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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000858
                                                              25-NOV-2015
                                                              08:37 AM



            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                            YONG SHIK WON,
                   Petitioner/Defendant-Appellant.


                            SCWC-12-0000858

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-12-0000858; CASE NO. 1DTA-11-01903)

                           NOVEMBER 25, 2015

      McKENNA AND POLLACK, JJ., WITH WILSON, J., CONCURRING
            SEPARATELY, AND NAKAYAMA, J., DISSENTING,
                WITH WHOM RECKTENWALD, C.J., JOINS

                 OPINION OF THE COURT BY POLLACK, J.

            Under our law, a person has a statutory and

constitutional right to refuse to consent to a bodily search

unless an exception to the search warrant requirement is

present.    In this case, the defendant was informed by the police

of his right to refuse to consent to a search, but he was also
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told that if he exercised that right, his refusal to consent

would be a crime for which he could be imprisoned for up to

thirty days.

           Yong Shik Won was stopped by police while driving his

vehicle on April 20, 2011.      After his arrest for operating his

vehicle under the influence of an intoxicant, Won was given a

choice.   He could either submit to a test for the purpose of

determining alcohol concentration, or if he did not submit, he

would be arrested, prosecuted, and subject to thirty days of

imprisonment for the crime of refusal to submit to a breath,

blood, or urine test.     After being given this choice, Won

elected to undergo a breath test, the result of which provided

the basis for Won’s conviction for the offense of operating a

vehicle under the influence of an intoxicant.

           We consider whether Won’s election to submit to the

breath test was consensual under the circumstances presented.

We hold that it was not.

                         I.      Introduction

          The prohibition against operating a vehicle under the

influence of an intoxicant (OVUII) provides that all drivers are

deemed to have given consent to submit to a test of their

breath, blood, or urine, for the purpose of determining alcohol




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concentration or drug content. 1          Hawaiʻi Revised Statutes (HRS)

§ 291E-11(a) (Supp. 2006).       Before administering a test, the

officer must inform the person that “the person may refuse to

submit to testing.”      Id.

            If a person arrested for OVUII refuses to submit to a

test to determine blood alcohol concentration (BAC test), the

law provides that “none shall be given,” HRS §§ 291E-15 (Supp.

2010) 2 and 291E-65 (Supp. 2009), 3 except in circumstances

      1
            The relevant portions of the “Implied consent of operator of
vehicle to submit to testing to determine alcohol concentration and drug
content” section provides as follows:

            (a)   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,
                  subject to this part, to a test or tests approved by
                  the director of health of the person’s breath, blood,
                  or urine for the purpose of determining alcohol
                  concentration or drug content of the person’s breath,
                  blood, or urine, as applicable.

            (b)   The test or tests shall be administered at the
                  request of a law enforcement officer having probable
                  cause to believe the person operating a vehicle . . .
                  is under the influence of an intoxicant . . . only
                  after:

                  (1)   A lawful arrest; and

                  (2)   The person has been informed by a law
                        enforcement officer that the person may refuse
                        to submit to testing under this chapter.

Hawaiʻi Revised Statutes § 291E-11 (Supp. 2006).
      2
            HRS § 291E-15 provides:

            If a person under arrest refuses to submit to a breath,
            blood, or urine test, none shall be given, except as
            provided in section 291E-21. Upon the law enforcement
            officer’s determination that the person under arrest has
            refused to submit to a breath, blood, or urine test, if
            applicable, then a law enforcement officer shall:
                                                              (continued. . .)


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involving a “collision resulting in injury to or the death of

any person.”    HRS § 291E-21(a) (2007). 4

            Hawaiʻi law provides two categories of penalties for

drivers that refuse to submit to a BAC test. 5          The first is an

extended revocation period of the person’s driver’s license in

an administrative process applicable to all persons arrested for

OVUII.    HRS § 291E-41(d) (Supp. 2010); see generally HRS Chapter

      (. . .continued)
            (1) Inform the person under arrest of the sanctions under
                 section 291E-41, 291E-65, or 291E-68; and

            (2) Ask the person if the person still refuses to submit to
                 a breath, blood, or urine test, thereby subjecting the
                 person to the procedures and sanctions under part III
                 or section 291E-65, as applicable;

            provided that if the law enforcement officer fails to
            comply with paragraphs (1) and (2), the person shall not be
            subject to the refusal sanctions under part III or IV.

(Emphasis added).
      3
            HRS § 291E-65 provides, in relevant part:

            If a person under arrest for operating a vehicle after
            consuming a measurable amount of alcohol, pursuant to
            section 291E-64, refuses to submit to a breath or blood
            test, none shall be given, except as provided in section
            291E-21 . . . .

(Emphasis added).
      4
            HRS § 291E-21(a) provides:

            Nothing in this part shall be construed to prevent a law
            enforcement officer from obtaining a sample of breath,
            blood, or urine, from the operator of any vehicle involved
            in a collision resulting in injury to or the death of any
            person, as evidence that the operator was under the
            influence of an intoxicant.
      5
            The two areas of sanctions provided for refusal to submit to a
BAC test are separate from the criminal prosecution prescribed for the OVUII
offense.




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291E, Part III.     The administrative license revocation process

is “civil in nature.”      State v. Severino, 56 Haw. 378, 380, 537

P.2d 1187, 1189 (1975).       This court has upheld civil license

revocation on several occasions.          See, e.g., Dunaway v. Admin.

Dir. of Courts, 108 Hawaiʻi 78, 87, 117 P.3d 109, 118 (2005);

Kernan v. Tanaka, 75 Haw. 1, 22, 856 P.2d 1207, 1218 (1993);

Severino, 56 Haw. at 380-81, 537 P.2d at 1189.           The civil

revocation of driver’s licenses under HRS Chapter 291E, Part

III, is not an issue in this case.

            In contrast, the second category of penalties for

refusing to submit to a BAC test is a criminal sanction.

“Except as provided in section 291E-65, refusal to submit to a

breath, blood, or urine test as required by part II is a petty

misdemeanor.” 6   HRS § 291E-68 (Supp. 2010).        A petty misdemeanor

is punishable by up to thirty days in jail, 7 a fine not exceeding

$1,000, 8 and imposition of community service and payment of other

assessments and fees. 9


      6
            The criminal sanction became effective on January 1, 2011.   2010
Haw. Sess. Laws Act 166, § 26 at 415.
      7
            “A crime is a petty misdemeanor if it is so designated in this
Code or in a statute other than this Code enacted subsequent thereto, or if
it is defined by a statute other than this Code that provides that persons
convicted thereof may be sentenced to imprisonment for a term not to exceed
thirty days.” HRS § 701-107(4) (Supp. 2005).
      8
            HRS § 706-640(1)(e).
      9
            HRS § 706-605(1)(d), (6).




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           II.      Arrest and proceedings through trial

            During the early morning hours of April 20, 2011, Won

was observed driving at a high rate of speed by an officer of

the Honolulu Police Department (HPD).         After pulling Won over,

the officer detected the odor of alcohol on Won’s breath and

observed that Won’s eyes were “red” and “watery.”            Based on this

information, the officer concluded that Won was likely

intoxicated.     A standard field sobriety test and preliminary

alcohol screen test were administered, both of which Won failed.

Won was arrested for OVUII in violation of HRS § 291E-61(a)(3)

and transported by police to the local police station. 10

            At the police station, an officer read to Won a form

entitled “Use of Intoxicants While Operating a Vehicle Implied

Consent for Testing” (Implied Consent Form). 11          Of foremost

relevance to this case, the Implied Consent Form informs

arrested persons of certain information, in three sections.


      10
            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 . . . .
      11
            The police report apparently refers to the Implied Consent Form
as the “ADLRO form,” as the report notes, “I read Won the ADRLO form. He
elected the breath test.” The Implied Consent Form is identified as “HPD-
396K (R-01/11)” at the bottom left of the form.




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            Pursuant to chapter 291E, Hawaii Revised Statutes (HRS),
            Use of Intoxicants While Operating a Vehicle, you are being
            informed of the following:

            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 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 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.[12]

(Emphasis added).     Thus, the Implied Consent Form has three

principal provisions: an informational section, a denial of the

right to counsel section, and a refusal to submit section.

            The Implied Consent Form includes space so that the

person can initial each section to indicate acknowledgement.

Won initialed both the refusal to submit section, which informed

him that refusing to submit to the BAC test is punishable by up

to thirty days of imprisonment and a fine of up to $1000, and

the informational section.       He did not initial the denial of the


      12
            HRS § 291E-65 applies to a person under the age of twenty-one at
the time of the offense. HRS Chapter 291E, Part III addresses the
administrative revocation process which provides for suspension of the
person’s license and privilege to operate a vehicle.




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right to counsel section. 13      The Implied Consent Form separately

has space for the person to indicate which BAC test--breath,

blood, or urine--the person has agreed or refused to submit and

also contains space for both the person and the officer

administering the Implied Consent Form to sign.           Won initialed

next to “AGREED TO TAKE A BREATH TEST AND REFUSED THE BLOOD

TEST” and signed the form with his name at the bottom.

            A breath test was performed on Won using an

Intoxilyzer 8000.     Won’s BAC was 0.17 grams of alcohol per two

hundred ten liters of breath, which is above the limit of 0.08

grams of alcohol per 210 liters of breath under which a person

may legally operate a vehicle.          See HRS § 291E-61(a)(3).     Won

was charged in the District Court of the First Circuit (district

court) in an amended complaint with OVUII, in violation of HRS

§ 291E-61(a)(3) and HRS § 291E-61(b)(1), as a first offense. 14


      13
            Handwritten notes under the right to counsel section state, “said
he does not agree with this one, and was not going to initial.”
      14
            The original complaint charged Won with violation of HRS “§ 291E-
61(a)(1) and or (a)(3).” Won filed a motion to dismiss the original
complaint for failure to allege the requisite mens rea. Subsequent to Won’s
motion but prior to the district court’s ruling on it, this court issued
State v. Nesmith, 127 Hawaiʻi 48, 276 P.3d 617 (2012), which held that mens
rea must be included in a complaint alleging violation of HRS § 291E-61(a)(1)
but that it need not be alleged in a charge under HRS § 291E-61(a)(3).

      The district court denied the motion to dismiss and granted the State’s
motion to amend the complaint. The amended complaint included the requisite
mens rea for the HRS § 291E-61(a)(1) charge. At trial, Won orally moved the
court to reconsider its decision denying the dismissal of the HRS § 291E-
61(a)(1) charge. The State did not object to the dismissal of the HRS
§ 291E-61(a)(1) charge, and the court granted the motion.




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            Won filed a “Motion to suppress statements and

evidence of [Won’s] breath or blood test” (Motion).            The

following grounds were asserted for suppression of the BAC test:

(1) Won was misled and inadequately advised as to his rights

“surrounding the chemical test, in violation of not only

existing Hawaiʻi appellate precedent but also his Due Process

rights”; (2) Won’s constitutional right to be adequately

apprised of his rights was violated; (3) Won was deprived of an

attorney in violation of HRS § 803-9; 15 and (4) Won “was

presented with a Hobson’s Choice, either remain silent or commit

a crime.”

            The State disputed each of Won’s arguments, stating in

response that (1) Won was adequately advised in regard to his

rights prior to the breath test, (2) the breath test did not

implicate a right to be advised of one’s constitutional rights,

(3) the breath test did not implicate a Sixth Amendment right to
      15
            In relevant part, the statutory right to an attorney provides:

            It shall be unlawful in any case of arrest for examination:

            (1) To deny to the person so arrested the right of seeing
            . . . counsel . . . ;

            (2) To unreasonably refuse or fail to make a reasonable
            effort . . . to send a . . . message . . . to the counsel
            . . . ;

            (3) To deny to counsel . . . the right to see or otherwise
            communicate with the arrested person at the place of the
            arrested person’s detention . . . .

HRS § 803-9 (1993).




