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.

The ICA Doubles Down on how it Reads Won. This is the not the first time the ICA has already interpreted Won this way. In State v. Wilson, 141 Hawaii 459, 413 P.3d 363 (App. 2018), the ICA noted that “the police could obtain a valid consent to testing from an arrested driver by omitting the warning that refusal to consent would subject the driver to criminal penalties.” Id. at 463 n. 7, 413 P.3d at 367 n. 7. According to the ICA that means that as long as the form cites the civil penalties there should be no Won coercion. Strangely enough, the form does not inform the reader that the sanctions it cites are civil or criminal. Perhaps we should presume that the arrested lay reader sitting in a police station would somehow know that the “sanctions of 291E-65” for juveniles and the “procedures and sanctions under 291E, part III” are non-criminal sanctions and not criminal penalties at all. Does this distinction even matter? Wasn’t Won supposed to prevent any form of coercion? Is the ICA reading Won the wrong way? We should find out. The HSC took up cert in Wilson.

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