ET AL.
12-1022 MORRIS, THOMAS W., ET AL. V. GEORGE MASON UNIVERSITY
12-1024 MAUPIN, MICHELLE V. HOWARD CTY. BD. OF ED., ET AL.
12-1026 NEW YORK V. ALVAREZ, LUIS
12-1030 WEEKS, KEVIN V. BROWN, WARDEN
12-1037 IN FAMILY & SOCIAL SERV., ET AL. V. BONTRAGER, SANDRA M.
12-1042 DOMINGUEZ, ERLINDA V. CHANG, ROY, ET AL.
12-1089 PPG INDUSTRIES, INC., ET AL. V. AMOS, PATRICIA L., ET AL.
12-1091 DEWS, VERNELL, ET AL. V. MILLER, BUCK J., ET AL.
12-1106 MARLTON PLAZA ASSOC., ET AL. V. NEW JERSEY
12-1112 HANCOCK, GAYEN, ET AL. V. AT&T, INC., ET AL.
12-1136 WIDEX A/S, ET AL. V. ENERGY TRANSP. GROUP, INC.
12-1144 DAY, DAVID V. SBC DISABILITY INCOME PLAN
3 EXHIBIT "A"
12-7611 CASTILLO, JULIAN V. NEW YORK
12-7841 FIELDS, HARRY V. UNITED STATES
12-8332 VALDEZ, RICHARD V. CALIFORNIA
12-8346 SOCHOR, DENNIS V. CREWS, SEC., FL DOC, ET AL.
12-8747 SMITH, FLOYD A. V. OKLAHOMA
12-8748 SHARPLES, KENNETH V. ILLINOIS
12-8753 RALSTON, SEAN D. V. THALER, DIR., TX DCJ
12-8758 HUNT, ANTHONY G. V. MICHIGAN, ET AL.
12-8762 STEPHENS, STANLEY W. V. TEXAS
12-8766 WOODS, PATRICIA L. V. PUBLIC EMPLOYMENT RELATIONS BD.
12-8771 MURCHISON, JOSEPH V. RUSSELL, TERRY
12-8773 TILLEY, PAUL H. V. CHOATE, SHERIFF, ET AL.
12-8774 WILLIAMS, VERNON V. CREWS, SEC., FL DOC, ET AL.
12-8776 REEDOM, MARSHALL V. CRAPPELL, SABRA A., ET AL.
12-8780 GILMORE, ALLAN T. V. CALIFORNIA
12-8782 HAWKINS, KEITH B. V. VIRGINIA
12-8787 CORDELL, WALTER V. BEARD, SEC., CA DOC, ET AL.
12-8790 HOANG, LAN T. V. WEINTRAUB, HILDA
12-8794 HILL, MARK A. V. STUMBO, KARIN, ET AL.
12-8795 GONZALEZ, INES V. THALER, DIR., TX DCJ
12-8797 HAMILTON, JEFFREY V. WOODS, WARDEN
12-8801 LIU, GRACE V. SPENCER, GORDON W.
12-8802 LEATHERWOOD, LARRY V. CREWS, SEC., FL DOC, ET AL.
12-8809 SEAMAN, NANCY V. WASHINGTON, WARDEN
12-8812 BROWN, FRANCIS V. CAIN, WARDEN
12-8822 WALKER, JOHN C. V. THALER, DIR., TX DCJ
12-8824 SYLVESTER, TOKUKO H. V. BENARD, JAY K.
12-8829 GORE, MARSHALL L. V. CREWS, SEC., FL DOC
4 EXHIBIT "A"
12-8830 JOHNSON, GEORGE V. JONES, DIR., OK DOC
12-8831 JACKSON, KENRIC L. V. THALER, DIR., TX DCJ
12-8836 PLOUFF, WILLIAM C. V. USDC ED PA
12-8837 SMITH, FREE O. V. ADAMS, WARDEN
12-8838 PURIFOY, CARLETHA V. CREWS, SEC., FL DOC
12-8839 GONZALES, JUAN V. CALIFORNIA
12-8842 HAWKINS, DeANDRE R. V. MICHIGAN
12-8843 H. M. V. SUPERIOR COURT OF CA, ET AL.
12-8845 WILKINSON, MARK L. V. TIMME, WARDEN, ET AL.
12-8846 WHALEY, JOHN, ET AL. V. BRUST, WILLIAM E., ET AL.
12-8847 JONES, EDWARD V. CALIFORNIA
12-8850 GABBARD, SHERRY-JOLENE V. TN ELECTIONS COMMISSION
12-8856 EDWARDS, PHILLIP J. V. FLORIDA
12-8860 CARTER, TRAVIS V. LOUISIANA
12-8862 SOLERNORONA, CARLOS V. MICHIGAN
12-8871 BROWN, KEITH A. V. VALDEZ, JOHN, ET AL.
12-8896 HAMILTON, HEZEKIAH V. ILLINOIS
12-8899 MAGANA, MARTIN V. CALIFORNIA
12-8946 WRIGHT, ERIC L. V. CALIFORNIA
12-8957 DRAKE, MONTRAGO L. V. LOUISIANA
12-8959 ANDERSON, CARDELLIA V. LOCKHEED MARTIN CORPORATION
12-8991 ROBERTSON, ROY D. V. WILLIAMS, CAMMRON, ET AL.
12-9048 PARKER, ANTWON V. FORTNER, DAVID, ET AL.
12-9056 EVANS, AUGUSTUS H. V. PHELPS, WARDEN, ET AL.
12-9063 RICHARDS, HARLAN V. WHITE, DAVID, ET AL.
12-9065 BORRERO, JOSE V. NEW YORK
12-9066 KWONG, MATTHEW V. CONNECTICUT
12-9096 LEE, TERRY V. DAVID, NATHAN
5 EXHIBIT "A"
12-9103 McILVOY, TERRY L. V. NORMAN, SUPT., JEFFERSON CITY
12-9140 WILLIAMS, MICHAEL V. MARYLAND
12-9160 COLVIN, TRAVIS B. V. MEDINA, WARDEN, ET AL.
12-9239 WADSWORTH, SCOTT C. V. UTAH
12-9260 SILVERSKY, JONATHON V. FRINK, WARDEN, ET AL.
12-9268 WHITLEY, CLYDE K. V. STRADA, FRANK, ET AL.
