Representative Jon Riki Karamatsu
Floor Speech
Senate Bill 2897, Senate Draft 2, House Draft 3, Conference Draft 1
Relating to Highway Safety
Tuesday, April 27, 2010
58th Day, Final Reading
Ordinary Calendar
I rise in support of this measure but with reservations.
The purpose of this bill is to make further amendments to an ignition interlock statute that will come into effect next year. I agree with making needed corrections to the statute.
However, the insertion of a criminal sanction against the exercise of a privacy right is beyond “fine tuning” of the statutory provisions for the ignition interlock law. Criminalizing the refusal to submit to a test infringes upon important personal rights that in the past this legislature has been mindful of protecting. Under Hawaii case law, unless injury or death is involved, the person being requested to give a breath, blood, or urine sample for a DUI investigation has a right to refuse as set out in statute. This is clearly set out in the case of State of Hawaii v. Entrekin, 98 Haw. 221 (2002).
Under our implied consent statute, HRS §291E-11 states that a person is deemed to have given consent, subject to this part, to a test or tests approved by the director of health of the person’s breath, blood, or urine for the purpose of determining alcohol concentration or drug content of the person’s breath, blood, or urine. Why do we have an implied consent for accidents not involving injury or death? It is because actual consent is lacking. In light of the fact that actual consent is lacking and no injury or death has occurred, the policy has been set out in statute that a person may withdraw actual consent. The statute requires that the arrested person be “informed by a law enforcement officer that the person may refuse to submit to the testing.” However, there are clear sanctions for refusal. HRS§291E-65 subjects the person refusing to license suspension. This will be in addition to requirements of the application of the ignition interlock device. These civil penalties are not sanctions for crimes.
This measure makes criminals of people who exercise their right to refuse. First, the statute gives the people the right to refuse. Then, the statute strikes people down for the exercise of their right.
This measure will result in situations where the arrestee is convicted of refusal when the test result would have indicated that the arrestee was not guilty of intoxicated driving. There is no other criminal law in Hawaii like this. For these reasons I have grave reservations for this measure.
Mr. Speaker, I may be the last of a line of Judiciary chairs to oversee the implied consent law. As mentioned earlier, as chair of the Judiciary committee, my duty to this body is to inform it of any bill’s unintended consequences. My second duty to is to ensure laws are fairly applied. Thank you.
JON RIKI KARAMATSU 
Jon, I respect your right to oppose the provision in this measure against which you spoke. I also respect you for allowing the bill to pass through your committee without removing the provision to which you object, even though you took it out last year.
However, I take issue with several statements you made because I think you are wrong as a matter of fact, law, and policy.
First, there is no right — constitutional or otherwise — to refuse an alcohol test, other than the one which you incorrectly believe the Legislature created. The United States Supreme Court ruled in 1967 that police may extract blood, without the consent of the suspect, to obtain evidence of a crime. No warrant is required when that evidence will dissipate before a warrant can be obtained. This is the so-called “exigent circumstances” exception to the warrant requirement. Our own Supreme Court has ruled that compelled production of physical evidence (e.g., bllod, breath, handwriting exemplars, etc.) does not violate the privilege against self-incrimination because such evidence is not testimonial and the privilege prevents only forcing you to speak words that can be used to prosecute you.
Second, this bill does not create or acknowledge a right to refuse the test; instead, it provides a new penalty for doing so. Non-consensual blood draws are not practical in the vast majority of DUI cases (medical staff needs to be available, chain of custody of the evidence must be preserved, there’s always the risk of lawsuits for the use of excessive force in obtaining the sample, etc.). There are several thousand arrests for DUI in Hawaii every year so going this route consumes resources needed for other offenses that are just as serious or even more so. Instead, most states enacted penalties for refusal so that people would have an incentive to submit to testing. States like Hawaii did not say “you have a right to refuse.” What they said was “if you refuse, we will NOT forcibly take a blood sample, but what we WILL do is penalize you for your refusal.” Until now, that penalty has been limited to licensing sanctions (suspension, revocation, etc.). With passage of this law, Hawaii will join at least 16 other states in making refusal of the alcohol test a crime. These states have chosen to increase the penalty for test refusal, and thereby increase the incentive to take the test. This is a quantitative change, not a qualitative one; it is a difference in degree, not in kind. Why? Because, if you refuse the test, you still will NOT be tested against your will, but you WILL be punished more severely than you were previously. And before you refuse the test, you will be told, just as you are now, what the consequences of that refusal will be.
Third, your assertion that “There is no other criminal law in Hawaii like this” is a real stretch, if not patently false. You have neither the professional nor the personal experience to make this assertion so I can only assume that you relied on some very poor legal advice in making that statement. Let me give some examples: if you are being arrested, you do not have the “right” to resist arrest, even if you think you ultimately will be exonerated and even if you are, in fact, later exonerated. Resisting arrest is a crime, section 710-1026, HRS. If the court grants an injunction directing you to do something, you don’t get to refuse, you get to appeal. If you refuse, you commit the crime of contempt of court, section 710-1077, HRS, even if you ultimately prevail on appeal. I could go on and on but I think (hope) you get the point; when the law imposes an obligation, you don’t get to decide whether to follow the law or not; you have to follow it or accept the consequences.
Finally, making refusal of an alcohol test a crime is a reasonable policy choice in the broad context of this rather revolutionary bill. Until now, DUI enforcement has relied on license suspension/revocation to protect the public once some is found to have committed the offense of DUI (sure, there are fines, insurance increases, and sometimes even jail but these are secondary, at best). With the ignition interlock program, we are no longer punishing people by taking away their driving privileges; we are saying “OK, you can keep driving, but you have to use this machine to ensure that you are not drinking when you drive.” This is an extraordinary shift from a model of punishment to a model of disablement, if not rehabilitation. But it only works if those who are caught are brought into the system and it is much harder to do so if there is no alcohol test result. Neither you nor anyone else has made any claim — credible or otherwise — that there is a rash of DUI arrests that were made without probably cause, whatever the reason. And there are other remedies for false arrest anyway. So there is no reason to be urging that people default on the civic obligations that come with, for example, driving on the public roadways, including doing what is necessary to protect your fellow citizens — and yourself.
I wish you the best in your future endeavors. I like you and believe that you want the best for our community. But the statements you made on this and some other bills — not to mention some of the things you quietly let pass through your committee that were far worse than this — suggest that it is, indeed, time for you to move on.
Go in peace.
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