STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee, v. YONG SHIK WON, Petitioner/Defendant-Appellant.
No. SCWC-12-0000858.
Supreme Court of Hawai‘i.
Nov. 25, 2015.
372 P.3d 1065
Brian R. Vincent, for respondent.
Robert T. Nakatsuji, Honolulu, for Amicus Curiae Attorney General of the State of Hawai‘i.
Donald J. Ramsell, for Amicus Curiae National College for DUI Defense.
McKENNA, POLLACK, and WILSON, JJ., with WILSON, J., concurring separately, and NAKAYAMA, J., dissenting, with whom RECKTENWALD, C.J., joins.
Opinion of the Court by POLLACK, J.
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.
Yong Shik Won was stopped by police while driving his vehicle on April 20, 2011. After his arrest for operating his vehicle under the influence of an intoxicant, Won was given a choice. He could either submit to a test for the purpose of determining alcohol concentration, or if he did not submit, he would be arrested, prosecuted, and subject to thirty days of imprisonment for the crime of refusal to submit to a breath, blood, or urine test. After being given this choice, Won elected to undergo a breath test, the result of which provided the basis for Won’s conviction for the offense of operating a vehicle under the influence of an intoxicant.
We consider whether Won’s election to submit to the breath test was consensual under the circumstances presented. We hold that it was not.
I. Introduction
The prohibition against operating a vehicle under the influence of an intoxicant (OVUII) provides that all drivers are deemed to have given consent tо submit to a test of their breath, blood, or urine, for the purpose of determining alcohol concentration or drug content.1
If a person arrested for OVUII refuses to submit to a test to determine blood alcohol concentration (BAC test), the law provides that “none shall be given,”
In contrast, the second category of penalties for refusing to submit to a BAC test is a criminal sanction. “Except as provided in
II. Arrest and proceedings through trial
During the early morning hours of April 20, 2011, Won was observed driving at a high rate of speed by an officer of the Honolulu Police Department (HPD). After pulling Won over, the officer detected the odor of alcohol on Won’s breath and observed that Won’s eyes were “red” and “watery.” Based on this information, the officer concluded that Won was likely intoxicated. A standard field sobriety test and preliminary alcohol screen test were administered, both of which Won failed. Won was arrested for OVUII in violation of
At the police station, an officer read to Won a form entitled “Use of Intoxicants While Operating a Vehicle Implied Consent for Testing” (Implied Consent Form). Of foremost relevance to this case, the Implied Consent Form informs arrested persons of certain information, in three sections.
Pursuant to
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
The ICA asserted that “the Legislature presumably could have sought to make the implied consent to breath testing completely irrevocable.” Won, 134 Hawai‘i at 78-79, 332 P.3d at 680-81. Consequently, the ICA acknowledged the existence of a statutory right to refuse consent under our law, but it concluded that it is ineffective and cannot invalidate the consеnt deemed by statute. Under the ICA’s analysis, it is not clear what remains of a “right” to refuse to submit to a BAC test when that right is “modified.” As discussed above, it is well settled that an individual retains the right to consent or to decline to consent to a BAC test at the time the State makes its request. Garcia, 96 Hawai‘i 200, 207, 29 P.3d 919, 926 (2001); Wilson, 92 Hawai‘i 45, 49-50, 987 P.2d 268, 272-73 (1999); Nakamoto, 64 Haw. 21, 21, 635 P.2d 946, 951 (1981). Thus, contrary to the ICA’s assertion, the right to refuse to submit to a BAC test is not rendered ineffectual by the statutory implied consent.
The ICA also appears to extend the consent allegedly deemed by statute into the protections secured by the Federal and Hawai‘i Constitutions, stating that “[t]he limited statutory right to refuse testing also does not mean that the driver’s implied consent is not valid for purposes of the Fourth Amendment and Article I, Section 7.” Won, 134 Hawai‘i at 78, 332 P.3d at 680. That is, the ICA asserts that the driver’s implied consent is recognized by or affirmed under the constitution, and therefore, there is no right to withdraw consent. However, the right to refuse consent to a BAC test is not merely a right provided by statute; rather, the right to refuse to consent to be searched and the right to withdraw consent are intrinsic in our constitution. Nakamoto, 64 Haw. at 21, 635 P.2d at 951; Price, 55 Haw. 443, 443, 521 P.2d 376, 377 (1974).
The ICA’s balancing approach to determine reasonableness has not been adopted in our State and does not comport with an individual’s rights against warrantless searches guaranteed by the Hawai‘i Constitution. Further, this approach discounts the statutory and constitutional rights to refuse to submit to a BAC test and does not account for the coercive nature of the threat of imprisonment communicated by the Implied Consent Form, the forced selection between constitutional rights, or the significant punishment authorized for the refusal offense. Accordingly, we conclude that the ICA’s analysis is in error.38
We emphasize that the exception to the warrant requirement of article I, section 7 of the Hawai‘i Constitution, and the relaxation of the probable cause standard to one of reasonable suspicion that we prescribe in the present case, are strictly limited to the school context and the unique balance of interests present therein. Id. (emphasis added).
1. The doctrine of unconstitutional conditions does not apply
The dissent employs the doctrine of unconstitutional conditions,39 a different balancing test than that used by the ICA, in concluding that the legislature was authorized to criminalize the refusal by a suspected OVUII offender of a BAC test as a condition of the privilege of driving on public roads. Dissent at 364-69, 372 P.3d at 1099-1104. Significantly, this Court has never applied this doctrine in criminal cases,40 for when law enforcement conducts a warrantless search with the intention to discover evidence of a crime, article I, section 7 governs. And as already made clear, the proper inquiry in those instances is whether the State has proven that the warrantless search falls within an exception to the warrant requirement recognized by this Court. See Ganal, 81 Hawai‘i at 368, 917 P.2d at 380. Thus, there is a presumption of invalidity when a warrantless search is at issue, State v. Heapy, 113 Hawai‘i 283, 307, 151 P.3d 764, 788 (2007), which can be rebutted by the State not by proving that the governmental interest outweighs the unauthorized privacy intrusion, dissent at 364-66, 372 P.3d at 1099-1100, but by demonstrating that a well-recognized and narrowly defined exception to the warrant requirement applies. Ganal, 81 Hawai‘i at 368, 917 P.2d at 380.
