State v. Souza

• Decision Date: 29 January 1987
• Docket Number: No. 11285,11285
• Citation: 6 Haw.App. 554,732 P.2d 253
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. John Frederick SOUZA, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 253

732 P.2d 253

6 Haw.App. 554

STATE of Hawaii, Plaintiff-Appellee, v. John Frederick SOUZA, Defendant-Appellant.

No. 11285.

Intermediate Court of Appeals of Hawai'i.

Jan. 29, 1987.

Syllabus by the Court

1. Before the result of a test made out of court may be introduced into evidence, a foundation must be laid showing that the test result can be relied on as a substantive fact.

2. Although the use of the Intoxilyzer has been approved by the Director of Health and has met the Federal Standard for Devices to Measure Breath Alcohol, for the admission of the test result from the use of a particular Intoxilyzer utilized at a specific time, there must be sufficient foundational evidence showing that (1) the Intoxilyzer was in proper working order; (2) its operator was qualified; and (3) the test was properly administered.

3. In order to meet the foundational prerequisites for the admission of the Intoxilyzer test result, there must be a showing of strict compliance with those provisions of rules governing the testing of blood, breath, and other bodily substances for alcohol concentration (Title 11 of Chapter 111 of the State's Administrative Rules) (hereinafter the Rules) which have a direct bearing on the validity and accuracy of the test result.

4. There must be strict compliance with § 11-111-2(b)(3) of the Rules specifying the procedure to test the accuracy of the Intoxilyzer for it has a direct bearing on the test result obtained from that Intoxilyzer.

5. Since the record keeping requirements of § 11-111-2(b)(6) have no direct impact on the validity and accuracy of the test result, record keeping deficiencies affect the weight to be given to the test result but do not affect its admissibility.

Kazuo Oyama, Honolulu, for defendant-appellant.

Candace Kay Andersen, Deputy Pros. Atty., Dept. of the Pros. Atty., Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

TANAKA, Judge.

This is an appeal by defendant John Frederick Souza (Souza) of his conviction for the offense of driving under the influence of intoxicating liquor (DUI) in violation of Hawaii Revised Statutes (HRS) § 291-4(a)(2) (1985). ¹ The appeal requires our determination of the sufficiency of the foundation required in order to have the result of a breath testing instrument admitted into evidence. We hold that if the evidence indicates a lack of strict compliance with those provisions of the Department of Health regulations which have a direct impact on the validity and accuracy of the test result, the foundational requirements have not been met and the result is inadmissible. However, since our review of the record in this case discloses that the State met the foundational requirements, we affirm.

I.

On October 11, 1984, Souza was arrested for a DUI offense. At the police station Souza consented to a breath test. The test administered on an Intoxilyzer Model 4011AS (Intoxilyzer) ² resulted in a blood alcohol content reading of 0.13 percent.

At the bench trial, police matron Nellie Yaw testified that she was certified as an Intoxilyzer operator in December 1983, she conducted the breath test on Souza on October 11, 1984, and in conducting the test she followed a checklist based on the manufacturer's recommendation and the Department of Health regulation.

Criminalist Milton Chang (Chang) who was a certified Intoxilyzer operator-supervisor also testified. He stated that he tested the accuracy of the Intoxilyzer used on Souza on October 5, 1984 and October 12, 1984. The testing process described by Chang initially involved the preparation of a stock solution by Chang or another criminalist in the crime laboratory by diluting 77 milliliters of "absolute alcohol ... in a [sic] 1,000 milliliters of water." February 24, 1986 Transcript at 10. Though apparently no record was made detailing the composition of the stock solution, Chang testified that this was the standard procedure even "prior to the use of the intoxilyzer." ³ Id. Next, "in accordance with the recommendations of the manufacturer," Chang prepared two solutions by further diluting 10 milliliters and 20 milliliters of stock solutions separately "with water to 500 milliliters in a volumetric flask." Id. at 7, 9. According to Chang, the dilution of 10 and 20 milliliters of stock solution resulted in .10 percent and .20 percent simulator solutions, respectively. There was no independent analysis of the simulator solutions for their alcoholic content. The simulator solutions were then stored in sealed jars which include heating units that maintain a certain temperature "simulat[ing] the mouth temperature of an individual." Id. at 16. Apparently, the heating units are also equipped with thermometers.

Using the .10 percent and .20 percent simulator solutions, which according to Chang had not been used more than five times previously, Chang tested the Intoxilyzer on October 5, 1984, and found it "to be operating properly and accurately." February 11, 1986 Transcript at 47. A subsequent test on October 12, 1984 revealed the same result.

