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1 NO. CAAP IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I Electronically Filed Intermediate Court of Appeals CAAP AUG :40 PM STATE OF HAWAI I, Plaintiff-Appellee, vs. YONG SHIK WON, Defendant-Appellant. CASE NO. 1DTA APPEAL FROM THE JUDGMENT OF GUILTY CONVICTION AND SENTENCE ENTERED ON SEPTEMBER 20, 2012 DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION HONORABLE DAVID LO JUDGE SUPPLEMENTAL BRIEF OF THE STATE OF HAWAI I KEITH M. KANESHIRO 2027 Prosecuting Attorney BRIAN R. VINCENT 8002 Deputy Prosecuting Attorney City and County of Honolulu 1060 Richards Street Honolulu, Hawai i Telephone: ( bvincent@honolulu.gov Attorneys for State of Hawai i Plaintiff-Appellee and CERTIFICATE OF SERVICE

2 SUPPLEMENTAL BRIEF OF THE STATE OF HAWAI I Casualties from motor vehicle accidents are one of the most serious public health problems of our times 1 and operating a vehicle under the influence of an intoxicant (OVUII is a major contributor to this problem. 2 In 2009, nearly onethird of all traffic fatalities in the United States involved an alcohol impaired driver for a total of 10,228 fatalities or about one death every 48 minutes due to alcohol impaired driving. 3 While this is an improvement from the 21,115 drunk driving related fatalities in 1982 it is still an unacceptable toll. 4 One of the continuing frustrations of law enforcement in combating alcohol impaired driving is that, despite the fact that pursuant to implied consent statutes all drivers operating a vehicle on public roads have been deemed to have given their consent to submit to a breath or blood test to determine their alcohol concentration in the event that they are lawfully arrested for OVUII 5 and despite the threat of a driver s license suspension or revocation for failing to honor their consent pursuant 1 (last accessed August 1, World wide about 1.24 million people die each year as a result of road traffic crashes and road traffic injuries are the leading cause of death among young people worldwide, aged years. (last accessed August 1, (last accessed August 1, Id. 4 (last accessed August 1, The first implied consent statute was enacted in New York state in 1953 and, in 1972, the District of Columbia became the final jurisdiction to enact an implied consent law. Tina Wescott Cafaro, Fixing the Fatal Flaws in OUI Implied Consent Laws, 34 J. Legis. 99, 103, 104 n.42 (2008.

3 to the implied consent statutes 6, many OVUII arrestees still refuse to voluntarily submit to a breath or blood test when required to do so. 7 A recent survey suggests that about 10% of OVUII arrestees in Hawai i refuse to submit to a breath or blood test. 8 Some states have addressed this problem by authorizing search warrants to forcibly obtain blood samples from OVUII arrestees that have refused to voluntarily submit to a breath or blood test. 9 However, rather than authorize forcible blood draws pursuant to a search warrant, Hawai i and a number of other states have 6 Nevada is the only jurisdiction in the United States that does not provide for a license suspension for refusal. Nevada instead provides for the forcible extraction of a blood sample. Nevada Revised Statutes 484C.160(7 ( It should be noted that for most, if not all, licensed drivers in Hawai i consent to submit to chemical testing is not implicit it is explicit. For example, in Honolulu, the State of Hawaii Driver s License Application, that all new applicants have to complete and sign, explicitly informs the applicant of the following condition: IMPLIED CONSENT LAW: I agree to submit to a chemical test or tests of my blood, breath or urine for the purpose of determining the alcohol or drug content of my blood when testing is requested by a police officer acting in accordance with Section 291E-11, Hawaii Revised Statutes (HRS. APPLICANT S SIGNATURE DATE (last accessed August 1, National highway Traffic Safety Administration (NHSTA, Alcohol and Highway Safety: A Review of the State of the Knowledge, DOT HS at 174 (March 2011, (last accessed August 1, 2013 at 214 in pdf file. 9 For example, in Louisiana, in order to counteract the rise of refusal rates, law enforcement was authorized to apply for search warrants to perform nonconsensual blood draws and an expedited process was set up to insure that the search warrants were obtained in a timely fashion. Katherine L. Cicardo, We Won t Take No For an Answer: The Validity of Louisiana s No-Refusal Policy, 73 La. L. Rev. 253, 263 (2012. Supporters of these no-refusal policies make a compelling argument that these policies resulted in a significant decline in alcohol impaired driving fatalities. Id. at

