State v. Tengan

• Decision Date: 20 November 1984
• Docket Number: Nos. 9151,9311,s. 9151
• Citation: 691 P.2d 365,67 Haw. 451
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Wayne Taro TENGAN, Defendant-Appellant. STATE of Hawaii, Plaintiff-Appellee, v. Glenn Ichiro AKITA, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 365

691 P.2d 365

67 Haw. 451

STATE of Hawaii, Plaintiff-Appellee, v. Wayne Taro TENGAN, Defendant-Appellant.

STATE of Hawaii, Plaintiff-Appellee, v. Glenn Ichiro AKITA, Defendant-Appellant.

Nos. 9151, 9311.

Supreme Court of Hawai'i.

Nov. 20, 1984.

Reconsideration Denied Dec. 7, 1984.

Syllabus by the Court

1. Statutory language must be read in the context of the entire statute and construed in a manner consistent with the purposes of the statutes.

2. Each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy is a rule within the meaning of HRS § 91-1(4), and the agency issuing the statement is bound by the procedural requirements of HRS § 91-3.

3. Where a public administrator set no policy and exercised no discretion with respect to instruments used by law enforcement agencies in chemical tests to determine blood alcohol concentration and merely coordinated State and federal efforts to maintain accuracy in testing, he was not engaged in rule making.

4. State legislation adopting by reference future legislation, rules, or regulations, or amendments thereof, enacted, adopted, or promulgated by another sovereign entity, constitutes an unlawful delegation of legislative power.

Gregory K. Tanaka, Deputy Public Defender, Honolulu, for appellant Tengan.

Lynn L. Hodgson, Deputy Pros. Atty., Honolulu (Arthur E. Ross, Honolulu, on the brief), for appellee State of Hawaii.

Charles S. Gerdes, Honolulu, on the briefs for appellant Akita.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

NAKAMURA, Justice.

A State agency must follow the Administrative Procedure Act, Hawaii Revised Statutes (HRS) Chapter 91, when it acts in a rule-making capacity. Town v. Land Use Commission, 55 Haw. 538, 545, 524 P.2d 84, 89, reh. denied, 55 Haw. 677 (1974). In these appeals, Defendants Wayne Taro Tengan and Glenn Ichiro Akita challenge the use of the Intoxilyzer 4011AS (the Intoxilyzer), a breath-testing device, to measure the concentration of alcohol in the blood of suspected drunken drivers on the ground that its use has not been authorized pursuant to a rule adopted in conformity with the Act. Tengan also questions the test results which were admitted as evidence in his case because "the breath test was not conducted by qualified personnel using the proper procedures specified under Hawaii law" and Akita also claims the Director of Transportation improperly delegated part of his authority to a federal agency. Finding no merit in the defendants' contentions, we affirm their convictions of violations of HRS § 291-4. ¹

I.

The defendants were stopped by officers of the Honolulu Police Department on suspicion of driving while under the influence of intoxicating liquor in unrelated incidents in 1982 and 1983. Each was arrested and transported to the police station after a roadside sobriety test yielded further evidence of his drunkenness. Apprised that drunk driving suspects who refuse to submit to either a breath or blood test to determine the alcoholic content of their blood are liable to have their driving privileges revoked under the "implied consent" law, ² each chose to undergo a breath test. The testing instrument used by the police to verify the concentration of alcohol in the blood of both was the Intoxilyzer. In each case the blood alcohol concentration registered .18% by weight of alcohol, substantially higher than the .10% which then served as presumptive evidence of intoxication under HRS § 291-5. ³

Prior to trial in the District Court of the First Circuit, Tengan moved to exclude "all evidence obtained by the State in connection with the blood alcohol content breath test," alleging the use of the Intoxilyzer as a breath-testing device had not been authorized by a properly adopted rule. He also urged the court to suppress the evidence on the ground that the pertinent test was conducted by an unqualified person. The district court, however, denied the motion and convicted Tengan of driving under the influence of intoxicating liquor. Akita likewise averred the use of the Intoxilyzer to procure proof of drunkenness in his case had not been approved by the Director of Transportation pursuant to a duly adopted rule and further claimed the director had improperly redelegated his duty in this regard to a federal agency. He sought a dismissal of the charge rather than an order suppressing the evidence. But the district court also rejected his claims of infirmity relating to the approval of the testing device and adjudged him guilty of a violation of HRS § 291-4.

On appeal, the defendants essentially reiterate what was urged upon the district court. Our consideration of the issues posed for decision begins, as it must, with the relevant statutory scheme.