Under the dissent’s theory—that the government can criminalize the exercise of the constitutional right to withhold or revoke consent because of the government’s compelling interest in protecting the public from OVUII offenders—there is nothing to proscribe the government from branding as a crime the exercise of other constitutional rights. The government need only cite dire statistics resulting from a particular crime to claim that there is a serious societal problem, find or create a governmentally provided privilege, attach to that privilege a condition waiving a constitutional right, and then rationalize such a waiver by referring to published reports or articles that have identified its possible benefits.
That is, the dissent relegates constitutionally guaranteed rights to a position in which they may be eliminated any time statistics could be marshalled to profess a need for doing so and the exercise of that right can be associated with a negative societal impact. For example, in the OVUII context, the dissent’s analytical rubric could potentially allow the government to eviscerate all constitutionally guaranteed rights of motorists.41 If the compelling interest of the government trumps the constitutional right not to be searched without a warrant, it can be extended to similarly defeat the Miranda rights or the right to counsel of an OVUII defendant by making their exercise a criminal offense if it can be statistically shown that instances of OVUII-related incidents or casualties are diminished when Miranda rights and the right to counsel are waived.42
At least one state appellate court has explicitly rejected a balancing approach in the context of a case similar to ours, reasoning that the fundamental inquiry is whether the implied consent statute creates an impermissible per se exception to the warrant requirement, not whether the legislature is authorized to enact such a statute. See Weems v. State, 434 S.W.3d 655, 665 (Tex. App. 2014), pet. granted (Aug. 20, 2014).
Further, this doctrine was not used in any of the other state appellate cases where criminal refusal sanctions were found not to be inherently coercive. See, e.g., People v. Harris, 234 Cal. App. 4th 671, 184 Cal.Rptr.3d 198, 213 (2015) (applying the totality of the circumstances test to determine whether the consent exception to the warrant requirement validated the warrantless blood test), review denied (June 10, 2015); State v. Brooks, 838 N.W.2d 563, 569 (Minn. 2013), cert. denied, 572 U.S. 1134, 134 S.Ct. 1799, 188 L.Ed.2d 759 (2014) (same); State v. Modlin, 291 Neb. 660, 867 N.W.2d 609, 619 (2015) (same); State v. Smith, 849 N.W.2d 599, 606 (N.D. 2014) (same, but defendant was subjected to a breath test).
Even assuming that the doctrine of unconstitutional conditions could somehow be considered applicable in this case, the dissent’s analysis would remain flawed. The condition imposed by the government in this case is implied consent to a warrantless search, in the form of a BAC test on a motorist suspected of OVUII, for the privilege of driving on public roads. See
According to the dissent, however, the condition imposed by the government is the criminalization of the withdrawal of implied consent. Dissent at 364, 372 P.3d at 1099. This is a misidentification of the condition implicated, since the criminal refusal sanctions here are akin to the exclusion in Nakamoto of a concertgoer from a government-owned arena if he or she had refused a warrantless search of his or her bag. Plainly, the criminal refusal sanctions here and the exclusion from entry in Nakamoto are merely the consequences of a person’s refusal to abide by the governmentally imposed condition—a warrantless search—and are not the conditions from which an unconstitutional conditions analysis must proceed.43
As already made clear, the government must comply with the constitutional requirements undergirding the procurement and validity of consent and cannot, by statute, alter or reshape the doctrine of consent by rendering meaningless or short-circuiting its constitutional underpinnings—the most essential among which is voluntariness. See State v. Bonnell, 75 Haw. 124, 147-48, 856 P.2d 1265, 1277 (1993) (reasoning that consent “means more than the absence of an objection”; rather, “it must be shown that such consent was voluntarily given”). Accordingly, contrary to the dissent’s view, actual consent under
The dissent’s conclusion that Won’s consent was valid rests solely upon its finding that the implied consent statute is a legitimate exercise of legislative authority. Dissent at 368, 372 P.3d at 1103. However, this court has never held that the implied consent statute qualifies as one of the “specifically established and well[-]delineated exceptions” to the warrant requirement under article I, section 7. State v. Phillips, 67 Haw. 535, 539, 696 P.2d 346, 349 (1985); see also Aviles v. State, 443 S.W.3d 291, 294 (Tex. App. 2014) (holding that implied consent statutes are not permissible exceptions to the warrant requirement), pet. filed (Aug. 8, 2014); State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014) (emphasizing that the court has never held South Dakota’s implied consent statute as a recognized exception to the warrant requirement). The dissent assеrts that “cooperation with a criminal implied consent regime yields real and voluntary consent that excuses officers from obtaining a warrant.” Dissent at 364, 372 P.3d at 1099. This assertion essentially treats compliance with the implied consent statute as one and the same as the constitutionally valid, voluntary consent required by
The dissent effectively renders every warrantless BAC test automatically valid for purposes of the Fourth Amendment and article I, section 7 so long as it is conducted in conformity with the implied consent statute and even if other facts and circumstances would otherwise preclude a finding of actual consent. See Dissent at 368, 372 P.3d at 1103. By ignoring the salient constitutional component of the inquiry, the dissent thus creates a per se exception to the warrant requirement.47 Dissent at 368, 372 P.3d at 1103.
To reiterate, searches contended by the State to be consensual under Hawai‘i law are subject to “the most careful scrutiny” because failure to adhere to this standard “would sanction the possibility of ... coercion.” Trainor, 83 Hawai‘i 250, 262, 925 P.2d 818, 830 (1996). Hence, to the extent that the foregoing cases from other jurisdictions did not find criminal refusal sanctions inherently coercive, they are inconsistent with the right, under article I, section 7, to free, voluntary, and meaningful decision-making when waiver of constitutional rights is solicited, and they are in derogation of such values embodied by Hawai‘i law as respect for human dignity аnd the integrity of one‘s person. See Kaluna, 55 Haw. at 366, 371 & n. 7, 520 P.2d at 57, 60 & n. 7; see also supra note 35.
