NO. CAAP IN THE INTERMEDIATE COURT OF APPEALS STATE OF HAWAII

Electronically Filed Intermediate Court of Appeals CAAP-12-0000858 05-FEB-2013 04:18 PM 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 OPENING BRIEF OF APPELLANT AND EXHIBIT A DISTRICT COURT OF THE FIRST CIRCUIT HONORABLE JUDGE DAVID LO OPENING BRIEF OF APPELLANT JONATHAN BURGE #6692 Attorney at Law 412 Iolani Avenue Honolulu, Hawaii 96813 Telephone: 521-4500 ATTORNEY FOR DEFENDANT-APPELLANT YONG SHIK WON

TABLE OF CONTENTS I. STATEMENT OF THE CASE... 1 II. STATEMENT OF POINTS OF ERROR... 5 A. THE COURT ERRED WHEN IT DENIED DEFENDANT S MOTION TO SUPPRESS..... 6 1. The defendant has been mislead and/or inadequately advised as to his rights surrounding the chemical test, in violation of not only existing Hawai I appellate precedent but also his Due Process rights.... 6 2. The defendant s 2 nd reason for suppression of the breath test was a violation of defendant s Miranda rights.... 8 3. The Court erred in failing to suppress the breath test for violation of HRS 803-9.... 10 III. QUESTIONS PRESENTED... 11 A. DID THE COURT ERR IN DENYING DEFENDANT S MOTION TO SUPPRESS WHEN DEFENDANT, WHO WAS IN CUSTODY, WAS ASKED WHETHER HE WANTED TO INCRIMINATE HIMSELF IN THE PETTY MISDEMEANOR OFFENSE OF REFUSING TO TAKE AN ALCOHOL TEST WITHOUT FIRST BEING MIRANDIZED?... 11 B. DID THE COURT ERR IN DENYING DEFENDANT S MOTION TO SUPPRESS WHEN THE POLICE ARRESTED DEFENDANT FOR DUI, TRANSPORTED HIM TO THE POLICE STATION TO OBTAIN HIS CONSENT FOR AN ALCOHOL TEST, AND THEN MISINFORMED HIM OF HIS STATUTORY RIGHT TO AN ATTORNEY UNDER HRS 803-9?... 11 C. DID THE COURT ERR IN DENYING DEFENDAN T MOTION TO SUPPRESS WHEN THE POLICE MISINFORMED DEFENDANT OF THE SANCTIONS?... 11 IV. STANDARDS OF REVIEW... 11 V. ARGUMENT... 11 A. THE POLICE MUST OBTAIN THE CONSENT OF A DEFENDANT IN A DUI CASE, WHEN DEFENDANT WAS NOT INVOLVED IN AN ACCIDENT INVOLVING INJURY, PRIOR TO OBTAINING THE DEFENDANT S BLOOD OR BREATH TEST TO DETERMINE BLOOD ALCOHOL.... 11 i

B. THE POLICE VIOLATED ARTICLE 1, SECTION 10 OF THE HAWAII CONSTITUTION WHEN THEY FIRST TOLD DEFENDANT, WHO WAS IN CUSTODY AT THE TIME, THAT HE HAD THE RIGHT TO REFUSE TO TAKE A BLOOD ALCOHOL TEST, AND THEN ASKED HIM WHETHER HE WANTED TO INCRIMINATE HIMSELF IN A PETTY MISDEMEANOR OFFENSE BY REFUSING TO BE TESTED FOR BLOOD ALCOHOL WITHOUT FIRST MIRANDIZING HIM.... 14 C. THE POLICE VIOLATED DEFENDANT S STATUTORY RIGHT TO AN ATTORNEY, AND DUE PROCESS UNDER THE HAWAII CONSTITUTION WHEN THEY MISINFORMED DEFENDANT OF HIS RIGHT TO AN ATTORNEY.... 18 D. THE COURT ERRED WHEN IT FAILED TO SUPPRESS THE BREATH RESULTS AFTER THE POLICE MISINFORMED DEFENDANT OF THE SANCTIONS.... 20 VI. CONCLUSION... 21 VII. RELEVANT CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES... 21 VIII. STATEMENT OF RELEATED CASES... 22 ii

