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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000840
                                                              28-JAN-2016
                                                              01:59 PM



                            SCWC-12-0000840

          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________

                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                        ANDREW E. SHIMKUS,
                 Petitioner/Defendant-Appellant.
________________________________________________________________

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-12-0000840; CASE NO. 1DTA-12-00225)

                      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 Andrew E. Shimkus seeks

review of the Intermediate Court of Appeals’ (ICA) July 16, 2014

Judgment on Appeal, entered pursuant to its May 23, 2014 Summary

Disposition Order, which affirmed the District Court of the

First Circuit’s (district court) September 13, 2012 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  ***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***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 Shimkus guilty of Operating

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

violation of Hawaiʻi Revised Statutes (HRS) § 291E-61(a)(3)

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

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


     1
          The Honorable Shirley M. Kawamura 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
                                                           (continued . . .)


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

breath alcohol content reading of 0.178 grams of alcohol per 210

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

results before the district court and on certiorari, Shimkus

contends that (1) his Miranda rights under Article I, Section 10

of the Hawaiʻi 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 Shimkus of the sanctions.4

            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

(. . . continued)

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

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

and the ICA erred by concluding that the district court properly

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

Accordingly, Shimkus’s OVUII conviction cannot be upheld.

             IT IS HEREBY ORDERED that the ICA’s July 16, 2014

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, Hawaiʻi, January 28, 2016.

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

Robert T. Nakatsuji
for amicus curiae
Attorney General of
the State of Hawaiʻi




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