Refusing to take a breath test if you get pulled over for drunk driving is no longer a crime.
That’s according to a ruling Wednesday by the Hawaii Supreme Court.
It’s a big change for some DUI cases going through the court system.
On Tuesday, Always Investigating told you about the case State vs. Won, in which Yong Shik Won fought his drunk driving conviction by claiming police should have read him his Miranda rights before he took a breathalyzer.
The state argued that wasn’t necessary under the law.
But on Wednesday, the Supreme Court sided with Won, and that means an immediate change to the law, and how police and prosecutors handle drunk driving cases.
“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.” – STATE OF HAWAII vs. YONG SHIK WON
“So all that’s going to be left for the cases that are on right now until they fix the way they do things is going to be that subjective test,” explained Jonathan Burge, Won’s attorney. “So in other words, the breath or blood test isn’t going to be able to be used against people until it’s fixed.”
Won will get his case dismissed now that the state Supreme Court ruled in his favor.
In the 63-page decision, the court said “the right to be free of warrant-less searches and seizures is a fundamental guarantee of our constitution” and “consent may not be gained by explicit or implicit coercion, implied threat, or covert force.”
“Because as the court said, a search is a search and you can’t criminalize someone exercising their rights to it,” Burge said. “It’s not about letting the DUI people go or anything like that.”
MADD Hawaii disagrees with the decision and said it’s about public safety.
“In this Thanksgiving season, we are not thankful and I think it’s very bad timing as we go into a very dangerous holiday season,” said Carol McNamee with MADD Hawaii.
“Will this make it harder to prosecute people who might be driving drunk?” KHON2 asked.
“Yes, it would, probably,” said Honolulu Prosecuting Attorney Keith Kaneshiro. “We have to look at a case-by-case basis, even though some breath tests or blood tests may be thrown out. Cases can still be prosecuted on individual conduct and observation by the police officer.”
Police officers can describe the driver’s behavior on the road and those observations can be used in court.
We are still trying to find out how this changes police procedures moving forward.
Kaneshiro says he plans to meet with the Honolulu Police Department to talk about the changes.