Why your breath test should be excluded if you took the test before April 21, 2017

Why your blood or breath test cannot be used against you
(if you took the test before last Friday)

On Friday, April 21, 2017, the Hawaii Supreme Court issued another opinion confirming its views that consent to take a breath or blood test must be knowingly and voluntarily given in State v. Scalera, SCWC-14-00001060. This is another in a line of opinions condemning duress and coercive practices:

In 1999, the Hawaii Supreme Court held that a person must make a knowing and voluntary decision whether to take a breath or blood test following their arrest. The Court also effectively held that the state could not obtain valid consent if the police provided the arrestee with false information.

In 2014, the Hawaii Supreme Court held that chemical alcohol tests were searches protected by the United States and Hawaii constitutions. Also, in a detailed explanation of duress and coercion with specific examples of cases that would amount to duress or coercion under Hawaii law, the Court also rightfully held that it was duress and coercion to threaten an arrestee with a separate crime and possible imprisonment for refusing to take a breath or blood test. In other words, a “waiver” of the Fourth Amendment right was not valid where the Defendant was threatened with a crime and possible

In both of these instances, the Defendant’s (and presumably all other Defendants with pending cases at those times) alcohol test result could not be admitted against the Defendant. The evidence was “suppressed” because the police had no right to obtain the evidence.

Scalera adds yet another problem for the prosecution. For years, the HPD has been telling arrestees that they do not have the right to consult with an attorney before making the decision whether or not to take a breath or blood test. It has not been decided whether this is true under the Hawaii constitution. But, nevertheless, the Hawaii Supreme Court did not need to decide whether or not the Hawaii constitution prevents such a warning. Instead, the breath test was not voluntary because Hawaii’s longstanding statute, Haw. Rev. Stat. § 803-9 requires that arrestees be provided with a lawyer upon arrested. The complexities of the decision are beyond the scope of this blog. However, the result is that if you were tested before April 21, 2017 (and after if the HPD does not expeditiously change its form), your breath or blood test result will likely not be introduced against you.

Often people believe that if they failed a breath or blood test, their case is hopeless. However, a conviction because of a failed breath or blood test depends on the State’s ability to admit the evidence against you. If the judge does not allow the result to be admitted into evidence in the case, the State should not be able to convict you for having a breath or blood test result above the legal limit. Scalera is the latest in a number of reasons why your breath or blood test result may not be admitted.

If you took a breath or blood test, call Honolulu OVUII attorney Richard L. Holcomb today. (808) 545-4040.

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