12-9278 ALLEN, DERRICK V. NORTH CAROLINA
12-9286 WHITAKER, SHERROD V. NORTH CAROLINA
12-9292 NEVES, JERRY V. BEARD, SEC., CA DOC
12-9302 PLOUFFE, WILLIAM C. V. PA LABOR RELATIONS BOARD
12-9316 BUTLER, AMILCAR V. UNITED STATES
12-9343 LAGUNAS-BALTAZAR, HORACIO V. UNITED STATES
12-9345 VASQUEZ, RICHARD V. UNITED STATES
12-9346 THOMPSON, THAIS Y. V. UNITED STATES
12-9349 MINOR, ERIC J. V. UNITED STATES
12-9352 MURPHY, DAVID V. UNITED STATES
12-9356 RODGERS, CHARVIS V. KIRKLAND, WARDEN
12-9360 ANDERSON-BAGSHAW, KAREN V. UNITED STATES
12-9361 BUGH, ROGER B. V. UNITED STATES
12-9363 WOLFE, MARTYN S. V. UNITED STATES
12-9374 MOODY, DARRYL V. UNITED STATES
12-9375 NEMATUTH, PABLO V. UNITED STATES
12-9383 WEBSTER, LAMAR V. UNITED STATES
12-9384 YOUNG, JOSEPH P. V. UNITED STATES
12-9389 BROWN, JERRY T. V. UNITED STATES
12-9395 CROW, JAMES V. UNITED STATES
12-9405 SHANNON, TERRENCE V. UNITED STATES
12-9406 JOHNSON, SHAWN V. UNITED STATES
6 EXHIBIT "A"
12-9408 FORD, MARVIN L. V. UNITED STATES
12-9409 HUGHES, DAMON L. V. UNITED STATES
12-9411 DIAZ-GARCIA, VICENTE V. UNITED STATES
12-9417 NOEL, YVES V. FLORIDA
The petitions for writs of certiorari are denied.
12-140 KENTUCKY V. KING, HOLLIS D.
The motion of respondent for leave to proceed in forma
pauperis is granted. The petition for a writ of certiorari
is denied.
12-652 BEVERLY ENTERPRISES, ET AL. V. PING, DONNA
The motion of Extendicare Health Services, Inc., et al. for
leave to file a brief as amici curiae is granted. The petition
for a writ of certiorari is denied.
12-8852 SABER, MARY A., ET AL. V. SABER, SAM, ET AL.
The petition for a writ of certiorari is denied. Justice
Alito took no part in the consideration or decision of this
petition.
12-9331 MITCHELL, STEPHEN M. V. UNITED STATES
The motion of petitioner for leave to proceed in forma
pauperis is denied, and the petition for a writ of certiorari
is dismissed. See Rule 39.8. As the petitioner has repeatedly
abused this Court's process, the Clerk is directed not to accept
any further petitions in noncriminal matters from petitioner
unless the docketing fee required by Rule 38(a) is paid and the
petition is submitted in compliance with Rule 33.1. See Martin
v. District of Columbia Court of Appeals, 506 U.S. 1 (1992) (per
curiam).
12-9377 ROBERTS, LeSEAN V. UNITED STATES
7 EXHIBIT "A"
12-9380 RINALDI, MICHAEL V. RIOS, WARDEN
12-9388 BARNES, WILLIE E. V. UNITED STATES
12-9393 SHELTON, MONTY M. V. UNITED STATES
The petitions for writs of certiorari are denied. Justice
Kagan took no part in the consideration or decision of these
petitions.
HABEAS CORPUS DENIED
12-9514 IN RE DOUGLAS A. GLASER
12-9522 IN RE OMAR GENT
The petitions for writs of habeas corpus are denied.
MANDAMUS DENIED
12-9370 IN RE JUAN REYES
The petition for a writ of mandamus is denied.
REHEARINGS DENIED
12-6575 GUESS, TIMOTHY W. V. UNITED STATES
12-6747 MARSHALL, JAMES C., ET UX. V. COLLIER COUNTY, FL, ET AL.
12-7718 WOODS, DERRICK B. V. STEVENSON, WARDEN
12-7735 SEALE, PETER A. V. HOLDER, ATT'Y GEN.
12-7741 IN RE SAMUEL H. WILLIAMS
12-7858 GUY, TRAYVON, ET AL. V. INGLEWOOD, CA, ET AL.
12-7940 YOUNG, HENRY E. V. FRAKER, SUPT., CLALLAM BAY
12-7951 SOMERVILLE, KEITH L. V. THALER, DIR., TX DOC
12-7952 K. W. V. NJ DIV. OF YOUTH & FAMILY SERV.
12-8018 WILSON, ANTHONY D. V. U.S. AIR FORCE
12-8137 KRISTON, ZACHARY V. PEROULIS, TONY, ET AL.
12-8347 MOTHERSHED, GEORGE L. V. OK, EX REL. OK BAR ASSN., ET AL.
12-8389 WOODS, CARLOS V. MARYLAND
8 EXHIBIT "A"
12-8394 BARNETT, TERENECE V. UNITED STATES
The petitions for rehearing are denied.
9 EXHIBIT "A"
NO. CAAP-12-0000858
IN THE INTERMEDIATE COURT OF APPEALS
STATE OF HAWAII
STATE OF HAWAII,
Plaintiff-Appellee,
vs.
YONG SHIK WON,
Defendant-Appellant.
_______________________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ORIGINAL CASE NO. 1DTA-11-01903
APPEAL FROM THE JUDGEMENT and
SENTENCE ENTERED, on September 20,
2013
EXHIBIT “B”
DISTRICT COURT OF THE FIRST
CIRCUIT
HONORABLE JUDGE DAVID LO
EXHIBIT “B”
Minnesota v. Brooks,
No. A11-1042, 2012 Minn. App. Unpub. (May 7, 2012)
(Unpublished Opinion)
Page 1
Not Reported in N.W.2d, 2012 WL 1570064 (Minn.App.)
(Cite as: 2012 WL 1570064 (Minn.App.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Only the Westlaw citation is currently available.
NOTICE: THIS OPINION IS DESIGNATED AS UNPUBLISHED AND MAY NOT BE CITED
EXCEPT AS PROVIDED BY MINN. ST. SEC. 480A.08(3).
Court of Appeals of Minnesota.
STATE of Minnesota, Respondent,
v.
Wesley Eugene BROOKS, Appellant.
No. A11–1042.
May 7, 2012.
Scott County District Court, File Nos. 70–CR–09–17926, 70–CR–10–2169.
Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant Scott County Attorney,
Shakopee, Minnesota (for respondent).
Carson J. Heefner, McCloud & Heefner, P.A., Lindstrom, Minnesota (for appellant).
Considered and decided by WRIGHT, Presiding Judge; JOHNSON, Chief Judge; and CRIPPEN,
Judge.FN*
FN* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
WRIGHT, Judge.
*1 Appellant challenges his convictions of first-degree driving while impaired (DWI), arguing
that the district court erroneously denied his motion to suppress evidence of intoxication. Appel-
lant contends that the exigent-circumstances exception to the search-warrant requirement does not
apply to the warrantless collection of his urine for testing purposes. We affirm.
EXHIBIT "B"
Page 2
Not Reported in N.W.2d, 2012 WL 1570064 (Minn.App.)
