Under the Hawai’i Constitution’s protection of individual privacy, telling a motorist that if he doesn’t give a breath sample he’ll go to jail for 30 days is not voluntary consent. State v. Won, 2015 Haw. LEXIS 317 (Nov. 25, 2015)
4. Under the totality of the circumstances, Won’s election to submit to the BAC test was not voluntary
Our de novo review of the record indicates that while in custody, Won was informed both of his right to refuse to consent and of the fact that should he exercise his right to refuse to submit to a BAC test, his refusal would constitute the commission of a crime: he would be subject to re-arrest for the additional crime of refusal to consent, and he would be subject to up to thirty days of imprisonment, a fine not to exceed $1,000, as well as other sanctions. Under these circumstances, Won marked the Implied Consent Form with a manifestation of assent. However, as in Trainor, the fact that the right to refuse the test was communicated and that there was a manifestation of assent by Won does not reduce our duty to determine whether Won voluntarily consented to the search. See Trainor, 83 Hawai’i at 260, 925 P.2d at 828.
The circumstances further indicate that the election presented by the Implied Consent Form forced Won to select between fundamental constitutional rights and that refusal to provide consent carried with it a significant punishment.As in Russo, it is apparent that “[w]hile assent could be inferred from” Won’s election on the Implied Consent Form, the context in which it was made “leads us to believe [that it] did not represent an essentially free and unrestrained choice.” See Russo, 67 Haw. at 138, 681 P.2d at 562. Directed to sign a form in the presence of a police officer to indicate either submission to a search or willingness to commit a crime, it is clear that the “circumstances begat an obligation on [the defendant’s] part” to comply with the implicit directive of the Implied Consent Form. See Trainor, at 262, 925 P.2d at 830 (alterations and internal quotation marks omitted).
Where the Trainor court found that “it would be simply wrong to suggest that” the defendant was actually able to walk away from the encounter, id., here it would be simply wrong to conclude that an instruction that a person’s refusal to consent to a BAC test was a crime, with stated penalties of up to thirty days of incarceration and a $1,000 fine, would not interfere with a person’s free and unconstrained choice. The threat of imprisonment is inherently coercive, see State v. Brooks, 838 N.W.2d 563, 573-74 (Minn. 2013, Stras, J., concurring), cert. denied, 134 S. Ct. 1799 (2014); thus, the present case is more coercive than the circumstances in Trainor and Nakamoto because rather than speculate whether a refusal to consent to a search might carry unwanted consequences, Won was informed in no uncertain terms that the consequence of his refusal made him subject to imprisonment.
Thus, as in Nakamoto, it is clear that Won had no other alternative to avoid prosecution for the refusal offense but to submit to the search; as in Pua’a, withholding consent was futile, as any other course would have resulted in Won’s commission of a crime. Consequently, 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.34 See Trainor, 83 Hawai’i at 263, 925 P.2d at 831; Ramones, 69 Haw. at 405, 744 P.2d at 517; Shon, 47 Haw. at 166, 385 P.2d at 836.
As the coercion engendered by the Implied Consent Form runs afoul of the constitutional mandate that waiver of a constitutional right may only be the result of a free and unconstrained choice, the choice presented to Won compromised the values of individual dignity and personal autonomy protected by article I, section 7 of the Hawai’i Constitution. 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.
Therefore, with little or no indication in the record to demonstrate that Won’s election to submit to the BAC test was the result of his free and unconstrained choice, the State has not met its particularly heavy burden to demonstrate the voluntary waiver of a constitutional right. Accordingly, Won’s election to submit to the BAC test was not based on voluntary consent.