TABLE OF AUTHORITIES Cases State v. Amorin, 61 Haw. 356, 604 P.2d 45 (1979... 17 Doe v. United States, 487 U.S. 201, (1988.........................................14 State v. Eli, 126 Haw. 510, 273 P.3d 1196 (2012 16 State v. Fukusaku, 85 Haw. 462, 946 P.2d 32 (1997... 13, 19 State v. Gustafson, 54 Haw. 519, 511 P.2d 161 (1973... 15 State v. Hoey, 77 Haw. 17, 881 P.2d 504 (1994... 16 State v. Ikaika, 67 Haw. 564, 698 P.2d 281 (1985... 16 State v. Jenkins, 93 Haw. 87, 997 P.2d 13 (2000.11 State v. Joseph, 109 Haw. 482, 128 P.3d 795 (2006... 16 State v. Ketchum, 97 Haw. 107, 34 P.3d 1006 (2001... 16 Leslie v. Estate of Tavares... 11 State v. Medeiros, 4 Haw.App 248, 665 P.3d 181 (1983... 14, 17, 19 Rossell v. City and County of Honolulu, 59 Haw. 173, 181, 579 P.2d 663, 669 (1978... 13 State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971... 17 State v. Severino, 56 Haw. 378, 537 P.2d 1187 (1975... 15, 20 State v. Williams, 114 Haw. 406, 163 P.3d 1143 (2007... 8, 13, 14, 20 State v. Wilson, 92 Haw. 45, 987 P.2d 268 (1999... 2, 7, 8, 13, 19, 20, 21 Statutes Hawaii Revised Statutes Section 291E-11... 6, 7, 11, 15 Hawaii Revised Statutes Section 291E-21... 5, 12, 20 Hawaii Revised Statutes Section 291E-6l... 1, 2, 11, 12, 13, 14, 15 Hawaii Revised Statutes Section 291E-68....15, 17, 18 Hawaii Revised Statutes Section 803-9... 2, 10, 11, 18, 19, 20 Rules Hawaii Rules of Penal Procedure Rule 47... 6 Constitutional Provisions 6 th Amendment of the United States Constitution... 15 Article 1 Section 10 of the Hawaii Constitution... 14 Article 1 Section 11 of the Hawaii Constitution 15 iii

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 OPENING BRIEF OF APPELLANT AND EXHIBIT A DISTRICT COURT OF THE FIRST CIRCUIT HONORABLE JUDGE DAVID LO OPENING BRIEF OF APPELLANT I. STATEMENT OF THE CASE In this case, Appellant YONG SHIK WON (hereinafter " WON " was charged by written complaint with violating Hawaii Revised Statutes (hereinafter HRS Section 291E- 61(a(1 and (a(3. See filed document #1 of case 1DTA-11-01903, hereinafter #1. Defendant, through counsel, pled not guilty. See page 2 of record on appeal. On December 1, 2011 the defendant filed a motion to dismiss the complaint because it lacked mens rea pleading. See document #14 in case 1DTA-11-01903 (hereinafter #14. On May 17, 2012 the defendant filed a motion to suppress statements and evidence. See document #25 in case 1DTA-11-01903 (hereinafter #25. On May 17, 2012, in anticipation to the State filing a motion to amend complaint, defendant filed a memo in opposition to amend the complaint. See document #26 in case 1DTA-11-01903 (hereinafter #26. The prosecution filed a motion to 1

amend complaint on May 24, 2012. See document #28 in case 1DTA-11-01903 (hereinafter #28. On May 24, 2012 the State also filed its opposition to defendant s motion to suppress. See document #27 in case 1DTA-11-01903 (hereinafter #27. On May 24, 2012 the State s motion to amend complaint was heard before the Honorable Judge Lono Lee. Judge Lee granted the State s Motion to Amend over defendant s objection and denied defense s motion to dismiss. See record on appeal at page 4. The Amended Complaint was filed on May 24, 2012. See document #31 in case 1DTA-11-1903 (hereinafter #31. On September 20, 2012 the defendant s motion to suppress and trial came before the Honorable Judge David Lo. Prior to the beginning of trial the court granted the defendant s oral motion to dismiss the 291E-61(a(1 portion of the complaint. See September 20, 2012 transcript of proceedings (hereinafter TR at pages 2-3. The parties then proceeded by stipulated facts on both the Motion to Suppress and the remaining 291E-61(a(3 charge. See TR at 3-7. For the purposes of this appeal defendant argued that defendant s breath test should be suppressed because: 1. The police misinformed defendant of the Sanctions in violation of State v. Wilson, 92 Haw. 45, 987 P.2d 268 (1999; 2. The police violated the Hawaii Constitution s Miranda requirements when they obtained defendant s consent to be tested; and 3. The police violated HRS 803-9 when they informed the defendant that he was not entitled to an attorney. See #25. The court then addressed the Motion to Suppress. Evidence was consolidated on the Motion to Suppress and trial. Police reports and other exhibits were stipulated into evidence. TR at 3-7. 2