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counsel, and (4) the breath test did not implicate a statutory

right to counsel under HRS § 803-9.

             On September 20, 2012, the district court heard Won’s

Motion. 16   The district court denied the Motion without making

specific findings of fact or conclusions of law, and the case

immediately proceeded to trial.          The parties stipulated into

evidence the facts as set forth above, as well as that the

intoxilyzer result was accurate.          Based on the stipulated facts,

the district court found Won guilty of violating OVUII, HRS

§ 291E-61(a)(3). 17     Following conviction, Won’s sentence was

stayed pending appeal of the judgment of conviction.            Won timely

appealed the judgment to the Intermediate Court of Appeals

(ICA).

                   III.       Appellate Proceedings

             While this case was pending before the ICA, the

Supreme Court of the United States decided Missouri v. McNeely,

133 S. Ct. 1552 (2013).        In that case, the Supreme Court held

that the natural metabolization of alcohol in the bloodstream

does not present a per se exigency that qualifies as an

      16
             The Honorable David W. Lo presided.
      17
            The judgment of conviction indicates that Won violated “HRS [§]
291E–61(a)(1)(3)(b)(1).” However, as noted supra, the (a)(1) portion of the
charge was dismissed, and the State proceeded to trial only on the (a)(3)
portion of the charge. An amended judgment of conviction was subsequently
filed reflecting “HRS [§] 291E-61(a)(3)(b)(1)” presumably pursuant to a
directive included in the Judgment on Appeal issued by the Intermediate Court
of Appeals.




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exception to the Fourth Amendment’s warrant requirement for

nonconsensual blood testing in all drunk-driving cases.            Id. at

1556.   Won argued that McNeely requires nonconsensual blood or

breath alcohol tests be justified by exigent circumstances or

other exceptions to the warrant requirement in order to comport

with the Fourth Amendment.      Thus, Won asserted that the State

must demonstrate that he consented to the breath test freely and

voluntarily, a burden he claims the State failed to discharge

because his exercise of the statutory and constitutional right

to refuse consent was criminalized.          That is, according to Won,

his consent was coerced out of him by the threat of criminal

prosecution and penalties.

           Relatedly, Won reasoned that the “claim and exercise

of a constitutional right cannot . . . be converted into a

crime.”   “Under Hawaii’s current implied consent laws, a person

must consent to an alcohol concentration test or face criminal

prosecution”; thus, according to Won, “HRS § 291E-68 is

unconstitutional on its face and as applied.”

           In response, the State construed the principle

articulated by McNeely as “blood draws for alcohol concentration

testing did not justify a per se exigent circumstances exception

to the search warrant requirement.”          The State submitted that it

is an “overly expansive reading” of McNeely’s holding to suggest

that a police officer cannot “coerce an OVUII arrestee to submit


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to a breath or blood test” by means other than force.

Specifically, according to the State, if it can forcibly compel

OVUII testing by acquiring a valid search warrant, the State

could similarly coerce OVUII arrestees by employing less

physically intrusive methods like criminal penalties.

                         A.   Decision of the ICA

          The ICA described the Supreme Court’s decision in

McNeely as “address[ing] the narrow question of whether the

dissipation of alcohol in the bloodstream establishes a per se

exigent-circumstances exception to the warrant requirement for

nonconsensual blood draws for OVUII arrests.”          State v. Won, 134

Hawaiʻi 59, 77, 332 P.3d 661, 679 (App. 2014).          According to the

ICA’s reading of McNeely, it did not involve “other potential

exceptions to the warrant requirement, the Fourth Amendment

implications of breath tests, the validity of implied consent

statutes, or the validity of breath tests conducted pursuant to

such statutes.”    Id.    Hence, the ICA distinguished McNeely from

this case because “Won agreed to submit to a breath test

pursuant to Hawaii’s implied consent statute,” and he “was not

subjected to a compelled nonconsensual blood draw.”           Id.

          In upholding Won’s BAC test and the statutory scheme

imposing sanctions for withdrawing consent, the ICA relied on a

balancing analysis through which it was found that the search

was reasonable due to its minimal invasiveness and the


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overriding governmental interest in preventing OVUII violations.

The ICA declared, citing Maryland v. King, 133 S. Ct. 1958, 1969

(2013), that “the ultimate measure of the constitutionality of a

governmental search is ‘reasonableness.’”         Won, 134 Hawaiʻi at

77, 332 P.3d at 679.     The ICA referenced a Hawaiʻi appellate

decision involving a search of a student at a school and stated,

“In determining whether a warrantless search or seizure is

reasonable, the court must balance the government’s need to

search against the intrusion on the individual’s privacy-

interests.” 18   Id. at 78, 332 P.3d at 680 (In re Doe, 77 Hawaiʻi

435, 444, 887 P.2d 645, 654 (1994)).

           The ICA also held that because “driving is a

privilege, not a right,” id. at 78, 332 P.3d at 680, “[a]s a

matter of law, a person who exercises the privilege to drive and

operates a vehicle on a public road is deemed to have given his

or her consent to submit to testing of the person’s breath,

blood, or urine for alcohol or drugs.”         Id.   The ICA theorized

that “[t]he Legislature presumably could have sought to make the

implied consent to breath testing completely irrevocable.”             Id.

Thus, the ICA concluded that the statutory right to refuse to

submit to testing does not take precedence over the driver’s

implied consent to testing.      The ICA similarly held that the

     18
           See infra note 37.




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implied consent to testing is not rendered invalid by rights

provided by the Hawaiʻi Constitution.         As stated by the ICA, the

statutory implied consent prevails over the statutory right to

refuse to submit to testing and is not invalidated by article I,

section 7 rights.     Consequently, while the ICA recognized a

“limited statutory right” to refuse a BAC test, it held that

this limited right cannot invalidate the consent deemed by

statute.

            Finally, the ICA found that the statutory implied

consent could not be withdrawn, reasoning that “the purpose of

the implied consent statute would be defeated if a driver could

freely withdraw his or her consent to submit to a breath test

after being arrested for OVUII.”         Id. at 79, 332 P.3d at 681.

Accordingly, the ICA affirmed Won’s conviction and sentence. 19

Id. at 80, 332 P.3d at 682.       Won timely filed an application for

writ of certiorari seeking review of the ICA’s judgment, which

this Court accepted.




      19
            Additionally, the ICA held as follows: (a) McNeely did not render
HRS § 291E–68 unconstitutional, Won, 134 Hawaiʻi at 80, 332 P.3d at 682; (b)
the administration of the Implied Consent Form was not an interrogation and,
thus, there was no requirement to advise Won of his constitutional rights,
id. at 73, 332 P.3d at 675; (c) the administration of the Implied Consent
Form does not confer a right to an attorney under HRS § 803-9, id. at 74, 332
P.3d at 676; and (d) the Implied Consent Form was not inaccurate or
misleading, id. at 75—76, 332 P.3d at 677—78, thus rejecting Won’s arguments.




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                      B.    Arguments on Certiorari

               Won argues that the BAC evidence in this case was

obtained in an unconstitutional manner and should have been

suppressed because no exception to the warrant requirement was

applicable under the circumstances.           He contends that the search

incident to arrest exception and the special law enforcement

needs exception to the warrant requirement are not applicable in

this case.

             Won also asserts that the Implied Consent Form’s

statement that a person “‘shall’ be subject to 30 days jail

unless he consented” is coercive and precludes a finding of

voluntary consent under article I, section 7 and the Fourth

Amendment.    According to Won, “[t]here is no Implied Consent

exception to the warrant requirement,” which means that even if

law enforcement officers comply with the State’s implied consent

statute, it would not validate a warrantless BAC test in

impaired driving cases. 20




     20
            Won’s Application was supported by two briefs of amici curiae.
The National College for DUI Defense, Inc. argued that the criminal sanctions
of HRS § 291E-68 were an unconstitutional infringement on the Fourth
Amendment, and assuming the criminal sanctions were constitutional, those
sanctions entitled Won to be advised of his Fifth and Sixth Amendment rights
before consenting. The Hawaiʻi Association of Criminal Defense Lawyers argued
that the administration of the Implied Consent Form implicated Won’s right to
counsel under both article I, section 5 of the Hawaiʻi Constitution and HRS
§ 803-9, and the violation of Won’s right to counsel required suppression of
the results of the breath test.




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            The State, on the other hand, submits that “under the

totality of the circumstances rule[,] . . . Won’s consent to

provide a breath sample was given freely and voluntarily.”

Although the State acknowledged that Won was not permitted to

consult an attorney, the State emphasizes that “[t]he police

officers followed the proper procedures, there is nothing in the

record to indicate that Won’s will was overborne . . . , and he

was informed by the Implied Consent Form that he could refuse to

provide a breath or blood sample.”            The State’s position is that

it is not against the Constitution “for the [S]tate to enforce

the implied consent bargain by providing for a fine or jail time

for those drivers who chose to renege on their side of the

bargain by refusing to provide a breath or a blood sample when

it has been determined that they are OVUII.” 21

                          IV.       Discussion

     A.    A breath test is a search subject to constitutional
                             constraints

            “An invasion of bodily integrity implicates an

individual’s ‘most personal and deep-rooted expectations of

privacy.’”    Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013)


      21
            The State’s position was also supported by amicus curiae briefs
from the Attorney General of the State of Hawaiʻi (AG). The AG argued that
the breath test does not implicate a requirement to inform arrestees of their
constitutional rights. The AG further argued that the holding of McNeely
applied only to blood tests and that Won’s breath test was excepted from the
requirements of a warrant by the exigency, search incident to arrest, and
special law enforcement needs exceptions.




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(quoting Winston v. Lee, 470 U.S. 753, 760 (1985)).            The Supreme

Court has “never retreated . . . from [its] recognition that any

compelled intrusion into the human body implicates significant,

constitutionally protected privacy interests.”           Id. at 1565.

            Skinner v. Railway Labor Executives Ass’n, 489 U.S.

602 (1989), defines a breath test as a search.

            In light of our society’s concern for the security of one’s
            person, . . . it is obvious that this physical intrusion,
            penetrating beneath the skin, infringes an expectation of
            privacy that society is prepared to recognize as
            reasonable. . . .

            Subjecting a person to a breathalyzer test, which generally
            requires the production of alveolar or “deep lung” breath
            for chemical analysis . . . implicates similar concerns
            about bodily integrity and, like the blood-alcohol test
            . . . , should also be deemed a search.

Id. at 616-17 (emphases and paragraph break added).            Thus,

production of deep lung breath is a search under well-settled

law. 22


      22
            The Supreme Court eliminated any implication in its prior case
law that warrantless BAC testing is permissible without regard to the
circumstances. McNeely, 133 S. Ct. at 1560. McNeely revisited Schmerber to
make it clear that the warrantless BAC search was permissible under the
exigency exception to the warrant requirement.

            Thus, our analysis in Schmerber fits comfortably within
            [Supreme Court] case law applying the exigent circumstances
            exception. In finding the warrantless blood test
            reasonable in Schmerber, we considered all of the facts and
            circumstances of the particular case and carefully based
            our holding on those specific facts.

McNeely, 133 S. Ct. at 1560. Thus, McNeely overruled any reading of
Schmerber that may have indicated that an individual may be forced to submit
to a warrantless BAC test when no exception to the warrant requirement is
present.

            Further, although the BAC test in McNeely was a blood test,
McNeely, 133 S. Ct. at 1558, the Supreme Court has applied McNeely to a case
                                                              (continued. . .)


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            The right to be free of warrantless searches and

seizures is a fundamental guarantee of our constitution.

            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;
            and no warrants shall issue but upon probable cause,
            supported by oath or affirmation, and particularly
            describing the place to be searched and the persons or
            things to be seized or the communications sought to be
            intercepted.

Haw. Const. art. I, § 7.       “We have repeatedly recognized that,

if anything is settled in the law of search and seizure, it is

that a search without a warrant issued upon probable cause is

unreasonable per se.”      State v. Ganal, 81 Hawaiʻi 358, 368, 917

P.2d 370, 380 (1996).

