State v. Hosaka.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
28-AUG-2020
08:02 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
TROY HOSAKA,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 16-1-0057)
AUGUST 28, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ. 1
1 Associate Justice Richard Pollack, who was a member of the court
when the oral argument was held, retired from the bench on June 30, 2020.
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OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
In 2016, police arrested Troy Hosaka for Habitually
Operating a Vehicle Under the Influence of Intoxicants (Habitual
OVUII). After his arrest, a Honolulu Police Department (HPD)
officer read Hosaka the Department’s implied consent form (HPD-
396K) advising him of his right to refuse testing and explaining
that Hosaka “may [] be subject to the procedures and sanctions
under [Hawaiʻi Revised Statutes (HRS)] chapter 291E,” if he
refused. Hosaka signed and initialed the form, electing to take
a breath test. Now, Hosaka seeks to suppress the breath test
results, arguing that his consent was not knowing, intelligent
and voluntary because the form did not comply with the implied
consent statutory scheme governed by HRS Chapter 291E and is
inaccurate as a result. We disagree.
We conclude that HPD’s implied consent form complied
with HRS Chapter 291E and was accurate. Moreover, even if the
form had been inaccurate, non-compliance with the implied
consent statutory scheme does not automatically mandate
suppression — suppression is only warranted where an arrestee
did not validly consent to chemical testing. While an
inaccuracy in an implied consent form is a relevant factor to
consider, whether consent is knowing, intelligent and voluntary
must be determined by looking to the totality of the
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circumstances. Consent can be invalid if the inaccurate
information conveyed is reasonably likely to influence an
arrestee’s consent, in which case the consent is not knowing or
intelligent; or it can be invalid because it was coerced, in
which case the consent is not voluntary. In both situations,
the question is whether the consent was valid, not whether the
form complied with every technical requirement in the implied
consent statutory scheme. Here, because the totality of the
circumstances show that Hosaka validly consented to a breath
test, the breath test results are admissible.
II. BACKGROUND
By driving on a public road in the State of Hawaiʻi,
drivers are deemed to have consented to a blood, breath, or
urine test (“chemical test”) to determine the level of
intoxicants in their system if they are suspected of driving
under the influence. HRS § 291E-11(a) (2007). When requesting
a driver take a chemical test, a law enforcement officer must
inform the driver that they have the right to refuse testing.
HRS § 291E-11(b)(2). If the driver chooses to refuse, they must
be informed of the administrative sanctions that could be
imposed as a result — namely, suspension of their license and
privilege to drive — and given an opportunity to reconsider
their decision. HRS § 291E-15 (Supp. 2016). If, after that
second advisement, the driver persists in refusing, their
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driver’s license may be suspended after a hearing. HRS § 291E-
41 (Supp. 2012).
A. Factual Background
In January 2016, police pulled over and arrested
Hosaka for Habitual OVUII. Hosaka has not contested that police
had probable cause to arrest him on suspicion of driving under
the influence of intoxicants.
While Hosaka was in custody, HPD Officer Jared Spiker
read Hosaka, verbatim, HPD’s implied consent form (HPD-396K)
entitled “USE OF INTOXICANTS WHILE OPERATING A VEHICLE — IMPLIED
CONSENT FOR TESTING” (“implied consent form” or “form”). The
form stated in relevant part:
USE OF INTOXICANTS WHILE OPERATING A VEHICLE
IMPLIED CONSENT FOR TESTING[ 2]
DATE OF ARREST: 1-11-16 REPORT NO.: 16-015999
ARRESTEE’S[] NAME: Troy Hosaka
I, Jared Spiker , a police officer, swear that the
following statements were read to the arrestee[].
Pursuant to chapter 291E, Hawaiʻi Revised Statutes
(HRS), Use of Intoxicants While Operating a Vehicle,
you are being informed of the following:
1. TH 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 person[’]s breath, blood, or urine as applicable.
2. TH You are not entitled to an attorney before you
submit to any test[] or tests to determine your
alcohol and/or drug content.