Additionally, the dissent’s per se exception is irreconcilable with an authoritative understanding of the consent exception under both the Fourth Amendment and article I, section 7, which requires a case-specific inquiry into the totality of the circumstances to evaluate voluntariness. See Schneckloth, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Russo, 67 Haw. 126, 137, 681 P.2d 553, 562 (1984); Ganal, 81 Hawai‘i at 368, 917 P.2d at 380. This case-specific analytical framework underlying consent means that mere compliance with the dictates of the implied consent statute does not necessarily, much less automatically, equate to a finding of actual, voluntary consent under
V. Conclusion
In this case, Won sought to suppress evidence recovered in a warrantless search. The State has not contested that the search was warrantless, but argued, inter alia, that it was nonetheless consensual. However, the State has not met its burden to demonstrate that Won’s consent to be searched and the waiver of his constitutional right to be free of warrantless searches was the product of his free and unconstrained choice.
Under article I, section 7 of the Hawai‘i Constitution, where no “specifically established and well-delineated exception[]” is present, a warrantless search is per se unreasonable, and any results of that search must be excluded from evidence. Ganal, 81 Hawai‘i at 368, 917 P.2d at 380. Here, because voluntary consent has not been demonstrated and no other exception to the warrant requirement is applicable, the result of Won’s breath test, the product of the warrantless search, is not admissible into evidence.48
Based on the foregoing analysis, the district court erred in not suppressing the result of Won’s breath test. The judgment on appeal of the ICA and the district court’s amended judgment of conviction are vacated, and the case is remanded to the district court for further proceedings consistent with this opinion.49
Concurring Opinion by WILSON, J.
I join the majority opinion’s conclusion that the search in the instant case violated article I, section 7 of the Hawai‘i Constitution. Our decision does not, however, address the constitutionality of the statute,
Recently, under the guise of protecting the public from intoxicated drivers, the constitutional rights of licensed drivers to be free from unreasonable searches and seizures have been eroded by laws that make criminal the exercise of those rights. By criminalizing an individual’s decision to require a warrant before being subjected to a breath or blood alcohol search, such laws expose to prison those who obtain a driver’s license and exercise the right to be free from unreasonable searches and seizures. Some courts have embraced this criminalization of the exercise of fourth amendment rights. See, e.g., State v. Brooks, 838 N.W.2d 563, 570-73 (Minn. 2013); State v. Birchfield, 858 N.W.2d 302, 306-10 (N.D. 2015); People v. Harris, 225 Cal. App. 4th Supp. 1, 170 Cal.Rptr.3d 729, 734-36 (2014).
Notwithstanding recent precedent endorsing the implied surrender of the warrant requirement, the fourth amendment to the United States Constitution may still stand as a guarantee of Won’s right to request a warrant before his privacy interest in his breath was subjected to a governmental search. The United States Supreme Court has not directly addressed this issue. Nonetheless, under the Hawai‘i Constitution, Won did not impliedly surrender that right by joining the vast number of Hawai‘i citizens who obtain a driver’s license. In Hawai‘i, the privacy interest due a citizen in breath, blood, or urine is protected by the warrant requirement of article I, section 7 of the Hawai‘i Constitution. Hawai‘i is not a state whose citizens fall prey to the proposition that, by obtaining a driver’s license, they impliedly surrender their right to receive the protection of a warrant before enduring a blood or breath search. We have a rightfully proud tradition under our constitution of providing greater protections to our citizens than those afforded under the United States Constitution. See, e.g., State v. Mundon, 121 Hawai‘i 339, 365, 219 P.3d 1126, 1152 (2009) (“[W]e are free to give broader protection under the Hawai‘i Constitution than that given by the federal [Constitution].” (second alteration in original) (citation omitted) (internal quotation mark omitted)); State v. Heapy, 113 Hawai‘i 283, 298, 151 P.3d 764, 779 (2007) (noting that article I, section 7 of the Hawai‘i Constitution provides “a more extensive right of privacy[ ]” than the fourth amendment (citation omitted) (internal quotation mark omitted)); State v. Rogan, 91 Hawai‘i 405, 423, 984 P.2d 1231, 1249 (1999)
Here, because there was no voluntary consent and no other exception to the warrant requirement, Won’s breath test, gained pursuant to
The legislature recognized the problematic nature of the statute prior to its enactment. During discussions regarding the bill containing the criminal penalty for refusal, the Chair of the House Judiciary Committee stated: “Criminalizing the refusal to submit to a test infringes upon important personal rights that in the past, this Legislature has been mindful of protecting.” 2010 House Journal, at 838 (statement of Rep. Karamatsu). He further noted that the law would “result[ ] in situations where the arrestee is convicted of refusal when the test result would have indicated that the arrestee was not guilty of [OVUII].” Id. This sentiment was memorialized in a House Standing Committee Report, which warned:
Your Committee understands that to criminalize refusal to submit to a breath, blood, or urine test infringes upon important personal rights that in the past the Legislature has been protected. Your Committee is mindful that such a law can result in a situation where the arrestee is convicted of refusal when the test results would have indicated that the arrestee was not guilty of intoxicated driving.
H. Stand. Comm. Rep. No. 907-10, in 2010 House Journal, at 1343.
For the reasons discussed above, and because there is no instance in which the criminalization of the right to refuse a BAC test pursuant to the statutory scheme at issue would be rendered constitutionally permissible,
In assessing the facial validity of “a statute authorizing warrantless searches” the United States Supreme Court has noted that “the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant.” City of Los Angeles v. Patel, 576 U.S. 409, 2461, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015). Thus, in declaring facially unconstitutional a Los Angeles Municipal Code provision requiring that hotels make guest records available for police inspection, the United States Supreme Court rejected the argument that the statute was saved by the fact a valid search could occur pursuant to a warrant or an exigent circumstance:
If exigency or a warrant justifies an officer’s search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes
Id. at 2450. On this basis, the Court rejected the petitioner’s contention that the facial challenge to the statute “must fail because such searches will never be unconstitutional in all applications.” Id. at 2450.
In Patel, the Court also rejected the United States’ argument “that a statute authorizing warrantless searches may still have independent force if it imposes a penalty for failing to cooperate in a search conducted under a warrant or in an exigency.” Id. at 2451 n. 1. In this regard, the Court noted that the availability of prosecution for failure to consent to warrantless searches authorized by the constitution does not save the statute from its constitutional infirmity:
This argument gets things backwards. An otherwise facially unconstitutional statute cannot be saved from invalidation based solely on the existence of a penalty provision that applies when searches are not actually authorized by the statute. This argument is especially unconvincing where, as here, an independent obstruction of justice statute imposes a penalty for “willfully, resisting], delay[ing], or obstruct[ing] any public officer ... in the discharge or attempt to discharge any duty of his or her office of employment.”
