Article from: www.thenewspaper.com/news/48/4843.asp
12/1/2015Hawaii Supreme Court Overturns Criminalized DUI Refusal
Hawaii Supreme Court rules that it is coercion to impose a criminal penalty on DUI refusal.
Hawaii motorists may no longer be threatened with imprisonment if they refuse to submit to a breathalyzer test. The state Supreme Court ruled last week that it was improper for police to threaten drivers with a criminal conviction if they exercised their right under the law to decline a breath test when accused of driving under the influence of alcohol (DUI).
The court came to this conclusion after considering the April 20, 2011 stop of Yong Shik Won. Won had allegedly been driving his Chevy S-10 on Sheridan Street at 55 MPH in a 35 MPH zone when Honolulu Police Officer Vincent Gonzales pulled him over. It was clear to Officer Gonzalez that Won was tipsy, so he was brought to the police station and handed a form that explained he had already given his "implied consent" to provide a breath or blood sample.
Won was told he must either provide that sample immediately or face thirty days in prison and a $1000 fine for refusal. Won agreed to the demand, but the high court majority ruled that under these circumstances that the consent was coerced.
Prosecutors argued that Won had no right to an attorney, nor did he need to be apprised of his rights. Won cited the US Supreme Court's Missouri McNeely decision, decided two years after his arrest, to argue that coerced DUI test results were not valid (view case). The Hawaii justices were sympathetic.
"This court has stated unambiguously that for consent to be in fact, freely and voluntarily given, the consent must be uncoerced," Justice Richard W. Pollack wrote for the court majority. "It is manifestly coercive to present a person with a 'choice' that requires surrender of the constitutional right to refuse a search in order to preserve the right to not be arrested for conduct in compliance with the constitution."
Although Hawaii statutes contain an implied consent provision requiring drivers to submit to a breath test, an individual's consent may be withdrawn. That ability is essential, the majority argued, to preserving constitutional rights.
"The decisions of this court jealously protect our citizens from coerced submission to a search, because no matter how subtly the coercion was applied, the resulting 'consent' is no more than a pretext for the intrusion forbidden by article I, section 7 of the Hawaii Constitution," Justice Pollack wrote.
The high court majority went further, noting that the coercion was amplified by the thirty day penalty for refusal -- six times greater than the maximum of five days in jail for someone actually convicted of DUI for the first time. The court vacated Won's conviction.
A copy of the decision is available in a 230k PDF file at the source link below.
Source: Hawaii v. Won (Hawaii Supreme Court, 11/25/2015)
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