(Cite as: 2012 WL 1570064 (Minn.App.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
FACTS
The convictions that are the subject of this appeal arose from two impaired-driving incidents.
At 2:06 a.m. on July 31, 2009, Shakopee Police Officer Michelle Schmidt initiated an investiga-
tory stop of a vehicle in Shakopee. The vehicle's driver, appellant Wesley Eugene Brooks, exhib-
ited indicia of intoxication. Brooks consented to submit to a urine test, and the test results for the
urine sample that Brooks provided at 3:15 a.m. reported an alcohol concentration of .14. During an
inventory search of Brooks's vehicle, the police recovered a glass pipe and a bag containing 5.1
grams of marijuana. Brooks subsequently was charged with first-degree DWI, possessing mari-
juana in a motor vehicle, possessing drug paraphernalia, driving after cancellation, and operating a
vehicle without a valid driver's license.
Approximately six months later, at 7:11 a.m. on January 25, 2010, Prior Lake police officers
discovered Brooks unconscious in the driver's seat of his vehicle. The vehicle's engine was running
and its gear was in the drive position while Brooks's foot rested on the brake. When roused by the
officer, Brooks exhibited indicia of intoxication. Brooks agreed to submit to a urine test, and the
urine sample that Brooks provided at 8:45 a.m. registered an alcohol concentration of .15. After
providing the sample, Brooks flicked urine at an officer. During a search of Brooks's vehicle, the
police recovered marijuana, a bottle of vodka, and a cellophane package containing a white
powdery substance. Brooks subsequently was charged with several offenses, including
first-degree DWI, fourth-degree assault of a peace officer, possessing a controlled substance,
possessing marijuana in a motor vehicle, possessing an open bottle of alcohol in a motor vehicle,
and driving after license cancellation.
Brooks moved to suppress the results of the urine tests in both cases, arguing that the state was
required to obtain a search warrant before collecting Brooks's urine samples because exigent
circumstances did not exist to justify a warrantless search. The district court held a consolidated
omnibus hearing on the motions. Brooks presented the testimony of a forensic scientist who
opined that alcohol in a person's urine does not dissipate once it reaches the bladder. The expert
witness testified that urine is stored in the bladder until the bladder is voided, and the alcohol
concentration in the bladder continuously changes as urine is excreted into the bladder. In support
of Brooks's argument that the officer could have reached a judge to obtain a search warrant by
telephone before collecting Brooks's urine, an attorney testified regarding his experience con-
tacting judges by telephone after business hours. Testifying for the state, a Minnesota Bureau of
Criminal Apprehension forensic scientist stated that urine is constantly produced by the human
body, alcohol substantially increases urine production, and the concentration of alcohol in the
bladder does not remain constant as urine is produced. On December 6, 2010, the district court
EXHIBIT "B"
Page 3
Not Reported in N.W.2d, 2012 WL 1570064 (Minn.App.)
(Cite as: 2012 WL 1570064 (Minn.App.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
denied Brooks's motion to suppress the evidence.
*2 The cases proceeded to a bench trial. On March 21, 2011, the district court found Brooks
guilty of first-degree DWI on July 31, 2009, a violation of Minn.Stat. §§ 169A.20, subd. 1(5),
169A.24, subd. 1(1) (2008); first-degree DWI on January 25, 2010, a violation of Minn.Stat. §§
169A.20, subd. 1(5), 169A.24, subd. 1(1) (2008 & Supp.2009); and fourth-degree assault of a
peace officer, a violation of Minn.Stat. § 609.2231, subd. 1 (2008). The district court dismissed the
remaining charges, and this appeal followed.
DECISION
Brooks argues that the district court erred by denying his motion to suppress the results of his
urine tests because (1) the exigent-circumstances exception to the warrant requirement does not
permit the warrantless collection of a urine sample and (2) the exigent-circumstances exception
does not apply under the circumstances here because the police could have obtained a search
warrant by telephone. When reviewing a pretrial order denying a motion to suppress evidence
based on the district court's application of the law to the undisputed facts, we determine as a matter
of law whether the evidence must be suppressed. State v. Othoudt, 482 N.W.2d 218, 221
(Minn.1992).
The United States and Minnesota constitutions prohibit unreasonable searches and seizures.
U.S. Const. amend. IV; Minn. Const. art. I, § 10. The collection of a urine sample is a search.
Ellingson v. Comm'r of Pub. Safety, 800 N.W.2d 805, 807 (Minn.App.2011) (citing Skinner v. Ry.
Labor Execs.' Ass'n, 489 U.S. 602, 616–17, 109 S.Ct. 1402, 1413 (1989) (concluding that taking
blood, breath, or urine sample implicates Fourth Amendment)), review denied (Minn. Aug. 24,
2011). A warrantless search is per se unreasonable unless an exception to the warrant requirement
applies. Othoudt, 482 N.W.2d at 221–22.
The presence of exigent circumstances is an exception that can justify a warrantless search.
State v. Netland, 762 N.W.2d 202, 212 (Minn.2009). The rapid dissipation of alcohol through the
body's natural processes creates such an exigency. Id.; State v. Shriner, 751 N.W.2d 538, 545
(Minn.2008). The Minnesota Supreme Court has held that blood tests and breath tests conducted
without a search warrant are reasonable because they fall within the exigent-circumstances ex-
ception to the warrant requirement. Netland, 762 N.W.2d at 214 (holding that warrantless breath
test is admissible); Shriner, 751 N.W.2d at 545 (holding that warrantless blood test is admissible).
And we have concluded that the “exigent circumstances justifying a warrantless blood or breath
test-the rapid change in alcohol concentration through the body's natural processes-also justify the
EXHIBIT "B"
Page 4
Not Reported in N.W.2d, 2012 WL 1570064 (Minn.App.)
(Cite as: 2012 WL 1570064 (Minn.App.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
warrantless collection of a urine sample.” Ellingson, 800 N.W.2d at 807.
Here, as in Ellingson, forensic expert testimony established that the collection of urine, like the
collection of blood, is time-sensitive because the body's natural processes cause the alcohol con-
centration to change rapidly. See id. (describing forensic expert testimony concerning rapid dis-
sipation of alcohol concentration in urine). Both forensic experts testified unequivocally that the
alcohol concentration in urine stored in the bladder continuously changes as more urine is pro-
duced and that alcohol causes an increase in urine production. According to the state's forensic
scientist, the alcohol concentration in blood and urine are “extremely similar and related” in that
both are constantly rising and falling. Applying the legal principles established in Netland and
Ellingson, we conclude that the warrantless collection of Brooks's urine was justified on both
occasions by the exigent circumstance of the rapid dissipation of alcohol in urine.
