State v. Barnes8/27/2001
SUMMARY DISPOSITION ORDER
By: Moon, C.J., Levinson, and Acoba, JJ.; and Nakayama, J. Dissenting, With Whom Ramil, J. Joins
On May 15, 1999, Defendant-Appellee Robert L. Barnes (Defendant) was arrested for driving under the influence of intoxicating liquor (DUI), Hawaii Revised Statutes (HRS) § 291-4 (Supp. 2000). Subsequently, the arresting officer read to Defendant a form entitled, "Implied Consent Warning/Waiver Certificate and Hawaii Administrative Driver's License Revocation Law[,]" which provided in pertinent part as follows:
I. READ THE FOLLOWING TO [Defendant]:
Pursuant to Title 18, United States Code, Section 3118, Army Regulation 190-5 OPNAV 11200.5C, AFI 31-204, MCO 5110.1C and Hawaii Revised Statutes, Part XIV, I must inform you of the following:
EFFECT OF REFUSAL: If you refuse to submit to any [blood alcohol concentration (BAC)] test or tests, the consequences are as follows:
2. If your driving record shows no prior alcohol enforcement contacts during the five (5) years preceding the date of your arrest, your driving privileges in the State of Hawaii will be revoked for one (1) year instead of the three (3) month revocation that will apply if you choose to take a test and fail it.
Defendant chose to take a BAC test.
I.
On October 28, 1999, this court decided State v. Wilson, 92 Hawai`i 45, 987 P.2d 268 (1999), which deemed the advice imparted in Honolulu Police Department form 396B to be faulty and required suppression of any incriminating test result that was obtained following such advice. Form 396B stated in pertinent part as follows:
Pursuant to the Administrative Driver's License Revocation Law, I must inform you (arrestee) of the following:
That if you refuse to take any tests the consequences are as follows:
1. If your driving record shows no prior alcohol enforcement contacts during the five years preceding the date of your arrest, your driving privileges will be revoked for one year instead of the three month revocation that would apply if you chose to take a test and failed it[.] . . . . State v. Garcia, No. 23513, slip op. at 2-3 (Haw. Aug. 10, 2001).
The information conveyed by the form utilized in this case is to the same effect, see supra, and, consequently, would be subject to the Wilson holding.
On February 22, 2000, based on Wilson, Defendant moved in limine to preclude evidence of his BAC test result. On the same day, Plaintiff-Appellant State of Hawaii (the prosecution) filed a memorandum in opposition to Defendant's motion.
On March 14, 2000, the district court of the first circuit (the court) held a hearing on Defendant's motion, which it granted. On May 31, 2000, the court filed its findings of fact, conclusions of law, and an order granting Defendant's motion in limine to preclude evidence of the breath test result.
On June 21, 2000, the prosecution filed a notice of appeal.
II.
The prosecution raises the following points of error in this appeal: (1) Wilson was based on a misinterpretation of HRS § 286-261 by Gray v. Administrative Director of the Court, State of Hawai`i, 84 Hawai`i 138, 931 P.2d 580 (1997), and, thus, cannot be the basis for suppressing Defendant's intoxilyzer test result; (2) assuming arguendo Gray is correct, suppression is not required without evidence of prejudice; and (3) assuming arguendo Wilson should stand,Wilson should not be applied retroactively. Defendant contends that the court was correct in suppressing the evidence based on Wilson because (1) Wilson did not establish a new rule and, thus, no r
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