HPD Form Mentioning Sanctions did not Arise to Coercion Invaliding the Consent to a Breath Test

 State v. Hosaka (HSC August 28, 2020)

Background. Troy Hosaka was charged with habitually operating a vehicle under the influence of an intoxicant. After he was arrested, HPD Officer Jared Spiker read the department’s implied consent form. The form stated “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 chapter 291E, part III.”

 

Hosaka initialed that he had been informed and agreed to take a breath test, but refused a blood test. Hosaka signed the bottom of the form which “acknowledge[d] that [he] made the choice[] indicated above and was informed of the information in [the form].” Hosaka took a breath test and the blood-alcohol content was over the limit. Hosaka was charged with habitual OUI. HRS § 291E-61.5.

 

Hosaka filed a motion to suppress the breath test results. He argued that the consent had been coerced and was invalid because the form stated if he had refused to submit to a test, he would be subject to the “procedures and sanctions under chapter 291E, part III.” This statement, according to Hosaka, failed to explain that he could withdraw his consent. The circuit court with the Hon. Judge Glenn Kim presiding agreed and granted the motion. The prosecution appealed. The ICA vacated the suppression order. Hosaka petitioned to the HSC.

 

The Constitutional Right to Refuse a Breath Test. “The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated[.]” U.S. Const. Am. IV; Haw. Const. Art. I, Sec. 7. A breath test is a search. State v. Won, 137 Hawai'i 330, 340, 372 P.3d 1065, 1075 (2015). Consent, of course, is an exception to the warrant requirement. Id. The consent, however, must be “freely and voluntarily given” and must be uncoerced. Id. at 341, 372 P.3d at 1076. The validity of one’s consent is determined by examining the totality of the circumstances. Id.

 

The Form is an Accurate Statement of the Law and is Not Coercive. The HSC rejected Hosaka’s argument that the form was coercive. Drivers on public roads in the State of Hawai'i are deemed to have consented to a blood, breath, or urine test to determine the level of intoxicants in their system if they are suspected of driving under the influence. HRS § 291E-11(a). When an officer requests the driver to submit to a chemical test, the law enforcement officer must inform the driver that he or she has the right to refuse testing. HRS § 291E-11(b)(2). If the driver refuses, the driver must be informed about the administrative sanctions that could be imposed like the suspension of the license and privilege to drive and the driver must be given a chance to reconsider the decision. HRS § 291E-15. If the driver still refuses, the license may be suspended. HRS § 291E-41. The HSC held that when the statutes are read together, the implied consent laws impose a two-step procedure on the police.

 

First, the arrestee must be given a chance to refuse to submit to testing. Second, if the arrestee refuses, the arrestee must be informed the specific sanctions that may result from a refusal and the officer must ask a second time if they still wish to refuse. Here, Hosaka did not initially refuse. Therefore, according to the HSC, HRS § 291E-15—the second part—did not apply. The HSC noted that the plain language of HRS § 291E-11 allows a test only when there is a lawful arrest and when the arrestee was advised of the right to refuse. HRS § 291E-11(b). Nothing prohibits the officer from telling the arrestee that sanctions may be imposed for a refusal and then getting more specific after the arrestee refuses.

 

The Totality of the Circumstances Also Point Toward Voluntary Consent. The HSC rejected Hosaka’s other argument that any imperfection in the form results in suppression. The HSC reiterated that the inaccuracy in the form must be substantive. See, e.g., State v. Wilson, 92 Hawai'i 45, 987 P.2d 268 (1999) (form that failed to state the length of the driver’s license revocation period was substantive and likely to influence the arrestee’s decision to consent to a test). The HSC also rejected the claim that the slightest mention of sanctions was a form of impermissible coercion. The HSC noted that in Won the form threatened thirty days jail and a fine of up to $1,000 for refusing to take a test. Id. at 335, 372 P.3d at 1070. That threat infringed upon and oppressed “the unfettered will and free choice of the person to whom it is made, whether by calculation or effect.” Id. at 346, 372 P.3d at 1081. This form did not arise to that level. The HSC affirmed the ICA’s vacation of the suppression order.