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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-14-0001060
                                                              21-APR-2017
                                                              08:13 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                           JOHN G. SCALERA,
                   Petitioner/Defendant-Appellant,


                            SCWC-14-0001060

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-14-0001060; CASE NO. 1DTA-13-02681)

                             APRIL 21, 2017

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

          This case concerns the right of an arrested person

under statutory law to communicate and consult with counsel.

The defendant in this case, following his arrest for operating a

vehicle under the influence of an intoxicant and prior to

deciding whether to submit to alcohol concentration testing, was

affirmatively advised that he was not entitled to an attorney

before submitting to any tests to determine his breath or blood
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alcohol concentration.      We hold that this advisory is

inconsistent with Hawaii’s statutory right to access counsel,

but we conclude under the facts of this case that the

defendant’s subsequent refusal to submit to testing is not

subject to suppression.

                           I.        BACKGROUND

                      A.        June 28, 2013 Arrest

          On June 28, 2013, at about 11:00 p.m., John Scalera

was stopped while driving westbound on Kailua Road by Honolulu

Police Department (HPD) Officers Lordy Cullen and Michael Krekel

for weaving back and forth over the roadway’s solid and broken

white lines.   Officer Cullen informed Scalera why he had stopped

him, and Scalera responded that he had consumed “a few drinks

with his friends,” was travelling home, and was “good to drive.”

Officer Cullen detected a strong odor of alcohol emitting from

Scalera’s breath and noticed that Scalera was “flushed red in

his face.”   Officer Krekel administered the standardized field

sobriety test to Scalera.         Based on the test results, Scalera

was arrested and transported to the Kailua Police Station.

          After being booked by the desk sergeant at the

station, Officer Krekel read to Scalera HPD Form 396K, titled

“Use of Intoxicants While Operating a Vehicle Implied Consent



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for Testing” (implied consent form).        The top half of the

implied consent form stated as follows:

          Pursuant to chapter 291E, Hawaii Revised Statutes (HRS),
          Use of Intoxicants While Operating a Vehicle, you are being
          informed of the following:

          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 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,
          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.

(Emphasis added).    Scalera initialed each of the three

paragraphs located in the top portion of the implied consent

form.

          The bottom half of the implied consent form set forth

the following types of tests to which a defendant could consent:

          ALCOHOL CONCENTRATION

          ____   AGREED TO TAKE A BREATH TEST AND REFUSED THE URINE
          TEST

          ____   AGREED TO TAKE A BLOOD TEST AND REFUSED THE BREATH
          TEST

          ____   AGREED TO TAKE BOTH A BREATH TEST AND A BLOOD TEST

          ____   REFUSED TO TAKE EITHER A BREATH TEST OR A BLOOD TEST

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            . . . .

            I, THE ARRESTEE/RESPONDENT, ACKNOWLEDGE THAT I MADE THE
            CHOICE(S) INDICATED ABOVE AND WAS INFORMED OF THE
            INFORMATION IN THIS REPORT.

After Officer Krekel read aloud the four testing options,

Scalera stated that he “wasn’t going to take anything,” which

Officer Krekel understood to “count[] as a refusal.”              On the

form next to these options, Officer Krekel wrote “refused to

initial.”    At this point, Officer Krekel repeated to Scalera

that his options were to (1) take a breath test and refuse the

blood test, (2) take a blood test and refuse the breath test,

(3) take both the breath test and blood test, or (4) refuse both

the breath test and the blood test.         Upon asking Scalera if he

understood, Scalera again verbally responded, “I’m not taking

anything.”

            Officer Krekel then read to Scalera HPD Form 396B-1,

titled “Sanctions for Use of Intoxicants While Operating a

Vehicle & Implied Consent for Testing” (sanctions form).1                After


     1
            The sanctions form states, in relevant part, as follows:

            I, Michael Krekel, a police officer, swear that the
            following statements were read to the arrestee:

            Pursuant to chapter 291E, Hawaii Revised Statutes (HRS),
            Use of Intoxicants While Operating a Vehicle, you are being
            informed of the following:

            1. ____ If you choose to take an alcohol concentration
            test and the test result is below the legal limit of 0.08,

                                                              (continued. . .)
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reading the sanctions form to Scalera, Officer Krekel initialed

next to the various sections that Scalera “refused to initial

and also sign.”       Officer Krekel asked Scalera if he understood

what was read to him from the sanctions form, and Scalera did

not respond.       When Officer Krekel informed Scalera that his

refusal to sign constituted a refusal to submit to testing,

(. . .continued)

            the administrative revocation proceedings will be
            terminated with prejudice.

            2. ____ If you are under twenty-one years of age it is
            unlawful for you to operate a vehicle upon a public way,
            street, road, or highway or on or in the waters of the
            State while under the influence of a measurable amount of
            alcohol (0.02 or greater, but less than 0.08).

            3. ____ If you choose to take a drug test and the test
            fails to indicate the presence of one or more drugs in an
            amount sufficient to impair your ability to operate a
            vehicle in a careful and prudent manner, the administrative
            revocation proceedings will be terminated with prejudice.

            4. ____ The test or tests to determine your drug content
            shall also be admissible in determining your alcohol
            concentration, but your submission to testing for drugs
            shall not substitute for alcohol concentration tests.

            5. ____ If you are convicted of operating a vehicle under
            the influence of intoxicants or have your vehicle license
            or privilege to operate a vessel suspended or revoked, you
            may be ordered to reimburse the county for the cost of a
            blood or urine test or both.

            . . . .

            11. ____ Criminal charges may be filed against you under
            part IV, Prohibited Conduct, section 291E.

            12. ____ If you refuse to be tested, criminal charges may
            be filed against you under part IV, Prohibited Conduct,
            section 291E or if applicable, you may be subject to the
            sanctions of section 291E-65.



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Scalera asked Officer Krekel to go over the sanctions form from

the first to the last page.2       Officer Krekel handed Scalera the

sanctions form, but according to Officer Krekel, Scalera “didn’t

want to take a test so that also constituted a refusal.”

            Officer Krekel did not hear Scalera ask for an

attorney.    Officer Krekel noted, however, that Scalera “could

have” asked for an attorney, but that he did not “recall

[Scalera] saying that.”       Officer Krekel stated that “[i]t

wouldn’t have mattered anyways because the forms state that

you’re not entitled to an attorney during the implied consent.”

            B.    District Court and Appellate Proceedings

            On July 1, 2013, the State of Hawaiʻi filed a written

complaint in the District Court of the First Circuit, Kaneohe

Division (district court), charging that on June 28, 2013, John

Scalera committed the offense of operating a vehicle under the

influence of an intoxicant (OVUII) in violation of Hawaii

Revised Statutes (HRS) § 291E-61(a)(1)3 (count 1) and the offense



     2
            HPD Sergeant Dela Cruz observed Officer Krekel read the implied
consent form to Scalera. Sergeant Dela Cruz testified that he did not recall
if Officer Krekel reread the implied consent form after Scalera requested the
second reading, but that if Officer Krekel had reread the form, then he
(Sergeant Dela Cruz) would have noted the second reading in his written
report, which he had not.
     3
            HRS § 291E-61 provides in relevant part:


                                                              (continued. . .)
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of refusal to submit to a breath, blood, and/or urine test in

violation of HRS § 291E-684 (count 2).         If convicted of the OVUII

charge, Scalera was subject to sentencing as a first-time

offender pursuant to HRS § 291E-61(b)(1) (Supp. 2012).

