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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0005454
                                                              21-JAN-2016
                                                              08:27 AM




                            SCWC-13-0005454

          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________


                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,


                                    vs.


                           WAYNE LEE, SR.,
                   Petitioner/Defendant-Appellant.

________________________________________________________________

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-13-0005454; CR. NO. 12-1-0161)

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

          Petitioner/Defendant-Appellant Wayne Lee, Sr. seeks

review of the Intermediate Court of Appeals’ (ICA) June 5, 2015

Judgment on Appeal, entered pursuant to its May 5, 2015 Summary

Disposition Order, which affirmed the Circuit Court of the Third

Circuit’s (circuit court) November 6, 2013 Judgment (circuit
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court judgment). 1          Lee entered a conditional plea to the charges

of Habitually Operating a Vehicle Under the Influence of an

Intoxicant (HOVUII), in violation of Hawaiʻi Revised Statutes

(HRS) § 291E-61.5 (2007), 2 and of Driving While License Suspended

or Revoked, in violation of HRS § 286-132 (2007). 3                    We accepted

Lee’s Application for Writ of Certiorari, and we now vacate the

ICA’s Judgment on Appeal and the circuit court judgment as to

both charges and remand the case to the circuit court for

further proceedings.

      1
            The Honorable Glenn S. Hara presided.
      2
            HRS § 291E-61.5 (2007) provides in relevant part:

            (a)      A person commits the offense of habitually operating
                  a vehicle under the influence of an intoxicant if:

                     (1)      The person is a habitual operator of a vehicle
                           while under the influence of an intoxicant; and

                     (2)      The person operates or assumes actual physical
                           control of a vehicle:

           . . . .

                              (C)      With .08 or more grams of alcohol per two
                                    hundred ten liters of breath. . . .
      3
            HRS § 286-132 (2007) states in pertinent part:

            Except as provided in section 291E-62, no resident or
            nonresident whose driver’s license, right, or privilege to
            operate a motor vehicle in this State has been canceled,
            suspended, or revoked may drive any motor vehicle upon the
            highways of this State while the license, right, or
            privilege remains canceled, suspended, or revoked.

Although no specific issue concerning HRS § 286-132 was raised in the
Application for Writ of Certiorari, the record indicates that Lee entered a
conditional plea to both charges.




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           After being arrested for HOVUII and Driving While

License Suspended or Revoked, Lee was taken to the police

station, where he was read an implied consent form. 4          Lee elected

to take a breath test, which resulted in a breath alcohol

content reading of 0.091 grams of alcohol per 210 liters of

breath.   Lee filed a motion to suppress evidence of the breath

test based on, inter alia, a violation of the Fourth Amendment

of the United States Constitution, which the circuit court

denied.   Lee subsequently entered a conditional guilty plea as

to both charges that allowed him to appeal the denial of his

motion to suppress the breath alcohol test.          The ICA affirmed

the circuit court’s denial of the motion to suppress.

     4
           The form read in relevant part:

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

           2. ___ You are not entitled to an attorney before you submit to
              any tests [sic] or tests to determine your alcohol and/or drug
              content.

           3. ___ You may refuse to submit to a breath or blood test, or
              both for the purpose of determining alcohol concentration
              and/or blood or urine test, or both for the purpose of
              determining drug content, none shall be 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.




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          On certiorari, Lee contends, inter alia, that he did

not constitutionally consent to the breath test under the Fourth

Amendment of the United States Constitution or Article I,

Section 7 of the Hawaiʻi Constitution because his consent was

coerced by the implied consent form, which conveyed a threat of

imprisonment and significant punishment for refusal to submit to

a breath, blood, or urine test, under HRS § 291E-69 (Supp.

2010).

          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

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 State v. Won, the result of Lee’s

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

erred by concluding that the circuit court properly denied Lee’s

motion to suppress the breath test result.         Accordingly, Lee’s

conviction as to both charges cannot be upheld.

          IT IS HEREBY ORDERED that the ICA’s June 5, 2015

Judgment on Appeal and the circuit court judgment are vacated,

and the case is remanded to the circuit court with instructions

to enter an order granting Lee’s motion to suppress and to allow

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Lee to withdraw his conditional guilty plea as to both charges.

See State v. Williams, 114 Hawaiʻi 406, 407, 163 P.3d 1143, 1144

(2007).

          DATED:    Honolulu, Hawaiʻi, January 21, 2016.

Taryn R. Tomasa                       /s/ Sabrina S. McKenna
for petitioner
                                      /s/ Richard W. Pollack

Kevin S. Hashizaki                    /s/ Michael D. Wilson
for respondent




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