***   NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***




                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-13-0000410
                                                               23-FEB-2016
                                                               08:24 AM
                             SCWC-13-0000410

            IN THE SUPREME COURT OF THE STATE OF HAWAII


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

                                     vs.

                           ELIAS A.M. PARKER,
                    Petitioner/Defendant-Appellant.


          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-13-0000410; CASE NO. 1DTA-11-04895)

                       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 Elias A.M. Parker seeks

review of the Intermediate Court of Appeals’ (“ICA”) September

2, 2014 Judgment on Appeal, entered pursuant to its May 28, 2014

Summary Disposition Order, which affirmed the District Court of

the First Circuit’s (“district court”) March 19, 2013 Judgment

of Guilty Conviction and Sentence (“district court judgment”).1

The district court found Parker guilty of Operating a Vehicle


      1
           The Honorable Michael A. Marr presided.
***   NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER    ***


Under the Influence of an Intoxicant (“OVUII”), in violation of

Hawaii Revised Statutes (“HRS”) § 291E-61(a)(3) (Supp. 2010).2

We accepted Parker’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, Parker was taken to

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

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

alcohol content reading of 0.162 grams of alcohol per 210 liters


      2
           HRS § 291E-61(a)(3) (Supp. 2010) provides in relevant part:

           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: . . . [w]ith .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
***   NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


of breath.    Parker filed a motion to suppress the breath test

results, arguing that he did not knowingly or voluntarily

consent to breath or blood testing.         The district court denied

the motion.    The ICA affirmed the district court’s denial of

this motion to suppress.       On certiorari, Parker contends, inter

alia, that he did not constitutionally consent to the breath

test because “[t]elling someone that [he or she] must consent to

a 4th Amendment search or face 30 days in jail simply is not

consent under the 4th Amendment.”

           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

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

and the ICA erred by concluding that the district court properly

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

Accordingly, Parker’s OVUII conviction cannot stand.

           IT IS HEREBY ORDERED that the ICA’s September 2, 2014

Judgment on Appeal and the district court judgment are vacated,

and the case is remanded to the district court for further

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


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

Won.

            DATED:    Honolulu, Hawaii, February 23, 2016.

Jonathan Burge                          /s/ Sabrina S. McKenna
for petitioner
                                        /s/ Richard W. Pollack
Brian R. Vincent
for respondent                          /s/ Michael D. Wilson

Robert Nakatsuji
for amicus curiae
Attorney General of
the State of Hawaii




                                       4
