State v. Davis

Citation400 P.3d 453
Decision Date15 May 2017
Docket NumberSCWC-12-0001121
Parties STATE of Hawai'i, Respondent/Plaintiff-Appellee, v. Raymond S. DAVIS, Petitioner/Defendant-Appellant.
CourtSupreme Court of Hawai'i

Phyllis J. Hironaka for petitioner.

James M. Anderson, Honolulu, for respondent.

McKENNA, POLLACK, AND WILSON, JJ., AND RECKTENWALD, C.J., DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

OPINION OF THE COURT BY POLLACK, J.

This case concerns the admissibility of two Intoxilyzer Supervisor's Sworn Statements to prove that the Intoxilyzer used to test Raymond S. Davis's breath alcohol content was in proper working order. The State relied on these out-of-court statements in establishing the reliability of Davis's breath alcohol test results, which in turn served as a basis for his conviction for the offense of operating a vehicle under the influence of an intoxicant. We consider whether the Intoxilyzer Supervisor's Sworn Statements were admissible given the facts of this case under the Hawaii Rules of Evidence.

I. BACKGROUND

The State of Hawai'i filed a complaint in the District Court of the First Circuit (district court), charging that, on March 3, 2012, Raymond S. Davis committed the offense of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) and/or (a)(3) (Supp. 2011).1 At the commencement of the bench trial,2 the State orally arraigned Davis only under HRS § 291E-61(a)(3) for operating or assuming actual physical control of a vehicle upon a public way, street, road, or highway with .08 or more grams of alcohol per 210 liters of breath. Davis entered a plea of not guilty to the charge.

The State's first witness was Officer Russell Maeshiro, who testified that on March 3, 2012, around 2:10 a.m., he stopped Davis's car after observing Davis weave in and out of marked lanes without using his blinkers or hand signals. Officer Maeshiro approached the driver's side of the vehicle and observed that Davis had red, bloodshot, glassy eyes and noted that Davis spoke with an apparent slight slur. The officer stated that he asked Davis to complete a field sobriety test after smelling the odor of an alcoholic beverage coming from the interior of Davis's car. At this point in the testimony, Davis stipulated that, based on Officer Maeshiro's observations, the officer had reasonable suspicion to stop Davis and probable cause to arrest him for OVUII.

Officer Kimberly Ann Chaney testified that she transported Davis from the location of the stop to the Kalihi police station. Officer Chaney related that she informed Davis of the implied consent law by reading him form HPD-396K.3 After Davis elected to take a breath test, Officer Chaney testified that she turned on the Intoxilyzer 8000, identified as serial number 80-003486 (Intoxilyzer), and that the machine proceeded to conduct and pass an internal self-check.

After questioning Officer Chaney regarding the internal self-check, the State asked whether "based on [Officer Chaney's] training and experience in operating the Intoxilyzer 8000," the instrument "appear[ed] to be operating properly and accurately on the date in question." Before Officer Chaney responded, the State showed to defense counsel two Intoxilyzer 8000 Accuracy Test Supervisor's Sworn Statements, dated February 29, 2012, and March 16, 2012 (Sworn Statements 1 and 2, respectively). The State, however, asked no questions of Officer Chaney regarding Sworn Statements 1 and 2. Rather, the State informed the court that Sworn Statements 1 and 2 "show [ed] that the instrument was working properly" and that it sought to admit the documents into evidence as proof of the Intoxilyzer's condition and accuracy.

The top half of Sworn Statements 1 and 2 includes a machine printout of the calibration testing data from the Intoxilyzer. The bottom half of Sworn Statements 1 and 2 includes a pre-printed text block in which a person by the name of Woo Kang is identified as the Intoxilyzer supervisor. As to the machine printout of the calibration testing data, there is a table listing the following information in this order: (1) air blank; (2) simulator temperature; (3) reference sample # 1; (4) air blank; (5) air blank; (6) simulator temperature; (7) reference sample # 2; (8) air blank; (9) ITP check; and (10) air blank. Next to each category of information, except the simulator temperatures, is a data entry based on "g/210L BrAC."4 Next to each data entry is a time stamp.