*3 Brooks contends that, because the police can quickly and easily obtain a search warrant
over the telephone, the evanescent nature of alcohol does not create an exigency justifying a
warrantless search. Exigent circumstances did not exist on either occasion at issue here, Brooks
argues, because the police had ample time to request a telephonic search warrant from a judge
before collecting Brooks's urine. Minnesota law authorizes a police officer to obtain a search
warrant by submitting sworn oral testimony to a judge by telephone. Minn. R.Crim. P. 36.01. But
the possibility of obtaining a telephonic search warrant is not sufficient to overcome the exigent
circumstance of the rapid dissipation of alcohol in a suspect's body. Shriner, 751 N.W.2d at 549;
see also Netland, 762 N.W.2d at 212–13 (discussing the Shriner decision). “[T]he delay required
to obtain a telephonic warrant creates an unreasonable burden for law enforcement to evaluate how
much time must pass before the evidence disappears.” Netland, 762 N.W.2d at 213. Accordingly,
Brooks's argument fails as a matter of law.FN1
FN1. We also reject Brooks's argument that the Minnesota Supreme Court's analysis in
Shriner is erroneous. It is well-settled law that neither the Minnesota Court of Appeals nor
the district court may disregard binding precedent. See Jendro v. Honeywell, Inc., 392
N.W.2d 688, 691 n. 1 (Minn.App.1986) (observing that Minnesota Supreme Court prec-
edent binds this court), review denied (Minn. Nov. 19, 1986).
Because the evanescent nature of alcohol in urine satisfies the exigent-circumstances excep-
tion to the search-warrant requirement, the collection of Brooks's urine without a search warrant
was not an unreasonable search. The district court did not err by denying Brooks's motion to
suppress the results of the urine tests.
EXHIBIT "B"
Page 5
Not Reported in N.W.2d, 2012 WL 1570064 (Minn.App.)
(Cite as: 2012 WL 1570064 (Minn.App.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Affirmed.
Minn.App.,2012.
State v. Brooks
Not Reported in N.W.2d, 2012 WL 1570064 (Minn.App.)
END OF DOCUMENT
EXHIBIT "B"
NO. CAAP-12-0000858
IN THE INTERMEDIATE COURT OF APPEALS
STATE OF HAWAII
STATE OF HAWAII,
Plaintiff-Appellee,
vs.
YONG SHIK WON,
Defendant-Appellant.
_______________________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ORIGINAL CASE NO. 1DTA-11-01903
APPEAL FROM THE JUDGEMENT and
SENTENCE ENTERED, on September 20,
2013
EXHIBIT “C”
DISTRICT COURT OF THE FIRST
CIRCUIT
HONORABLE JUDGE DAVID LO
EXHIBIT “C”
RELEVANT STATUTES, RULES AND CONSTITUTIONAL PROVISIONS
RELEVANT STATUTES, RULES AND CONSTITUTIONAL PROVISIONS
Hawaii Revised Statutes § 291E-11. Implied consent of operator of vehicle to submit to testing to
determine alcohol concentration and drug content
(a) Any person who operates a vehicle upon a public way, street, road, or highway or on or in the
waters of the State shall be deemed to have given consent, subject to this part, to a test or tests
approved by the director of health 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, as
applicable.
(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 that the person may refuse to
submit to testing under this chapter.
(c) If there is probable cause to believe that a person is in violation of section 291E-64, as a
result of being under the age of twenty-one and having consumed a measurable amount of
alcohol, or section 291E-61 or 291E-61.5, as a result of having consumed alcohol, then the
person shall elect to take a breath or blood test, or both, for the purpose of determining the
alcohol concentration.
(d) If there is probable cause to believe that a person is in violation of section 291E-61 or 291E-
61.5, as a result of having consumed any drug, then the person shall elect to take a blood or urine
test, or both, for the purpose of determining the drug content. Drug content shall be measured by
the presence of any drug or its metabolic products, or both.
(e) A person who chooses to submit to a breath test under subsection (c) also may be requested to
submit to a blood or urine test, if the law enforcement officer has probable cause to believe that
the person was operating a vehicle while under the influence of any drug under section 291E-
61 or 291E-61.5 and the officer has probable cause to believe that a blood or urine test will
reveal evidence of the person being under the influence of any drug. The law enforcement officer
shall state in the officer's report the facts upon which that belief is based. The person shall elect
to take a blood or urine test, or both, for the purpose of determining the person's drug content.
Results of a blood or urine test conducted to determine drug content also shall be admissible for
the purpose of determining the person's alcohol concentration. Submission to testing for drugs
under subsection (d) or this subsection shall not be a substitute for alcohol tests requested under
subsection (c).
(f) The use of a preliminary alcohol screening device by a law enforcement officer shall not
replace a breath, blood, or urine test required under this section. The analysis from the use of a
EXHIBIT "C"
preliminary alcohol screening device shall only be used in determining probable cause for the
arrest.
(g) Any person tested pursuant to this section who is convicted or has the person's license or
privilege suspended or revoked pursuant to this chapter may be ordered to reimburse the county
for the cost of any blood or urine tests, or both, conducted pursuant to this section. If
reimbursement is so ordered, the court or the director, as applicable, shall order the person to
make restitution in a lump sum, or in a series of prorated installments, to the police department
or other agency incurring the expense of the blood or urine test, or both.
CREDIT(S)
Laws 2000, ch. 189, § 23; Laws 2001, ch. 157, § 11; Laws 2002, ch. 113, § 1; Laws 2004, ch.
90, § 5; Laws 2006, ch. 64, § 1.
EXHIBIT "C"
Hawaii Revised Statutes § 291E-15. Refusal to submit to breath, blood, or urine test; subject to
administrative revocation proceedings
If a person under arrest refuses to submit to a breath, blood, or urine test, none shall be given,
except as provided in section 291E-21. Upon the law enforcement officer's determination that the
person under arrest has refused to submit to a breath, blood, or urine test, if applicable, then a
law enforcement officer shall:
(1) Inform the person under arrest of the sanctions under section 291E-41, 291E-65, or 291E-68;
and
(2) Ask the person if the person still refuses to submit to a breath, blood, or urine test, thereby
subjecting the person to the procedures and sanctions under part III or section 291E-65, as
applicable;
provided that if the law enforcement officer fails to comply with paragraphs (1) and (2), the
person shall not be subject to the refusal sanctions under part III or IV.
CREDIT(S)
Laws 2000, ch. 189, § 23; Laws 2006, ch. 64, § 2; Laws 2009, ch. 88, § 4, eff. Jan. 1,
2011; Laws 2010, ch. 166, § 10, eff. Jan. 1, 2011.
EXHIBIT "C"
Hawaii Revised Statutes § 291E-21. Applicable scope of part; mandatory testing in the event of a
collision resulting in injury or death
(a) Nothing in this part shall be construed to prevent a law enforcement officer from obtaining a
sample of breath, blood, or urine, from the operator of any vehicle involved in a collision
resulting in injury to or the death of any person, as evidence that the operator was under the
influence of an intoxicant.
