Oral Argument Before the Hawaii Supreme Court
No. SCWC-12-0000858, Thursday, Sept. 4, 2014, 8:45 a.m.
STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. YONG SHIK WON, Petitioner/Defendant-Appellant.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorney for Petitioner: Jonathan Burge
Attorney for Respondent: Brian R. Vincent, Deputy Prosecuting Attorney
Attorney for Attorney General (Amicus Curiae):
Robert T. Nakatsuji, Deputy Solicitor General
NOTE: Order accepting Application for Writ of Certiorari, filed 06/24/14.
COURT: MER, C.J.; PAN, SSM, RWP, & MDW, JJ.
Petitioner/Defendant-Appellee Yong Shik Won (Won) applied for a writ of certiorari from the Intermediate Court of Appeals’s (ICA) May 5, 2014 Judgment on Appeal filed pursuant to its March 28, 2014 Published Opinion.
This case arises from Won’s conviction for operating a vehicle under the influence of an intoxicant (OVUII) pursuant to HRS § 291E-61(a)(3). Won was arrested and transported to the Honolulu Police Station after he failed standard field sobriety testing. At the station, the police asked Won to submit to either a blood or breath alcohol test and informed him that refusal was a crime punishable by up to 30 days in jail. Won took and failed the breath test.
In his application for writ of certiorari, Won raises the following four questions:
1. Did the ICA err when it ruled that the 4th Amendment to the United States Constitution and article I, section 7 of the Hawai?i Constitution [were] not violated when the police threatened Petitioner-Appellant with 30 days in jail unless he consented to a 4th Amendment search, a blood or breath test, to determine his blood alcohol [level] in an impaired driving case[?]
2. Did the ICA err when it ruled that there was no violation of Petitioner-Appellant’s Miranda rights under article I, section 10 of the Hawai?i Constitution when, while Won was in custody, he was asked by the police, without Miranda warnings, if he wanted to refuse to take a blood alcohol test, which was likely to incriminate him in the petty misdemeanor offense of refusing to take a test under HRS 291E-68[?]
3. Did the ICA err when it ruled that there was no violation of Won’s statutory right to an attorney under HRS 803-9 and/or due process under article 1, section 5 of the Hawai?i Constitution when Won was in custody, asked questions regarding blood alcohol tests[,] and explicitly told he did not have a right to an attorney despite HRS 803-9 stating that he did[?]
4. Did the ICA err when it ruled that Won’s due process rights under article I, section 5 of the Hawai?i Constitution [were] not violated when the police told him that he “shall” be subject to 30 days in jail if he did not take a blood alcohol test[?]