State v. Shimkus ( 2016 )

***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-12-0000840
28-JAN-2016
01:59 PM
SCWC-12-0000840
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
ANDREW E. SHIMKUS,
Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000840; CASE NO. 1DTA-12-00225)
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 Andrew E. Shimkus seeks
review of the Intermediate Court of Appeals’ (ICA) July 16, 2014
Judgment on Appeal, entered pursuant to its May 23, 2014 Summary
Disposition Order, which affirmed the District Court of the
First Circuit’s (district court) September 13, 2012 Notice of
Entry of Judgment and/or Order and Plea/Judgment (district court
***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
judgment).1 The district court found Shimkus guilty of Operating
a Vehicle Under the Influence of an Intoxicant (OVUII), in
violation of Hawaiʻi Revised Statutes (HRS) § 291E-61(a)(3)
(Supp. 2010).2 This court accepted Shimkus’s Application for
Writ of Certiorari, and we now vacate the ICA’s Judgment on
Appeal and the district court judgment and remand the case to
the district court for further proceedings.
After being arrested for OVUII, Shimkus was taken to
the police station, where he was read an implied consent form.3
1
The Honorable Shirley M. Kawamura presided.
2
HRS § 291E-61(a)(3) (Supp. 2010) provides in relevant part:
(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
(continued . . .)
2
***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Shimkus elected to take a breath test, which resulted in a
breath alcohol content reading of 0.178 grams of alcohol per 210
liters of breath. In his motion to suppress the breath test
results before the district court and on certiorari, Shimkus
contends that (1) his Miranda rights under Article I, Section 10
of the Hawaiʻi Constitution were violated when, while in custody,
he was asked by the police, without Miranda warnings, if he
wanted to refuse to take a blood alcohol test, which was likely
to incriminate himself; (2) his statutory right to an attorney
was violated; and (3) the wording of the implied consent form
misinformed Shimkus of the sanctions.4
In State v. Won, 136 Hawaiʻi 292, 312, 361 P.3d 1195,
1215 (2015), we held that “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
(. . . continued)
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.
4
Included in this third argument raised before the district court
and the ICA, Shimkus contended that the police officers’ warnings and
advisements based on the implied consent form were coercive and that he did
not knowingly and voluntarily submit to the breath alcohol testing. The
district court denied his motion to suppress, and the ICA affirmed the
district court’s ruling.
3
***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
decision to submit to testing after being read the implied
consent form “is invalid as a waiver of his right not to be
searched.” In accordance with State v. Won, the result of
Shimkus’s breath test was the product of a warrantless search,
and the ICA erred by concluding that the district court properly
denied Shimkus’s motion to suppress the breath test result.
Accordingly, Shimkus’s OVUII conviction cannot be upheld.
IT IS HEREBY ORDERED that the ICA’s July 16, 2014
Judgment on Appeal and the district court judgment are vacated,
and the case is remanded to the district court for further
proceedings consistent with this court’s opinion in State v.
Won.
DATED: Honolulu, Hawaiʻi, January 28, 2016.
Jonathan Burge /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Brian R. Vincent /s/ Michael D. Wilson
for respondent
Robert T. Nakatsuji
for amicus curiae
Attorney General of
the State of Hawaiʻi
4