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SCWC-12-0001007 

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, 

Respondent/Plaintiff-Appellee, 

vs. 

WILLIAM A. KERNSTOCK, 

Petitioner/Defendant-Appellant. 

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS 

(CAAP-12-0001007; CASE NO. 1DTA-12-03599) 

SUMMARY DISPOSITION ORDER 

(By: McKenna, Pollack, and Wilson, JJ., 

with Wilson, J., concurring separately, 

and Nakayama, J., dissenting, 

with whom Recktenwald, C.J., joins) 

 Petitioner/Defendant-Appellant William A. Kernstock 

seeks review of the Intermediate Court of Appeals’ (ICA) August 

19, 2014 Judgment on Appeal, entered pursuant to its July 15, 

2014 Summary Disposition Order, which affirmed the District 

Court of the First Circuit’s (district court) October 16, 2012 

Notice of Entry of Judgment and/or Order and Plea/Judgment 

Electronically Filed

Supreme Court

SCWC-12-0001007

04-MAR-2016

08:09 AM
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2 

(district court judgment).1 The district court found Kernstock 

guilty of Operating a Vehicle Under the Influence of an 

Intoxicant (OVUII), in violation of Hawai#i Revised Statutes 

(HRS) § 291E-61(a)(3) (Supp. 2010).2 This court accepted 

Kernstock’s Application for Writ of Certiorari, and we now 

vacate the ICA’s Judgment on Appeal and the district court 

judgment and remand the case to the district court for further 

proceedings. 

 After being arrested for OVUII, Kernstock was taken to 

the police station, where he was read an implied consent form.3 

 1

 The Honorable Paul B.K. Wong presided. 

2

 HRS § 291E-61(a)(3) (Supp. 2010) provides in relevant part: 

(a) A person commits the offense of operating a vehicle under 

the influence of an intoxicant if the person operates or 

assumes actual physical control of a vehicle: 

. . . 

 (3) With .08 or more grams of alcohol per two hundred ten 

liters of breath. . . . 

3

 The form read in relevant part: 

1. ___ Any person who operates a vehicle upon a public way, 

street, road, or highway or on or in the waters of the State 

shall be deemed to have given consent to a test or tests for 

the purpose of determining alcohol concentration or drug 

content of the persons [sic] breath, blood or urine as 

applicable. 

2. ___ You are not entitled to an attorney before you submit to 

any tests [sic] or tests to determine your alcohol and/or drug 

content. 

3. ___ You may refuse to submit to a breath or blood test, or 

both for the purpose of determining alcohol concentration 

and/or blood or urine test, or both for the purpose of 

determining drug content, none shall be given [sic], except as 

provided in section 291E-21. However, if you refuse to submit 
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3 

Kernstock elected to take a breath test, which resulted in a 

breath alcohol content reading of 0.131 grams of alcohol per 210 

liters of breath. In his motion to suppress the breath test 

results before the district court and on certiorari, Kernstock 

contends that (1) his Miranda rights under Article I, Section 10 

of the Hawaiʻi Constitution were violated when, while in custody, 

he was asked by the police, without Miranda warnings, if he 

wanted to refuse to take a blood alcohol test, which was likely 

to incriminate himself; (2) his statutory right to an attorney 

was violated; and (3) the wording of the implied consent form 

misinformed Kernstock of the sanctions.4 Kernstock noted in his 

Application that this court had accepted certiorari in State v. 

Won, SCWC-12-858, and he contended that the court’s ruling in 

Won would “ultimately decide what happens in the present case.” 

 In State v. Won, 136 Hawaiʻi 292, 312, 361 P.3d 1195, 

1215 (2015), we held that “coercion engendered by the Implied 

Consent Form runs afoul of the constitutional mandate that 

waiver of a constitutional right may only be the result of a 

 to a breath, blood, or urine test, you shall be subject to up 

to thirty days imprisonment and/or fine up to $1,000 or the 

sanctions of 291E-65, if applicable. In addition, you shall 

also be subject to the procedures and sanctions under chapter 

291E, part III. 

4

 Included in this third argument raised before the district court 

and the ICA, Kernstock contended that the police officers’ warnings and 

advisements based on the implied consent form were coercive and that he did 

not knowingly and voluntarily submit to the breath alcohol testing. The 

district court denied his motion to suppress, and the ICA affirmed the 

district court’s ruling. 
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4 

free and unconstrained choice,” and, thus, a defendant’s 

decision to submit to testing after being read the implied 

consent form “is invalid as a waiver of his right not to be 

searched.” In accordance with State v. Won, the result of 

Kernstock’s breath test was the product of a warrantless search, 

and the ICA erred by concluding that the district court properly 

denied Kernstock’s motion to suppress the breath test result. 

Accordingly, Kernstock’s OVUII conviction cannot be upheld. 

 IT IS HEREBY ORDERED that the ICA’s August 19, 2014 

Judgment on Appeal and the district court judgment are vacated, 

and the case is remanded to the district court for further 

proceedings consistent with this court’s opinion in State v. 

Won. 

DATED: Honolulu, Hawai#i, March 4, 2016. 

Jonathan Burge 

for petitioner 

Brian R. Vincent 

for respondent 

Robert T. Nakatsuji 

for amicus curiae 

Attorney General of 

the State of Hawaiʻi 

/s/ Sabrina S. McKenna 

/s/ Richard W. Pollack 

/s/ Michael D. Wilson