Hawaii appellate judges now deny access to lawyers when drunk driving suspects are facing imprisonment for refusal to submit to a breath test. The standard rules for dealing with individuals suspected of committing a crime do not apply to drunk driving cases, Hawaii's Intermediate Court of Appeals ruled on March 28.
Three years ago, the state implemented another "crack down" on driving under the influence (DUI) by making it a crime to refuse to take a breath test. Previously, the offense was punished with the administrative penalty of revoking the individual's driver's license.
This change created a problem. Criminal offenses require the arresting officer to read the Miranda warning before questioning, and this warning makes it clear that the accused has the right to consult an attorney. Prosecutors, however, want no lawyers to be involved in DUI cases. The three-judge appellate panel agreed, upholding the conviction of Yong Shik Won, who was denied access to a lawyer on April 20, 2011.
At around 3:15am, Won was allegedly driving his Chevy S-10 on Sheridan Street at 55 MPH in a 35 MPH zone when Honolulu Police Officer Vincent Gonzales pulled him over. It was clear to Officer Gonzalez that Won was tipsy, so he was brought to the police station and handed a form that explained he had given his "implied consent" to provide a breath or blood sample.
"You are not entitled to an attorney before you submit to any test or tests to determine your alcohol and/or drug content," the form explained.
In Hawaii, refusal of the test is a crime punishable by 30 days in jail, a $1000 fine and license suspension. Won refused to initial the form, objecting to the denial of a lawyer. He blew a 0.17 on the breath test machine, double the legal limit.
Won argued the arresting officers misinformed him about his rights. The appellate panel was not convinced, counting fourteen other states that impose criminal sanction for refusing a breath test while denying Miranda warnings and access to lawyers.
"The protections of Miranda and the privilege against self-incrimination only apply to testimonial communications," Judge Craig H. Nakamura wrote. "Won's argument appears to have been uniformly rejected by every court that has construed implied consent statutes which like Hawaii's statute impose criminal sanctions for refusal to submit to testing."
The majority reasoned that although the refusal is essentially meaningless since the same punishment is imposed whether the test is taken (and failed) or not, the appearance of an option to refuse helps to "avoid potential violence" that would come from a forced test situation.
"Because the [DUI] arrestee does not have the unfettered right to refuse to submit to testing under the statutory scheme, it would be misleading to advise the [DUI] arrestee that he or she has the right to remain silent or to consult with counsel when asked whether he or she would submit to testing," Judge Nakamura wrote.
Always looking for exceptions to the normal criminal constitutional analysis, this Court reasoned further that because refusal is now a crime, and it is illegal for a lawyer to counsel a defendant to commit a crime, an attorney could only tell his client to submit to the test anyway.
The DUI exception seems to be alive and well.