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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-12-0001072
                                                               01-APR-2016
                                                               10:12 AM




                              SCWC-12-0001072

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

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

                                     vs.

                        KEVIN K.T. GUARD,
                Petitioner/Defendant-Appellant.
________________________________________________________________

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-12-0001072; CASE NO. 1DTA-11-05472)

                        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 Kevin K.T. Guard seeks

review of the Intermediate Court of Appeals’ (ICA) July 2, 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) Notice of Entry of Judgment
***   NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER     ***


and/or Order and Plea/Judgment entered on November 15, 2012.1

The district court found Guard 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 Guard’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, Guard 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,

                                      2
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Guard elected to take a breath test, which resulted in a breath

alcohol content reading of 0.184 grams of alcohol per 210 liters

of breath.    In his motion to suppress the breath test results

before the district court and on certiorari, Guard contends that

(1) he was subject to custodial interrogation and should have

been informed of his Miranda rights guaranteed by Article I,

Section 10 of the Hawaiʻi Constitution; (2) his statutory right

to an attorney was violated; and (3) the wording of the implied

consent form misinformed Guard of the sanctions.4

            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 Won, the result of Guard’s breath

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

            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.
      4
            Included in this third argument raised before the district court,
Guard contended that the police officers’ warnings and advisements based on
the implied consent form were coercive and Guard did not make a knowing and
intelligent decision to submit to breath alcohol testing. The district court
denied his motion to suppress, and the ICA affirmed the district court’s
ruling.

                                      3
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by concluding that the district court properly denied Guard’s

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

OVUII conviction cannot be upheld.

             IT IS HEREBY ORDERED that the ICA’s July 2, 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 1, 2016.

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




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