3. TH You may refuse to submit to a breath or blood
2 Italicized text indicates where the form was filled out by hand.
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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. If you do
refuse, then none shall be given, except as provided
in section 291E-21.[ 3] However, if you refuse to
submit to a breath, blood, or urine test, you may be
subject to up to the sanctions of 291E-65[ 4] if you
are under 21 years of age at the time of the offense.
In addition, you may also be subject to the
procedures and sanctions under chapter 291E, part
III.
ALCOHOL CONCENTRATION
TH AGREED TO TAKE A BREATH TEST AND REFUSED THE
BLOOD TEST
. . . .
I, THE ARRESTEE/RESPONDENT, ACKNOWLEDGE THAT I MADE
THE CHOICE(S) INDICATED ABOVE AND WAS INFORMED OF THE
INFORMATION IN THIS REPORT.
ARRESTEE’S[] SIGNATURE: Troy Hosaka [Date]: 1-12-16
SIGNED: Jared Spiker [ID]: 103267 [Date]: 1-12-16
(Emphasis added.)
Hosaka initialed each of the form’s three advisement
paragraphs, initialed that he “agreed to take a breath test and
refused the blood test,” and signed the form at the bottom to
“acknowledge that [he] made the choice[] indicated above and was
informed of the information in [the form].” After completing
the form, Hosaka took the breath test, which showed that his
blood alcohol content was .134 percent — well over the legal
3 HRS § 291E-21(a) (2007) permits a law enforcement officer to
obtain a breath, blood, or urine sample from any driver involved in a
collision causing injury or death to any person.
4 HRS § 291E-65 (Supp. 2016) governs administrative sanctions for a
refusal by a person under twenty-one arrested under HRS § 291E-64 (2007)
(operating a vehicle after consuming a measurable amount of alcohol).
Sanctioning under this section would not apply to Hosaka, since Hosaka was
forty-two at the time of his arrest.
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limit. The State of Hawaiʻi charged Hosaka with Habitual OVUII,
in violation of HRS § 291E-61.5 (2007 & Supp. 2015), 5 in the
Circuit Court of the First Circuit (circuit court). 6
B. Circuit Court’s Suppression of Hosaka’s Breath Test Results
Before trial, Hosaka filed a motion to suppress his
breath test results, arguing that the test constituted an
unreasonable search in violation of the United States and Hawaiʻi
Constitutions. He argued that his purported consent was
coerced, and thus invalid, because the implied consent form
advised him, “if you refuse to submit to a breath, blood, or
urine test . . . you may [] be subject to the procedures and
sanctions under chapter 291E, part III.” According to Hosaka,
by informing him that he may be subject to sanctions if he were
to refuse testing, the form failed to adequately inform him of
his right to withdraw his consent and did not follow statutorily
required procedures. Thus, the breath test violated his fourth
5 HRS § 291E-61.5 provides in relevant part:
(a) A person commits the offense of habitually
operating a vehicle under the influence of an
intoxicant if:
(1) The person is a habitual operator of a
vehicle while under the influence of an
intoxicant; and
(2) The person operates or assumes actual
physical control of a vehicle:
. . . .
(C) With .08 or more grams of alcohol
per two hundred ten liters of
breath[.]
6 The Honorable Glenn J. Kim presided.
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amendment right to be free from unreasonable searches and
seizures, and the results of the test needed to be suppressed.
The circuit court agreed with Hosaka, concluding that
HRS §§ 291E-11 and 291E-15, when read in pari materia, required
“an arrested person [] first [be] given a completely
unencumbered choice to refuse to submit” to testing.
Accordingly, police could not inform Hosaka that any sanctions
could result from a refusal until after he made the initial
choice to refuse. Because the implied consent form advised
Hosaka that sanctions “may” result, the circuit court found that
his consent was coerced and suppressed the breath test results.
C. ICA Proceedings
The State appealed the suppression of Hosaka’s breath
test results to the Intermediate Court of Appeals (ICA), arguing
that the form complied with HRS Chapter 291E and that the
chapter did not require an OVUII arrestee to have an
“unencumbered choice” to refuse a chemical test.