            Prior to trial, Scalera filed a motion to suppress

seeking to preclude the use of “all evidence indicating that, on

or about June 28, 2013, [Scalera] was operating a vehicle under

the influence of an intoxicant . . . and refused to submit to

testing.”    Scalera alleged that this evidence was obtained in

violation of his rights, citing article I, section 7 of the

Hawaiʻi Constitution, the Fourth and Fourteenth Amendments to the




(. . .continued)

            (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:

                  (1) While under the influence of alcohol in an amount
            sufficient to impair the person’s normal mental faculties
            or ability to care for the person or guard against
            casualty. . . .

HRS § 291E-61(a)(1) (Supp. 2012).
      4
            At the time Scalera was charged, HRS § 291E-68 stated as follows:

            Except as provided in section 291E-65, refusal to submit to
            a breath, blood, or urine test as required by part II is a
            petty misdemeanor.

HRS § 291E-68 (Supp. 2012) (repealed Apr. 26, 2016).



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United States Constitution, and HRS §§ 291E-11(b) (2007), 291E-

15 (2007), and 803-9 (1993).5

            In a memorandum in support of his motion, Scalera

argued that evidence in his case should be suppressed because he

was “preemptively and illegally denied” the right to consult

with counsel as provided by HRS § 803-9.          Specifically, Scalera

alleged that the implied consent form “provides an overbroad and

incorrect statement of law that no right to counsel exists prior

to making an informed consent decision, thereby ignoring the

rights afforded to [Scalera] under HRS § 803-9.”            Scalera

contended that because he was denied a reasonable opportunity to

consult with an attorney, he did not make a knowing and

intelligent decision with regard to his informed consent

options.    Scalera did not base the arguments in his memorandum

on any provisions of the Hawaiʻi Constitution or the United

States Constitution or contend that he had been unlawfully

stopped or interrogated by police.

            In its opposition memorandum, the State contended that

Scalera had no statutory right to consult with counsel under HRS

§ 803-9 prior to making his decision to refuse or submit to


     5
            The Honorable James H. Ashford presided over the motion to
suppress hearing.



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testing, citing State v. Severino, 56 Haw. 378, 380, 537 P.2d

1187, 1189 (1975).     The State submitted that reading the implied

consent form and administering breath or blood tests are “in the

nature of a booking procedure,” and therefore, a defendant does

not have any right to counsel during this time.           The State also

maintained that the implied consent form had already “adequately

informed” Scalera of the consequences of his refusal.

           An evidentiary hearing was held on Scalera’s motion.6

At the conclusion of the hearing, the district court denied

Scalera’s motion to suppress.7       In its oral ruling, the court

stated that it viewed the motion in large part based upon a

“defendant’s right to counsel” under HRS § 803-9.            The court

determined there was no violation of HRS § 803-9 because it was

not an “interrogation situation.”         The court also concluded that

Scalera understood his rights and the information on the implied

consent form and the sanctions form, and thus the court found

that Scalera understood the consequences of his decisions.               The

     6
            Three HPD officers testified for the State regarding the
circumstances leading to Scalera’s arrest and the events at the police
station as recounted above. Scalera did not testify or present any evidence.
     7
            Scalera’s counsel argued at the motion to suppress hearing that
Scalera did not understand the implied consent and sanctions forms, that
there was inconsistent police testimony with respect to his arrest and the
standardized field sobriety test administration, and that as a result, the
field sobriety test results and the implied consent form should be excluded
from evidence. Scalera did not present argument with respect to any alleged
constitutional violations.



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district court in its ruling did not address or make any

findings of fact or conclusions of law regarding the traffic

stop.

           Following a trial at which Scalera and several HPD

officers testified,8 the district court concluded that the State

had proved beyond a reasonable doubt the OVUII offense charged

in count 1 and the refusal offense charged in count 2.             On July

22, 2014, the district court entered its Notice of Entry of

Judgment and/or Order and Plea/Judgment (district court

judgment).9

           Scalera appealed the district court judgment to the

Intermediate Court of Appeals (ICA), arguing that the court had

erred in failing to determine in its motion to suppress ruling

whether the traffic stop was unlawful.          Scalera also contended

that the court had erred in denying his motion to suppress.

Specifically, Scalera maintained that his statutory right to

counsel under HRS § 803-9 had been violated and that the


     8
            At trial, Scalera testified that he did not understand portions
of the implied consent form, and he could not read the form because he did
not have his glasses. Scalera also testified that he asked for an attorney
during the reading of the implied consent form. Scalera did not indicate the
course of action that he may have taken had counsel been provided.
      9
            The Honorable Michael A. Marr presided. Scalera was sentenced to
various monetary sanctions, 72 hours of community service, a substance abuse
assessment, and a one-year license revocation.



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district court had erred in concluding otherwise.            He also

contended that the district court had erroneously concluded that

he was not subject to an interrogation implicating his Miranda

rights.10   In an April 29, 2016 Summary Disposition Order, the

ICA affirmed the district court judgment.          The ICA rejected

Scalera’s argument that the district court had failed to rule on

the lawfulness of the traffic stop, stating that Scalera failed

to raise an argument regarding the constitutional validity of

the stop before the district court.         Further, the ICA concluded

that Scalera failed to establish that the stop was in fact

unlawful and thus it was not plain error for the district court

to deny his motion to suppress.11




     10
            In his opening brief to the ICA and in his application for
certiorari to this court, Scalera acknowledged that he had not based his
motion to suppress on an alleged failure to provide him with Miranda
warnings. However, Scalera maintained that the district court’s mention of
the word “interrogation” in its oral ruling indicated that the court had
considered his contentions regarding a right to counsel and right against
self-incrimination.

            Similarly, Scalera recognized that he did not “specifically state
[before the district court] that evidence was obtained as a result of an
illegal traffic stop.” He contended, however, that he properly preserved
this argument on appeal because he cited article I, section 7 of the Hawaiʻi
Constitution in his motion to suppress and because testimony at the
suppression hearings implicated the lawfulness of the stop.
     11
            The ICA additionally determined that “Scalera did not preserve an
argument before the District Court that evidence should be suppressed because
of a violation of his Miranda rights,” and therefore, he had waived this
argument on appeal.



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          With respect to Scalera’s argument that he was denied

his right to counsel under HRS § 803-9, the ICA appears to have

concluded that this statute is only implicated following an

interrogation.    The ICA relied on its opinion in State v. Won,

134 Hawaiʻi 59, 332 P.3d 661 (App. 2014), vacated on other

grounds, 137 Hawaiʻi 330, 372 P.3d 1065 (2015), for the

proposition that police inquiry into whether an OVUII suspect

will submit to testing does not constitute “interrogation,” and,

consequently, there was no violation of HRS § 803-9.           The ICA

posited that even assuming there was a violation of the statute,

Scalera was not entitled to suppression of any evidence because

he did not (1) claim that the statutory violation had

constitutional dimensions or (2) demonstrate by a preponderance

of the evidence that any failure to permit him to consult with

counsel led to his refusal to submit to testing.

                   II.       STANDARDS OF REVIEW

          We review a “ruling on a motion to suppress de novo to

determine whether the ruling was ‘right’ or ‘wrong.’”            State v.

Edwards, 96 Hawaiʻi 224, 231, 30 P.3d 238, 245 (2001) (quoting

State v. Jenkins, 93 Hawaiʻi 87, 100, 997 P.2d 13, 26 (2000)).

“[F]actual determinations made by the trial court deciding

pretrial motions in a criminal case [are] governed by the

clearly erroneous standard,” and “conclusions of law are
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reviewed under the right/wrong standard.”            Id. (quoting State v.

Eleneki, 92 Hawaiʻi 562, 564, 993 P.2d 1191, 1193 (2000)).

