State v. Ofa, 14917
| Decision Date | 25 March 1992 |
| Docket Number | No. 14917,14917 |
| Citation | 828 P.2d 813,9 Haw.App. 130 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Moonga OFA, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. In meeting the foundational prerequisites for the admission of an intoxilyzer model 4011AS (Intoxilyzer) breath test result into evidence, there must be a showing of strict compliance with those provisions of the State Department of Health's Rules for the Testing of Blood, Breath or Other Bodily Substances for Alcohol Concentration (Rules) which have a direct bearing on the validity and accuracy of the test result.
2. Section 11-111-2.1(k) of the Rules which requires calibration testing of the Intoxilyzer with a minimum of two reference samples of known alcohol concentration at a known temperature that are recommended by the breath-testing instrument's manufacturer has a direct bearing on the accuracy of the Intoxilyzer test result.
3. Where certified Intoxilyzer operator-supervisors of the Honolulu Police Department (HPD) conduct periodic calibration testing of HPD Intoxilyzers for accuracy and enter into a record book or log book the dates and results of the calibration testing, the record book or a pertinent portion thereof (Log) is admissible into evidence pursuant to the public records and reports exception to the hearsay rule under HRE Rule 803(b)(8)(B).
4. The Log is not excludable in a driving under the influence of intoxicating liquor (DUI) case under HRE Rule 803(b)(8)(B) as being "matters observed by ... law enforcement personnel" in a criminal case, because the Log constitutes a record of routine, nonadversarial matters made in a nonadversarial setting.
5. The public records and reports exception to the hearsay rule is firmly rooted in our jurisprudence. Therefore, the admission of the Log into evidence in a DUI case without the oral testimony of the Intoxilyzer operator-supervisor who conducted the calibration testing or a showing of his unavailability, does not violate a defendant's constitutional rights under the United States and State confrontation clauses.
6. Where the Log admitted in evidence did not include the "known temperature" of the reference samples used in the calibration testing of the Intoxilyzer for accuracy, the prosecution failed to show strict compliance with section 11-111-2.1(k) of the Rules. Therefore, the court abused its discretion in admitting the Intoxilyzer into evidence over the defendant's objection.
7. Where a judgment of conviction is reversed for insufficiency of the evidence, as opposed to reversal for trial error, the Double Jeopardy Clause of the Fifth Amendment prevents a new trial.
8. In a DUI case, where prior to the time of trial a Hawaii appellate case had established the foundational prerequisite, but the trial court admitted the Intoxilyzer test result into evidence without the foundational prerequisite having been satisfied, the appellate court's reversal of the conviction is for insufficiency of the evidence, not for trial error.
Winston D.M. Ling, Deputy Public Defender, on the brief, Honolulu, for defendant-appellant.
Patricia A. Loo, Deputy Pros. Atty., on the brief, Honolulu, for plaintiff-appellee.
Before BURNS, C.J., HEEN, J., and HUDDY, Circuit Judge, Assigned by Reason of Vacancy.
Defendant Moonga Ofa (Defendant) appeals his bench trial conviction of driving under the influence of intoxicating liquor (DUI) in violation of Hawaii Revised Statutes (HRS) § 291-4(a) (1985). 1 Defendant contends that the district court abused its discretion by admitting into evidence the test result obtained from a breath-testing instrument, an intoxilyzer model 4011AS bearing Serial No. 102374 (Intoxilyzer), because the State of Hawaii (State) failed to lay a proper foundation for its admission. We agree. Accordingly, we reverse the DUI conviction and remand the case with instructions to enter a judgment of acquittal for Defendant. 2
On June 17, 1990, Defendant was arrested for DUI. At the police station, Defendant consented to a breath test. The breath test administered on the Intoxilyzer indicated a blood alcohol concentration of 0.12 percent.
At trial, Honolulu Police Department (HPD) criminalist Gilbert Chang (Chang), a certified intoxilyzer operator-supervisor, testified that (1) certified operator-supervisors periodically test or calibrate the HPD's intoxilyzers for accuracy; (2) the testing is done with two simulator solutions or reference samples of different alcohol concentration as required by "Title 11," which is the State Department of Health's Rules for the Testing of Blood, Breath and Other Bodily Substances for Alcohol Concentration (Rules); (3) testing by a beam attenuator 3 is also conducted; (4) after completion of the testing, the operator-supervisor enters into the record book or log book, which is kept at Chang's desk and is under Chang's control, the date and results of the testing for accuracy.