            As early as 1922, this court expressed protection of

such constitutional rights in terms of personal autonomy:

            [I]t would not be possible to add to the emphasis with
            which the Supreme Court . . . has declared the importance
            of keeping unimpaired the rights secured to the people by
            [the Fourth and Fifth Amendments to the U.S.
            Constitution]. . . . [I]t is said that such rights are
            indispensable to the full enjoyment of personal security,
            personal liberty and private property.

Territory v. Ho Me, 26 Haw. 331, 335 (Haw. Terr. 1922) (emphasis

added) (ruling as inadmissible contraband that was seized by an

officer after requiring a defendant to open his residence to a

search).    Accordingly, this court has cast the constitutional

right to be free of “unreasonable searches, seizures and

      (. . .continued)
involving other forms of BAC testing. See Brooks v. Minnesota, 133 S. Ct.
1996 (2013) (reversing case regarding blood and urine BAC tests “for further
consideration in light of [McNeely]”).




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invasions of privacy” in the light of “the important fourth

amendment values of individual dignity and integrity of the

person.”      State v. Kaluna, 55 Haw. 361, 366, 520 P.2d 51, 57

(1974).

              These fundamental values are ensured preservation by

the Hawaiʻi Constitution: “The integrity of one’s person--

including the right to be free of arbitrary probing by

government officials . . . is at least as significant in terms

of human dignity as the right to be free of externally imposed

confinement.”        Kaluna, 55 Haw. at 366, 370-71, 520 P.2d at 57,

59-60.    Thus, the proscription against “unreasonable searches,

seizures and invasions of privacy” in the Hawaiʻi Constitution

draws individual dignity and personal autonomy within its

protections.

              We have also recognized that “the warrant requirement

is subject to a few specifically established and well-delineated

exceptions.”      Ganal, 81 Hawaiʻi at 368, 917 P.2d at 380.         One of

the specific exceptions is a search conducted pursuant to

consent. 23    Id.    The district court rejected Won’s arguments

      23
            No exception to the warrant requirement based on exigency can be
gleaned from the facts and circumstances of this case. See State v. Clark,
65 Haw. 488, 494, 654 P.2d 355, 360 (1982) (generally defining an exigency as
“when the demands of the occasion reasonably call for an immediate police
response”). Nor has the State argued that an exigency is present. Further,
an exigency is not sufficient to validate a warrantless search in this case
because a legislature may not establish a per se exigency by statute.
McNeely, 133 S. Ct. at 1560.

                                                              (continued. . .)


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related to consent, and Won challenged the validity of his

“consent” both to the ICA and this court.          In rejecting Won’s

challenge, the ICA based its balancing analysis, in part, on its

determinations that a driver has impliedly consented to

submission to testing, id. at 78, 332 P.3d at 680; the


      (. . .continued)
            The AG has argued that the special law enforcement needs
exception applies. However, where the purpose of the search is to generate
evidence for law enforcement purposes, it does not fall within that exception
as defined by the Supreme Court. See City of Indianapolis v. Edmond, 531
U.S. 32, 41-42 (2000) (where “the primary purpose of the . . . program is to
uncover evidence of ordinary criminal wrongdoing, the program contravenes the
Fourth Amendment”); Ferguson v. City of Charleston, 532 U.S. 67, 84 (2001)
(“Such an approach is inconsistent with the Fourth Amendment.”); see also
William E. Ringle, Searches and Seizures, Arrests and Confessions § 10:13
(2d. ed.) (“Under the special needs doctrine, exceptions to the warrant
requirement are permitted . . . . when police are engaged in activities
unrelated to crime-solving.”); Wayne R. LaFave, 3 Search & Seizure: A
Treatise on the Fourth Amendment § 5.4(c) (5th ed.).

            It is manifest that the purpose of the BAC test administered to
Won was to gather evidence for criminal prosecution and, in fact, was so
used. The State has not asserted that the purpose of the BAC test was for a
purpose other than to gather evidence for a criminal prosecution.

            This court has not been called upon to determine whether the
Hawaiʻi Constitution recognizes a “special law enforcement needs” exception to
the warrant requirement. In light of the fact that the search in this case
was for the purpose of collecting evidence for a criminal prosecution, we
conclude that under the Supreme Court’s definition, the special needs
exception is not applicable to the circumstances of this case, and thus it is
unnecessary to address whether a “special law enforcement needs” exception to
the warrant requirement is in accordance with the Hawaiʻi Constitution.

            The search incident to arrest exception is also inapplicable as
it is “limited in scope to a search of the arrestee’s person and the area
within his immediate control from which he could obtain a weapon or destroy
evidence.” State v. Paahana, 66 Haw. 499, 506, 666 P.2d 592, 597) (internal
quotation mark omitted). “[T]he exception for searches incident to a lawful
arrest ‘implies the exigent circumstances of imminent danger to the arresting
officer or others and of imminent concealment or destruction of evidence or
the fruits of the crime from the circumstances of a lawful arrest.’” Id.
(quoting State v. Clark, 65 Haw. 488, 496, 654 P.2d 355, 361 (1982)). As
noted, McNeely held that the natural metabolization of alcohol does not
qualify as a per se exigency, and the record indicates no other exigency that
necessitated the breath test.




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legislature could have made that consent irrevocable, id.; and

the purpose of the implied consent statute would be defeated if

a driver could freely withdraw his or her consent, id. at 79,

332 P.3d at 681.      We examine the doctrine of consent: first

generally and then as applied to the facts of this case.

       B.      The consent exception to the warrant requirement

              Consent to be searched is a waiver of one’s right not

to be searched.      Nakamoto v. Fasi, 64 Haw. 17, 21, 635 P.2d 946,

951 (1981).      Thus, in the context of a request by police to

submit to a BAC test, consent and waiver have the same result.

This court has repeatedly recognized that an individual has a

constitutional right to refuse consent to a search when consent

is requested by the State.       State v. Kearns, 75 Haw. 558, 570,

867 P.2d 903, 909 (1994). 24

               “Consent” in the constitutional sense means more than

the absence of an objection on the part of the person to be

searched; it must be shown that such consent was voluntarily

given.      State v. Bonnell, 75 Haw. 124, 147-48, 856 P.2d 1265,


      24
             Accord State v. Quino, 74 Haw. 161, 174, 840 P.2d 358, 364
(1992); Nakamoto, 64 Haw. at 21, 635 P.2d at 951; State v. Patterson, 58 Haw.
462, 470, 571 P.2d 745, 750 (1977); State v. Price, 55 Haw. 442, 443, 521
P.2d 376, 377 (1974); see also Trainor, 83 Hawaiʻi at 255, 925 P.2d at 823;
Ganal, 81 Hawaiʻi at 370, 917 P.2d at 382; Bonnell, 75 Haw. at 147-48, 856
P.2d at 1277; State v. Russo, 67 Haw. 126, 137, 681 P.2d 553, 562 (1984);
State v. Merjil, 65 Haw. 601, 605, 655 P.2d 864, 868 (1982); Kaluna, 55 Haw.
at 371 n.7, 520 P.2d at 60 n.7. The right to refuse consent to a search is,
of course, superseded by a warrant or an exception to the warrant
requirement.




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1277 (1993).   Voluntariness means a “free and unconstrained

choice.”   State v. Shon, 47 Haw. 158, 166, 385 P.2d 830, 836

(1963) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26

(1973)); accord State v. Trainor, 83 Hawaiʻi at 261, 925 P.2d

829; State v. Ramones, 69 Haw. 398, 405, 744 P.2d 514, 517

(1987).

           In Hawaiʻi, consent is measured under an analysis

examining the totality of the circumstances.          Ganal, 81 Hawaiʻi

at 368, 917 P.2d at 380.

           Whether consent to a search was freely and voluntarily
           given, as in a case where custodial interrogation may be
           implicated, must be determined from the totality of
           circumstances surrounding the defendant’s purported
           relinquishment of a right to be free of unreasonable
           searches and seizures.

State v. Russo, 67 Haw. 126, 137, 681 P.2d 553, 562 (1984)

(emphasis added).    Additionally, it is well settled “that when

the prosecution seeks to rely upon consent to justify the

lawfulness of a search, it has the burden of proving by the

preponderance of the evidence that the consent was, in fact,

freely and voluntarily given.”        State v. Patterson, 58 Haw. 462,

468, 571 P.2d 745, 749 (1977).

           The question of whether the facts as found amount to

legally adequate “consent” is a question of constitutional law

that a court answers by exercising its “own independent

constitutional judgment based on the facts of the case.”

Trainor, 83 Hawaiʻi at 255, 925 P.2d at 823 (quoting State v.


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Lee, 83 Hawaiʻi 267, 273, 925 P.2d 1091, 1097 (1996)).             This is

because there is “no talismanic definition of ‘voluntariness,’

mechanically applicable to the host of situations where the

question has arisen.”      Trainor, 83 Hawaiʻi at 261, 925 P.2d at

829 (quoting Schneckloth, 412 U.S. at 224).

            “In other words, application of constitutional

principles to the facts as found requires [a court] to ‘examine

the entire record and make an independent determination of the

ultimate issue of voluntariness based upon that review and the

totality of the circumstances.’”          Id.   (alteration omitted)

(quoting State v. Kelekolio, 74 Haw. 479, 502, 849 P.2d 58, 69

(1993)).    Therefore, the ultimate issue of whether the defendant

provided “consent” is reviewed de novo.           Id.

                      1. Consent may not be coerced

            This court has stated unambiguously that for consent

to be “in fact, freely and voluntarily given,” the consent “must

be uncoerced.”     Nakamoto, 64 Haw. at 21, 635 P.2d at 951

(emphasis added).     Thus, consent may not be gained by explicit

or implicit coercion, implied threat, or covert force.             State v.

Price, 55 Haw. 442, 443, 521 P.2d 376, 377 (1974). 25           While

coercion may be indicated where a person’s “will has been

overborne,” Shon, 47 Haw. at 166, 385 P.2d at 836, ultimately,
      25
            Accord Trainor, 83 Hawaiʻi at 261, 925 P.2d at 829; Ganal, 81 Haw.
at 368, 917 P.2d at 380; Patterson, 58 Haw. at 468, 571 P.2d at 749.




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this court “equate[s] voluntary with uncoerced.”           Price, 55 Haw.

at 443, 521 P.2d at 377.      “For, no matter how subtly the

coercion was applied, the resulting ‘consent’ would be no more

than a pretext for the unjustified . . . intrusion against which

the fourth amendment is directed.”           Trainor, 83 Hawaiʻi at 261,

925 P.2d at 829 (quoting Schneckloth, 412 U.S. at 228).

            Thus, under circumstances where coercion is present, a

search dependent upon consent for legitimacy violates the

constitutional proscription of article I, section 7 and offends

the values of individual dignity and personal autonomy that it

protects.

            Accordingly, searches alleged by the State to be

consensual are subject to “the most careful scrutiny” because

neglect of such an examination “would sanction the possibility

of . . . coercion,” Trainor, 83 Haw. at 262, 925 P.2d at 830,

which this court has unstintingly protected against.           This court

has concluded that the contamination of coercion extends even to

coercion by private actors: “although no state action is

involved where an accused is coerced into making a confession by

a private individual, we find that the state participates in

that violation by allowing the coerced statements to be used as

evidence.”    State v. Bowe, 77 Hawaiʻi 51, 59, 881 P.2d 538, 546

(1994).




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             Our decisions demonstrate that the totality of the

circumstances may indicate that an alleged waiver of a

constitutional right was not voluntary even when there is a

manifestation of assent by the defendant.            For instance, mere

acquiescence “in and of itself, is insufficient to establish

consent.”      Kearns, 75 Haw. at 571, 867 P.2d at 909; accord

Trainor, 83 Hawaiʻi at 260, 925 P.2d at 828; State v. Quino, 74

Haw. 161, 175, 840 P.2d 358, 364 (1992); Nakamoto, 64 Haw. at

22, 635 P.2d at 951; Kaluna, 55 Haw. at 371, n.7 520 P.2d at 60

n.7.