                           III.      DISCUSSION

             Scalera argues that the district court failed to rule

on his motion to suppress with respect to the lawfulness of the

traffic stop.      He further maintains that the district court

erred in denying his motion to suppress on the grounds that the

police violated his statutory right to counsel under HRS § 803-

9.12

      A.   Violation of Article I, Section 7 of the Hawaiʻi
 Constitution and Fourth and Fourteenth Amendments to the United
                       States Constitution

             Scalera initially argues that the district court erred

in failing to rule on the portion of his motion to suppress

related to article I, section 7 of the Hawaiʻi Constitution and

the Fourth and Fourteenth Amendments to the United States

Constitution.      The ICA concluded that Scalera had failed to

properly raise the constitutional validity of the traffic stop

       12
            In his application for certiorari to this court, Scalera also
contends that he was subject to custodial interrogation requiring Miranda
advisements. As Scalera acknowledges, his motion to suppress was not based
upon an alleged failure to provide him with Miranda warnings, and no written
or oral argument was made to the district court on this ground. See supra
note 10. The district court also made no findings of fact or conclusions of
law regarding this issue, and the court’s single reference to interrogation
concerned the application of HRS § 803-9, which was the focus of Scalera’s
motion. Accordingly, the factual record is insufficiently developed to
consider a Miranda issue under a plain error analysis.



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before the district court and that it was not plain error for

the court to deny the motion.

            Assuming, without deciding, that Scalera raised the

propriety of the traffic stop to the district court, Officer

Cullen testified that he stopped Scalera because Scalera crossed

over a solid traffic line twice and over a broken traffic line

once.   While Scalera argues that Officer Cullen’s testimony

contained some “troubling discrepancies,” these “discrepancies”

did not negate Officer Cullen’s testimony that he observed

Scalera cut across at least one of the traffic lane markings.

Additionally, the district court in its ruling did not in any

way indicate that it viewed Officer Cullen’s testimony as not

credible, and appellate courts are required to “give full play

to the right of the fact finder to determine credibility.”

State v. Valdivia, 95 Hawaiʻi 465, 471, 24 P.3d 661, 667 (2001)

(quoting State v. Jenkins, 93 Hawaiʻi 87, 99, 997 P.2d 13, 25

(2000)).    Thus, Scalera failed to prove by a preponderance of

the evidence that Officer Cullen’s stop of his vehicle was

unlawful.    See State v. Perez, 111 Hawaiʻi 392, 395, 141 P.3d

1039, 1042 (2006).    Accordingly, the ICA did not err in

determining that Scalera failed to establish that his rights

were violated under article I, section 7 of the Hawaiʻi



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Constitution or the Fourth and Fourteenth Amendments to the

United States Constitution.

                     B.    Violation of HRS § 803-9

           Scalera also maintains that the district court erred

in denying his motion to suppress on the grounds that the police

violated his statutory right to access counsel under HRS § 803-

9.   He contends that HRS § 803-9 afforded him a “right to

consult with an attorney at any time after he was arrested for

OVUII,” including the time prior to being questioned regarding

whether he would submit to alcohol concentration testing.

           In considering the merits of Scalera’s argument, we

analyze the rights provided by HRS § 803-9, address whether

Scalera’s rights were violated, and determine the ramifications

of a violation of HRS § 803-9 under the facts of this case.

                             1.    HRS § 803-9

           HRS § 803-9, entitled “Examination after arrest;

rights of arrested person,” provides in relevant part:

                 It shall be unlawful in any case of arrest for
           examination:

           (1)   To deny to the person so arrested the right of
                 seeing, at reasonable intervals and for a
                 reasonable time at the place of the person’s
                 detention, counsel or a member of the arrested
                 person’s family;

           (2)   To unreasonably refuse or fail to make a reasonable
                 effort, where the arrested person so requests and
                 prepays the cost of the message, to send a telephone,
                 cable, or wireless message through a police officer

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                    or another than the arrested person to the counsel or
                    member of the arrested person’s family;

             (3)    To deny to counsel (whether retained by the
                    arrested person or a member of the arrested
                    person's family) or to a member of the arrested
                    person's family the right to see or otherwise
                    communicate with the arrested person at the place
                    of the arrested person's detention (A) at any time
                    for a reasonable period for the first time after the
                    arrest, and (B) thereafter at reasonable intervals
                    and for a reasonable time;

             (4)    In case the person arrested has requested that the
                    person see an attorney or member of the person’s
                    family, to examine the person before the person has
                    had a fair opportunity to see and consult with the
                    attorney or member of the person’s family;

             (5)    To fail, within forty-eight hours of the arrest
                    of a person on suspicion of having committed a
                    crime, either to release or to charge the
                    arrested person with a crime and take the
                    arrested person before a qualified magistrate for
                    examination.

HRS § 803-9 (1993).        Thus, under HRS § 803-9, any person

“arrested for examination” may not be denied the opportunity to

see, send a message, or otherwise communicate with counsel or a

member of the arrested person’s family in accordance with the

time, place, and manner considerations set forth in the

statute.13    Id.    “Any person violating or failing to comply” with


      13
            The text of the statute prohibits the denial of access to counsel
and does not explicitly grant affirmative rights. See HRS § 803-9. However,
this court has reiterated that HRS § 803-9 operates to grant rights to see,
send a message, and otherwise communicate with counsel. See State v. Ababa,
101 Hawaiʻi 209, 215, 65 P.3d 156, 162 (2002) (“on its face the purpose of HRS
§ 803-9 is to afford certain enumerated ‘right[s]’ to persons in police
custody, one of which is access to an attorney”); State v. Edwards, 96 Hawaiʻi
224, 233, 30 P.3d 238, 247 (2001) (describing amendments to HRS § 803-9
enacted to protect “the right[s] of persons arrested and detained merely for
examination” (quoting S. Stand. Comm. Rep. No. 440, in 1941 Senate Journal,

                                                                (continued. . .)
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HRS § 803-9 “shall be fined not more than $500 or imprisoned not

more than one year, or both.”        HRS § 803-10 (1993).

            “HRS § 803-9 was originally enacted as part of the

1869 Penal Code of the Kingdom of Hawaiʻi.”14          State v. Edwards,

96 Hawaiʻi 224, 233, 30 P.3d 238, 247 (2001).           Since its

enactment, it has been amended several times to broaden the

protections that it provides.        In 1915, the legislature amended

the statute “to provide an arrested person with the right to see

counsel.”    Id.   In 1927, the legislature again amended the

statute to provide an arrested person with the “right to see a

member of his or her family and to add a new section creating a

penalty for violation of the statute.”          Id.   In 1941, the

statute was broadened “to grant to a person arrested for

examination the right not only of seeing but otherwise

communicating with counsel or a member of his [or her] family.”

Id. (alteration in original) (quoting H. Stand. Comm. Rep. No.

(. . .continued)

at 1086)). The legislative history discussed below, see infra, affirms this
understanding of HRS § 803-9.
      14
            The original enactment provided that “[i]n all cases of arrest
for examination, the person making the same must conduct the party arrested
before the court or magistrate empowered to take such examination, within
forty-eight hours after his arrest, except in cases where a longer delay is
absolutely necessary to meet the ends of justice.” State v. Edwards, 96
Hawaiʻi 224, 233 n.9, 30 P.3d 238, 247 n.9 (2001) (quoting Penal Code of the
Kingdom of Hawaiʻi ch. 49, § 9 (1869)).



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324, in 1941 House Journal, at 1249).         The purpose of the 1941

amendment included “safeguard[ing], as nearly as may be, the

right of persons arrested and detained merely for examination, a

process which has, in the past, been grossly abused,” and

“clarif[ying]” the “rights of the person arrested for

examination and of his [or her] family and counsel.”            Id.