(b) If a health care provider who is providing medical care, in a health care facility, to any person
involved in a vehicle collision:
(1) Becomes aware, as a result of any blood or urine test performed in the course of medical
treatment, that:
(A) The alcohol concentration in the person's blood meets or exceeds the amount specified
in section 291E-61(a)(4) or 291E-61.5(a)(2)(D); or
(B) The person's blood or urine contains one or more drugs that are capable of impairing a person's
ability to operate a vehicle in a careful and prudent manner; and
(2) Has a reasonable belief that the person was the operator of a vehicle involved in the collision,
the health care provider shall notify, as soon as reasonably possible, any law enforcement officer
present at the health care facility to investigate the collision. If no law enforcement officer is
present, the health care provider shall notify the county police department in the county where
the collision occurred. If the health care provider is aware of any blood or urine test result, as
provided in paragraph (1), but lacks information to form a reasonable belief as to the identity of
the operator involved in a vehicle collision, as provided in paragraph (2), then the health care
provider shall give notice to a law enforcement officer present or to the county police
department, as applicable, for each person involved in a vehicle collision whose alcohol
concentration in the person's blood meets or exceeds the amount specified in section 291E-
61(a)(4) or 291E-61.5(a)(2)(D) or whose blood or urine contains one or more drugs. The notice
by the health care provider shall consist of the name of the person being treated, the blood
alcohol concentration or drug content disclosed by the test, and the date and time of the
administration of the test. This notice shall be deemed to satisfy the intoxication element
necessary to establish the probable cause requirement set forth in subsection (c).
(c) In the event of a collision resulting in injury or death and if a law enforcement officer has
probable cause to believe that a person involved in the collision has committed a violation
of section 707-702.5, 707-703, 707-704, 707-705, 707-706, 291E-61, 291E-61.5, or 291E-64, the
law enforcement officer shall request that a sample of blood or urine be recovered from the
vehicle operator or any other person suspected of committing a violation of section 707-
702.5,707-703, 707-704, 707-705, 707-706, 291E-61, 291E-61.5, or 291E-64. If the person
involved in the collision is not injured or refuses to be treated for any injury, the law enforcement
officer may offer the person a breath test in lieu of a blood or urine test. If the person declines to
perform a breath test, the law enforcement officer shall request a blood or urine sample pursuant
to subsection (d). The act of declining to perform a breath test under this section shall not be
EXHIBIT "C"
treated as a refusal under chapter 291E and shall not relieve the declining person from the
requirement of providing a blood or urine sample under this section.
(d) The law enforcement officer shall make the request under subsection (c) to the hospital or
medical facility treating the person from whom the blood or urine is to be recovered. If the
person is not injured or refuses to be treated for any injury, the law enforcement officer shall
make the request of a blood or urine sample under subsection (c) to a person authorized
under section 291E-12; provided that a law enforcement officer may transport that person to
another police facility or a hospital or medical facility that is capable of conducting a breath,
blood, or urine test. Upon the request of the law enforcement officer that blood or urine be
recovered pursuant to this section, and except where the person to perform the withdrawal of a
blood sample or to obtain a urine sample or the responsible attending personnel at the hospital or
medical facility determines in good faith that recovering or attempting to recover blood or urine
from the person presents an imminent threat to the health of the medical personnel or others, the
person authorized under section 291E-12 shall:
(1) Recover the sample in compliance with section 321-161; and
(2) Provide the law enforcement officer with the blood or urine sample requested.
(e) Any person complying with this section shall be exempt from liability pursuant to section
663-1.9 as a result of compliance.
(f) As used in this section, unless the context otherwise requires:
“Health care facility” includes any program, institution, place, building, or agency, or portion
thereof, private or public, whether organized for profit or not, that is used, operated, or designed
to provide medical diagnosis, treatment, or rehabilitative or preventive care to any person. The
term includes health care facilities that are commonly referred to as hospitals, outpatient clinics,
organized ambulatory health care facilities, emergency care facilities and centers, health
maintenance organizations, and others providing similarly organized services regardless of
nomenclature.
“Health care provider” means a person who is licensed, certified, or otherwise authorized or
permitted by law to administer health care in the ordinary course of business or practice of a
profession.
CREDIT(S)
Laws 2000, ch. 189, § 23; Laws 2001, ch. 157, § 12; Laws 2003, ch. 72, § 1; Laws 2004, ch. 90,
§ 6.
EXHIBIT "C"
Hawaii Revised Statutes § 291E-41. Effective date, conditions, and period of administrative
revocation; criteria
(a) Unless an administrative revocation is reversed or the temporary permit is extended by the
director, administrative revocation shall become effective on the day specified in the notice of
administrative revocation. Except as provided in section 291E-44.5, no license and privilege to
operate a vehicle shall be restored under any circumstances during the administrative revocation
period. Upon completion of the administrative revocation period, the respondent may reapply
and be reissued a license pursuant to section 291E-45.
(b) Except as provided in paragraph (5) and in section 291E-44.5, the respondent shall keep an
ignition interlock device installed and operating in any vehicle the respondent operates during
the revocation period. Except as provided in section 291E-5, installation and maintenance of the
ignition interlock device shall be at the respondent's expense. The periods of administrative
revocation, with respect to a license and privilege to operate a vehicle, that shall be imposed
under this part are as follows:
(1) A 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;
(2) An eighteen month revocation of license and privilege to operate a vehicle, if the respondent's
record shows one prior alcohol enforcement contact or drug enforcement contact during the five
years preceding the date the notice of administrative revocation was issued;
(3) A two-year revocation of license and privilege to operate a vehicle, if the respondent's record
shows two prior alcohol enforcement contacts or drug enforcement contacts during the five years
preceding the date the notice of administrative revocation was issued;
(4) A minimum of five years up to a maximum of ten years revocation of license and privilege to
operate a vehicle, if the respondent's record shows three or more prior alcohol enforcement
contacts or drug enforcement contacts during the ten 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 or 291E-61.5, revocation of license and privilege to operate a vehicle for the
appropriate revocation period provided in paragraphs (1) to (4) or in subsection (c); provided that
the respondent shall be prohibited from driving during the period preceding the respondent's
eighteenth birthday and shall thereafter be subject to the ignition interlock requirement of this
subsection for the balance of the revocation period; or
(6) For respondents, other than those excepted pursuant to section 291E-44.5(c), who do not install
an ignition interlock device in any vehicle the respondent operates during the revocation period,
revocation of license and privilege to operate a vehicle for the period of revocation provided in
paragraphs (1) to (5) or in subsection (c); provided that:
EXHIBIT "C"
(A) The respondent shall be absolutely prohibited from driving during the revocation period and
subject to the penalties provided by section 291E-62 if the respondent drives during the
revocation period; and
(B) The director shall not issue an ignition interlock permit to the respondent pursuant to section
291E-44.5;
provided that when more than one administrative revocation, suspension, or conviction arises out
of the same arrest, it shall be counted as only one prior alcohol enforcement contact or drug
enforcement contact, whichever revocation, suspension, or conviction occurs later.
