The (Statutory) Right to Counsel Emerges in the DUI/OUI Investigation.

State v. Scalera (HSC April 21, 2017)

Background. John Scalera was arrested under suspicion for operating a vehicle while under the influence of an intoxicant. He was taken to the police station and the arresting officer read to him the police-issued implied consent form. The form stated that Scalera did not have the right to “an attorney before you submit to any tests or tests to determine your alcohol and/or drug content.” The officer then asked if Scalera would submit to a test. He said he would not take anything. The officer considered that a refusal and moved on to the longer implied consent form. He again said he wasn’t going to take anything. The officer deemed it a refusal.

The officer did not hear Scalera ask for an attorney, but later testified at a hearing that even if he did, he did not recall Scalera asking for one. The officer said that it “wouldn’t have mattered anyways because the forms state that you’re not entitled to an attorney during the implied consent.”

Scalera was charged with OUI. He filed a motion to suppress on the grounds that he was denied access to a lawyer pursuant to the State and federal constitutions and HRS § 803-9. The motion was denied. He was went to trial, was found guilty of OUI and refusing to submit to a test. He appealed to the ICA, and the ICA affirmed. Scalera petitioned to the HSC.

The Pre-Miranda Codification of Miranda? This case does not center around Miranda warnings and the right to counsel flowing from the United States Constitution. Instead, it comes from a statute that has been on the books for decades. In fact, it goes back to the Hawaiian Kingdom. State v. Edwards, 96 Hawaii 224, 233 n. 9, 30 P.3d 238, 247 n. 9 (2001).

“It shall be unlawful in any case of arrest for examination . . . [t]o 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[.]” HRS § 803-9(1). The statute also declares it unlawful “to examine the person before the person has had a fair opportunity to see and consult with the attorney or member of the person’s family” when “the person arrested has requested that the person see an attorney or member of the person’s family.” HRS § 803-9(4). Violation of the statute is a misdemeanor. HRS § 803-10.

The purpose of the statute is “to protect an accused’s right to counsel.” State v. Ababa, 101 Hawaii 209, 215, 65 P.3d 156, 162 (2003). This is broader in scope than the Miranda warnings. State v. Edwards, 96 Hawaii at 235, 30 P.3d at 248.

HRS § 803-9 Applies Even when there is no “Interrogation.” The HSC at the outset held that the statute applies even when there is no interrogation that would normally trigger Miranda warnings. The HSC explained that the term “arrest for examination” in the statute is broader than the “custodial interrogation” under the state and federal constitutions. And so, the statute applies in situations like Scalera’s, where he’s arrested and in custody.

“Reasonable Efforts” Requirement. Once the arrestee demands to contact an attorney, the statute requires the police to make “reasonable efforts to contact counsel.” State v. Ababa, 101 Hawaii at 216, 65 P.3d at 163. Although the statute does not require the arrestee to be informed about this right, the police cannot “preempt an invocation of these protections by giving misleading or incorrect information concerning access to counsel.”

The HSC took issue with the forms used in this case. The form stated to Scalera that he did not have the right to an attorney before deciding whether to take a chemical test. This is misleading and inaccurate. The HSC held that this form violated Scalera’s statutory right to counsel under HRS § 803-9.

So What’s the Remedy? The HSC examined whether a violation of the statute would prompt exclusion of evidence instead of another remedy (such as a criminal prosecution pursuant to HRS § 803-10). In order to invoke the exclusionary rule as a remedy to a statutory violation, the HSC noted that there must be a “connection between the statutory violations and the evidence to be suppressed.” State v. Edwards, 96 Hawaii at 237, 30 P.3d at 251. In other words, there must be preponderant evidence from that the statutory violation “ultimately had an adverse impact” on the defendant’s substantive rights. State v. Ababa, 101 Hawaii at 217-218, 65 P.3d at 164-165.

How to Exclude from a Statutory Violation . . . And so the HSC held that in order to suppress evidence, the defendant had to show that the violation of the statute—in this case, blocking access to counsel before submitting to a test—resulted in the obtaining of evidence—the evidence of a refusal in this case. Here, Scalera did not testify and did not provide evidence at the hearing to show a nexus. Because there was no nexus, the district court did not err in denying the motion to suppress. Ultimately, the judgment was affirmed.

Don’t Panic, Prosecutors. Prosecutors and police may be scratching their heads with this one. Does this mean that defense counsel had better get ready to answer some calls from drunk drivers at 2 in the morning? Does it mean that all investigating stops once the arrestee invokes the right to counsel (the statutory one, of course)? Maybe not.

In a footnote, the HSC took pains to point out that HRS § 803-9 affords access to counsel at a reasonable time and in a reasonable manner. If counsel is not available in that time frame, “an arrestee can be required to make a decision regarding testing without the advice of a lawyer when further delay will significantly postpone or materially interfere with alcohol concentration testing.”

But the police still have to give the arrestee the time and opportunity to find counsel. Perhaps it’s time for defense lawyers to start a hotline.