NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JAN-2025
07:53 AM
Dkt. 56 SO
NO. CAAP-XX-XXXXXXX
(Consolidated with NO. CAAP-XX-XXXXXXX)
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant, v.
EDWIN C. JOHNSON, Defendant-Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and Guidry, JJ.)
Plaintiff-Appellant State of Hawai#i (State) appeals
from the January 24, 2024 Findings of Fact, Conclusions of Law,
and Order Granting Defendant's Motion to Suppress Blood
Measurement [(Motion to Suppress)] (Order Granting Motion to
Suppress) and the March 13, 2024 Proposed [sic] Findings of Fact,
Conclusions of Law and Order Granting Defendant's Motion to
Suppress Evidence and Statements, Granting Defendant's Motion to
Dismiss for Violation of Due Process or in the Alternative to
Allow Defendant to Present a Mistake of Fact/Law Defense [(Motion
to Dismiss)] (Order Granting Motion to Dismiss), entered by the
Circuit Court of the First Circuit (Circuit Court).1
1
The Honorable Paul B.K. Wong presided.
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The State raises two points of error on appeal,
contending that the Circuit Court: (1) clearly erred in
suppressing Defendant-Appellee Edwin C. Johnson's (Johnson's)
blood alcohol content (BAC) test results; and (2) erred in
dismissing the charge against Johnson in Count I, Habitually
Operating a Vehicle Under the Influence of an Intoxicant (HOVUII)
in violation of Hawaii Revised Statutes (HRS) § 291E-61.5(a)(1)
and (a)(2)(A) (Supp. 2022).2
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve the
State's points of error as follows:
(1) The Circuit Court granted the Motion to Suppress
after finding and concluding that Honolulu Police Department
Officer Dallas Pau#u's (Officer Pau#u's) supplementation of the
information on the (accurate) Implied Consent Form violated
Johnson's constitutional rights. The State argues that the
Circuit Court erred in suppressing the blood test results because
2
HRS § 291E-61.5 provides in relevant part:
§ 291E-61.5 Habitually operating a vehicle under the
influence of an intoxicant. (a) A person commits the
offense of habitually operating a vehicle under the
influence of an intoxicant if:
(1) The person is a habitual operator of a vehicle
while under the influence of an intoxicant; and
(2) The person operates or assumes actual physical
control of a vehicle:
(A) While under the influence of alcohol in an
amount sufficient to impair the person's normal mental
faculties or ability to care for the person and guard
against casualty[.]
2
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Officer Pau#u's answer to Johnson's question was not coercive and
did not misrepresent the law.
Under the Fourth Amendment of the United States
Constitution and article I, section 7 of the Hawai#i
Constitution, a person has the right to be free from unreasonable
searches. A BAC test is a search under these provisions;
however, consent is a well-established exception to the
requirement that a warrant be obtained before a search takes
place. State v. Hosaka, 148 Hawai#i 252, 258, 472 P.3d 19, 25
(2020) (citing State v. Yong Shik Won, 137 Hawai#i 330, 340,
372
P.3d 1065, 1075 (2015)). The Hawai#i Supreme Court explained:
[T]o decide whether to suppress the results of a
chemical test administered on the basis of an arrestee's
consent, the court must evaluate the circumstances under
which consent was given. While the accuracy of the implied
consent form and its compliance with HRS Chapter 291E are
relevant considerations, the central inquiry is not simply
whether the form complies with the relevant statutes, but
whether the circumstances indicate the arrestee's consent
was knowing, intelligent, and voluntary.
Id. (citing Won, 137 Hawai#i at 345,
372 P.3d at 1080).
An arrestee's consent to take a chemical test is not
made knowingly, intelligently, and voluntarily when the arresting
officer induces this consent with an inaccurate and misleading
implied consent advisement. State v. Wilson, 92 Hawai#i 45, 51,
987 P.2d 268, 274 (1999). In order to invalidate the arrestee's
consent, the misrepresentation must be of the type reasonably
likely to influence an arrestee into consenting to a chemical
test. Hosaka, 148 Hawai#i at 262,
472 P.3d at 29 (discussing
Wilson, 92 Hawai#i at 47,
987 P.2d at 270). An arrestee's
consent is not invalidated due solely to minor defects in the
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implied consent advisory that are unlikely to influence the
arrestee's decision. Id.
Here, Officer Pau#u misstated the law when he told
Johnson, "If you test under, you will not be criminally charged."
HRS § 291E-61(a) (2020) provides in relevant part:
§ 291E-61 Operating a vehicle under the influence of
an intoxicant. (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:
(1) While under the influence of alcohol in an
amount sufficient to impair the person's normal mental
faculties or ability to care for the person and guard
against casualty;
(2) While under the influence of any drug that
impairs the person's ability to operate the vehicle in
a careful and prudent manner;
(3) With .08 or more grams of alcohol per two
hundred ten liters of breath; or
(4) With .08 or more grams of alcohol per one
hundred milliliters or cubic centimeters of blood.