The ICA agreed with the State that suppression was not
warranted, vacating the circuit court’s order and remanding the
case for further proceedings. However, the ICA agreed with the
circuit court that HPD’s implied consent form did not comply
with HRS Chapter 291E’s mandated procedures because the chapter
required that an OVUII arrestee have an initial opportunity to
refuse to submit to testing prior to being informed of possible
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sanctions.
Nevertheless, the ICA concluded that suppression of
Hosaka’s breath test was not the proper remedy for non-
compliance with HRS Chapter 291E procedures because HRS § 291E-
15 barred the imposition of sanctions only where the arrestee
was never informed of potential sanctions at any point during
the advisal. Here, because the form informed Hosaka of the
possible sanctions for refusing and Hosaka was given the
opportunity to refuse testing with those sanctions in mind, the
ICA concluded that the form’s statement that Hosaka “may” have
been subject to sanctions was accurate and therefore that the
results need not be suppressed. Further, the ICA held that that
the circuit court “erred in concluding that burdening an
arrestee’s election to refuse to submit to testing with any
significant sanctions renders the arrestee’s consent invalid.”
Hosaka timely filed an application for writ of
certiorari.
III. STANDARDS OF REVIEW
A. Statutory Interpretation
The interpretation of a statute is a question of law
that this court reviews de novo. State v. Arceo, 84 Hawaiʻi 1,
10, 928 P.2d 843, 852 (1996).
When construing a statute, our foremost obligation is
to ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from
the language contained in the statute itself. And we
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must read statutory language in the context of the
entire statute and construe it in a manner consistent
with its purpose.
State v. Ruggiero, 114 Hawaiʻi 227, 231, 160 P.3d 703, 707 (2007)
(quoting Gray v. Admin. Dir. of the Court, 84 Hawaiʻi 138, 144,
931 P.2d 580, 586 (1997)).
B. Motion to Suppress
We review a circuit court’s findings of fact on a
motion to suppress under the clearly erroneous standard. State
v. Alvarez, 138 Hawaiʻi 173, 181, 378 P.3d 889, 897 (2016).
However, we review the court’s conclusions of law de novo: “The
question of whether the facts as found amount to legally
adequate ‘consent’ is a question of constitutional law that a
court answers by exercising its ‘own independent constitutional
judgment based on the facts of the case.’” State v. Won, 137
Hawaiʻi 330, 341, 372 P.3d 1065, 1076 (2015) (quoting State v.
Trainor, 83 Hawaiʻi 250, 255, 925 P.2d 818, 823 (1996)).
IV. DISCUSSION
The fourth amendment to the United States Constitution
and its counterpart, article I, section 7 of the Hawaiʻi
Constitution, guarantee the right of persons to be free from
unreasonable searches. An intoxilyzer test is a search under
these provisions; however, consent is a well-established
exception to the requirement that a warrant be obtained before a
search takes place. Won, 137 Hawaiʻi at 340, 372 P.3d at 1075.
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As discussed above, the State contends that Hosaka consented to
a breath test when advised of his rights under the implied
consent statute.
“This court has stated unambiguously that for consent
to be ‘in fact, freely and voluntarily given,’ the consent ‘must
be uncoerced,’” a determination that requires looking to the
totality of the circumstances. Id. at 341, 372 P.3d at 1076
(quoting Nakamoto v. Fasi, 64 Haw. 17, 21, 635 P.2d 946, 951
(1981)).
Thus, to decide whether to suppress the results of a
chemical test administered on the basis of an arrestee’s
consent, the court must evaluate the circumstances under which
consent was given. While the accuracy of the implied consent
form and its compliance with HRS Chapter 291E are relevant
considerations, the central inquiry is not simply whether the
form complies with the relevant statutes, but whether the
circumstances indicate the arrestee’s consent was knowing,
intelligent, and voluntary. See Won, 137 Hawaiʻi at 345, 372
P.3d at 1080 (“[I]n order to legitimize submission to a
warrantless BAC test under the consent exception, . . . it must
be concluded that, under the totality of the circumstances,
consent was in fact freely and voluntarily given.”).