Cal. Penal Code Ann. § 148(a)(1) (West 2014).
Id.
Similarly, in the instant case, the effect of
Moreover, the ICA and the dissent’s proposition that the threat to public safety from intoxicated drivers renders reasonable the criminalization of the exercise of a fourth amendment right is anathema to the purpose of the fourth amendment. It is the very purpose of the fourth amendment and article I, section 7 of the Hawai‘i Constitution to elevate the individual liberties of citizens beyond calibration based on the degree of threat to public safety posed by a particular crime. Constitutional liberties do not depend on the seriousness of the crime involved. See Ferguson v. City of Charleston, 532 U.S. 67, 86, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (explaining that although urine tests provide evidence of drug abuse, which is a serious problem, “the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose” (citation omitted) (internal quotation marks omitted)); United States v. United States Dist. Court, 407 U.S. 297, 315-16, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (noting that the warrant clause of the fourth amendment
No matter the inducement of contemporary statistics, the constitution stands as a bulwark against the insidious balancing of individual liberty in proportion to the seriousness of the crime for which a citizen stands accused. To deem reasonable a law so manifestly antithetical to the continued vitality of the fourth amendment and article I, section 7 is to pave the analytical way for future statutes that permit government to prosecute citizens who insist on a warrant before being subjected to a search or seizure. Indeed, the balancing approach adopted by the ICA and the dissent affords the legislature the option to enhance the penalty for refusing to consent to a search—perhaps to a felony—if convincing statistics establish that the present sanction is not sufficiently reducing the number of intoxicated drivers. Such an approach runs afoul of the fourth amendment and article I, section 7 of our constitution. There are exigencies independent of the seriousness of a crime justifying the government’s warrantless search of the realm of privacy enjoyed by citizens in their body as well as their homes. See, e.g., State v. Clark, 65 Haw. 488, 494, 654 P.2d 355, 360 (1982) (recognizing that an exigency exists when there is “an immediate danger to life or of serious injury or an immediate threatened removal or destruction of evidence”); State v. Dorson, 62 Haw. 377, 384, 615 P.2d 740, 746 (1980) (same). However, the nature of a crime, no matter how serious, does not expose citizens to a government unfettered by the right to be free from unreasonable searches and seizures.
Dissenting Opinion by NAKAYAMA, J., in which RECKTENWALD, C.J., joins.
The Majority holds that the criminal sanctions for refusing to submit to a breath or blood alcohol test provided by Hawai‘i Revised Statutes (
I dissent. I would hold that the legislature properly exercised its constitutional authority when it criminalized the refusal to submit to breath or blood alcohol testing pursuant to Hawai‘i’s implied consent statutes. In this case, Won’s cooperation with lawful implied consent procedures constituted real and voluntary consent that excused the officers from obtaining a warrant. Accordingly, I would affirm Won’s conviction and sentence.
DISCUSSION
I.
This court bears a heavy burden when it is tasked with declaring a law unconstitutional. As Chief Justice John Marshall has explained:
The question, whether a law be void for its repugnancy to the constitution, is, at all
Fletcher v. Peck, 10 U.S. 87, 128, 3 L.Ed. 162 (1810) (Marshall, C.J.). A court of review cannot evade this solemn obligation by declaring that although a statute maintains some facial validity, it operates unconstitutionally in almost every case in which it might apply, and specifically, in those cases in which the legislature intended it to apply.
II.
A.
Implied consent laws have a long history of constitutional validity that dates back at least to the 1950s. In Breithaupt v. Abram, 352 U.S. 432, 435 & n. 2, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), the Supreme Court was presented with the fact that Kansas had “by statute declared that any person who operates a motor vehicle ... shall be deemed to have given his consent to submit to a chemical test ... for the purpose of determining the alcoholic content of his blood.” The Court described Kansas’ implied consent law as a “sensible and civilized system protecting ... citizens not only from the hazards of the road due to drunken driving but also from some use of dubious lay testimony,” and held that although a defendant “was unconscious when [his] blood was taken, ... the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right.” Id. Accordingly, the Supreme Court acknowledged early on that implied consent can function as valid constitutional consent.1
Implied consent laws rely on the premise that “[d]riving is a privilege, not a right,” and that it is therefore subject to regulation pursuant to the state’s police powers. See State v. Spillner, 116 Hawai‘i 351, 364, 173 P.3d 498, 511 (2007); Illinois v. Batchelder, 463 U.S. 1112, 1116-17, 103 S.Ct. 3513, 77 L.Ed.2d 1267 (1983). One such regulation is that any person who operates a vehicle upon a public road shall be deemed, as a matter of law, to have given consent to OVUII testing. See
Our legislature enacted an implied consent statute in 1967 as a principled “means of decreasing fatalities, injuries, damages and losses resulting from highway traffic accidents.” Rossell v. City & Cnty. of Honolulu, 59 Haw. 173, 181, 579 P.2d 663, 669 (1978). Implied consent laws encourage drivers suspected of OVUII to provide breаth, blood, or urine samples by imposing substantial administrative sanctions on those who refuse to submit to chemical testing. See, e.g.,
The Supreme Court recently reaffirmed the constitutional validity of implied consent laws, and specifically acknowledged that these laws penalize refusal with significant administrative sanctions:
States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.... Such laws impose significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately suspended or revoked, and most States allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent proseсution.
Missouri v. McNeely, 569 U.S. 141, 1566, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (Sotomayor, J., plurality opinion) (emphasis added). Thus, the Supreme Court has characterized chemical testing performed pursuant to implied consent statutes as a viable alternative to a nonconsensual blood draw.
Similarly, this court has recognized that the constitutional validity of Hawai‘i’s implied consent regime “has long been established,” State v. Severino, 56 Haw. 378, 380, 537 P.2d 1187, 1189 (1975), and this is in accord with the uniform view of our sister jurisdictions. See, e.g., State v. Moore, 354 Or. 493, 318 P.3d 1133, 1137 (2013) (“[A] police officer’s accurate statement of the potential lawful adverse consequences resulting from a refusal ordinarily cannot be deemed to unlawfully coerce a defendant’s consent to a search or seizure.”); State v. Padley, 354 Wis.2d 545, 849 N.W.2d 867 (Wis. Ct. App. 2014) (“[V]oluntary consent to a blood draw is not negated by the fact that consent was procured by informing a suspect that the alternative is a penalty for refusing to comply with the implied consent law.”).
