State v. Cheek-Enriques

• Court: Hawaii Supreme Court
• Decided: January 21, 2016
• Docket: SCWC-13-0005232
• Status: Published

Opinion

***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Electronically Filed Supreme Court SCWC-13-0005232 21-JAN-2016 08:28 AM

SCWC-13-0005232

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI ________________________________________________________________

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

vs.

BYRON D. CHEEK-ENRIQUES, Petitioner/Defendant-Appellant. ________________________________________________________________

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0005232; CASE NO. 1DTA-11-05193)

SUMMARY DISPOSITION ORDER (By: McKenna, Pollack, and Wilson, JJ., with Wilson, J., concurring separately, and Nakayama, J., dissenting separately, with whom Recktenwald, C.J., joins)

Petitioner/Defendant-Appellant Byron D. Cheek-Enriques

seeks review of the Intermediate Court of Appeals’ (ICA) June 3,

2015 Judgment on Appeal, entered pursuant to its April 28, 2015

Summary Disposition Order, which affirmed the District Court of

the First Circuit’s (district court) October 16, 2013 Notice of ***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Entry of Judgment and/or Order and Plea/Judgment (district court

judgment).1 The district court found Cheek-Enriques guilty of

Operating a Vehicle Under the Influence of an Intoxicant

(OVUII), in violation of Hawaiʻi Revised Statutes (HRS) § 291E-

61(a)(3) (Supp. 2010).2 We accepted Cheek-Enriques’s Application

for Writ of Certiorari, and we now vacate the ICA’s Judgment on

Appeal and the district court judgment and remand the case to

the district court for further proceedings.

After being arrested for OVUII, Cheek-Enriques was

taken to the police station, where he was read an implied

consent form.3 Cheek-Enriques elected to take a breath test,

1 The Honorable David Lo presided. 2 HRS § 291E-61(a)(3) (Supp. 2010) 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 read 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 [sic] or tests to determine your alcohol and/or drug content.

(continued . . .)

2 ***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

which resulted in a breath alcohol content reading of 0.155

grams of alcohol per 210 liters of breath. Cheek-Enriques filed

a motion to suppress the breath test results based on a

violation of the Fourth Amendment of the United States

Constitution and Article I, Section 7 of the Hawaiʻi

Constitution, which the district court denied. The ICA affirmed

the district court’s denial of this motion to suppress. On

certiorari, Cheek-Enriques contends, inter alia, that he did not

constitutionally consent to the breath test because “[t]elling

someone that [he or she] must consent to a 4th Amendment search

or face 30 days in jail simply is not consent under the 4th

Amendment.”

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

(. . . continued)

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 [sic], 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 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 HAWAIʻI 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 State v. Won, the result of

Cheek-Enriques’s breath test was the product of a warrantless

search, and the ICA erred by concluding that the district court

properly denied Cheek-Enriques’s motion to suppress the breath

test result. Accordingly, Cheek-Enriques’s OVUII conviction may

not be upheld.

IT IS HEREBY ORDERED that the ICA’s June 3, 2015

Judgment on Appeal and the district court judgment are vacated,

and the case is remanded to the district court for further

proceedings consistent with this court’s opinion in State v.

Won.

DATED: Honolulu, Hawaiʻi, January 21, 2016.

Jonathan Burge /s/ Sabrina S. McKenna for petitioner /s/ Richard W. Pollack

Brian R. Vincent /s/ Michael D. Wilson for respondent