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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-14-0000695
                                                              04-MAR-2016
                                                              07:58 AM




                            SCWC-14-0000695

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


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

                                    vs.

                           FRED Y. MIKAWA,
                   Petitioner/Defendant-Appellant.


         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-14-0000695; CASE NO. 1DTA-13-05574)

                      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 Fred Y. Mikawa seeks

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

2015 Judgment on Appeal, entered pursuant to its August 27, 2015

Summary Disposition Order, which affirmed the District Court of

the First Circuit’s (district court) February 27, 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  ***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***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 Mikawa guilty of Operating

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

violation of Hawai#i Revised Statutes (HRS) § 291E-61(a)(3)

(Supp. 2010).2    We accepted Mikawa’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, Mikawa was taken to

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


     1
          The Honorable Faye M. Koyanagi presided.
     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

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

alcohol content reading of 0.130 grams of alcohol per 210 liters

of breath.     Mikawa filed several motions to suppress statements

and evidence of his breath test for alcohol concentration,

arguing, inter alia, that the test was based on his involuntary

consent in violation of the Fourth Amendment of the United

States Constitution and Article I, Section 7 of the Hawaiʻi

Constitution.     The district court denied all of Mikawa’s motions

to suppress, and the ICA affirmed the district court’s denial of

these motions.     On certiorari, Mikawa contends that he did not

constitutionally consent to the breath test because his consent

was coerced by the implied consent form, which conveyed a threat

of imprisonment and significant punishment for refusal to submit

to a breath, blood, or urine test, under HRS § 291E-69 (Supp.

2010).   He further contends that without the evidence from the

breath test, there was not sufficient facts to sustain his

conviction under HRS § 291E-61(a)(3).

             In State v. Won, 136 Hawaiʻi 292, 3122, 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



               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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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

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

and the ICA erred by concluding that the district court properly

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

Accordingly, Mikawa’s OVUII conviction cannot be upheld.

             IT IS HEREBY ORDERED that the ICA’s October 9, 2015

Judgment on Appeal and the district court judgment are vacated,

and the case is remanded to the district court for further

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

Won.

             DATED:   Honolulu, Hawai#i, March 4, 2016.

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




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