In sum, implied consent laws have a long history of constitutional validity that encompasses the significant administrative consequences that such laws impose on individuals who revoke consent. See, e.g., Severino, 56 Haw. at 380, 537 P.2d at 1189; Breithaupt, 352 U.S. at 435 & n. 2, 77 S.Ct. 408; Moore, 318 P.3d at 1137. Accordingly, appellate courts have uniformly held that a driver provides constitutionally effective consent by cooperating with chemical testing pursuant to the terms of a lawful implied consent regime.
B.
The key question in this case is whether the criminal sanctions that accompany the revocation of implied consent unconstitutionally coerce individuals to submit to OVUII testing. This question hinges on whether the constitution permits the legislature, in exchange for granting the privilege of operating a vehicle on the state’s highways, to require that drivers condition their right to revoke implied consent on misdemeanor criminal sanсtions. If so, a police officer’s accurate statement of the potential lawful adverse consequences of a refusal could not be deemed inherently coercive. See, e.g., Neville, 459 U.S. at 563-64, 103 S.Ct. 916; Moore, 318 P.3d at 1137.
Prior to the Supreme Court’s recent decision in Missouri v. McNeely, the constitutionality of criminal refusal sanctions appeared beyond dispute. In Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court held that a warrantless blood draw taken from a non-consenting OVUII defendant did not violate his right against unreasonable
The officer in the present case might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.... [W]e conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.
Id. (internal citation and quotation marks omitted).
Following Schmerber, courts nationwide adhered to the view that no exigency beyond the natural evanescence of intoxicants in the blood stream—present in every OVUII case—would be required to establish an exception to the warrant requirement. Thus, in Neville, the Supreme Court explained that there was no constitutional right to refuse to submit to a blood test:
The simple blood-alcohol test is so safe, painless, and commonplace, see Schmerber, 384 U.S., at 771, 86 S.Ct., at 1836, that respondent concedes, as he must, that the state could legitimately compel the suspect, against his will, to accede to the test.... [Although] the right to silence underlying the Miranda warnings is one of constitutional dimension, ... [the] right to refuse [a] blood-alcohol test, by сontrast, is simply a matter of grace bestowed by the [state] legislature.
459 U.S. at 563-64, 103 S.Ct. 916 (emphasis added). Other courts similarly ascribed to the view that the right to refuse was a matter of legislative grace that lacked a constitutional dimension. See, e.g., People v. Sudduth, 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401, 403 (1966) (Traynor, C.J.) (“Suspects have no constitutional right to refuse a test designed to produce physical evidence in the form of a breath sample.”). And this court, following the national trend, stated: “Schmerber permits the police to take a blood sample from a person lawfully arrested for driving while intoxicated despite his refusal to submit to the blood test.” Rossell, 59 Haw. at 179, 579 P.2d at 667-68 (1978).
As a consequence of Schmerber and Neville, the Fourth Amendment appeared to accommodate criminal refusal sanctions under the theory that any chemical test taken cooperatively pursuant to the implied consent law would have also been constitutionally permissible as a forced test had the person refused to cooperate. For example, in Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1450 (9th Cir. 1986), the Ninth Circuit held that a breathalyzer test administered in accordance with Alaska’s criminal implied consent regime “is an appropriate and reasonable search incident to arrest which appellants have no constitutional right to refuse.” The court also rejected the argument “that by criminalizing refusal, the state has attached an unconstitutional condition to the privilege of using the state’s highways ... because there is no Fourth Amendment right to refuse a breathalyzer examination.” Id. This decision was in accord with other state appellate courts adjudicating Fourth Amendment challenges to criminal refusal schemes. See, e.g., State v. Hoover, 123 Ohio St.3d 418, 916 N.E.2d 1056, 1061-62 (2009) (“Asking a driver to comply with conduct he has no right to refuse and thereafter enhancing a later sentence upоn conviction does not violate the constitution.”); cf. Quintana v. Mun. Court, 192 Cal.App.3d 361, 237 Cal.Rptr. 397 (1987) (holding that although criminal refusal sanctions burden a fundamental right, such sanctions meet strict scrutiny).
Thus, prior to McNeely, implied consent tests obtained on pain of criminal sanction appeared to be absolutely justifiable as a subset of permissible Schmerber tests. Indeed, our legislature specifically considered this aspect of Schmerber when, in 2010, it criminalized refusal. See 2010 House Journal, at 838 (statement of Rep. Har) (“Essentially, because of this seminal case, this U.S. Supreme Court case, the power of police, they can forcibly extract a blood sample or any type of chemical sample from the defendant if they’re suspected of DUI”). In other words, when the legislature adopted
The paradigm changed fundamentally in 2013, when the Supreme Court held that “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” McNeely, 569 U.S. at 1568, 133 S.Ct. 1552. Thus, when confronted with a “routine” OVUII case in which no “special facts” beyond the natural dissipation of alcohol in the bloodstream were present, the Supreme Court affirmed the suppression of nonconsensual blood test evidence obtained without a warrant. Id. By endorsing the defendant’s right to insist on a warrant, the Supreme Court repudiated the long-standing understanding of Schmerber, i.e. that a defendant’s right to refuse a blood test lacked a constitutional dimension. See, e.g., Rossell, 59 Haw. at 179, 579 P.2d at 667-68; Neville, 459 U.S. at 563-64, 103 S.Ct. 916. As a result, implied consent regimes have been decoupled from Schmerber, and can no longer be justified solely on the ground thаt defendants lack a constitutional right to refuse to have blood taken or that the right to refuse is merely a matter of legislative grace.
Nonetheless, there are independent constitutional grounds that justify conditioning the privilege of driving on an agreement that the revocation of implied consent carries a misdemeanor criminal sanction.
C.
Hawai‘i is one of thirteen states to impose some form of criminal sanction on individuals who revoke their implied consent to OVUII testing.3 With the exception of the Majority in this case, the uniform view of appellate courts is that implied consent regimes that impose criminal refusal sanctions do not violate the Fourth Amendment.