A. The Implied Consent Form Complied with HRS Chapter 291E
Hosaka argues that his consent was coerced because of
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defects in HPD’s implied consent form. Accordingly, we first
consider whether the form was accurate and in compliance with
the implied consent statutory scheme (HRS Chapter 291E). We
conclude that it was.
1. HRS Chapter 291E establishes a two-step procedure for
advising OVUII arrestees of their right to refuse
chemical testing
First, we agree with the circuit court and the ICA
that HRS Chapter 291E’s provisions, when read in pari materia,
establish a two-step procedure for advising arrestees of their
right to refuse chemical testing. See State v. Kamana‘o, 118
Hawaiʻi 210, 218, 188 P.3d 724, 732 (2008) (“[L]aws in pari
materia, or upon the same subject matter, shall be construed
with reference to each other. What is clear in one statute may
be called upon in aid to explain what is doubtful in another.”
(quoting Barnett v. State, 91 Hawaiʻi 20, 31, 979 P.2d 1046, 1057
(1999))).
HRS § 291E-11 provides in relevant part:
(a) Any person who operates a vehicle upon a public
way, street, road, or highway . . . of the State
shall be deemed to have given consent, subject to
this part, to a test or tests approved by the
director of health of the person’s breath, blood, or
urine for the purpose of determining alcohol
concentration . . . of the person’s breath, blood, or
urine, as applicable.
(b) The test or tests shall be administered at the
request of a law enforcement officer having probable
cause to believe the person operating a vehicle upon
a public way, street, road, or highway . . . of the
State is under the influence of an intoxicant or is
under the age of twenty-one and has consumed a
measurable amount of alcohol, only after:
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(1) A lawful arrest; and
(2) The person has been informed by a law
enforcement officer that the person may refuse
to submit to testing under this chapter.
(Emphases added.)
While HRS § 291E-11, on its own, suggests that OVUII
arrestees need only be provided with one opportunity to refuse,
it is clear from other statutes within HRS Chapter 291E that an
additional advisement must be afforded to OVUII arrestees who
refuse to submit to testing.
At the time of Hosaka’s offense, for instance, HRS
§ 291E-15 (Supp. 2011), 7 which governs the imposition of
sanctions, required law enforcement officers to give arrestees a
second opportunity to refuse after advising them of possible
sanctions:
If a person under arrest refuses to submit to a
breath, blood, or urine test, none shall be given,
except as provided in section 291E-21. Upon the law
enforcement officer’s determination that the person
under arrest has refused to submit to a breath,
blood, or urine test, if applicable, then a law
enforcement officer shall:
7 At the time Hosaka was arrested, HRS § 291E-15 also required law
enforcement to advise an arrestee of the possible criminal sanctions under
HRS § 291E-68. However, in 2016, HRS § 291E-68 was repealed by the
legislature in response to this court’s decision in Won, 137 Hawaiʻi 330, 372
P.3d 1065 (holding that burdening a defendant’s right to refuse to submit to
BAC testing under the threat of criminal sanctions was inherently coercive).
See 2016 Haw. Sess. Laws Act 17, § 2 at 21. At that time, the legislature
also amended HRS § 291E-15 to remove its reference to HRS § 291E-68. See id.
§ 1 at 21. Because of these legislative amendments and because Hosaka was
never advised of any possible criminal sanctions, it is not necessary to
address HRS § 291E-68 as a requirement in the instant case. Therefore, our
analysis applies to the current version of HRS § 291E-15 as well as the
version in place at the time of Hosaka’s arrest.
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(1) Inform the person under arrest of the
sanctions under section 291E-41 [or] 291E-65 . . .
and
(2) Ask the person if the person still
refuses to submit to a breath, blood, or urine test,
thereby subjecting the person to the procedures and
sanctions under part III or section 291E-65, as
applicable[.]
(Emphasis added.)
