Full Breakdown
Hawaii Supreme Court to Review Whether Refusal of Voluntary Sobriety Tests Can Imply Guilt
6/2/2026, 7:59:27 AM
Core Legal Issue: Refusal as Evidence
The Hawaii Supreme Court will hear arguments on whether a driver’s refusal to take a Standardized Field Sobriety Test (SFST) may be used as evidence of “consciousness of guilt” in license-revocation hearings and criminal DUI prosecutions. The case challenges a lower-court decision that permits such an inference, raising constitutional questions.
Background: SFSTs and Current Enforcement
SFSTs consist of a one-leg stand, walk-and-turn, and eye-tracking test and are administered voluntarily. Body-camera footage released by Hawaii News Now shows officers ordering drivers who decline the tests out of their vehicles and proceeding with arrests, treating refusal as a basis for probable cause.
Official Positions & Legal Arguments
State, through agency attorney Emily Hills, maintains that drivers retain a constitutional right to refuse, yet law-enforcement may consider the refusal in assessing probable cause. Appellant attorney Kevin O’Grady, joined by the ACLU of Hawaii, argues that refusals can arise from fatigue, language barriers, physical limitations or fear and should not be read as guilt. Defense attorneys Victor Bakke and Jonathan Burge warn that the “consciousness of guilt” inference forces defendants into a no-win choice between an incriminating test result and a presumption of guilt for declining.
Criticism & Opposition
Critics argue the inference undermines counsel’s advice to refuse testing, creates a coercive dilemma, and ignores factors such as limited English proficiency or physical impairments that can lead to refusals unrelated to intoxication.
Verbatim Quotes
- “Right now, the court is allowed and hearings officers are allowed to take a person’s ‘no’ to perform a voluntary test and use it as a presumption that the person is guilty,” — Kevin O’Grady, Attorney
- “You have a right to say, ‘No, I don’t want to help you prosecute me,’” — Emily Hills, Agency Attorney
- “They’re painting people into a no-win situation,” — Victor Bakke, Defense Attorney and Former Deputy City Prosecutor
- “They’re tired. They’re scared. Maybe English isn’t their first language. Maybe they’re not good at following instructions, or they have bad knees,” — Kevin O’Grady, Attorney
Why It Matters
A ruling that bars using refusal as evidence could reshape DUI enforcement in Hawaii, strengthening constitutional safeguards and influencing other states. Upholding the inference would legitimize a practice critics say coerces self-incrimination, potentially eroding public trust in law-enforcement and affecting the fairness of license-revocation hearings.
What’s Next
Oral arguments are set for Thursday. The Supreme Court’s decision, expected later in the year, will determine whether refusal of SFSTs can continue to serve as a basis for guilt presumptions in both administrative and criminal proceedings.
