CAAP-12-0000858 Thursday, September 26, 2013, 10 a.m.

STATE OF HAWAI`I, Plaintiff-Appellee, vs. YONG SHIK WON, Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

University of Hawaii at Manoa
William S. Richardson School of Law
Moot Courtroom
2515 Dole Street
Honolulu, HI 96822

Attorney for Defendant-Appellant:

Jonathan Burge

Attorney for Plaintiff-Appellee:

Brian R. Vincent, Deputy Prosecuting Attorney

Attorney for Amicus Curiae:

Robert T. Nakatsuji, Deputy Solicitor General

COURT: Nakamura, CJ; Fujise and Ginoza, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Defendant-Appellant Yong Shik Won (Won) appeals from the judgment entered by the District Court of the First Circuit (District Court) convicting him of operating a vehicle under the influence of an intoxicant, in violation of Hawai`i Revised Statutes (HRS) § 291E-61(a)(3) (Supp. 2012). Prior to trial, Won moved to suppress the results of his breath test, which showed that his breath alcohol content was above the legal limit. The District Court denied Won’s motion to suppress and found him guilty of violating HRS § 291E-61(a)(3).

On appeal, Won argues that the District Court erred in denying his motion to suppress. Won contends that in light of the recent enactment of HRS § 291E-68 (Supp. 2010), which made the refusal to submit to a breath, blood, or urine test a crime, the police were required to advise him of his Miranda rights before giving him the implied consent warnings and obtaining his response to the implied consent warnings. Won argues that because the police failed to advise him of his Miranda rights, any statement he made in response to the implied consent warnings (he agreed to take a breath test) was inadmissible and the results of his breath test should have been suppressed as the “Fruit of the Poisonous Tree.” Won further argues that the results of his breath test should have been suppressed because the police violated his statutory right to an attorney under HRS § 803-9 (1993) and misinformed him of the sanctions for refusing to submit to the test. Finally, Won argues that in light of the United States Supreme Court’s recent decision in Missouri v. McNeely, 133 S.Ct. 1552 (2013), HRS § 291E-68 is unconstitutional.