State v. Elberson ( 2016 )

*** NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-13-0000023
04-MAR-2016
11:44 AM
SCWC-13-0000023
IN THE SUPREME COURT OF THE STATE OF HAWAII
________________________________________________________________
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
MATTHEW ELBERSON,
Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000023; CASE NO. 1DTA-12-00939)
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 Matthew Elberson seeks
review of the Intermediate Court of Appeals’ (ICA) July 9, 2015
Judgment on Appeal, entered pursuant to its May 29, 2015 Summary
Disposition Order, which affirmed the District Court of the
First Circuit’s (district court) Judgment entered on December
*** NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
17, 2012.1 The district court found Elberson guilty of Operating
a Vehicle Under the Influence of an Intoxicant (OVUII), in
violation of Hawaiʻi Revised Statutes (HRS) § 291E-61(a)(3)
(Supp. 2012).2 We accepted Elberson’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, Elberson was taken to
the police station, where he was read an implied consent form.3
1
The Honorable David W. Lo presided.
2
HRS § 291E-61(a)(3) 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, 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,
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
2
*** NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
On the form, Elberson indicated that he refused to take either a
breath test or a blood test. The police officer then read
Elberson a second form, titled “Sanctions for Use of Intoxicants
While Operating a Vehicle & Implied Consent for Testing.” After
being informed of the sanctions for refusal, Elberson elected to
take a breath test. The breath test resulted in a breath
alcohol content reading of 0.167 grams of alcohol per 210 liters
of breath. On certiorari, Elberson contends (1) the State did
not prove the elements of the crime; (2) the ICA erred in
affirming the district court’s admission of the breath test
results based on State v. Won, 134 Hawaiʻi 59, 332 P.3d 661 (App.
2014); (3) the State failed to lay a sufficient foundation to
admit the breath test; and (4) the State was not permitted to
file foundational documents with the trial court that it then
relied on to request judicial notice. As part of his second
argument, Elberson asserts he was coerced to agree to the breath
test by the threat of imprisonment for refusal to submit to a
breath, blood, or urine test.
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
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
*** NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
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 Elberson’s
breath test was the product of a warrantless search, and the ICA
erred by concluding that Elberson’s claim that the breath test
results should have been suppressed lacked merit. Accordingly,
Elberson’s OVUII conviction cannot be upheld.
IT IS HEREBY ORDERED that the ICA’s July 9, 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.
Richard L. Holcomb /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
James M. Anderson
For respondent /s/ Michael D. Wilson
4