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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0000002
                                                              26-FEB-2016
                                                              10:36 AM



                                    SCWC-13-0000002

             IN THE SUPREME COURT OF THE STATE OF HAWAI#I


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

                                               vs.

                               REED W. SAILOLA,
                       Petitioner/Defendant-Appellant.


           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-13-0000002; CASE NO. 1DTA-11-03671)

                    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 Reed W. Sailola seeks

review of the July 2, 2015 Judgment on Appeal of the Intermediate

Court of Appeals (ICA), entered pursuant to its May 29, 2015

Summary Disposition Order, which affirmed the December 6, 2012

Judgment of the District Court of the First Circuit (district

court).1   The district court found Sailola guilty of Operating a

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



     1
            The Honorable David Lo presided.
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violation of Hawai#i Revised Statutes (HRS) § 291E-61(a)(3)

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

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

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

alcohol content reading of 0.117 grams of alcohol per 210 liters



     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.

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

before the district court and on certiorari, Sailola 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; (2) his statutory right to an attorney was

violated; and (3) the wording of the implied consent form

misinformed Sailola of the sanctions.4

                  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 Sailola’s breath test was the

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

that the district court properly denied Sailola’s motion to

suppress the breath test result.                               Accordingly, Sailola’s OVUII


         4
                   Included in this third argument raised before the district court and the ICA, Sailola 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.

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conviction cannot stand.

          IT IS HEREBY ORDERED that the ICA’s July 2, 2015

Judgment on Appeal and the district court’s December 6, 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
Brian R. Vincent
for respondent                           /s/ Michael D. Wilson

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




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