The pre-printed text block located in the bottom half of Sworn Statements 1 and 2 contains the following statement:

I, Woo KANG, swear that the aforementioned information is true and correct and that I am a duly licensed Intoxilyzer 8000 supervisor trained to maintain and perform accuracy tests on the Intoxilyzer 8000. The Intoxilyzer 8000 is a breath alcohol testing instrument approved for use in the State of Hawaii pursuant to section 321-161 of the Hawaii Revised Statutes as amended. The Intoxilyzer was operating accurately in compliance with the State of Hawaii Department of Health Administrative Rules, Title Eleven, Chapter 114-7, on the date indicated below, when I conducted the accuracy test recorded on this document.

Below this pre-printed language are the date, Woo Kang's signature, and his license number and its expiration date.

Davis objected to Sworn Statements 1 and 2 being entered into evidence based upon, inter alia: (1) lack of foundation; (2) hearsay; and (3) hearsay within hearsay. Davis argued that Sworn Statements 1 and 2 did not substantively comply with the requirements of Hawaii Rules of Evidence (HRE) Rule 803(b)(6) (1993 & Supp. 2002), which is the hearsay exception for records of regularly conducted activity (i.e., business records). Further, Davis maintained that without more information or testimony as to Sworn Statements 1 and 2, the data printout reflecting the calibration test results was meaningless to the court; he noted, for example, that there was no evidence presented as to what known reference samples were used in the calibration testing and what their "target values" or output should have been in the machine's data printout. Additionally, Davis contended that there was no information presented as to the specifics of the calibration procedure performed by Kang, which apparently differed from the Intoxilyzer's internal self-check. Davis also objected to the admission of Sworn Statements 1 and 2 into evidence under the public records exception. Davis argued that Sworn Statements 1 and 2 lacked reliability on their face because the State failed to present the circumstances of how the information was obtained, given that Kang did not testify at trial.

The State contended that there was sufficient legal basis under HRE Rule 803(b)(8) (1993 & Supp. 2002) for the admission of Sworn Statements 1 and 2 into evidence because they were public records made in the course of a regularly conducted activity. The State maintained that each document was a self-authenticating copy of the original log, which was kept in the custody of the Honolulu Police Department (HPD), a public office, and that each document contained a data compilation. The State further argued that the criteria for admitting Sworn Statements 1 and 2 into evidence were met because each document, on its face, complied with the requirements prescribed in the Hawai'i Administrative Rules (HAR), and each document indicated that the Intoxilyzer was "operating accurately" when calibrated. The State maintained that the district court did not need to look at the data printout set forth in Sworn Statements 1 and 2 to determine whether or not the device was operating accurately because Kang swore that the machine was operating accurately in compliance with the HAR.

Over the defense's objection, the district court received into evidence Sworn Statements 1 and 2.5 The district court, also over objection, admitted into evidence the March 3, 2012 Sworn Statement of Intoxilyzer Operator (Operator Statement), which indicated that the breath alcohol content measured by the Intoxilyzer for Davis was .139 grams of alcohol per 210 liters of breath.

Based on the evidence presented, the district court concluded that the State met the three foundational requirements to show that Davis's breath test results could be relied on as substantive evidence: (1) the Intoxilyzer was in proper working order; (2) its operator was qualified; and (3) the test was properly administered. The court also determined that the State showed strict compliance with the requirements of the HAR. Consequently, the district court concluded that the State proved beyond a reasonable doubt that Davis had .08 or more grams of alcohol per 210 liters of breath at the time he was driving on March 3, 2012. Accordingly, the district court found Davis guilty of the offense charged and entered its Order and Notice of Entry of Order on November 29, 2012.

Davis appealed to the Intermediate Court of Appeals (ICA), challenging the district court's admission of Sworn Statements 1 and 2 into evidence on the grounds that they did not meet the foundational requirements and failed to comply with the requirements of the business records exception.6 Davis noted that he had objected at trial to the admission of Sworn Statements 1 and 2 under the Hawaii Rules of Evidence as inadmissible hearsay. Davis further contended that because the district court erred in admitting Sworn Statements 1 and 2, the State failed to present any evidence that the Intoxilyzer used to test his breath alcohol content was in proper working order and thus failed to lay a proper foundation for the admission of his breath test results. In response, the State maintained that the district court properly admitted Sworn Statements 1 and 2 into evidence as public records under HRE Rule 803(b)(8). The State therefore argued that the district court did not err in admitting Davis's breath test results into evidence.

In a Summary Disposition Order, the ICA ruled that ...

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