Court case challenges state law on breath test choice

A state law that criminalizes a person’s refusal to take a breath test if suspected of drunken driving violates the U.S. Constitution, defense attorney Jonathan Burge argued before the state Supreme Court on Thursday.

Burge, who has been practicing law for 18 years, said the outcome of the case could affect thousands of drunken driving cases across the islands.

"It’s a very good issue. I haven’t felt as strong about anything since I’ve been practicing," Burge said.

The law in question makes refusing a breath test a petty misdemeanor punishable by up to 30 days in jail and up to a $1,000 fine.

Burge said the law is unconstitutional under the Fourth Amendment, which protects against unreasonable searches.

"If the person exercises their Fourth Amendment right and says, ‘I don’t want to allow you to engage in this search,’ they’re subject to 30 days in jail," Burge said. "That violates the Fourth Amendment."

The dispute arises from Yong Shik Won’s conviction for drunken driving on April 20, 2011.

About 3:15 a.m., a Hono­lulu police officer stopped Won for going about 55 mph in a 35 mph zone. The officer noted that Won appeared drunk and had a strong odor of alcohol, according to court documents.

Won failed a field sobriety test and was arrested. He was taken to the police station and given a form stating he had given his "implied consent" to take a breath test, he was not entitled to an attorney before taking the alcohol test, and that if he refused to take the test, he "shall be" subject to up to 30 days imprisonment and/or a fine of up to $1,000.

Won refused to initial next to the paragraph that denied him a lawyer, saying he did not agree with it and blew a .17 on the breathalyzer, more than two times the legal limit of .08.

Won was found guilty and sentenced to a fine of $500 and other administrative assessments.

Burge appealed the case before the Intermediate Court of Appeals, arguing that police needed a search warrant before conducting a breath test.

The Intermediate Court ruled against Won in March, saying that Hawaii is one of 14 states that criminalizes the refusal to take a breath test. The court’s decision said driving is a privilege and a person exercising that privilege gives consent to be tested for alcohol or drugs.

The court added that the state gives drivers the right to refuse in cases with no injury or death to avoid violent confrontations with police, but there are penalties for their refusals. Before the law that criminalized refusals was enacted in 2011, the penalty was to take away an individual’s license.

Burge said revoking a license was not unconstitutional because it was an administrative action.

Burge said his case was bolstered by a U.S. Supreme Court ruling in 2013 about a forced blood draw in a drunken driving case. The court found in that case that the dissipation of alcohol alone does not qualify as an urgent need to conduct a blood draw without a warrant.

Burge said the Supreme Court decision also applies to the state’s law about breath tests, which he argued in court documents are also inner body searches requiring a warrant under the Fourth Amendment.

The Intermediate Court had disagreed with Burge, calling a breath test "less intrusive" than a blood draw.

The Honolulu prosecutor’s office is arguing the case on behalf of the state with assistance from the state attorney general’s office. The prosecutor’s office said it cannot comment on ongoing cases.

Robert Nakatsuji, deputy solicitor general in the attorney general’s office, who is assisting in the case, said Burge was relying on a narrow decision in a U.S. Supreme Court case that does not apply in Hawaii’s cases.

"That case, which was Missouri versus McNeely, does not really cast any doubt on the validity of Hawaii’s statutes," he said. "Our argument to the court was that Hawaii’s statutes are constitutional."

Burge is also arguing that the Intermediate Court made a mistake by ruling the police did not violate state law by denying Won an attorney.

Burge said Won was told he had a choice of taking the test or refusing and his refusal could have led to his incrimination.

The Intermediate Court said in its decision that the police communication with Won was not an interrogation and thus, he was not entitled to consult with a lawyer.

Burge said he suspects the U.S. Supreme Court will eventually address the issue of whether breath and urine tests require warrants.

"As of now, the states are kind of doing their own (thing and) all these different state supreme courts are ruling on it," he said, adding that some states ruled in his favor. "This is the Hawaii Supreme Court’s first opportunity to take a look at it."

He said the state Supreme Court usually takes about four months to reach a decision.

The state Supreme Court also accepted six other drunken driving appeals filed by Burge.

Burge said the state has filed more than 4,000 drunken driving cases so far this year.

He said if the state Supreme Court rules in his favor, the court will also decide if the decision applies to all cases, only open cases, or only future cases.

"If they apply it to everybody that has a case currently, then everybody’s blood, breath or urine tests will go away," he said. "But the state could still proceed under the alternate means, which is basically your driving condition."