As previously explained, prior to McNeely, such laws appeared unassailable. See, e.g., Rossell, 59 Haw. at 179, 579 P.2d at 667-68; Neville, 459 U.S. at 563-64, 103 S.Ct. 916; Burnett, 806 F.2d at 1450; Quintana, 192 Cal.App.3d 361, 237 Cal.Rptr. 397; Hoover, 916 N.E.2d at 1061-62. After McNeely, this has remained the uniform view. For example, several appellate courts have held that imposing a criminal sanction on the right to refuse does not constitute an unconstitutional condition. See, e.g., Beylund v. Levy, 859 N.W.2d 403 (N.D. 2015) (holding that a criminal refusal statute did not violate the Fourth Amendment under the doctrine of unconstitutional conditions); State v. Chasingbear, 2014 WL 3802616, at *3-8 (Minn. Ct. App. Aug. 4, 2014); State v. Janssen, 2014 WL 6909682, at *12-13 (Kan. Ct. App. Dec. 5, 2014).
Similarly, several appellate courts have directly upheld the imposition of criminal refusal sanctions against defendants who revoked their implied consent. See, e.g., State v. Bernard, 859 N.W.2d 762, 764 (Minn. 2015) (“[Because] the breath test the police asked Bernard to take would have been constitutional as a search incident to a valid arrest, ... charging Bernard with criminal test refusal does not implicate a fundamental right.”); State v. Birchfield, 858 N.W.2d 302 (N.D. 2015) (affirming the defendant’s conviction for criminal refusal against a Fourth Amendment challenge).
Finally, in circumstances like the present case, courts have uniformly held that cooper-
Although some of these reported decisions rely on a view of Schmerber that McNeely repudiated—i.e. that the right to refuse lacks a constitutional dimension—because criminal refusal sanctions are not unconstitutional conditions, these decisions are fundamentally correct. See Quintana, 192 Cal.App.3d 361, 237 Cal.Rptr. 397 (holding that although criminal refusal sanctions burden a fundamental right, such sanctions meet strict scrutiny).4
III.
The fundamental question is whether the Hawai‘i legislature had the constitutional authority to criminalize the withdrawal of implied consent, which, by comparison, has been upheld in jurisdictions like California, Minnesota, and North Dakota, among others. See, e.g., Harris, 170 Cal.Rptr.3d at 735; Birchfield, 858 N.W.2d 302; Bernard, 859 N.W.2d 762. If so, the implied consent form accurately advised Won of the potential adverse consequences of refusal, and his cooperation with lawful implied consent procedures was not unlawfully coerced. This question is governed by the test for unconstitutional conditions articulated in Nakamoto v. Fasi, 64 Haw. 17, 22, 635 P.2d 946, 951 (1981).
A.
In Nakamoto, this court addressed “the critical question of whether the City [of Honolulu could] require submission to a search as a condition of entry into the Neal Blaisdell Center.” As the court explained:
The City is free to adopt and enforce reasonable rules restricting the time and manner of use of its premises, for members of the public do not have the absolute and unfettered right to enter or to make use of a City-owned facility. But once having extended ... an invitation to the public to use its arena upon paying the price of admission, it could not further condition the exercise of this privilege upon compliance with an unconstitutional requirement.
Id. Accordingly, the court turned to the question of whether a mandatory search condition designed to mitigate the risk posed by contraband containers of alcohol (i.e. bottles and cans) was unconstitutional.
To adjudicate this question, the court articulated a heightened standard of constitutional scrutiny: “In the absence of a compelling circumstance, a citizen [may not be] required to relinquish his [or her] constitutional right to be free from unreasonable searches and seizures, in order to be allowed to exercise a privilege.” Id. at 22-23, 635 P.2d at 952.
Applying these standards, the court held that the mandatory search condition at issue was unconstitutional for two reasons. First, the court was unable to conclude that the asserted public safety interest—the risk posed by “a can or bottle which might be thrown with resulting injuries,”—clearly outweighed individual privacy interests: “[T]here has been no showing that the threat to the public safety at rock concerts has been so pervasive and of such magnitude as to justify” the mandatory search condition. Id. at 23, 635 P.2d at 952.
The court distinguished the challenged search from the lawful imposition of mandatory searches at airports and courthouses, stating: “[I]t cannot be seriously argued that the threat to public safety in the present case is as grave as those which justified suspending the warrant requirement in airport and courthouse searches.” Id. at 24-25, 635 P.2d at 953. In those circumstances, the court explained, the public interest would clearly outweigh individual privacy interests:
Airport and courtroom searches have received judicial sanction essentially because of the magnitude and pervasiveness of the danger to the public safety. The overriding concern in these areas has been the threat of death or serious bodily injury to members of the public posed by the introduction of inherently lethal weapons or bombs. Constitutional provisions, obviously, were never intended to restrict government from adopting reasonable measures to protect its citizenry.
....
“The courts have relaxed the striсtures of the Fourth Amendment in light of the unprecedented violence experienced in these two public areas.”
Id. (quoting Collier v. Miller, 414 F. Supp. 1357, 1362 (S.D.Tex. 1976) (emphases added)). Thus, the court concluded that a mandatory search condition would be acceptable if the threat of death or serious bodily injury to members of the public was implicated and the terms of the search were appropriate. Id.
Turning to its second rationale, the court concluded that the mandatory search condition was not sufficiently tailored to limit the imposition on individual privacy. For example, the search at issue lacked “articulable facts to support a conclusion that the person searched may be in possession of [a] prohibited item.” Id. at 23, 635 P.2d at 952. And in the absence of “clear guidelines ... too much was left to the discretion of the security guards.” Id. Thus, the program was “fatally flawed by the great potential for arbitrary and random enforcement.” Id. However, the court emphasized that minimally intrusive searches like “a brief stop and a cursory examination,” or the use of “magnetometers” at airports help to “minimize[] citizen inconvenience, resentment and embarrassment,” and thus are more likely to withstand constitutional scrutiny. Id. at 24-25, 635 P.2d at 953.
B.
Applying the standards enunciated in Nakamoto to this case, I conclude that the Hawai‘i legislature did not exceed its constitutional authority when it conditioned the privilege of driving on cooperation with an implied consent regime that imposes criminal refusal sanctions.
1.