(c) If a respondent has refused to be tested after being informed:
(1) That the person may refuse to submit to testing in compliance with section 291E-11; and
(2) Of the sanctions of this part and then asked if the person still refuses to submit to a breath,
blood, or urine test, in compliance with the requirements ofsection 291E-15, the revocation
imposed under subsection (b)(1), (2), (3), or (4) shall be for a period of two years, three years,
four years, or ten years, respectively.
(d) Whenever a license and privilege to operate a vehicle is administratively revoked under this
part, the respondent shall be referred to the driver's education program for an assessment, by a
certified substance abuse counselor, of the respondent's substance abuse or dependence and the
need for treatment. The counselor shall submit a report with recommendations to the director. If
the counselor's assessment establishes that the extent of the respondent's substance abuse or
dependence warrants treatment, the director shall so order. All costs for assessment and
treatment shall be paid by the respondent.
(e) Alcohol and drug enforcement contacts that occurred prior to January 1, 2002, shall be
counted in determining the administrative revocation period.
(f) The requirement to provide proof of financial responsibility pursuant to section 287-20 shall
not be based upon a revocation under subsection (b)(1).
CREDIT(S)
Laws 2000, ch. 189, § 23; Laws 2001, ch. 157, § 21; Laws 2002, ch. 113, § 7; Laws 2004, ch.
90, § 11; Laws 2006, ch. 64, § 8; Laws 2006, ch. 201, § 5; Laws 2007, ch. 198, § 3, eff. July 1,
2007; Laws 2008, ch. 171, §6, eff. Jan. 1, 2011; Laws 2009, ch. 88, § 5, eff. Jan. 1, 2011; Laws
2010, ch. 166, § 15, eff. Jan. 1, 2011; Laws 2012, ch. 327, § 17, eff. July 1, 2012.
EXHIBIT "C"
Hawaii Revised Statutes § 291E-61. Operating a vehicle under the influence of an intoxicant
(a) A person commits the offense of operating a vehicle under the influence of an intoxicant if
the person operates or assumes actual physical control of a vehicle:
(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;
(2) While under the influence of any drug that impairs the person's ability to operate the vehicle in
a careful and prudent manner;
(3) With .08 or more grams of alcohol per two hundred ten liters of breath; or
(4) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.
(b) A person committing the offense of operating a vehicle under the influence of an intoxicant
shall be sentenced without possibility of probation or suspension of sentence as follows:
(1) For the first offense, or any offense not preceded within a five-year period by a conviction for
an offense under this section or section 291E-4(a):
(A) A fourteen-hour minimum substance abuse rehabilitation program, including education and
counseling, or other comparable program deemed appropriate by the court;
(B) One-year revocation of license and privilege to operate a vehicle during the revocation period
and installation during the revocation period of an ignition interlock device on any vehicle
operated by the person;
(C) Any one or more of the following:
(i) Seventy-two hours of community service work;
(ii) Not less than forty-eight hours and not more than five days of imprisonment; or
(iii) A fine of not less than $150 but not more than $1,000;
(D) A surcharge of $25 to be deposited into the neurotrauma special fund; and
(E) A surcharge, if the court so orders, of up to $25 to be deposited into the trauma system special
fund;
(2) For an offense that occurs within five years of a prior conviction for an offense under this
section or section 291E-4(a):
(A) Revocation for not less than eighteen months nor more than two years of license and privilege
to operate a vehicle during the revocation period and installation during the revocation period of
an ignition interlock device on any vehicle operated by the person;
(B) Either one of the following:
(i) Not less than two hundred forty hours of community service work; or
EXHIBIT "C"
(ii) Not less than five days but not more than thirty days of imprisonment, of which at least forty-
eight hours shall be served consecutively;
(C) A fine of not less than $500 but not more than $1,500;
(D) A surcharge of $25 to be deposited into the neurotrauma special fund; and
(E) A surcharge of up to $50 if the court so orders, to be deposited into the trauma system special
fund;
(3) For an offense that occurs within five years of two prior convictions for offenses under this
section or section 291E-4(a):
(A) A fine of not less than $500 but not more than $2,500;
(B) Revocation for two years of license and privilege to operate a vehicle during the revocation
period and installation during the revocation period of an ignition interlock device on any vehicle
operated by the person;
(C) Not less than ten days but not more than thirty days imprisonment, of which at least forty-eight
hours shall be served consecutively;
(D) A surcharge of $25 to be deposited into the neurotrauma special fund; and
(E) A surcharge of up to $50 if the court so orders, to be deposited into the trauma system special
fund;
(4) In addition to a sentence imposed under paragraphs (1) through (3), any person eighteen years
of age or older who is convicted under this section and who operated a vehicle with a passenger,
in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an
additional mandatory fine of $500 and an additional mandatory term of imprisonment of forty-
eight hours; provided that the total term of imprisonment for a person convicted under this
paragraph shall not exceed the maximum term of imprisonment provided in paragraph (1), (2), or
(3), as applicable. Notwithstanding paragraphs (1) and (2), the revocation period for a person
sentenced under this paragraph shall be not less than two years; and
(5) If the person demonstrates to the court that the person:
(A) Does not own or have the use of a vehicle in which the person can install an ignition interlock
device during the revocation period; or
(B) Is otherwise unable to drive during the revocation period,
the person shall be absolutely prohibited from driving during the period of applicable revocation
provided in paragraphs (1) to (4); provided that the court shall not issue an ignition interlock
permit pursuant to subsection (i) and the person shall be subject to the penalties provided
by section 291E-62 if the person drives during the applicable revocation period.
EXHIBIT "C"
(c) Except as provided in sections 286-118.5 and 291E-61.6, the court shall not issue an ignition
interlock permit to:
(1) A defendant whose license is expired, suspended, or revoked as a result of action other than the
instant offense;
(2) A defendant who does not hold a valid license at the time of the instant offense;
(3) A defendant who holds either a category 4 license under section 286-102(b) or a commercial
driver's license under section 286-239(b), unless the ignition interlock permit is restricted to a
category 1, 2, or 3 license under section 286-102(b); or
(4) A defendant who holds a license that is a learner's permit or instruction permit.
(d) Except as provided in subsection (c), the court may issue a separate permit authorizing a
defendant to operate a vehicle owned by the defendant's employer during the period of
revocation without installation of an ignition interlock device if the defendant is gainfully
employed in a position that requires driving and the defendant will be discharged if prohibited
from driving a vehicle not equipped with an ignition interlock device.
