Today the Hawaii Supreme Court issued its decision in the long-awaited case of State v Won. I was proud to represent the Hawaii Association of Criminal Defense Attorneys in submitting a brief on the case. The court ruled that a motorist has the right to refuse to provide a breath or blood sample in order to determine blood alcohol concentration. The court ruled that a breath or blood sample is a search and that the government needs either a warrant, actual free and voluntary consent from the driver or to be able to prove exigent circumstances. The court ruled that since Refusal is a crime, implied consent is not voluntary consent. The court also recognized the value and importance of counsel when a person has been arrested and the advice that counsel can give. For my many clients who have had the benefit of me fighting this issue for years, this case vindicates us. There are still avenues for the government to prosecute you and the government will try to meet the rule set out in the Won case. I for one am prepared to fight the motions hearings that are bound to come following this decision.
Hawai'i v. Won Concurring Opinion
Hawai'i v. Won Dissenting Opinion
Hawai'i v. Won Public Opinion Majority