According to Honolulu Police Officer Vincent Gonzales in document #37 in case 1DTA- 11-01903 (hereinafter #37. ASSIGNMENT/ ARRIVAL On 4-20-11/ 0315 Hrs while assigned as 1B179 I stopped a vehicle for traffic violations and found the driver to be OVUII. TRAFFIC VIOLATION On 4-20-11/0315 Hrs I was traveling west on Kapiolani Blvd.in lane #2 just prior to Sheridan St when I observed a white Chevy S-10 traveling in the lane in front of me at a high rate of speed. I quickly got behind the vehicle and began to pace it at 55 MPH in a 35M PH zone. We passed (2 35 MPH speed limit signs prior to traffic stop, I continued to pace the vehicle at 55 MPH until it began to slow just prior to Kamakee St. The vehicle then made an abrupt lane change still at about 45 MPH into lane #1 and made a left tum onto Kamakee St. TRAFFIC STOP Observing the traffic violation and fearing for the safety of the Public I activated my emergency lights and siren and attempted to stop the vehicle. I continued to follow the vehicle until came to a stop just makai of the intersection of Kamakee/ Waimanu. I approached the vehicle from the rear- and observed a lone Asian male in the vehicle. I greeted the driver who was later identified via valid Hawaii Drivers license -as Yong Shik WON. I explained to WON why he was being stopped and asked him for his license and vehicle document's. As I was speaking with WON I observed that he had red, watery, eyes and he emitted a strong odor of an alcoholic type beverage as he was speaking to me. I was about 2 feet from WON When I first detected the odor. 1 told WON that I believed him to be intoxicated and asked if he would participate in the SFST's. He agreed and exited his vehicle. OFFICER C. CLITES administered the test. CONFERRAL I conferred with SGT. A. LEE and apprised him of the facts and circumstances of this traffic stop and he continued the investigation. TRANSPORT/ INJURIES After Yong Shik WON was arrested for OVUIII was instructed to transport WON to the Central Receiving Desk for booking. On 4-20-11/0345 Hrs I transported WON to the Central Receiving Desk for booking without incident. WON had no visible injuries nor did he complain of any when asked. We arrived at 0348 Hrs. ADDITIONAL INFO HPD 1295 had a valid Speed Check at the time of this Incident expiring on 11-23- 11. Also the distance from Sheridan St. to Kamakee is approximately 3/10 of a mile. 3

#37 at 7. #37 at 4. Sgt. Albert Lee s report states in relevant part: A/A: On 04-20-11, at about 0330 hours, I arrived at Kamakee Street and Waimanu Street to cover off Ofc. V. GONZALES on a traffic stop. CONFERRAL: Upon arrival, I conferred with Ofc. V GONZALES about stop and the driver. DRIVER: Driver, Yong Shik WON was very talkative. He had a strong odor of an alcohol type beverage coming from him. His face was very red, and his eyes were red as well. SFST: Ofc. C. CLITES administered the SFST to WON which he failed. PAS: Ofc. C. CLITES also administered the PAS to WON, which he also failed. ARREST: At about 0340 hours, I placed WON under arrest for OVUII. He was not sick or injured. TRANSPORT: Transport done by Ofc. V. GONZALES. 'Refer to his followup. DESK COMMANDER: Lt. M. CRICCHIO was apprised of the arrest by me. ADLRO: I read to WON the ADLRO form. He elected the breath test. UTTERANCES: While at CRD, WON kept talking and talking. He stated he admitted to speeding, but he was ten yards from his house. He then said he was speeding; but only going ten over. He also said he was out having a good time, but that he was not that drunk. He then said he was drunk and had to read the form slower. BREATH TEST: Breath test performed on WON by Ofc. C. TOSHI results of which were.170 BrAC. NOTICE: I issued and explained the Notice of Admin Revoc. to WON. He signed the last page of the form and I Issued it to him. He said he understood the form. 4

The implied consent form that was read to WON was submitted under case number 1DTA-11-01903 as document number 36 (hereinafter #36. The relevant portion of the implied consent form reads: See #36. 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 person's breath, blood, or urine as applicable. 2. You are not entitled to an attorney before you submit to any test 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, 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 291 E-65, if applicable. In addition, you shall also be subject to the procedures and sanctions under chapter 291 E, part III. It should be noted that WON refused to initial 2 on #36 because, according to written comments on the form said he does not agree with this one, and was not going to initial. Addition items submitted into the case was the intoxilyzer operator report (see #35 in case 1DTA-11-01903 and the intoxilyzer supervisor s report (see #38 and #39 in case 1DTA-11-01903. Based on document #35 in case 1DTA-11-01903, WON S blood alcohol level was.170. After reviewing exhibits and listening to arguments of the parties the court denied defendant s motion to suppress. TR at 11. Then WON was found guilty of the stipulated facts trial. TR at 11. The court sentenced defendant to fines, fees and classes pursuant to statute, and stayed sentence pending appeal. TR at 12. II. STATEMENT OF POINTS OF ERROR 5

