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When a police officer asks you to perform a roadside sobriety test during a traffic stop, most drivers don’t realize they have the right to refuse — or that refusing could later be used against them in court. That’s the constitutional question defense attorney Kevin O’Grady brought before the Hawaii Supreme Court this week.
On June 5, 2026, the Hawaii Supreme Court heard arguments in a case examining whether a driver’s refusal to take the Standardized Field Sobriety Test (SFST) can be used as evidence of guilt — both in civil license revocation cases and potentially in criminal proceedings.
The Core Argument
O’Grady, joined by the ACLU of Hawaii, argued that using a refusal against a defendant fundamentally violates constitutional principles. In his own words:
“The government must produce evidence from its own work — not through forced physical actions. A person cannot be punished for exercising a right, including the right to not provide evidence to the police.”
The ACLU of Hawaii’s Emily Hills reinforced this point, noting that there are many innocent reasons a person might decline the test — physical disabilities, language barriers, age-related balance issues, or simple anxiety during a stressful encounter with law enforcement.
Justices Question Fairness
The justices engaged seriously with the fairness concerns at the heart of the case. Associate Justice Sabrina McKenna asked whether an elderly driver over 65 who declines the test could have that refusal treated as “consciousness of guilt.” Associate Justice Todd Eddins went further, pointing out a troubling gap in how drivers are informed of their choices:
“Told it’s voluntary — they’re told that there’s civil consequences if they refuse, but they’re not told that if you refuse this could be used against you in court.”
Eddins described the situation as “a confession without any knowledge” — a driver exercising what they believe is a straightforward right, with no awareness that the exercise of that right could become evidence against them.
What’s at Stake
The state argued that there is no constitutional right to refuse the SFST, and that a refusal is simply one piece of evidence among many that a jury may consider. The court is expected to issue its ruling within several months.
A ruling in O’Grady’s favor would establish that drivers cannot be penalized — in any proceeding — for declining a voluntary test they were never fully warned about. It would be a significant protection for anyone stopped on a Hawaii roadway.
This case is a reminder that having an experienced, knowledgeable attorney matters. If you have been charged with a DUI in Hawaii or have questions about your rights during a traffic stop, contact the Law Office of Kevin O’Grady to discuss your case.