(alterations in original) (quoting S. Stand. Comm. Rep. No. 440,

in 1941 Senate Journal, at 1086; H. Stand. Comm. Rep. No. 324,

in 1941 House Journal, at 1249).

            Thus, this court has observed that the “underlying

purpose in [HRS § 803-9] is to protect an accused’s right to

counsel.”    State v. Ababa, 101 Hawaiʻi 209, 215, 65 P.3d 156, 162

(2003).     As we explained in Edwards, HRS § 803-9 is consistent

with recommendations of the American Bar Association regarding

an accused’s right to communicate with counsel.           96 Hawaiʻi at

233-34, 30 P.3d at 247-48 (citing Am. Bar Ass’n, ABA Project on

Minimum Standards for Criminal Justice (2d ed. 1986)); see also

Am. Bar Ass’n, ABA Standards for Criminal Justice: Prosecution

and Defense Function, Standard 4-2.1 (3d ed. 1993) (ABA

Standards).15    The ABA Standards, in Standard 4-2.1, entitled


     15
            This court in Edwards relied on the 1986 second edition of the
ABA Project on Minimum Standards for Criminal Justice in interpreting HRS §
803-9. See Edwards, 96 Hawaiʻi at 233-34, 30 P.3d at 247-48. The renamed

                                                              (continued. . .)
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“Communication,” provides that an arrested person should be

guaranteed by statute or rule the right to “prompt and effective

communication with a lawyer” and that “reasonable access to a

telephone or other facilities” should be required for that

purpose.    See ABA Standards, Standard 4-2.1.

            The Commentary to Standard 4-2.1 elaborates that

“[m]ost jurisdictions long have provided by statute for the

right of a person in custody to communicate with an attorney,

either by a message carried by a peace officer or by a telephone

call.”     ABA Standards, Standard 4-2.1 Commentary, at 141 (3d ed.

1993).     According to the Commentary, if the right to communicate

with an attorney “is to be meaningful, it must be interpreted to

permit prompt completion of the communication.”           Id.16

            This court observed in Edwards that “the purpose

served by the right to communicate with a lawyer” pursuant to

(. . .continued)

third edition and its commentary were published in 1993, and Standard 4-2.1
remained substantively identical to its 1986 predecessor. Thus, the
standards and commentary from the third edition, published in 1993, will be
referenced in this opinion.
      16
            In Edwards, we also noted the consistency between this Commentary
and Standard 5-8.1 of the American Bar Association’s standards relating to
the provision of defense services, which mandates that “[a] person taken into
custody or otherwise deprived of liberty” should “immediately be informed” of
the right to counsel. See Am. Bar Ass’n, ABA Standards for Criminal Justice:
Providing Defense Services, Standard 5-8.1 (3d ed. 1993); Edwards, 96 Hawaiʻi
at 234, 30 P.3d at 248 (analyzing predecessor version of Standard 5-8.1 and
related commentary).



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the American Bar Association standards “is broader in scope than

that protected by the Miranda warning.”         Edwards, 96 Hawaiʻi at

234, 30 P.3d at 248; see also ABA Standards on Defense Services,

Standard 5-8.1(a) Commentary, at 101 (3d ed. 1993) (“the fact

that a warning valid within the meaning of Miranda has been made

should not in itself be considered as fulfilling the requirement

of a formal offer [of counsel]”).        Accordingly, we concluded in

Edwards that “the fact that [the defendant] was advised in the

Miranda warning of her right to have an attorney present during

interrogation would not obviate the application of HRS § 803-

9(2).”   Edwards, 96 Hawaiʻi at 234, 30 P.3d at 248.          That is,

“the police can comply with Miranda requirements but still

violate HRS § 803-9(2).”      Id.

           This principle is consistent with the plain language

of HRS § 803-9, which does not require that an accused be

subject to interrogation, that an examination must be occurring,

or that an examination has occurred in order to be guaranteed

the protections provided by the statute.         See HRS § 803-9.

Rather, the statute prohibits any individual after “arrest for

examination” from being denied communication with counsel.             Id.

           Additionally, the term “arrest for examination” is not

limited to an interrogation pursuant to an arrest, but rather,

to the period of time following an arrest.         The original version

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of the statute indicated that “arrest for examination” referred

to an arrest generally, effectuated for the purpose of bringing

the arrestee before a court or magistrate:

          In all cases of arrest for examination, the person making
          the same must conduct the party arrested before the court
          or magistrate empowered to take such examination, within
          forty–eight hours after his arrest, except in cases where a
          longer delay is absolutely necessary to meet the ends of
          justice.

Territory of Haw. v. Aquino, 43 Haw. 347, 369 (Haw. Terr. 1959)

(emphasis added) (quoting Penal Code of the Kingdom of Hawaiʻi

ch. 49, § 9 (1869)).     The current version of the statute, and in

effect at the time of Scalera’s arrest, similarly indicates that

an “arrest for examination” occurs whenever a person is arrested

“on suspicion of having committed a crime.”          See HRS § 803-9(5)

(“It shall be unlawful in any case of arrest for examination . .

. [t]o fail within forty-eight hours of the arrest of a person

on suspicion of having committed a crime either to release or to

charge the arrested person with a crime and take the arrested

person before a qualified magistrate for examination.”).

          This understanding is also evidenced by the previously

discussed legislative history of the statute, which does not

indicate that an arrested person’s statutory right of access to

counsel under HRS § 803-9 was intended to apply only in

situations of interrogation.      See Edwards, 96 Hawaiʻi at 233, 30

P.3d at 247.   Additionally, as stated, this court recognized in

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Edwards that HRS § 803-9 was not limited to situations of

interrogation; rather, its protections are independent of

Miranda requirements.     See id.    Thus, in order to find a

violation of HRS § 803-9, a court need not determine whether the

defendant was under “custodial interrogation,” as it must do in

order to find a violation of a defendant’s Miranda rights.             See

id. at 233-34, 30 P.3d at 247-48.        The term “arrest for

examination” accordingly does not restrict the applicability of

HRS § 803-9 to arrestees subject to police interrogation.

           The State argues, however, that OVUII arrestees do not

have a statutory right to access counsel when deciding whether

to submit to alcohol concentration testing in light of this

court’s 1975 decision in State v. Severino, 56 Haw. 378, 380-81,

537 P.2d 1187, 1189 (1975).      In Severino, a driver appealed the

administrative revocation of his driver’s license following an

arrest for OVUII.    Id. at 380, 537 P.2d at 1188.         Prior to

submitting to alcohol concentration testing, the driver was

affirmatively advised that he had a Miranda right to speak with

an attorney, and the driver refused to submit to testing until

he could consult with counsel.       Id. at 380, 537 P.2d at 1188.

The police deemed his refusal sufficient to invoke the sanctions

of Hawaii’s implied consent statute.        Id. at 380-81, 537 P.2d at

1188-89.   In appealing the administrative revocation, the driver

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contended that he was entitled to consult with counsel prior to

deciding whether to submit to alcohol concentration testing.

Id.

            In considering the driver’s appeal, the court began

its analysis by citing the Sixth Amendment to the United States

Constitution and article I, section 11 of the Hawaiʻi

Constitution and noting that these provisions afforded “an

accused . . . the right to assistance of counsel in all criminal

prosecutions.”      Id. at 380, 537 P.2d at 1189 (emphasis added)

(quotations omitted).       Because a civil license revocation was

“in the nature of administrative proceedings” rather than a

criminal prosecution, the court concluded that the right to

counsel did not apply.       Id. at 380-81, 537 P.2d at 1189

(pointing out that “[a]ctions taken under the implied consent

law . . . are civil in nature”).           The court also concluded that

the driver was not entitled to Miranda warnings because “Miranda

rights are not applicable to implied consent proceedings.”               Id.

at 381, 537 P.2d at 1189.

