Hawaii has an “implied consent
” law codified at Hawaii Revised Statutes, Section 291E-11. Basically, this means that the legislature passed a law stating that if you drive in Hawaii, you have impliedly consented to having your breath, blood, and urine tested for the presence of intoxicating substances.
In 2015, however, the Hawaii Supreme Court held (in a case in which Mr. Holcomb served as local counsel for the National College of DUI Defense which submitted a brief before the HI Supreme Court) that implied consent does not mean that you have actually consented to a test. Instead, the Court reaffirmed that you must make a knowing and voluntary decision to take a blood, breath or urine test. This is a fantastic case as it carefully defines what is meant by duress and coercion under Hawaii law. If your test is held to be a result of duress or coercion, the result cannot be used against you. As of this writing, the enlightened District Court judges are holding that the form that the police read to DUI defendants is coercive. Thus, the breath test is suppressed. However, several less informed judges are still admitting the test.
This will be appealed also in an appropriate case and the author believes that the tests will be excluded.
There are also a number of other reasons that the tests should be excluded. Convicting you of violating the "per se" DUI statute (where your blood or breath alcohol content) is a above .08. If the State cannot introduce the test results, you should be acquitted of this charge.
If you first take a breath test, you may also be subjected to a blood and/or urine test if it is believed that you are under the influence of controlled substances that can be detected through blood and urine testing. You may also be subjected to only a blood or urine test if it is believed that you are under the influence of controlled substances that can be detected through blood and urine testing. To add insult to injury, you may be ordered to reimburse the county for the costs of the test(s) if you are convicted.
If you refuse, the police officer must then inform you of the sanctions you will face and ask you if you still refuse. The sanctions are revocation of your driver’s license. The license will be revoked for a statutorily defined period of time depending on whether you have had prior convictions and/or whether you are underage.
Dedicated Skilled DUI / OVUII Defense Lawyer Located in Honolulu, HI
If you refused the chemical tests, it is by no means hopeless. You still may not lose your license. Only if you are lawfully arrested will you lose your driver’s license. (See the “When can an officer pull me over?” section of this website for further information). Thus, if a judge determines that the officer did not have probable cause to arrest you, you may keep your driver’s license.
Contact me today and learn how a qualified Honolulu DUI attorney can help you in protecting your future.
Also, if the officer does not inform you of those sanctions (discussed above) and provide another opportunity for you to consent, you should not lose your driver’s license. These are legal issues that Mr. Holcomb is well-prepared to litigate for you.