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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-13-0000023
                                                               04-MAR-2016
                                                               11:44 AM




                              SCWC-13-0000023

          IN THE SUPREME COURT OF THE STATE OF HAWAII
________________________________________________________________

                            STATE OF HAWAII,
                     Respondent/Plaintiff-Appellee,

                                     vs.

                        MATTHEW ELBERSON,
                Petitioner/Defendant-Appellant.
________________________________________________________________

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-13-0000023; CASE NO. 1DTA-12-00939)

                        SUMMARY DISPOSITION ORDER
                (By: McKenna, Pollack, and Wilson, JJ.,
                with Wilson, J., concurring separately,
                     and Nakayama, J., dissenting,
                  with whom Recktenwald, C.J., joins)

            Petitioner/Defendant-Appellant Matthew Elberson seeks

review of the Intermediate Court of Appeals’ (ICA) July 9, 2015

Judgment on Appeal, entered pursuant to its May 29, 2015 Summary

Disposition Order, which affirmed the District Court of the

First Circuit’s (district court) Judgment entered on December
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17, 2012.1     The district court found Elberson guilty of Operating

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

violation of Hawaiʻi Revised Statutes (HRS) § 291E-61(a)(3)

(Supp. 2012).2       We accepted Elberson’s Application for Writ of

Certiorari, and we now vacate the ICA’s Judgment on Appeal and

the district court’s Judgment and remand the case to the

district court for further proceedings.

             After being arrested for OVUII, Elberson was taken to

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


      1
             The Honorable David W. Lo presided.
      2
             HRS § 291E-61(a)(3) provides in relevant part:

             (a)   A person commits the offense of operating a vehicle
             under the influence of an intoxicant if the person operates
             or assumes actual physical control of a vehicle:

             . . .

                   (3)   With .08 or more grams of alcohol per two
             hundred ten liters of breath. . . .
      3
            The form, titled “Use of Intoxicants While Operating a Vehicle
Implied Consent for Testing,” stated in relevant part:

             1. ___ Any person who operates a vehicle upon a public
             way, street, road, or highway or on or in the waters of the
             State shall be deemed to have given consent to a test or
             tests for the purpose of determining alcohol concentration
             or drug content of the persons [sic] breath, blood, or
             urine as applicable.

             2. ___ You are not entitled to an attorney before you
             submit to any tests 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,
             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

                                       2
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On the form, Elberson indicated that he refused to take either a

breath test or a blood test.        The police officer then read

Elberson a second form, titled “Sanctions for Use of Intoxicants

While Operating a Vehicle & Implied Consent for Testing.”               After

being informed of the sanctions for refusal, Elberson elected to

take a breath test.      The breath test resulted in a breath

alcohol content reading of 0.167 grams of alcohol per 210 liters

of breath.    On certiorari, Elberson contends (1) the State did

not prove the elements of the crime; (2) the ICA erred in

affirming the district court’s admission of the breath test

results based on State v. Won, 134 Hawaiʻi 59, 332 P.3d 661 (App.

2014); (3) the State failed to lay a sufficient foundation to

admit the breath test; and (4) the State was not permitted to

file foundational documents with the trial court that it then

relied on to request judicial notice.          As part of his second

argument, Elberson asserts he was coerced to agree to the breath

test by the threat of imprisonment for refusal to submit to a

breath, blood, or urine test.

            In State v. Won, 136 Hawaiʻi 292, 312, 361 P.3d 1195,

1215 (2015), we held that “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


            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.

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free and unconstrained choice,” and, thus, a defendant’s

decision to submit to testing after being read the implied

consent form “is invalid as a waiver of his right not to be

searched.”     In accordance with Won, the result of Elberson’s

breath test was the product of a warrantless search, and the ICA

erred by concluding that Elberson’s claim that the breath test

results should have been suppressed lacked merit.             Accordingly,

Elberson’s OVUII conviction cannot be upheld.

             IT IS HEREBY ORDERED that the ICA’s July 9, 2015

Judgment on Appeal and the district court’s Judgment are

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

further proceedings consistent with this court’s opinion in

Won.

             DATED:   Honolulu, Hawaii, March 4, 2016.

Richard L. Holcomb                      /s/ Sabrina S. McKenna
for petitioner
                                        /s/ Richard W. Pollack
James M. Anderson
For respondent                          /s/ Michael D. Wilson




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