State v. Scalera., 139 Haw. 453

Background

John Scalera was stopped for weaving, arrested for OVUII, and taken to the police station after field sobriety tests indicated intoxication.
At booking Officer Krekel read an HPD implied consent form that expressly stated arrestees are “not entitled to an attorney before [they] submit to any tests.” Scalera verbally refused testing.
Scalera moved to suppress evidence claiming the advisement violated his statutory right to access counsel under HRS § 803-9; he did not base suppression on Miranda or an unlawful stop at the district court level.
The district court denied the motion to suppress and convicted Scalera of OVUII and refusal; the ICA affirmed.
The Hawai‘i Supreme Court held the implied-consent advisement misstated the law and thus violated HRS § 803-9, but Scalera failed to prove by a preponderance that that violation caused his refusal, so suppression was not warranted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether HRS § 803-9 (statutory right to consult counsel after arrest) applies only to custodial interrogation	State: Severino and related precedent mean no right to counsel before implied-consent testing; police need not allow counsel during booking/testing decisions	Scalera: HRS § 803-9 grants a post-arrest right to see/communicate with counsel independent of interrogation and applies before testing decisions	Court: HRS § 803-9 is not limited to interrogation; it protects post-arrest access to counsel and was implicated here
Whether an officer may affirmatively advise an arrestee they are not entitled to counsel before testing	State: No duty to proactively advise; treating testing/booking as non-counsel stage	Scalera: An affirmative, incorrect advisement preempts statutory rights and must be corrected	Court: An officer may not give misleading or incorrect advisements that preempt HRS § 803-9 rights; the implied consent form saying "not entitled" was wrong
Whether the incorrect advisement violated Scalera’s HRS § 803-9 rights	State: Even if form was imperfect, there was no interrogation and no statutory violation affecting evidence	Scalera: The form’s statement denied his right to consult counsel, violating § 803-9	Court: The reading of the form and officer testimony that counsel would not have mattered violated § 803-9
Remedy: Whether suppression of the implied-consent form, refusal, or testing evidence is required	State: Suppression unwarranted absent constitutional violation or a showing that statutory violation affected the evidence	Scalera: Suppression required because the misleading advisement legally tainted his voluntariness/choice	Court: Suppression is not warranted here—Scalera failed to prove by a preponderance that the § 803-9 violation caused his refusal or produced the evidence

Key Cases Cited

State v. Severino, 56 Haw. 378 (addressed right to counsel in implied-consent/licensing context)
State v. Edwards, [citation="96 Hawai'i 224"] (statutory right to counsel under § 803-9; suppression requires connection between violation and evidence)
State v. Ababa, [citation="101 Hawai'i 209"] (§ 803-9 invocation and suppression where failure to contact counsel caused waiver/statements)
State v. Wilson, [citation="92 Hawai'i 45"] (misleading advisement on test penalties can invalidate consent and warrant suppression)
State v. Pattioay, [citation="78 Hawai'i 455"] (court used supervisory power to suppress evidence obtained in violation of statute)
State v. Won, [citation="137 Hawai'i 330"] (discussed interrogation/testimony distinction; portions relied on by ICA here were disapproved)