A. THE COURT ERRED WHEN IT DENIED DEFENDANT S MOTION TO SUPPRESS On August 29, 2012 defendant filed a Motion to Suppress Statements and Evidence. See #25. There the defendant argued: This Motion is brought pursuant to HRPP rule 47, Article 1 Section 5, 8, 10 and 14 to the Hawaii Constitution #25 at 1. For purpose of this appeal defendant argues three points of error as to why the court should have suppressed the breath test in this case, which are pointed out below. 1. The defendant has been mislead and/or inadequately advised as to his rights surrounding the chemical test, in violation of not only existing Hawai I appellate precedent but also his Due Process rights. As to this point defendant argued in #25: Here, Defendants are routinely misadvised regarding their rights, negating any ability to make a knowing and voluntary decision. #25 at 3-4. In fact, our existing statutes negate any argument that decisions, based on the current form, are voluntary. Section 291E-11 states: 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 6

2. The person has been informed by a law enforcement officer that the person may refuse to submit to testing under this chapter. Haw. Rev. Stat. 291E-11 (emphasis added. Thus, Section 291E-11 presupposes adequate information will be provided before a refusal will be charged and further suggests that a person under arrest for suspicion of operating a vehicle under the influence of intoxication has a right to refuse a test. See #25 at 4-5. Our case law agrees that Defendants must be properly apprised of their rights to an extent that they may make a knowing and voluntary decision. State v. Wilson, 92 Haw. 45, 987 P.2d 268 (1999. See #25 at 6. The advice routinely given in Honolulu is inapposite with Wilson. Here, Officers: 1 advise Defendants that they was not entitled to an attorney; and 2 If they refused to submit to a breath, blood or urine test, (or merely remain silent, he or she shall be subject to up to thirty days imprisonment and/or a fine of up to $1000. Wilson requires, at a minimum, either an attorney consultation to explain the consequences or, alternatively, that a Defendant be told he may face those sanctions. There is no mention that Defendant would have to be adjudged guilty of a knowing and voluntary refusal before the sanctions. And, because Defendants are specifically advised that they may not consult an attorney, they cannot be held to understand the consequence of refusing and, therefore, should not be held to have knowingly or voluntarily submitted to the testing. The Officers warnings and advisements are coercive, since the defendant only and, precluding Defendants from making a knowing and intelligent decision regarding whether to take or refuse a test. Accordingly, the test result may not be used. See #25 at 6-7. 7

On September 11, 2012 the State filed a written opposition to defendant s Motion to Suppress. They did not address the Wilson argument in their memorandum. They also did not make any arguments against this issue at the hearing on this matter. See #27. The Court did not make specific findings on this issue when it denied defendant s motion. TR passim. 2. The defendant s 2 nd reason for suppression of the breath test was a violation of defendant s Miranda rights. Defendant filed a written motion to suppress. See #25. MR. BURGE: I did want to add just one thing. Since this is an older motion, Judge, I wanted to add basically the crux of it is whether or not it's testimonial. The Hawaii Supreme Court in State v. Williams at 111 Haw. 406 basically says that our implied consent statute is a voluntary one unless the person is in an accident involving injury, which clearly the facts do not indicate here. Once that occurs, they must speak to my client before they can get into this breath evidence. And that means that it's actual facts that they need. In Doe v. United States, they held that questioning between the officers is testimonial if it explicitly or implicitly relates to a factual assertion or discloses information. So basically they're either making a factual assertion that they want to take a test or not or they're disclosing information. For instance, if they don't, clearly from the U.S. Supreme Court's definition, it's testimonial in light of the Hawaii Supreme Court saying that it's a voluntary test. Once you go there, we know the law on Miranda. He was in custody. He was asked a question that may incriminate him and indeed told that one of his choices was to refuse. What do you want to do? 8