             Verbal expression also may not be determinative of

whether submission to a search is voluntary when the totality of

circumstances surrounding the purported waiver is implicitly or

subtly coercive.       Russo, 67 Haw. at 137, 681 P.2d at 562.           In

Russo, despite the fact that the defendant stated “I gave you

verbal consent” in response to the police request to search, the

court stated that “[w]hile assent could be inferred from these

words, the context in which they were uttered leads us to

believe they did not represent an essentially free and

unrestrained choice.”        67 Haw. at 138, 681 P.2d at 562; see also

Trainor, 83 Hawaiʻi at 253, 925 P.2d at 821 (finding submission

to a search was nonconsensual despite defendant’s statement of

“Okay” and opening his arms in response to police request for a

pat down); State v. Pauʻu, 72 Haw. 505, 508, 824 P.2d 833, 835


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(1992) (finding submission to a search was nonconsensual despite

defendant’s assent); State v. Merjil, 65 Haw. 601, 606, 655 P.2d

864, 868 (1982) (finding that “consent for [the search] was . .

. given under duress”).

           In Nakamoto, we considered whether a search by a

security guard of a bag of a concert attendee was consensual.

Nakamoto, 64 Haw. at 19, 635 P.2d at 949.         The court

distinguished between not being informed of the right to refuse

consent and the person’s belief that he or she had no right to

refuse.   The court first noted that

           while there is no requirement that the person searched be
           first informed of his right to refuse consent to the
           search, the fact that he was not so advised is nevertheless
           a factor to be considered in evaluating the totality of the
           circumstances as they bear upon the question of whether
           such consent was freely and voluntarily given.

Id. at 21, 635 P.2d at 951.      Thus, although the constitution

does not require that individuals be expressly informed of their

right to refuse a search, whether they were so informed remains

a relevant factor in a determination of whether consent was, in

fact, free and voluntary under the totality of the

circumstances.    Further,

           when it is clear that the search will be conducted
           regardless of the consent of the party searched, there can
           be no voluntary waiver of his right to be free from
           unreasonable searches and seizures. So that even where he
           is asked directly whether he objects to the search, there
           must be at least some intimation that his objection would
           be meaningful or that the search is subject to his consent.




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Id. (emphasis added) (citations omitted).         Thus, the process by

which the consent to search is obtained must be meaningful and

substantive; the request by the State that an individual waive

the protections of the constitution must be more than a mere

formality.   See Price, 55 Haw. at 444, 521 P.2d at 377 (“[W]hen

the accused is directly asked whether he objects to the search,

there must be at least some suggestion that his objection is

significant or that the search waits upon his consent.”); Pauʻu,

72 Haw. at 511, 824 P.2d at 836 (holding that a search was

invalid where the defendant “felt the futility of withholding

any consent or confession”).

          After examining the totality of the circumstances of

the plaintiff’s case, the Nakamoto court concluded that

          [the plaintiff] was not informed by the guard that she had
          the right to refuse the inspection. She simply assumed
          that the security guard was acting under an ordinance,
          statute, or regulation authorizing the inspection. So that
          while she was unwilling to submit to the inspection of her
          personal effects, she believed that she had no other
          alternative but to comply . . . .

          In these circumstances, there was no valid consent to the
          inspection of her handbag by the security officer. She was
          not aware of her right to object and she reasonably
          believed that she had no other alternative but to submit.
          Consent given in the belief that one would forfeit her
          right to attend the concert, if she refused to be searched,
          is an inherent product of coercion and will not validate an
          otherwise improper intrusion.

Nakamoto, 64 Haw. at 22, 635 P.2d at 951 (emphases and paragraph

break added).   Therefore, although it is not necessary to inform

a person of his or her right to refuse consent, if the person

submits to the search under the belief that the search will


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occur regardless of an objection to the search or the person

reasonably believed that there was no other alternative to

prevent forfeiture of a right, that consent is coerced.

          In Trainor, this court considered, inter alia, whether

a pat-down search was consensual when a defendant contested his

arrest and search following a “walk and talk investigation” at

the Honolulu Airport.     83 Hawaiʻi at 252, 925 P.2d at 820.         At

the outset of the “encounter,” it was “represented” to the

defendant that “he was not under arrest and was free to leave at

any time.”   Id. at 253, 925 P.2d at 821.        After concluding that

the encounter was an investigative seizure of the defendant

notwithstanding the representation that he was free to leave,

id. at 256, 925 P.2d at 824, the court also considered whether

the encounter and the subsequent pat down of the defendant’s

person could nonetheless be considered consensual considering

that the defendant did not leave the encounter and verbally

assented to the search.     Id. at 260, 925 P.2d at 828.

          This court held that the investigative encounter could

be deemed “consensual” only if, prior to the start of

questioning, the person was informed of the right to decline to

participate in the encounter and of the right to leave at any

time and thereafter, the person voluntarily participated in the

encounter.   Id. at 260, 925 P.2d at 828.




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          [T]he determination as to whether the person consented to
          the questioning is a subjective one. By its very nature,
          however, the subjective component of the inquiry regarding
          consent cannot be a matter of whether the seized person has
          been informed that he or she has the right to decline to
          participate in the encounter and is free to leave at any
          time. After all, the person either has or has not been so
          informed. Accordingly, the subjectivity of the “consent”
          determination springs by definition from the question
          whether, after being given the prerequisite advice by the
          police, the person voluntarily participates in the
          encounter.

Id. at 260-61, 925 P.2d at 828-29 (emphases added) (alterations

and internal quotation marks omitted) (quoting Kearns, 75 Haw.

at 573–74, 867 P.2d at 910 (Levinson, J., concurring)).

          Therefore, based on the distinction between the

notification of the right to decline and the subjective

component of “consent,” a court is required to resolve whether

the circumstances demonstrate that the submission was

consensual.   “[E]ven if a seized person is given the

prerequisite advice by the police, the court must still

determine on the record before it whether the person has

participated in the encounter voluntarily.”          Id. at 261, 925

P.2d at 829 (quotation marks omitted) (quoting Kearns, 75 Haw.

at 573–74, 867 P.2d at 910 (Levinson, J., concurring)).            That

is, a defendant’s objective knowledge of his or her

constitutional rights is not a substitute for free and

unconstrained consent.

          Further, when an individual is in the custody of the

government, it is the State’s “particularly heavy” burden to



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demonstrate that such consent was “freely and voluntarily

given,” free of covert force, explicit or implicit coercion, and

implied threat.    Ganal, 81 Hawaiʻi at 368, 917 P.2d at 380;

Russo, 67 Haw. at 137, 681 P.2d at 562.         Although the “mere fact

that a suspect is under arrest does not negate the possibility

of [] voluntary consent,” proof of voluntary consent remains

“important.”    Price, 55 Haw. at 443-44, 521 P.2d at 377.          When

the “coercive atmosphere” of state custody is persistent, it is

not dispelled merely by provision of other constitutional

protections to the defendant, such as being advised of “Miranda

warnings shortly before being asked for consent to a search.”

See id.

            Thus, when a court examines the totality of the

circumstances to determine whether a person consented to a

search, the decisions of this court provide significant

guidance.    These decisions protect the free and unconstrained

choice to retain or waive the rights afforded by article I,

section 7, without compromise of the individual dignity and

personal autonomy that inhere within that provision.

            The court is obliged to undertake the “most careful

scrutiny” of the circumstances in which consent has been alleged

to ensure that the State’s burden to demonstrate consent has

been met, a burden that increases when the person is in custody

at the time the purported consent was obtained.          Informing the


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person of the right to refuse consent is a relevant factor, but

it cannot decide the matter.      Similarly, acquiescence or a

manifestation of assent may nonetheless be insufficient to

demonstrate consent when coercive elements are present.

Finally, the request by the State for consent or waiver of the

rights expressed by article I, section 7 must be more than

perfunctory and provide the individual with a genuine and

meaningful choice; that is, there must be some intimation that

an objection to the search would be significant or that to

withhold consent would not be futile.

                      2. Consent may be withdrawn

          As a corollary of the requirement that consent to a

search must be voluntary, consent to a search may be revoked or

withdrawn at any time before the search has been completed.                “A

suspect may of course delimit as he chooses the scope of the

search to which he consents.”         Florida v. Jimeno, 500 U.S. 248,

252 (1991).   “Clearly a person may limit or withdraw his [or

her] consent to a search, and the police must honor such

limitations.”   United States v. Dyer, 784 F.2d 812, 816 (7th

Cir. 1986); see also Burton v. United States, 657 A.2d 741, 746

(D.C. 1994) (citing Jimeno and Dyer to conclude, “We think these

authorities compel the conclusion that when the basis for a

warrantless search is consent, consent may be withdrawn any time

prior to completion of the search.”); United States v. McWeeney,


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454 F.3d 1030, 1034 (9th Cir. 2006) (“A suspect is free . . . to

delimit or withdraw his or her consent at anytime.”); United

States v. Ho, 94 F.3d 932, 936 n.5 (5th Cir. 1996) (“A consent

which waives Fourth Amendment rights may be limited, qualified,

or withdrawn.”); United States v. Carter, 985 F.2d 1095, 1097

(D.C. Cir. 1993) (recognizing a constitutional right to withdraw

consent to a search); LaFave, supra note 23, § 8.1(c).

          Additionally, “as the ultimate judicial tribunal with

final, unreviewable authority to interpret and enforce the

Hawaiʻi Constitution,” we recognize our state constitution as an

independent source of protection for our citizens.           Kaluna, 55

Haw. at 369, 520 P.2d at 58.      Accordingly, the right provided by

article I, section 7 of the Hawaiʻi Constitution to be free of

warrantless searches, when no exception to the warrant

requirement is present, carries with it the right to withdraw

consent to a search.

          In this case, two forms of consent to a bodily search

are relevant to the discussion: (1) irrevocable consent

allegedly deemed by statute and (2) informed and voluntary

consent under the totality of circumstances.




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C.    Irrevocable consent to a search allegedly deemed by statute
                      is contrary to our law

           Every person who drives on the roads of Hawaiʻi is

deemed to have given consent to a BAC test when suspected of

OVUII.

           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 approved by the director of health of the person’s
           breath, blood, or urine for the purpose of determining
           alcohol concentration or drug content of the person's
           breath, blood, or urine, as applicable.

HRS § 291E-11(a) (emphasis added).            However, before

administering a BAC test, police must inform the driver that his

or her “deemed” consent may be withdrawn by refusing to submit

to testing.

           The test or tests shall be administered at the request of a
           law enforcement officer having probable cause to believe
           the person operating a vehicle . . . is under the influence
           of an intoxicant or is under the age of twenty-one and has
           consumed a measurable amount of alcohol, only after:

           A lawful arrest; and

           The person has been informed by a law enforcement officer
           that the person may refuse to submit to testing under this
           chapter.

HRS § 291E-11(b) (emphases added).            The requirement that police

must inform the person that consent may be withdrawn is in

accordance with other provisions of the implied consent law:

“[i]f a person under arrest refuses to submit to a breath,

blood, or urine test, none shall be given, except as provided in




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section 291E-21.” 26    HRS § 291E-15 (emphasis added); see also HRS

§ 291E-65(a) (“If a person under arrest . . . refuses to submit

to a breath or blood test, none shall be given . . . .”

(emphasis added)).      “Thus, as the statutory language makes

clear, a driver’s ‘implied consent’ to an evidentiary chemical

alcohol test is qualified by his or her implied right to refuse

such a test . . . .”      State v. Wilson, 92 Hawaiʻi 45, 49, 987

P.2d 268, 272 (1999) (emphasis added).