4 sought to address the problem of high refusal rates by making refusal to voluntarily submit to a breath or blood test a criminal offense. 10 In his Opening Brief, Won argues that the Hawai i legislature s enactment of Hawai i Revised Statutes (HRS 291E-68 (Supp. 2012, criminalizing the refusal to take a breath or blood test dramatically changed the landscape of Hawaii s Implied Consent Law and requires that the Hawai i Supreme Court s decision in State v. Severino 11 be distinguished. 12 Specifically, Won argues that being forced to choose 10 The following states impose criminal sanctions in some form or other for refusal: Alaska Statutes (g(1(A & (a (2013 (separate offense - class A misdemeanor - maximum one year jail with mandatory 72 hours minimum jail for first offense refusal; California Vehicle Code & (2013 (if convicted of OVUII then refusal results in additional mandatory jail for second offense OVUII; Florida Statutes & (2013 (separate offense - misdemeanor - maximum one year jail for second offense refusal; Iowa Code 321J.2(3(a & (3(b(2(d (2013 (if convicted of OVUII and if refuses then not eligible for deferred judgment which results in mandatory 48 hours jail; Kansas Statutes (2013 (separate offense class A misdemeanor - if has prior refusal or OVUII then maximum one year and mandatory 5 days for first offense; Louisiana Statutes 14:98.2B(1 & 32:666A(1(c (2013 (separate offense - if has refused on two prior occasions then refusal is maximum 6 months jail; 29 Maine Revised Statutes 2411(5(A(3(b (2013 (if convicted of OVUII then refusal results in additional 48 hours mandatory jail for first offense OVUII; Minnesota Statutes 169A.20(2, 169A.26(1(b, (4 & (1 (2013 (separate offense - gross misdemeanor - maximum one year jail for first offense; Nebraska Revised Statutes 60-6,197.03(5 & (2013 (if prior OVUII and refuses then class I misdemeanor with maximum one year and mandatory 90 days jail; Ohio Revised Code (A(2 & (G(1(a(ii (2013 (if prior OVUII and if convicted of OVUII then refusal is three days mandatory jail; 75 Pennsylvania Consolidated Statutes 3804(c(1(i (2013 (if convicted of OVUII and refuses then mandatory 72 hours jail for first offense; Rhode Island General Laws (b(3 (2013 (third offense is separate offense - misdemeanor - maximum one year jail; Vermont Statutes 1201(b & 1210(b (2013 (if prior OVUII then refusal is separate offense - up to two years jail; Virginia Code (B & (b (2013 (separate offense - class 2 misdemeanor - if prior OVUII or refusal then refusal is maximum 6 months jail Haw. 378, 380, 537 P.2d 1187, 1189 (

5 between taking a breath or blood test or refusing is now reasonably likely to invoke the incriminating response of, I want to refuse and is, therefore, interrogation, triggering his Miranda rights to an appointed attorney or at least a statutory right to consult with an attorney. 13 As explained in the State s Answering Brief, the appellate courts in sister jurisdictions that have addressed this contention have rejected it. Now in his motion for supplemental briefing, Won takes a somewhat different tack and argues that the recently decided United States Supreme Court case Missouri v. McNeely 14, renders HRS 291E-68 unconstitutional on its face and as applied and that, therefore, the standard Implied Consent Form he was read misinformed him that he would be subject to 30 days in jail for refusal. 15 Briefly the underlying facts and procedural history of McNeely are that a Missouri police officer lawfully arrested McNeely in the early morning hours for operating a vehicle under the influence of an intoxicant. 16 While being transported to the police station, McNeely indicated that he would refuse to provide a breath Opening Brief of Appellant (OB at 15, Dkt. #20 for CAAP at 13 Id. at 17, Dkt. #20 for CAAP at U.S., 133 S.Ct ( Motion for Supplemental Brief (MSB at 4-5, Dkt. #34 for CAAP at McNeely, U.S., 133 S.Ct. at