The first question is whether the state’s interest in highway safety is “compelling,” that is, whether it “clearly outweighs the privacy interest of the individual.” Nakamoto
“The carnage caused by drunk drivers is well documented,” Neville, 459 U.S. at 558, 103 S.Ct. 916, and, in fact, “exceeds the death toll of all our wars,” Perez v. Campbell, 402 U.S. 637, 657, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971) (Blackmun, J., concurring). Given the magnitude and pervasiveness of the danger to the public, the Supreme Court has repeatedly recognized that states have a “compelling interest in highway safety.” Mackey v. Montrym, 443 U.S. 1, 19, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979); Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). This is particularly acute in Hawai‘i, where the annual percentage of traffic fatalities caused by drunk driving is among the highest in the nation.5 In 2012 alone, 47 individuals were killed by drunk drivers in this state, and in 2013, 33 more were killed.6 Thus, although “some progress has been made, drunk driving continues to exact a terrible toll on our society.” McNeely, 569 U.S. at 1566.
Relatedly, in criminalizing the refusal to submit to breath or blood alcohol testing, the Hawai‘i legislature noted, “[w]hile gains have been made in reducing both driving under the influence arrests and the total number of alcohol-related fatalities, today’s offender is more likely to have a highly elevated alcohol concentration and, as a whole, Hawai‘i’s rate of alcohol-related fatalities remains unacceptably high.” Conf. Com. Rep. No. 88-10, in 2010 Senate Journal, at 761. In subsequently amending the criminalization law, the legislature stated,
[o]ver the past several years, Hawai‘i has had a high incidence of alcohol-related traffic fatalities. While enforcement of existing laws governing the operation of a vehicle under the influence of an intoxicant has had an impact on alcohol-related traffic fatalities, the Legislature determined that more needed to be done to substantially reduce the number of fatalities.
Conf. Com. Rep. No. 56-12, in 2012 House Journal, at 1627. The legislature also noted there was an average of 5,500 arrests for OVUII in Hawai‘i each year. Conf. Com. Rep. No. 56-12, in 2012 House Journal, at 1627.
Two leading indicators correlate with drunk-driving fatalities, (1) extreme OVUII and (2) recidivism. Extreme OVUII is typically defined as operating a vehicle with a BAC of 0.15 or higher, and is present in approximately sixty percent of fatal drunk-driving аccidents.7 With respect to recidivism, “research shows that drivers involved in fatal accidents with blood alcohol levels above the ... legal limit are eight times more likely to have a prior conviction for impaired driving.”8 And there is a demonstrable link between extreme OVUII and recidivism.9
Compounding these issues is the problem of breath test refusal, which occurs in approximately 10% of cases in Hawai‘i,10 and the fact that “repeat offenders refuse the test more frequently than first-time offenders.”11
In sum, the threat to public safety caused by drunk driving and the related problem of breath test refusal are “so pervasive and of such magnitude” that “the public interest clearly outweighs the privacy interest of the individual.” Nakamoto, 64 Haw. at 23, 635 P.2d at 952. Indeed, the “carnage” caused by drunk driving greatly exceeds the “unprecedented violence” at airports and courthouses that this court has already described as sufficient to justify a mandatory warrantless search procedure. Id.; Perez, 402 U.S. at 657, 91 S.Ct. 1704 (Blackmun, J., concurring) (“The slaughter on the highways of this Nation exceeds the death toll of all our wars.”).
2.
The second question is whether the provisions of Hawai‘i’s implied consent regime are “commensurate with the extent and nature of the threatened harm.” Nakamoto, 64 Haw. at 25, 635 P.2d at 953. The presence of several procedural safeguards indicates that the intrusion on privacy occasioned by the criminal refusal scheme is “limited to the very minimum necessary to accomplish the governmental objective.” Id. at 24, 635 P.2d at 953.
First, unlike the search in Nakamoto that lacked even articulable suspicion, here both probable cause and a lawful arrest are required before a law enforcement officer may initiate implied consent procedures. See
Second, the implied consent statutes offer arrestees the choice between three minimally intrusive and medically standardized procedures, thus limiting “citizen inconvenience, resentment, and embarrassment.” Id. at 25, 635 P.2d at 953. Neville stated that a “simple blood-alcohol test is so safe, painless and commonplace,” that it is “clearly lеgitimate.” 459 U.S. at 563, 459 U.S. 553; see also Schmerber, 384 U.S. at 771, 86 S.Ct. 1826 (“[T]he quantity of blood extracted is minimal, and ... for most people the procedure involves virtually no risk, trauma, or pain.”). Urine tests are even less intrusive than blood tests because they do not require venipuncture. Least intrusive is the breath test. In any event, the suspect is given a choice between three well-accepted and minimally intrusive tests, and thus, the intrusion on privacy caused by the testing itself is very limited.
Third, the state has a compelling interest in avoiding violent encounters between police officers and its citizens. Although the state may undoubtedly compel an arrestee against his or her will to submit to a blood draw if it
Fourth, arrestees are offered a real choice to refuse to submit to testing, albeit a conditional one. See
Fifth, criminal refusal sanctions are commensurate with the extent of the threat to public safety, because the threat of “administrative penalties [have] not [proven] severe enough to deter refusals by repeat offenders.”15 In other words, a less intrusive option has proven ineffective in deterring the most dangerous offenders.
Finally, the intrusiveness on privacy is minimized by the fact that OVUII arrestees are in custody, and thus, have a diminished expectation of privacy. See, e.g., Maryland v. King, 569 U.S. 435, 133 S.Ct. 1958, 1978, 186 L.Ed.2d 1 (2013) (“The expectations of privacy of an individual taken into police custody necessarily are of a diminished scope. A search of the detainee’s person ... may involve a relatively extensive exploration, including requiring at least some detainees to lift their genitals or cough in a squatting position.” (internal quotation marks and citations omitted)).
In sum, the procedures of Hawai‘i’s implied consent regime are “commensurate with the extent and nature of the threatened harm,” and are sufficiently tailored to ensure that any intrusion on privacy is “limited to the very minimum necessary.” Nakamoto, 64 Haw. at 24-25, 635 P.2d at 953. In addition, the state’s interest in protecting the public from the pervasive threat of death or serious bodily injury clearly outweighs the intrusion on individual privacy. Id. Accordingly, the legislature constitutionally conditioned the right to revoke implied consent on misdemeanor criminal sanctions.