            This court has upheld the State’s OVUII “implied

consent scheme” only when the driver is “afforded . . . the

opportunity to make a knowing and intelligent decision whether

to take an evidentiary [BAC] test.” 27         Id. at 49-50, 987 P.2d at

272-73.    “[P]olice officers have an affirmative duty to clearly

and accurately inform drivers of their implied right to consent

or refuse.” 28   Id. at 52-53, 987 P.2d at 275-76 (emphasis added).


      26
            A warrantless BAC test may be required by police pursuant to HRS
§ 291E-21 from the operator of any vehicle involved in a collision resulting
in injury to or the death of any person. Such a test does not offend the
Hawaiʻi Constitution “so long as (1) the police have probable cause to believe
that the person has committed a DUI offense and that the blood sample will
evidence that offense, (2) exigent circumstances are present, and (3) the
sample is obtained in a reasonable manner.” State v. Entrekin, 98 Hawai‘i
221, 232, 47 P.3d 336, 347 (2002). In Entrekin, “exigent circumstances were
clearly present.” Id. at 233, 47 P.3d at 348.

      27
            See also State v. Garcia, 96 Hawaiʻi 200, 204, 29 P.3d 919, 923
(2001) (reaffirming Wilson and restating that a police officer cannot “give a
driver arbitrary, false, or misleading information regarding a driver’s
rights under the implied consent law and still compel the admission of the
results in the criminal context”).
      28
            The language of HRS § 291E-15 requires police to inform a driver
arrested for OVUII and who refuses to submit to a BAC test of the “sanctions
                                                              (continued. . .)


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Thus, we have recognized that the State’s statutory consent

scheme carries with it a right to withdraw that consent, such

that when the State requests that an individual submit to a BAC

test, that individual must be afforded an opportunity to decide

whether to submit to testing.          Id.

            For a person to be deemed by the implied consent law

to have irrevocably consented to be searched also conflicts with

this court’s decision in Nakamoto.            In Nakamoto, this court

found that consent given under the “belie[f] that she had no

other alternative but to comply,” or a “reasonabl[e] belie[f]

that she had no other alternative but to submit” could “not

validate an otherwise improper intrusion.”            Nakamoto, 64 Haw. at

22, 635 P.2d at 951.      Accordingly, if a person waives the right

to refuse to be searched under the belief that he or she must

waive that right, then the waiver is invalid.            Similarly, if the

right to refuse is foreclosed by statute, then there is no

      (. . .continued)
under section 291E-41, 291E-65, or 291E-68” as a necessary condition for the
sanction of the specified statute to be imposed. See HRS § 291E-15(1)
(utilizing the disjunctive connector “or” in enumerating the penalties that a
police officer must inform a driver); HRS § 291E-15(2) (a person’s refusal of
a BAC test will subject that “person to the procedures and sanctions under
part III or section 291E-65, as applicable” (emphases added)). Further, the
legislative history of HRS § 291E-15 indicates that police are obliged to
inform an arrestee only of the sanctions that may be sought to be imposed.
See H. Stand. Comm. Rep. 762-06, in 2006 House Journal, at 1391-92 (noting
that the legislative intent for the notice requirement is to “inform an
arrested driver of sanctions that may be imposed for refusing to take” a BAC
test (emphasis added)). For instance, HRS § 291E-65 is only applicable to a
person under twenty-one years of age; it is accordingly unnecessary to inform
a person over twenty-one years of age of the sanctions provided by that
section.




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alternative but to comply and submit; it follows that a waiver

of the right to refuse, given under the belief that one’s

consent is mandated by the statutory consent scheme, will always

be invalid as a basis to conduct a search.

            Based on the statutory provisions of the implied

consent law, see HRS §§ 291E-11(b), 291E-15, 291E-65(a), and the

protections of the Hawai‘i Constitution as interpreted by the

decisions of this court, a person may refuse consent to submit

to a BAC test, and the State must honor that refusal.

Therefore, in order to legitimize submission to a warrantless

BAC test under the consent exception, consent may not be

predetermined by statute, but rather it must be concluded that,

under the totality of the circumstances, consent was in fact

freely and voluntarily given. 29




      29
             “It is apparent that a constitutional prohibition cannot be
transgressed indirectly by the creation of a statutory presumption any more
than it can be violated by direct enactment. The power to create
presumptions is not a means of escape from constitutional restrictions.”
Bailey v. Alabama, 219 U.S. 219, 239 (1911) (holding that under the
Thirteenth Amendment, a state could not criminalize the failure to perform
under a contract) (quoted approvingly in Speiser v. Randall, 357 U.S. 513,
526 (1958) (holding that a tax exemption could not be based on a state’s
infringement of a veteran’s First Amendment rights)). Here, if a person
could not withdraw one’s implied consent, the prohibition against warrantless
searches would be transgressed by the creation of a statutory conclusive
presumption.




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    D.   Informed and voluntary consent under the totality of
            circumstances is not present in this case

   1. Inherent coercion of a request to search conditioned on
                          imprisonment

          The decisions of this court jealously protect our

citizens from coerced submission to a search, because no matter

how subtly the coercion was applied, the resulting “consent” is

no more than a pretext for the intrusion forbidden by article I,

section 7 of the Hawaiʻi Constitution.          See Trainor, 83 Hawaiʻi

at 261, 925 P.2d at 829; see also Patterson, 58 Haw. at 467, 571

P.2d at 748-49 (“voluntary” equates to “uncoerced”); Price, 55

Haw. at 443, 521 P.2d at 377 (“We equate voluntary with

uncoerced.”).   Where a search may not be accomplished without

consent, a request for consent that subjects the person to

imprisonment for refusal is calculated to overbear a defendant’s

will in order to impel submission.           Balogh v. Balogh, 134 Hawaiʻi

29, 45, 332 P.3d 631, 647 (2014) (referencing Black’s Law

Dictionary to define “coercion” as “[c]ompulsion of a free agent

by . . . threat of physical force”); see also Bailey v. Alabama,

219 U.S. 219, 244-45 (1911) (striking a state statute that

provided criminal penalties for failure to pay a contractual

debt because the “natural operation of the statute . . .

furnishes a convenient instrument for [] coercion” forbidden

under the Federal Constitution); Gompers v. Buck’s Stove & Range

Co., 221 U.S. 418, 442 (1911) (noting in the context of a


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contempt charge that an “order for imprisonment . . . is not to

vindicate the authority of the law . . . but . . . is intended

to coerce the defendant to do the thing required”); Delia v.

City of Rialto, 621 F.3d 1069, 1077 (9th Cir. 2010) (finding

consent to search was coerced when defendant “was cautioned

. . . that his failure to cooperate . . . could result in

charges of insubordination and possible termination of his

employment”), rev’d on other grounds sub nom., Filarsky v.

Delia, 132 S. Ct. 1657 (2012); Inouye v. Kemna, 504 F.3d 705,

713 (9th Cir. 2007) (finding state action requiring

participation in a religious program “clearly coercive” based on

the threat of imprisonment); United States v. Ocheltree, 622

F.2d 992, 994 (9th Cir. 1980) (finding consent was not voluntary

where a government agent informed a defendant “that if consent

was not forthcoming [the agent] would attempt to secure a search

warrant, [with] a clear implication that appellant would be

retained in custody until the warrant was obtained”).

          As noted, the Implied Consent Form that was presented

to Won informed him, pursuant to HRS § 291E-68, that “if you

refuse to submit to a [BAC] test, you shall be subject to up to

thirty-days imprisonment and/or a fine up to $1,000.”            See HRS

§§ 291E-68; 701-107.     Failing to submit to a search pursuant to

HRS § 291E-68 is a petty misdemeanor offense, for which other

sanctions in addition to a jail term and a fine may be imposed,


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including the payment of other court assessments and fees.              HRS

§§ 706-605(1)(d), (6); 706-640(1)(e).

             Where arrest, conviction, and imprisonment are

threatened if consent to search is not given, the threat

infringes upon and oppresses the unfettered will and free choice

of the person to whom it is made, whether by calculation or

effect. 30   See id. at 261-63, 925 P.2d at 829-31 (finding that a

permissive response to a request to search the defendant

resulted only from “inherently coercive” circumstances that were

“calculated to overbear [the defendant’s] will”); Pauʻu, 72 Haw.

at 508, 824 P.2d at 835 (same).         Thus, the threat of the criminal

sanction communicated by the Implied Consent Form for refusal to

submit to a BAC test is inherently coercive. 31


      30
            The ICA characterized HRS § 291E-68 as a “threat” designed to
increase submission: “the Hawaii Legislature has chosen to use the threat of
. . . criminal sanctions to encourage arrestees to submit to testing.” Won,
134 Hawaiʻi at 65, 332 P.3d at 667. Notably, the legislature was cognizant of
the fact that “to criminalize refusal to submit to a breath, blood, or urine
test infringes upon important personal rights.” H. Stand. Comm. Rep. No.
907-10, in 2010 House Journal, at 1343; see also 2010 House Journal, at 838
(statement of Rep. Karamatsu) (mentioning that criminal refusal sanctions
“make criminals of people who exercise their right to refuse” and could
“result[] in situations where the arrestee is convicted of refusal when the
test result would have indicated that the arrestee was not guilty of
[OVUII]”). It is noted that, according to the dissent, a significant
majority of states have not adopted a statute providing for criminal
sanctions for OVUII arrestees who refuse BAC testing. Dissent at 12 n.3.
      31
            In concluding that the consent given in Nakamoto was involuntary
and an “inherent product of coercion,” this court emphasized the fact that it
was “given in the belief that [she] would forfeit her right to attend the
concert[] if she refused to be searched.” Nakamoto, 64 Haw. at 22, 635 P.2d
at 951 (citing Gaioni v. Folmar, 460 F. Supp. 10 (M.D. Ala. 1978); Wheaton v.
Hagan, 435 F. Supp. 1134 (M.D.N.C. 1977)). Thus, the court held that
Nakamoto’s consent did not “validate an otherwise improper intrusion.” Id.

                                                              (continued. . .)


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   2.   Coercion inherent in conditioning the preservation of
 fundamental rights on the waiver of other constitutional rights

            Article I, sections 5 and 7 of the Hawaiʻi Constitution

provide a fundamental right not to be arrested except for

probable cause. 32    State v. Barnes, 58 Haw. 333, 335, 568 P.2d

1207, 1209 (1977) (“[A]n arrest without a warrant will be upheld

only where there was probable cause for the arrest.”).               Probable

cause exists when the arresting officer has reasonable grounds

to believe, from facts and circumstances personally known to the

officer, or of which the officer has trustworthy information,

that the person arrested has committed or is committing an


      (. . .continued)
            If, in Nakamoto, this court found as inherently coercive the
threat of being barred from entering a government-owned arena if a
concertgoer refuses a warrantless search, the threat of being subjected to
criminal sanctions if a suspected OVUII offender refuses a BAC test produces
a significantly more severe level of coercion.
      32
            Section 5 of article I provides as follows:

            No person shall be deprived   of life, liberty or property
            without due process of law,   nor be denied the equal
            protection of the laws, nor   be denied the enjoyment of the
            person’s civil rights or be   discriminated against in the
            exercise thereof because of   race, religion, sex or
            ancestry.

Haw. Const. art. I, § 5. Article I, section 7 provides as follows:

            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;
            and no warrants shall issue but upon probable cause,
            supported by oath or affirmation, and particularly
            describing the place to be searched and the persons or
            things to be seized or the communications sought to be
            intercepted.

Haw. Const. art. I, § 7.




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offense.    State v. Lloyd, 61 Haw. 505, 509, 606 P.2d 913, 916

(1980).    Thus, as an arrest may be effectuated only when there

is reason to believe that a person has committed or is

committing an offense, it is self-evident that a person has a

right not to be arrested for lawful behavior.

