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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0005232
                                                              21-JAN-2016
                                                              08:28 AM




                            SCWC-13-0005232

          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________

                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                     BYRON D. CHEEK-ENRIQUES,
                 Petitioner/Defendant-Appellant.
________________________________________________________________

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-13-0005232; CASE NO. 1DTA-11-05193)

                      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 Byron D. Cheek-Enriques

seeks review of the Intermediate Court of Appeals’ (ICA) June 3,

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

Summary Disposition Order, which affirmed the District Court of

the First Circuit’s (district court) October 16, 2013 Notice of
  ***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


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

judgment).1   The district court found Cheek-Enriques 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     We accepted Cheek-Enriques’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, Cheek-Enriques was

taken to the police station, where he was read an implied

consent form.3    Cheek-Enriques elected to take a breath test,

     1
          The Honorable David Lo 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.


                                                            (continued . . .)


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which resulted in a breath alcohol content reading of 0.155

grams of alcohol per 210 liters of breath.          Cheek-Enriques filed

a motion to suppress the breath test results based on a

violation of the Fourth Amendment of the United States

Constitution and Article I, Section 7 of the Hawaiʻi

Constitution, which the district court denied.           The ICA affirmed

the district court’s denial of this motion to suppress.             On

certiorari, Cheek-Enriques contends, inter alia, that he did not

constitutionally consent to the breath test because “[t]elling

someone that [he or she] must consent to a 4th Amendment search

or face 30 days in jail simply is not consent under the 4th

Amendment.”

            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



(. . . continued)

            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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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

Cheek-Enriques’s breath test was the product of a warrantless

search, and the ICA erred by concluding that the district court

properly denied Cheek-Enriques’s motion to suppress the breath

test result.     Accordingly, Cheek-Enriques’s OVUII conviction may

not be upheld.

             IT IS HEREBY ORDERED that the ICA’s June 3, 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, Hawaiʻi, January 21, 2016.

Jonathan Burge                        /s/ Sabrina S. McKenna
for petitioner
                                      /s/ Richard W. Pollack

Brian R. Vincent                      /s/ Michael D. Wilson
for respondent




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