Daily Archives: December 8, 2015
According to the Hawaii Supreme Court, a person can no longer be subject to criminal action for refusing a chemical test under Hawaii’s implied consent law.
In 2011, Yong Shik Won was arrested for driving under the influence. After being transported to the police station, he was provided a form which explained that, by virtue of having a driver’s license and operating a vehicle, he had impliedly consented to giving a chemical test following a DUI stop.
The form also stated that Won was not entitled to an attorney prior to providing the chemical sample and that refusal to submit to a chemical test could subject him to criminal punishment.
Unlike many states, including California, Hawaii’s legislature in 2011 made it a petty misdemeanor to refuse a chemical test following a DUI stop. The penalties for a petty misdemeanor are 30 days in jail and/or a $1,000 fine.
Won was convicted and his appeal made it all the way up to Hawaii’s Supreme Court.
"This court has stated unambiguously that for consent to be in fact, freely and voluntarily given, the consent must be uncoerced," Justice Richard W. Pollack wrote for the court majority. "It is manifestly coercive to present a person with a ‘choice’ that requires surrender of the constitutional right to refuse a search in order to preserve the right to not be arrested for conduct in compliance with the constitution."
MADD, who has historically sought to diminish constitutional rights in the name of safety, not-so-surprisingly disagreed with the decision.
“In this Thanksgiving season, we are not thankful and I think it’s very bad timing as we go into a very dangerous holiday season,” said Carol McNamee with MADD Hawaii.
The Court, in its decision, also noted that the coercion was heightened when the jail sentence for refusal was six times greater than that of the actual DUI conviction; five days in jail.
The decision could potentially affect up to 3,000 cases according to City Prosecutor Keith Kaneshiro. Breath and blood tests of active cases, some of which date back to 2011, could be thrown out as evidence. It is, however, still possible to prosecute DUI cases, even without a breath or a blood test, using officer observations and other evidence of intoxication.
It is a breath of fresh air to see a high court acknowledge and address what Lawrence Taylor refers to as the DUI exception to the Constitution. For the record, I do, in fact, support safety in our streets, but not at the cost of our constitutional rights.