(e) A request made pursuant to subsection (d) shall be accompanied by:
(1) A sworn statement from the defendant containing facts establishing that the defendant currently
is employed in a position that requires driving and that the defendant will be discharged if
prohibited from driving a vehicle not equipped with an ignition interlock device; and
(2) A sworn statement from the defendant's employer establishing that the employer will, in fact,
discharge the defendant if the defendant is prohibited from driving a vehicle not equipped with
an ignition interlock device and identifying the specific vehicle and hours of the day, not to
exceed twelve hours per day, the defendant will drive for purposes of employment.
(f) A permit issued pursuant to subsection (d) shall include restrictions allowing the defendant to
drive:
(1) Only during specified hours of employment, not to exceed twelve hours per day, and only for
activities solely within the scope of the employment;
(2) Only the vehicle specified; and
(3) Only if the permit is kept in the defendant's possession while operating the employer's vehicle.
(g) Notwithstanding any other law to the contrary, any:
(1) Conviction under this section, section 291E-4(a), or section 291E-61.5;
(2) Conviction in any other state or federal jurisdiction for an offense that is comparable to
operating or being in physical control of a vehicle while having either an unlawful alcohol
concentration or an unlawful drug content in the blood or urine or while under the influence of
an intoxicant or habitually operating a vehicle under the influence of an intoxicant; or
EXHIBIT "C"
(3) Adjudication of a minor for a law violation that, if committed by an adult, would constitute a
violation of this section or an offense under section 291E-4(a), or section 291E-61.5,
shall be considered a prior conviction for the purposes of imposing sentence under this section.
Any judgment on a verdict or a finding of guilty, a plea of guilty or nolo contendere, or an
adjudication, in the case of a minor, that at the time of the offense has not been expunged by
pardon, reversed, or set aside shall be deemed a prior conviction under this section. No license
and privilege revocation shall be imposed pursuant to this section if the person's license and
privilege to operate a vehicle has previously been administratively revoked pursuant to part III
for the same act; provided that, if the administrative revocation is subsequently reversed, the
person's license and privilege to operate a vehicle shall be revoked as provided in this section.
There shall be no requirement for the installation of an ignition interlock device pursuant to this
section if the requirement has previously been imposed pursuant to part III for the same act;
provided that, if the requirement is subsequently reversed, a requirement for the installation of an
ignition interlock device shall be imposed as provided in this section.
(h) Whenever a court sentences a person pursuant to subsection (b), it also shall require that the
offender be referred to the driver's education program for an assessment, by a certified substance
abuse counselor, of the offender's substance abuse or dependence and the need for appropriate
treatment. The counselor shall submit a report with recommendations to the court. The court
shall require the offender to obtain appropriate treatment if the counselor's assessment
establishes the offender's substance abuse or dependence. All costs for assessment and treatment
shall be borne by the offender.
(i) Upon proof that the defendant has :
(1) Installed an ignition interlock device in any vehicle the defendant operates pursuant to
subsection (b); and
(2) Obtained motor vehicle insurance or self-insurance that complies with the requirements under
either section 431:10C-104 or section 431:10C-105,
the court shall issue an ignition interlock permit that will allow the defendant to drive a vehicle
equipped with an ignition interlock device during the revocation period.
(j) Notwithstanding any other law to the contrary, whenever a court revokes a person's driver's
license pursuant to this section, the examiner of drivers shall not grant to the person a new
driver's license until the expiration of the period of revocation determined by the court. After the
period of revocation is completed, the person may apply for and the examiner of drivers may
grant to the person a new driver's license.
(k) Any person sentenced under this section may be ordered to reimburse the county for the cost
of any blood or urine tests conducted pursuant to section 291E-11. The court shall order the
person to make restitution in a lump sum, or in a series of prorated installments, to the police
department or other agency incurring the expense of the blood or urine test. Except as provided
EXHIBIT "C"
in section 291E-5, installation and maintenance of the ignition interlock device required by
subsection (b) shall be at the defendant's own expense.
(l) As used in this section, the term “examiner of drivers” has the same meaning as provided
in section 286-2.
CREDIT(S)
Laws 2000, ch. 189, § 23; Laws 2001, ch. 157, § 25; Laws 2002, ch. 160, § 11; Laws 2003, ch.
71, § 3; Laws 2004, ch. 90, § 12; Laws 2005, ch. 33, § 1; Laws 2005, ch. 194, § 1; Laws 2006,
ch. 201, § 7; Laws 2007, ch. 198, § 4, eff. July 1, 2007; Laws 2008, ch. 171, § 8, eff. Jan. 1,
2011; Laws 2008, ch. 171, § 16, eff. July 1, 2008; Laws 2008, ch. 231, § 17, eff. July 1,
2008; Laws 2009, ch. 45, § 1, eff. May 6, 2009; Laws 2009, ch. 45, § 2, eff. Jan. 1, 2011; Laws
2009, ch. 88, § 6, eff. Jan. 1, 2011; Laws 2010, ch. 166, § 19, eff. Jan. 1, 2011; Laws 2012, ch.
327, § 21, eff. July 1, 2012.
EXHIBIT "C"
Hawaii Revised Statutes § 291E-65. Refusal to submit to testing for measurable amount of
alcohol; district court hearing; sanctions; appeals; admissibility
(a) If a person under arrest for operating a vehicle after consuming a measurable amount of
alcohol, pursuant to section 291E-64, refuses to submit to a breath or blood test, none shall be
given, except as provided in section 291E-21, but the arresting law enforcement officer, as soon
as practicable, shall submit an affidavit to a district judge of the circuit in which the arrest was
made, stating:
(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;
(2) That the arrested person was informed that the person may refuse to submit to a breath or blood
test, in compliance with section 291E-11;
(3) That the person had refused to submit to a breath or blood test;
(4) That the arrested person was:
(A) Informed of the sanctions of this section; and then
(B) Asked if the person still refuses to submit to a breath or blood test, in compliance with the
requirements of section 291E-15; and
(5) That the arrested person continued to refuse to submit to a breath or blood test.
(b) Upon receipt of the affidavit, the district judge shall hold a hearing within twenty days. The
district judge shall hear and determine:
(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;
(2) Whether the person was lawfully arrested;
(3) Whether the person was informed that the person may refuse to submit to a breath or blood test,
in compliance with section 291E-11;
(4) Whether the person refused to submit to a test of the person's breath or blood;
(5) Whether the person was:
(A) Informed of the sanctions of this section; and then
(B) Asked if the person still refuses to submit to a breath or blood test, in compliance with the
requirements of section 291E-15; and
(6) Whether the person continued to refuse to submit to a breath or blood test.
EXHIBIT "C"
(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:
(1) For a first suspension, or any suspension not preceded within a five-year period by a
suspension under this section, for a period of twelve months; and
(2) For any subsequent suspension under this section, for a period not less than two years and not
more than five years.
