  ***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***




                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-14-0000606
                                                              21-JAN-2016
                                                              08:40 AM




                            SCWC-14-0000606

          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________

                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                        ALAN S. TERASAKO,
                 Petitioner/Defendant-Appellant.
________________________________________________________________

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-14-0000606; CASE NO. 1DTA-13-03174)

                      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 Alan S. Terasako seeks

review of the Intermediate Court of Appeals’ (ICA) July 7, 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) February 25, 2014 Notice of

Entry of Judgment and/or Order and Plea/Judgment (district court
   ***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


judgment).1    The district court found Terasako guilty of

Operating a Vehicle Under the Influence of an Intoxicant

(OVUII), in violation of Hawaiʻi Revised Statutes (HRS) § 291E-

61(a)(4) (Supp. 2010).2      We accepted Terasako’s Application for

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

Appeal and the district court judgment and remand the case to

the district court for further proceedings.

           After being arrested for OVUII, Terasako was taken to

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




     1
           The Honorable Paul B.K. Wong presided.
     2
           HRS § 291E-61(a)(4) (Supp. 2010) 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:

           . . .

                 (4)   With .08 or more grams of alcohol per one hundred
           milliliters or cubic centimeters of blood.

The district court also concluded that there was insufficient evidence to
establish a violation of HRS § 291E-61(a)(1) and that Terasako was “not
guilty of violating 291E-61(a)(1).” Consequently, Terasako may not be re-
prosecuted under HRS § 291E-61(a)(1). See State v. Spearman, 129 Hawaiʻi 146,
151, 296 P.3d 359, 364 (2013).
     3
           The form read in relevant part:

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


                                                             (continued . . .)


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Terasako elected to take a breath test, but it was later

discovered that he was unable to provide a sufficient amount of

breath sample.      He was read again the implied consent form and

subsequently chose to give a blood sample.          The result of

Terasako’s blood test yielded 0.12 grams ethanol per 100 cubic

centimeters of whole blood.       At trial, Terasako objected to the

admission of the blood test results, contending, inter alia,

that the portion of the implied consent form that apprised him

of the criminal refusal penalties was contrary to his Fourth

Amendment right to withdraw his consent to a warrantless search.

On certiorari, Terasako contends that the district court erred

in admitting his blood alcohol test results into evidence in

violation of his Fourth and Fifth Amendment rights.

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

1215 (2015), we held that “coercion engendered by the Implied

(. . . continued)

            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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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

Terasako’s blood test was the product of a warrantless search,

and the ICA erred by concluding that the district court properly

denied Terasako’s motion to suppress the blood test result.

Accordingly, Terasako’s OVUII conviction may not be upheld.

             IT IS HEREBY ORDERED that the ICA’s July 7, 2015

Judgment on Appeal and the district court judgment are vacated,

and the case is remanded to the district court for proceedings

consistent with this court’s opinion in State v. Won.

             DATED:   Honolulu, Hawaiʻi, January 21, 2016.

Daniel Kawamoto                       /s/ Sabrina S. McKenna
for petitioner
                                      /s/ Richard W. Pollack

James M. Anderson                     /s/ Michael D. Wilson
for respondent




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