Based on the Intoxilyzer test result, the district court found Souza guilty of the DUI offense.

II.

"[T]he basic proscription of drunk driving" and " 'certain [evidentiary] presumptions [relating to a person's intoxicated state] based upon the amount of alcohol in a person's blood[,]' " have been a part of Hawaii statutes since 1949. ⁴ State v. Tengan, 67 Haw. 451, 455, 691 P.2d 365, 369 (1984). These proscription and presumptions were reinforced in 1967 by the "implied consent" law ⁵ which is a " 'method of compelling a person arrested for drunken driving to submit to a test for intoxication, by providing that such person will lose his automobile driver's license for a period of six months if he refuses to submit to a test for intoxication.' " Rossell v. City & County, 59 Haw. 173, 181, 579 P.2d 663, 669 (1978) (quoting People v. Superior Court, 6 Cal. 3d 757, 765, 493 P.2d 1145, 1150, 100 Cal. Rptr. 281, 286 (1972)).

In 1973, by the enactment of Act 139, the legislature "designate[d] the Department of Health as the statewide administrator for the scientific and technical control of chemical testing for blood alcohol." Sen.Stand.Comm.Rep. No. 692, in 1973 Senate Journal at 924. HRS § 321-161 (1985), which codifies Act 139, states:

Chemical testing for blood-alcohol concentration. (a) The department of health shall establish and administer a statewide program relating to chemical testing of blood-alcohol concentrations for the purposes of chapter 286, part VII, and chapters 291 and 291C, with the consultation of the state director of transportation. Under the program, appropriate procedures shall be established 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.

(b) The director of health may adopt rules and regulations pursuant to chapter 91 necessary for the purposes of this section.

As authorized by HRS § 321-161(b), the Director of Health has adopted rules and regulations regarding the "Testing of Blood, Breath and Other Bodily Substances for Alcohol Concentration" which are compiled in Chapter 111 of Title 11 of the State's Administrative Rules (Rules). ⁶

III.

In State v. Nakahara, 5 Haw.App. 575, 704 P.2d 927 (1985), where the evidence clearly indicated that the operator of the Intoxilyzer had less than eight hours of instruction and training and had not been issued an operator's permit by the chief of police contrary to the requirements of §§ 11-111-4(1)(A) and 11-111-8(b) of the Rules, we stated that "unless there has been strict compliance with Chapter 111 of the Rules, the State may not use the Intoxilyzer test result as proof of a defendant's violation of HRS § 291-4." Id. 5 Haw.App. at 578, 704 P.2d at 929.

Citing Nakahara, Souza contends that "failure to comply with Section 11-111-2(b) of Chapter 111, Administrative Rules of the Department of Health rendered the test result obtained by use of the Intoxilyzer inadmissable [sic]." Based on our refinement of Nakahara, as set forth below, we hold that the State complied with § 11-111-2(b) of the Rules.

A.

A fundamental rule of evidence is that before the result of a test made out of court may be introduced into evidence, a foundation must be laid showing that the test result can be relied on as a substantive fact. See 29 Am.Jur.2d Evidence § 823 (1967). Regarding the Intoxilyzer, its use "had been approved by the Director of Health and it met the Federal Standard for Devices to Measure Breath Alcohol[,]" thus attesting to its reliability as a breath testing instrument. Tengan, 67 Haw. at 462, 691 P.2d at 373. However, for the admission of the test result from the use of a particular Intoxilyzer utilized at a specific time, there must be sufficient foundational evidence showing that (1) the Intoxilyzer was in proper working order; (2) its operator was qualified; and (3) the test was properly administered. See People v. Adams, 59 Cal.App.3d 559, 131 Cal.Rptr. 190 (1976); People v. Bowers, --- Colo. ---, 716 P.2d 471 (1986); 2 S. Gard, Jones on Evidence § 14.37 (6th ed. 1972).

The issue raised on appeal involves the sufficiency of the foundational evidence required. Souza argues that unless there is a showing of strict compliance with the Rules' provisions relating to the Intoxilyzer, the foundational requirements have not been met. On the other hand, the State contends that because there is no statute expressly conditioning the admission of test results on compliance with the Rules, the test result should be admissible upon a showing of "substantial" compliance with the Rules.

Based on our perception of the legislative intent underlying HRS § 321-161, we hold that in meeting the foundational prerequisites for the admission of...