I think if it's testimonial, there's no doubt that Miranda violation occurred. And if it occurred, fruit of the poisonous tree is the breath test. And that's why we're asking that it be suppressed. See TR 8-9. In the States memo in opposition to the defendant s Motion to Suppress, #27, they argued: There is no case law within the state supporting defendant's position.. The Hawaii State Legislature mandated by enacting 291E that statutory authority as outlined in HRS 29JE-11 specifying that an individual operating a vehicle upon a public way, street, or highway or on or in the waters of the State shall be deemed to have given consent 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. Consequently, Defendant had already given her prior consent testing through her actions in operating a vehicle on a public way, street, or highway, and the HPD -396-K form merely reaffirmed that consent. The form initialed and signed by Defendant, clearly outlines and correctly informed Defendant of the four choices provided her by statute. Defendant initialed the relevant lines and signed that she was informed regarding the information in the report. #27 at 2. The State s essential argument was that the conversation between the police and defendant when the police attempted to obtain defendant s consent to 9

take a test in this case was not testimonial. Therefore, Miranda did not apply. See #27 at 2-5. motion. TR passim. See #25 at 15. The court did not make any specific findings on this issue in denying defendant s 3. The Court erred in failing to suppress the breath test for violation of HRS 803-9. In his Motion to Suppress defendant argued: The advice routinely given informs the detainee that "You are not entitled to an attorney before you submit to any test or test to determine your alcohol and/or drug content." This is clearly inapposite of Section 803-9, which specifically states that such action would be unlawful. The unlawful act Strips a right without due process. Also, since the moment Defendant walked into the Honolulu Police Department and the submission to the chemical test, a substantial amount of time passed. There is no reason the Officer could not have given Defendant a phone call nor would any burden result from allowing Defendant to attempt to contact an attorney. Moreover, the conflicts in the statutes create great confusion for the detainee- particularly one presented with the existing form. Once again the State argued that HRS 803-9 was inapplicable because the implied consent was non testimonial. See #27 at 6-7. The court did not make specific findings on this issue. The court ruled after reviewing exhibits, and listening to arguments of the parties: All right. Based on that, defendant s motion to suppress will be denied. See TR at 11. 10

The court then found guilty of the remaining charge of HRS 291E-61(a(3. See TR at 11. III. QUESTIONS PRESENTED A. DID THE COURT ERR IN DENYING DEFENDANT S MOTION TO SUPPRESS WHEN DEFENDANT, WHO WAS IN CUSTODY, WAS ASKED WHETHER HE WANTED TO INCRIMINATE HIMSELF IN THE PETTY MISDEMEANOR OFFENSE OF REFUSING TO TAKE AN ALCOHOL TEST WITHOUT FIRST BEING MIRANDIZED? B. DID THE COURT ERR IN DENYING DEFENDANT S MOTION TO SUPPRESS WHEN THE POLICE ARRESTED DEFENDANT FOR DUI, TRANSPORTED HIM TO THE POLICE STATION TO OBTAIN HIS CONSENT FOR AN ALCOHOL TEST, AND THEN MISINFORMED HIM OF HIS STATUTORY RIGHT TO AN ATTORNEY UNDER HRS 803-9? C. DID THE COURT ERR IN DENYING DEFENDAN T MOTION TO SUPPRESS WHEN THE POLICE MISINFORMED DEFENDANT OF THE SANCTIONS? IV. STANDARDS OF REVIEW Questions of constitutional law are reviewed de novo, under the right/wrong standard, so the court if free to exercise our own independent constitutional judgment[,] based on the facts of the case[,] to answer questions of constitutional law. State v. Jenkins, 93 Haw 87, 100, 997 P.2d 13, 26 (2000 (citations omitted. Review of a court s conclusions of law is also reviewed de novo, under the right/wrong standard of review. Leslie v. Estate of Tavares, 91 Haw. 394, 399, 984 P.2d 1220, 1225 (1999. V. ARGUMENT A. THE POLICE MUST OBTAIN THE CONSENT OF A DEFENDANT IN A DUI CASE, WHEN DEFENDANT WAS NOT INVOLVED IN AN ACCIDENT INVOLVING INJURY, PRIOR TO OBTAINING THE DEFENDANT S BLOOD OR BREATH TEST TO DETERMINE BLOOD ALCOHOL. Hawaii Revised Statutes (hereinafter HRS section 291E-11 reads, in relevant part: 11

(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. [emphasis added]. *** (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 preliminary alcohol screening device shall only be used in determining probable cause for the arrest. *** HRS section 291E-21(c sets forth when the police can involuntarily obtain a persons blood alcohol level: (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 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. 12