The court admitted into evidence, over Defendant's objection, a copy of a page of the record book (Log) that Chang brought into court. The Log showed that on May 31, 1990, and June 28, 1990, the Intoxilyzer had been tested for accuracy by a beam attenuator and two simulator solutions of 0.05 percent and 0.30 percent alcohol concentration, respectively. Based on the initials "JW" on the Log, Chang testified that John Wadahara (Wadahara) had tested the Intoxilyzer for accuracy on those dates. Chang stated that the Log indicated that the Intoxilyzer was operating accurately on May 31 and June 28, 1990. Wadahara did not testify in the case.
The court admitted the Intoxilyzer test result into evidence over Defendant's objection. The court found Defendant guilty of DUI, commenting "had there been no [breath] test in this case, I would have been inclined to find [Defendant] not guilty." October 1, 1990 Transcript at 77.
Section 11-111-2.1(j)(2) of the Rules requires testing for accuracy of all breath testing instruments "not less frequently than every thirty days[.]" Section 11-111-2.1(k) of the Rules provides as follows:
(k) The recommended calibration testing method shall use a minimum of two reference samples of known alcohol concentration at a known temperature within the range of one hundredths to thirty hundredths per cent weight per volume or higher known alcohol concentrations that are recommended by the breath testing instrument's manufacturer. The results of the analysis shall agree with the reference sample value within the limits of plus or minus one hundredths per cent weight per volume or such limits set by the director.
In State v. Souza, 6 Haw.App. 554, 559, 732 P.2d 253, 257 (1987), we concluded:
[I]n meeting the foundational prerequisites for the admission of the Intoxilyzer test result there must be a showing of strict compliance with those provisions of the Rules which have a direct bearing on the validity and accuracy of the test result. [Footnote omitted.]
Section 11-111-2.1(k) "has a direct bearing on the accuracy of the Intoxilyzer test result." State v. Hamasaki, 7 Haw.App. 542, 544, 783 P.2d 1235, 1238 (1989). Thus, a showing of strict compliance with that section is a foundational prerequisite in order to admit a breath test result into evidence.
Defendant contends that the foundational prerequisite was not met because (1) the Log itself and Chang's testimony regarding Wadahara's testing of the Intoxilyzer constituted hearsay and were improperly admitted into evidence and (2) the admission of such evidence violated Defendant's constitutional rights of confrontation. We disagree. Defendant further contends that the record lacks evidence of "known temperature" of the two reference samples of known alcohol concentration, as required by section 11-111-2.1(k). We agree.
The information on the Log was clearly hearsay. However, the court admitted it under the public records and reports exception to the hearsay rule set forth in Hawaii Rules of Evidence (HRE) Rule 803(b)(8)(B) which provides:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, ... unless the sources of information or other circumstances indicate lack of trustworthiness.
HRE Rule 803 exceptions to the hearsay rule "do not depend upon the present status or whereabouts of the declarant." Rule 803 Commentary.
The Log falls within the HRE Rule 803(b)(8)(B) exception. It constitutes a record or report of a public agency, the HPD. It includes matters observed and reported by a HPD operator-supervisor who tested the Intoxilyzer for accuracy as required by provisions of the Rules. The only issue is whether the Log is excludable from the public records and reports exception to the hearsay rule as "matters observed by ... law enforcement personnel" in a criminal case.
Federal Rules of Evidence (Fed.R.Evid.) 803(8)(B) is identical to HRE Rule 803(b)(8)(B). In construing the exclusion provision of Fed.R.Evid. 803(8)(B), the Court of Appeals of the Second Circuit took a very restrictive view, holding that
in criminal cases reports of public agencies setting forth matters observed by police officers and other law enforcement personnel and reports of public agencies setting forth factual findings resulting from investigations made pursuant to authority granted by law cannot satisfy the standards of any hearsay exceptions if those reports are sought to be introduced against the accused.
United States v. Oates, 560 F.2d 45, 84 (2d Cir.1977). The Oates restrictive view has been criticized. See 4 J. Weinstein & M. Berger, Weinstein's Evidence p 803(8) (1991).
The Court of Appeals of the Ninth Circuit concluded that "the exclusionary provisions of ...
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