That Awkward, Statutorily-Imposed Conversation with the Police
State v. Hosaka (ICA May 17, 2019)
Background. Troy Hosaka was arrested under suspicion
for operating a vehicle under the influence of an intoxicant. He was taken to
the police station, where the arresting officer handed him a form. The form had
three relevant paragraphs. First, it read that anyone driving a vehicle on a
public road is deemed to have given consent to a chemical test to determine
that person’s blood-alcohol content. Second, it stated that Hosaka was not
entitled to an attorney. Finally, it stated this:
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. If you do refuse, then 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 may be subject to up to the sanctions of
291E-65 if you are under 21 years of age at the time of the offense. In
addition, you may also be subject to the procedures and sanctions under 291E,
part III.
Hosaka initialed
each paragraph and submitted to a breath test. He was later charged with
habitual OUI. Hosaka filed a motion to suppress the results of the breath test.
The motion was granted by Judge Glenn Kim. The prosecution appealed.
Two Chances to Refuse. An arrestee of OUI has two chances
to refuse testing. Testing of any kind can only be given after there has been a
lawful arrest and when the arrestee “has been informed by a law enforcement
officer that the person may refuse to submit to testing[.]” HRS §
291E-11(b)(2). If the person refuses, the officer must inform the person about
the sanctions associated with refusing and again ask the person if he or she
still refuses to take a test. HRS § 291E-15.
The ICA held that
the form used on Hosaka was deficient. It did not provide “an initial opportunity
for Hosaka to refuse to submit to testing before being informed of possible
sanctions.” Even though Hosaka didn’t refuse.
What Should it Say? The ICA poses an interesting problem
for the lawyers who write implied consent forms. What should the first form
say? Must it inform the reader that if he or she refuses, then he or she will
be asked a second time after being told exactly what sanctions were out there?
Perhaps so.
But Hosaka Still Loses. Despite the deficient
implied consent form, the ICA held that the circuit court should have denied
the motion to suppress. The form refers to civil sanctions and omits any
reference to criminal sanctions for refusal. That, according to the ICA,
distinguishes this case from State v. Won,
137 Hawaii 330, 372 P.3d 1065 (2015), where the HSC held that the threat of
criminal sanctions burdened and unduly coerces the reader into consenting to a
test. The ICA relied on a footnote in Won:
“It bears repeating here that this opinion does not concern the civil administrative
penalties attendant to a driver’s refusal of BAC testing. Those types of
sanctions are not affected in any way by our decision.” Id. at 349 n. 34, 372 P.3d at 1084 n. 34.
Here, the form identifies
only the civil penalties and makes no reference to the criminal ones. That was
enough for the ICA to hold that there was sufficient consent and overturn the
circuit court’s ruling.
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