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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000814
                                                              26-FEB-2016
                                                              10:46 AM



                            SCWC-12-0000814

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


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

                                    vs.

                            BRADFORD LING,
                   Petitioner/Defendant-Appellant.


         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-12-0000814; CASE NO. 3DTA-12-00083)

                    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 Bradford Ling seeks

review of the July 16, 2014 Judgment on Appeal of the

Intermediate Court of Appeals (ICA), entered pursuant to its May

23, 2014 Summary Disposition Order, which affirmed the August 27,

2012 Judgment of the District Court of the Third Circuit

(district court).1    The district court found Ling guilty of

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



     1
          The Honorable Andrew P. Wilson presided.
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in violation of Hawai#i Revised Statutes (HRS) § 291E-61(a)(3)

(Supp. 2010).2    This court accepted Ling’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, Ling was taken to the

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


     2
          HRS § 291E-61(a)(3) (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:

          . . .

          (3) With .08 or more grams of alcohol per two hundred
          ten liters of breath . . . .

     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.

          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.

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

breath alcohol content reading of 0.138 grams of alcohol per 210

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

results before the district court and on certiorari, Ling

contends that (1) his Miranda rights under Article I, Section 10

of the Hawai#i Constitution were violated when, while in custody,

he was asked by the police, without Miranda warnings, if he

wanted to refuse to take a blood alcohol test, which was likely

to incriminate himself,4 and (2) his statutory right to an

attorney was violated.

           In State v. Won, 136 Hawai#i 292, 312, 361 P.3d 1195,

1215 (2015), we held that the “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 Ling’s breath test was the

product of a warrantless search, and the ICA erred by concluding

that the district court properly denied Ling’s motion to suppress


     4
            Included in this first argument raised before the ICA, Ling
contended that the police officers’ warnings and advisements based on the
implied consent form were coercive and that he did not knowingly and
voluntarily submit to the 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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the breath test result.     Accordingly, Ling’s OVUII conviction

cannot stand.

          IT IS HEREBY ORDERED that the ICA’s July 16, 2014

Judgment on Appeal and the district court’s August 27, 2012

Judgment are vacated, and the case remanded to the district court

for further proceedings consistent with this court’s opinion in

Won.

          DATED: Honolulu, Hawai#i, February 26, 2016.

Jonathan Burge                           /s/ Sabrina S. McKenna
for petitioner
                                         /s/ Richard W. Pollack
Kelden B.A. Waltjen
for respondent                           /s/ Michael D. Wilson

Robert T. Nakatsuji
for amicus curiae
Attorney General of the
State of Hawai#i




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