In State v. Wilson, 92 Haw. 45, 987 P.2d 268 (1999, the Hawaii Supreme Court reasoned under the old dui law under HRS Chapter 291 that: Among other things, our implied consent statute is intended to provide an efficient means of gathering evidence of intoxication. See Rossell v. City and County of Honolulu, 59 Haw. 173, 181, 579 P.2d 663, 669 (1978. The statutory scheme, however, also protects the rights of the driver in that he or she may withdraw his or her consent before a test is administered. To this end, Hawai i's implied consent scheme mandates accurate warnings to enable the driver to knowingly and intelligently consent to or refuse a chemical alcohol test. Wilson, at 49. Emphasis in original. The Hawaii Supreme Court has also interpreted the meaning of our current statutory scheme under Chapter 291E-61, and how the courts are to handle a non-consensual blood alcohol test in DUI cases where there is not an accident involving injury in State v. Williams, 114 Haw. 406, 163 P.3d 1143 (2007. In Williams, the police came across a bloodied person standing on the roadway. There was also an overturned motorcycle on the roadway. The police officer, believing that the bloodied person had been injured in a motorcycle accident, forced a blood draw from the person to determine the blood alcohol content without the person s consent. At trial, the bloodied person filed a motion to suppress evidence based on the nonconsensual blood draw, which lead to blood alcohol evidence that was used to convict that person for DUI. The trial court denied the motion. The Hawaii Supreme Court reversed, and after finding that there was no evidence of an accident, they ruled: Therefore, a police officer can lawfully obtain a blood draw without consent if (1 there has been a collision resulting in injury or death and (2 the officer has probable cause to believe that a person involved in the collision has committed one of the enumerated offenses. HRS 291E 21. 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. See State v. Fukusaku, 85 Hawai i 462, 475, 946 P.2d 32, 45 (1997 ( [T]he fruit of the poisonous tree doctrine 13

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.. State v. Williams, 114 Haw. 406, 410, 163 P.3d 1143, 1147 (2007. Therefore, based on Hawaii Supreme Court precedent in Williams, a person who is arrested for violating HRS 291E-61 (hereinafter DUI must consent to testing for their blood alcohol level, unless they were in an accident involving injury. The United States Supreme Court has held that an accused's communication is testimonial where it, explicitly or implicitly, relates a factual assertion or discloses information. Doe v. United States, 487 U.S. 201, 210, 108 S.Ct. 2341, 2347, 101 L.Ed.2d 184 (1988. In this case, where the defendant was not involved in an accident involving injury, the police were required by statute and Williams to obtain defendant s consent for blood alcohol testing. Therefore, that conversation between defendant and the police related to the factual assertion and/or disclosed information regarding defendant s consenting to take a blood alcohol test. That made the conversation testimonial in nature. B. THE POLICE VIOLATED ARTICLE 1, SECTION 10 OF THE HAWAII CONSTITUTION WHEN THEY FIRST TOLD DEFENDANT, WHO WAS IN CUSTODY AT THE TIME, THAT HE HAD THE RIGHT TO REFUSE TO TAKE A BLOOD ALCOHOL TEST, AND THEN ASKED HIM WHETHER HE WANTED TO INCRIMINATE HIMSELF IN A PETTY MISDEMEANOR OFFENSE BY REFUSING TO BE TESTED FOR BLOOD ALCOHOL WITHOUT FIRST MIRANDIZING HIM. Article 1, Section 10 of the Hawaii Constitution says: No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury or upon a finding of probable cause after a preliminary hearing held as provided by law or upon information in writing signed by a legal prosecuting officer under conditions and in accordance with procedures that the legislature may provide, except in cases arising in the armed forces when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy; 14

nor shall any person be compelled in any criminal case to be a witness against oneself. In State v. Severino, 56 Haw. 378, 537 p.2d 1187 (1975, the Hawaii Supreme Court ruled that the police did not have to read Miranda rights to persons arrested for drunk driving under HRS 291-4 when they read the defendant the implied consent law. However, Severino is easily distinguishable. First, Severino, which was decided over 37 years ago, was interpreting the drunk driving statutes under a different statutory scheme in HRS Chapter 291. HRS Chapter 291 has been since repealed and the drunk driving statutes are now under 291E-61. Second, the basis for the Severino ruling at the time was that the implied consent law only carried civil penalties. Under both the Hawaii State and Federal Constitutions, an accused has the right to assistance of counsel in all criminal prosecutions. U.S.Const. amend. VI; Hawaii Const. Art. 1, s 11. Actions taken under the implied consent law, however, are civil in nature, and hearings before a district judge, pursuant to statute, are in the nature of administrative proceedings. State v. Gustafson, 54 Haw. 519, 511 P.2d 161 (1973. Accordingly, a motorist is not entitled to consult with counsel before deciding to submit to the chemical test prescribed by the implied consent statute. Severino, 56 Haw. at 380-381, 537 P.2d at 1189. On January 1, 2011 a new statute went into effect that dramatically changed the landscape of Hawaii s Implied Consent Law. The new law, HRS 291E-68, says: Refusal to submit to a breath, blood, or urine test as required by part II is a petty misdemeanor. Therefore, Hawaii s implied consent law now criminalizes refusing to take an alcohol test, even though HRS 291E-11 remains in effect, giving persons a right to refuse, and even still requiring the police to inform persons arrested for DUI of their right to refuse prior to obtaining their consent to be tested. 15