            The Severino court’s analysis of a defendant’s right

to consult with counsel determined the constitutional right to

an attorney with regard to a civil administrative revocation

proceeding, and the court did not address the right to

communicate with a lawyer under HRS § 803-9.            See id. at 380-81,

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537 P.3d at 1189.      Therefore, the holding of Severino does not

govern our analysis of HRS § 803-9.17

             In this case, the district court reasoned that because

Scalera was not in an “interrogation situation,” there was no

violation of HRS § 803-9.        The ICA, relying on its Won opinion,

similarly concluded that “[b]ecause the refusal to submit to

testing is nontestimonial, the police inquiry into whether an

OVUII suspect will submit to testing does not constitute

interrogation,” and therefore, there was no violation of HRS §

803-9.     State v. Won, 134 Hawaiʻi 59, 332 P.3d 661 (App. 2014),

vacated on other grounds, 137 Hawaiʻi 330, 372 P.3d 1065 (2015).

             Both the district court and the ICA predicated the

statute’s applicability upon a non-existent requirement.18

Whether Scalera’s statements were testimonial or nontestimonial,

or whether police interrogation did or did not occur, is not

determinative of whether Scalera’s statutory right to access
      17
              To the extent that the ICA’s opinion in State v. Won, 134 Hawaiʻi
59, 74, 332 P.3d 661, 676 (App. 2014), vacated on other grounds, 137 Hawaiʻi
330, 372 P.3d 1065 (2015), ruled that Severino denied an arrestee of a
criminal offense the statutory right to access counsel under HRS § 803-9, it
is overruled.
      18
            Because the protections afforded by HRS § 803-9 do not depend on
the occurrence of an interrogation, we need not consider the ICA’s holding in
Won that law enforcement’s inquiry into whether an arrestee is willing to
submit to alcohol concentration testing does not constitute interrogation
within the meaning of Miranda with respect to a law that imposes criminal
sanctions for a driver’s refusal to submit to testing. See Won, 134 Hawaiʻi
at 66-74, 332 P.3d at 668-76.



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counsel was infringed.      As discussed, neither police

interrogation nor a testimonial statement is required to trigger

the applicability of HRS § 803-9.         Thus, following his arrest,

Scalera was entitled to avail himself of the protections

afforded by the statute.19

                     2.    Violation of HRS § 803-9

           HRS § 803-9 “requires that, when a defendant being

questioned by police indicates that he or she wants counsel,”

the police “must make reasonable efforts to contact counsel.”

State v. Ababa, 101 Hawaiʻi 209, 216, 65 P.3d 156, 163 (2003)

(analyzing HRS § 803-9(2)).       An indication of a desire to speak

with counsel will not “rest on a semantical parsing of whether

[the defendant] asked to ‘see,’ to ‘talk to,’ to ‘call,’ or to

‘contact’ an attorney.”       Id. at 215-16, 65 P.3d at 162-63 (an

     19
            We note that, in general, HRS § 803-9 affords access to counsel
at a reasonable time and in a reasonable manner. See, e.g., HRS § 803-9(1)
(arrestee may not be prohibited from seeing counsel “at reasonable intervals
and for a reasonable time”); HRS § 803-9(2) (an individual may not
“unreasonably refuse” to send a message to counsel upon an arrestee’s request
or “fail to make a reasonable effort” to do so). HRS § 803-9 therefore
provides OVUII arrestees with reasonable time and opportunity to access
counsel, and if counsel is not available within that time frame, an arrestee
can be required to make a decision regarding testing without the advice of a
lawyer when further delay will significantly postpone or materially interfere
with alcohol concentration testing. See HRS § 803-9; see also People v.
Washington, 12 N.E.3d 1099, 1102-03 (N.Y. 2014) (arrestee’s statutory right
to access counsel may not be used to significantly postpone or unduly
interfere with alcohol concentration testing); State v. Vietor, 261 N.W.2d
828, 832 (Iowa 1978) (individual arrested for driving under the influence of
an intoxicant may invoke statutory right to counsel, but the right may not be
used to “materially interfere” with the timely administration of alcohol
concentration testing).



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invocation of the right to an attorney in response to Miranda

warnings was “sufficiently precise to put the detectives on

notice of their obligations under HRS § 803-9(2)”).

           Although HRS § 803-9 contains no explicit requirement

that arrestees be affirmatively advised of the protections it

guarantees, law enforcement may not preempt an invocation of

these protections by giving misleading or incorrect information

concerning access to counsel.        In construing a statute similar

to HRS § 803-9, for example,20 the Supreme Court of Iowa in

Didonato v. Iowa Department of Transportation ruled that

although “the statute does not require an officer to tell an

arrested person that he has a right to counsel,” where the

statute is “implicated” by the circumstances of the arrest, the

officer must give correct advisements of the rights it provides.

456 N.W.2d 367, 371 (Iowa 1990).          In Didonato, an individual

arrested under suspicion of operating a vehicle while

intoxicated requested to call a friend prior to submitting to

blood alcohol concentration testing.          Id. at 370.    The Iowa

statutory right to counsel, however, only provided a right to

     20
            See Iowa Code § 804.20 (1987) (“Any peace officer or other person
having custody of any person arrested or restrained of the person’s liberty
for any reason whatever, shall permit that person, without unnecessary delay
after arrival at the place of detention, to call, consult, and see a member
of the person’s family or an attorney of the person’s choice, or both. . .
.”).



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call, consult, and see an attorney or a member of the person’s

family, rather than a friend.          Id.   Although the Iowa Supreme

Court recognized that law enforcement had no obligation to

proactively inform the arrestee of these rights, it concluded

that the implication of the statute by the arrestee’s request to

speak with a friend, rather than a lawyer or family member,

required the officer to correct the individual’s

misunderstanding as to the rights the statute provided regarding

the persons the arrestee could call, consult, and see.               Id. at

371.

             The Court of Appeals of New York, that state’s highest

court, has similarly concluded that an arrestee’s failure to

request a lawyer will not obviate law enforcement’s duty to

correct an unknown or misapprehended circumstance relating to a

statutory right to consult with counsel.            See People v.

Washington, 12 N.E.3d 1099, 1102-03 (N.Y. 2014).              In Washington,

the defendant was arrested for driving while intoxicated, taken

to the police department, and informed about her alcohol

concentration testing options.          12 N.E.3d at 1100-01.       At no

point did the defendant request to speak with an attorney.                  Id.

at 1102.     In the meantime, the defendant’s family had contacted

an attorney, who had promptly telephoned the police department

to request to speak with the defendant.            Id. at 1101.     Law

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enforcement failed to communicate to the defendant that counsel

had called for her, and she subsequently submitted to a

breathalyzer test.    Id.   In responding to the State’s appeal of

her successful motion to suppress the breath test results, the

defendant asserted that her right to counsel was violated when

the police officers failed to advise her about the lawyer’s

communication before the breathalyzer test was performed.             Id.

at 1103.    The New York Court of Appeals agreed.        Id.    The court

reasoned that “the statutory right to legal consultation”

applies when an attorney contacts law enforcement seeking to

speak with an arrestee, and that such contact requires the

police to inform the arrestee of counsel’s request.            Id.

            In this case, the evidence presented at the motion to

suppress hearing demonstrates that the implied consent form,

which was read to Scalera by Officer Krekel at the police

station following his arrest, specifically advised Scalera that

he was “not entitled to an attorney before [he] submit[s] to any

tests [sic] or tests to determine [his] alcohol and/or drug

content.”    As a result of the reading of the implied consent

form, the police mistakenly indicated to Scalera that he had no

right to request or communicate with counsel following his

arrest and prior to deciding whether to submit to or refuse

alcohol concentration testing.       Indeed, Officer Krekel testified

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as to the clear meaning of the advisement: “It wouldn’t have

mattered anyways [if Scalera had asked for an attorney] because

the forms state that you’re not entitled to an attorney during

the implied consent.”