(d) An order of a district court issued under this section may be appealed to the supreme court.
CREDIT(S)
Laws 2000, ch. 189, § 23; Laws 2001, ch. 157, § 29; Laws 2006, ch. 64, § 9; Laws 2009, ch. 88,
§ 7, eff. Jan. 1, 2011.
EXHIBIT "C"
Hawaii Revised Statutes § 291E-68. Refusal to submit to a breath, blood, or urine test; penalty
Except as provided in section 291E-65, refusal to submit to a breath, blood, or urine test as
required by part II is a petty misdemeanor.
CREDIT(S)
Laws 2010, ch. 166, § 2, eff. Jan. 1, 2011; Laws 2012, ch. 327, § 22, eff. July 1, 2012.
EXHIBIT "C"
Hawaii Revised Statues § 803-9. Examination after arrest; rights of arrested person
It shall be unlawful in any case of arrest for examination:
(1) To deny to the person so arrested the right of seeing, at reasonable intervals and for a
reasonable time at the place of the person's detention, counsel or a member of the arrested
person's family;
(2) To unreasonably refuse or fail to make a reasonable effort, where the arrested person so
requests and prepays the cost of the message, to send a telephone, cable, or wireless message
through a police officer or another than the arrested person to the counsel or member of the
arrested person's family;
(3) To deny to counsel (whether retained by the arrested person or a member of the arrested
person's family) or to a member of the arrested person's family the right to see or otherwise
communicate with the arrested person at the place of the arrested person's detention (A) at any
time for a reasonable period for the first time after the arrest, and (B) thereafter at reasonable
intervals and for a reasonable time;
(4) In case the person arrested has requested that the person see an attorney or member of the
person's family, to examine the person before the person has had a fair opportunity to see and
consult with the attorney or member of the person's family;
(5) To fail within forty-eight hours of the arrest of a person on suspicion of having committed a
crime either to release or to charge the arrested person with a crime and take the arrested person
before a qualified magistrate for examination.
CREDIT(S)
P.C. 1869, ch. 49, § 9; Laws 1915, ch. 25, § 1; R.L. 1925, § 3975; Laws 1927, ch. 261, § 1; R.L.
1935, § 5408; Laws 1941, ch. 168, § 1; R.L. 1945, § 10709; Laws 1953, ch. 185, § 1; R.L. 1955,
§ 255-9; H.R.S. § 708-9; Laws 1972, ch. 9, § 1; Laws 1984, ch. 90, § 1.
§ 806-60]. Jury of twelve required
Any defendant charged with a serious crime shall have the right to trial by a jury of twelve
members. “Serious crime” means any crime for which the defendant may be imprisoned for six
months or more.
CREDIT(S)
Laws 1979, ch. 89, § 2.
EXHIBIT "C"
Hawaii Rules of Appellate Procedure Rule 35. DISPOSITIONS.
(a) Class of disposition. Dispositions may be authored by a designated judge or justice or may be per curiam
and may take the form of published or memorandum opinions or dispositional orders.
(b) Publication. Memorandum opinions shall not be published. Dispositional orders shall not be published
except upon the order of the appellate court. For purposes of this Rule 35, an opinion or order is published
when the appellate court designates it for publication in West’s Hawai‘i Reports or thePacific Reporter.
(c) Citation.
(1) DISPOSITIONS BEFORE JULY 1, 2008. A memorandum opinion or unpublished dispositional order filed
before July 1, 2008 shall not be cited in any other action or proceeding except when the memorandum opinion
or unpublished dispositional order (i) establishes the law of the pending case, or (ii) has res judicata or
collateral estoppel effect, or (iii) in a criminal action or proceeding, involves the same respondent.
(2) DISPOSITIONS ON OR AFTER JULY 1, 2008. Any disposition filed in this jurisdiction on or after July 1,
2008 may be cited in any proceeding. A party or attorney has no duty to cite an unpublished disposition.
Memorandum opinions and unpublished dispositional orders are not precedent, but may be cited for
persuasive value; provided that a memorandum opinion or unpublished dispositional order that establishes
the law of the pending case or that has res judicata or collateral estoppel effect shall be honored.
Notwithstanding any other rule, a copy of a cited unpublished disposition shall be appended to the brief or
memorandum in which the unpublished disposition is cited.
(d) Copy or access provided by appellate clerk. The appellate clerk shall promptly mail, electronically
mail, telefax, or provide an electronic notice of the location of a copy of the opinion or dispositional order to
each party.
(e) Terminology. When used in an opinion or dispositional order, the word "reverse" ends litigation on
the merits, and the phrase "vacate and remand" indicates the litigation continues in the court or agency in
accordance with the appellate court's instruction.
(As amended and effective March 11, 1996; further amended December 6, 1999, effective January 1,
2000; further amended April 23, 2008, effective July 1, 2008; further amended August 30, 2010, effective
September 27,2010.)
EXHIBIT "C"
FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1
(a) CITATION PERMITTED. A court may not prohibit or restrict the citation of federal judicial
opinions, orders, judgments, or other written dispositions that have been:
(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,”
or the like; and
(ii) issued on or after January 1, 2007.
(b) COPIES REQUIRED. If a party cites a federal judicial opinion, order, judgment, or other written
disposition that is not available in a publicly accessible electronic database, the party must file
and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in
which it is cited.
NOTES
(As added Apr. 12, 2006, eff. Dec. 1, 2006.)
EXHIBIT "C"
Minnesota Court of Appeals Rule 4
Opinions state the nature of the case and the reasons for the decision. The panel will decide
at its conference whether to publish an opinion. The publication decision is guided by Minnesota
Statutes, section 480A.08, subdivision 3, which provides for publication of opinions which
establish a new rule of law, overrule a previous Court of Appeals decision not reviewed by the
Minnesota Supreme Court, provide important procedural guidelines in interpreting statutes or
administrative rules, involve a significant legal issue, or significantly aid in the administration of
justice. All other opinions are unpublished.
Unpublished opinions are not precedential and may not be cited unless copies are provided
to other counsel at least 48 hours before their use at any pretrial conference, hearing, or trial. If
an unpublished opinion is cited in a brief or memorandum, copies must be provided to all other
counsel at the time the brief or memorandum is served.
Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(a), the panel may decide to issue an order
opinion.
(Adopted effective October 25, 1991.)
EXHIBIT "C"
4th Amendment of the United States Constitution
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
EXHIBIT "C"
Article I, Section 7 of the Hawaii Constituion.
The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants
shall issue but upon probable cause, supported by oath or affirmation, and particularly describing
the place to be searched and the persons or things to be seized or the communications sought to
be intercepted. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and
election Nov 7, 1978]
EXHIBIT "C"
EXHIBIT "C"