State v. Tavares ( 2016 )


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  •   ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    Electronically Filed
    Supreme Court
    SCWC-12-0001086
    11-JAN-2016
    09:03 AM
    SCWC-12-0001086
    IN THE SUPREME COURT OF THE STATE OF HAWAI#I
    STATE OF HAWAI#I,
    Respondent/Plaintiff-Appellee,
    vs.
    DEVENA C. TAVARES,
    Petitioner/Defendant-Appellant.
    CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
    (CAAP-12-0001086; CASE NO. 1DTA-12-00236)
    SUMMARY DISPOSITION ORDER
    (By: McKenna, Pollack, and Wilson, JJ., with Wilson, J.,
    concurring separately, and Nakayama, J., dissenting
    separately, with whom Recktenwald, C.J., joins)
    Petitioner/Defendant-Appellant Devena C. Tavares seeks
    review of the July 16, 2014 Judgment on Appeal of the
    Intermediate Court of Appeals (ICA) filed pursuant to its May 28,
    2014 Summary Disposition Order.       The ICA affirmed the
    November 20, 2012 judgment of the District Court of the First
    Circuit (district court).1      The district court adjudged Tavares
    guilty of Operating a Vehicle Under the Influence of an
    1
    The Honorable Clarence A. Pacarro presided.
    ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    Intoxicant (OVUII), in violation of Hawai#i Revised Statutes
    (HRS) § 291E-61(a)(3) (Supp. 2010).2         We accepted Tavares’s
    application for writ of certiorari and now vacate the ICA’s
    Judgment on Appeal and the district court’s judgment, and remand
    the case to the district court.
    After being arrested for OVUII, Tavares was taken to
    the police station, where she was read an implied consent form.3
    Tavares then chose to take a breath test, which resulted in a
    2
    HRS § 291E-61(a)(3) (Supp. 2010) provides:
    (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:
    . . .
    (3) With .08 or more grams of alcohol per two hundred
    ten liters of breath . . . .
    3
    The form read in relevant part:
    1.__ 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 to
    a test or tests for the purpose of determining alcohol
    concentration or drug content of the persons [sic]
    breath, blood or urine as applicable.
    2.__ You are not entitled to an attorney before you
    submit to any tests [sic] or tests to determine your
    alcohol and/or drug content.
    3.__ 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
    the purpose of determining drug content, none shall be
    given [sic], 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.
    2
    ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    breath alcohol content reading of 0.101 grams of alcohol per 210
    liters of breath.     On certiorari, Tavares contends that she did
    not constitutionally consent to the breath test because her
    consent was coerced by the implied consent form, which conveyed a
    threat of imprisonment and significant punishment for refusal to
    submit to a breath, blood, or urine test under HRS § 291E-68
    (Supp. 2010).
    In State v. Won, No. SCWC-12-858, 
    2015 WL 7574360
    , at
    *16 (Haw. Nov. 25, 2015), we held that the “coercion engendered
    by the Implied Consent Form runs afoul of the constitutional
    mandate that waiver of a constitutional right may only be the
    result of a free and unconstrained choice,” and, thus, a
    defendant’s decision to submit to testing after being read the
    implied consent form “is invalid as a waiver of [defendant’s]
    right not to be searched.”       Following this decision, the result
    of Tavares’s breath test is the product of a warrantless search,
    and the ICA erred by concluding that the district court properly
    denied Tavares’s motion to suppress the breath test result.4
    Accordingly, Tavares’s OVUII conviction cannot stand.
    IT IS HEREBY ORDERED that the ICA’s July 16, 2014
    judgment on appeal affirming the district court’s November 20,
    4
    Because we vacate the ICA’s judgment based on lack of consent, we
    do not reach her remaining points of error.
    3
    ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    2012 judgment is vacated, and the case remanded to the district
    court for further proceedings consistent with our opinion in Won.
    DATED: Honolulu, Hawai#i, January 11, 2016.
    Jonathan Burge                           /s/ Sabrina S. McKenna
    for petitioner
    /s/ Richard W. Pollack
    Brian R. Vincent
    for respondent                           /s/ Michael D. Wilson
    Robert T. Nakatsuji
    for amicus curiae Attorney
    General of the State of Hawai#i
    4
    

Document Info

Docket Number: SCWC-12-0001086

Filed Date: 1/11/2016

Precedential Status: Precedential

Modified Date: 1/11/2016