Police form misleading, says judge
A recent ruling by Kaua’i District Court Judge Trudy Senda may change the way DUI arrests are made on Kaua’i.
Senda ruled in favor of a motion by Kapa’a attorney Dan Hempey to suppress the results of a local woman’s breath test because of the form the Kaua’i Police Department uses to advise defendants of their options.
On May 18, the defendant was stopped by Kaua’i Police Officer Lawrence Stem, for exceeding the posted speed limit while driving north on Kuhio Highway.
Stem administered a series of field sobriety tests and ultimately arrested the woman on suspicion of driving while intoxicated.
After the arrest, Officer Stem drove the woman to police headquarters and read her a verbatim advisement from the disputed form which advised the defendant of various legal consequences of taking or refusing a breath test.
The defendant signed because what was read to her implied if she signed “everything would be okay with her license” even if she registered over 0.08, the legal limit, because she could apply for a conditional “work only” license.
That was important to the defendant because her job involves driving.
The problem was that state law mandates that before a conditional license can be granted there is an absolutely mandatory 30-day license revocation.
Hempey sought a suppression of the breath test because the verbatim advisory read to the defendant by Officer Stem (provided to the department by the Kaua’i County Prosecutor’s Office) was “misleading.”
Judge Senda agreed with Hempey in her ruling.
“That the admonition given in this case (by Stem) constituted a misstatement of possible sanctions for failing to take a BAC (Blood Alcohol Content) test and failing it in that the defendant was offered the possibility of a conditional driving permit for taking the test, but never informed of the mandatory thirty day revocation period.”
Kaua’i County Prosecutor Mike Soong said his office is reviewing the form as it is currently written.
“We are considering changing the form. There are some different forms involved and if the forms can be misunderstood the way they are written, we’ll have to fix that,” Soong said.
Hempey, who recently relocated the bulk of his practice here from San Bruno, California, thinks the ruling might help anyone recently charged with DUI who took a breath test.
“What Judge Senda said in her ruling would, in my opinion, apply to every other case on Kaua ‘i in which the breath test was involved. In my mind, I take it to mean that DUI cases that have not yet gone to trial are vulnerable to a motion to suppress the breath test,” Hempey speculated.
Hempey said that since the ruling he was asked to speak to the Kaua ‘i Police Department’s recruit class.
“With the recruits I mostly talked about this particular issue,” Hempey said.
But the young attorney cautioned that until the case is heard in a higher court, Judge Senda’s ruling may not be binding.