HRS § 291E-65, which governs sanctions for persons
under 21 arrested for operating a vehicle after consuming a
measurable amount of alcohol, likewise requires an officer to
ask if an arrestee “still” refuses after informing them of
sanctions. 8 Similarly, HRS § 291E-41, which establishes the
8 HRS § 291E-65 provides in relevant part:
(a) If a person under arrest for operating a
vehicle after consuming a measurable amount of
alcohol, pursuant to section 291E-64, refuses to
submit to a breath or blood test, none shall be
given, except as provided in section 291E-21, but the
arresting law enforcement officer, as soon as
practicable, shall submit an affidavit to a district
judge of the circuit in which the arrest was made,
stating:
(1) That at the time of the arrest, the
arresting officer had probable cause to believe the
arrested person was under the age of twenty-one and
had been operating a vehicle upon a public way,
street, road, or highway or on or in the waters of
the State with a measurable amount of alcohol;
(2) That the arrested person was informed
that the person may refuse to submit to a breath or
blood test, in compliance with section 291E-11;
(3) That the person had refused to submit to
a breath or blood test;
(4) That the arrested person was:
(A) Informed of the sanctions of this
(continued . . .)
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duration of an administrative revocation of a driver’s license
for a refusal, requires that the arrestee refused, was advised
of sanctions, and then asked if they “still refuse[d]”:
(c) If a respondent has refused to be tested after
being informed:
(1) That the person may refuse to submit to
testing in compliance with section 291E-11; and
(2) Of the sanctions of this part and then
asked if the person still refuses to submit to a
breath, blood, or urine test, in compliance with the
requirements of section 291E-15,
the revocation imposed . . . shall be for a period of
two years, three years, four years, or ten years,
respectively [depending on the number of prior
alcohol-related law enforcement contacts].
(Emphasis added.)
These statutes, when read together, demonstrate that
before sanctions for refusal can be imposed, law enforcement
must follow a two-step procedure: first, an OVUII arrestee must
be given an opportunity to refuse to submit to testing; second,
if the arrestee refuses, the arrestee must then be informed of
the specific sanctions that could result and asked whether they
still refuse testing.
The legislative history of HRS § 291E-15 also supports
section; and then
(B) Asked if the person still refuses
to submit to a breath or blood test, in compliance
with the requirements of section 291E-15; and
(5) That the arrested person continued to
refuse to submit to a breath or blood test.
(Emphasis added.)
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this interpretation of the implied consent statutory scheme.
See H.B. 3257, H.D. 1, S.D. 2, 23rd Leg., Reg. Sess. (2006). 9
For example, the House Committee on Transportation explained
that the purpose of amending the implied consent statutory
scheme was to streamline the implied consent process by only
requiring officers to advise arrestees of the sanctions that
could be imposed if the arrestee had already refused testing:
[P]olice officers are [] required to read an
inordinate amount of information to a suspect of
DUII. This measure is an attempt to simplify [the
implied consent] process while protecting the rights
of the accused by clarifying that information on the
consequences of refusing to submit to a blood,
breath, or urine test only need to be read to an
individual if the individual refuses to submit to
such a test. Your Committee believes that this bill
will support law enforcement and increase traffic
safety.
H. Stand. Comm. Rep. No. 310-06, in 2006 House Journal, at 1218.
The Senate Committee on Judiciary and Hawaiian Affairs
similarly explained that the purpose of the bill was to
“considerably reduce the amount of time spent by the police in
processing persons arrested for [OVUII]” by requiring that
police “inform a person arrested . . . of the sanctions for
refusal to submit to [a] breath, blood, or urine test only if
[a] person withdraws [their implied] consent to testing[.]” S.
Stand. Comm. Rep. No. 3303, in 2006 Senate Journal, at 1587
(emphasis added).
9 H.B. 3257 was introduced by the legislature in 2006 and
eventually was enacted into law as Act 64. See 2006 Haw. Sess. Laws Act 64,
at 96-101.
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Accordingly, we hold that under HRS Chapter 291E, an
OVUII arrestee who initially refuses to submit to chemical
testing must be given a second opportunity to refuse after being
advised of the possible sanctions.
