State v. Reilly ( 2016 )

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Electronically Filed
Supreme Court
SCWC-13-0003479
04-MAR-2016
11:51 AM
SCWC-13-0003479
IN THE SUPREME COURT OF THE STATE OF HAWAII
________________________________________________________________
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
RICHARD C. REILLY,
Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0003479; CASE NO. 1DTA-13-00739)
SUMMARY DISPOSITION ORDER
(By: McKenna, Pollack, and Wilson, JJ.,
with Wilson, J., concurring separately,
and Nakayama, J., dissenting,
with whom Recktenwald, C.J., joins)
Petitioner/Defendant-Appellant Richard C. Reilly seeks
review of the Intermediate Court of Appeals’ (ICA) June 4, 2015
Judgment on Appeal, entered pursuant to its May 4, 2015 Summary
Disposition Order, which affirmed the District Court of the
First Circuit’s (district court) Notice of Entry of Judgment
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and/or Order and Plea/Judgment entered on August 20, 2013.1 The
district court found Reilly guilty of Operating a Vehicle Under
the Influence of an Intoxicant (OVUII), in violation of Hawaiʻi
Revised Statutes (HRS) § 291E-61(a)(4) (Supp. 2012).2 We
accepted Reilly’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, Reilly was read an
implied consent form.3 Reilly elected to take a blood test,
1
The Honorable David W. Lo presided.
2
HRS § 291E-61(a)(4) 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:
. . .
(4) With .08 or more grams of alcohol per one
hundred milliliters or cubic centimeters of blood. . . .
3
The form, titled “Use of Intoxicants While Operating a Vehicle
Implied Consent for Testing,” stated 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 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,
2
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which resulted in a blood alcohol content reading of 0.10 grams
of alcohol per 100 milliliters or cubic centimeters of blood.
In his motion to suppress the blood test results before the
district court and on certiorari, Reilly contends, inter alia,
that the blood test results were obtained based on his
involuntary consent in violation of the Fourth Amendment of the
United States Constitution and Article I, Section 7 of the
Hawaiʻi Constitution.
In State v. Won, 136 Hawaiʻi 292, 312, 361 P.3d 1195,
1215 (2015), we held that “coercion engendered by the Implied
Consent Form runs afoul of the constitutional mandate that
waiver of a constitutional right may only be the result of a
free and unconstrained choice,” and, thus, a defendant’s
decision to submit to testing after being read the implied
consent form “is invalid as a waiver of his right not to be
searched.” In accordance with Won, the result of Reilly’s blood
test was the product of a warrantless search, and the ICA erred
in concluding that Reilly’s Fourth Amendment rights were not
violated. Accordingly, Reilly’s OVUII conviction cannot be
upheld.
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.
3
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IT IS HEREBY ORDERED that the ICA’s June 4, 2015
Judgment on Appeal and the district court’s Judgment are
vacated, and the case is remanded to the district court for
further proceedings consistent with this court’s opinion in
Won.
DATED: Honolulu, Hawaii, March 4, 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
4