          This court has not yet considered the question of

whether HRS § 803-9 is violated when law enforcement

affirmatively advises an arrestee in a misleading manner that

may preempt a request for access to counsel.          While we note that

HRS § 803-9 does not expressly require law enforcement to advise

arrestees of the protections it affords, if arrestees may be

affirmatively misinformed that they have no right to communicate

or consult with counsel, many of the statute’s protections would

be vitiated.   Cf. Minneapolis Fire & Marine Ins. v. Matson Nav.

Co., 44 Haw. 59, 67-68, 352 P.2d 335, 340 (1960) (rejecting

construction of a statute that operates to “nullify[] [the

statute’s] beneficial purpose”).         Permitting an incorrect

advisement would also contravene the statute’s important purpose

of “safeguard[ing], as nearly as may be, the right[s] of persons

arrested and detained merely for examination, a process which

has, in the past, been grossly abused.”         State v. Edwards, 96

Hawaiʻi 224, 233, 30 P.3d 238, 247 (2001) (first alteration in

original) (quoting S. Stand. Comm. Rep. No. 440, in 1941 Senate

Journal, at 1086).    Indeed, allowing law enforcement to give

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arrestees misleading advisements regarding their right to access

counsel under HRS § 803-9 may result in the very harm that the

statute seeks to prevent.      Id.

          Additionally, excusing an incomplete or incorrect

advisement in the context of an OVUII arrest would be

inconsistent with our requirement that decisions with respect to

alcohol concentration testing be knowing, intelligent, and

accurately informed, particularly because counsel may assist the

arrestee in deciding whether to consent to or refuse testing in

the first place.    See State v. Won, 137 Hawaiʻi 330, 350 n.38,

372 P.3d 1065, 1085 n.38 (2015) (noting that counsel may serve

an important function in assisting an arrested individual in

deciding whether to consent to alcohol concentration testing).

To conclude that a police officer’s affirmative denial of the

statutory right to access counsel does not violate HRS § 803-9

would sanction precisely the sort of “arbitrary, false, or

misleading” advisement by law enforcement that we have

repeatedly rejected in this jurisdiction.         See State v. Wilson,

92 Hawaiʻi 45, 53-54, 987 P.2d 268, 276-77 (use of a form

providing “inaccurate and misleading” information on the

penalties for failing a blood alcohol test rendered a

defendant’s consent to submit to such a test not knowing and

intelligent); see also Castro v. Admin. Dir. of the Courts, 97

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Hawaiʻi 463, 470, 40 P.3d 865, 872 (2002) (same); State v.

Garcia, 96 Hawaiʻi 200, 29 P.3d 919 (2001) (applying Wilson

retroactively).

          The reasoning of the Iowa Supreme Court and the Court

of Appeals of New York is also persuasive.         See Didonato, 456

N.W.2d at 371; Washington, 12 N.E.3d at 1102-03.           In Didonato,

the arrestee’s request to contact someone other than a lawyer or

family member required the police to correct the

misunderstanding and advise the arrestee of his statutory rights

with respect to who he could contact under the state’s statutory

right to counsel provision.      456 N.W.2d at 371.      In Washington,

where the arrestee was unaware that an attorney had been

contacted on her behalf and wanted to speak with her,

circumstances similarly required law enforcement to inform the

defendant of this unknown situation and her right to speak with

the attorney.     12 N.E.3d at 1102-03.     These cases suggest that

an arrestee’s known misapprehension regarding a statutory right

to consult with counsel or other specified person requires law

enforcement to remedy the incorrect or unknown information

regarding the right.     When the arrestee’s misapprehension is

caused by law enforcement’s affirmative, incorrect advisement

rather than mere silence, the requirement to correct the

misunderstanding is all the more vital.         See Didonato, 456

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N.W.2d at 370-71 (arrestee’s lack of knowledge due to officer’s

silence); Washington, 12 N.E.3d at 1102-03 (same).

          In this case, Officer Krekel gave Scalera incorrect

information relating to HRS § 803-9 when, following Scalera’s

arrest, he read from the implied consent form that Scalera was

not entitled to an attorney before submitting to alcohol

concentration testing.     This misleading information clearly

implicated Scalera’s statutory right to see, send a message to,

and otherwise communicate with counsel following an arrest for

examination under HRS § 803-9.       See Didonato, 456 N.W.2d at 371;

see also Edwards, 96 Hawaiʻi 224, 30 P.3d 238; Ababa, 101 Hawaiʻi

209, 65 P.3d 156.    Because this advisement was not consistent

with the protections afforded by HRS § 803-9, and because

neither Officer Krekel nor any other HPD officer corrected the

erroneous information provided, the reading of the implied

consent form violated Scalera’s statutory right to access

counsel under HRS § 803-9.

            3.    Consequences of Violating HRS § 803-9

          Finally, we consider whether evidence introduced by

the State at Scalera’s trial should be suppressed because of the

statutory violation of HRS § 803-9.

          “Generally, where evidence has been obtained in

violation of a statute, that evidence is not inadmissible per se

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in a criminal proceeding unless the statutory violation has

constitutional dimensions.”      State v. Edwards, 96 Hawaiʻi 224,

237, 30 P.3d 238, 251 (2001) (quoting State v. Kaeka, 3 Haw.

App. 444, 449, 653 P.2d 96, 100 (1982)).         However, illegally

obtained evidence is not only suppressed in situations where the

statutory violation has constitutional dimensions.           Id. at 238,

30 P.3d at 252.    Rather, in “certain circumstances,” this court

uses its supervisory authority to “appl[y] the exclusionary rule

to evidence obtained in violation of a statute or rule without

requiring a constitutional violation.”         Id. at 238, 30 P.3d at

252 (citing State v. Wilson, 92 Hawaiʻi 45, 987 P.2d 268 (1999);

State v. Pattioay, 78 Hawaiʻi 455, 896 P.2d 911 (1995)).            In

these situations, evidence will be suppressed where there is a

“connection between the statutory violations and the evidence to

be suppressed.”    Id. at 239, 30 P.3d at 253.        This requires a

showing by a preponderance of the evidence that the statutory

violation “ultimately had an adverse impact on [the defendant’s]

substantive rights.”     State v. Ababa, 101 Hawaiʻi 209, 217-18, 65

P.3d 156, 164-65 (2003) (quoting Edwards, 96 Hawaiʻi at 239, 30

P.3d at 253).




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                           i.     Relevant Caselaw

             This court has been called upon on several occasions

to consider the suppression of evidence when the basis of the

underlying violation is statutory rather than constitutional.

             In the seminal case of State v. Pattioay, we used our

supervisory powers to suppress evidence obtained in violation of

the Posse Comitatus Act (PCA).          78 Hawaiʻi 455, 468-69, 896 P.2d

911, 924-25 (1995).        The PCA generally prohibits “direct

involvement of military personnel in civilian law enforcement.”

Id. at 460, 467, 896 P.2d at 916, 923.            In contravention of the

PCA, undercover military personnel targeted civilians suspected

of selling drugs and obtained the drugs as evidence against the

civilians.      Id. at 457-58, 896 P.2d at 913-14.         In reviewing the

defendants’ motion to suppress the evidence obtained by the

military, we acknowledged that the violation was statutory,

rather than constitutional, and that the PCA already provided

for “serious criminal sanctions.”           Id. at 466, 896 P.2d at 922.

