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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-12-0001025
                                                               10-MAR-2016
                                                               09:29 AM
                             SCWC-12-0001025

            IN THE SUPREME COURT OF THE STATE OF HAWAII


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

                                     vs.

                          MICHAEL A. BAYUDAN,
                    Petitioner/Defendant-Appellant.


          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-12-0001025; CASE NO. 1DTA-11-04027)

                       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 Michael A. Bayudan seeks

review of the Intermediate Court of Appeals’ (“ICA”) October 28,

2015 Judgment on Appeal, entered pursuant to its September 28,

2015 Summary Disposition Order, which affirmed the District

Court of the First Circuit’s (“district court”) October 25, 2012

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

(“district court judgment”).1       The district court found Parker


      1
           The Honorable David W. Lo presided.
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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 Bayudan’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, Bayudan was taken to the

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

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




      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
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breath alcohol content reading of 0.117 grams of alcohol per 210

liters of breath.

      The State charged Bayudan with OVUII in violation of HRS §

291E-61(a)(1) and/or (a)(3).        At a hearing before trial, the

State told the district court that it would be proceeding

against Bayudan only on the HRS § 291E-61(a)(3) charge.

Bayudan then orally moved to suppress the breath test results,

arguing that he did not voluntarily consent to breath testing.

The district court denied the motion.         The district court

ultimately found Bayudan guilty of violating HRS § 291E-

61(a)(3).

      Bayudan appealed, raising points of error that are not

necessary to consider upon certiorari.4         The ICA affirmed the

district court’s judgment.       On certiorari, Bayudan asks this

court to consider the following question:

            Whether [Bayudan’s] election to submit to the breath test
            was consensual after his arrest for [OVUII] when [he] was
            given a choice that he could either submit to a test for
            the purpose of determining alcohol concentration, or if he
            did not submit, he would be arrested, prosecuted, and
            subject to thirty days of imprisonment for the crime of
            refusal to submit to a breath, blood, or urine test, in
            light of this Court’s Opinion in State v. Won, SCWC-12-
            0000858 (2015)?




4
      One of Bayudan’s points of error was, “There [wa]s insufficient
evidence that the intoxicant control roadblock was established and
implemented in accordance with the minimum standards and guidelines provided
in H.R.S. § 291E-19 and H.R.S. § 291E-20.” The ICA rejected the argument.
State v. Bayudan, CAAP-12-0001025 (App. Sept. 28, 2015)(SDO) at 3. Although
Bayudan raises this issue again on certiorari, we dispose of this appeal
under Won and therefore do not need to reach, and do not reach, this issue.

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       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 Bayudan’s breath

test was the product of a warrantless search, and the district

court erred in denying Bayudan’s motion to suppress the breath

test result.     Accordingly, Bayudan’s OVUII conviction cannot

stand.

       IT IS HEREBY ORDERED that the ICA’s October 28, 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 10, 2016.


Brian S. Kim                            /s/ Sabrina S. McKenna
for petitioner
                                        /s/ Richard W. Pollack
Stephen K. Tsushima
for respondent                          /s/ Michael D. Wilson




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