2. The HPD’s implied consent form complied with HRS
Chapter 291E
However, the fact that officers must follow a two-step
procedure before sanctions can be imposed does not mean that the
form in this case violated HRS Chapter 291E: Hosaka did not
initially refuse chemical testing, and so HRS § 291E-15, which
establishes the two-step procedure discussed above, does not
apply to Hosaka’s case. See HRS § 291E-15 (“Upon the law
enforcement officer’s determination that the person under arrest
has refused to submit to a breath, blood, or urine
test . . . .”). The requirements of HRS § 291E-15 are only
triggered if the arrestee initially refuses; they do not apply
to arrestees who, like Hosaka, choose not to withdraw their
consent to chemical testing when first asked.
Most importantly, however, the two-step procedure does
not require that an arrestee’s initial refusal be “completely
unencumbered,” as the circuit court believed. HRS Chapter 291E
permits law enforcement to tell arrestees that they “may” be
subject to sanctions when giving the first implied consent
advisal. The plain language of HRS § 291E-11 provides that a
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test can be administered only after (1) a lawful arrest, and (2)
an advisement that the arrestee has the right to refuse. HRS
§ 291E-11(b). It does not prohibit a law enforcement officer
from telling an arrestee, as part of that first advisement, that
sanctions “may” be imposed for a refusal. Similarly, even if
HRS § 291E-15 applied to Hosaka, the statute does not prohibit
officers from advising arrestees of possible sanctions when they
first ask an arrestee to submit to a chemical test and then
later providing a more specific explanation of the potential
sanctions if an arrestee refuses. 10 Accordingly, we conclude
that the implied consent form complied with HRS Chapter 291E.
B. Hosaka Voluntarily Consented to a Breath Test Under the
Totality of the Circumstances
Having determined that the implied consent form did
not violate statutory mandates, we turn to Hosaka’s remaining
arguments that his consent was not knowing, intelligent, and
voluntary because the form contained inaccurate and misleading
information under Wilson and was inherently coercive under Won.
10 We disagree with the ICA that sanctions could have been imposed
under HRS § 291E-15 based solely on the implied consent form used to advise
Hosaka initially. As discussed above, HRS Chapter 291E requires that an
arrestee be given two opportunities to consent to chemical testing, and HRS
§ 291E-15 only applies if an arrestee initially refuses testing. After that
first refusal, HRS § 291E-15(1) requires that a law enforcement officer
“[i]nform the person under arrest of the sanctions under section 291E-41 [or]
291E-65[.]” Thus, HRS § 291E-15 requires an arrestee be informed of the
sanctions which could apply — not simply that unspecified sanctions may
exist. As Form HPD-396K informed an arrestee only that sanctions “may”
result and did not explain what the potential sanctions were, law enforcement
would have to conduct a more detailed advisement in compliance with HRS
§ 291E-15(2) before sanctions could be imposed.
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1. Wilson does not support suppression of chemical test
results solely due to an inaccurate or incomplete
implied consent form
The circuit court concluded that the implied consent
form was inaccurate and therefore that this court’s decision in
Wilson, 92 Hawaiʻi 45, 987 P.2d 268, required the suppression of
Hosaka’s breath test results. According to the circuit court,
because the form in this case did not follow the required two-
step procedure set forth in HRS § 291E-15, sanctions could never
have been imposed, so it was inaccurate for the form to advise
Hosaka that they “may” have been. We disagree.
First, we conclude that the implied consent form was
accurate. It advised Hosaka that if he refused chemical
testing, he “may [] be subject to the procedures and sanctions
under chapter 291E, part III.” That was a true statement: At
the time Hosaka was advised, sanctions could have been imposed
if he refused and continued to refuse after being advised of the
possible sanctions, as required by HRS § 291E-15. Although the
imposition of sanctions required additional steps, the
possibility of sanctions for a refusal existed even at the
beginning of Hosaka’s implied consent advisal. HPD’s form
accurately explains this possibility by telling arrestees that
if they refused, they “may” be subject to the procedures and
sanctions in the implied consent statute.