Under the current statutory scheme, a person is now subjected to custodial interrogation for Miranda purposes when the police go over a person s implied consent rights after being arrested for DUI. The Hawaii Supreme Court has a simple two part test to whether or not Miranda warnings are applicable under Article I, Section 10 of the Hawaii Constitution (1 is the defendant in custody; and (2 was the defendant under interrogation. State v. Eli, 273 P.3d 1196 at 1207 (April 13, 2012. The Eli court went on to define custody as: As to custody, it has been established that this element is satisfied if the defendant has been taken into custody or otherwise deprived of his freedom... in any significant way. State v. Hoey, 77 Hawai i 17, 33, 881 P.2d 504, 520 (1994 (internal quotation marks omitted. State v. Eli, 273 P.3d 1196 at 1207-1208. Clearly in this case defendant was in custody. Defendant has been stopped by the police, talked to, given field tests, handcuffed and transported to the police receiving desk prior to implied consent warnings. Without question defendant was in custody for State Miranda purposes. Constitution: The Eli court also defined what interrogation meant under the Hawaii As to interrogation, this court has held that it involves any practice reasonably likely to invoke an incriminating response without regard to objective evidence of the intent of the police[.] Joseph, 109 Hawai i at 495, 128 P.3d at 808. The interrogation element depends on whether the police officer should have known that his or her words or actions were reasonably likely to elicit an incriminating response from the person in custody. Ketchum, 97 Hawai i at 119, 34 P.3d at 1018 (quoting State v. Ikaika, 67 Haw. 563, 698 P.2d 281 (1985. As stated before, an incriminating response refers to both inculpatory and exculpatory responses. Joseph, 109 Hawai i at 495, 128 P.3d at 808. State v. Eli, 273 P.3d 1196 at 1208. 16

Here the police first told defendant that he had a choice of taking a test or refusing. If the defendant took the officer up on exercising his choice to refuse, the defendant s response would undoubtedly be used against him in a refusal to take a test case. This practice was reasonably likely to invoke an incriminating response of I want to refuse, thus causing defendant to commit a petty misdemeanor offense of 291E-68. Therefore, defendant was clearly subjected to custodial interrogation when being read the implied consent law. Under Article I, Section 10 of the Hawaii Constitution his Miranda Rights were required to be read to him prior to the police questioning defendant about which test, or refusing to take a test. Since defendant was subjected to custodial interrogation, as defined by the Hawaii Supreme Court in interpreting Article I, Section 10 of the Hawaii Constitution, Miranda warnings should have been given prior to asking defendant to respond to implied consent warnings. If these warnings are not given, any statements uttered by the defendant in response to the custodial interrogation are inadmissible and cannot be used at trial by the State for substantive or impeachment purposes. State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971. This restriction applies even if the statements were "voluntarily" made. State v. Amorin, 61 Haw. 356, 359, 604 P.2d 45, 47 (1979. The rationale for this prohibition is that the defendant must be first made aware of constitutional rights. Only then can a waiver of those rights be possible. Thus, if a defendant was subject to custodial interrogation and made statements without the required Miranda warnings, or even if such warnings were given but the statements were not voluntary, the statements should not be admitted. Furthermore, the doctrine of the "Fruit of the Poisonous Tree" is applicable to confessions. State v. Medeiros, 4 Haw.App. 248, 665 P.2d 181 (1983. " Therefore, the subsequent breath test must also be suppressed. 17

