Can refusing a sobriety test be used against you? Hawaii high court weighs in

In Hawaii, refusing a roadside sobriety test can be treated as evidence you knew you were drunk. But some say that should change.

by Jeremy Yurow, Court House News, June 4, 2026

HONOLULU (CN) — Yuki Gleason said no.

When a police officer asked her to perform a sobriety test after pulling her over for swerving, Gleason refused. She was arrested anyway, taken to the station and blew a 0.140 on a breath test, well above the legal limit. Her driver’s license was revoked for a year.

But it was that refusal that brought her case to the Hawaii Supreme Court on Thursday, where the panel of justices considered if refusing sobriety tests can be used as evidence that a driver knew they were intoxicated.

A lower court said yes, relying on a 25-year-old ruling allowing hearing officers and judges to treat a refusal as a sign of what the law calls consciousness of guilt.

Gleason’s attorney and the ACLU of Hawaii asked the court to throw that standard out.

“Refusal to cooperate with police is not synonymous with guilt,” Emily Hills, ACLU of Hawaii attorney, said. “It should not be treated as such.”

The sobriety test is technically voluntary. Officers ask drivers suspected of impairment to perform a series of coordination exercises, such as walking in a straight line, standing on one leg and following a light with their eyes.

But under the current standard, established by the state Intermediate Court of Appeals’ 2000 decision in State v. Ferm, a refusal can be used as evidence that a driver knew they were intoxicated.

Gleason’s attorney, Kevin O’Grady, argued that Ferm should be overruled. He said the connection between refusing the test and actually being guilty is weaker than the law assumes, and that there are many innocent reasons a person might decline, including fatigue, nerves, a language barrier, bad knees or simply knowing their legal rights.

“A person cannot be punished for exercising a right, including the right to not provide evidence to the police,” O’Grady said.

But the state’s deputy solicitor general, Sianha Gualano, urged the court not to disturb Ferm.

She argued that because the Hawaii Supreme Court has previously found that sobriety tests do not implicate constitutional protections against unreasonable searches or self-incrimination, a driver has no constitutional right to refuse them.

Without a constitutional right at stake, she said, the refusal is simply another piece of evidence that an officer or hearing officer can consider.

“The refusal can be admitted and can be considered,” Gualano said.

Chief Justice Vladimir Devens pointed out that Gleason had other signs of impairment, including glassy eyes and swerving, and pressed O’Grady on whether those factors alone might have been enough to establish probable cause without considering the refusal.

O’Grady acknowledged the other factors could support a probable cause argument, but said the problem was that the hearing officer had explicitly relied on the refusal. That reliance, he said, could not be allowed regardless of what else the record showed.

Justice Todd Eddins pushed back on the state’s position, questioning why the refusal inference was needed at all if an officer already had strong evidence of impairment.

He also raised a more fundamental concern: that the inference functions less like an evidentiary tool and more like an admission of guilt dressed up in legal language.

“It just seems like you are dressing up an admission and calling it a permissive inference,” Eddins said, “when it is really a confession.”

And Justice Sabrina McKenna pressed Gualano on what a driver is actually supposed to do, noting that while the test is presented as voluntary, drivers are never told that saying no could be used against them in court.

“A person has a right to say no,” McKenna said. “Why should that be consciousness of guilt?”

McKenna also tossed out a hypothetical based on the National Highway Traffic Safety Administration’s guidelines saying the walk-and-turn and one-leg-stand tests are unreliable for people over 65. Under Ferm, she noted, an elderly person’s refusal of a test the federal government considers unreliable for them could still be used as evidence of guilt.

Eddins floated the possibility that the court might not need to reach the constitutional questions at all, suggesting the case could potentially be resolved on narrower evidentiary grounds by asking whether the inference has a rational connection to what it is supposed to prove.

The panel was composed of Chief Justice Devens, Justices McKenna and Eddins, and two First Circuit judges sitting by assignment. Judge Shirley Kawamura was assigned due to a vacancy, and Judge Kevin Morikone replaced Justice Lisa Ginoza, who recused herself.

The court took the matter under advisement.