However, even if we determined that HPD’s implied
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consent form was potentially misleading, that fact alone does
not warrant suppression. We take this opportunity to reiterate
that the constitution requires knowing, intelligent, and
voluntary consent — not compliance with every technical
requirement in the implied consent statutory scheme. See Won,
137 Hawaiʻi at 354, 372 P.3d at 1089 (“[T]he question of whether
the implied consent statute is adhered to is separate and
distinct from the constitutional inquiry into whether there is
actual consent to BAC testing under HRS § 291E-11(b).”). Thus,
the operative question is whether any defects in the form were
likely to influence an arrestee’s decision whether to consent.
In Wilson, the implied consent advisement informed
arrestees, “[I]f you refuse to take any tests . . . your driving
privileges will be revoked for one year instead of the three
month revocation that would apply if you chose to take the test
and failed it[.]” 92 Hawaiʻi at 47, 987 P.2d at 270. That
advisement was wholly incorrect — if a driver failed to take a
test, their driving privileges could be revoked for “anywhere
from three months to one year.” Id. We found that the nature
of the misrepresentation — that Wilson’s driver’s license would
be suspended for less time if he took a test and failed, than if
he refused a test — “was relevant to [the defendant’s] decision
whether to agree to or refuse the blood alcohol test.” Id. at
51, 987 P.2d at 274. As a result of the form’s
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misrepresentation, we held that suppression was necessary.
Wilson stands for the fundamental principle that
police officers may not induce an arrestee into not withdrawing
their implied consent by giving an inaccurate or misleading
implied consent advisement. Thus, we held that “where a change
in wording of the implied consent warnings operates to convey a
different meaning than that specified in the statute, the driver
cannot be held to have made a knowing and intelligent decision
whether to submit to an evidentiary alcohol test.” Wilson, 92
Hawaiʻi at 50, 987 P.2d at 273.
We recognize that in Wilson we stated, “the arresting
officer’s violation of [the implied consent statute’s] consent
requirement precludes admissibility of Wilson’s blood test
results in his related criminal DUI proceeding.” Id. at 53–54,
987 P.2d at 276–77. However, this does not mean that any
imperfection in the implied consent form mandates suppression of
the chemical test results. The implied consent form in Wilson
omitted the maximum possible administrative sanction to create
the misleading and inaccurate impression that the penalty for
refusing of a chemical test would be worse than submitting to a
test and failing. This misrepresentation was of the type
reasonably likely to influence an arrestee into consenting to a
chemical test; therefore, the arrestee’s consent was not
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knowing, intelligent, and voluntary. 11 Id. at 47, 987 P.2d at
270; cf. State v. Matsumoto, 145 Hawaiʻi 313, 324, 452 P.3d 310,
321 (2019) (“[D]eliberate falsehoods extrinsic to the facts of
the alleged offense, which are of a type reasonably likely
to . . . influence an accused to make a confession regardless of
guilt, [] will be regarded as coercive per se.” (quoting State
v. Kelekolio, 74 Haw. 479, 512–13, 849 P.2d 58, 73–74 (1993))
(emphases added)). Wilson involved an inaccurate advisement
informing an arrestee that the length of a driver’s license
suspension would be three months instead of one year, an
inaccuracy we characterized as “substantive” and “substantial,”
and which was reasonably likely to influence an arrestee’s
decision. 92 Hawai‘i at 53 n.11, 987 P.2d at 276 n.11.
Accordingly, Wilson should not be read to invalidate consent due
solely to minor defects in the implied consent advisory that are
unlikely to do so.
In this case, the implied consent form accurately
informed Hosaka of the possible sanctions and did not omit any
important information that could have influenced his decision
whether to withdraw his implied consent. Even if the statement
that sanctions “may” be imposed is considered misleading because
intervening steps would have to take place before that could
11 We emphasize that the constitutional infirmity in Wilson was not
the incomplete advisement per se, but the nature of the incompleteness — the
implied consent form omitted a substantive fact that rendered it misleading.