            In situations in which police have not obtained a

warrant and no other exception to the warrant requirement is

present, the choice presented by the Implied Consent Form forces

a defendant to elect between fundamental rights guaranteed by

the Hawaiʻi Constitution.     On the one hand, the person may

exercise the constitutional right to refuse to be searched, thus

relinquishing the constitutional right to not be arrested for

conduct that is authorized by the constitution.

            Alternatively, the person may “choose” to be searched

in order to prevent being arrested for the refusal crime, thus

forfeiting the constitutional right to not be subject to a

search absent a warrant or an exception to the warrant

requirement.

            That is, with respect to both alternatives, a person

must surrender one constitutional right for preservation of

another.    However, the government may not condition a right

guaranteed in our constitution on the waiver of an equivalent




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constitutional protection. 33      State v. Joseph, 109 Hawaiʻi 482,

497, 128 P.3d 795, 810 (2006).         “[I]t [is] intolerable that one

constitutional right should have to be surrendered in order to

assert another.”     Id. (quoting Simmons v. United States, 390

U.S. 377 (1968)).

            It is manifestly coercive to present a person with a

“choice” that requires surrender of the constitutional right to

refuse a search in order to preserve the right to not be

arrested for conduct in compliance with the constitution.              It is

equally coercive to “allow” the person to preserve the

fundamental right to refuse a search by requiring the person to

relinquish the right to not be arrested for conduct that does

not violate the constitution.

            3. Significant punishment magnifies coercion

            In exercising the constitutional right to refuse to be

searched, a driver is forced to manifest to the police a

willingness to commit a crime.         That is, the driver must commit

a crime in police presence in order to exercise the refusal

allowed by statute and the right to withdraw consent provided by

the constitution.     The coerciveness present in such
      33
             Similarly, a state “cannot abridge [the] constitutional rule
[that police may not arrest a person except on probable cause] by making it a
crime” to refuse to answer police requests for identification, “any more than
it could abridge the protections of the Fifth and Sixth Amendments by making
it a crime to refuse to answer police questions once a suspect has been taken
into custody.” Kolender v. Lawson, 461 U.S. 352, 366-67 (1983) (Brennan, J.,
concurring).




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circumstances, requiring commission of a new crime in order to

preserve the right not to be searched, is enhanced by the

severity of the statutory penalty for the refusal offense.

            The statute criminalizing refusal to submit to a BAC

test, HRS § 291E-68, authorizes imprisonment that is six times

greater than that provided by the OVUII offense for a first-time

offender.    Specifically, the refusal offense is punishable for

up to thirty days in jail, whereas a first OVUII offense carries

a maximum of five days of imprisonment.         Compare HRS §§ 701-107,

with 291E-61 (b)(1)(C)(ii).      Thus, the coercion produced by the

mandated criminal sanction for refusing to waive a

constitutional right is increased as a result of the serious

penalties authorized for refusing to waive this right.

  4. Under the totality of the circumstances, Won’s election to
             submit to the BAC test was not voluntary

            Our de novo review of the record indicates that while

in custody, Won was informed both of his right to refuse to

consent and of the fact that should he exercise his right to

refuse to submit to a BAC test, his refusal would constitute the

commission of a crime: he would be subject to re-arrest for the

additional crime of refusal to consent, and he would be subject

to up to thirty days of imprisonment, a fine not to exceed

$1,000, as well as other sanctions.          Under these circumstances,

Won marked the Implied Consent Form with a manifestation of



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assent.   However, as in Trainor, the fact that the right to

refuse the test was communicated and that there was a

manifestation of assent by Won does not reduce our duty to

determine whether Won voluntarily consented to the search.             See

Trainor, 83 Hawaii at 260, 925 P.2d at 828.

           The circumstances further indicate that the election

presented by the Implied Consent Form forced Won to select

between fundamental constitutional rights and that refusal to

provide consent carried with it a significant punishment.

           As in Russo, it is apparent that “[w]hile assent could

be inferred from” Won’s election on the Implied Consent Form,

the context in which it was made “leads us to believe [that it]

did not represent an essentially free and unrestrained choice.”

See Russo, 67 Haw. at 138, 681 P.2d at 562.          Directed to sign a

form in the presence of a police officer to indicate either

submission to a search or willingness to commit a crime, it is

clear that the “circumstances begat an obligation on [the

defendant’s] part” to comply with the implicit directive of the

Implied Consent Form.     See Trainor, at 262, 925 P.2d at 830

(alterations and internal quotation marks omitted).

           Where the Trainor court found that “it would be simply

wrong to suggest that” the defendant was actually able to walk

away from the encounter, id., here it would be simply wrong to

conclude that an instruction that a person’s refusal to consent


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to a BAC test was a crime, with stated penalties of up to thirty

days of incarceration and a $1,000 fine, would not interfere

with a person’s free and unconstrained choice.           The threat of

imprisonment is inherently coercive, see State v. Brooks, 838

N.W.2d 563, 573-74 (Minn. 2013, Stras, J., concurring), cert.

denied, 134 S. Ct. 1799 (2014); thus, the present case is more

coercive than the circumstances in Trainor and Nakamoto because

rather than speculate whether a refusal to consent to a search

might carry unwanted consequences, Won was informed in no

uncertain terms that the consequence of his refusal made him

subject to imprisonment.

            Thus, as in Nakamoto, it is clear that Won had no

other alternative to avoid prosecution for the refusal offense

but to submit to the search; as in Puaʻa, withholding consent was

futile, as any other course would have resulted in Won’s

commission of a crime.      Consequently, the position in which Won

was placed,    because of the criminal sanction for refusal, the

forced selection between constitutional rights, and the

potential significant punishment the sanction entailed, was

inherently coercive. 34     See Trainor, 83 Hawaiʻi at 263, 925 P.2d


      34
            It bears repeating here that this opinion does not concern the
civil administrative penalties attendant to a driver’s refusal of BAC
testing. See HRS § 291E-41(d) (Supp. 2010); see generally HRS Chapter 291E,
Part III. Those types of sanctions are not affected in any way by our
decision. Because we conclude only that the threat of being subjected to
criminal sanctions inherently coerces a suspected OVUII offender into giving
                                                              (continued. . .)


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at 831; Ramones, 69 Haw. at 405, 744 P.2d at 517; Shon, 47 Haw.

at 166, 385 P.2d at 836.

            As 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, the choice presented to Won compromised

the values of individual dignity and personal autonomy protected

by article I, section 7 of the Hawaiʻi Constitution.            For this

reason, Won’s election on the Implied Consent Form to submit to

a BAC test is invalid as a waiver of his right not to be

searched.

            Therefore, with little or no indication in the record

to demonstrate that Won’s election to submit to the BAC test was

the result of his free and unconstrained choice, the State has



      (. . .continued)
consent, if a police officer does not inform the offender of the criminal
sanctions because they were omitted from the notice given by the officer, see
HRS § 291E-15; supra note 28, then proving OVUII through evidence of a
defendant’s blood alcohol content, see HRS § 291E-61(a)(3)—(4), will remain a
viable option for purposes of prosecution. Further, in cases where BAC
evidence is inadmissible because it was obtained in the absence of valid
consent, the State is free to rely upon “other relevant evidence of
intoxication in order to prosecute” an accused OVUII offender pursuant to
“the criminal offense of [OVUII], e.g., the manner in which [the accused] was
observed to have driven his vehicle, his conduct in performing the requisite
alcohol tests, his appearance, demeanor, and other valid police observations
of signs of intoxication.” State v. Wilson, 92 Hawaiʻi 45, 54 n.14, 987 P.2d
268, 277 n.14 (1999); see HRS § 291E-61(a)(1)—(2) (OVUII can be proven by
evidence that a person is operating a vehicle “[w]hile under the influence of
alcohol in an amount sufficient to impair the person’s normal mental
faculties or ability to care for the person and guard against casualty” or
“[w]hile under the influence of any drug that impairs the person’s ability to
operate the vehicle in a careful and prudent manner”).




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not met its particularly heavy burden to demonstrate the

voluntary waiver of a constitutional right. 35          Accordingly, Won’s

election to submit to the BAC test was not based on voluntary

consent. 36

                  E.   The ICA’s analysis was in error

              The protections guaranteed in article I, section 7 of

the Hawaiʻi Constitution “against unreasonable searches and

seizures and invasions of privacy” are preserved by the

fundamental principle in our law that warrantless searches are

unreasonable per se, absent “a few specifically established and

well-delineated exceptions.”        Ganal, 81 Hawaiʻi at 368, 917 P.2d

at 380.    Hence, under Hawaiʻi law, it is not accurate to say that

      35
            Our decision is consistent with this court’s recognition of our
constitution’s protection in article I, section 7 against the impairment of
voluntary consent by coercion. See, e.g., Trainor, 83 Hawaii at 263, 925
P.2d at 831; Nakamoto, 64 Haw. at 22, 635 P.2d at 951. Thus, the decisions
of other jurisdictions that have not found the threat of imprisonment for
failing to submit to a BAC test to be inherently coercive, see, e.g., State
v. Smith, 849 N.W.2d 599 (N.D. 2014); State v Brooks, 838 N.W.2d 563 (Minn.
2013); Burnett v. Municipality of Anchorage, 806 F.2d 1447 (9th Cir. 1988),
are at odds with the preservation of voluntary choice and respect for human
dignity embodied by Hawaiʻi law. See, e.g., Kaluna, 55 Haw. at 366, 520 P.2d
at 57.
      36
            The dissent takes issue with this opinion for not considering the
facial constitutional validity of the criminal refusal sanctions under the
implied consent statutory scheme. Dissent at 31—32. However, Won agreed to
take a breath test and, therefore, was not subjected to any criminal
sanctions attendant to a refusal of a BAC test. Thus, we resolve this case
on the question of whether Won acceded to the breath test voluntarily and
without coercion in accordance with the requirements of consent embodied by
article I, section 7 of the Hawaii Constitution. This is consistent with the
longstanding canon counseling “courts [to] avoid reaching constitutional
questions in advance of the necessity of deciding them.” Hawaii Gov’t
Employees Ass’n v. Lingle, 124 Hawaiʻi 197, 208, 239 P.3d 1, 12 (2010)
(quoting City & Cnty. of Honolulu v. Sherman, 110 Hawaiʻi 39, 56 n.7, 129 P.3d
542, 559 n.7 (2006)).




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“the ultimate measure of the constitutionality of a governmental

search is ‘reasonableness,’” as stated by the ICA.            Won, 134

Hawaiʻi at 78, 332 P.3d 680 (citing King, 133 S. Ct. at 1969).

The Hawaiʻi Constitution does not determine whether bodily

intrusions are lawful under an indeterminate balancing test for

“reasonableness,” Won, 134 Hawaiʻi at 78, 332 P.3d at 661;

instead, a warrantless search is precluded where no exception

rooted in our law is present. 37       Wallace, 80 Hawaii at 393, 910

P.2d at 706.

            The ICA asserted that “the Legislature presumably

could have sought to make the implied consent to breath testing

completely irrevocable.”       Won, 134 Hawaiʻi at 78-79, 332 P.3d at

680-81.    Consequently, the ICA acknowledged the existence of a

statutory right to refuse consent under our law, but it

concluded that it is ineffective and cannot invalidate the

consent deemed by statute.       Under the ICA’s analysis, it is not

clear what remains of a “right” to refuse to submit to a BAC

      37
            The ruling in In Interest of Doe, 77 Hawaiʻi 435, 444, 887 P.2d
645, 654 (1994), relied upon the ICA for its “reasonableness” analysis, was
specifically confined to the particular circumstances presented in that case.

            We emphasize that the exception to the warrant requirement
            of article I, section 7 of the Hawaiʻi Constitution, and the
            relaxation of the probable cause standard to one of
            reasonable suspicion that we prescribe in the present case,
            are strictly limited to the school context and the unique
            balance of interests present therein.

Id. (emphasis added).




