State Supreme Court: Punishing Refusal to Submit to Blood Test Voids Consent

Posted by Lawrence Taylor on November 27th, 2015

Two days ago, I posted about the growing trend of states to criminalize refusals to submit to blood-alcohol testing in DUI cases.  See Is It a Crime to Refuse to Give Blood in a DUI Arrest?   This punishment for refusing to incriminate yourself seems yet another example of what I’ve repeatedly referred to as "The DUI Exception to the Constitution".

And, coincidentally, exactly two days ago the Hawaii Supreme Court handed down a decision reversing a DUI conviction — on the grounds that the defendant’s consent to a blood-alcohol test was invalid because it had been obtained through coercion.  The "consent", the Court said, was not freely and voluntarily given since it was given out of fear that refusing would result in criminal punishment.


State Supreme Court Ruling May Affect Hundreds of DUI Cases

Honolulu, HI.  Nov. 25 —  A Hawaii Supreme Court decision today could affect hundreds of outstanding drunken driving cases across the state — and potentially force authorities to reconsider whether those arrested for drunken driving in Hawaii in recent years gave proper consent before they took a blood-alcohol test.

The high court’s decision centers on an isolated drunken-driving case, the State of Hawaii vs. Yong Shik Won. Won’s 2011 driving-under-the-influence conviction relied on a breath test that showed he had a blood-alcohol content of 0.17. That’s above the state’s 0.08 legal limit to drive.

Won consented to the test after signing his initials on a consent form that said he faced up to $1,000 in fines and 30 days in jail if he refused to submit to it, according to court documents. The form mirrors a state law enacted that same year that made it a misdemeanor crime to refuse to submit to such breath tests, as well as blood or urine tests, to determine if someone was legally intoxicated.

The law is similar to statutes in other states across the country, officials say…

“If you don’t consent to this search, you’re going to go to jail for 30 days. And that’s what they told people as they did all this.” (Won’s attorney) said today, referring to blood, breath and urine tests.

A three-member majority of the state’s highest court ruled in Won’s favor, arguing that Won did not voluntarily consent to the breath test used in his DUI conviction…


As the Court wrote in its lengthy opinion:


Under our law, a person has a statutory and  constitutional right to refuse to consent to a bodily search unless an exception to the search warrant requirement is
present. In this case, the defendant was informed by the police of his right to refuse to consent to a search, but he was also told that if he exercised that right, his refusal to consent would be a crime for which he could be imprisoned for up to thirty days…
 

 

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