6 sample. 17 After hearing that comment, the officer changed course and took McNeely to the nearest hospital for blood testing. 18 At the hospital, [r]eading 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. 19 McNeely nonetheless refused. 20 The officer then directed a hospital lab technician to take a blood sample. 21 The sample measured McNeely s BAC at percent, well above the legal limit of 0.08 percent. 22 McNeely moved to suppress the test result arguing that a search warrant was required pursuant to the Fourth Amendment of the United States Constitution. 23 The trial court, the Missouri Supreme Court and the United States Supreme Court agreed with McNeely, finding that blood draws for alcohol concentration testing did not justify a per se exigent circumstances exception to the search warrant requirement. It is not clear from his motion for supplemental briefing, exactly why Won believes that McNeely supports the proposition that HRS 291E-68 is unconstitutional. McNeely does not address or even acknowledge the specific issue of whether laws criminalizing refusal to take a breath or blood test are unconstitutional. Perhaps what Won is arguing is that since McNeely held that law 17 Id. at Id. 19 Id. 20 Id. 21 Id. 22 Id. 23 Id. 5

7 enforcement officers can not forcibly coerce an OVUII arrestee to submit to a blood draw without a warrant they can not coerce an OVUII arrestee to submit to a breath or blood test by any other means. This is on overly expansive reading of the holding and is contradicted by the fact that, in McNeely, the United States Supreme Court noted with approval that, 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. 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. [S]ee also South Dakota v. Neville, 459 U.S. 553, 554, , 103 S.Ct. 916 (1983 (holding that the use of such an adverse inference does not violate the Fifth Amendment right against self-incrimination. 24 Won does not go so far as to argue that penalizing refusal with a license suspension is unconstitutional. Nor is it clear why penalizing refusal with criminal sanctions should be significantly different than penalizing refusal with a license suspension. Furthermore, McNeely clearly stands for the proposition that if a state so chooses it can authorize law enforcement to seek search warrants in OVUII cases and after obtaining a search warrant compel a blood draw from an arrestee by force. If a state can, with the proper safeguards, forcibly compel a blood draw from an OVUII arrestee, it seems strange that a state would not be allowed to coerce omitted. 24 McNeely, U.S., 133 S.Ct. at 1556 (emphasis added, some citations 6

8 cooperation with the implied consent law using the less physically intrusive method of providing for criminal penalties for refusal. 25 As noted supra, about 10% of OVUII arrestees in Hawai i refuse to submit to a breath or blood test. By operating a vehicle on the state road system, those OVUII arrestees had implicitly consented to submit to a breath or blood test if an officer has probable cause to believe that they are OVUII. By exercising the privilege of operating a vehicle on the state road system, those OVUII arrestees had already received the benefit of the bargain that they made with the state. However, when lawfully arrested for OVUII, those arrestees failed to honor their side of the bargain by submitting to a breath or blood test as they had promised. It is fitting 25 See South Dakota v. Neville, 459 U.S. 553, 563, 103 S.Ct. 916, 922 (1983 ( Given, then, that the offer of taking a blood-alcohol test is clearly legitimate, the action becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice.. 7

9 and fair that those OVUII arrestees who renege on their prior consent should be subject to a more severe penalty than a mere license revocation. 26 Dated at Honolulu, Hawai i: August 12, Respectfully submitted, STATE OF HAWAI I Plaintiff-Appellee By KEITH M. KANESHIRO Prosecuting Attorney By /s/ BRIAN R. VINCENT Deputy Prosecuting Attorney City and County of Honolulu CAAP ; STATE OF HAWAI I, Plaintiff-Appellee, vs. YONG SHIK WON, Defendant-Appellant; Appellee s Supplemental Brief 26 It should be noted that a few states, while not imposing criminal sanctions for refusal, have imposed substantial mandatory minimum fines for refusal to submit to a breath or blood test. Idaho Code (4 (2013 (civil penalty of $250; New Jersey Statutes 39:4-50.4a (2013 (fine of $300-$500; New York Vehicle & Traffic Law 1194(d(2 (2013 (civil penalty of $500. Won does not indicate whether he thinks that this method of penalizing refusal would unconstitutionally coerce his consent. 8

10 NO. CAAP IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I STATE OF HAWAI I, Plaintiff-Appellee, vs. YONG SHIK WON, Defendant-Appellant. CASE NO. 1DTA APPEAL FROM THE JUDGMENT OF GUILTY CONVICTION AND SENTENCE ENTERED ON SEPTEMBER 20, 2012 DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION HONORABLE DAVID LO JUDGE CERTIFICATE OF SERVICE I hereby certify that on August 12, 2013, one (1 copy of the Supplemental Brief of the State of Hawai i, was served by electronic notification through JEFS to: JONATHAN E. jon@jonburgelaw.com Attorney for Defendant-Appellant /s/ BRIAN R. VINCENT Deputy Prosecuting Attorney City and County of Honolulu