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test when that right is “modified.”          As discussed above, it is

well settled that an individual retains the right to consent or

to decline to consent to a BAC test at the time the State makes

its request.   Garcia, 96 Hawaiʻi at 207, 29 P.3d at 926; Wilson,

92 Hawaiʻi at 49-50, 987 P.2d at 272-73; Nakamoto, 64 Haw. at 21,

635 P.2d at 951.    Thus, contrary to the ICA’s assertion, the

right to refuse to submit to a BAC test is not rendered

ineffectual by the statutory implied consent.          HRS §§ 291E-

11(b), 291E-15, 291E-65(a).

          The ICA also appears to extend the consent allegedly

deemed by statute into the protections secured by the Federal

and Hawaiʻi Constitutions, stating that “[t]he limited statutory

right to refuse testing also does not mean that the driver’s

implied consent is not valid for purposes of the Fourth

Amendment and Article I, Section 7.”          Won, 134 Hawaiʻi at 78, 332

P.3d at 680.   That is, the ICA asserts that the driver’s implied

consent is recognized by or affirmed under the constitution, and

therefore, there is no right to withdraw consent.           However, the

right to refuse consent to a BAC test is not merely a right

provided by statute; rather, the right to refuse to consent to

be searched and the right to withdraw consent are intrinsic in

our constitution.    Nakamoto, 64 Haw. at 21, 635 P.2d at 951;

Price, 55 Haw. at 443, 521 P.2d at 377.




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            The ICA’s balancing approach to determine

reasonableness has not been adopted in our State and does not

comport with an individual’s rights against warrantless searches

guaranteed by the Hawaiʻi Constitution.         Further, this approach

discounts the statutory and constitutional rights to refuse to

submit to a BAC test and does not account for the coercive

nature of the threat of imprisonment communicated by the Implied

Consent Form, the forced selection between constitutional

rights, or the significant punishment authorized for the refusal

offense.    Accordingly, we conclude that the ICA’s analysis is in

error. 38

               F.    The dissent’s analysis is erroneous

  1. The doctrine of unconstitutional conditions does not apply

            The dissent employs the doctrine of unconstitutional

conditions, 39 a different balancing test than that used by the

      38
            The ICA opinion also implies that counsel would be of no benefit
to a person determining whether to sign the HPD-396K Consent Form because
“counsel could not have directly advised Won to refuse to submit to testing.”
Won, 134 Hawaiʻi at 74, 332 P.3d at 676. Even under the ICA premise that
there is no right to refuse consent to a BAC test, an important function of
counsel is to explain to a client the choices that may be presented and
ramifications that may flow from the election of one course of action as
opposed to another. We thus reject any implication by the ICA Opinion of
narrowing the role and importance of counsel.
      39
            This doctrine “limits the government’s ability to exact waivers
of rights as a condition of benefits, even when those benefits are fully
discretionary.” United States v. Scott, 450 F.3d 863, 866 (9th Cir. 2006).
It also ensures that constitutional rights are not eroded “by preventing the
government from coercing people into giving them up.” Koontz v. St. Johns
River Water Mgmt. Dist., 133 S. Ct. 2586, 2594 (2013).



                                                              (continued. . .)


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ICA, in concluding that the legislature was authorized to

criminalize the refusal by a suspected OVUII offender of a BAC

test as a condition of the privilege of driving on public roads.

Dissent at 16—29.     Significantly, this Court has never applied

this doctrine in criminal cases, 40 for when law enforcement

conducts a warrantless search with the intention to discover

evidence of a crime, article I, section 7 governs.            And as

already made clear, the proper inquiry in those instances is

whether the State has proven that the warrantless search falls

within an exception to the warrant requirement recognized by

      (. . .continued)
             Analysis under this doctrine consists of two parts. First, the
court must identify the condition imposed by the government in exchange for
the benefit. Nakamoto, 64 Haw. at 23, 635 P.2d at 952. Second, a balancing
test must be conducted to determine whether the governmental interest in
imposing the condition is so compelling as to clearly outweigh the burdens
that the condition levies upon constitutional guarantees. Id. at 23—24, 635
P.2d at 952.
      40
            This court has utilized or at least mentioned this doctrine only
in civil cases. See Nakamoto v. Fasi, 64 Haw. 17, 22, 635 P.2d 946, 951
(1981); Perry v. Planning Comm’n of the Cnty. of Haw., 62 Haw. 666, 682, 619
P.2d 95, 106 (1980); The King v. Lau Kiu, 7 Haw. 489, 492 (Haw. Kingdom
1888). At least one state appellate court has explicitly rejected a
balancing approach in the context of a case similar to ours, reasoning that
the fundamental inquiry is whether the implied consent statute creates an
impermissible per se exception to the warrant requirement, not whether the
legislature is authorized to enact such a statute. See Weems v. State, 434
S.W.3d 655, 665 (Tex. App. 2014), pet. granted (Aug. 20, 2014).

            Further, this doctrine was not used in any of the other state
appellate cases where criminal refusal sanctions were found not to be
inherently coercive. See, e.g., People v. Harris, 184 Cal. Rptr. 3d 198, 213
(Cal. Ct. App. 2015) (applying the totality of the circumstances test to
determine whether the consent exception to the warrant requirement validated
the warrantless blood test), review denied (June 10, 2015); State v. Brooks,
838 N.W.2d 563, 569 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014)
(same); State v. Modlin, 867 N.W.2d 609, 619 (2015) (same); State v. Smith,
849 N.W.2d 599, 606 (N.D. 2014) (same, but defendant was subjected to a
breath test).




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this Court.   See Ganal, 81 Hawaiʻi at 368, 917 P.2d at 380.

Thus, there is a presumption of invalidity when a warrantless

search is at issue, State v. Heapy, 113 Hawaii 283, 307, 151

P.3d 764, 788 (2007), which can be rebutted by the State not by

proving that the governmental interest outweighs the

unauthorized privacy intrusion, dissent at 17, but by

demonstrating that a well-recognized and narrowly defined

exception to the warrant requirement applies.          Ganal, 81 Hawaiʻi

at 368, 917 P.2d at 380.

          Under the dissent’s theory--that the government can

criminalize the exercise of the constitutional right to withhold

or revoke consent because of the government’s compelling

interest in protecting the public from OVUII offenders--there is

nothing to proscribe the government from branding as a crime the

exercise of other constitutional rights.         The government need

only cite dire statistics resulting from a particular crime to

claim that there is a serious societal problem, find or create a

governmentally provided privilege, attach to that privilege a

condition waiving a constitutional right, and then rationalize

such a waiver by referring to published reports or articles that

have identified its possible benefits.

          That is, the dissent relegates constitutionally

guaranteed rights to a position in which they may be eliminated

any time statistics could be marshalled to profess a need for


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doing so and the exercise of that right can be associated with a

negative societal impact.       For example, in the OVUII context,

the dissent’s analytical rubric could potentially allow the

government to eviscerate all constitutionally guaranteed rights

of motorists. 41   If the compelling interest of the government

trumps the constitutional right not to be searched without a

warrant, it can be extended to similarly defeat the Miranda

rights or the right to counsel of an OVUII defendant by making

their exercise a criminal offense if it can be statistically

shown that instances of OVUII-related incidents or casualties

are diminished when Miranda rights and the right to counsel are

waived. 42

             Weighing the constitutional rights of an arrestee

against a governmental interest in order to determine the


      41
            The elimination of constitutional rights in the criminal arena,
through the application of the unconstitutional conditions doctrine that the
dissent endorses, would facilitate convictions, the attendant consequences of
which include incarceration, criminal fines, and the stigma of being branded
a criminal. These consequences are significantly more serious than those
exacted in the civil arena, where this doctrine was designed to operate in.
See Zap v. United States, 328 U.S. 624, 628 (1946) (holding that Fourth and
Fifth Amendment rights could yield as a condition of a contractor’s agreement
with the government); Yin v. California, 95 F.3d 864, 872 (9th Cir. 1996)
(holding that a state employee’s union “contract may under appropriate
circumstances diminish (if not extinguish) legitimate expectations of
privacy”); Wyman v. James, 400 U.S. 309, 317—18 (1971) (conditioning receipt
of welfare benefits upon home visits found valid).
      42
            Implicit in the dissent’s argument is that by criminalizing the
right to refuse to submit to a breath or blood test, OVUII arrestees will be
coerced into taking such a test, increasing the conviction rate of arrestees,
and in turn decreasing OVUII-related casualties. See Dissent at 20—24. The
same outcome could reasonably be anticipated by eliminating Miranda rights or
the right to counsel of OVUII defendants.




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validity of a warrantless search is a particularly dubious

enterprise, because “the needs of law enforcement stand in

constant tension with the Constitution’s protections of the

individual against certain exercises of official power.            It is

precisely the predictability of these pressures that counsels a

resolute loyalty to constitutional safeguards.”          Almeida-Sanchez

v. United States, 413 U. S. 266, 273 (1973).          As one state

appellate court aptly recognized when it refused to apply a

balancing approach in a similar case, “the primary purpose of

the search . . . is for investigation of a crime based on a

discretionary determination by a law-enforcement officer that

there is probable cause of intoxication.”         State v. Villarreal,

No. PD-0306-14, 2014 WL 6734178, at *17 (Tex. Crim. App. 2014),

reh’g granted (Feb. 25, 2015).        Because the governmental

interest when a search is at issue is intertwined with a

criminal investigative purpose, the need for a warrant is

intensified to preserve the constitutional rights of the person

to which the investigation is directed.

          Even assuming that the doctrine of unconstitutional

conditions could somehow be considered applicable in this case,

the dissent’s analysis would remain flawed.          The condition

imposed by the government in this case is implied consent to a

warrantless search, in the form of a BAC test on a motorist

suspected of OVUII, for the privilege of driving on public


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roads.     See HRS § 291E-11(a)—(b); cf. Nakamoto, 64 Haw. at 23,

635 P.2d at 952 (stating that the governmentally levied

condition was the “submission [by concertgoers] to a search of

their persons” in exchange for the privilege of entering a

government-owned arena to attend a concert).

             According to the dissent, however, the condition

imposed by the government is the criminalization of the

withdrawal of implied consent.         Dissent at 15—16.     This is a

misidentification of the condition implicated, since the

criminal refusal sanctions here are akin to the exclusion in

Nakamoto of a concertgoer from a government-owned arena if he or

she had refused a warrantless search of his or her bag.

Plainly, the criminal refusal sanctions here and the exclusion

from entry in Nakamoto are merely the consequences of a person’s

refusal to abide by the governmentally imposed condition--a

warrantless search--and are not the conditions from which an

unconstitutional conditions analysis must proceed. 43


      43
            The dissent also seems to be using the unconstitutional
conditions doctrine to conclude that actual consent procured from a suspected
OVUII offender under HRS § 291E-11(b) is always valid if the requirements of
the implied consent statute is adhered to, but this doctrine applies only
when “a government seeks to achieve its desired result by obtaining
bargained-for consent of the party whose conduct is to be restricted.”
Richard A. Epstein, Unconstitutional Conditions, State Power, and the Limits
of Consent, 102 Harv. L. Rev. 4, 7 (1988) (emphasis added). The bargained-
for consent here is a motorist’s implied consent to warrantless BAC testing
under HRS § 291E-11(a) in exchange for the privilege of driving on public
roads. Hence, the unconstitutional conditions doctrine is meant to determine
the validity of implied consent under HRS § 291E-11(a). The doctrine is not
calibrated to measure the validity of actual, non-bargained-for consent
required by HRS § 291E-11(b) because, as already explained, consent is
                                                              (continued. . .)


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            Further, even if one were to find that the correctly

identified condition is criminalizing the withdrawal of implied

consent and that it passes muster under the unconstitutional

conditions doctrine, 44 these findings are not determinative of

the legal propriety of the search. 45         What is dispositive is


      (. . .continued)
subject to an inquiry into the totality of the circumstances to determine
voluntariness.