II.

The genesis of the State's efforts to deter drinkers from driving is traceable to a modest beginning in 1949 with the enactment of S.L.H. 1949, c. 283. Troubled by the prevalence of "accidents and deaths involving persons driving under the influence of liquor" and noting the lack of a "Territorial statute relating to this subject," the Territorial legislature "enact[ed] into law provisions making it a misdemeanor to operate vehicles while under the influence of intoxicating liquor or of drugs." Hse.Stand.Comm.Rep. No. 629, in 1949 House Journal, at 1652. ⁴ Concomitantly, it "establish[ed] certain [evidentiary] presumptions [relating to a person's intoxicated state] based upon the amount of alcohol in a person's blood." Id. Though substantially modified since, the basic proscription of drunk driving and the presumptions enacted by the Territorial legislature remain as part of the statutory scheme to curb drunk drivers. See HRS §§ 291-4 and 291-5; see also notes 1 and 2 supra.

"Implied consent" was added to this scheme in 1967 when the Hawaii Highway Safety Act, now codified as HRS Chapter 286, was passed to comply with a congressional mandate in the Highway Safety Act of 1966, Pub.L. 89-564, § 402(a), 80 Stat. 731, 731 (1966), for states to adopt federally approved highway safety programs. See S.L.H. 1967, c. 214, § 2 and Sen.Stand.Comm.Rep. No. 234, in 1967 Senate Journal, at 952. Act 214 provided in part that one operating a motor vehicle on the public highways of the State would be deemed to have consented to being tested to determine the amount of alcohol in his blood. ⁵ It further provided a test could be administered only after a lawful arrest and the suspected drunk driver was informed of the consequences of refusal, which included a possible revocation of driving privileges. ⁶ Though modified, the essence of these provisions is retained in the calculus of laws dealing with the menacing presence of the intoxicated driver on the highways of the State, see HRS §§ 286-151 and 286-155, and "implied consent" to testing remains the linchpin of the program to keep him off the highways.

The responsibility of maintaining "scientific and technical control of chemical testing for blood alcohol" subsequently became that of the Department of Health. See S.L.H. 1973, c. 139, and Sen.Stand.Comm.Rep. No. 692, in 1973 Senate Journal, at 924. The department was assigned the task of "establish[ing] and administer[ing] a statewide program relating to chemical testing of blood-alcohol concentrations for the purposes of chapters 286, Part VII, 291 and 291C, with the consultation of the state highway safety coordinator." ⁷ S.L.H. 1973, c. 139. It was directed to establish appropriate procedures for specifying:

(1) The qualifications of personnel who administer chemical tests used to determine blood-alcohol concentrations;

(2) The procedures for specimen selection, collection, handling, and analysis; and

(3) The manner of reporting and tabulation of the results.

Id. The director of the department was further empowered to adopt the necessary rules and regulations pursuant to HRS Chapter 91 to implement these provisions. Id.

In conformity with the directives of Act 139, now codified as HRS § 321-161, the Director of Health has promulgated comprehensive rules governing the chemical testing of blood, breath and other bodily substances, in accord with HRS Chapter 91. ⁸ Initially the rules were compiled in Chapter 47 of the Public Health Regulations. But Chapter 47 has since been repealed and the applicable rules are now found in Title 11, Chapter 111, [of the State's] Administrative Rules.

Thus, the history of the State's efforts to curb drunk driving has been one of amendments and accretions to the simply worded statutory provisions enacted in 1949. And while the primary duty of enforcing HRS § 291-4 has always rested with the police, the responsibility of implementing the expanded State program is now shared among several state and county agencies taking direction from several chapters of the Hawaii Revised Statutes, as well as from duly adopted rules and regulations.

III.

The focus of the defendants' challenge of the use of the Intoxilyzer by the police to obtain evidence of intoxication is the language of HRS § 286-151 stating that anyone "who operates a motor vehicle on the public highways of the State shall be deemed to have given consent ... to a test approved by the director of transportation [to determine] the alcoholic content of the person's blood." (Emphasis supplied). They assert the director was obliged thereunder to approve the testing instrument in accord with the rule-making provisions of the Administrative Procedure Act. Since he has not done so, they maintain the evidence of intoxication obtained through the use of the Intoxilyzer was fatally tainted.

A.

Reading the section in isolation, the defendants would have us rule a "test" within the meaning of § 286-151 encompasses a "testing device" and its approval by the Director of Transportation is subject to the strictures of HRS Chapter 91. "But a statutory provision seldom may be read in...