 *** NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER ***


                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0003478
                                                              15-JAN-2016
                                                              08:21 AM




                            SCWC-13-0003478


           IN THE SUPREME COURT OF THE STATE OF HAWAI'I



                         STATE OF HAWAI'I,

                   Respondent/Plaintiff-Appellee,


                                    vs.


                          DAVID LEE GLADMAN,

                   Petitioner/Defendant-Appellant.



         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

            (CAAP-13-0003478; CASE NO. 1DTA-13-01011)


                     SUMMARY DISPOSITION ORDER

             (By: McKenna, Pollack, and Wilson, JJ.,

             with Wilson, J., concurring separately,

             and Nakayama, J., dissenting separately,

                with whom Recktenwald, C.J., joins)


          Petitioner/Defendant-Appellant David Lee Gladman


(Gladman) seeks review of the Intermediate Court of Appeals’s


(ICA) September 18, 2015 Judgment on Appeal filed pursuant to its


August 17, 2015 Summary Disposition Order (SDO).           The ICA


affirmed the District Court of the First Circuit’s (district

 *** NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER ***


court) judgment.1     The district court adjudged Gladman guilty of


Operating a Vehicle Under the Influence of an Intoxicant (OVUII),


in violation of Hawai'i Revised Statutes (HRS) § 291E-61(a)(3)

(Supp. 2010).2     We accepted Gladman’s application for writ of


certiorari and now vacate the ICA’s Judgment on Appeal and the


district court’s judgment, and remand the case to the district


court.


          After being arrested for OVUII, Gladman was taken to


the police station, where he was read an implied consent form.3


     1
          The Honorable Lono Lee presided.

     2
          HRS § 291E-61(a)(3) (Supp. 2010) provides:


          (a) A person commits the offense of operating a

          vehicle under the influence of an intoxicant if the

          person operates or assumes actual physical control of

          a vehicle:


          . . .


          (3) With .08 or more grams of alcohol per two hundred

          ten liters of breath . . . .

     3
          The form read in relevant part:


          1.__ Any person who operates a vehicle upon a public

          way, street, road, or highway or on or in the waters

          of the State shall be deemed to have given consent to

          a test or tests for the purpose of determining alcohol

          concentration or drug content of the persons [sic]

          breath, blood or urine as applicable.


          2.__ You are not entitled to an attorney before you

          submit to any tests [sic] or tests to determine your

          alcohol and/or drug content.


          3.__ 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, none shall be

                                                              (continued...)


                                     2

 *** NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER ***


Gladman then chose to take a breath test, which resulted in a


breath alcohol content reading of 0.119 grams of alcohol per 210


liters of breath.    On certiorari, Gladman contends that he did


not constitutionally consent to the breath test because his


consent was coerced by the implied consent form, which conveyed a


threat of imprisonment and significant punishment for refusal to


submit to a breath, blood, or urine test under HRS § 291E-68


(Supp. 2010). 


           In State v. Won, 136 Hawai'i 292, 361 P.3d 1195 (2015),

we held that the “coercion engendered by the Implied Consent Form

runs afoul of the constitutional mandate that waiver of a

constitutional right may only be the result of a free and

unconstrained choice,” and, thus, a defendant’s decision to

submit to testing after being read the implied consent form “is

invalid as a waiver of his right not to be searched.”            Following

this decision, the result of Gladman’s breath test is the product

of a warrantless search, and the ICA erred by concluding that the

district court properly denied Gladman’s motion to suppress the




     3
      (...continued)

           given [sic], except as provided in section 291E-21. 

           However, 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 or the

           sanctions of 291E-65, if applicable. In addition, you

           shall also be subject to the procedures and sanctions

           under chapter 291E, part III.


                                     3

  *** NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER ***


breath test result.4     Accordingly, Gladman’s OVUII conviction


cannot stand.


            IT IS HEREBY ORDERED that the ICA’s September 18, 2015


judgment on appeal affirming the district court’s August 22, 2013


judgment is vacated, and the case remanded to the district court


for further proceedings consistent with our opinion in State v.


Won. 


            DATED: Honolulu, Hawai'i, January 15, 2016.

Jonathan Burge                             /s/ Sabrina S. McKenna
for petitioner
                                           /s/ Richard W. Pollack
Brian R. Vincent
for respondent                             /s/ Michael D. Wilson

Robert T. Nakatsuji
for amicus curiae
Attorney General of
the State of Hawai'i




      4

            Because we vacate the ICA’s judgment based on lack of consent, we

do not reach his remaining points of error.


                                      4

