***   NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***




                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-12-0000763
                                                               21-APR-2016
                                                               10:40 AM




                              SCWC-12-0000763

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

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

                                     vs.

                        LOGAN I. FRANCO,
                Petitioner/Defendant-Appellant.
________________________________________________________________

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-12-0000763; CASE NO. 2DTA-11-00364)

                        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 Logan I. Franco seeks

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

Judgment on Appeal, entered pursuant to its May 28, 2015 Summary

Disposition Order, as corrected on July 9, 2015, which affirmed

the District Court of the Second Circuit’s (district court)
***   NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


Notice of Entry of Judgment and/or Order and Plea/Judgment

entered on July 31, 2012.1       The district court found Franco

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 Franco’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, Franco was read an

implied consent form.3      Franco elected to take a breath test,


      1
            The Honorable Blaine J. Kobayashi presided over Franco’s motion
to suppress evidence and the Honorable Kelsey T. Kawano presided over
Franco’s trial.
      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 “Operating a Vehicle Under the Influence of an
Intoxicant Implied Consent,” 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 person’s breath, blood, or urine as
            applicable.

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

                                      2
***   NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


which resulted in a breath alcohol content reading of 0.081

grams of alcohol per 210 liters of breath.           Franco filed a

motion to suppress the breath test result on the basis that his

Fourth Amendment rights (among other constitutional rights) were

violated.    The district court denied the motion.          The ICA

affirmed the district court’s denial of Franco’s motion to

suppress, relying on its opinion in State v. Won, 134 Hawaiʻi 59,

332 P.3d 661 (App. 2014).       On certiorari, Franco contends that

(1) his breath test result was obtained in violation of his

constitutional and statutory rights to counsel; (2) the district

court’s admission of certain foundational exhibits violated

Franco’s confrontation rights; (3) the ICA erred in holding

Franco waived his right to be present at trial; and (4) Franco’s

breath test result was insufficient to sustain an OVUII

conviction.    Franco noted in his Application that this court had

accepted certiorari in State v. Won, SCWC-12-0000858.

            In State v. Won, No. SCWC-12-0000858, 2015 WL

10384497, at *16 (Haw. Nov. 25, 2015), we held that “coercion

engendered by the Implied Consent Form runs afoul of the

constitutional mandate that waiver of a constitutional right may


            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 a
            fine of up to $1,000 or the sanction of 291E-65, if
            applicable. In addition, you shall also be subject to the
            procedures and sanctions under Chapter 291E, part III.

                                      3
***    NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


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 Won, the result

of Franco’s breath test was the product of a warrantless search,

and the ICA erred in concluding that the district court properly

denied Franco’s motion to suppress the breath test result.

Accordingly, Franco’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, April 21, 2016.

Jonathan Burge                          /s/ Sabrina S. McKenna
for petitioner
                                        /s/ Richard W. Pollack
Artemio C. Baxa
for respondent                          /s/ Michael D. Wilson




                                       4