A person need not exceed a specific BAC measurement to
be charged with and convicted of Operating a Vehicle under the
Influence of an Intoxicant (OVUII). Under HRS § 291E-61(a), a
person may be convicted of OVUII for operating or assuming actual
physical control of a vehicle, inter alia, "[w]hile under the
influence of alcohol in an amount sufficient to impair the
person's normal mental faculties or ability to care for the
person and guard against casualty[.]" HRS § 291E-61(a)(1).
Accordingly, a person may still be convicted of OVUII even if
they "test under" the BAC measurement specified in HRS § 291E-
61(a)(4). Therefore, Officer Pau#u's statement to Johnson that
he would not be criminally charged if he tested under the legal
limit was an inaccurate and misleading statement. This
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inaccurate and misleading statement was of the type reasonably
likely to influence Johnson into consenting to the blood test
because, as Johnson himself testified, it created "a possibility
that [he] won't be criminally charged," and it was "a way out."
See Hosaka, 148 Hawai#i at 262, 472 P.3d at 29; Wilson, 92 Hawai#i
at 47,
987 P.2d at 270.
The State argues that Officer Pau#u's statement did not
invalidate Johnson's consent because it amounted to a promise
regarding the exercise of his discretion, and there was no
evidence that Officer Pau#u intended to renege on this promise.
However, Johnson testified that he was surprised by Officer
Pau#u's statement because he did not "know the law to [that]
extent." The Circuit Court found that Johnson was contemplating
his decision to participate in the BAC test when the officer
informed him that if he tested under the statutory limit, he
would not be charged. Johnson's testimony indicates that he
consented to the BAC test not because he understood Officer
Pau#u's statement to be a promise, but rather because he
understood it to be a representation of the law.
Therefore, we conclude that Johnson's consent to the
BAC test was not made knowingly, intelligently, and voluntarily,
and the Circuit Court did not clearly err in concluding that the
supplementation of the otherwise accurate advisement violated
Johnson's rights.
(2) The State argues that by dismissing the HOVUII
charge against Johnson, the Circuit Court was apparently
concluding that a mistake of law defense was established as a
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matter of law because the district courts in Johnson's two prior
cases informed him of future penalties if he was convicted again,
without telling him the law could change. The State argues that
the Circuit Court improperly encroached on the province of the
jury to decide whether the State has disproved any mistake of law
defense. The State further argues that Johnson cannot make the
requisite showing that he was subjectively ignorant that a third
OVUII violation was a felony without himself testifying, there
was no showing that Johnson would even be entitled to a mistake
of law instruction, and even if Johnson had made the requisite
showing, the determination must be made by the trier of fact,
after trial, not at a pretrial hearing by a judge.
However, at the February 5, 2024 hearing on the Motion
to Dismiss, the Circuit Court expressly stated that it wanted to
leave aside the issue of the mistake of law defense because "we
don't figure out what the instructions are going to be really
until evidence is completed." The Circuit Court subsequently
concluded that, although there is no requirement that courts
colloquy or otherwise advise defendants who are entering a plea
to the possible consequences of subsequent convictions for the
same criminal conduct, the district courts did so here. The
Circuit Court further concluded, however, that Johnson's
situation was a matter of fundamental fairness because the
district courts twice placed Johnson on notice that if he was
charged with OVUII three times within five years, he would be
subject to a petty misdemeanor charge. After, inter alia,
weighing the State's interest in punishing criminal conduct with
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the fundamental fairness to Johnson, the fundamental fairness
outweighed the State's interest in prosecuting Johnson for
HOVUII.3 For these reasons, the Circuit Court dismissed the
HOVUII charge with prejudice, but did not preclude the State from
refiling an OVUII charge.
On appeal, the State does not argue error in, or
otherwise address, the actual basis for the Circuit Court's
ruling.4 Accordingly, the State waived any argument that the
Circuit Court erred in its analysis of due process and
fundamental fairness. Therefore, we conclude that the State has
not established that it is entitled to relief.
For these reasons, the Circuit Court's January 24, 2024
Order Granting Motion to Suppress and March 13, 2024 Order
Granting Motion to Dismiss are affirmed.
DATED: Honolulu, Hawai#i, January 30, 2025.
On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Brian R. Vincent,
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Clyde J. Wadsworth
for Plaintiff-Appellant. Associate Judge
Christopher M. Phillips,
for Defendant-Appellee. /s/ Kimberly T. Guidry
Associate Judge
3
Article VI, section I of the Hawai#i Constitution vests the courts
with judicial power. The inherent power of the court includes, inter alia,
the power to administer justice. State v. Moriwake, 65 Haw. 47, 55,
647 P.2d
705, 712 (1982) (citation omitted). In exercising this inherent power, a
trial court must balance "the interest of the state against fundamental
fairness to a defendant with the added ingredient of the orderly functioning
of the court system."
Id. at 56,
647 P.2d at 712 (citation omitted).
4
Although the State states without elaboration that the Circuit
Court erred in concluding that charging Johnson with HOVUII violated due
process, the State neither makes a legal argument nor cites to any authority
to support this assertion.
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