Breathing the Constitution into the Breath Test

State v. Won (HSC November 25, 2015)
Background. Yong Shik Won was pulled over for speeding. The officers suspected that he had been drinking so they ordered him out of the car. Won submitted to field sobriety tests. The officers arrested him for operating a motor vehicle while under the influence of an intoxicant. They took him to the police station. There, they handed him a form and read it to him. The form stated that any person operating a vehicle on a public road is deemed to have given consent to a test for purposes of determining alcohol concentration.

The form also read that Won he could refuse to take a test but “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.” Won picked a breath test. The police had him blow into a machine called the Intoxilyzer 8000. His BAC came to 0.17 grams of alcohol per two hundred ten liters of breath (which is over the limit of 0.08). Won moved to suppress the blood results. The motion was denied. He appealed to the ICA and the ICA affirmed. The HSC accepted his petition for certiorari.

The Right to be Free from Unreasonable Searches and Seizures Includes Intrusions into the Body. “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated” without a warrant. Haw. Const. Art. I, Sec. 7. “An invasion of bodily integrity implicates an individual’s most personal and deep-rooted expectations of privacy.” Missouri v. McNeely, 133 S.Ct. 1552, 158 (2013). Subjecting a person to a breath test usually requires the production of alveolar or “deep lung” breath for chemical analysis and it is considered a “search” for purposes of the Fourth Amendment and the Hawaii Constitution. Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 616-617 (1989).

The Consent Exception to the Warrant Requirement. The Hawaii Supreme Court held that a breath test is a “search” that requires a warrant unless the prosecution can show one an “established and well-delineated exception.” State v. Ganal, 81 Hawaii 358, 368, 917 P.2d 370, 380 (1996). Consent is such an exception. Nakamoto v. Fasi, 64 Haw. 17, 21, 635 P.2d 946, 951 (1981). Consent, however, is more than the absence of an objection. The prosecution must show that it was given voluntarily. State v. Bonnell, 75 Haw. 124, 147-148, 856 P.2d 1265, 1277 (1993); State v. Shon, 47 Haw. 158, 166, 385 P.2d 830, 836 (1963). Whether consent was given freely and voluntarily depends on the totality of the circumstances. State v. Russo, 67 Haw. 126, 137, 681 P.2d 553, 562 (1984).

The Coercion Problem. Consent cannot be coerced. Nakamoto, 64 Haw. at 21, 635 P.2d at 951. The problem in this case—and all OUI cases—is that in 2010, the Legislature criminalized the act of refusing to take a test. HRS § 291E-68. According to the HSC, the form used by the police in Won’s case made it clear that Won had to pick between consenting to a search without a warrant or face a criminal penalty for engaging in conduct protected by the constitution. The HSC viewed this not as a “refusal” to submit to a test, but a refusal to consent to a search. This was untenable. “[T]he government may not condition a right guaranteed in our constitution on the waiver of an equivalent constitutional protection.” If Won exercised his right to refuse, he would be committing a crime. Under these circumstances, this is a form of coercion that undermines the consent exception to the warrant requirement. And so the breath test results should have been suppressed.

Justice Wilson’s Concurrence. Justice Wilson agreed with the majority’s analysis regarding the warrant issue. He wrote separately to opine that this was a good time to consider the constitutionality of the refusal offense—HRS § 291E-68. In his view, it was an unconstitutional infringement on a defendant’s right to “withdraw” or not consent to a search of his person. “The constitutional infirmity of HRS § 291E-68 is more evident in its prosecution of a citizen who, unlike Won, does not consent and instead exercises his or her constitutionally endowed right to the protection of a warrant before the search of his or her blood, breath, or urine. In such a situation, an individual wholly innocent of driving under the influence may be culpable as a criminal misdemeanant merely by refusing to consent to a BAC test without a warrant.” Justice Wilson was ready and willing to declare the statute unconstitutional.

Justice Nakayama’s Dissent. Justice Nakayama dissented and would have held that the legislature properly exercised its authority in criminalizing the refusal to take a test. She wrote that the majority has basically declared HRS § 291E-68 unconstitutional without really declaring it so. She disagreed with the analysis and believed that the statute was constitutional. Her analysis did not hinge on the Fourth Amendment so much as it hinged on whether the Legislature had the right to criminalize refusing to take a test. She found the government’s objective to be sound and would have upheld it. Chief Justice Recktenwald joined her.

In essence, the difference between the majority and the dissenters came to a matter of viewpoint. For Justice Nakayama, the question was whether the Legislature had the power to criminalize refusing to take a test. She applied a balancing test and would have upheld it. For the majority, they took the view from the individual’s point of view and examined it from a personal-liberties standpoint.

It Doesn’t End Here . . . For some time now, folks in the DUI business have been, pardon the pun, holding their breaths for this opinion. In addition to the warrant issue, Won raised other constitutional problems related to Miranda and the constitutionality of HRS § 291E-68 itself. The majority declined to review these issues and left them on the table for future cases. The constitutionality of the refusal crime is an open question. Won was never prosecuted for refusing. Perhaps we will have to wait for somebody to bring that challenge (or perhaps the Legislature will repeal it). I guess we will have to wait on baited breath to see what happens next.         


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