Because Won was accurately advised of the lawful adverse consequences of refusal, his consent to a breath test according to implied consent procedures was freely and voluntarily given. See Moore, 318 P.3d at 1137 (“[A] police officer’s accurate statement of the potential lawful adverse consequences resulting from a refusal ordinarily cannot be deemed to unlawfully coеrce a defendant’s consent to a search or seizure.”); Smith, 849 N.W.2d at 606 (“[A]n individual’s consent is not coerced simply because a criminal penalty has been attached to refusing the test or that law enforcement advises the driver of that law.”); Harris, 170 Cal.Rptr.3d at 735 (“The fact that there are [criminal] penalties for refusal to cooperate with [OVUII] testing upon arrest does not render the consent illusory or coercive.”).
Conversely, the Majority did not conduct a constitutional conditions analysis to evaluate whether
Second, under my view of this case, Won was not misled about the possible sanctions accompanying refusal. Rather, he was accurately informed of the sanctions as follows: “[I]f 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
Finally, although our prior decisions have held that “a motorist is not entitled to consult with counsеl before deciding to submit to the chemical test,” see State v. Severino, 56 Haw. 378, 380-81, 537 P.2d 1187, 1189 (1975), if Won’s statutory right to counsel was indeed violated, he failed to demonstrate an adequate nexus between the alleged violation and his breath test evidence that would require exclusion of the test results. See State v. Edwards, 96 Hawai‘i 224, 237-39, 30 P.3d 238, 251-53 (2001) (requiring that “the defendant ... demonstrate, by a preponderance of the evidence, a connection between the statutory violation and the evidence to be suppressed”). This is particularly true where, as here, police officers relied in good faith on this court’s prior precedent.17
IV.
The Majority does not hold that
the position in which Won was placed, because of the criminal sanction for refusal, the forced selection between constitutional rights, and the potential significant punishment the sanction entailed, was inherently coercive.
For this reason, Won’s election on the Implied Consent Form to submit to a BAC test is invalid as a waiver of his right not to be searched.
Thus, under the Majority opinion, consent to OVUII testing is involuntary per se if the defendant has been made aware of the criminal refusal sanctions provided by
For the foregoing reasons, I would affirm Won’s conviction and sentence.19
Notes
(a) Any person who operates a vehicle upon a рublic way, street, road, or highway or on or in the waters of the State shall be deemed to have given consent, subject to this part, to a test or tests approved by the director of health of the person‘s breath, blood, or urine for the purpose of determining alcohol concentration or drug content of the person‘s breath, blood, or urine, as applicable.
(b) The test or tests shall be administered at the request of a law enforcement officer having probable cause to believe the person operating a vehicle ... is under the influence of an intoxicant ... only after:
(1) A lawful arrest; and
(2) The person has been informed by a law enforcement officer that the person may refuse to submit to testing under this chapter.
If a person under arrest refuses to submit to a breath, blood, or urine test, none shall be given, except as provided in
(1) Inform the person under arrest of the sanctions under
(2) Ask the person if the person still refuses to submit to a breath, blood, or urine test, thereby subjecting the person to the procedures and sanctions under part III or
provided that if the law enforcement officer fails to comply with paragraphs (1) and (2), the person shall not be subject to the refusal sanctions under part III or IV.
(Emphasis added). “OVUII” stands for operating a vehicle under the influence of an intoxicant, and is the standard term used for drunk driving in Hawai‘i. Throughout this dissent OVUII is used interchangeably with the acronyms “DUI” and “DWI,” which other jurisdictions use to denote driving under the influence and driving while intoxicated, respectively.
If a person under arrest for operating a vehicle after consuming a measurable amount of alcohol, pursuant to
(Emphasis added). See Alaska Stat. Ann. §§ 28.35.031, 28.35.032 (West, Westlaw through 2014 2nd Reg. Sess.); Cal. Veh. Code §§ 23538, 23577 (West, Westlaw through Ch. 2 of 2015 Reg. Sess.); Fla. Stat. Ann. §§ 316.1932, 316.1939 (West, Westlaw through 2015 1st Reg. Sess.); Iowa Code Ann. § 321J.2 (West, Westlaw through 2015 Reg. Sess.); La. Rev. Stat. Ann. §§ 14:98.2, 32:666 (West, Westlaw through 2014 Reg. Sess.); Me. Rev. Stat. tit. 29-A, § 2521 (West, Westlaw through Ch. 9 2015 Reg. Sess.); Neb. Rev. Stat. §§ 60-6,197, 60-6,197.03, 60-6,197.04 (West, Westlaw through 2014 Reg. Sess.); Ohio Rev. Code Ann. § 4511.19 (West, Westlaw through Files 1, 3 and 4 of 2015-16 Reg. Sess.); 75 Pa. Cons. Stat. Ann. § 3804 (West, Westlaw through 2014 Reg. Sess.); R.I. Gen. Laws Ann. § 31-27-2.1 (West, Westlaw through Ch. 555 2014 Legis. Sess.); Vt. Stat. Ann. tit. 23, § 1201 (West, Westlaw through 2014 Legis. Sess.); Va. Code Ann. § 18.2-268.3 (West, Westlaw through 2014 Legis. Sess.).
Nothing in this part shall be construed to prevent a law enforcement officer from obtаining a sample of breath, blood, or urine, from the operator of any vehicle involved in a collision resulting in injury to or the death of any person, as evidence that the operator was under the influence of an intoxicant. However, an OVUII arrestee cannot be said to have consented to a forcible blood draw in contravention of a later expressed wish to withdraw his or her implied consent. See, e.g., State v. Wulff, 157 Idaho 416, 337 P.3d 575 (2014); Byars v. State, 336 P.3d 939 (2014); State v. Fierro, 853 N.W.2d 235 (S.D. 2014); State v. Villarreal, 475 S.W.3d 784 (Tex. Crim. App. 2014); Weems v. State, 434 S.W.3d 655 (Tex. App. 2014); State v. Aviles, 443 S.W.3d 291 (Tex. App. 2014).
(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.... See Breath Test Refusal Rates in the United States, 2011 Update, Nat’l Highway Traffic Safety Admin. (Mar. 2014), www.nhtsa.gov/staticfiles/nti/pdf/Breath_Test_Refusal_Rates-811881.pdf.