            At the very outset, therefore, the dissent’s analysis is flawed
as is it inconsistent with the unconstitutional conditions framework that it
purportedly follows.
      44
            But see Villarreal, 2014 WL 6734178, at *18 (concluding that “a
DWI suspect’s privacy interest outweighs the State’s interest in preventing
drunk driving through warrantless searches” and quoting the McNeely plurality
in “stating that ‘the general importance of the government’s interest in this
area does not justify departing from the warrant requirement without a
showing’ that some established exception . . . applies”).
      45
            The dissent concludes that the intrusion into privacy resulting
from a warrantless BAC test is “minimized” by the fact that OVUII arrestees
are already “in custody, and thus, have a diminished expectation of privacy.”
Dissent at 27. This justification is plainly contrary to our law as
promulgated by Kaluna and its progeny. In Kaluna, this Court reiterated that
the state constitutional right to be free from unreasonable searches and
seizures “requires that governmental intrusions into the personal privacy of
citizens of this State be no greater in intensity than absolutely necessary
under the circumstances.” State v. Kaluna, 55 Haw. 361, 369, 520 P.2d 51,
58-59 (1974). In effectuating this overarching principle, this Court refused
to follow the Supreme Court’s allowance “of a complete body search of an
individual conducted as an incident to his lawful custodial arrest,” id. at
367, 520 P.2d at 57, in order to avoid “lend[ing] unprecedented power to the
police to subject individuals under custodial arrest for even the most
trivial offenses to the indignities of an exhaustive body search when no
articulable reason supports such an intrusion other than the bare fact that
the arrestee is in custody.” Id. at 369, 520 P.2d at 59. Simply, Kaluna
refused to hold “that since a lawful custodial arrest is a significant
intrusion into an individual’s privacy, further, ‘lesser’ intrusions may be
made without regard for their justifications.” Id. at 370, 520 P.2d at 59.
Accordingly, the statement by the dissent that intrusion into the privacy of
OVUII arrestees from a warrantless BAC test is “minimized” because arrestees
are already “in custody” and “have a diminished expectation of privacy” is
contrary to our law.




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whether Won’s consent, required by HRS § 291E-11(b) (stating

that “the person may refuse to submit to testing,” i.e., refuse

to provide actual consent), was constitutionally valid.            This

inquiry flows intrinsically from settled law in Hawaii, which

presumes every warrantless search impermissible unless it is

demonstrated that the constitutional requirements of a

consensual search are complied with or that another recognized

exception to the warrant requirement applies.          Ganal, 81 Hawaii

at 368, 917 P.2d at 380; see also McNeely, 133 S. Ct. at 1565

(plurality opinion) (reasoning that “the general importance of

the government’s interest in this area does not justify

departing from the warrant requirement without showing exigent

circumstances that make securing a warrant impractical in a

particular case”).    Thus, Won’s agreement to take the

warrantless breath test in this case must be examined under an

independent constitutional inquiry.

          As already made clear, the government must comply with

the constitutional requirements undergirding the procurement and

validity of consent and cannot, by statute, alter or reshape the

doctrine of consent by rendering meaningless or short-circuiting

its constitutional underpinnings--the most essential among which

is voluntariness. See State v. Bonnell, 75 Haw. 124, 147-48, 856

P.2d 1265, 1277 (1993) (reasoning that consent “means more than

the absence of an objection”; rather, “it must be shown that


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such consent was voluntarily given”).        Accordingly, contrary to

the dissent’s view, actual consent under HRS § 291E-11(b) cannot

be secured without regard to the constitutional principles

fundamental to the doctrine of consent.         See State ex rel. Anzai

v. City & Cnty. of Honolulu, 99 Hawaiʻi 508, 522, 57 P.3d 433,

447 (2002) (stating that the legislature is without power to

limit constitutional guarantees by way of legislation).

 2. The dissent creates an indefensible per se exception to the
                       warrant requirement

           The dissent’s conclusion that Won’s consent was valid

rests solely upon its finding that the implied consent statute

is a legitimate exercise of legislative authority.           Dissent at

27—28.   However, this court has never held that the implied

consent statute qualifies as one of the “specifically

established and well[-]delineated exceptions” to the warrant

requirement under article I, section 7.         State v. Phillips, 67

Haw. 535, 539, 696 P.2d 346, 349 (1985); see also Aviles v.

State, 443 S.W.3d 291, 294 (Tex. App. 2014) (holding that

implied consent statutes are not permissible exceptions to the

warrant requirement), pet. filed (Aug. 8, 2014); State v.

Fierro, 853 N.W.2d 235, 243 (S.D. 2014) (emphasizing that the

court has never held South Dakota’s implied consent statute as a

recognized exception to the warrant requirement).           The dissent

asserts that “cooperation with a criminal implied consent regime



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yields real and voluntary consent that excuses officers from

obtaining a warrant.”      Dissent at 14.     This assertion

essentially treats compliance with the implied consent statute

as one and the same as the constitutionally valid, voluntary

consent required by HRS § 291E-11(b). 46        However, the question of

whether the implied consent statute is adhered to is separate

and distinct from the constitutional inquiry into whether there

is actual consent to BAC testing under HRS § 291E-11(b).

Williams v. State, 771 S.E.2d 373, 376-77 (Ga. 2015).             The

constitutional dimension of consent, therefore, overlays the

inquiry into whether the implied consent statute is technically

complied with.     Id.

            The dissent effectively renders every warrantless BAC

test automatically valid for purposes of the Fourth Amendment

and article I, section 7 so long as it is conducted in

conformity with the implied consent statute and even if other

facts and circumstances would otherwise preclude a finding of

actual consent.     See Dissent at 27—28.       By ignoring the salient

constitutional component of the inquiry, the dissent thus

creates a per se exception to the warrant requirement. 47            Dissent


      46
            Such treatment is incorrect especially because implied consent
statutes do “not take into account the totality of the circumstances present
in each case, but only consider certain facts.” Weems, 434 S.W.3d at 665.
      47
            Cases from appellate courts in other jurisdictions holding that
criminal sanctions do not necessarily render consent involuntary did not hold
                                                              (continued. . .)


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at 27—28.    The categorical nature of the dissent’s exception is

incompatible with the principle that the validity of warrantless

searches is contingent upon “all of the facts and circumstances

of the particular case.”       McNeely, 133 S. Ct. at 1560; see

Weems, 434 S.W.3d at 665 (holding that Texas’ implied consent

statute created an impermissible categorical exception to the

warrant requirement).

            Additionally, the dissent’s per se exception is

irreconcilable with an authoritative understanding of the

      (. . .continued)
that mere compliance with an implied consent statute per se satisfies the
requirements of actual consent. The inquiry in those cases still redounded
to whether, based on the totality of the circumstances, actual consent was
freely and voluntarily provided. See, e.g., People v. Harris, 184 Cal. Rptr.
3d 198, 213 (Cal. Ct. App. 2015), review denied (June 10, 2015) (holding that
criminal penalties by themselves do not coerce consent, but determining
“whether defendant’s submission in this case was freely and voluntarily given
under the normal totality of the circumstances analysis”); State v. Brooks,
838 N.W.2d 563, 569 (Minn. 2013) (holding that the implied consent statute
was complied with, but still analyzing the totality of the circumstances to
determine whether consent was voluntarily procured), cert. denied, 134 S. Ct.
1799 (2014); State v. Modlin, 867 N.W.2d 609, 619 (Neb. 2015) (stating “that
a court may not rely solely on the existence of an implied consent statute to
conclude that consent to a blood test was given for Fourth Amendment purposes
and that the determination of whether consent was voluntarily given requires
a court to consider the totality of the circumstances”); State v. Smith, 849
N.W.2d 599, 606 (N.D. 2014) (holding that consent is not coerced because
refusing a chemical test is criminally punishable, but proceeding to an
examination of “the totality of the circumstances” to determinate whether
consent was voluntarily given).

             To reiterate, searches contended by the State to be consensual
under Hawaii law are subject to “the most careful scrutiny” because failure
to adhere to this standard “would sanction the possibility of . . .
coercion.” Trainor, 83 Haw. at 262, 925 P.2d at 830. Hence, to the extent
that the foregoing cases from other jurisdictions did not find criminal
refusal sanctions inherently coercive, they are inconsistent with the right,
under article I, section 7, to free, voluntary, and meaningful decision-
making when waiver of constitutional rights is solicited, and they are in
derogation of such values embodied by Hawaii law as respect for human dignity
and the integrity of one’s person. See Kaluna, 55 Haw. at 366, 371 & n.7,
520 P.2d at 57, 60 & n.7; see also supra note 35.




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consent exception under both the Fourth Amendment and article I,

section 7, which requires a case-specific inquiry into the

totality of the circumstances to evaluate voluntariness.               See

Schneckloth, 412 U.S. at 227; State v. Russo, 67 Haw. 126, 137,

681 P.2d 553, 562 (1984); Ganal, 81 Hawaiʻi at 368, 917 P.2d at

380.    This case-specific analytical framework underlying consent

means that mere compliance with the dictates of the implied

consent statute does not necessarily, much less automatically,

equate to a finding of actual, voluntary consent under HRS §

291E-11(b).      Williams, 771 S.E.2d at 377.         Beyond mere statutory

compliance, it is clear that an approach that accounts for the

totality of the circumstances is invariably required to

determine the voluntariness and validity of consent.              Cf. State

v. Wulff, 337 P.3d at 581 (Idaho 2014) (concluding that

“irrevocable implied consent operat[ing] as a per se rule . . .

cannot fit under the consent exception because it does not

always analyze the voluntariness of that consent”).

                             V.      Conclusion

             In this case, Won sought to suppress evidence

recovered in a warrantless search.              The State has not contested

that the search was warrantless, but argued, inter alia, that it

was nonetheless consensual.         However, the State has not met its

burden to demonstrate that Won’s consent to be searched and the




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waiver of his constitutional right to be free of warrantless

searches was the product of his free and unconstrained choice.

            Under article I, section 7 of the Hawaiʻi Constitution,

where no “specifically established and well-delineated

exception[]” is present, a warrantless search is per se

unreasonable, and any results of that search must be excluded

from evidence.     Ganal, 81 Hawaiʻi at 368, 917 P.2d at 380.          Here,

because voluntary consent has not been demonstrated and no other

exception to the warrant requirement is applicable, the result

of Won’s breath test, the product of the warrantless search, is

not admissible into evidence. 48




      48
            Won additionally argued to the ICA and later to this Court that
he should have been informed of his rights under Miranda before the Implied
Consent Form was read to him, that he was denied his right to an attorney in
violation of HRS § 803-9 and that the Implied Consent Form misinformed him of
the sanctions for refusing to consent to a breath, blood, or urine test. In
light of our disposition in this case, we do not address these arguments or
that portion of the decision of the ICA addressing these arguments.




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              Based on the foregoing analysis, the district court

erred in not suppressing the result of Won’s breath test.              The

judgment on appeal of the ICA and the district court’s amended

judgment of conviction are vacated, and the case is remanded to

the district court for further proceedings consistent with this

opinion. 49

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 Hawaiʻi

Donald J. Ramsell
for Amicus Curiae
National College for DUI Defense

Kevin O’Grady
for Amicus Curiae
Hawaii Association of Criminal
Defense Lawyers




      49
             “When questions of state law are at issue, state courts
generally have the authority to determine the retroactivity of their own
decisions.” Garcia, 96 Hawaiʻi at 211, 29 P.3d at 930. This is the first
time that we announce the constitutional principle that the threat of
criminal sanctions inherently precludes a finding of voluntariness in the
context of the consent exception to the warrant requirement. As such, this
decision applies only to this case and to all cases pending on direct appeal
or not yet final at the time that this decision is rendered. By final, we
mean those cases in which the judgment of conviction has been rendered and
the availability of appeal and certiorari has elapsed. Id. at 214, 29 P.3d
at 933.




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