In the Interest of Doe ( 2001 )

DISSENTING OPINION BY

NAKAYAMA, J.,

WITH WHOM RAMIL, J., JOINS

I respectfully dissent from the majority’s opinion. For the reasons discussed in my dissent in State v. Garcia (Nakayama, J., dissenting), I believe that State v. Wilson, 92 Hawai‘i 45, 987 P.2d 268 (1999), was wrongly decided and should be overruled.

Similar to the warnings given in Wilson and Garcia, KPD form 209, entitled “Hawai‘i Administrative Driver’s License Revocation Law,” inaccurately informed Petitioner that his license would be administratively revoked for three months if he took a blood and/or breath test and failed. Pursuant to HRS § 286-261(b) (Supp.2000) and Gray v. Administrative Director of the Court, State of Hawai‘i, 84 Hawai‘i 138, 931 P.2d 580 (1997), his license could be revoked from three months up to one year. As discussed in my dissents in Wilson and Garcia, this warning, although erroneous, does not warrant the exceptional action of invoking this court’s supervisory powers to suppress the results of Petitioner’s breath test.

There are even fewer grounds to suppress the test results based upon the error in KPD form 544, entitled “Refusal to Submit to Testing for Measurable Amounts of Acohol.” According to KPD form 544, Petitioner would receive “up to six months” if he took a blood and/or breath test and failed. However, HRS § 291-4.3(b)(1)(A)(ii) (Supp.2000) requires a “[o]ne hundred eighty-day prompt suspension[.]” Mthough KPD form 544 incorrectly implied that a suspension of less than six months was possible, Petitioner would not have received a suspension greater than that which he had been informed of. The error in KPD form 544 is not so misleading as to have unfairly “tricked” or “coerced” Petitioner to consent to the test. See Wilson, 92 Hawai‘i at 60, 987 P.2d at 283 (Nakayama, J., dissenting). Therefore, “the principles of fairness and due process underlying the exclusionary rule do not require the suppression of [Petitioner’s] test results.” Id.

Based on the foregoing, I would vacate the family court's findings of fact, conclusions of law, and order granting Petitioner’s motion to suppress.