Based on all of the foregoing the court clearly erred in failing to suppress the defendant s blood test in this case. C. THE POLICE VIOLATED DEFENDANT S STATUTORY RIGHT TO AN ATTORNEY, AND DUE PROCESS UNDER THE HAWAII CONSTITUTION WHEN THEY MISINFORMED DEFENDANT OF HIS RIGHT TO AN ATTORNEY. As previously discussed, in this case the defendant was arrested for DUI after he was involved in a traffic accident that did not involve injuries and displayed indicia of intoxication. Therefore, the defendant was arrested so that he could be transported to the police station so he could either consent to an alcohol test, or refuse any test. Therefore, at the time of his arrest the police were investigating both the potential DUI case and the potential refusal to take a test case under HRS 291E-68. The police needed to talk to him at the police station pursuant to investigating both the DUI or refusal to take a test cases. HRS Section 803-9 reads: 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 18

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. Haw. Rev. Stat. Ann. 803-9 (LexisNexis. After arresting him the police had to examine or question defendant as to whether or not he would consent for testing. Therefore, HRS 803-9 was obviously applicable. However, the police explicitly informed him that he was not entitled to an attorney prior to their questioning him. See #36. Case law says that Defendants must be properly apprised of their rights to an extent that they may make a knowing and voluntary decision. State v. Wilson, 92 Haw. 45, 987 P.2d 268 (1999. In Wilson, the court stated: Id at 49. Thus, as the statutory language makes clear, a driver's implied consent to an evidentiary chemical alcohol test is qualified by his or her implied right to refuse such a test after being accurately informed of his or her statutory right to consent or refuse, as well as the consequences of such consent or refusal. The court stated that the driver cannot knowingly and intelligently refuse a test without warnings regarding both the right of consent and refusal, and the consequences of each. Id. at 49. It stands to reason that misinforming the defendant of his statutory right to an attorney under HRS 803-9 would negate any knowing and intelligent choice to either take a test or refuse. 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. See State v. Fukusaku, 85 Hawai i 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.. 19

State v. Williams, 114 Haw. 406, 410, 163 P.3d 1143, 1147 (2007. Under the same reasoning, by misinforming defendant of his right to an attorney under HRS 803-9, evidence obtained subsequent to the violation of HRS 803-9 should be suppressed as a fruit of and poisonous tree. Therefore, the court should have suppressed defendant s blood alcohol evidence in this case based on the police violation of defendant s statutory right to an attorney prior to their obtaining his consent for testing. D. THE COURT ERRED WHEN IT FAILED TO SUPPRESS THE BREATH RESULTS AFTER THE POLICE MISINFORMED DEFENDANT OF THE SANCTIONS. In State v. Wilson, 92 Haw. 45, 987 P.2d 268 (1999, the Hawaii Supreme Court examined a case where Wilson was faced with a license revocation of up to one year. However the officer told defendant that his license would only be revoked for 3 months if he took a test. In its ruling, the Hawaii Supreme Court said: This court recognizes and embraces the important purpose of our implied consent laws to prevent fatalities and injuries resulting from highway traffic accidents. This purpose, however, can be realized while at the same time ensuring that the police provide clear, accurate warnings as mandated by statute. We hold, therefore, that the arresting officer's violation of HRS chapter 286's consent requirement precludes admissibility of Wilson's blood test results in his related criminal DUI proceeding. Wilson at 53-54. reads: In this case, the relevant portion of the implied consent for that is in contention 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, 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 291 E-65, if applicable. In addition, you shall also be subject to the procedures and sanctions under chapter 291 E, part III. 20

See #36. Defendant was informed that he shall be subject to 30 days in jail if he refused. In reality he may be subject to the 30 days if convicted. Therefore the defendant was misinformed of the sanctions. As such, the court should have suppressed the breath test results pursuant to State v. Wilson, 92 Haw. 45, 987 P.2d 268 (1999. VI. CONCLUSION Based on the foregoing arguments, defendant's conviction should be reversed and defendant s case dismissed with prejudice VII. RELEVANT CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES See Exhibit "A". DATED: Honolulu, Hawaii, February 5, 2013. /s/ Jonathan Burge JONATHAN BURGE Attorney for Defendant-Appellant YONG SHIK WON 21

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 RELEVANT CONSTITUTIONAL PROVISIONS, STATUTES AND RULES DISTRICT COURT OF THE FIRST CIRCUIT HONORABLE JUDGE DAVID LO EXHIBIT A RELEVANT CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

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 persons breath, blood, or urine for the purpose of determining alcohol concentration or drug content of the persons 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 preliminary alcohol screening device shall only be used in determining probable cause for the arrest. EXHIBIT A

(g Any person tested pursuant to this section who is convicted or has the persons 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. History. L 2000, c 189, 23; L 2001, c 157, 11; am L 2002, c 113, 1; am L 2004, c 90, 5; am L 2006, c 64, 1 EXHIBIT A

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 A