Nevertheless, we concluded that there existed “compelling state

grounds that militate[d] in favor of suppression,” including the

deterrence of future illegal police conduct and the avoidance of

relying on illegally obtained evidence “in the administration of

criminal justice through the courts.”           Id. at 468, 896 P.2d at

924.    We therefore suppressed the evidence under the authority

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of our “supervisory powers in the administration of criminal

justice.”   Id. at 469, 896 P.2d at 925.

            In State v. Wilson, a defendant charged with driving

under the influence of alcohol was given misleading and

inaccurate advisements on the possible statutory penalty for

taking and failing an alcohol concentration test.           92 Hawaiʻi 45,

49-51, 987 P.2d 268, 272-74 (1999).        Citing Pattioay, we

determined that the flawed advisement affected the defendant’s

ability to make a knowing and intelligent decision whether to

refuse or submit to testing, therefore warranting suppression of

the results of his subsequent blood test.         Id. at 52 n.10, 987

P.2d at 275 n.10.    In State v. Garcia, 96 Hawaiʻi 200, 207, 29

P.3d 919, 926 (2001), we applied Wilson retroactively and

explained that suppression was warranted in Wilson because the

failure of the police to render a complete explanation of the

penalties “taint[ed] the arrestee driver’s decision [to submit

to testing].”    See also Castro v. Admin. Dir. of the Courts, 97

Hawaiʻi 463, 469-70, 40 P.3d 865, 871-72 (2002) (concluding that

a deficient advisory regarding sanctions for alcohol

concentration testing refusal required suppression of the

refusal in civil license revocation proceedings).

            We applied the principles elucidated in Pattioay and

Wilson to a violation of HRS § 803-9 in State v. Edwards, 96
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Hawaiʻi 224, 30 P.3d 238 (2001).            In Edwards, the defendant was

arrested, placed in custody at the local police station, and

then taken to an interview room for questioning.              Id. at 226-27,

30 P.3d at 240-41.       During the interview, the defendant

indicated that she wanted to speak with a particular attorney.

Id.    Although police officers found the attorney’s phone number

in a telephone book, calling the number repeatedly resulted in a

“not in service” message, and the officers did not pursue

further contact.       Id. at 227-28, 30 P.2d at 241-42.         The next

day, while still in custody, the defendant stated that “she

wanted to talk to the detectives already and she didn’t want a

lawyer,” waived her right to have an attorney present during

questioning, and gave police officers several incriminating

statements.      Id. at 228-29, 30 P.3d at 242-43.

             The Edwards court held that the police failed to make

a “reasonable effort” to contact the defendant’s requested

attorney, thus violating HRS § 803-9.            Id. at 236, 30 P.3d at

250.    The court concluded, however, that the violation did not

warrant suppression of the incriminating statements because the

circumstances were different from Pattioay and Wilson, where

“the defendants demonstrated a connection between the statutory

violations and the evidence to be suppressed.”             Id. at 239-40,

30 P.3d at 253-54.       The court explained that in Pattioay,

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“undercover military police offers targeting civilians in

violation of the PCA led to the seizure of drugs, the evidence

to be suppressed”; similarly in Wilson, the inaccurate warning

of the penalties for taking and failing an alcohol concentration

test, which violated the implied consent statute, “was relevant

to the defendant’s decision to take the test.”           Id. at 239, 30

P.3d at 253.

           In Edwards, however, nothing in the record indicated

that the defendant’s statements were “the result of the police

officers’ failure to exercise reasonable efforts to contact [the

attorney].”    Id.   The defendant had not testified at the hearing

on her motion to suppress the statements, “so it [could not] be

ascertained whether the failure to call her attorney affected

her decision to give her statements.”         Id.   Thus, given the

circumstances,21 the defendant failed to prove by a preponderance

of the evidence that “the statements sought to be suppressed

resulted from the police’s failure to place [the defendant] in

touch with counsel.”      Id. at 239-40, 30 P.3d at 253-54.         This

court emphasized, however, that “[its] holding [did] not


     21
            Additionally, we considered that the defendant “voluntarily
initiated contact” with the officers to give a statement the day after her
arrest, and that before giving her statement, the defendant declined an
additional opportunity offered by the police officers “to obtain an attorney
or a public defender.” Id. at 239, 30 P.3d at 253.



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preclude suppression when warranted for a violation of HRS §

803-9” and reiterated that “[it] would not diminish the gravity”

of such a violation.     Id. at 239, 30 P.3d at 253.

            We applied the reasoning of Edwards in State v. Ababa,

101 Hawaiʻi 209, 65 P.3d 156 (2003), in which this court found a

violation of HRS § 803-9 and ruled that suppression of

statements was required.      The defendant in Ababa was arrested,

placed in custody, and then taken to an interview room for

questioning, where he invoked his right to counsel.           Id. at 211,

65 P.3d at 158.    After waiting for several hours, the defendant

indicated he wanted to speak with the police officers; while

being escorted to the interview room, the defendant uttered an

expletive regarding the lawyer.       Id.   The defendant then waived

his right to counsel and gave several statements to the

officers.    Id.

            The defendant moved to suppress the statements on the

ground that he invoked his right to counsel prior to the

interview.    Id. at 211, 65 P.3d at 158.       The defendant testified

at the hearing that he believed his invocation of the right to

counsel in response to Miranda warnings meant that police

officers would put him in contact with an attorney.           Id. at 214,

65 P.3d at 161.    The defendant explained that when “no attorney

showed up,” he assumed that “they weren’t gonna give [him] a

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lawyer, so [he] decided to talk to them.”          Id.   If a lawyer

would have arrived to speak with him, the defendant testified

that he would have sought advice on whether he should make a

statement.    Id.

           The Ababa court found that the police officers’

actions violated HRS § 803-9 because the defendant’s

communication that “he wanted to talk to an attorney in effect

was tantamount to a request to talk to an attorney within the

meaning” of the statute, and the officers failed to make

“reasonable efforts” to contact counsel.22          Id. at 215-16, 65

P.3d at 162-63.     The court also determined that suppression was

warranted of the statements made during the subsequent

interview, because unlike in Edwards, “there [was] direct

evidence that [the defendant’s] decision to waive his rights and

give a statement was connected to the detectives’ failure to

obtain an attorney.”      Id. at 217, 65 P.3d at 164.        In support of

this conclusion, the court pointed to the defendant’s testimony

that (1) he wanted an attorney to assist him in deciding whether

to give a statement or not, (2) he believed the police officers


     22
            The Ababa court noted that the officers had “made no attempt to
ascertain from [the defendant] whether he knew an attorney who could be
contacted, whether [he] could afford an attorney, whether [he] wanted the use
of a telephone and telephone book to contact one, or whether [he] desired the
public defender’s office be contacted.” Id. at 216, 65 P.3d at 163.



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would contact an attorney for him when he said he “wanted one,”

(3) he was not provided with a phone or other means of

contacting an attorney on his own,23 and (4) he decided to waive

his right to counsel and give a statement because he believed

the officers were not going to provide him with an attorney as

he requested.     Id.

           Our line of cases relating to suppression of evidence

based on a statutory violation thus demonstrates that where the

violation has no “constitutional dimensions,” evidence may be

excluded so long as the proponent demonstrates by a

preponderance of the evidence a “connection between the

statutory violations and the evidence to be suppressed.”

Edwards, 96 Hawaiʻi at 237-38, 239, 30 P.3d at 251-52, 253; see

also Ababa, 101 Hawaiʻi at 164, 65 P.3d at 217.


