Test consent vs. constitution holds up other DUIs

EDITOR’S NOTE: The Supreme Court of the State of Hawaii issued a ruling on the case of STATE OF HAWAII vs. YONG SHIK WON on Nov. 25, a day after this story aired.

Won sought to suppress his breath test saying it was a warrantless search. The State argued that while it was a warrantless search, it was nonetheless consensual.

The court ruled that “Under article I, section 7 of the Hawaii 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.” The court ruled that Won’s breath test is not admissible into evidence.

Always Investigating has been tracking the growing dismissal rate of DUI cases on Oahu, which has topped one in four.

So what’s happening to the rest of the cases? Don’t assume they’re all getting convicted.

About 34.6 percent end with a conviction, fewer than one percent are not guilty, and 37 percent are “not disposed yet” or what the Judiciary told us were “mostly inactive cases.”

Prosecutors tell us a lot of them are going nowhere for now because of a long-awaited state Supreme Court decision impacting DUI cases.

The Supreme Court case pending is known as “State vs. Won” and it has to do with constitutional rights and verbal police procedures surrounding tests of intoxication.

Several years ago, Yong Shik Won was convicted of driving drunk. He appealed that conviction, because a new “implied consent” law that year had made refusing to take a breath test a crime. Won and his attorney, Jonathan Burge, said rights were being stepped on unless police cleared constitutional procedures before a breath test.

The state appellate court upheld the conviction, so Won took it to the state Supreme Court, and now a whole lot of DUI cases are getting delayed awaiting the outcome.

“It has created a wrinkle, State vs. Won. That is a case where defense attorneys are saying because we made refusal a crime that the police need to give a Miranda warning and give right to an attorney,” explained Deputy Prosecuting Attorney Jeen Kwak.

“The judges are making people tag themselves to the Won case, so that means if it comes out against Won, they’re not going to get out of it. We come into court and say ‘Won lost, judge, we tied ourselves to it, we plead no contest,’ and the cases go away that way,” explained Burge. “If they find for Mr. Won, which they may, it’s not going to throw them all out. It’s just not going to have the breath test come in, because that will be suppressed or thrown out because of violation of people’s Fourth Amendment rights, Miranda rights.

“If Won does hit (in favor of Won), I think the refusal statute will go away,” Burge added, “and we’ll go back to the way it was and then people will just lose their license more if they refuse.”

As for Won, he got arrested again for DUI just a year after the case that started all this. That second case ended up getting dismissed without prejudice, because officers were both sick and unable to attend because of mandatory training obligations.

That 2012 case could have been refiled by prosecutors, but was not.

Always Investigating will track the outcome of the Supreme Court’s opinion, and what impact it has on pending DUI cases. The court heard oral arguments in the case last year, and Burge expects an opinion could come “any day now.”

“People have a Fourth Amendment right regarding search and to deny a search,” Burge said. “The U.S. Supreme Court says the breath or blood test is a search. But what the law now is you must do this Fourth Amendment search. That’s the issue up there. It sounds easy, but it’s very complicated in a legal sense. I think they’ll teach this in law school one way or the other because it creates all these issues.”

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