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happen, any inaccuracy was slight and unlikely to affect an
arrestee’s decision whether to consent to a chemical test.
Accordingly, suppression is not warranted under Wilson.
2. HPD’s implied consent form was not coercive under Won
Hosaka further argues that under this court’s decision
in Won, 137 Hawaiʻi 330, 372 P.3d 1065, the mere mention of
sanctions in the implied consent form was coercive and therefore
mandates suppression of the breath test results. The circuit
court agreed, concluding that even though Won involved criminal
sanctions for a refusal, “under the reasoning of Won, burdening
an arrestee’s election to refuse with any significant sanctions
cannot help but render any subsequent purported consent legally
insufficient and therefore null and void.” We disagree with the
circuit court’s interpretation of Won.
In Won, the defendant consented to a chemical test
after being advised that if he refused chemical testing he would
“be subject to up to thirty days imprisonment and/or fine up to
$1,000 or the sanctions of 291E-65, if applicable.” Id. at 335,
372 P.3d at 1070 (emphasis omitted). We held that “[w]here
arrest, conviction, and imprisonment are threatened if consent
to search is not given, the threat infringes upon and oppresses
the unfettered will and free choice of the person to whom it is
made, whether by calculation or effect.” Id. at 346, 372 P.3d
at 1081. Notably, we concluded that in addition to the sheer
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threat of criminal punishment, the advisement was especially
coercive because “the choice presented by the Implied Consent
Form forces a defendant to elect between fundamental rights
guaranteed by the Hawaiʻi Constitution,” and the duration of
possible imprisonment for a refusal was significantly higher
than the possible imprisonment for a first OVUII offense. Id.
at 347-48, 372 P.3d at 1082-83 (emphasis omitted).
However, we also explicitly distinguished
administrative sanctions from the threat of criminal prosecution
and imprisonment: “It bears repeating here that this opinion
does not concern the civil administrative penalties attendant to
a driver’s refusal of BAC testing. See HRS § 291E–41(d) (Supp.
[2012]); see generally HRS Chapter 291E, Part III. Those types
of sanctions are not affected in any way by our decision.” Id.
at 349 n.34, 372 P.3d at 1084 n.34. Given Won’s repeated
references to the coercive nature of the criminal sanctions at
issue, the circuit court erred in concluding that Won prohibited
“any significant sanction burdening a defendant’s choice to
refuse.”
Here, the implied consent form that Hosaka signed can
be distinguished from the form in Won: it did not threaten
Hosaka with arrest or imprisonment for refusing a chemical test;
it did not require him to choose between constitutional rights;
and it did not advise him, as the forms in both Won and Wilson
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did, that the punishment for refusal would be worse than the
punishment for failing a chemical test. Even if a threat of
administrative sanctions could be coercive under some
circumstances, the circumstances here do not rise to that level.
Moreover, there are no other factors (and certainly no other
factual findings regarding such factors) that could have been
coercive or that suggest Hosaka was, in fact, coerced. Thus, as
the totality of the circumstances demonstrates that Hosaka
voluntarily consented to the breath test, the results of that
test are admissible.
V. CONCLUSION
We hold that the implied consent form in this case
complied with HRS Chapter 291E and was not inaccurate or
misleading. Further, we clarify that not all inaccuracies in
implied consent forms require suppression of chemical testing
results: only inaccuracies that are reasonably likely to
influence an arrestee to consent will require suppression.
Similarly, informing an arrestee of possible civil sanctions
does not make an advisement automatically coercive. As the
implied consent form here was not inaccurate or coercive, and
the circuit court did not find that any of the other
circumstances of Hosaka’s advisal were coercive, Hosaka
knowingly, intelligently, and voluntarily consented to the
breath test, and the results of the breath test are admissible.
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Accordingly, the ICA’s judgment on appeal filed June 18, 2019,
is affirmed, and this case is remanded to the circuit court for
further proceedings consistent with this opinion.
Howard K. K. Luke /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian R. Vincent
for respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson
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