     23
            When an arrestee has requested to send a message or otherwise
communicate with counsel through the arrestee’s cellphone or other electronic
device in the arrestee’s or law enforcement’s possession, police officers may
permit use of the device to contact counsel to maintain compliance with HRS §
803-9. See, e.g., People v. Gelaj, 21 Misc. 3d 1120(A), 2008 NY Slip Op
52105(U) (N.Y. Sup. Ct. 2008) (arrestee’s statutory right to counsel violated
where arrestee asserted he wanted to communicate with attorney whose phone
number was in his cellphone in police custody, and where police officer “did
nothing to facilitate the phone’s return to the defendant”); see also
Edwards, 96 Hawaiʻi at 236 n.17, 30 P.3d at 250 n.17 (noting that police
officers “could simply have made a telephone available to [the defendant]” to
comply with the requirements of HRS § 803-9); Ababa, 101 Hawaiʻi at 163, 65
P.3d at 216 (police failed to make reasonable efforts to contact counsel
where, inter alia, the police “made no attempt to ascertain from [the
defendant] . . . whether [he] wanted the use of a telephone” to contact an
attorney).



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            When the statutory violation results from a misleading

warning regarding the penalties for refusing or failing an

alcohol concentration test, our prior decisions have determined

that suppression will be warranted because the misleading

information as to the penalties “legally preclude[s] an arrestee

from making ‘a knowing and intelligent decision [regarding]

whether to consent to or refuse’” such testing.            Garcia, 96

Hawaiʻi at 207, 29 P.3d at 926 (quoting Wilson, 92 Hawaiʻi at 52

n.9, 987 P.2d at 275 n.9); see also Castro, 97 Hawaiʻi 463, 40

P.3d 865.    However, in the context of suppression based on a

violation of HRS § 803-9, the requisite “connection” is not so

readily apparent, as the inability to see, contact, or consult

with an attorney will not necessarily impact law enforcement’s

collection of the evidence sought to be suppressed.24            Thus, when

suppression is sought based on a violation of HRS § 803-9, the

requirement that the defendant prove by a preponderant degree

the “connection between the statutory violation[] and the

evidence to be suppressed” necessitates a showing that the


      24
            Compare Edwards, 96 Hawaiʻi at 239, 30 P.3d at 253 (“it cannot be
ascertained whether the failure to call [the defendant’s] attorney affected
[the defendant’s] decision to give [the] statements” she subsequently sought
to suppress), with Ababa, 101 Hawaiʻi at 217, 65 P.3d at 164 (“[Defendant]
testified at the motion to suppress that his acquiescence in giving [the]
statement” that he subsequently sought to suppress “was precipitated by the
absence of an attorney”).



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violation of the defendant’s statutory right to access counsel

affected the procurement of the evidence sought to be

suppressed.    Edwards, 96 Hawaiʻi at 239, 30 P.3d at 253.

                   ii.     Suppression Not Warranted

           Scalera seeks to suppress the implied consent form and

his verbal statements indicating his refusal to submit to

alcohol concentration testing.25        To warrant suppression, Scalera

must show by a preponderance of the evidence a “connection

between the statutory violation[] [of HRS § 803-9]” and his

decision to refuse to submit to alcohol concentration testing.

Edwards, 96 Hawaiʻi at 239, 30 P.3d at 253.

           As was the case in Edwards, Scalera “did not testify

at the hearing on the motion to suppress, so it cannot be

ascertained whether [the incorrect advisement] affected [his]

decision” to refuse to submit to testing.          Id.   There is also no

other evidence in the record of the motion hearing indicating

that Scalera’s decision to refuse to submit to testing “[was]

the result of” the incorrect advisement of his statutory right

to access counsel, id., or that his decision to refuse was


     25
            It appears that Scalera asserted before the district court that
the sanctions form (including its notations regarding his refusal to submit
to testing) should be excluded from evidence at trial, though he has not
specifically addressed the admissibility of this form on certiorari.



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“precipitated by the absence of an attorney.”            Ababa, 101 Hawaiʻi

at 217, 65 P.3d at 164.       “Without such links, it is difficult to

conclude that [Scalera] has proven by a preponderance of the

evidence” that the violation of HRS § 803-9 in this case

ultimately resulted in his decision to refuse to submit to

testing.    Edwards, 96 Hawaiʻi at 239, 30 P.3d at 253.

            As stated by the Edwards court, our conclusion should

not be viewed as “diminish[ing] the gravity of any violation of

HRS § 803-9,” id., and given the complexity of the implied

consent and sanctions forms and the gravity of the consequences

of submitting or refusing to submit to testing, an OVUII

arrestee’s decision with respect to alcohol concentration

testing will often benefit from the assistance of counsel.26                 See


      26
            It has been observed that understanding and then weighing the
pros and cons of the various consequences and alternatives of submitting or
refusing to submit to chemical testing “would be difficult for most people
under the best of circumstances.” State v. Senn, 882 N.W.2d 1, 49 (Iowa
2016) (Wiggins, J., dissenting).

            To make the right decision, an individual suspected of
            [operating a motor vehicle while intoxicated] must quickly
            consider not only what the State can prove and what the
            likely penalty will be, but also what the future
            consequences might be for his or her occupation, family,
            and personal wellbeing. The decision is final, and it will
            determine both the range of criminal penalties the
            individual will face and the charge that will appear on his
            or her permanent criminal record. In these respects, the
            decision to submit or refuse to submit to a chemical test
            resembles the decision to plead to criminal charges.

Id.



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State v. Won, 137 Hawaiʻi 330, 350 n.38, 372 P.3d 1065, 1085 n.38

(2015) (rejecting the argument that counsel would not benefit an

individual deciding whether to submit to alcohol concentration

testing and reasoning that “an important function of counsel is

to explain to a client the choices that may be presented and

ramifications that may flow from the election of one course of

action as opposed to another”); see also id. at 369 n.17, 372

P.3d at 1104 n.17 (Nakayama, J., dissenting) (agreeing that

counsel “may be of value” to an individual deciding whether to

submit to alcohol concentration testing).

          However, because Scalera failed to prove by a

preponderance of the evidence a connection between the violation

of HRS § 803-9 and his subsequent refusal to submit to alcohol

concentration testing, the district court did not err in denying

his motion to suppress, nor did the ICA err in affirming the

district court’s ruling.

                         IV.      CONCLUSION

          Both the district court and the ICA in this case

incorrectly concluded that the statutory right to access counsel

under HRS § 803-9 is only implicated by an interrogation

following arrest.    The protections afforded by the statute do

not depend on whether an interrogation has occurred.           Rather, an

arrestee may not be preemptively refused the opportunity to see,

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send a message, or otherwise communicate with counsel as

provided by HRS § 803-9.      The reading of the implied consent

form in this case, which included a misleading advisement on

Scalera’s right to access an attorney, both implicated and

infringed on the statute.      As a result, Scalera’s statutory

right to access counsel under HRS § 803-9 was violated.            The

district court erred in concluding otherwise, and the ICA erred

in affirming this determination.         However, Scalera failed to

meet his burden of showing that the violation of HRS § 803-9

affected his decision to refuse alcohol concentration testing.

See Edwards, 96 Hawaiʻi at 239, 30 P.3d at 253.          Thus, the

district court did not err in denying Scalera’s motion to

suppress, and the ICA did not err in affirming the district

court judgment.

          Based on the foregoing, the ICA’s Judgment on Appeal

is affirmed for the reasons set forth in this opinion.

William H. Jameson, Jr.               /s/ Mark E. Recktenwald
for petitioner
                                      /s/ Paula A. Nakayama
James M. Anderson                     /s/ Sabrina S. McKenna
for respondent
                                      /s/ Richard W. Pollack
                                      /s/ Michael D. Wilson




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